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on
“roma”
Is aad John Murphy
11th edition
C LexisNexis”
Butterworths
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Street on
Torts
This book is dedicated to Lukas,
though I hope he never gets the urge to read it.
Street on
Torts
Eleventh Edition
John Murphy Ls, Lm

Senior Lecturer in Law
at the University of Manchester
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Preface
Since the publication of the 10th edition of this work in 1999 much has changed. The
editorship of this book, the content of the law and the (increasingly large) number of
modern law schools now teaching torts on a single-semester basis are three such
changes. Each is reflected in significant measure in the pages that follow.
In terms of editorship, I have retained the same basic structure employed in previous
editions to reflect the range (and hierarchy) of interests protected by tort law rather
than attempt to produce a book that maps onto a standard undergraduate course in
neat chapter-by-chapter fashion. Nonetheless, there has been a very considerable
amount of rewriting, pruning and modernisation. The chapters dealing with the economic
torts (and the other chapters centring on economic interests) have been very
significantly rewritten to reflect the manner in which this area of the law has moved on,
not just in terms of what the courts have decided, but in terms of the way this area of
the law has come to be thought and written about in academic circles. The opening
chapter, too — especially in relation to the impact of the Human Rights Act 1998 and
growing importance of privacy as a protected interest — as well as the three chapters
dealing with the duty of care and causation in negligence, have also been very
significantly re-written and restructured for similar reasons. In all of these chapters, I
have attempted to reflect the vigorous academic debate that has recently raged on
these subjects in fully referenced footnotes to secondary sources from both sides of
the Atlantic and beyond.
I have also had a good deal of rewriting to do in the chapters on causation, product
liability, vicarious liability, defamation, and occupiers’ liability. The courts and Parliament
are entirely responsible for this.
To counter the effect of the inevitable additions to the text, and conscious of the way
tort law is increasingly being taught in modern law schools, I have also made some
(hopefully judicious) cuts. I have trimmed (but omitted little of substance) from those
chapters that are seldom if ever taught on single-semester courses. Readers familiar
with past editions will therefore notice that the chapters on trespass to land, and the
chattel torts are now considerably slimmer than formerly. Similarly, savings have been
made in those chapters on parties to a tort action and extinction of remedies. Even so,
vi Preface
what remains in each of these chapters provides more than enough to allow the first-
time reader to gain a very substantial grasp of the relevant law.
Since the last edition, there have been very many cases of significance for the
development of the law of torts; but attempting to list them all here would be a futile.
Suffice it to note that full discussion has been afforded to the decisions of the House
of Lords in, among other cases, Fairchild vy Glenhaven Funeral Services, Lister v
Hesley Hall, Kuddus v Chief Constable of Leicestershire and Phelps v Hillingdon
London Borough Council. The profound impact of the Human Rights Act 1998
throughout tort law generally, but in particular in connection with the protection of
privacy, has also been fully recorded.
In preparing this edition I have incurred a number of debts. First, for her boundless
enthusiasm, encouragement and intellectual stimulation I must thank my colleague,
friend, and former co-editor, Margot Brazier. There are lots of new ideas in this edition
of the book. She listened patiently to a number of them, and forced me refine and
improve nearly all of them. Francesco Giglio, Christian Witting and Ken Oliphant also
require special mention and thanks. Francesco Giglio, my co-teacher of torts at
Manchester University, has made many helpful comments on draft chapters as well as
penetrating comments on matters of legal theory. With equal perspicacity, Christian
Witting has been a very helpful colleague from afar. Emails between Manchester and
Melbourne in the middle of the night, for me at least, have more than I would ever have
believed possible, helped me to clarify my thinking on the negligence liability of public
authorities and causation. Ken Oliphant, too, provided valuable assistance in thinking
through the Fairchild decision and in commenting helpfully on other work that has
now been incorporated into the text of this book. I am grateful to all the above-named,
but the usual caveat applies.
Finally, the biggest debt of all is owed in equal measure to Anne and Lukas who put up
with my mood swings, my irritability, and my insistence on peace and quiet while I was
working on ‘that bloody book’.
The book is fully up to date on the basis of those materials available to me as of

February 2003. I was, however, able at proof stage to amend the text so as to take
account of the outcome in the much-publicised privacy case concerning the actors
Michael Douglas and Catherine Zeta-Jones.
John Murphy
Manchester
April 2003
Contents
Preface v
Abbreviations xxvii
Table of statutes xxix
Table ofcases xxxv
Part |
Introduction
Chapter |
The law of torts 3
Section 1. What is a tort? 3

Section 2. Human rights and protected interests 5
(A) The Human Rights Act 1998 5
(B) Interests protected by the law of torts 8
(1) Intentional invasion of personal and proprietary interests 9
(2) Interests in economic relations, business and trading interests 9
(3) Interests in intellectual property 9
(4) Negligent interference with personal, proprietary and economic
interests 9
(5) Further protection of personal and proprietary interests 10
(6) Reputation 10
(7) Due process 10
(8) Miscellaneous interests: ‘convention rights’ and European Community
lawrights 11
Section 3. Theoretical perspectives on the law of torts 12
(A) A law of tort or a law of torts? 13
viii Contents
(B) Wrongfulness in tortlaw 13

(C) ‘Ghosts from the past’: forms of action 14
(D) Conflict between certainty and justice 15
(E) Loss distribution, deterrence and economic analysis 15
(F) The judges and laissez-faire 17
(G) Limits on the effectiveness of tortlaw 17
Section4. Tort and other branches oflaw 18
Part Il
Intentional invasions of interests in person

and property
Chapter 2
Intentional torts today 23

Section 1. Trespass and negligence 23
Section 2. Intention and trespass 26
Section3. Relevance of trespass today 27
Chapter 3
Trespass to the person and related torts 31

Section 1. Introduction 31
Section2. Battery 31
(A) Defendant’s state of mind 32
(B) Noconsent by the claimant 34
(C) The character of the defendant’s act 34
(D) Damages 36
Section3. Assault 36
(A) The character of the defendant’s conduct 36
Section 4. Intentional physical harm other than trespass to person 38
Section5. Falseimprisonment 40
(A) Stateofmind 41
(B) Character ofthe Act 41
(C) Knowledge ofthe claimant 44
(D) Whois liable for a false imprisonment? 44
(E) Damages 45
Section6. Other forms of compensation 46
Contents ix
Chapter 4
Wrongful interference with goods 47

Section2. Conversion 49
(A) Interest of the claimant 49
(1) Bailment 49
(2) Lienand pledge 51
(3) Sale 51
(4) Licensee 52
(5) Finder 52
(6) Jus terti (third party rights) 53
(B) The subject matter 54
(C) Defendant’s state of mind 55
(D) Acts of conversion 55
(1) Taking goods or dispossessing 56
(2) Destroying or altering 56
(3) Using 57
(4) Receipt, disposition and delivery 57
(5) Misdeliveryby carrier 58
(6) Refusal to surrender on demand 58
(7) Goods lost or destroyed 59
(8) Residual acts amounting to a conversion 60
(E) Conversion as between co-owners 60
(F) Damages 61
(G) Otherremedies 65
Section3. Trespass to goods 66
(A) Forms of trespass 66
(B) Character of the defendant’s act 67
(D) The interest of the claimant 68
(E) Damages 69
(1) Measure 69
(2) Trespass ab initio 70
Section 4. Residual torts 70
Chapter 5
Trespass to land 73
Sectionl!. Trespass 73
(A) Types of act that constitute trespass 73
- (B) What may constitute the subject matter of an action? 76
x Contents
(D) Who may sue? 7

Section2. Remedies 80.
(A) Damages 80
(B) Injunctions 81
(C) Recovery of land , 82
Section3. Defences 82
(A) Justification 82
(B) Licence 83
Chapter 6
Defences to the intentional torts 85
Section 1. Mistake and inevitable accident 85

Section2. Consent 86
(A) General 86
(B) Consent to medical treatment 88
Section 3. Contributory negligence 90
Section4. Self-defence 91
Section5. Defence of another person 92
Section6. Defence of one’s property 92
Section 7. Defence of another’s property 94
Section 8. Preventingcrime 94
Section9. Necessity 94
(A) Distinguished from defence of property 94
(B) Scope 94
Section 10. The Mental Health Acts 96
Section 11. Discipline 96
(A) Children 97
(1) Byparents 97
(2) By schoolteachers and others responsible for their children or for their
training and education 97
(B) Passengers in public transport 98
Section 12. Arrest, search and seizure 98
(A) Arrest 98
(1) Byapoliceman withawarrant 98
(2) Arrest without warrant 99
(B) Reasonable cause 100
(C) Manner ofarrest 101
(D) Entry, search and seizure 102
Section 13. Judicialacts 103
Section 14. Statutory authority 104
Section 15. Acts connected with parliamentary proceedings 104
Section 16. Executiveacts 105
(A) Act of state 105
Contents xi
(B) Prerogative 105

Section 17. Anact whichisalsoacrime 105
(A) Assault and battery 105
Section 18. Claimanta wrongdoer 106
Section 19. Self-help remedies 109
Part Ill
Intentional interference with economic interests
Chapter 7
Interference with economic interests 113
Section 1. Rights and economic interests 113

Section 2. Free competition, unfaircompetition 115
Section3. Economic loss and negligence 116
Section 4. Economic torts and economic regulation 118
Chapter 8
False representations I19

Section 1. Deceit 119
(A) False representation 120
(B) Knowledge offalsity 121
(C) Intention to deceive 121
(D) Reliance ofthe claimant 122
(E) Loss 124
(F) Agency 124
(G) Statute of Frauds Amendment Act 1828 126
(H) Misrepresentation Act 1967 126
Section2. Passingoff 127
(A) Misrepresentation 128
(1) Kinds of misrepresentation 128
(2) Representation must be likely to deceive the claimant’s customers 133
(3) Representation in the course of a trade 134
(B) Goodwill 135
(C) Damage 136
(D) Defences 137
- (E) Remedies 137
(1) Injunction 137
xii Contents
(2) Damages 137

(F) Unfair trading and passing off 138
Section 3. Malicious falsehood 138
(A) Interests protected 138
(B) Disparagement 140
(C) Falsestatement 141
(D) Publication 141
(E) Malice 141
(F) Damage 142
(G) Defences 143
(H) Malicious falsehood and defamation 144
Chapter 9
Interference with contract or trade 145
Sectionl. Conspiracy 146

(A) Combination 146
(B) The purpose of the defendants 147
(C) Justification 149
Section 2. Interference with an existing contract 150
(A) Origins of the tort: directly inducing a breach of contract 150
(1) Kinds of contract 151
(2) Kindsofbreach 151
(3) Knowledge of the contract 153
(B) The wider tort: interference with an existing contract 153
(1) Direct persuasion or procurement 154
(2) Directintervention 154
(3) Indirect procurement 155
(4) Inconsistent dealings 156
(5) Defendant’s state of mind 157
(6) Damage 158
(7) Justification 158
(C) Inducing breaches of other obligations 159
(D) Remedies 160
(1) Damages 160
(2) Injunction 161
Section3. Intimidation 161
A Introduction 161
B- Unlawfulthreats 162
Section 4: Unlawful interference with trade 163
(A) The interests protected 164
(B) Unlawfulmeans 164
(C) Two-party cases 166
(D) Justification 166
Section 5. Economic torts andtrade unions 167
Contents xiii
Chapter 10
Intellectual property interests 169

Section 1. Copyright, patents and similar interests 169
Section2. Breachofconfidence 170
(A) The obligation of confidentiality 170
(B) Justifiable disclosures 172
(C) Remedies 173
Part IV
Negligent invasions of interests in person and

property and economic interests
Chapter | |
Duty of care I: foundational principles 177

Section2. The emergence ofa general test 178
Section3. The rise and fallofAnns 179
Section 4. Modern approaches to the duty of care 186
(A) The Caparo Test 186
(1) The foreseeable claimant 187
(2) Proximity 188
(3) Fair, justand reasonable 194
(B) Incrementalism 198
(C) Assumption of responsibility 199
Section5 Public authorities and the duty of care 200
(A) General principles 200
(B) Public functions and the duty of care 201
(1) Justiciability: historical précis 202
(2) Themoderm approach 204
Section 6. Duties in tort and contract 210
Chapter | 2
Duty of care Il: recognised harm 215

Section2. Harmtopersons 216
(A) Duty to the unborn 216
xiv Contents
(B) A duty to rescuers? 218

(C) Liability forpsychiatricharm 218
Section 3. Policy issues and harm to the person 226
Section3. Damagetoproperty 228
Section4. ‘Pure’ economicloss 231
(A) Statements and ‘special relationships’ 232
(B) The extended Hedley Byme principle 237
(C) Beyond Hedley Byrne 242
Chapter |3
Breach of duty 247

Section 1. The standard ofcare 247
Section 2: Factors relevant to establishing the required standard 248
(A) Factors extraneous to the defendant 248
(1) Thelikelihoodofharm 248
(2) Themagnitudeofharm 249
(3) The social utility of the defendant’s act 249
(4) Emergencies 251
(5) The relative cost of avoiding the harm 252
(6) The ‘hurly burly of life’ 253
(7) General practice ofthe community 253
(B) Factors pertaining to the defendant 254
(1) Childdefendants 255
(2) Intelligence and knowledge 256
(3) Skill 257
(4) Disability and infirmity? 259
(5) Special knowledge concerning the claimant 260
(6) Foreseeable acts of third parties 261
Section3 The connection between standard and duty of care 261
Section4 Professional negligence 263
(A) The background 263
(B) Duty and breach 264
(C) The reasonable ‘professional’ 265
Section 5. Breach of an employer’s duty to hisemployees 266
(A) A personal, non-delegable duty 267
(B) The provision of competent staff 269
(C) Adequate premises and plant 269
(D) A proper system of working 270
Section6. Proving negligence 272
(A) Lawand fact 272
(B) Onus of proof 273
(1) Resipsaloquitur 274
(2) Civil Evidence Act 1968,s11 280
Contents xv
Chapter | 4
Causation 281
Section 1. Causation infact 282

(A) The ‘but-for’ test 282
(B) Evidence of causation 283
(C) Cases of evidential uncertainty 283
(1) Cases involving the ‘loss of a chance’ 283
(2) The material contribution to harm principle 286
(3) The material contribution to the risk ofharm principle 287
(4) The material contribution to the risk of harm among several wrongdoers
principle? 288
(5) The one among several causative agents principle 292
(D) Concurrent tortious causes 293
Section2. Relationship between causation and breach of duty 294
Section 3. New intervening causes: causation inlaw 294
(A) Intervening natural causes 296
(B) Claimant’sownconduct 296
(C) Acts of third parties 297
Section4. Remoteness ofdamage 299
(A) The Wagon Mound 300
(B) Foreseeable type ofharm 300
(C) The means by which the harm was caused 301
(D) Extentofthedamage 303
(E) The ‘egg-shell skull’ rule 304
Chapter |5
Defences to negligence 307

Section 1. Contributory negligence 307
(A) Risk 308
(B) That the claimant’s ‘negligence’ was a contributory factor 308
(C) The negligence of the claimant 312
(D) The scope of the Law Reform (Contributory Negligence) Act 1945 315
(E) Apportionment of damages 318
Section 2. Voluntary assumption ofrisk 320
(A) Is assumption of risk properly regarded as a defence? 320
(B) Illustrations of when the claimant is deemed to have assumed the risk 322
(1) Suits by employees against employers 322
(2) Drunken pilots/drunken drivers 324
(3) Dangerous activities 326
‘(©) Voluntary act 327
Section 3. Excluding liability 329
xvi Contents
Chapter |6 .
Liability for defective premises and ;

structures 331
Section 1. Occupiers’ liability 331
(A) Liability to visitors: the Occupiers’ Liability Act 1957 332
(1) Who is anoccupier? 332
(2) Scope ofthe Act 333
(3) Thecommon duty ofcare 338
(4) Some special cases within the Occupiers’ Liability Act 1957 344
(5) Exclusion ofliability 347
(B) Liability to non-visitors: the Occupiers’ Liability Act 1984 349
(C) Common law liability and activities onland 353
(D) Liability to those outside the premises 355
Section 2. Liability ofnon-occupiers 356
(A) The Defective Premises Act 1972 357
(B) Builders and contractors: physical damage 358
(C) Builders and contractors: other loss 359
(D) Professional advisers 362
(E) Local authorities 362
(F) Landlords 363
Part V
Invasions of interests in person and property

where intentional or negligent conduct need not
always be proved
Chapter | 7
Product liability 367

Section 2. Consumer protection and the changing common law 368
(A) The limitations of contractlaw 368
(B) The action for negligence 369
(1) The narrow rule in Donoghue v Stevenson — defective products 371
(2) Range of defendants 371
(3) Products 372
(4) Ultimate ‘consumer’ 372
(5) Sale 373
(6) Intermediate examination 373
(7) Preparation or puttingup 374
(8) Continuing duty ofcare 374
(9) Recoverableloss 374
(10) Proving negligence 375
Contents xvii
(11) Proving causation 377

(C) Action for breach of statutory duty 377
Section3. Thestrict liability regime 378
(A) The Consumer Protection Act 1987 378
(B) Who can sue under the Act? 379
(C) On whomis strict liability imposed? 379
(D) Products 380
(E) Defining ‘defect’ 381
(F) Generaldefences 383
(G) The ‘development risks’ defence 384
(H) Causation 385
(1) Limitation 386
Chapter 18
Nuisance 387
Section 1. Nuisance as a separate tort 387

(A) Scope of the law of nuisance 387
(B) Nuisance and environmentallaw 389
(C) Nuisance and other torts 391
Section2. The basis of nuisance liability 393
(A) Substantial interference 393
(1) Interference with the use or enjoyment of land 393
(2) Material damage toland 397
(3) Interference with servitudes 398
(B) Unreasonableness 399
(1) The seriousness of the interference 399
(2) Reasonable user of the defendant’s land 402
Section3. Whocansue? 408
(A) Owners and resident occupiers 408
(B) Reversioners 409
(C) Claimants suffering personal injuries, damage to chattels or
economic loss 410
Section 4. Who can be sued? 411
(A) Creators 411
(B) Occupiers 413
(1) Acts of a trespasser 413
(2) Actsofnature 414
(3) Nuisances created by independent contractors 415
(4) Acts of a previous occupier 415
(C) Landlords 415
Section 5. Must the interference emanate from the defendant’s land? 417
(A) Statutory authority 417
(B) Prescription 418
(C) The claimant’s conduct 419
xviii Contents
(D) Other defences +420

Section 7. Remedies 420
(A) Damages 420
(B) Injunction 422
Section 8. Publicnuisance 423
(A) Nature of public nuisance 423
(1) Therelator action .423
(2) Local authority applications 424
(3) Civil actions for ‘special damage’ 424
(B) The relationship between public nuisance and private nuisance 426
(C) Remedies in public nuisance 428
(1) Injunction 428
(2) Damages 428
Chapter 19
Rylands v Fletcher 431

Section2. ‘Things’ withintherule 433
Section3. Parties 435
(A) Who may be sued? 435
(B) Who may sue? 437
Section4. The non-natural use of land 439
Section5. Escape 441
Section 6. Foreseeabilityofharm 442
(A) Statutory authority 443
(B) Consent ofthe claimant 444
(C) Contributory negligence 445
(D) Act of third parties: Rylands v Fletcher or negligence? 445
(E) ActofGod 447
(F) Necessity 448
Section 8. Nuisance and Rylands v Fletcher 448
Chapter 20
Animals 451
Section]. Negligence and strict liability 451

Section2. Damage done by dangerous animals 451
(A) Dangerous species 451
(B) Non-dangerous species 452
(C) Liability for either kind of dangerous animal 453
Section 3. Liability for straying livestock 454
Section 4. Liability for injury done by dogs to livestock 455
Contents xix
Chapter 21
Breach of statutory duty 457

Section 2. Elusive Parliamentary intent 459
Section3. The nature of the action 463
(A) Breach of statutory duty simpliciter 463
(B) The common law duty ofcare 463
(C) The careless performance of a statutory duty 464
Section4. What the claimant must prove 464
(A) An obligation on the defendant 464
(B) The statute must impose the burden on the defendant 464
(C) The statute protects the claimant’s interest by way of a cause of action
intort 465
(1) The state of the pre-existing common law ~465
(2) Alternative remedies provided by statute 466
(3) Public and private rights 467
(D) The harm suffered by him is within the scope of the general class of risks at
which the statute is directed 468
(E) The claimant was one of the persons protected by the statute 469
(F) When damage must be proved 469
(G) The conduct of the defendant was of such a character as to violate the
statute 469
(H) Causation 470
Section 5. European legislation: the analogous action 470
(A) The relation between criminal and tortious liability 471
(B) Assumption ofrisk 472
(C) Contributory negligence 472
(D) Actofathird party 473
(E) Exturpicausa 473
Part VI
Interests in reputation — defamation
Chapter 22
Defamation: foundational principles 477

(A) Background issues 477
Section 2. Elements of defamation 481
(A) The meaning ofdefamatory 481
(1) Injury to reputation 481
xx Contents
(2) Whomaybedefamed 484

(3) The interpretation of defamatory statements 484
(4) Immateriality of the defendant’s knowledge 489
(B) Reference tothe claimant 489
(1) Class libels » 490
(2) Unintentional references to the claimant 490
(C) ‘Malicious’ publication 491
Section 3. Distinguishing libel and slander 494
(A) Criteria for distinguishing libel from slander 494
(B) Juridical differences between libel and slander 495
(C) Exceptional cases where slander is actionable perse 495
(1) Imputationofcrime 495
(2) Imputation of certain types of disease 497
(3) Slander in respect of office, profession, calling, trade or business 497
(4) Imputation of the unchastity ofa woman 498
(D) Special damage and remoteness of damage 498
Chapter 23
Defences and remedies in defamation 501
Section 1. Consent and assumption of risk 501

Section2. Justification 502
Section3. Innocent disseminators 505
(A) Innocent publication: the commonlaw 505
(B) Defamation Act 1996,s1 506
(C) Offer of amends: Defamation Act 1996, ss 2-4 507
Section 4. Absolute privilege 508
(A) Parliamentary proceedings 508
(B) Executive matters 509
(C) Judicial proceedings 510
(D) Solicitor-client communications 512
(E) Reports of judicial proceedings 513
Section 5. Qualified privilege 513
(A) Malice 514
(1) Establishing malice 514
(2) Judge and jury and the burden of proof in respect of malice 516
(3) Excess of privilege and malice 517
(4) Joint publishers and malice 518
(B) Instances of qualified privilege 518
(1) General principle 518
(2) Privilegedreports 519
(3) Statements to protect an interest 521
(4) Statements in pursuance of a legal, social or moral duty 523
Section6. Faircomment 526
(A) Matters of public interest 526
Contents xxi
(B) Comment on true facts 527

(C) Comment must be honest and not actuated by malice 529
(D) Burden of proof and the functions of judge and jury 531
(E) Similarity between fair comment and qualified privilege 531
Section7. Apology 531
Section 8. Remedies 532
(A) Damages 532
(B) Injunctions 534
Part VII
Misuse of process
Chapter 24
Misuse of process 539

Section 1. Malicious prosecution and related claims 539
(A) Institution of proceedings 540
(B) Nature of proceedings 541
(C) Termination in favour of claimant 542
(D) Absence of reasonable and probable cause 542
(E) Malice: improper purpose 544
(F) The Crown Prosecution Service 545
(G) Defences 546
Section2. Abuse of process 546
Section3. Witnessimmunity 546
Section 4. Misfeasance in public office 547
Part VIII
Remedies and parties
Chapter 25
Vicarious liability 551

Section 1. Importance of the distinction between employees and independent
contractors 551
Section 2. Distinguishing an employee from an independent contractor 552
(A) Control 552
(B) Personal investment in the enterprise 553
(C) Intention of the parties 554
xxii Contents
(D) Some particular‘eases examined 554

(1) Hospital staff 555
(2) Borrowedemployees 555
(3) Police officers 556
Section3. Is there a separate category of agents? 556
Section 4. Liability in respect of an independent contractor 558
(A) Authorising him to commitatort 558
(B) Torts where intentional or negligent conduct need not always
be proved 559
(C) Negligence 559
(1) Personal negligence on the part of the employer 559
(2) Non-delegable duties 560
Section 5. Where the employer is not liable for the acts of an independent
contractor 563
(A) No breach by employer of any duty imposed on him by the law of torts 563
(B) Collateral negligence 563
Section 6. Liability inrespectofemployees 565
(A) The commission of a tort or other wrong by the employee 565
(B) In the course of the employee’s employment 565
(1) The course of employment: general principles 566
(2) Authorised conduct within limits of time and space 567
(3) Express prohibitions 569
(4) Connection of the wrongful act the with employer’s work 570
(C) Statutory duty and vicarious liability 575
Chapter 26
Remedies 577
Section]. Extra-judicial 577

Section2. Judicial 577
(A) Damages 577
(1) Nominal 577
(2) Contemptuous damages 578
(3) Distinguishing between general and special damages 578
(4) Personalinjuries 578
(5) Damagesandtax 579
(6) ‘Parasitic’ damages 579
(7) Aggravated and exemplary damages 579
(8) Mitigationofdamage 582
(9) Successive actions on the same facts 584
(B) Account of profits 586
(C) Injunctions 586
(1) Asaremedy per se, or as an addition to damages 586
Contents xxiii
(2) Injunctions where an action in tort does not lie 588

Section3. Tort and contract 589
(A) Tort and unjust enrichment 590
(1) Electionofremedies 590
(2) Advantages of proceedings in tort or unjust enrichment 592
Chapter 27
Compensation for personal injuries and associated

losses 593
Section2. Awards of damages to living claimants 594
(A) Pecuniary losses 596
(1) Loss ofearnings 596
(2) Medical, nursing and hospital expenses 599
(3) Additional pecuniary losses and expenses 601
(4) Deduction for benefits received 602
(B) Non-pecuniary losses 604
(1) Painand suffering 604
(2) Lossofamenities 605
(3) Assessing the quantum 605
(4) Provisionalawards 606
(5) Interest 607
(C) Damage or destruction of goods 608
Section3. Death 608
(A) Survivalofactions 608
(B) Death asa cause of action 610
(1) Introduction 610
(2) Who may sue? 610
(3) Nature of the act complained of 611
(4) The nature of the interests protected 612
(5) Period oflimitation 613
(6) Assessment of damages 613
Section4. Alternative compensation systems 617
(A) Responsibility and the welfare state 617
(B) Other compensation systems 618
(1) Criminal injuries compensation scheme 618
(2) Occupational sick pay 618
(3) Occupational pensions 618
(4) Industrial injuriesscheme 618
(5) Trade unions and charities 619
(6) Insurance 619
(C) The Pearson Report 619
xxiv Contents
Chapter 28 y
od
Extinction of remedies 621
Section 1!. Waiver 621

Section2. Satisfaction 622
Section3. Judgment 623
Section4. Release 623
SectionS. Accord and satisfaction 623
Section 6. Limitationofactions 624
(A) Introduction 624
(B) When does a cause of action accrue? 626
(C) Special rules for personal injuries 627
(D) Latent damage in non-personal injuries cases 631
(E) Continuing wrongs 633
(F) Effect of disability ofthe claimant 633
(G) Postponement of limitation period in cases of fraud or concealment 634
Section7. Death 635
Chapter 29
Capacity and parties 637

Section!. TheCrown 637
(A) Vicarious liability 637
(B) Non-vicarious liability 638
(C) Exceptions 638
(1) Judicialerrors 638
(2) Armed forces 639
(3) Certain statutes imposing liability intort 639
Section2. Foreign states 639
Section3. Ambassadors 640
Section 4. Postal services 640
SectionS. Highway authorities 641
Section6. Corporations 642
(A) Liability 642
(B) Powertosue 644
Section 7. Trade unions and other unincorporated bodies 644
(A) Trade unions 644
(B) Other unincorporated bodies 645
(1) Liability as defendants 645
(2) Capacity asclaimants 646
Section 8. Partnerships and limited liability partnerships 647
Section9. Husband and wife 647
Section 10. Mentally disordered persons 648
Section 11. Minors 649
Contents XXV
(A) Liability 649

(1) Where the act of the minor is also a breach of contract 649
(2) Liability ofthe parent 650
(B) Capacity tosue 650
Section 12. Bankrupts 651
(A) Liability 651
(B) Capacity tosue 651
Section 13. Assignees 652
Section 14. Convicted persons 653
Section 15. Joint torts 653
(A) Categories 653
(1) Joint tortfeasors 653
(2) Several concurrent tortfeasors 655
(3) Several tortfeasors causing different damage 655
(B) The important distinction between joint tortfeasors, several concurrent
tortfeasors and other tortfeasors 656
(C) Joint tortfeasors and several concurrent tortfeasors 657
(D) Contribution 657
(1) Scope 657
(2) Whomayclaimcontribution 658
(3) Those from whom contribution may be claimed 658
(4) Amount of contribution recoverable 659
Appendix |
Convention rights 663
Appendix 2
Defamation Act 1996 669
Index 673
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Abbreviations
American Restatement Restatement of the Law of Torts (American Law Institute)

Aus LJ Australian Law Journal
Blackstone Commentaries on the Laws of England, by Sir William
Blackstone (1796)
CLI Cambridge Law Journal
Can BR Canadian Bar Review
Clerk and Lindsell Law of Torts by JF Clerk and WHB Lindsell (18th edn, 2000)
Comyns Comyns’ Digest of the Laws of England (Sth edn, 1822)
Harv LR Harvard Law Review
LOR Law Quarterly Review
MLR Modern Law Review
Pollock The Law ofTorts by Sir F Pollock (15th edn, 1952, by PA
Landon)
Porter Report Report of the Committee on the Law of Defamation (Cmnd
7636, 1948)
UTLI University of Toronto Law Journal
Williams Joint Torts Joint Torts and Contributory Negligence by Glanville L
Williams (1950)
Winfield & Jolowicz Winfield and Jolowicz on Torts (16" edn, 2002)
Winfield Present Law Present Law of Abuse of Legal Procedures, by PH Winfield
Winfield Province Province of the Law of Trusts by PH Winfield (1931)
Table of statutes
Page numbers in bold type indicate where the legislation is set out in part or in full
PAGE PAGE
Access to Neighbouring Land Act 1992 ...83 Children and Young Persons Act 1933
Administration of Justice Act UGA as eRe ae Aer sc eee OF
Cy PANES Ge Ba ome 151, 607, 609, 610 Chronically Sick and Disabled Persons Act
SALI B (0) re eee ee eae eee ere es 605 KEYS eneneis ene vin ae ee ast oath a5 617
OL RE RES OSt CC te ME ee ee 5719 Civil Aviation Act 1982
AeA 2) erences ren oe eyeee 608 SEA OECD rch Soa Sis phen Sesh cach RS oe WA
Di ah Shue cc, WES: cots a a eb 600 Tks (U0) (C2 ee oescisoeaae oan oom sone WAL
INTEC Taney EpUeel lBipl | eee ene ae eectsneeO38 (BB cysts sepin aoe een ee 660
SON) ee ee Oe aenai coat ee ee 451 Civil Evidence Act 1968
(OA a es AE eet ene 452 ye Ee eee ee eee eee 280
(ieee, Cee oe oe 453 Civil Evidence Act 1995
oe AR eR On ee © 455 SU Oe epee ee eee Pe a tere e ts: 598
else see AS, Alou A etl 454, 455 Civil Liability (Contribution) Act
CD) tits aan eae renee © 454 STR hhaeeeeen eee: ayaa eG 315, 386, 639,
Se(eliinrae res las. oS! 453, 454, 455 656, 661
(CAO: CE Oe Le Oe 453 Syl Ul) ieayrs cian Gebers cee e-em 657, 658
(G3) 2 ae eee eee eee © 94, 454 MOD) seek ec is tea acl ee aa 658
(CAEN CDE Mee Aen a meee oe cc e 455 (EMU oeoema tc rcatacoe ae 658, 659
"(SP ae eee eg ete 454 CO Ge Racer ee cts foe 658
OSA ((2)) wee teeta VRE tte asfee eee 452 a a (@) ee Re eee, ee ar nore 659
(COUR C) eae re cen eee eee = 453 (GR) a latiee 2, eee eee NS sy. og 660
(ES aS OO ae nite Ur ae 454 See eRe Oe oc eee. 657
UDO SERA RAR ee A aac Clee 454 @leaneAnmwA CE 9030 Tenrtenins eee tern 390
(CIN oe Paice tc aie rege 110 Coals Mines nACE TO eee eee 472
LO ar aicte ic terete: Mares hapa ee 453, 454 Common Law Procedure Act 1852 ....... 14
1 Seat Rete ae ee ee 452, 453, 454 Companies Act 1985
Banking Act 1979 Ris eli S MeseceNOerere aie na celts 644
SRA ety Ee ores Bios ee itord oc PEE 90 BSS erage s mitts a A <a 644
Bill of Rights 1689 Soh, Won oeSOR eee noe cae 644
TAM ns each eign ensle tones 480, 508 Se en eT ee Trae oe 121
Brighton and Chichester Railway Act Compention Act 1L99S8er ea ane ia Ns)
(RZVy ke ee a oan ok re 469 Congenital Disabilities (Civil Liability) Act
British Telecommunications Act 1981 .. 506 CMG nee eed arts Oa eo ee 31551639
Broadcasting Act 1990 Salle (ea een ha coe eee 216
S WO Ogee reo e lek ere 3 ae rca 495 (GUNRGEs oe Bene eee meine 5 5 217
Garage, byeAgr ACt L96N ooo no oer 610 (AS es aon hp ae aoe oD ree BS
Carriage of Passengers by Road Act DE et Ee 2a
1
E722 Mire Ce iene ome: Oc ec 610 APS (sigs tesserae Besagiogs 3sDepa 216
Children Act 1989 Ste Es wes Ses aeons s 216
SAS) ceeopie SORE tk ee tena Gacy 89 Constables Protection Act 1750
AGT a een Ge er evans ewan ae 98
xxx Table of statutes
Xv PAGE PAGE
Consumer Protection Act 1961 Crown Proceedings Act 1947—contd
Sas Hi ascaaas ihe slen o ohean ieyetrneeee ur ce 367 Sire era ice aitSed ee trie ne,ponent meeete 590
Consumer Protection Act 1987 ... 368, 370, (Rare ercececeae- acetic eee eee nora 637
Sil, Bik, (OPS) (D)F(G)ig Sen nacre eens 638
Rtel (SSile Oe ectecivoenaay bi siteareeons stews 386 (Q) EB) a ore ee ererevt peerscroc 576, 638
SOLD) bee reine increas eee 380 (Nie teeahicuasecenicrere ance cere eyes 638
(a) (DO) Eceadenc cece Oy/S ((C) ae cents Commits Cale Ea Aes 637
(C) eee tha eer 380 Bae es ue MC NR PCL RC ER ETON 637
(BY eedeirnce sok estates Bee a eee 380 NO) acaesret opveuere ecko va eae rare 639
PY Gicelg cca cece a.cerom.ane area 379, 385 D Bia sc rae eb ae SG ncaa eeeenue ced 510
(QYMA) Ge oceses Meeeerd Marat tes a es 379 Crown Proceedings (Armed Forces) Act
(3)5(C) eecotsantaasimacnese 380 NO SITs xia neuter ae ceo teptrars cece 639
(GC) iSebisr cee ee a enterears 380, 386 Damages Act 1996
Sener weno wise oecuss eaeroestas 381, 382 San. fae cicctenaeeeetecacen tensiree ee nenL tem 397
(CAN CECe!) lee nS een ae 382 Des bee ate(CP CNAIT ete SIN Tic 595, 596
Onn Oon ae acre tee ree B71. 383 Sicha Meise aa A eerae ora rena oraC 599, 609
(A) (aed) ans ees one. gees 383 STR Mn nck atepaceene tectotare saitaete areas mamas 595
(C) ree Pepe ad toe bet aed 368, 384 Dangerous Dogs Act 1991 ............. 451
(Be Ee eee etn aen nee 383 DatasProtectionAct 1993 eons. LTE
D2)? Sraahe a sralteeiy sche nyeeyatennaphes ay) DefamationnAct 952s. reeercta eer 639
(See ae taaeiace emus 625 Se Rorheepewetecs i.s cee oeakira perenne renee 497
6: Bde ees See eS eee ee BD) Se craee, 139, 143
(Ae see wor thit Argh ate Snore 383 Cee ities goby ei siotic 507, 508
LO; SYS Dena mee oath toa 307 Rachie a Sleeeras aor ein ieSeer gee 504, 532
1452) k(a)\ Reka ek eaeka.Ne 368 s)he hae oe ken 2 ko eed gen A RA ae 520
(Oe righ. Oe ee ee ee eee 368 S11 GlMecano a etait aes rareretka RAC 519
EI ale eect acetare pa racine att onysoia 378 Oise Sears Leyes dee se eee Ss)
Al) Ren echt Rhee sd ati 367, 377, 459 DetamationeAct el996 eee ree 639
AST) ee ahh ee epee tee eer 381 Sulieae ee ek tear Sa eee 506
Schaar souls aac aes aero 625 CL) RQ) PAZ eee rk c ha be eae 506
Consumer Safety Act 1978 DERE RAGA MER eof th gelled sel ewe 532
A Siacyct eerie eet ckeRhchicirstel Eacedirernee, Soca t 367 (BNC TERA ee eee See erent 507
Contracts (Rights of Third Parties) Act Si muio tetrioicace arate tet a acheter 532
19.99. ae).ee PTS Gee sili 83.65 (CA a tn pa enrich nar ait aa honorees 507
Sut) i(D) anne ees 213, 369, 346 0 RR SRR Aclcn ee onceRacor ec S07, 532
(CQ) riias crags mpehecel catcttotsierenas 213, 346 (PAlicen deren eenciarters ta beth 508
(Ci) ae ee oer Bae 213, 369, 346 (GC) Rete ete ee en ere 507, 508
Copyright, Designs and Patents Act 1988: 169 (AIR eee er See ees 508
Pir (Gs*213=264)) cen. nee a dae os 169 (GO) ete See eee eee eae 508
SOS oes Sans Gre eee eee 140 Dee crate pene ae enter ene er 479, 480
Countryside and Rights of Way Act Iie cciionctcrche eat Pees nach 480, 487
PAUUOta ecto icacraitecia 8293390 5520508 Shea iaemin hes oe MEN See 479, 480
Ce Deter CRRA CRRA OR OOP OST 83 (Q)igtekee eet canoe ee eee 480
(YB Pere 54 chee anes 352 (estate ohare eee eae eek sticky nie6 480
1S eens ce eo cS, 352 OT hottie cic cash cicaiie eat tect e 479, 480
(2) Ee, Se See B53 (GY (Co)Viet ee ee er art BeteRee ro 480
Courts and Legal Services Act 1990 (KO) cafeac abstrstoanieae sents cece ecictectcnet ir 479, 480
SiGe thet i Pore tee ee ees nee 479 P35 (Aya O)) pie eerens ncaa ere 509
DSR eR RA nese eR rene oy (Ane 509 LSD) AA ANG ee ee ne SS
Oe cdl char eeertcaet perl SeMeek 103 (Bos aon ee Sulehy SY
Criminal Injuries Compensation Act 1995: 46 ISR tee eee eee 5195 52.0052)
Criminal Justice Act 1948 CPs Se ere enone, ee eer 520
S77 LRSM Ee EES, AES) EOS en 653 (OA arsesticten? ohstcerckencreoin chcta ote oe 521
Criminal Justice and Police Act 2001 (3) att eee rn ae 520
SSOSU See ae ee ee ee eee 102 (a)’ sh dealers Ree 520
Tl ecard hte RARE AEE ORCA RARSES 15:APEC 99 (Dye Se aa an Rees he ae eee 519
Criminal Justice and Public Order Act SCHHIE saa set kc1 eee Aree ene eee eee 319
TOO4 On it Uk Bech Ae he BAe OR 100 Pe aes See een 520, 669
Criminal Law Act 1967 Pts eee the eee 520, 670
SSE Ree Shh 6 Roa ede tee 92, 94, 99 SY] WPA rr Raepiatr area aircon ctor lsOwags 507
Crown Proceedings Act 1947 .......... 592 Defective Premises Act 1972 ...... 356, 381
SUD EA RAR AR See Re ES ARR A ae 637 S.1es nts eee A Ae 361, 362
Table of statutes xxxi
PAGE PAGE
Defective Premises Act 1972—contd Health and Safety at Work etc 1974—contd
SL.G) erg ahicneet ee eee S3)7/ STATACIDICA)ERS - RN seSO 460
Dee AT Ritts Bh oA 357 (2) see RE hea SR e a 459, 461
BiG TA De Roch OS re ee, DRA 358, 359 Ich wayseACteloS OMe shee eee ane ee 423
2 Sas CaPee eee SEER ee CL eee 358, 363 S558. ed be RO Oy PET Pes BS
(ZN(G)RA weeeeen Dy) A Cae 364 Ce A eee a 641
(CH Ree sranny eee eee Bao 3 363 (2) ou Specoeo ee ee eR, Be 641
Onl) eromsteteesdee
ew ayatria Sete ee B57 Human Fertilisation and Embryology
Diplomatic Privileges Act 1964 ........ 640 Act 1990
Disposal of Uncollected Goods Act 1952 ..49 ee : ee ae ee eS re ste | 216
Distress for Rent Act 1737 Human Rights Act 1998 ....... 4, 7, 28, 40,
S OR Morep arorinei einGM meade aoe eet 70 98, 116, 215, 216,
Dramatic and Musical Performers’ Protection 408, 438, 460, 478,
Ct OS Sines opschevans et fadAta eM 166 484, 491, 639
SD Stetina ianmictanncaic au dna 461 SUL Mtrenc a Wrenrictety ccniene se eed ae AO we DAS
Education Actalo44y ae ee ee 462 A RAP fats X xicie cis as ante ON eee 8, 505
EducationpActel93iliennakan aa eee aes 464 ORS ee ae ee ee 5, 31, 478
Education Act 1996 (G18) aaa seh. ce teeta eieed en cee 409, 459
SOAS A soe pws Oh mace ebckimete cin Me97 (9) C0 (|) ane, a er he eo Pe br 6
Employers’ Liability (Compulsory Insurance) emcee, Se ee 6, 29. 31, 206, 459
NCtULIGI aE AS 266, 272, 461 SHAM cae Mr auechetere ethan Ota Te 6, 29
Employers’ Liability (Defective Equipment) ORR SRP nee ee icncaiceonenonte 103
LNCURLD OOD RGN, ANSTO EAS 268, 638 Dae peer. et eee I Pe EA ON 5
Environmental Protection Act 1990 90 VD ihe le cst oka AMR WR 587
Ractoriess Act: 1937ie + nner neers. 461, 470 Sch 1
Family Law Act 1996 Pil
Si 30 eS es. SS. BE 408 Alte aad aeraere rare 5, 9, 31, 663
Sets come deteins ety ras eet eehae RS 611 SU eR ey ee gt eee S59 SiS 4.295"
Family Law Reform Act 1969 ....... 88, 89 97, 209, 663
Sal o@)i.. Lek RE ee eee 649 AUTEN Ait Ceecee 5, 9, 663
S8(B )ieary s wtayenn ieleiaters seine Moca AA Awe 89 Sib nemtencetere 5) on Sh Sill,
Fatal Accidents Act 1976 ....244, 590, 608, 103, 664
609, 611 (CLS) UGC) ect eta ee 100
aT I) Regret Spree oes oats AAS on 610 (2)=(S)) Re Se 31
Oy nca. tee AA Re A Bee 610 OCAMR A eet 5, 8, 31, 209, 210, 665
(BER eet ecergs yer. ee 610 Gl) eee Ae 8... 639
(OS Leeann peer ee ane 611 (Tesh maar areersarctclbe pak a COn 5, 97, 665
(A nites oa ine nce irae eh See ra acs 610 Re ee 5, 8, 31, 40, 209,
(O)n(A)ecancaey sense ne re arr ee 610 438, 478, 665
(OQ) PES scccead eis hs cot AMES 613 Qc immkacn eet Ae 409
WAGEE Creirseen Caen erala scanty msdin 218, 635 (2) Se Set es 11, 409, 502
(Ce os oe cic SR RR eee ele, Ee ee 612 Sg Ne eRe ES art ae 5, 666
OA EN (si) )Aes ccs Ae ee (Se 612 NO ier rtcun nee 5, 11, 478, 491,
A) grein e HOC E CAS GS dee 613 502, 505, 666
DAL) iD) ara ecedy id oe ates eas MNS ates 610 (ONTO) rere eat ariogkLeer 173
(Atta crtcecincirienicn Le cewuw ened wee 610 IND, OAC hsae 2 eet ee 5, 666
SPL hoeseoactenarah a irarecgnen =nee Ah Pec 613 Re ee ere nh a re io 5, 667
(GB) eavacar acts amd tiktamtactencaass 615 U3 PE IETS PRE ee eas 459
CA) Dieta gh ntaevcaceoc vote Glorens Meron: 615 | RY SEMIN ORES Cn lee crt tascee 5, 667
OU) Maer ri oer anes arn aCe 615 LO Sess Wuche ne whoa aN es 667
APA ANS a te Sr a a5-5 AY 615, 616 First Protocol
SI hers ance eh t's5,Aor 611 ATbarlig ok oneeea due wee 5, 9, 409, 667
OGL) aes hee ee: A ASS... 628 Ae Sh Steers ORS ISPS ict 5, 668
Bi. AAS Gn ae eer ieee SARE 628 Sixth Protocol
Fires Prevention (Metropolis) Act Alt Als2iwcnsaastcsmsnonceand aetna adie ae 5
LTAHAL atereneieien sees areananecuey tees 420, 449 International Transport Conventions Act
HocdeActe lO84y ae Renee oie). teAart. 423 LOSSAM AAA is cxpnci cones Att ad oe 610
Friendly Societies Act 1992 TUdIGATUFEMA CTE 1S7.5 it oe vous See cates Seats 14
SO yeatesta yeetemer ate saiaca antec ceat oe 645 Justices of the Peace Act 1997 ......... 638
GuardeDors Acti 197 5inne as-cast 454 SHO Sati tavern cReetaa te 103
Health and Safety at Work etc 1974 Landlord and Tenant Act 1985
SAND Ant aad emak s.r ett ow oat 266 SAGs cevneyasesesventiaeanatiee aaa ees 416
xxxii Table of statutes
N PAGE PAGE
LatentsDamage Act 1986) y-exeer -621 13175 Limited Liability Partnerships Act 2000: 647
St, (AS, SY? Local Government’ Act 1972
SOMES Gs Hh Reo Se 632 S22 eines sen aoeeeee 423, 424, 428
Sg is ete ROS Aas sae 244, 632, 633 Local Government Act 1974
Law of Libel Amendment Act 1888 SE Ne cic ida oa Wonca asaE 509
Sie) 5 yee ee er PP ERO Ss. S40) Lord Cairns’ Act (Chancery Amendment Act
Law of Property Act 1925 1858)
§ 40 teeter:
fare! eearieans,
ests 79 SP okt cee acum ae eee ae arena a 421
Law Reform (Contributory Negligence) Act Magistrates’ Courts Act 1980
EY eae SD y SHU, SHAS SiS) SHIN Si DIO04 ach ie dealt. 2. hese 100
320, 328, 342, 384, 24.(4)=(6) es feOE es 99
445, 454, 455, 472, DOE otc AM Sei eae eA 100
583, 611, 639, 660, 661 DIG): PRA Aeoealt. Ree. oes 99
SEMPRE PI a,occiousiteliousneNeysdeusiseas scusyeSeneeetenat 309 28: (2) (4) a(S), eee eee tae 101
ih ae ee eC at 316 ND S23) oeae anonerotastans here ree eaten meth ete 99
LGN Sr ree NS eNO PONE oeOPO. Os SS 2 316 Maritime Conventions Act 1911
Law Reform (Husband and Wife) Act 1962 Gi fauc seede roetwas autfencmevn RRMA RPMS MONO 309
SL (C110) a eens neaetee erecoir erence 647, 648 Married Women’s Property Act 1882
(QD) hacia naece ane eee 648 SEL peesee. TaN )aU RS cao ste ue 648
Law Reform (Married Women and MedicinesvActaloGSive se. -aeeere
- ser 383
Tortfeasors) Act 1935 Mental Health Act 1983 ........ 42, 90, 96,
Sogo tkicd canta Une cane cee 647 173, 633
OR h iar ipkhoammtne cee eee 661 Mental Health (Patients in the Community)
GU) Raseeciimeeccuro ncntiuce sae 657 Act 995° t4,..nasoate ss .beataeeetiee 96
Law Reform (Miscellaneous Provisions) Act Merchant Shipping Act 1894 .......... 153
NSS AI pas oh seco lithe bymasacoenie eee 608, 609 Merchant Shipping Act 1995 .......... 610
Spl AP BocatociaiieGiscretoannontee mie: 628 Metropolitan Fire Brigade Act 1865
CIR aioe cain cee 480, 635 SID es et 2 ee ean ge ee 95
(CAN (GI), Bearman paren mene rrr te 609, 635 Minors: Contracts¥ActalOSiisecs. en. 6ar 649
(CO) Byteeter tickle sete 609 Misrepresentation Act 1967
(SB) AT Be Bets sc cc te a 609 Seu) eas eel ake ee 126, 318
2} (GS) Rae, seer cere ereion a bahar Sar Se 609 (2) AL... oa APRS. Ses cine A: 127
14 ()K(D) iG Bas 2 eis PAAR ks 629 National Parks and Access to the Countryside
(2) oes ech oe vhs Aa ele, Foot 628 Ct 49 We ccc enk eee ee eee 334
Law Reform (Personal Injuries) Act Occupiers’ Liability Act 1957 ..... NS, 272,
ICA e rears meneein iets 6.5 mh ied 267 SSbaS 32,8594,
SERA)! eels chaalaGinir cing piste emesis See, Oly 338, 340, 341, 349,
Libel Act 1843 “ds ROTO AS NAS GSO 353, 354, 641
SOLE Otte fit cian wena awiouncicats Sail Sl Rees dare bet ere eS 353
Pimitation Act 1980) crga 611, 625, 639 (UD peSenteructnctaeasioh eer 337, 344, 345
SSR eae ee ee SES es eG 625 (QD) etree eet eee ence 3325333.009 7
AR Hectic caveGloss oxkenws creartee 625 @G)) (a) cs eeidenteanwe ec wae 344
109(3)=@)Redachaccosedumetey ann 659 (OO) ai eeeee et eee 333, 345
10 2.5... enences earn cer rare ee et 625, 631 (ANE eo a area ec eee 334, 352
(ipa els heck GEER epdecnce. 611, 625 (Ditaek eo e CeEe 33556352
(Optex eae aarwanon: 608, 628, 635 De At RRO EER ee es foe 383
(CO) eiiag Aes a ete 608, 628 (UU) Weekeeeh earirentr ae reer en 346, 347
(DRE cee aoe on siendseatte ere aes 608 (2c reee anaeminence ree 338, 341
PAW osontrata tary eter atirars 2.4aa rake 611 (GQ) ircack aus tgrrem foberte poems 339, 342
(ON Beer ene eo Ae eee tein 613 (D) ghee en errno eee 340
LAA aor seh eR ee ene 625, 632 (Ae ennai iam ees 340, 341
(G)ACS)IRS ie... oh eee 632 (D) toate on cae 342, 343, 347
WAR reroceso eayac ue wate sieepones aieae 632, 633 (S) Pee Rann hae 341
28 (iis. ik. Seo 633, 634 (GO) see sel ee soak ea ee een 336, 338
(CAM Gi) aE, SPROEeE OLE 9o KEMPE 634 3)... RA dating & 333, 347, 348
Q8A. soackrestenyl | Rees |» ane 633 (LD) PRs Sle cevatourette on hexaeo. ae 347
SPA UD CA rome an rater tates. acts 634 (2) econ cttatencte misietys PS 347, 348
2), See RCMP EAE SES it ofa. 613, 635 (3) einai 4 SOA. Sa. Re ee 347
(Wt, Ah so 4. eeewd eth see 630 Bs aes aN E eect ate eer ee, 8 346
(@Q)G) een cee an setines eee 635 CU) heise ceria serach ONO Se BE 345, 346
38: (leit Sead tee ee 626 (2) 08 Pet te IE Jo wend Reet 346
Opconnknaeseawnas oer eee 638
Table of statutes xxxiii
PAGE PAGE
Occupiers’ Liability Act 1984 .... 331, 332, Public Health Acts 1848-1961 ......... 423
334, 336, 338, 340, Public Health Act 1936
354, 355, 358, 340 SHO Rete een ROR Re ea ee 443
SUS Gc (AD) Reais oo sscenanstyaescenn.
gus 2 eee 349 Registered Designs Act 1949 .......... 169
(ID) Bee eae ace aces ho UIE 350 SEZ Oct ete tres Arey ee ee 140
Bienen a ee ee eee» 350 Rehabilitation of Offenders Act 1974
(A) een eterna stepy thsoitevsaan S51 353 SEW (6) eet erinpe eer ryentree ee. S| 505
(Gi) tsb etna: ORO ROT een Be 351 Reserve and Auxiliary Forces (Protection of
(Ola seer teas AeA 335) Civil Interests) Act 1951
(GA) Es Sot Atay owes 353 SESh (2p dite ew cr Laas ee eee 582
(GC) he cee scet arora alneen Sos aoe 255) Road Traffic Act 1972
(OL) eM BOs encod ted RE: = 350 SHOWA) ee laa ene ee ee 254
(CS) arabes neers tego rien’ arnet ova ewes 550) 352 L483) kks Fa 325
TENG () AB) eeeieescrsc renee ee Bos RoadmiraihicrActnloOSS ae: sane eee 324
Dh, 5 Re ceSaas aha ea Ree ERT 349 Sal OF raed cata rnrcs 6 Seek, Saya B25
Occupiers’ Liability Act (Northern Ireland) (OA Meier ee A Acie wt Manin ae e 328
LOSilimarte eases cee costo andes troaarehyo acer 33 Sale and Supply of Goods Act 1994 ..... 368
Offences Against the Persons Act 1861 Sale ot Goods¥ActllS 93mm. ern ame 367, 368
SROM eGdet tenec ptohc stanvioe tes Sanat MRS. oe ke 8 Sale of Goods Act 1979 ........... 367, 368
ADS Fa a aire torn oolanew ga Nanas WAS 105 Sulli@) area. wartat fre evant a 57
Parliamentary Commissioner Act 1967 ZOA2OB® ceMed: ROMA ee A 60
S-LON(5) RE Ree Saree nara, Se 509 Slander of Women Act 1891 .......... 498
Parliamentary Papers Act 1840 Social Security (Recovery of Benefits) Act
See oy nigaee ns,5 Ie ERR RE aeRO ee 508 LOO de sens PPR ed RAS ue NeRete 617
Didean Bed a ee ee EF 519 UO Waccin RRS Repos MESLS A tac SS COME 617
Partnership Act 1890 t0F okie p oS SRRETS See 1G: eae oe ees een 603
Cra OE re as OR oe eae en ee 647 Sch |
RAtCntS ACH Siearenes
ens cece 169 PCS Te ae ape ovina oA s ahtey Rabe Recs Mle 603
Seiad ey onyA cyspen cient os. Se 140 SS CLD eats eee eons thyRede ee cng | tw 603
Police Act 1964 State Immunity Act 1978
SS En Blo eOre.e CCl Sa cee Acca Alone eee 637 Sills Aedaess Batetatrr aceasta sah Minas, Ann 639
Police and Criminal Evidence Act Seer PRR IEE ey RNR rtraeof en. Ae 640
MO SA eyo Wi are iientas. Not as 98, 100, 102 SE Tere eer esters. Baten eneatottc nok 640
Si lipeg tar Ae eet
a Aa 103 Statute of Frauds Amendment Act 1828
SS ce can ee 8 Se a ee ee ee 103 CHES. 3 a MRSC c CRO oe OA ET Ee 126
hiSek Week pace kB pete ee ayee 83, 103 Supply of Goods and Services Act
AY ones See: BSED BAe, 9.3 Oe Le, eee 99 1SpA Sie eee MenaAtetict) En ee aie 367, 368
((G)) ee MRE PAPA 5 ee eran ae 86 SS sn eS ee 19, 210, 264, 318, 368
DD OR AR he BOSE Boo petite Sens ests 99, 102 Supreme Court Act 1981
IRENE, cee RRR, TERN es Es RTE 101 SUSAN Rar aerate a Wirth: Meet oh aR N A 594, 609
ING Ss. oP eee, te 0 oso ee tA Ee eee 99 (NDNA) Peeoccaren Ren cease rete ences 607
POStAOMICERA CEO GINO eo. n.cr seth sateen: 506 BY UN ceceeMaren kl farefoPees0,ob, REAL NRS B Ce 607
Postal Services Act 2000 ESSA MEAs ocsyey oie cncyaenoen ths <r 614
S47 (1) Reyne ee A co hese 640 SO Ree es ore ee ars ae ree 421, 589
SOM yr tepees MEE cet opays at Ae een 640 COB Ws &.,cette Serer eine eee 488
DON(2) Ogee oe Sa: Soc tegen ees 640 Theatres Act 1968
Oa Oi) ase ee wert AR bk ee 640 es eeea He LOMaee cer een Aone Ooms 495
(QQ) yrs Meese ees ort hoe ta es 641 Torts (Interference with Goods) Act
QO Na et SOE oe Sepa eek ee oe 641 OR eTie Rl ogee ih,ee 47, 58, 70
Prevention of Terrorism (Temporary SEL ae ave oie haem teacaeoumanatc Ehe ce kate 48
Rrovisions) Act) L989) shane ictr: =f. 102 (Uo) Ah tmanecuetin Coe Se cen a.3 69
BrSOnpAcCupliOs 2 sae aa erin certo 42, 96, 460 DA US as eee ederenn fis cers On ee han 64
Private Security Industry Act 2001 (ONG Arete artes ae area 48, 55, 59
SONG) secrete om Oo oi ae OPO ent eS oO 67 SS Peed ALG eR oe CRORES Soke POOR NeS 64, 65
Protection from Eviction Act 1977 (GN eat mrerchcarcr a tetara Pecencem res Soore vege 66
SY beers ee ate areas wi hoy. Poms 74 (OAM CNS (crs moat vere Area ene 66
Protection from Harassment Act 1997 (G)s(@) AD) erent ocr echscnesciersiee 66
Shla(2) Pere tia ee Spats kee ee 39 CS) ates iheactr bss rarrsac esd en 66
Dee ate ee eA: og SPE ET cc pire 39 (Sai) U)5 @4Iobeeencas cements cera memeeres 63, 66
BR ete Was Picxoils ioiake Eveuas were ergs 459 (GC) Winey irstece centre cree tate cee averse 63
(2) Bigs ots tase She aR eee 162 I) CORN en crete penn Chae chy caer 61
Le eee A Re ae ARNE aS Ree CRN Ea 61
xxxiv Table of statutes
\ PAGE PAGE
Torts (Interference with Goods) Act 1977— Trade Union and Labour Relations
contd (Consolidation) Act 1992—contd
CH (Is eo 8 Sits RS SASS Berens a 4 3 53, 69 HOA Pe ck Oe A Seed - 644
NON): ccc. SO A ee ee 69 DI OVOP EE he ee so AN 644
(a) Sexe at re ob oo,cumon33% ¢60 Ao: et neers Ree ne RES © 3 ee ee 644
(Db) Re. See ie ase 61 Unfair Contracts Terms Act
Las eecrctcr oeue, oecoer ie Ae eee! |7, 9 Silv7, NOW Rete ot eeacer ad 236, 32958525 367
CL) tan8 hte ore eed 2 69, 90 Wel LER aaeten Merete mare men teeny ra Mes 329
(2): 2. SEPA CEA 61 (1) (Cee. Ae, CR oe 348
(Cres tna adage oe dois aae-t 59 (SD (Dek een eae incr eee 349
|
Aa Oo OA OI 3 Ares Bi cra ONRE 49 DL aA Ot ed Rt ERS CREME Cyn 3 OB 330
Schl: ia) cai bcs ee ee 49 (UU) RO) aaeetcitee hettexeeiors ee 329, 348
rade Disputes Act 1906) Yn -eee eee 167 (GS) at enercnre 329, 341, 348
iirade) Marks Act, 11994 ae Sansa 130 DY ee Ae ei Mero ES Heinen ete 4 yc 330
Sha DAIS tegen ee eile CROCE MORE CTTS 6.5.c 131 OR ee icice cr aoe 330, 368
DA Pet RRL tay Maral Ce Ce 140 WS GOEL IO RE: ees 330
SD61(2) Pt eso ae eet, Be 169 (19 RRRReG eae Rn AteMerieee -Seree rs SEROEAA 6 os « 329
Trade Union and Labour Relations Act 1974 Gl) ers eee See eee 348
SSE ss. nce le Caer oe 592 (Bi praca teapres: 330, 348
Trade Union and Labour Relations Sah) pee oa ct See eee 330
(Consolidation) Act 1992 As aA an i corres 2 SO 348
SLOP. ote ated SoA. BOR 484, 644 Vaccine Damage Payments Act 1979 ... 618
DA (12a Qa. eee: aeurcrad: t 484 War Damage Act 1965
PLDs 5 Se Aen OeEN ARTA AIMEE foo 6 osc 644 Si (Rar eaiees, Aarok om ator cee 105
Weights and Measures Act 1963
Table of cases
PAGE
A
LAV aS (AUCOMPaniy)s(2002,)S\ GAN ee tien ew ae Speer a Ake ee Cees t iy ae EEL bce srg Lal
Nev eB Ottri M2003) MRC ertin A fiat retscere kre ote Oe eh Re eee eee ES A I) 0 ee 582
A v National Blood Authority (2001) ............... 376, 379, 380, 381, 382, 384, 385, 602
A v United Kingdom (human rights: punishment of child) (1998), ECtHR ................. 97
AB v South West Water Services Ltd. See Gibbons v South West Water Services Ltd
AD ivabastinent Community NH Smlrust: (2002)\ CAN =... nme meena re reine ees 602
ANS (Gaikeohicall UREN CONG, INS OXN) sano aoseconesoradecnaeoucdedaccssueneosse 5)
AMF International Ltd v Magnet Bowling Ltd (1968) ................... 332, 342, 343, 345
ANS tGiv EG MiSoldersebtdli(l982)\mera wn ctose tnd. s cine a ets Se on en ee 59
Ao bassyevalmetropolitanseolicerComr(l990) e@Am a. eee eee ee ee 101
AbbotiwanetiserAssurance:Comstdy((l962) M@Ama ae yee ee i ee ee 544, 545
AbouzaideviMothercares (WK) htda(2000) s@Atr nit ilstd ate Lies ee oe eee ee 383
Abrath v North Eastern Rly Co (1883), CA; on appeal (1886), HL ..................... 544
ActowaCAutomation)ietdiy RexeChainbeltine (97) CA™ seanae faeces come oo eee te 165
Actone CorpnevaMorris (1953) sGAt eee te ee oe ee see nen eee VARS.
Adame va War du@loil7)) Sai meme ae, Meee ere swe ASHar US. lds Oreo aro Senor
Adamstvalcellya(ls24) es wiser s Aree heen ee ee ees oR a ntl AMES eo eRe 493
Adams vanhymneya Valley District’ Council (2O00)@A™ eo... eee ae ae een ee 25) 258
Gams Ansell (LOM) iw 0.8.rerior to ee alee. Re te rT SNORE cc ee ee eee nen Be 396
PNGASOUVAI ALVASMEL SQ)" sath ents ere otis. ele TARE te eC me ee ee 660
Addie (Robert) & Sons (Collieries) Ltd v Dumbreck (1929), HL ................... 333, 336
PNG CISHV# CLOCKEL CULO OW) CAwte ie enters tae east ee eco et a eee anes Sree tee Snes eee 511
Admiralty Compsiy SS sAmertka: (ROM) MET ees cette i etna: stair erie eee 2 oe 610
Admiraltya€ omts: vassn volute (Owners) (922) 9Eller reteset caretekseseste wets a ued etalon 310
AttutneNartoyevac larkex(l9 S4)teniiee a6 ec atee chee. oni rene eet oe a hale tin eal, Renee ee eos 86
Atta@anadavasectetary Otestarcntor rade (INO 2)1(1983)) Hl tne see ee eee eet 510
Airedale) National’ HealthtServicesirust v Blandi(1993), HI are. 2 nce. es et eee eae see 28
Pitkenwve Bedwell MC S27/)\ieaet. meen mete nee cesotemontecart ace nice cea scree ts haces meee atin 44
Aitken tye Gardiner-andawatson (1956) @tdtanninats Sobre eee eta eeeaens ae hee as 63
AvellomvaWiorsleya (i898) ier ween see oe tee ep ee ra cree Nae eosin tnts Seas tern octane 142
ISA Sante va Kcsw alta (2002))raks © CHIRG fer eset: ie tetstottatetetau steronfetestens ayerats crleeaea arcu ae eae e er tele 640
Al-Fagih v HH Saudi Research and Marketing (UK) Ltd (2002), CA ................ 520, 524
INES alng Oloersayere JEW UIORIS)) "arcoaeticko rine! Arius Sieh aire Oaudciea Ot ain oie,Ceol oidiéen 0)deohalguoks534
AlaKeandantivalRaBtOwn co GOUGH 9S8) CAT eee eae tetera srntoeie recta e tates meee ntrenc tem eRe nie a 238
AlENakibslnvestmentsa(jersey etd valonscrotti(1990) err ree tier ee test a. ie eee 235
AMiksaudimBanquesvaGlarkebixleya(ardtixim) (1990) vee. memes tenor ne btie mir eet 234, 237
AlbertavaleaviniG)9s2)™ CAcsattds (982) sae etn ese0e.r8. ett Retell eternate Arcee tee eto 91, 100
Alcoa Minerals of Jamaica Inc v Herbert Broderick (2000), PC ....................0005. 303
Alcock v Chief Constable of South Yorkshire Police (1992); on appeal (1992), CA;
Atidm(1O92) SEs meee. cater Fokid eee eh enn ceRee Ronit cobbion ZO 2205 2218222
xxxvi Table of cases
N PAGE
Algock ‘voWraith (1991) GA) A ets ce cs «hey SOR: See Serene 559, 560
Alcott v Millar’s Karri and Jarrah Forests Ltd (1904); CARere PN ALS MR A Ata tak, 142
AidhamivaWnitedsDamesisondon) ota (1L940) 5CAge reer eee etree iterate tte eyyea voce een 451
Aldrediv{Nacanco: (987) GA a idan aa cen Soe om = Or tise ee oii Rim aeren soy se eis Skee 567
Aldworthi veStewart: (1866) ig cyscncccs-sstetsegatene
er od sealotecues etsss eoeuen yeesessa ae rare aararoteIee 98
Alexander veArts Councilliof Wales (001), GA 2F Faeere eesrse eye steerer tote eet taoie harsy= 488
Alexanderivi Jenkins: (892); (CAy (iniccAccte tan ata 1 + ooo ohn oS = STG Re 482, 498
Alexanderay NorthiBastem Rly; Cog @lS Gs -ctarrsttens ceresercoteneiernrraimuayeahonsians
ante yeast eres 503
Alexandersv:Southey 1(W821) 5 eusheseressus enue ome ante aeie aeeae eset tee uses earns omen eetera Custeeseeme 59
Alford vaNationalé@oaluBoardi(l952) sls scarey -i- cis are icra error eae ere enesenee ea 472, 570
Alw(Sait)avaSydneysMitchellicaCoy(astirm) (1980) aetna eee ieee ree 547
Aliakmon, The. See Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd, The Aliakmon
Allasonsve@amip Bell! (1996) iss acy sistintetese pve eee sieSree Meola: «sane ato Rucutnaerattse-aietarm eoncote 142
Allbutt v General Council of Medical Education and Registration (1889), CA ............. 520
ANIC leva NeN sos ae (CAMMY (CA See cecuercoctensbodcannihenancdcan ontmec 287
AllenaveHioodl((iS98) 9HIS o.. stanpspgesy sno eee oer reriabe sais emer te 113, 114, 145, 151, 539
AllengvaGultiOiliRefinin ealetdu(.9 Sil) Sec ares ce ener rer aie ee tae eta orcetoe: 200, 417
Allentvaw right; (1839), 2.4) et etic et sie os senna we aoe dee were tin etme rates een merrera see 100
Alleni(Wi Hic Cow. BrownyWatson) (L965) iw sess cae eee weet ones eee earets rele 129
Alliance and Leicester Building Society v Edgestop Ltd (1994); affd on other grounds
(UDOSY SECA AE Rot tea iareecs wad cyan. gle cae ee ks Sar ks nae et nee Billy/
Allied Maples Group Ltd v Simmons and Simmons (a firm) (1995), CA ............. 283, 285
Ailsop.v, Allsop: (1860) o..c5.9s aroun accesncrtisns Beran ates eee at ene A eee ee. ee ae 499
Allsop v Church of England) Newspaper Ltdi(li972), CA\v a eke. re ees te 486, 487
Almeroth vaChivers GsSonsibidh@i948)s CA... eee ise Cece ae See 419
Amann vy Damm (1860) geiergs. Shyes3 Son aie fa seeeeetsoers seriaers acacia enaces > Seen 525
American’ CyanamidiCoyyEthiconpletdi(.917/5)) sia area te ca ne eee 161, 588
Anchor Brewhouse Developments Ltd.v Berkley House (Docklands Developments) Ltd
(OES)
500 eee en ae eee eee Ee er PMR. Co cin arLG ARE Re Se hy yom obi noo tie 76
Anderson’ va@ppenheimer (1i880)) CA. 7 Aas 3 Se eee ee ee es ere ra 444
/Naibrero ny Sabisalae Co(Ca ifirel (MOS, (CAN SooagesacodccuGnoouerboageacsbocooc 394, 407, 421
Andrewsav, Preeporough (967) SGA oc eee -nen ea ern ee ee ear ee eo eS 609
Andrewsi;v:Hopkinson (1957). cscs 5 sc. 2 ass aa eR ee a eer fea gS oneal Se ope 371
AndrewsivoMockfords (896) CA. 2.5 aecn cee sare 0s eRe aS ee SO cerry ee 122
Andrews v-Schooling: (1991), GA® . AGE es Aeccwcrntk spre, cu Oho oe Paco siae we es hoyeee spereyot se oe ee 357
Aneco Reinsurance Underwriting Ltd v Johnson & Higgins Ltd (2002), HL ............... 23)
Anglian Water Services Ltd v Crawshaw Robbins & Co Ltd (2002) ........ 231, 388, 410, 439
Anglo-Newfoundland Development Co Ltd v Pacific Steam Navigation Co (1924), HL ....254
Anglo-Scottish Beet Sugar Corpn Ltd v Spalding UD€ (1937), ...........s5¢ns5.48 sm. ce WS)
Anheuser-Busch Inc v Budejovicky Budvar Narodni Podnik, Budweiser Case (1984), CA .... 128
Annabeles (Berkeleya square) vi Schock: (1972s GAG stata ee ee 134
Anns v Merton London Borough Council (1978), HL .............. 180, 201, 203, 205, 229,
3515) 363, 2248625
Ansellive Thomas: (OTA) CA. acne crc.stesaeteueteysaceetie tie ore is custcielotk eit oA xe een ee oe 45
Antec International Ltd v South Western Chicks (Warren) Ltd (1998) .................. 130
Anthony. ve Haneéy= (1832) 5 si. ccte eves sexes ones5 a Ree ame aerate coe ee E Rae agecee are 110
Apley Estates Co Ltd vy, De Bernales (1946):attdi(194 7) GAGs rarer eerie aera 623
ApollinanisiCo Etdsy. Norrish (875) ire gee oe elas sae er ee eee aee eae oe oie 130
Appletonty ‘Garretts (1996) ). 5 us cc R eRe Stee beet ar eee ee saeco oer bh Pane ae e 88, 580
Arab Monetary Fund v Hashim (No 8) (1993); on appeal (1993), CA ................005 658
ArabiNews Network vA Khazeni(2002)s\ CAs tic oie eee yee ea ee ee eee 482
Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd (1998), CA ...................... 624
Archers Vs Browne (1985) ose so ceccuscaueye taledhiteen teedcis agerexdeat sikoi a a oe ON ar A ire 124
iArensonay Casson! Beckman RutleyacCoul9 77) ecm ee sere ates yee epee 103
Argy Trading Development Co Ltd v Lapid Developments Ltd (1977) .................. 2371
Arey lli(Duchess:ohiv Duke of Are yl (OG) cree: meee nee he eee ant ee eee 170
Armagas Ltd v Mundogas SA, The Ocean Frost (1986), CA; affd (1986), HL ... 125, 126, 557,
574, 575
Armory. Vv: Delamine’ (L721) 5 se susatecte sgcctes asenasee sos Se gee as ONE Neen Nii eat 53
Armstrong :y Strain (1952). CA pas ees | tate tee wit eon Meets yas cee ne, ne Se eS:
Are) v> Paterson) Gb93i1t); Se se ae. pe a pe Cee oe ee as eine) Saas 656
TENGAVECO} VRID AOULLCTH Gl
otede)) byesOF2 Une EC Ge OC me hie Marea IGRI OOO eG Gtes bbtincsoo so cs 123
Arpad: Thes (lo say, sCAy =,sc... coc, co gorhs | SRI RCI ee 58, 65
Table of cases xxxvii
PAGE
masenalWoothallGluiiplc. Reed (2001) \cnscesacen Sed fee a oe, Bee 133
ATHUREVEAN Ker G99): CANT OS so 14 chica. ade SL) Apert ty? JOO: edna: 86, 110
Ashivelutchinsoniéi@ on(Publishers) aetdi (1936)s @Ay 4.0.0.8). ee ee 585, 654
AS HAVE Ady ASHE (IGS6) parte 1. Ae xe ewee a de di ecorsesalecicasaMoslcooes tcacy os deters es AL 97, 650
ANShibyavieho thirst aCLO3SI7) 5CA sys cyedetaxenco: seyesucucsonta stedcncWansasos ecucioeos oe NOS RE ge a 55
AShbyavp Whites (7,08) sonrappealt (i704))ie sen 4am el) ene Oe Sent, Gant go 466, 469, 577
Ashcroft v Mersey Regional Health Authority (1985), CA ........... 0.000 cece eee ceee. 273)
ASidownivasamuclawilliamsrésons iLtdi(li957), CA: .... 1. Weeehes Ei ee 347, 348
PATSINCOMMEV AiUIT SteeLOSI Meyreesysrckeace-Ponssey neuimxlyoucrcucriacecacasocsoncncnssk
ek, Le. ene 108, 109, 180
Aspro Travel Ltd v Owners Abroad Group plc (1995), CA ............... 488, 490, 502, 522
Associated British Ports v Transport and General Workers’ Union (1989), CA;
iteNPRTAIN ONS SIBID. o ge aed hits CEA AAAS SAAR en ae 159, 160, 161, 163, 165, 166
Associated Newspapers Ltd v Dingle. See Dingle v Associated Newspapers Ltd
Associated Newspapers ple v Insert Media Ltd (1991), CA ..............00.0.0000- 1275132
ASStaT ORV Gannp lino (UO 65)) seCAw Patsy 0h loess Meh ec.nacgs cokcues- ices a ee 482
Aswan Engineering Establishment Co v Lupdine Ltd (Thurgar Bolle, third party) (1987),
CAN" Bop ites Maat EAC nA See ee ic Chee aN ee Raat ee 374, 375
Athletes Foot Marketing Associates Inc v Cobra Sports Ltd (1980) ..................... 133
PIKINSONV@hItZWialterg (LOS), CA epeerepent RN, ee eccrencle ee eee ee 505;, 532
Atkinson v Newcastle and Gateshead Waterworks Co (1877), CA .............. 457, 465, 467
PT CTSOUMVRSLEVENS CL OOS) Meas Meee ee ane ee Ee te Bs See eeresitee 4 68, 78
AHLARVaB LitishyGascplon(l938)i<C Ag eae ene ee nent. Melee tertei t keaed RR ee LSI Z S225
A=Giv; Blake Gonathan’ Cape! Ltd third party)"(2001)7 HL) sis. 3. 5 ee a 59092
AC Gave Copelandy (902) CANIN rE ee Rtas AE. ED Gee Se 5, SE, Se, Se 418
PAGING (GordCee(CSS) BAe Bass ite ee Oe bg Res AL tyRea TE ee a ot 434
A-G v Cory Bros and Co Ltd (1918); on appeal (1919), CA; revsd (1921), HL ............ 437
Ap GaVEDOuctityE (i/52.) hve teat ate ter MA ren ee ATE Lee ene ae Aen ee, Se 395
ae Gav, Gastoniax© oache silk td (UO Ti/imeencycesacec tefencucteed ween c¥-aracheacwolcass orcnsuite trac eens vere 426
Ae GuvaGuardiansNewspapers etd. (L987) GEIL) gices-0ra-yeyaueecroreeeauhscenseecee cee cotter oie,ae 2:
AC Geviblastings),Conpnt G95Oy CAG gencwane mewswaycbse weseia careronsone coeeBonewennecwcnsvoi tet MORN RAE re me 404
AC GiveNewsiGroupyNewspaperspetdi(l986) SCAM as we.eiecweecctraecres sscities cape me ae Be 534
AE GRVAINIS Sain’ (119/70) Sed edie. vob Seep ens aceee RISER ete rate A EwSttTA A. Metre ees, 105
A-G (on the relation of Glamorgan County Council and Pontardawe RDC) v PYA Quarries Ltd
(LO STA) SATIS SRE A, Ee AGS: ose Mt ichs coated SAMRAT UAE eee 424, 427
Ae GEeveabomalines GSS. 0) EGA YGkeysgececeswenate tsetkoesvowcbive eeu Reyovercweyerene Qovehe piste eto mona t tt teen 81
A-G and General Council of Medical Education of United Kingdom Registration v Barrett
Proprietaries: EtdiG1932) aan Gee ear eek. Eva I ME, (SENOS RAN a Be 136
A-=G for New South Wales v Perpetual Trustees Co (1952), HC of A .............5.......5. 161
Ae Gusuneterences(INO 10 fall983) (L984) ACA genenenancte tots voloynr tao ee na ome rae pareret ere 92, 93
yNTiararal ay (iejorinere (CUNY ooo ka oe an Rn een Tihs AO Re, So ee, Be Sion Aigo out
VEO OEY EEIKGS Cu(1UIS'SS))y wctcnsecrsscachovstovskcecre beactoxce detest chara teeth eaee eMac ct MSPs Dole rE 60
AUStinEVeDOW linea (US 70). seater ee eres sites: See heen oh,Se aAnt, MERE amen ree 45
Atvavenavionalk Coal Boardu( L985) CAs gy crocssspsecael spsnsisyobs alorersss)cnaysuokonereneeshenercle
ene eke 594, 597
B (a minor) (wardship: medical treatment), Re (1981), CA ..................55.....0.05. 89

B (a minor) (wardship» sterilisation), Re (1987); HL 2.0... 2 ieee. eee ee es tee 89
B (adult: refusal of medical treatment), Re (2002) .......................00555250... 90, 95
B (a child) v Camden London Borough Council (2001) .............-. 2.2.2 esses eee eee, 363
BivaMe DonaldistRestaurants tay (2002) synercnecee coe tecarcteronetoanara mere Mra sya cealetere PNET ene oie one oR 382
BBMB Finance (Hong Kong) Ltd v Eda Holdings Ltd (1991), BOA re et ee 62
Bacardi-Martini Beverages Ltd v Thomas Hardy Packaging Ltd (2002); affd sub nom (2002),
CA ae ie ee a Sian i AE IE ERE casera hot en eee eT 230Nesio
Badd keine ViB Ow ell (176) asus ce-ch poxcrae devssutae torodoesceedevaseta tere etersMetewatain TeUNVet REE statinooNsn o4e 68
Bagot v Stevens, Scanlan & Co Ltd (1966) ....-..-.- 0. eee eee ence eee eee eee ANI
Jekvival ay \Walibenmevorn (GIB) 6 pngooubnrSEseaoese Osu seo
uo coods cousooadason BaE:435
BakeravaBarclays as anke Ltd (L955). sc:cce-cssererarer- tataterccnese)ve tetelaayratPv adobs atone = = vatebalctcoerel 60, 61
ibelicre yy Texolkworat (HOS) aueacac oacabug
cos se Miutbomo Gado o 610
dogue
oode nooo desc UL ecGodbur
Baker ACA rricklAES 9A CAL cccstentlnccco’ hes ML DL, RAINE, NUE OL 518, 525
Baker v E Longhurst & Sons Ltd (1933), CA ect eee eee 262
1. eee .-.-.
....-+
Bakeravadamesibtosth:SOnsalstda Gl O21) ie nie nee ete t-sys oy ttle sneer eeehener ehetere ell te 268
Baker v Market Harborough Industrial Co-operative Society Ltd (1953), CA ............. 278
xxxviii Table of cases
‘ PAGE
Bakery iE Hopkins: & Sonvltdi(l959)5 CAC erica ee ere DNSI2 9593225 S25 3932/1,
Baker v Willoughby (1970), CA; revsd (1970), HL ............. eck CEE srl, oe 299
Baldengv Shorter (1933) seta ie ee eee eer ee ook eee 139, 141
Baldwin va@oles(704) Xk. Ai. snore cgaceo cuir eh aererenpe ep aceee Seo pile ems 58
BaldwintvRusbridger (200Lyigi sls. <i-scneueve cusscdeasnctacnonsisnenelour eusatuousqets Much ee ee eee ee ee 526
Balfour v Barty-King (Hyder & Sons (Builders) Ltd, third parties) (1956); affd (1957),
CA Bic esse tare dese oiseucce Ae ts AD EE BS Soe ees: 434, 441, 449, 560
Balfronatrustees: Ltdivi Retersont@001))\.... thcy.ds teeta toda eter. et ee tees aide oho 573
BallivaConsolidatediRutiler(o ody cove vis eases ouevsbeaetcouneete Sincere ie rae See ie 425
Ball vaRayo(t8 73) mecr eaxcets letdetee Aue et tate Oe ee Seas... Soe 4. BS eee 405
BallardsvsNortheBritishoRilys€ 071923) eee erties teehee teehee 26827 pel78502 79
Ballettiy; Mingays(943): CAR. ence Be tee tee hk ec ee een ee 650
Balme: v: Hutton:('833) SExu@hw, =. hae eo aie ae. eed a. See Cee 69
Balmer vHayes (1950): 22. acesda cee ae ae ee See er 466
Bamford veTurnleys(US62) Exe Chee oiteset ose oie cutee wisieuie coat Sera: 388, 403
Banbury av BankgofiMontrealu(19i8) Hil east een ce 2 eee See ae 126
Bankcofiscotland vy FullemPeisen(2002) 0 eee cereeaceeecreeererrcree reece eRe 329
Bank View Mills Ltd v Nelson Corpn (1942);
revsd) (1943). 1CAne s.r AEE eho eee ies Sed See LO ne 656
Bank voor Handel en Scheepvaart NV v Slatford (1953), CA; revsd sub nom Bank voor Handel
en Scheepvaart NV v Administrator of Hungarian Property (1954), HL ........ 55351637,
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd (1997), HL ........ 124, 253, 299
Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd (1990); revsd (1990), CA;
affd sub nom Banque Financiére de la Cité SA (formerly Banque Keyser Ullmann SA) v
Westgate Insurance Co Ltd (formerly Hodge General and Mercantile Co Ltd) (1991),
UL bates LARP BEG Ls pope 5 0 AORN Bory epee ters Nk eg ee 120, 237, 300
Barclays Bank ple v Fairclough Building Ltd (1995), CA ....................-. 318, 660, 661
BarfootiveReynoldss@l734) wats. cates Sek ele ee tae ee aka eee Sree. Shee 92
Barkeriv Braham and Norwood)(1773))..:. -istincciien eek ae ae ee ee eee ree 558
Barkeriv Furlong (ls oi) 0 ee ae Sake veccseueucusuexesetoye aero veers eucatnr gsGea Ee ee ee 69
Barker:v; Herberta(lOUl) SCAN ne ae eacs nnn ns DGS ROR n Ook ee Ss ee 426
Barkway visouthyWales: Gransport Coultd! (i950) A gee ectayeeeie iened-eh 275, 278
Barnes (antinfant) iv) Hampshire: County Council) (1969), HL eee ee cee ace ieee 180
Barmessva Inwellpvatleyawater, Board) (1939) CAG ke aoe eine eee eee a71
Barnesiv: NayereQhOS6) MGA tip ccutaceuats cusceve.ayeatearhcweeoceunarsocnteat
ceeosssevest eg ereh ae eae een ee eee 87
Barnes waWwartd:(1850) mysentiectded tae Sa eee oe? Sos be 426
Barnett v Chelsea and Kensington Hospital Management Committee (1969) ........ 283, 561
Bamettiv Cohen (1921). es CA Se erie Ser et eee ee ee 612
Bamettiv Earl lofiGuildfordiGlsss)iy 2 seer cess oe Ane eeo aed e 79
Batnett vaL and! J) Racker & Corl td (940) ei sere see eevee eee ae Sy2
Barrett.y Associated’ Newspapers td (1907) NCA oye ee omnis ici etd ee: eee 143
Barrettiv Enfield London Borough Council)\(2001)) AL .-222-.-....ee
ee oe 201, 206, 210,
459, 639
BarretievaMinistrysotebDetence: (1995) 5CAus aemacienyceyrierae eine aetna ene 191, 308
Barrettesvebranks) CompressedsrileiColofiCanadavictdiG@l955) ima meee ieee eee 448
Barretts & Baird (Wholesale) Ltd v Institution of Professional Civil Servants (1987) ...... 163
Barrowey ‘Arnaud! (1846) ExcChics, 5. k. 23 SOEs ee: Sener cis Aah ah ce) A paige 65
Barrow v Bankside Members Agency Ltd and Bankside Underwriting Management Ltd (1995);
affd sub nom Barrow v Bankside Agency Ltd (1995), CA ......0..555.00..5.2.205: 584
Barrow v.Consignia plc (2003)MCAs 2.0 5091 eae. ees. ater eh eee aey Peat aid eee 630
Bastlettey, “Tottenham hCl932) pak pi hece, tec scke sysgeteweses ssa Ore to eS Ee: ne 435
BartonshilliCoalCoww,zMcGuire1(i858) Py eration seat et eine etnies) oie et ae 55
Barwickayv EnglishointsS tock Banki(1867) tia. asst eee eo ep eiaee cere 571
Baseben, Matthews (867) Reisen atest be oe mec trots Gales basen etaceucvucrsunmn tay puck ace 542
Basely svi Clarkson) (G81): (20. 2G Bh ere ete cree eat ete ange See Ae PAL ee aT,
Batchellerv, Tunbridgeywells Gas;€o1(1901)) 2a aie el eee eer ee ae 434
Batessv Parkers (1953) 4CAG Cue. See ee ieee eis ici Pious outed ie en ea 340
Batesav Stone. Parish: Council (1954), (CAC oi. occeieuexsiove so voc eee ene eae yore eed eee 336
BattsiCombe'@Quarry, Ltdiy Bord (1943)5 CAV aa aeeic ser ciueiceri Cee eee ee 157
Batty v Metropolitan Property Realisations Ltd (1978), CA ............. 21 22953572
Baume &iCoilitdiv2AcdH) Moore, Ltdi(1'958); (CAS nea tee et ere ee eerie ie 136
Bavins Jnr and Sims v London and South Western Bank Ltd (1900), CA
Baxall Securities Ltd v Sheard Walshaw Partnership (a firm) (2000); revsd sub nom Baxall
Securities Ltd v Sheard Walshaw Partnership (2002), CA ..................... 360, 362
Table of cases xxxix
PAGE
Banter Cel aylor (1892) vsiccrandimndea-eociach ROLE MLL Rete? Sakae tee oe.looney)
Baxter sWoolcomberss 14d (1963) oeCA crass geseceshs inaaveenarses arate heeeie en A HES, 313
Bayley v Manchester, Sheffield and Lincolnshire RiyiGorGis73) Ex Chieeess teen eae 24, 566
Beyoumin TrotinnServices* Ltd (C1996) 5CAN sisasscceseesroors-te toncovtironny Mee, SER 357
Bazelys vy Currys (1999) Nat eee) Bona HOO L) aa rethal) tn woe cubl w ctype lpe 574
Beachivalireesonn (1972) ee ae tice Ee ihe rent tae. meta tr be bas Oh eel) ys 3)744
Beamaneve ARGS tdi 949) CA sesscce scrapie acorn Ge SE RAL Se ee 634, 635
Beardiy iLondontGenerali@mmnibus;Goi( 1900) a@Alss ere eee es 567
BeatsonevaS Ken em(lS 60) Wmeeea tava. geneva cecviciesn versnetwarsfeecasicraorooaiencern-acesyst
a I: 510
BeaudesertasiiresCouncilevasmitha(lO66) si Cro h Aus 104 ene) eee ee Sek 411
Beaumontsvaliumberts (1990) RCA tes. . See i Mets ele. Txlipeaets sinnye osoes 236
Beckhamipvabraket (i849) iaen eeoccccsntteh alee Ct Se eo. Bes vie 652
Beckwithives hordiken (ly.67) arco ctcas ets Ae 1 MR, ARR weeny dine 25h Boeabel 74
Behrenseva Bertram Mill sa@incussutdi(kO5i7)) aeercss een. Rene ee ane ee 314, 451, 612
Bellkvas.ccretarysotstatestoraDefence.(1986)5 ©ANs An. ek ae eee ee ee ee 639
Believes tone (7.98) Sas ante eee a0. OT Rey es Ae Na a oe eae pe 482
Bellefield Computer Services Ltd v E Turner & Sons Ltd (2000), CA ................-... 360
Bellefield Computer Services Ltd v E Turner & Sons Ltd (2002), CA ........... 231, 264, 362
Belmont Finance Corpn Ltd v Williams Furniture Ltd (1979), CA ..................0... 146
BelsizesMotoriSupplyi@ omva oxy (1914) eres eesss. ok: fect re ar S16
Benparinievas tori (S74) Renee ctr ts weed ae pokercaepelct bolovencoelaveneker teetiers 424, 425, 428, 458, 468
BenmaxeveAustin Motor: Cometdt (955) sElaaseay ee. eee eee A ed nee ee 293
Bennetinvs ChemicalyConstructiony(GB)aetdi(1 971). 1CAM +154 eee eee ae 274
Bennetts valvMictropolitans Policex Compr (i995): Aarne ee Som talk eo eee oes SH:
Bennettivanug well (lO Tilt) Pies. te,scteertee-cckct ttre verceeeciice tinscect ana te EIR We AEE 326
Benningsvawongs lOO) s tA W vere eo oe antenatal , 438, 444
BensoneveBiggsawialliQxComletdi@l9 82) Meatem nants cette aartertar reer tie ek kes. ae ne 613
Bentsesrewenyac oletdhvaltogann(l 945) ae taser eaevee 2, ats eis ere ene net. 154, 158
BerkottavaBurchills 996) 5GACH M nar Aa eo ctr Bedok ere dy ee ee Oy ee. 481
Bermmmshameves her Bross 0) maces were ters eecrst ax. versace le asosespausrars ceeberete het eee eevee Restate 340
Bernina, The. See Mills v Armstrong, The Bernina
Bernstein of Leigh (Baron) v Skyviews and General Ltd (1978) ....................45. ROT.
perilliveRoadiitaulase.Bxecutiven(952)) ia acdarn eo +e. eet eee tieraaen cote ann eer 3/5
BeIVavebpritisnuransport Comnmussionn (i962) CAw rrr rencferssciseensteranssycnsicesy eaetenner oe 541
Derryaveldumim. SACO (LOUD \eRee See aie. cee staat snaeretorel a eet Re eS aE eee 612
Best eS amuc lub oxese @Oulstdl (L952;) MMe my pee ctee herescestercnai dA ienere ere cone Rete enh See ena Pecan 499
BestavawcllcomesFoundationslstd: (1994) orth. Seewie re badaearr a aaieas ain Ae nn Agee nee BIT
Bhoomidasive Lortsotesingapore wAuthority(197S8)y BG evcyscrasercr erstvcdaysnsvctet setela siete rena tena So)3)
BibaxGroupshidivsBibasBoutiqter(19S0) ee. ceBite. teraz hess tera aeabole ah eee aA Oe, SMe rweuoer 129
BibbyevaChietiC onstablesofvEssex.(2000) 3CA wera cncresseertrciertsecrcecte cate een es ae eo 100
Bidwellty; Barant’(1O56)0, Sa eeey ene hoe cb Sak A Seta Aline SERRE RE RE ey 304
Billingsi(A@)rsSons Ltd vi Ridenk (1958) Ly sce cna te wie ae eee te ne a Shien, SP)
ESLe tevam VALSU MUS G5) idhapawoveketsesrctcwe seorety adem neraitesusns oreo eozec dad bieVainbeaisaead Aednabstat gtae tee eanallchot dae 451
Bin Ggva LO lOTOOKR CL SD Si)iexetectewcxcva yenorcvaneweccnanoy orctemanitendvanceonatensnsdedsnehs
selva adaRte 28 MO Stews ae 38, 93
Bird avall OTe SH(LSASi) tetas oes esas anetseencrarevetanheccatevendeevaneh otaqare) Sentero alaleed ohne mA TEE Coron Se Sees 41
BirdiviOANeal (1960) SPC metas. Be A ER). Soe EPI eee EA PR I oe 149
Bird v Pearce (Somerset County Council third party) (1979), CA .................. 232, 642
leyraal we Ieerare kN UICPA = oo 6 ons Aman aces erin Ne APO nao Oia cee cine a.cly ices a aio 160
Birdsvatioweriamiets: London. Borough Councils (1969) Rs eesti tere ses mired oy conetetetelre etre 641
Birkettaveblayest O82) CAP A aan Ar teterots ior -tettenetats, otaletees Nicos, <hetavatotars javetcuclenemelen: eters hy. erat 606
BGKCEteVU AELLe SACO1I977:8)) SAE Loe eneveeaysesecwnrsncronenerneneratever
c\ovareitetcvonalsdalate atetercae teeencceuareeresta tn neageeees630
BirserConstructionsletdiva blarstey etd 996) 5GAG cecsenayanenacay neyswonsiesd neuen ta lee mreteesteetetenawe:
cheerate 656
Bishop v Consolidated London Properties Ltd (1933) ......-....-.... sees ee eee ee eens 2a)
Bishop v Cunard White Star Co Ltd, The Queen Mary (1950) ............-...2.....005. 614
IByeraveny Ai Swen cio) Ni(II (ON Se aeons eae ood odo dro CoG de co uun ben be Cclen OOaG 80
BlackavaG@hristchurch binance: Co) Wtdil( 894), RO wiim cre 446,
samt eter arrears entation 560
Blackharav ee Ue nM(USAG)m meses tole ces cert clr caret Netra degra tev: daascesterayey natanouscereesbavansyat=0 3 S20
ive kelnanwy 7 Irn ((IORYIN GIN, amoumuiomcsc
ccugcucnccesuguccouuucocduddMcdouGGo S21, 524
Bladestv stil ceSu(LSO5) werent at renee tokshows a eearateettewst a shavereenea = 2)tetak avert acta. MANE ceRCTy=)snctehe 110
Blaketva arn ard’ (S40) teaeetentsrstesonsreye-© sven: c.actcnoned-nenenvyns Sutin kere ata erie mete eben snieetau abba 37
Blake vali amy.ori (i795) tapmeteroncrerey Tesexes sxenepst-ystveresatens raystavawayaear cows ein tetare aetna ee erase [Sy
Blamires\ v’ Waneashire and. Yorkshire Rly-Co (1873) ic srr costs se ee wets 254
Blankley avi Godley (952) mversssrenctertrtanen cypress a ehonett) he enerevelcesetatsns ceeapaatenenonens omsere vere 77
Blenheim Borough and Wairau River Board v British Pavements (Canterbury) Ltd (1940) ... 63
xl Table of cases
\ PAGE
Blennerhasset.vaNovelty sales Senvices, Ltd i(1933)ioy5 seek neni) ede ener ote 481
Blissav Tall(USS.8)h.2 ie spasc eucteceten tees ace eloya odosororn oreo hee oR ee eee tee ae 419
Bloodworthiv.Gray (1844). a8. 459-23. a eh eb Se i Se. eee ee 497
Bloxambive Sanders: (S25). csescversussssaheuenscsysued wansnspsosys.aietteud keane oar ealchorea eevee Ie Spear 52
Blue Circle Industries plc v,Ministry of Defence (1996); varied (1998), CA ............... 468
Blundy, Clark & Co Ltd v London and North Eastern Rly Co (1931), CA ................ 425
Blythavabirmingham, Waterworks. Co, (1'856))geysccysici cen ecerer tea rere tee teeeee 254
Boaler-w Holderi(i88:7) yin ee osu cee ho a ae ee). Sei $42
BodleysvaReynoldsn( 184G)io8 raeiecucusyensnexcneneseanouchoseyorertneqans
degeyskoraceercce: AAS Danie ae enone 64
Bognor Resis UDE.y, Campion) (1972)) 24.15. seen foe Ae ee eee See eee 484
Bolam v Friern Hospital Management Committee (1957) .................. 90; 257, 258; 265
Boldacksv; East. Lindsey, District (Council (1998); (CAG fers cei cracesici fe 363
Bolitho v City and Hackney Health Authority (1998), HL .................... 265, 266, 294
Bollinger vaCostal Brava) Wines Co ltdi( 960) sass custn tet htekeoe coerce cn ne ee ee ened 135:
Bollingeriv,CostayBravai Wine Cosltd (No 2)) (1961) pees eer oe ee seer 1335 185
Bolton v Stone. See Stone v Bolton
Bone: viSeale (1975)5 GCAn.. He Seer rs 8.2a58. omen. ed eee ee oes 398
Bonnard) vaPerryman} (1:89) KEATS he eet ch nee aes Sea ee ee ee ete ete 534
Bonnington! Castings [itd v, Wardlawi@956) 8 sence eee eee ee 286, 287, 292, 470
Bookbindertvatebbity 989) MGAR ae ei. See Dek SR ee ee ee 485, 503
BoothtveArmolde@ls95) RCA SL scene A oe Re eck eS re 497
Booth & Co (International) Ltd v National Enterprise Board (1978) .................... 466
BoothmantveBritishsNorthrop (972) 5CAR epee see ae eae re ere 319
Boswell-Wilkie Circus (Pty) Ltd v Brian Boswell Circus (Pty) Ltd (1985); affd (1986) ..... 129)
Botterilpyewhytehead= (1879). AA ee a ee ee ee ee eee 514
Bottomley iv EW) Woolworth. & Co Ltdi(11932)) CAW aa ace eer aes 506
Bourgoin SA v Ministry of Agriculture, Fisheries and Food (1986), CA ................... al
Bourhill v Young. See Hay (or Bourhill) v Young
Bowater veRowley iRegis Corpm (i944) 5CA. ons sicyectcot cxctisucqetss-tcoss suetatetates deen done eet S23sgO od.
Bowensy Andersani(iS
94 yy a.egs.n-onyasevensevsnsi2vcusueiou
weyeeseyayaieenecucy SAO EO ae eee 416
Bowen: va Halles Sen CA oa «cic eoss aval hyescensstas Re ee ore OR Peary Lo Sve ey Sak
Bowers Reates(SiiG)icz.. . Ses cote some Se eee cote. Seer tht ie eee ae 415, 559
Bowmakersulidivs BametyInstruments! td (1945) SAGs a a... eee.
eee Gee eee 106
Boxivelubbi(li879) ae SA ee eee aA Abr CRORE aeeeremenys taamanernt: Bee ae et446
Boxesslid ya British pWatenways board (197i) CAs arian rien aed eee hta eee 436
Boxsiusv: Goblet Preresi(i894) [CA a iss ee eee ieee 493, 517
Boy Andrew (Owners) v St Rognvald (Owners) (1948), HL .................... SOs Se e312
Boycerv, Douglas: (L807 )b aeisiccicusioes coseecusrs oR ne ORIEN Oe SSIS Aer re aes 654
Boydéy Great NorthemprRdya Co(l895)) a9 ieee eee eee eet ee ee 425
Boyles Kodakstdh (969) sly fa syysnctovate oi cyricacy-a deat terete) cere ee Reece eee 473
Bracebridsesbnoincerins ietdiveDarbya (990) ATE Coe rere ecient Oye
Bradburm vy Great Westen Riv Coil S74). cinaecs-aeiet- deka) eed ots ena ese eae 603
Bradburn vy Eimdsayy (983) 5 rcs eruc cusseneyeuens fareroveue.sseveucusieventhe cecereatiesusueegsi ica ee ee ee 355
Braddock yeBevins (1943) NGA Pree er rire arraucreewsucnsy-nesndusneuscgs ee eee eee 483, 523
Bradford vaRobinsonyRentalseitdidloo7)) eee nase iatete icicles asicie ol ae eae 301
Bradford and Bingley Building Society v Seddon (Hancock) (t/a Hancocks (a firm), third
Parties) xGl999) BCA. ao.aceth okra at eh aes ciiseceo hs weet Oar? eer 584
BradfordkCorpiaverickless(1895) se ene ee a eee eee 4, 399, 403, 539
Bradford-Smartv West Sussex County Council! (2002) "@ Aww yom. ganemn) t2cran ek ae doe 224
Bradford Third Equitable Benefit Building Society v Borders (1941), HL ............ OsmM2
Bradlauoh veGossetty(L 884) GD Gin ss cayccscsosesnscteaucosvsesica
neyseus bendos Oe ee 104
Bradleyiv? Copley. (1845) rn a1 fas aaepevs Se ee Ee ee hd ere Sil
Bradleyavawinenut Balmisglotan(993)) cep a9 3 aside, canner geet evens ote: Pr ese ee eae i
Bradshaw, viWaterlow:d2Sons td! (1915) 5)CARN. aenut nts cial et eee Sei aero oe 544
Braham Ww Oilyons.Sy Corl td (962). CA. ae ccaseeeciseecc
cee he, Pee 465
Braithwaite vy southeDurhamusteel'Co Ltd (1958) is saree
eee aera 334
Brand v Hammersmith and City Rly Co (1867), Ex Ch; revsd sub nom Hammersmith and
City, Rly; Cora Brandu@lsOs) ey fee ncysici hoe see eel see REE 104, 391
Brandeis Goldschmidt & Co Ltd v Western Transport Ltd (1981), CA ................. 62, 65
Brandon viOsbormeiGarretic i Cojy(l924) mee wee Aneta ese reacieieie Ae oe ee eee 314
Bransonc Bower, (No*2) 2001) T Ae ee ieee ckeice eee eee 529, 530
Branson! v' Bower, (2001) :CAw.aeisn reo I es eee Bs, wairiscte Poe ae 527
BrasserieidusPecheur SAG vaGermany 1C-46/931(11996) iE © 4 cee eee 12, 471
Table of cases xii
Bray v Palmer (1953), CA

Brenkes, ltdivxCattell (1972) tern. wo 0th, 5 SONNE aa eerve thy seongenrs 3)books Wy eth Bat oe 154
Brent WalkersGroupipiew lime Out-Litd (1991) =CAN ne cs, ieee seb). ene Ss 52;
Bre werossutdavesnaxa (Rass) Ietd\ (197.0) MC AU ee
nt ee e
ee ee ee ee 416
Brewery Dews(S43)) gee Seek Sty eA Ae EM Petitin 8 I) Pie Seca Sus ys A ernie eee 66, 652
BrewemandiGrez onvaves parcow (S27) mete meecea sisi ee 624
Bricekve brown (O84) pepe rns 1 i 225, 301, 304
Brdgesw awkesworthi(l8oil) jeri, 4 eet ene cD eri hoe EA 2% Seely ams 1p eee 53
Brdomangva stockdales@lO5o) iyparr rk. G trv wages ccna ssccura CRP ® eee oe eae S25
BrdsmontiygAssociatediNewspapers tdi (951) © Agee saat eee eee es ee 490
Bridlington Relay Ltd v Yorkshire Electricity Board (1965) ............-.00 eee ceeeeee 395
Brierivava kendall ((iS52)e aeferent istered SicMetis codevacccsnin Telus eect baaacraei , Be et eI 70
Briessava Woolleyz@1954) Hie AAt. & Aeirne At Pee AS ARS fae Bn 120, 565
Brimelows va@assoni (924) ane et vrs Gehl 8 oe ek pein byye Be SG 158
BrnsmeadsvaHatnisong(8$72) MExaCh) Me urac:.9ae neers Ate oe bee oe. 657
Brinsmead (John) & Sons Ltd v Brinsmead and Waddington & Sons Ltd (1913); on appeal
(HE) CUE os cae Bak pean Ee Cnty ee ee RE hee ee eee 129
Bristol and West of England Bank v Midland Rly Co (1891), CA 000s 59
...............22000
Bristol Conservatories Ltd v Conservatories Custom Built Ltd (1989), CA .......... 135, 138
BBC. nalksportzletdt (2001) eva. ascert foe ae ain ad. ce 138
BBC Worldwide Ltd v Pally Screen Printing Ltd (1998) ................-0-0besseuncnse. 3}8)
British Cast Plate Manufacturers (Governor & Co) v Meredith (1792) .................... 96
British Celanese Ltd v AH Hunt (Capacitors) Ltd (1969) ...242, 400, 410, 428, 438, 441, 450
BritishiColumbia Electric Rly Co Lid vy Voachi(1916), PG 52...-. 6 aed eee 309
British Data Management plc v Boxer Commercial Removals plc (1996), CA ............ 535
BritisheEconomicali vamp: €o) Lidv Empire; Mile End: Lidi(1913), .2.1... ees. aes ee 60
British Gas plc v Stockport Metropolitan Borough Council (2001), CA ............. 441, 448
BritishindustialePlastics Lidiv, Ferguson'(1940)) AL iii. a. vss kas eee LS3seni5 6
BritishtMotorsliradesAssociationay: Grays (W951) yma. sean. rvaeiensyarn eee teens ee erent ae 151
British Motor Trade Association v Salvadori (1949) .................0.-0000: 1565 1o7e0160
British Railway Traffic and Electric Co Ltd v CRC Co Ltd and LCC (1922) ............... 141
Britishikallwaysuboardavarenrins toni(O72), eyecaeryvay-y-vereneucvnrssees ee eee vees 349, 350
British Road Services Ltd v Arthur V Crutchley & Co Ltd (Factory Guards Ltd, third parties)
(19637) doncappeall. (L968) RCA Birt Aec ker eens a earnee. SeetS Pere eet. oetee S72
British Russian Gazette and Trade Outlook Ltd v Associated Newspapers Ltd (1933), CA ...624
British homson-Houston: Co) lid vy; Pry.ce:s, Stores: (1933) anna ns oe ee ee ee 132
Britishalransport Commissionty Gourleyi@l956): set) ter eters toototusc alee We este 579, 597
British Vacuum Cleaner Co Ltd v New Vacuum Cleaner Co Ltd (1907) ................... 130
British Waterways Board v Severn Trent Water Ltd (2002), CA .................. 73, 74, 83
Broadley-v, GuysClapham &iCo, (1994) CAL cas: susysnrisus stsne, tia ade Se eel mene eee Segara 628
Broadway Approvals Lidivi@dhams: Presse tdi(1965) iC Ars o.oo 8,) state temioletstets tee seater S29
Brockava Ra charasrG lo silt) ACG © CW RAMA Me
Penn kd coch oteccheiean icyousysxsyoyaiie inneiove,sencwoueloneuetenciseeRan e 451
BroderavaSarllard: Cl87.G) Mere ete eck eects cre i dereccrnarocyaracore oP SNe aye eee 397, 435
KOMI VEVa VIEnCET I(UO22)) RC AY Teg retty t= turts eusccveiel welsiesat rcv aero rey lem eeae eet et 364, 426
IBTOOKE) Va OO W192 8) Cao be aseayecs, caus socuraye eaeee chest 9 tu toulevaycron elatedovel ost Tus Avecae rereuan stneyo 654
BLOOKS Vv Mecca ba Oates: (WI) mbtae (L984) areca clam ct cerneyetevaces acer andreyetaranientee ssa etre 628, 629
Brawls w Leite (ISA Oleh og Me str ae argh ee Dn Doe me ote Oe oe Ou coe uch ot orcs cc re 483
Brooksiy: London and (North) Western Rly (Co! (1884), DE [ies ose. Seen oo eek olan 256
Broomev Morgan (1953) CAs axes eaten wedcnckatete ol actenaeScvet dotetevanetererel espRopstsrmofo -a-nsfetnaa 565
Browhiv, Brashand Ambrose (1948) Agere © aeperaca oe otels ucvelatesstoknitnttya aesect settled snoketeen = 78
Browrigva Chapmiann (I848)igese. oath et vce eye ca- emiclo Neeley cuecheslcachsiebe Neh te centers 45
Browoavaliaw kes: (USO) satidy dis Oli) CA © tetera a tiene tteoe eat yey ene eka ton 544, 545
Brownby Raphael (958) GAs. Soe ieee cst cclieee, oleiesacekekels Balfersthassel = Pee encwe-teee 123)
[Syiumanl 7 Suctldn (INS) gs sete eee elas hess ss hhbsb abnor ctg odah ool Oe Gu Ht bc Aegd S33
Brownkva thompson (U968) CAN 25 spec yersicuencronerexss- -aeete 660
ts votehctotenerens.
Aa er nce ttu-¥-yaut-V -P
Brown, Jenkinson & Co Ltd v Percy Dalton (London) Ltd (1957), CA ..........--+..--. 22,
Brower» Gelinomsoriyoce Gon (OID) ieierrrctyalarey-s ceereneeet herktm
eyeetench eieot 490
cePearne eo. oir,
atte ere tents =her
Brownebvabawsonl (1840)! praereyietee oelobe 5. suteterciatate icyareuctetetayesv-Vetaney-no «ett V2
lnn
1ekonmits vy Divers (JIG385)), Isls Gus gy aehanobs soon pou oUedseeeeeous boon oak o apo Sah ons ull
Biguaimgiy, WarsOuticed( 1963) ACAT lihvesses orccocneyov, Dia hehe Ree AE Be ENS netaies 603
Brownlielvs Campbell (1880) sEUe Ssmerras sruvette brett tated eteteieketeteNetet-ves -peents) Ss-PAPEPS Oee i. <1 noe 120
BrucesviOdhamsreressuctd (i936) OAL saat ceseberend. otek teietel oberthele tedemate thostekektrolisusp uetette erence seals 490
Brunneravawalliamisa (97/5) sD Caeiee canes seer areerer eer TA NING Sebel etre rite cerereledeae sitet 75
xlii Table of cases
N PAGE
BrunsdenvvaltumphreyeCls84) VC Amen catek Aveta tedsayernere tomacseoene roteeetohon Ae oiemieten taro eMC Ey. 584
Brunswick (Duke) and Luneberg v Harmer (1849) ...........0.0 0. cece cece
eee eee 626
Bryansvi Maloneyu(l995)NHC OfA. oct OSS AS RSS OA OR ee Se ee ee 360
Bryanston himanceltdivede: Vries: (97S) CAs a eeen alee totes eee Lee etoe Neen e re SUTb, SPA (0)7/
Bryanston! LeasingseLtd! vy Rrincipality: Finance Ltd'(1977) twas 2) tasers acee 60, 65
Bryantsve Wardell (S48) c.ctasyrcets Rae seo de hc renee PIC, Op Se 50
Bry.conveRusden (lS 86): trae A Wie vst tiv ee MR scesotc bocna reascso wecaicnailoaim see ta 582
Bucklandiv; GuildfordiGas Light andiCoke Co (1949), see eee tee oreeee cette rare 180
Buckland: vaJohnsons(1 854) rares cw sxesnesacce meester sswoneiaien gence werenarene 0 Rare aeRO orc See 623
Buckley and Toronto Transportation Commission v Smith Transport Ltd (1946) ......... 649
Budden BP: Oilebtd7 (1980): sCAN A erate eine eau tice TE art aes Be ae Re 250, 254
BullevaB ulli(L9SS) 5CAC La eeserasts artes ereetoera Meare doarede temmedSeat sgn anclMASeeeS ee a ee 78
Bulliv; DevontArea HealthtAuthonitys (1993) SiCAr eer vacer aes-9512 vous suet ogarteen ht ones 5525561
Bulmer (H P) Ltd and Showerings Ltd v J Bollinger SA and Champagne Lanson Pére et Fils
(ETS) FICAL Bae ha Dace Seen ie dra eden heres, ID PE Aa Ph eee 136
BunkeriiC@harles: Brandt ccuS onvlstdt@i969) Maas . elec, heere ene Se eee 342, 344
Burcervablay Cocks@2Z 002) CAC gegyence caevector ne rons ceceeeNnem remcn eo EeeRCNA eee eee 133; 1S4 0188
Burgess v Florence Nightingale Hospital For Gentlewomen (1955) ................. 612, 613
Burmah ‘Oil ‘Co (Burma! Trading) "Ltd'v Lord Advocate((1965)meaG.. J. ns nee aeenaas 96, 105
Burmah Trading Corpn v Mirza Mahomed Allay Sherazee and Burmah Co Ltd (1878) ...... 63
Burmeve Morrisn( S34) io 2. aeeses-danewencyseewcrayc hate eee eee hee ee Meee ay Ne 622
Burnard.v; Hageisi(l863) ..0-2 50) 9 SA, ee ee SP 650
Burmettav, British Ww aterwayseBoardi(1973)s'CA Ws Sais 2) pea cies ice: eras ene eet Fees 328
Burnett vaGeorge;@1993) NCA Sy.see eos AO aa elovo ean Mth Aeetrenahelewenetees, a)eae ENE Eo ws 589
Burnie: PortyAuthorityey, Generaliones: Ptyatdn(994) me eees eae eee are tee 446
Burnskv2E dian! (1970) eee FAA AH aie HRs Th nd hd NR 108, 612
Burnside va EmersontGloos) 3.CALI aes Ase ae ee tear ee a eee 641, 642
Buronsve Denman: (1848) sac seer A dace tes AE PS 5S OSA A Salih, SRR. SE ee 105
Burrisiv-Azadant (1995) CA We sei ctinclomsvaconsiags & Aan Sahat eave: sents RE SR Bs eee 39
BurroughestvsBayne (1860). 25s. crescvors ansvarevceebete enateDae er, BARTON a, ODE ac MON ree 67
Burstem valimessNewspaperssLida(200) SCAN eee. e seek cee eta ae eee eee 479, 532
Burtomty Daviess (1953)) iceccsicad tersecoenensicenctronencirensiee Gicaheyre alte Paeiee See ORS lcdee en 41
BurtontveHughes: (1824) i. fee ed, ek Sd. 2 A De Cee 56
Burton) velsiinstony Health Authority (1993) CAs wa eyieicnen eerie iene er nemo ene eee 216
Bush'vs Smithy (1953) RCA siya eee ace Dot. Sas ORNS RR ARNT Ree: 73, 652
BushelivaMiallens( 7S) ih cegca rayeetccate xnctteoles ost Mote meta: e,Snes ty Ae lee A 48, 56
Butleri(cnBlack)iva bite CoaliCowtdi(9l2) Se eee creer ae aera eee 269, 460
Butler vastandard Mmelephonestand i@ablestietdi(1940) iter = cma ee ere ieee eee eae ee 412
Butterfieldsv* Forrester. 809)w <a wes eee Se in Ss AE, SO Ye 307
Bux viSloughiMetalsvitdi(1974) siCA x. xsicotencceotey shivthone Rone wae easel Aue: Bie eee, Aen 254
Bybrook Barn Garden Centre Ltd v Kent County Council (2001), CA ................... 415
BymerveBoadlex( 863) ie: sashed ner ttete hecscncne ddseascoeseshen onesetrawen nets eR AA en ta 25
By mers Deanes Mos7) RGA. ssconatetonenssys tancaaves owencesvostere achmenoreron eeeclerceayacen ae ee eee 482, 493
Byronk (cord) evaFohns tong (LS) jesx-tsreveseverest eyonevevederarepevare essanerahes repo erate oem ne Mem 129, 134
Cc
Ct(adult-srefusalzormedicaletreatment)) Ret (994) im aay tc meeen ceeeeerere erratic entree cnet re ee pee 95
€ (a minor) v Hackney London Borough Council (1996), CA ............0..00. 623
CivaMirron| GroupiNewspapersi (1996) SCA -revsd (1997) PEI aeerevree eoeneasreie.cchanens
neratetace ee ee 634
CBS Songs Ltd v Amstrad Consumer Electronics plc (1988), HL ...........20.50.... 9.05 160
CHC SoftwareiCare Lidiv. Hopkins, & Wood) (1993) crice cote nctak eta chee eee en 138
Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1981), PC .................. 132, 136
@akebreadiv Hopping Brosa(Whetstone) sitdi(l947) CAN 2 csccsmyereeuyenenere ere sneer eee 472
CaldwellivaMiaguirerandikitzgeral di(2002) ew ewyer eens ee enero ne ae eae 258
Caledonian Riyi@orv, Walkermirusteest(1882) sible eres tee etter ieneteerey ave eae nen 425
Callis..v. Gunni(L 9GA) DGe Sy Pe ate $ seepterceete crease cate ee eo ee aaee OO 335)
Caltex Oil (Australia) Pty Ltd v Dredge Willemstad (1976), HC of A .................... 238
GCalvetaw DomiksestGl963)5- CAR 5, De RAEs. See Moree reek ctv A. Ae ITEC 143
CambridgesNutrition EidivaBBGs(1990) SiGAs yivcnspcpersnveteerue cotsMeeee oot Pere<a veeaaNeree e ees 172
Cambridge University Press) v University, Dutorialeressi(1923)) eance ean eee nee 138
Cambridge Water Co Ltd v Eastern Counties Leather plc (1994), CA; revsd (1994),
HEAg- eres 388, 389, 390, 391, 402, 403, 406, 432, 433, 434, 440, 442, 443, 446, 449
Table of cases xiii
PAGE
Camden Nominees Ltd v Forcey (or Slack) (1940) ............:-cccccecucueueeces LS Sieulis9
Camdex International Ltd v Bank of Zambia (1998), CA ..... 00.00 ccc ceccccccecceceee. 652
Camellia Tanker Ltd SA v International Transport Workers’ Federation (1976); affd (1976),
CAO eset iratecles Be crien.2.. cisBae ORs tytn O.ce ketden al Y Bgen asta epee 154
Caminer v Northern and London Investment Trust Ltd (1951), HL ................ 256, 262
Campbell v Frisbee (2002); on appeal (2002), CA ............0ccececccdeccecuecseuees 170
Campbell v Mirror Group Newspapers Ltd (2003), CA ...........-.0-e0eeeeee eee 8, 172, 479
Campbell v Northern Ireland Housing Executive (1996) ............0...-0-00 0000. 334, 338
Campbellavabaddingtong@orpny (19) I) pee cee oc eee ee eee 579, 643
Campbellivg Spottiswoodeu (863) Basta c5ech eee cise oitao anycicscucce eeu 529
Camporese svahattone (LOSS) ie tay BRE ies ckcorsage ceseaneee uau es TD CE ee 524
CanadianpRacitic Ry, Cosvaleockhart;(1942) PC 22 15.5.6) ee ot oe 569
Canadian Shredded Wheat Co Ltd v Kellogg Co of Canada Ltd (1938), PC ............... 130
Candler Crane;€ haistmasrccoy of(il'95i1:) WG Acer 2 ae Ao re, ee IE Wye
Candlewood Navigation Corpn Ltd v Mitsui OSK Lines Ltd, The Mineral Transporter, The
[barakwiMarun(l986) BC esar -gipsycyceon cee oA ee ate hr ee oe 185, 228, 231
@anterburvavespences(2500) G....cxneioe tee bee te PP Aes Se ER EN, See ome apiece ye, Wat he: 249
Canterbury City Council v Howletts & Port Lympne Estates Ltd (1997) ................. 454
Caparo Industries plc v Dickman (1989), CA; on appeal (1990), HL ...... 117, 182, 184, 233,
234, 264, 425
Capital and Counties Bank Ltd v George Henty & Sons (1882), HL ................ 481, 485
Capital and Counties ple v Hampshire County Council (1997), CA ........ 186, 190, 191, 459
CapnsaveMullens(U989) .CAMs oe reas cps paiiuela A CO ee: Sa ails IIS)
Carl sartheihes (1927) s CAs Bhs oe ae ae io See ees bs has 338
@armarthenshire (County Council vyLewis (1955) HL aes: 2 sets fu df.ene 180, 193, 253
Canmenitv; FoxekulmyCorpny (1923) ee las acnsancice sc isivackeauancemaaelition
cient ee 160
Carmichael v National Power plc (1998), CA; revsd (1999), HL ..................00005. 555
Canr-Giynngvelrearsons, (afin) (O98) CAG io mya vacietcacie chic eee ee Oe i a 240
@arrollavakearon, Benteand, Dunlop) Ltdi(1998) SCA. fa craanimccis shatter eee oer rae 376
Carslogie Steamship Co Ltd v Royal Norwegian Government (1952), HL ........... 294, 296
(Carstairsv.ve Mavloreg (TS HM) sissy: pera ebocensceye t Siheo eacoeus Avacedes¥gs Soe RAO Oe 444, 446
Cartledgemv,E Jopling S&3Sons tdi (1963) 5I oe eects -waepieisue iescseeve oss eee 624, 627, 628, 631
CasselltdkaCovlttdey Broome) (1972) AM oe ace peceseres teak Bataed- Peale 16, 505, 533, 578, 581
Cassidyiv) Daily, Mirror, Newspapersi-tdi(L929)..CA © cehicinee addeciecenectn eae 486, 488, 489
Cassidy v Ministry of Health (1951), CA ............ 276.9277, 35435525 555315617 56458565
Castlesv St Aucustine;sylinks Ltd) (1922), Jee WEP eee cee hscy ite) | ey). oe PIE aes ee 425
Caswell v Powell Duffryn Associated Collieries Ltd (1940), HL .................... 309, 472
Gatnich Components Lidgvy, Hille SaSmith: id (G83); Beers. cae eek eee) eee 170, 582
Cattlesv2Stocktony Waterworks) Co(lS75)) fever tees a-ha. eee 157, 242, 437, 439
@avalierevePopetGl906) MLE as sie ae ne ehh eee Ges ak ee, 2 Pee ht AOE 2 era 364
CavanachiwalondoniransponyExecutives (O56) eke siny-s-l-ated satan ets syeeneeete Rctolel ns660
@avanachavaWilsterawieaving Corl tds(960) Se avmianidkocen
sce gedete deetek rea 254
Cayesakobinsonwarvis and sRolfi(a:firm)) (2003) HIE westerns ebaeiete cal eieieh Gietetevtns tous ote635
Cavendish, The. See Oceangas (Gibraltar) Ltd v Port of London Authority, The Cavendish
Caw dor (ord) ivel ewis, (835i as mucky sis sensi chine bte Sete teen eo dete teen repeats 81
Caxton Publishing Co Ltd v Sutherland Publishing Co (1939), HL ............. 554162) 633.622
@ayzeralrvineséc Cogvs Carron Co, (SSA) EI po, raxtagsyaysu eyccdeveveny scanned eek Sener atten 254
Cellactite and British Uralite Ltd v HH Robertson Co Inc (1957), CA ................... 141
Cellular, Clothing Co v Maxton and Murray (1899), HL... 22. ce ie Melee deel es 130
Century Insurance Co Ltd v Northern Ireland Road Tranport Board (1942), HL .......... 566
Chadwick v British Transport Commission (1967) .......- 2.2.20 0c5 5 decent eee ee ae 218
@hakravartiivAdvertiserssNewspapers) Ltd) ((1998)) cee ctare arte a hee vety rete eet 485
CHAN AT IRGI((ICEOD) conoocccsgssJ0 sand a onnaes oebepo obo Coe bo ds GaGa i Sbuih 0 Ope DE 585
C@hapmannvalonig (1963), (CA very state veers 2 etek met tietestssca retale eeepiaie atetaeleretetelat hick 165
Chapman v Lord’ Ellesmere (1932), CA . 2.08.5... 21s ete eee ee SOM moOZONIS23
Ghapmangv Pickenspill (762) eee e ts epee crease ot seer ser) ietense) fanien tthe Pereee541
Charing Cross Electricity Supply Co v Hydraulic Power Co (1914), CA .........-..-.---- 442
eee eee eee eee ee 485
Charleston v News Group Newspapers Ltd (1995), HL ............-
Charlton v. Forrest Printing Ink Co, Ltd. (1980), CA... ae. eee te See. he PETE
Chartnigion’ v.Simons &Co Ltd, (1971) cc eeeeee ek dt cn. 22 Se Le 588
Chase v Newsgroup Newspapers Ltd (2002), CA .......---. sees eee eee eect eee eee eee 502
@hattertom va Gersonelo Sill) meesestats evaporates Ge srat se eracie seise teiohee ae oer eteletetaan este 88
Chatterton v Secretary of State for India in Council (1895), CA ..............---220555- 509
xliv Table of cases
‘ PAGE
Chaudhry, v. Prabhakar, C989 ACA® ceccrcesuvoys Sts ok cee tee Pon eee es stent etter ene 2330250
CheatenveCaten (1918). CAtineuntiesats2
RRL) ates. 39 ARE wht.) lenepeervindaah 355
@hemeskeyaveArmadalesbublishers) L-tdi(977D) eae n -wtietn re ttatet. Pat eyoretyh Rete Arey are 530
CheticampsbisheriessCo-operative: Ltdivy (Canada (1995) ig esse et ett eee eatee 162
Chettlesv; Dentona(1 95). Gas Oe fee aS. es, SIE SR I Py 3153
Chineryav Viale (S60) Berscc creetorevorecsceteevexepre: ea ta te RS ae ee ee 52
ChinneveOMOrrisn(US2O) icvephecsscsers vices eirdesad nce Pee ee Oh Ae POT es eS Re Nate 42
Chocosuisse Union des Fabricants Suisses de Chocolat v Cadbury Ltd (1998); on appeal
(D9) SAGA corer areweareraneakansacnicrayevereuaxcteneuswe negetehens venetiancae 35)
Chomileycve Watson (UDOT) weveeyes eee hey Nc er eerie sc REREAD a co 490
@hristie: va Daviey (USOSine vccwsteeencreneees excvius rceenuarreven son eeStore enna Recomendar 403, 448
Chiristicsvaleachinskys C947) 5HIG. jaca. soretercnsdcnctu ct ks eres ae eee a, ae ees 101, 102
Christmas v General Cleaning Contractors Ltd and Caledonian Club Trust Ltd (1952),
CA; affd sub nom General Cleaning Contractors Ltd v Christmas (1953),
ELLE ee Aes. RS Sr dsp ETA, ed eee, nik, ee 269, 272, 327, 340
Chubb! CasheEtdiw. Johny Cnilley, & Soni(983) CA. yepererencsar-ns
teh ae =el 55, 62
Church of Scientology of California v Johnson-Smith (1972) ...............-....-.0005- 509
@hurchyof Scientology, of California vaMiulleri(i9Si7) CAs: serena te eens a2 s e 72
Gitizens*ifexAssurance: ConveBrown (1904) GP Cian eter eee aeeentsetcha . c aete) fee nena 518
City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961), HC of A...... 49
City offiincoln: The i(1889); CA. trae ty. See. ex, Lier reais Ne,Manor creer eh oer fo Pee ea 295
Clarkia Molynetxet(isi7), CA Pek A. ROA.) 1AWere. Mme ae See etch eameneh Ean nate Ree 514
Clark v Oxfordshire Health Authority (1998), CA. atta shenae honda renspibl ete)AOE ee S55)
ClarkeveArmy vandsNavy-Co-operative Society (1903) ICA orn eat titel 370
Clarke we Bricesance' sc. Coi(anhirm) i(L988) Aw yeyercy: eencteey ance -heenetenaneh ye eter oes etae 239, 265
Clarke wi Crews (UG9IDVR CA jorneasveredtereinstarancteritedeannardv
snanatendhentsehorsters:§ Wee et aR Mette Me cn Ne ee 41
Glarkexyi Dicksonw(l8 58) ye Atte cee oe teeters clove cee oe tele eR EE A We Lae 621
Clarke: va Dickson: (1859) sccearscrstensnetapBeotcbsorayensrd
ravesayeke cHoty RRO eae AR a aie ee ae 621
@larketv Holmes (S62) 5Exe Chilp.y-yey-nrorvcs-nen- Neeser een Ree tte ae Ree ee 256
ClarkeivaTaylory (1836) —Se ohn 8 EC RCNA, OREN, Ser rae Reve SEE eT ee 503
@larketand. WiilcsvaBriin sa(947) ie Pa cte cer Mvoncnawersreicvel stancnaweuoweielevenetawe AAO EA See enas,ee 466
Clarksont-v Lawson (83.0). <rvcresveieiveranencias exsecteiceneukeratt ane Gh leech Aone Pane Sa acs Sates 504
ClayaveAs Ji€rumprcéSons Ltd. (964) CA. po. srac ee teensscrraeeeh aaah aleka ener ee ieee ee 362, 373
Clay veRooler (1 982)tia.d eee Si oe A Se ROLINS 597, 602, 613
@layards\vabethicksandsDavis (US48) me overran eed Set es Se ano a 314, 328
ClaytoniwvaWoodmanidé, Son (Builders) iLtdii(l961))s GAS Sines ereas settee ener ees eae 232
Clef Aquitaine SARL v Laporte Materials (Barrow) Ltd (2001), CA ..................... 124
Cle gerv\Deardeny(1 848) ipedietsneicsis Seas Becteaete ta00 shar neem ere, SA MBit TONES eae eteRe tS 75
Cleghorn VeOldhamn (927) So sonsitssisusncnavevetarreveraneieayoranare demote) Moe MMM aenee ete. Mee Rete oe 327
Clenshawavahanners (2002) SC Awe grater. cexcsersrcdereacceversis nase icsfencasieic dt SIERO eRe ee ena ate 597
@lissoldiviGratchley: @1910) sCAM settee hee ee eR LE LIER, SR 546
GlosesviStecliGorofsWalés tdi (1962); A 4..,cchels aes Sk eee a ae ee 468
Clunis v Camden and Islington Health Authority (1998), CA .................. 107, 226, 602
ClutterbuckavAChabiersy@UsiliG) ie. sei pet RE fH aah eee March te Meer eos, Re ree 493
@lydesdalesBanksitdiveRatony (1896) syHI ryewyey erences reer Renee eee eee 126
Cobbett VaGreys (1849) ics aie ce PPG ete Sataed PRO Le SERIE ears ee SI oe 41
Cockero fits Smrrthe U7.OS) iescenescsevesscsnsns sesso cavewste ccvaravcieee cee Ray tee ae meet eee, ae ee on
Coco weANiClarks(Engineers) sbtdi GlOG9)\es werner one A ene ete ee 170
CoddiyiCabe,G876)5DC Aas Beinn Ae: Dn, SEE de ee on
Cohen) ve Dailyatelesraphaitdi(l9o6s8) CAE nia. eee ern ee caerchot koe eet ene eee S27
CohenkvaMorgan (G1S25))ik.c peek: asa Seg a Ree et. PIRES 5 es 540
Cole-vaDesTrafiordi(No-2)i(1918) 2CAV ved. ee. Be eee A ee 278
ColeaveTuirne|rn G74) RG seek ea EAL ak ens Soe ie eteteslahocrcyrons eres eM ee eee 55
ColfariveCogginsrandi Guifhiths! (iverpool) htd (1945) EI eer) eer ener rene ee 270
Colledge: v, Bassi Mitchellsi&, Butlers Utd (U988) CAS pected cree eee eee erent ea 604
Colleyivnllart) (US9O)) esis PRS re pte cestoeredaac da nh ee 140
Collingwood v Home and Colonial Stores Ltd (1936), CA ................
000 ceeu 437, 441
Collins *v Hertfordshire: County: Council) (1947) eter perenne
aes fea ene 354, 555, 561
Collins vRenison, (754): 2 torevancico-secescane-stasonsok
ehok ON ARS Aen BE Lee Ae 93
CollinswWaWilcocks(lOSA) im seen Actes eR oct neracepeecait orcas, Metseeee ee OD ee 1a 28)
CollswaHome*tand! @olonialiStores Bids (1904) Soa eee at neers eae eee 394
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Assurance Co of Australia
Ltd (LOB): sos Pec a he RARE MASSE Re eR SA, NT oe eae SIS)9/
Table of cases x\v
PAGE
Columbia Picture Industries Inc v Robinson (1987) ..........0.0c0ccccececcccucuceveee 587
Colvilles iadivaievane. CIGD)? nebo. d dase bed. chia. nthe ne bs babes es Ife)
a lretI BAGO vee Ne MW yea tka,eoeseeX ian 5 NekocalecarsuoriavecahdynlvAc AUIS, neawal
ode 68
Compania Colombiana de Seguros v Pacific Steam Navigation Co (1965) ................ 653
ComptonavaM(cG] tires CUGTS igi 2h. boyy sys dex cena reshousecscusveevek x sciatic evn ee ee oe 567
Condongy Basil (L985) CACORE 605 5 se.5ectaeisesvrxnncran vn AR eee ees 86, 258
ComnivsDavid Spencer iktd (1930) ssw OOM 2 whales B.-A Ok lee dee eed dk ott 42
Consejo Regulador de las Denominaciones Jerez-Xere-Sherry y Manzanilla de Sanlucar de
BarramedakvaMatthewa@larked#S ons: (1992) iy tae ake eeSk ee 35
ConsolidatediConvaC urtis.dz,Son) (892) py sents asacca ce ee ne eee ee 515)
Constantinegvalmperiall Hotel smltdy(1944))y 74.412 ee oe eee eee ee 578
ControlsRisksiitd vy New, English Library (11989), CA J .....dssk acne
528 eee a. ee:
ConwayavaG corceawimpeyn ca. @ oMletdy (1954) 5.
CAG re eee A) Seer
354 ene ees
ConwayavdRimmer (C968) SEG 2 ede ct 1S iat 8 oe See RO, eee 510
CookgveAtlexandert QlOA) CAG oy acces cowSekoushctbncnexceavexerscaveestwite
en Be ON Pevntv Oe pil9
CookavsBealk (G97 essa. 1 h8eh 7] ee en ee Mg ee NS eR EET Get Do epeech 91
CookgveBroderiph (968); Fiery oo ce. tasers ED Al eel 4 ree ee 268, 343
COOKtvECOXe (LSIA) payee Sistas Ag ee othoe ies hee IT. a oe oe 494
Cooktveylskien dk (Con tde( 197.0) GA io onnchticncace ce Lee
ee ery bee 605
GCooksve Lewish(lo 52s, See eee wed emppeee 8 Bois. Pepe ese S 5 Tire i end 28 Bia een 278, 656
CookavaS quaresDal-tdi(lO SD) @Awey 9 ei es Was spss tooy o oars chek a cacehleseres IBS, PE, NOP?
(COOKBVE WATCH CLSS0) dower rete a © ye weenie Popan1 eenseancantsehen marae aban Sra orabiaen 501
GZookeaval OrbesyGl8 Gi) ere me eet ee Ne aoe LA eee nln ele ee er ee 422
Cookeiv; Midland’Great Western! Rly of Ireland((1909) MIL 23.5. 2002.205......006. 336, 339
CooksonevpHarewood!,(1932). (CA: WIAs. ts See es es Pees 501
Cooksonkvye Kknowlesi (1979): sHISS A o-enn oo ere eee eee 597, 598, 614
CoonevavsEdeveatne( L897) ACA: (ye aes BA. loiter tas Pals. A. Serer 526
C@oopenviCraptree: (S82) MCAT yt eeCee e. A Ce Pe eS 78
Coopetavaltawsonudls38)) ernest. ede one whem ct ees Sane. oe ah ee, Pe 5035 927
Cooperv.Railwaysexecutive (SoutherntRegion) (11953) aes fel. cee a ee sees eenis oe 473
Cooperavaw illomatt ((L845) Next eee eeSra hts sees ols SUR Sak See 50
Coote¢vestonerGo7i) GAY SoA AsS skeetne bats NS LAE ee ee ee ee 466
@opesvesharper (NOW) GUOT2) CA ein cencechen Bin take OR A othe retch. amd nk ane) See 94, 96
Corbett v Barking, Havering and Brentwood Health Authority (1991), CA .......... 614, 615
Corbetaabursemwiaren andpRidgievptdi(l932) ian ee vacraa sack creer- oot een eens ee ear a 546
CormwalliGardens Bteavidiv, RO! Garrard éCoilid (200i) RC A> ey. hans tate ise te ete 166
Gormpyelll-vaMyskow. (1987) \CAL).200 5 + 2 erent, Tach. eat dude Here Sea nie <A 482, 526, 529, 534
Corporacion Nacional del Cobre de Chile v Sogemin Metals Ltd (1997) .................. Buy
Costello v Chief Constable of Derbyshire Constabulary (2001), CA ................... 54, 68
Costello v Chief Constable of Northumbria Police (1999), CA ..............00. 000 -ee ees 210
Cotton. DerbyshiresDales; Districts Councili(l994), CALs reyes -veveveuene Pao tet teete eh ceetielicns: oe.ets 341
WoucheveS teeli(USSA)) Ry osoars. AA Re AN ds BEM eecae Sedans cto AeA eee saree 457
Countryside Residential (North Thames) Ltd v Tugwell (2000), CA .................0005. 82
County Hotel and Wine Co Ltd v London and North Western Rly Co (1918); on appeal
(GNI) AGUN: A eaten Acc oathn Rae Octo Coe eee re ice h trae coer es a 589
(Caprnyeyy y lalla (Ri: cose hesucnes eueeeen snopedecda ocean CUNO BRE O MG miscad GEy con 92
Conplandsyebagle Bros sltdi(l969)ierecs aise eaasttese lebie iseriets nie aie tetitt ete ree 342
Wovellieve Eamiine GUS 08 merepaitee sscrete lec ete. epstonatay skeaysuarteter oussttneatneteteter We rera eee ent eae otereners Bis, oH
CowardaveBaddeleys(l S59) Mra. eerie ee he tone: Mieco) taut tetetetalovetotan oltre etseamevahtee teeReetear 32
(Crorienl 7 WWI OM(IEBOY seccececcouberoresnuont so oce coe esmocm cur saad 10 oO. 498
(Cane Ww (Gihis (IRIN AA ee oe Ob on Gmc ete Ge neers cee ae Pi octane ie ch oh pole oo te 76
GoxheadivaRichardsaclS46) ieveaccme a cvva ces serclea evel etuelsueleredtetsce ci Renecoere acter rena ae 52/5
Coxwold, The. See Yorkshire Dale Steamship Co Ltd v Minister of War Transport, The
Coxwold
Crédit Lyonnais Bank Nederland NV (now known as Generale Bank Nederland NV) v Export
Credits Guarantee Department (1998), CA; affd (2000), HL .................. 148, 575
GreedavelohnuMicGeoch! &iSons Ltdi@l95s em. det rte ese oeetaite tll eieiertshel-cm aleve etoyes 426
Creel wy lene. (ISO) seccevuouUD on adit as sumo gun Oe 616
Ceenccqaceuaperevceusauocus
GresthtoniesabtdaveNscott (O80) MCA varry-c.te acttenere a)one esters Pietattier a)fedsdePecatet wetted. te el 534
Crofter Hand Woven Harris Tweed Co Ltd v Veitch (1942), HL ...... 145, 147, 148, 149, 150
roke (a minor)i vWiseman (1981); CA. 15. Aiba ee sa |e eer elfen. ee 599, 600
Cropper v Chief Constable of the South Yorkshire Police (1990), CA .........-...-.+5-5 539
(Orcas, WW ita doy (OA), (OV Seo ee abe odor codosococo deo ano odds eto Vuomr oe obs 91, 108
xlvi Table of cases
\ PAGE
Crowhurst.v7-Amersham’ BurialyBoard! (11878) Ay acns-scieeta scien ee et ence eens 434, 435
Crown River Cruises Ltd v Kimbolton Fireworks Ltd and London Fire and Civil Defence
/NUUINGY
AUNgalGEE) ere, cote olcae DRO ee One DOR On EO eee 399, 400, 432, 437, 442
@ruisesvi Express Newspapersiplc (O99) © Averee ere teres a0 een ine eh eeaen a etee eee 504
Cruise w TerrellGl922)" CAL kas ns ea ANeeh so eA SI NANSS SSS MAAS ES SSD END Ode ce 78
Crumprv,-Lambert- (1867) zeatid (LSO2). ccccrs cence come av ocasevenseanory aaravavers Memes cee tae eae) Reem 394
Cullin’ vy Condon Firevand Civil Defence Authority (1999), (CA: (o5e 52 ee aoe sees ore 225
Cummings veGranger!(19 77) RGAwas Wee. eee ones Hal oe i eo. aon ee 452, 453, 454
Cummings (or McWilliams) v Sir William Arrol & Co Ltd (1962), HL .............. 293, 470
Cunard! veAntifyre: Lid (1933): wcrc eer ne sev oe or eee a eer 355, 400, 408, 410
Cunard:Steamshipr€ ov. Stacey (1955)5 CA sac succes oan aes eer tier 153
CunninghamiveHarrisoni(l973).CA. «vas ates eee om aan sn eed otas HOI S aehelt ere 600, 603
Gunninghamiv, ReadinssFootballi Club itdi(i992 wetter <tenet tects eee rerren oes etreet) tee 339
Cunningham-Howie v FW Dimbleby & Sons Ltd (1951), CA .................-...-00055 528
Curtistv Betts C990) CAS scans cen eaeovchoySecs sown antec mendes aecnc cosusunietoioer Weer eee ey Cen 452, 453
Cushing v Peter Walker & Son (Warrington and Burton) Ltd (1941) .................... 416
Cutlerkva United! Dairies (London) iitd! (11933) CAM Raat ee ceertrer sass reesesee earn ete eee 82]
Cutler vi Vauxhallufotorsalbtda (Om) CASS, miyarrscnterettsiccrarcrsore reeseack rasckss 1 SOROS 604
Gutler'v WandsworthsStadium’ Etdi(1949) 9S sos a5 sara ve tise te oe nate 463, 465, 467
Cynat Products Ltd v Landbuild (Investment and Property) Ltd (1984) .................. 562
D
Di(anminor) (wardships sterilisation) > Rev: 976) ris ps crers or ce te heen etek: eRe ee et 89
DR AIMIBS, BOW iti XCD OOD) rare dyessony xscucaideriovse secsteaway stevenonendoswapendanses. Maree ee me ae ee 341
Dia minor) wv Department of the Environment (NI)s(1992)) 42. 2 at tee ee eee 340
Disk Estates: Ltd v Church Comrs forEnglandi(1989)) HI 1...e- ae een eee 230, 243, 359
DiscaliGaterers LidvandWackson.v Di Ayou(945) (CAG onscreen cee 484, 496
DDSA Pharmaceuticals Ltd v Times Newspapers Ltd (1973), CA ....................4.. 487
DSGiRetailiEtd vi Comet Group ple (2002) ress -cpserer reenact eR eee 140
Daborn v Bath Tramways Motor Co Ltd and Smithey (1946), CA ...................... 250
Daily Mirror Newspapers Ltd v Gardner (1968), CA .............2.0-.0.00000- 151, 154, 165
DakhyiiwiLabouchere: @U908) SHI: aie CRN. Nees inion SPP ae et Sten Es cee 488
Dalebvs Wood GOUS22)) ets ar ik ote tectccSncatraidda SeeWeer Seah Pe, RE er 91
Daltonv: Anous'&-Co.(188l)s Hirsh a ee ek eae Oe ee ee ee 559, 563
Daly v General Steam Navigation Co Ltd, The Dragon (1980), CA ............. 354, 599, 601
Daly: veliverpoolCorpn: (1939) ) Mak. Meer: Seperate oteSere t tre SMa ten icea eee a a ee Weis)
Danby viBeardsley (1880) 20.5 eek ee eee Ee es ES See, Brae 540
Danielseve Gritfiths 1998), GAs. in. Bie tsps se tees > eR Nets. Me.SENS REO RNR ch eee 12
Daniels vaTones 961) CAS oo ccs oxmrarsin dsobo g he ee Oe: Hoe eR Se re ERE NS we 615
Daniels and Daniels v R White & Sons Ltd and Tarbard (1938) ......................00. 376
Danish MercantilesCosltdiv Beaumont (1950) merece eae + keene oer eee ae eee 139
Daritiaveblamiltona(Loso ya wee saa - ee Se Re FO re ee SDN 24325
DatbyzvaNationalelrusts (2001) CAy Gases cetsxcvcs eecn vary svn VN Arner Sov Ve Pa S2i1F B36. 342
DareSsaee Wen (LOU) Me aicecssnsesssyenciesayatavenensn Messer dsssmcemtawsdcr shone Svahomevepsrawore eC RE Ey NRO aa 303
Darkertv; Chief; Constablesofi.west) Midlands! Bolices(2001) 5Hwee =e reenternee 547
Darley «Maint Gollieny,; ComvaMitchellW (S86) EL asses. ner avery ee en 398, 400
Darling Island Stevedoring and Lighterage Co Ltd v Long (1956) ....................0.. 57.5
Dastv Ganjus(L999 iA Sekt, Rd reesei csvosovsay livnce'voah overthvberosereneraid sansa eRe ARR n eee ev 630
Davey vilsarrowAGorpr (1958)3s CA. bespossactenereteasnenconsusveracay sans alovev-t ace Aeros PC Re 414, 436
Davidive bdulli€aderi(l963) PCa, Napehvcecncveyendprucezyoue
vonsnscsercoavonsy nals hee ee ae 547
Davidson v Chief Constable of North Wales (1994), CA ..............00........ 45, 99, 540
DavietveNewaMerton BoardeMiul lenetdi G9 59) Ste mercies icici aan errant eee ene ene 562
Daviesivilliett (2000) tea SI SORT ee Se NGA Sse Sea 2a pa eee 81
Davies(ors Davis)sve Manni. (1842). Sem eng paver niece che ete heat en et ne Sp 309
Davies v Powell Duffryn Associated Collieries Ltd. See Yelland v Powell Duffryn Associated
Collieries Ltd (No 2)
Daviessvabresbyterian’ Churchiof Wales (1986) Mae waters carers arene ener ee ee 554
Daviestv Solomon (L871): 0.2.15 «2A See TY Id De ER ee ee 498, 579
Davies v Swan Motor Co (Swansea) Ltd (1949), CA ...............00.000..... 310, 312, 319
Davies. v- Taylor (1974), THe 2 See Ae ee Pn A Se Pt tee ee ea 612
Davistv Billing. (USO) CA ciciaisrxscstohstousrate coasterssorvis MME NRG,yeaa Lara Kore EVIE OMT Wa Re eo TE 504
Table of cases x\vii
PAGE
Pavisw BromieysC tpn (1908) iOne SMe ta vest Beth oe ercked, Aka elena Se 547
DavistveBunny (193.6) feces see bosshosth acu. fe Le eee ee A Wek Se Mi 278
Daviswvekootss (L940) MC Ages Bancctet Ait: LA Pee rede. Med boy. pytleny’? tyxarlen 364
DaviskviOsweelli(US37/)) atpeeteste ce:Ses555 RR pacscccee coyoonS ones ecg ccons, oa fT ee 64
Davisonivaltes sett 969) iCAG ie oases cers cnoe buck cei icte Oe ee Ee we ees 278
DawkinstvglordeRauletyWus68) teen AAs soscrs sacasspexseeus eveexceaiace 13 EN Eo Sits. 510
Dawkins: veUordgRokebya (i873), xe Cheraftdi(1875)) nies et eee eee cee 510
DawrantivaNutte(!960) is. «eevee Slept enbOON, Geyer Nhl FO tee Breen eins. lpee 315
Dawsonkv, GreatyNortherlands City, Rly, Co,(1905)5 CA ae). ee eek ee es ee 652
Dayavaesream (W837) Meare ete ee ere Weck ty Scenes the BE OS, SMS Vmtarnece. oe hepien’ 506
Deanivarlos sr SAN) Seen soc 508ysis y Skene acuta AEE DAO ae WA Ae oe eed 2
Deanegyy Clayton’ CUS17) ees tata-yerescabacacns ois yous!--sissreasdwashen oc Be ee Ae 38, 93
De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd
(C975) AS RRA, SOR II 8 oes usec eccaedeyne hoe hee a OL: 140, 141
MesBuscuveMcCarthya(l O42 yeCA soe oe 3.cceicyssey oxoencnsloruskeyvusientysscasasgs
SOR Deke TE Pe Si,
Deemess v John R Keeble:& Son (Brantham))Ltd) (11983); HW % 5...1..2..088-6.0-0-2-2.5 630
Depkrancesconvabarnums 890) ieee ccc ies-lo ocr tee ene ena ee ee oeA 156
DewerancomveMetropolitanpRolicey@omru(l987); CAW s.5...52 eee eee oe eee 53)
Dephrevillegve Dil (US
2Tx ecstsueyovsvcaesuouene sur ohekorecs «steels: clevsusadl silos NO A 43, 232
Detries; vy, Milnexy(1913)siGA serepate aye Bek Cee EER ae te pce a i 652
Deetleva Marks v, Lord Greenwood (1936) Le aebaee ante Seen tea ee eee LSil
Helanevavelbheomithy Widu(loaG) CAM sare swiees os conc, toacciackns eee ee ERE eee 79
Delaware Mansions Ltd v Westminster City Council (2002), HL ...... 393, 406, 412, 421, 585
De Martell v Merton and Sutton Health Authority (1992); affd (1993), CA .............. 216
De Meza and Stuart v Apple, Van Straten, Shena and Stone (1975), CA .................. Syl 9
Denaby and Cadeby Main Collieries Ltd v Yorkshire Miners’ Association (1906), HL ...... S52
Dennis.v;Chamvyood) Borough Councili(1983) CAS ty. terete eis eee kes 631
Department of the Environment v Thomas Bates & Son Ltd (1991), HL ....... 230;.243,,.357
Depantmentofsocialesecurity, v Butler (1995) 4 @ Agierse ..terseeaee eaten. cave ee ete 588
Department of Transport v North West Water Authority (1984); revsd (1984), HL ...... 418
Derbyshire County Council v Times Newspapers Ltd (1993), HL .................. 478, 484
Derricksvawalliamsn(l 939 GAS Pere ever cusicucuccex:stsacuss otto et Re ee, Sete. Be 585
Derry EvaP Cok SSO). TL ere eee Face cusiesenencecuenes sedioaucaskexhahcsiensn atte aha 4cMeee Rema ee pe 232
DSvereuxeva Barclays (S19) be Ppp asesre cutest cnsasisysicn onsoxycchvu ssnsucusiachs Pacbea a eee ARS TEAL Ie cheketede 58
Devonshiregva Jenkins; (L979) Fas. acces Sta Sactets Ate Sele, Bei SL eet. eet ere 81
Dewatevs City, and SuburbaniRacecourse:@o(l899)) Seen cis aren antes creer. ise i ae 404
DE Wevava WDItCE S27) racceacxcuaovsucseebeue tries ett ae ee 2a Ie Peis aiteeiate SEPmeraR ICERe, Aa Aatoes 95
Dhaliwalhvi Bersonall Representatives of; Hunti(l995) 5CAgiawa. 2 tas ctariiae eases ©able 599
Dhesi v Chief Constable of West Midlands Police (2000), CA ...............--0
0s eee 453
Dibble (H E) Ltd (t/a Mill Lane Nurseries) v Moore (West, third party) (1970), CA ........ 60
DibdingyzS waniGl793') es Seen cae ee te oe NS ee SPAR, PANT oe ANE eR AE we? 526
Dickinsonmve BurmelllE(USGG)) acs cacccsseusce sues topsdeush sackansuecss sve:ertisatennPuokoncotsuctoveke ore nee a eee Mee 652
Dicksivabrooks: (L880) CAM errs .oceia aden earn SORES Ne TENE mera aeat, ars 139
Dictzavawenni sa@nemicals itd a(lOG9)s FE fe pewustcise eevee ersirruakaKepaucbaesc
tease eesiee ettee-wenene -recmts 613
Dimbleby & Sons Ltd v National Union of Journalists (1984), CA; affd (1984),
ELE a ad ek eh eo dies RE Ee SCRE OO ee 152, 161, 164
Dimondaveleovell O02 ye ges omy weeregsucuolcneesncucustcieteurd
-wiach<scucasd-detcs-h otasie) Lee eM Meds OC Ree 617
Dingle v Associated Newspapers Ltd (1961), CA; affd sub nom Associated Newspapers Ltd v
Dyson GIOGNN ISU eB dins cabo g Un Ut.6 aOR De Oa Be uo Sums MO hi doco karat 532, 534, 656
ID PPA\e denies? (HEL Sal acon oon wee asus anomeric oe on Aeoa oOo 645 hd oe boot 76, 426
IDS Con WISTS ARSON ah oboe pone ba cod do wo Meee M EEC OR mer mmr oo ame OO Sm ad So amis 26 coi 369
DixonmvabDixont (UOO4) we scatman secu: nese. rettel ellie nielefeten steratetetey= 1a elie ts attsisbdelle: 163
DobbiewaMedwavablealiheAuthority (1994))\@ AM rere ciety telet crete tele lied eleheysyr ato 628
IBYSoill Groncine (UY) sags sooeencurneccu uncon edn aesauodcod 123
oe coc eaeaccouonguene
Dobson v North Tyneside Health Authority (1996), CA ..............55.002 2s sees eee 54
Dodd Properties (Kent) Ltd v Canterbury City Council (1980), CA ....... 304, 387, 583, 608
WDyoreles Ae Dy CICHAS) noob Bae Ronnie cc bebe eeN Un OREN UnG sono bmn du suum mes 611, 613
Dodwelley Burtorels (669) eameriseveek mast sew ear aden cedexcued ge s-tven-celeuonen-linter eter tet tote attty 15(F203 30)
Doerd Rochestera(Bishop) iv sBridges| (183i). jaye ss tn s.r ainsi terest eirtet-teleWeetshss oats 458
Dolbeyay Goodwim(l9 55) nC A Galery. £25 WE: Moe ccraccscieigengaievn nares a sb Ga Ub RRR Ah 613
DolbyaveNe wes (1887) emer eculee tere skeerasscenes n tba Cea beknskeneconvin = -a-ithen A -teialtde ay-banel 481, 483
Doltis (J) Ltd v Isaac Braithwaite & Sons (Engineers) EAUCMOSTE. sean Beas. aoe aS. 44]
Dominion Mosaics and Tile Co Ltd v Trafalgar Trucking Co Ltd (1990), CA .............. 80
xlviii Table of cases
N PAGE
Dominion Natural Gas Co Ltd\v Collins and Perkins (1909), PC ....................--5- 372
Domsalla v Barr (t/a AB Construction) (1969), CA ............. ye: ates AAI Ee 578
Donasheyav,Boultonyand Paull Ltd (968) 5 yess pepe -nen-p ecru cpu oesve een ee 300, 468
Donaldiv Suckling 7GliS 66) ies epee ey ee essence esspieely tauceca dbrabance ep en ee SUS
DonaldsongvaMeNivens (9a) CAG cyeyey-sce-psicusscesercueacpenceccaen
neni dae ae aoe Tk 261, 650
Donnelly svetackmans (L970) i. OW kecarsircesnscapeccensnspipenstenansnensvsh
onsen daa etiee oeAP Mee een 3)5)
Donnelly waJoycer (9 74) 8 CAY,, Jeet ee ee RO aie ce ee et ee Oe eee 600
Donoghue v Stevenson. See M’Alister (or Donoghue) v Stevenson
Donovanky. Union ‘CartagexCo, Ltd. (1933)) A eee eee ee ate eee eee ree 260
DoodewardivaSpencer(l908) MiG: of Ay i saroversia asntereteasientekst) seasons A ee 54
DooleygvaCammellsbairdr&rCowktd (OSI sways aoe aa erate eee ee 225, 660
DougallivelMic@anthye Gls 93S CA Fes ayeccvarsnansronee coshsusterauchspcncmchcacecnsteyaheucweWe,
Ache stEt PRC chae eetees 75
Doughty v) DimersManutactuninet Contd ((964)5 CAsene o, bea ees eee 301, 302
Douslassvalielioluetdh(2001) mC Amery .vn..eore
oe roe ees 7, 171, 173, 478, 480, 491, 587
Douslasivan ello! metd) (2 003) apaccecencececycececnch
teesevdonee eee pce 8, 116, 171, 215, 479, 480
DouglassV alley Finance:@o, Ltdiv, S Hughes s(Hirers)wletdi(9G9)) eien.sm.sectd-en
te berctal. eee 55)
Dovervab anhamsseatents Lockswistdg (1933) eer n et a eet ee 627, 631
Dowling ‘vabimesnich (OSA) MC Ay oi vussk voressxc ch bepe see OP sD Ree ee, 529
Downsév ‘Chappelli( L996) CA. Si exo Mas BEhe carts tayaconsnensnahspanshensnsusteohsiaksvere
sere Niatenae mE a ee 122
Doylelv2Olbya(ronmongers) std! (L969) AC AG pay eed eek eee eee ee 124
Dragon, The. See Daly v General Steam Navigation Co Ltd, The Dragon
Dranervebvangelou (O78) CAG ie aveca-nenencieteuclc acne hice week Ronaieharee venta eer ene eee 13,78 PSS2ee oS:
Dranstieldave British Insulated'Cables tdi 93i/) ae 2 eeee nea eterno cte eaeterete eter ey eee Su
Draperiv: Hodder (1972) 2CAPVE) HE ELE ey, SR SE ie. Se 302, 451
Draperxv cTrists(1939) CAG Rass MR I, Ra, Ae SA, YT, Sete 135, 136
Dimkswatervabumber (195i) vaktda( L952) iC Agama eee. ce meee eee Gece, weet tee ee 316
Driverivawilliamewallette(Conttactors) Metde (SG) me ne ewes a itera neeteen renee et one 362
DrummondvsBritish Building @leanerseltdi(li954)\CAwe ss. eee eR, Se 26972
Drummond-Jackson v British Medical Association (1970), CA ..................0.0005- 483
Dubai Aluminium Co Ltd v Salaam (Livingstone, third parties) (2003), HL .......... 575, 647
Duckworth vi JohnsonnG1 859) ir. Sy. PAR kD RS Oe, RS eS es eee 612
Dufivavedhanet WistrictiCouncill (1984) sae aerate ieee tere eter a eee eee 566
Dulreubyawinitersees onsw(d:S Ol) Meme cnsneneie crete tenSowencinct'-weusnswersn onewonciraysirer Ceres ioeeae teene eT eee 219
DumbellsveRobertsiGlG44ygGA wee...chcvspewewswenswarsminsteweesnshepewonswotareesn
rerensiewd eters tetat Meee ee eee 35
Dunford and Elliott Ltd v Johnson and Firth Brown Ltd (1978), CA ..................... 170
Dunhill (Alired)wsSunoptic SAzand'© Dunhill\(i979) |CAV sarees ee ee ns eee ieiy/
DunlopavawoollakrasMunicipale@ouncill(1982) SE Cee rwen eet et ctes pester cease ee 547
Dunlop Pneumatic Tyre Co Ltd v Maison Talbot, Earl of Shrewsbury and Talbot and Weigel
GL D.04D)reCA ea BEF aN seus seenSn PRD AT A ONE ND he NO ER Te 143
Dunlop Rubber @otiidiv, Duntopr(i 92) ENE Syaeees eeeneneere oie eee, Oe eee See 481
Dunn v Birmingham Canal Navigation Co (1872); affd (1872), Ex Ch ................... 445
Dunne eare CxS) i We ceehaah whet peace Ree cdAN hehe dake crashes MME th Re 80
DunneivaNorthewestemiGas Board (ood) MCA Nw. casichocrncnt secures seta (heen 2,RA 436
DunsternvaAbhotite LOSS) GAL ers cnteencesacwcrcsacwceaucwsscucocusuewehcmecee
ttenackte eee ene ees te nea ee me 354
DuntonsveDoverbistich Comienl (1977) Th Aaa ee SER acess ae 427, 428, 588
DunwachiGorpnkvasietinya (LS Sill) Garsseatencrencnors ensetemewaanorcteest ne aCe icashou KoloR rode teeta
ee 69
DiUirsonwy dSansong@l939) eek Geant. Aen ee ik ee RA ete ciced ae ete ee te ee B27
DuttonwéBoonomhesis UD EAST 2 CAT LAA Anat nk PN aid eck MORE Seeaed eens
ae 859
DiweksveMacmillan Pubhishersaltd7@000) RG Ak acy a.Aeiekssoetien onloocusasecucn iene -yeeteres 2 Senne 489
Dyergva Mundaya SOS) 5CA yfressvatetelccs caieyonstercattckevasioxcudy
HatweyaKsRoncaeisuekorent then coe eo ees 105
Dymond vebearcet W972) ROAD Hetero caverns axcyncncranaxeysnsnagt oec serea emer oe oeRoicr ce 426, 429
E
EC@i Commission vakrance:.G-52/00) (2002) cE Clee ss eels tee ier eee ee 378
E@sCommissionhvaUnitedKingdomzi€-300/950Gl997) PEGIM sein. 8s tenet) eect 379
EMiERecordssLideve Riley sCuSSii)itc, Avie eeseer avn nee een tteerie oem = en ee Se 646
Eason, VaNewaniaiin Cl SIGIR snsccnsneaicnsmensots raeenepnativaactstn sekodoeowor ecw tore eBoy a eRe ee ERED. A ee 58
Easson v London and North Eastern Rly Co (1944), CA ................. 2620 277 42783,279
BastavaChapman GUS 27) 2 pevacensvavcisncpecacnansususssivianeuewsbavensabeleNemsueseeenea:
tenon Seach ae eee esAe AER Ne 532
East vaeMaurens (99 1); (CAC ee. geen d suteta kc eect yok Be vsncod toetal epscn cpcucu owe Ak ore. ORD a 124
East SuffolkjRiverss@atchment Board viKentiq@i94h) shomenate eee. en eae 190
Table of cases xlix
PAGE
Eastern and South African Telegraph Co Ltd v Cape Town Tramways Companies Ltd (1902),
Bee RE eae cit Rico Gite iw PE a 396, 445
Eastman v South West Thames Regional Health Authority (1991), CA .................. 260
Basyeare: Incavabtyant lawrence) & Co (1995). ...4...-44.4..4..00.0000 ee 143
PAHINE Westone COO 2AKOAL wrens 4h ereih: AoA. sss-ramambe cutee bake oh ale oe 340
BddisavaChichester@onstableao69) OAs ase ee
ce ee 634
Bdelsicngvpedelstens (i865) Bam aa niat.ckectr ect meter fea to vee are eee ae ite eee 137
Edge (William) & Sons Ltd v William Niccolls & Sons Ltd (1911), HL ............. Ngule ass’
Edsinctongvabitzmatmces (S85) 5CAC i peepee as ae ee Dd, 11023!
EdmondsonkvsBirchrscac 0 Etdrandiitorer(907)y GAu nae eee en Syl
Edmondsongva Nuttall (S64) aby dete eee eee Ms. urna ore. seta tee 62
Bd wardsevg Della (S24) Mmerccrrnsy aster ratinae chcrtanies seats estas tate ie eee eee eee 503
Bdwardsivahall wiayareXecCutlyer (952) slate eae anes ae eee 2 es eye 335, 336
awards avaalmesi Newspapers pltdi (9 9/]) Meer eae eee ee ae ee 485
Egertong vaome: Offices (1978) merrsit: wee mie ae a ears os osc) sssoenyaenea hate teen esac ee 638
Begervaviscount Chelmstordi(or Davies) (1965) GA .2.46 .65054 2 eee -. ee 518, 530
Belantinernneletdiva sarah Smithy (948) pias ras: Wer cee ee ee eee eee 493
EP AjounvaDollanlandpHoldinesipler(lo94) CAG foo s. a. ae nae ene ee eee 146
EIboro waveAllene G22) on hier asc aia era ye ate ease ho Pee IEE ae oe 143
Electrical, Electronic Telecommunication and Plumbing Union vy Times Newspapers Ltd
(GUS SO) eee ees eae rer cae Hears Aer ene ON oe otaces oe ameter ae ach amie 484, 645
Blectrochromenetdavaviclshwelasticse etde(lOGS) epee siseri yet erie tees nares ange 242
BlsuzoulsDatay: Mettopolitany Police; Come (1995).(©A... cease
sete en ee 196, 545
BitesModeluManacementcorpnay, DBC (2000) cn eee pepe ee eee ee 490
Elleanor v Cavendish Woodhouse Ltd and Comerford (1973), CA ...............2..0000- 568
BilenivaGreamNornenakiva oul OO) GAs mares rete eR aae epee tee cece eae 624
BUG Sease (O29) ne psec cere oace agian RN ee icra oh cae epes eg ei sre aera St castle 104
EMTotsonmvameetuamEClsSo)) amtreritawtmumrrecc ett tect cats Meat nck corr Leer eee ee ee 419
PTOTAV ES ON TONE CLOD 4 ieCA cect eestor otShares wean Wain a FUR cr hay Rateotte haart hs tubo 19
ElbotavelondoneBoroushyotslsiineton (LOOM) SiG Awana coe cmrcr oe oemR re eae eevee 422
}Hibne dolney Qicinvinynas Sori GME) son, aiewetre ine eae Baiaeae Sue nels’s seeks do oau 64
lisaves hehe duGasne ons Uimiens.GOs(U6o5) nae rants wae ere ayer en aor e eee ee 558
PUISONEVANVIINISty Ol Defences lO9G) rey. ciemeus cnc ve Censieeie
arene 402, 433, 440, 443, 447, 449
lafilkoye iy Rialiin
grakexenean Coy Bel MISE) ng Aero pinion Some aes canta alse ot CARD oon DAS
BlwesivebricgeGas. Co (lS 86) Ex) Che ceca rer. corses Gas eesumuensreat gediys pee ean epee see ae acre Weet rey 8
BinanueldHaccon) etdiva Greater onconnGounell (CL97Al) isAG eopar-tenrererayehae
irufee ners bere 449
Bim bre vava Ow erie WLS 5, eects dena rent roasten Heershe cosenee necgedae mec ace eg eee oa ann tae 578
Emeh v Kensington and Chelsea and Westminster Area Health Authority (1985),
OAR ee rea tetra fogAeLenesic syounce Veyshagenor ssocr ead thon secu comdasushsy apacy ee PT, Sib ISS)
Emerald: Constmiction Cony, Lowthtan (L966): CAGr cree aes cree atin crancnaee cienere 53h i,
Emerson vaormsby. lunes and Leleoraph) Co) Tid! (1926) NCA Gye reo aca acl oe 481, 483
EINNIENS VE OLLLE MMi Sed)! LeAvascetcuepe iercu. sie cerle eursucseusl aare eseae NON ety eae a ee eke ane OA ccgs 505
Empresa Exportadora de Azucar v Industria Azucarera Nacional SA, The Playa Larga and The
Marblesislam dst (GL9 835i)5.CA agsts vrecaticamae coecanene Sottskss<bendtamteeiek crass, 2H AAs Pare aes goat es Wh, SG GP
Rroedeyevel: yp (COMM URI a4 Siiowelaws axe gdlavlgis oag bona Son noob coMMb ay op oRs Codey ataamee 60
England v National Coal Board (1953), CA; on appeal sub nom National Coal Board v
[Saved ervle(liQst) pels lbw eerreeeae ep Oe Sans Sen See eet oa ee pomaates sacs somo var 460, 575
Riiclesm Gaia mneWGS) ye Beas ssataecsootns aoe oboeSr ene moots, SodametebeS Shogeue 29
Ephraim v London Borough of Newham (1992), CA ........--.----- ee sere ee eee sees 363
Esso Petroleum Co Ltd v Kingswood Motors (Addlestone) Ltd (1974) ................... 161
Essopketroleumy © onletduva Mando) (1976) i CAR ee a acute onetener crusaders iereas cee -tegelelen ee siey Ail W358)
Esso Petroleum Co Ltd v Southport Corpn. See Southport Corpn v Esso Petroleum Co Ltd
Buro-Diambpletanvabathunste (990) OAS meyer rusts niriatesacknsncie 26eSTs halons i ee rcs Lenore 106
SMA MmECOy Nie (IGE) (AW vormsaeene abanace 309
Beton nieces dodeotasdagnouamentnoads
[EAarerSoiel §Cran ae(UY ty OG Pe OU ee oon doen ou Suc Opeeoe cahiGcggmam.s a0 mere fear 140, 483
Evans v London Hospital’ Medical College (1980)! Wii eee cere cee ome stents ats 540, 547
Evans v Dtiplex Safety, Glass Co Ltd (1936) rr ea cs eects tte pepe fs sal 376
Evans (C) & Sons Ltd v Spritebrand Ltd (1985), CA .........0- een cette tenets 643
cece non uoed gh obusKae come ouemee 542
jehnieelan yy Rillornayil(UIEVARIOUN Ses gacdodsndnasuud
Excelsionawitesk ope, orletdy va Gallany(1930) stalemate teil ees inet ae beter 354
Exchange Telegraph Co Ltd v Gregory & Co (1896), CA .............-....+--455- Sis, SKS
Eyre v Measday (1986) © Ayo cee cte cyscierore cnettace tate tate aiswishescera ks he = Rs Eegs Es clanaic Ae) eral 264
| Table of cases
\ PAGE
F
F v West Berkshire Health Authority (Mental Health Act Commission intervening) (1989),
Ut pe iced eth 8 a el de a ncaa Ree cet 28, 335, 325 Oi, 88s 095 905, 95
LeveWwitral Metropolitan borough: Council (199) CAG ere ee ee er react 160
hacanavaMetropolitansbolices Comin( L969) ser een sere ee reer ey eee er ee eer 34
Fairchild v Glenhaven Funeral Services Ltd (2002), CA; revsd (2002),
FA checrasgtcsin os(cage, “Poe Siem hey cae aearueiuc vege ae ore 288, 289, 290, 291, 337, 343, 344, 624
Fairgrove Pty Ltd v Todd Group Holding Pty Ltd (1999) ..............-.2 ccc eeeeeeeeee 360
Fairhurst vast Helens) and Knowsley Health Authority, (1995) oe creeks cise ike tae 600
Raine Shippimneucorpn veAGaMson (L915) ser ariel leet tne ter ee eee eee rt 572, 643
Ralconerv ASE beanda NU RGCLO SO) mcm re Sr rAn Sry WeLy AA ON re peek ie 156, 164
ParGOneVvarlarcount-Rivin Storms (1952))s blle naeeeate tetera amc en coke ee ete ae 451
Parmersv ort y der (93:7) pC AS rere cyan itera haeotereteeeeeeReetayeter ee geet ee gepeat See oes eK Syilis}
Bammer Gilesslidiv. Wessex. Water Authority (1990) CAC nner ae hee re eer 80
Barrant.v, DHOMpSONy CLO22) oeccmesrycoecee cree arcana gee cha ont hee pe cR ee cee ee ree arse Syif
Barer. VEIN CISONC GLO SO) crys & cacen tesa cea og ies teen eer ereeen geile cae cg eats Cece cactioecaeae 414
Farrington vabelein(LOST CAg wets ecarteiin scl agente eto eRe oe Ek Race a 489
Fassoulasiw Ramey (L984) ana ac wocicer rect clwies aacnenel seie a ects thermnny Coa an eas cena 228
Bawcett wi smetnurst. (ODA) cos ecccec aaccra regegescusceus tage ogee csa sievetvacensuses sce ma aeons we ae 650
Bayeva Prentice (L845). mrateninn.cc tise tie aria meien oa caesar edMere eet ee ae eae 407
Rayed.v Alelajir (98S) CAC, x arcecrune sino oar crates cates nue Ne Scar epana Raecst eA Sega 510
Rennelly vaConnexssouthebasternuletd (200i) mG Aus nina eter ne nr rtee vara ene en 392
Renningsavy lord, Grenvilles(l SOS) es creer cnt seeder eee aa oeoan gerne sence Need aE 60
ereuson valarluotaksinnouls (S42) o(eC eset see ogee eter ease a oe eee 469
Ferguson v John Dawson & Partners (Contractors) Ltd (1976), CA ..................--- 554
FEL OUSON Va WieISile(Oi) gM Leceresata cee carne1cya aeca asmceasetarysienaera a eanccn mensaraces 334, 337, 342, 344
eieldinguvaviantecy lnc, (OG) tee Acs geytncetncascae r ration aenete Trotcate ogeuet Paes cca eeg tourer 143
Batliters viPhippard (USAdiye cusceieuscosencuteesco- stepesecses s etcua Btegeroeauca yerote eae)o psig acuta rooms AigevaL cas 420
Films Rover International Ltd v Cannon Film Sales Ltd (1986) ......................... 588
BINGlay- Va BlavlOCK L931) ve.speck cus.a.coe seseltee exesace cntWesuetone/ chwucmonmtantsus acemotsaet rus fonoke(cuegeaske ruc mectege 151
Birmaniveb lis (O78) iCAt ete lec eee ete ey meee Or ie ea ge etn 630
First National Commercial Bank plc v Humberts (a firm) (1995), CA .................4.. 627
Einthey Bowling: (rom OR(UST8) cre secranucvee vite. sk Cea ens MIT ees See aes cuca arg eure 434
RAS GV WApUn (OFS) Ce penn nie ects care scsi. seregcheers et EI tie, Skee ete eto gene ee 276
isher viGholstd NO) 2) Ul966)s CA. rn rte tie seat Netcis Soe toey ee pet wea renee 332
BaiSHerVeblarrOdsel Adu OOO) pescereccctucty 1afarare Sue tesa catee ra eeaey ee Era Se eR ee Re 37
Ibisherevebrincel Wu,O2) nnn ctaes tesasp take hase eee Ree Decree oe eee 65
EISONSEVaINOTLONT HMealsacare met. (L994) Srmmctac crc rmeneteu ekerencn a gern eeetat ineca ian semen ene 130
Ritterevo Beales (OM era amr moicrnaytee sss oe one onesies Lutes cotsCass Oca eeerenter poe 584
putz
eoetral devs hOrauCl 99G) CAN stares acca esye a Paterno ecuet r nencase veneer Ck 600
Ritzgeraldavalvanen(osi Any ati (L989) oEMlGs cre pens ererenarenet
aye reeasier 293, 314, 319, 655, 660
Bitzoerald sveNoxthcotes (USOS) es. teccee ont ree 3 iere tie aie hee eyteeaoere nied eincnec ieee ee 97
Blacks: Hudson (2 OO) CAN re crayatsveqeue ess avers. Seas nese evayere Neue eACeesone aewanepearen cep aesdoesent te 452, 453
Bieming vel ollanc@s sO) Si) Gx nesecer capene ee coe casnege, ree tons cies enna. ee TRE Eee aca 504
Fletcher v Rylands and Horrocks (1866); affd sub nom Rylands v Fletcher
(USGS) eRe crescgegrh
crn here 8,6 391, 392, 406, 410, 431, 432, 434, 436, 438, 439, 444, 559
BlvinOubishs, DRG SOS) ie raackocs segs ceric Skene costes e cucu heed endo neeeiS eye aa acne ee ee eS 583
Boge veMickmighte(968) eerie ccna. cas aso Ot tke ee errr ar ice 24
BookesmveSlayton (979) C An ren psutases, ceca a ao centers agina Pal eink a I eee ane eae 307
ROR ES WINESAY ING IRR TOS TLC (GIL) ye ees eae NA AA AAO oS ado REESE deme MOR BS Se 29)
ROLDESEVaW anGsw Orth) ealthy A Ut Ont ys(L997) a A carspieers cokers eer anrere cece 629
ord Vaboster(l S72) paregtecipentrr clersat ssc vaeicieieiete enti eae eee OnE en art EXO ales
Rordesv, skinner’ S3 OQ) rccgs asiocsstrscotcrswsivcn nme too oR RCRA ences mace cee eae 35
Borrester Va Lyrrell (USO 3) oC A roses usar iousroucrciouce koe tn rere ke here cle emer MARTA CLe ar eee 495
Rorsdick-v. Collins: (US 16) soccnngctkrcanoaascsca uaenna ete i kK Re Ee eee 56
Rorsdiketv" Stone) (ESOS) ri eae evstis sicko <0suiteceeicgiret ae eae oer ecw oa eee RAR RET Tce ETE 532
Forsikringsaktieselskapet Vesta v Butcher, Bain Dawles Ltd and Aquacultural Insurance
Services lid (1988) CAcmatid (O89) NEU ere irre ere teen nae eee 211, 318
Rorster vi Outred é&-Cou(a, firm) LOS2) GA ere ee ens oa meee ee 627
Fosbroke-Hobbes v Airwork Ltd and British-American Air Services Ltd (1937) ........... ZS
Foskett-v- McKeown (ZOO) EAU bene ccctee ercicecucge cs ee re aCe eee cise eee Si)
EFoskett:-v; Mistry 984i CAR ses prc creas. ecnecave Cay avatue raeeee a eee nea usesre meetevencarnTRae Meeracre ance He 263
Foster-v WarblinctonsUDG«(1906) =GAt ey. aoe rat erated acter eR een rer ree eee ieee aetate 409
Table of cases li
PAGE
Houldessvaw illoughby GUS4ill)y Acasa ee ee eae leak cceducicnatcce course ee ee 48, 56, 66
Foulkes v Chief Constable of Merseyside Police (1998), CA ........0.ccccccccecccceceee 100
Fowler v Hollins (1872), Ex Ch; affd sub nom Hollins v Fowler (37,5) ieee eee So, Sil, ohs)
Rowler velanning (1959) eee sh wae Te eee ITA AS Foye 0. cewe th etn 24, 26, 86
Rowlestvabedtordshire:Countys@ouncill (1995) 5 © Aus 79 05 Saeed ane ae eee 331
ROXCKOTavadlzaCYA(GIS) Met opahve Peveatenstaelava vercrsnconsnsastansecosvavsvavocr
access Aad Ae 490
BrancenvaGaudet'(8 71) oh xaChie et) aa ek, Puen poh vee ie Seely deh 2 ee 65
Brance: vabarkinsont(954)3CA dy 329 eat). ete, UV 6 ow) deol DTS a3ilS
Rrancismva© OCKrel 1 (LUSHO)Rees setae saysv-keeewecacsncucyewsiton otctemenets ovenWarentysoevsvin eves avstee sn 345
Francis, Day and Hunter Ltd v Twentieth Century Fox Corpn Ltd (1939), PC ............ 128
rancovich and Bonttactsvsltaly)G-6,.9/901(1993), ECI).....
0-05640
eee eee 11, 470
TASCEaVa Berk ele ya(1836))lakesteay sytenesseotcaze.t cvov.8 ey score ee ae ES ET Ue eet aeeh ena 91
FASE Kava E Vianst (L9O9) SC Aun ie a SP aire) ori) ty) ike tee) Sea Ye ter 171
BraseraveMirzal (1993) LW, oe Cee ene aN, ert lt he pees? oe Hi),| S14 eS ISeSlows2 1
PECeMmaneva Homes Oftice (NOs) ACl983) walid (1984) aC Ammeae hte. eer enn 34, 86
|Clas(USA) faxesscacw-w tw ar¥e¥ 8:20 owsvctes dickkseansis baw co a ei
ECE CINATIAVMINOS 559
Friends’ Provident Life Office v Hillier Parker May & Rowden (a firm) (Estates and
Generalipicmthirdiparties) (1997) iC Ama merrier
cit ctea nena eer 656, 657
EritzavglODSOntGl SS O)AEE Ls Lak Pa Wee, Dien, S20 be Lee a eb? 421, 428
ET OORS Vas ULC a(619576) 5 © Aierer a cwovshcxtv ornein overex Haynop knee chenceontekenel oener Zoi S35 OL6,. 3195 583
Follam\veNewcastie: Chroniclerand Journal Ltdi(l977). CAs 15.2.4 se oe eee 485
Furniss v Cambridge Daily News Ltd (1907), CA ...... PROS A:GEES Ot ADA, SAR a eer cet Sil)
HULUTORE XPLeSSam ler GODS) CAL. 7 he.covet syesnceanevoesnsesrsnyocncrs
noneseonia} oa ee ee, A ee 48
G
GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd (No 2) (2000) ......... S20 242
GWK Ltd v Dunlop Rubber Co Ltd (1926); on appeal (1926), CA .................. 155, 160
GalasnielsiGass Could. vy ©; Donnell (on Millan) (1949) Hibs seca ac ects een ee 470
Gallas Denver Umponre yg CL S02) kes. rie kectisnpsns a stench nos ekowet x pam aoe by Seda ee ihe 35
GallashermvaipMicDowelli ltd OGD) yO A ear ca pen ere eer cee ray a ae See a 358
Gammelligv mW illsOnsGl 982). Acca thu (O82) sells ecgese ess meee tatrars ayo y evar erry eveueiee cisnileuarsbeWe 609
GandvaveUDDer(L8 64) srevisd (S65) Exe Claes ne eee war any ce Wate ew home foe aug eae euae 416
Gappetav, Chief Constable, of -Avonyand somerset (1998). CAg ese oer ie ee cia ial cle 99
Garden Cottage Foods Ltd v Milk Marketing Board (1982), CA; revsd (1984),
I Albg Peanaed saed aire A Rae RE Eat Pa as LR ac aa a de Seer aeieg 2 Pees eee 11, 470, 588
Gardinetmval oonres (LS.G9)) terra acwens gencic fetes usar eer <Creaet ie earn -ee eget ococecssouur aeWoisnr ro genes Gaoee uaa 654
Garnenive Morrell (U9 S35 C Avie x cccrercierevcicts cae wiccatnlore 6 skcect seins 6.onsfoo re) cayeuaerrete) ahs colauerte ols)sepais 276
Garnham, Harris and Elton Ltd v Alfred W Ellis (Transport) Ltd (1967) .................. 58
Gartside;vaShetticld pyoung, ands bllis: (983) syNZC As se cea oopcte cotole aaetae reas ie hey ey 197
(Criale Wel EA iiveNe (UID) ae ieee x Siam aela 2 i a ens ate a ae Aeneas cio omuei 398, 402
Gavylemandubope lidavebabaviessse Som Wtdi(lO 2A) i acre a ceco eisai) actrees BY
Geddisuvbannekeseiv Ol (ELOprietOrs)) (USS) mills cacuew- creer uayegiewshokol Naan Mere i oreneael LANs 104
GecavaMetropolitan Riva C O74(USi/5)) immerses eats asus cesar edegal os (erranee -VeeeTene roararesyeg heya DAY)
ES Ty THAIS NET INST) weaes ene ayos eee OSS elas SMSO eA sanc tone oO Caan eee noe rd oe 589
Cees ile WA Oa (AUDA INO: Gn vn culeac odes sdecon do dogddooos saat apenas Soqeee 583
General Cleaning Contractors Ltd v Christmas. See Christmas v General Cleaning Contractors
Ltd and Caledonian Club Trust Ltd
General sblectnicuCOsLid Wily CegSuSLONes LOSS)! cates ertater eyeteley-lreNe/et eteeatieb oie) eats eas [32
Canon Pinner (IEE Caw Ree coe ddd. shucuce neobe onde odeodcvosoncesed ate 596, 600
GerardiveDickensonn(lo 90) ersercrtn a far rr aye ia Rare nea raat Pee een 138
(Gesaearialsi Crowe IRONS Ssaco pos onde one oben eaUeeeen sor Soses coum nnieeen omaes 95
Getrardavastattords hire: Pottemes etd hO95)) gC: ueerate egstece he Ulett 468
cialis) -yoRalelsuauclalayesrig
Gibbings v O’Dea & Co Ltd (1948-9) (2500) ......--- 2111s eee eee eee eens 482
eteeeyereiehar arises aye ysl 510
Gibbonssvebutte iu(U932) abX: Of cAns craperatyvere ae eneneyeectdayereteteteree-UeteWeueler
(Gian wlNsyaer (GIS) 5conc. .ocddo cnn Soo duoUUn Ama gHeOnOn Dao Es 34
eesdomeeseeavoane
Gibbons v South West Water Services Ltd (1993), CA ............... 124, 429, 580, 581, 582
GiliasyCimnl- aiid < (IBY Seance tenn adcadd se sceeiudueesconsoduunm mnsianan ns Aue 585
Gibbsavabike and aw.cllsu(l S42) wesc rsersrese eerste sesteds teeleisuaGeoRekRete ctetel eee eee sl 546
(GN BAVC (IGE) MIRO” Sa ick dues ato Soo ISo bn Soom as uu soBoseunaH anaes oe 541, 542, 543
Giblan v National Amalgamated Labourers’ Union of Great Britain and Ireland (1903),
ees rh ea ae es ee Rea IN a ee ee 149
Gilera Mone CIE gaa rcs hs SoS SYOW Powe ods Ueee obo Soencse poem mocaseemmeaomNOobE a
lii Table of cases
N PAGE
Gilding v Eyre (1861) ...... Sr ess levaibe are Shediac ot Siena cuotetnican oA ey aN $42
Giles waWalker (1890): DC... sccnccuM kee os ae ee Ree: FS) adtommy: &Sahl oecee 435
Gillard wzBritton (1841)! 455 nb 70d oee ee ORs Oe SS. Rede. seukomeeeek ee beatles tt eee 61
Gillette Safety Razor Co and Gillette Safety Razor Ltd v Franks (1924) .................. 131
GillettesUKeUidiveEdenwestaltdi(lO94) crests settee aces Seenecee ne Me neaae ens cee Rate D te era 136
GillickavBB GLO 9G CA osaysaycso. pckcucuvoicbo]ko kaustouny sate seeucpelaoah ie etapereae AA LE Ce ee 485
Gillick v West Norfolk and Wisbech Area Health Authority (1986), HL .................. 89
Gillingham Borough Council v Medway (Chatham) Dock Co Ltd
(19.93 Peewee tan eer er Ee eh OnE ECR Cera 390, 397, 418, 422, 424
Gillmoreiv: LCG (193'8) Cee aa hc eee pee te SPEIER PUI SIS AN POTS RN 326, 345
GilsonW. Kerrier: RDC. (197.6). CAs acac.0.< betiae hore etme ee oer oe Ne MRIS aeons teat cave eae 444
Gintyev Belmont Building Supplies tdi (U959)) yee cere daa eee eee oi 473
Gizzonio v Chief Constable of Derbyshire Constabulary (1998), CA ............ 542, 545, 548
Glamorgan Coal Co Ltd v South Wales Miners’ Federation (1903), CA; affd sub nom South
Wales Miners’ Federation v Glamorgan Coal Co Ltd (1905), HL .............. MS7eelss
GlascowConpneval Muin (1943) Soe epepaeesieree erie een rater ueerelet ener 247, 248, 255, 302, 337
Glasgow, Corpngvatiaylor (1922) Eley aes. Pe Aes feed -f -tee t eteca deeee 260, 336, 340
Gleavessy, Deakin: (1980). AIL reccnaaycnaererchoxenenerevor
nies erator etek i ROR NCR: eae 2ew 495
Gledhill (G H) & Sons Ltd v British Perforated Toilet Paper Co (1911); on appeal (1911),
IG RS ras A cya nsscaxsscs avovagevsians) hevacaloeol Broiler 4 tear nears! Se Oe eee eee 130
Glége, v Bromley (1912). GA. cccceccacciienorPaedaak sea teres HS RE ST Tt ee eee 653
Glencore\International AG) v Metro, Trading Inc) (200i!) N25: teh 2 were tee ae ciaearete terete Petes 57
GhinskilveMeclyersQl 962). FAME ayarsconexsiectacisveer sie=:'2Vucke jeu egsvSenaiky cde aka cod eo ee ee 543
Gloucester Grammars cnool. Cases (IO) anwar aerate sete ee ee eee etna oS
Glover v London and South) Western Rily Co Gi867)) ae neise yar cae ae eee ae 36
GodtreysvDemonalntemeteletdli( 200) Mee icscvae tea eer eee te eee 506, 507
GodwinevZo1s weil 993) 5CAS cosy a cacs, suerte ceo coe we get se Ones ons alice ee cee eae 162
Goftingvs Donnelly (US Si) rsa cvs cules a's nettcs eyes Ota Rot te checontre eS bouengss @ stepson aay seh peng syill
GoheChoonriseneavaleeenKimn S00; UIO25) SIP Create ee irae trae eer a 566
GoldiviEssex-Countys@ouncnli(h942 iCAG secant sakes tere ere wareeuesee Ree rane ear Sp aya
Goldmantvarlaroravien (9 Gi) baer eae teeter 191, 252, 355, 389, 391, 412, 414, 420
Goldrei, Foucard & Son v Sinclair and Russian Chamber of Commerce in London (1918),
CA area re OSes operaN EE een FSS inpoes FTPs Lees ORR EA EER aA Ne CE ee 124
GoldsmithaveBhoyrul (1997) seme tn cctoistas sete cece aca eens orn ust Cenc Ieee Rrra teeete 478
Goldsmithivasperincsseta) (LOM SCAN enter eek er wea ge ree eee rant ee 492, 505
GaldsolliveG ol dinany (SM) rarilit(UUSIMS CoN eeecarers reeee are sree PereraoeayPerera rere eer ee 158
Goodbumesv Bowman GUS 33). mmenexaamrete. co Seca seers Serene rato Oo mga Ie cere eee eee 504
Goodwill v British Pregnancy Advisory Service (1996), CA ................... 188, 227, 236
Gordonty Harpe tal] 90) ese ccsecucns cusses os sacks eoreucenas cue soe [eka aislns= goaouese separa ays vee agae a ae 49, 69
Gorhampy British Telecommunications pic (2000) CAM errata core eae opsereren sear 238, 239
GOrrISeVe SCOLE GISTA) eager orsexe oloteee otalokeat encrateorhierar oFie ae aries «arones eer Sasacm eget cEohea Reece eRe 468
Gosdentvebiphick-andeBennet (USI ane cemieer ie ee hades oe roe tr crete ieee 45
Goslini va ory (USAAF cer cre maces cue oteone <elaergapeh ssctehtcee a ety aueaee eva ne LACES Cet eee ae Sew)
Goushkva National @oall Board (I9S4) GAT crs etn crnatone eisouecmen estar eeuaen esta cree 336, 339
Goushsvel borne (W966) CAS fe prego; aero cetera end a Peruse ee Re emo Piaye SiN06)
GrahameveDoddslO8s) rile sewer egaca Ria cekbies Takata eae cae ae aceon reece eee 614
Grahamimve heats CUSOU eorex. Syenc, oars cat as erte a aay ae AOE Tae oe ree Tae Rn ere eeeRe 719
Grahaiiavekcchcinegiitematlonals (OOO) sremratysecarate stereo aiererstorereeate ereaeta tere armen eta tae 449
Grahamivasavallev(l94 5) On tiGAr gee ocr. cocncte ant ircntete eer Meee helhie, nC Teen caer aa 87, 124
Grain serve (NS SS) isc coyegs ceoiBakayenyel saab inersce aleve Sense eo Renee eregeeven 42, 56, 546
GrantGelato bid vaRichelint (Group) meta (O92) ee ecatte mettre ie)Cremeteeta te setae teeta renna 127, ols
GranadasGroupiliiday BorduMiotor:@ ometdi(S98)) 5 mec merer cern ioc tae anita ne tee eee 134
Granby.(Marqitis) webakew ell WD ©1923) tere eer eae tr nt eterna 420
GrandyHotel{Corof Caledonia springs vawillson (1904) cP Gm ease etn ene 136
Grant v Australian Knitting Mills Ltd (1936), PC .............. WS. S250 375.51) 37 Ot 565
Grantyy; Langley (ZOOM) cee errcrece pete oe ecncce, tere sees a Se eee orePerenass = se NERA an we a meD 647
GrantiveNationall CoaliBoards (0956) mars aaa seea eee eee Rn nen tenor 468
Grantzy Sun shippine: Contd) (948) CEC rae cts tee ene eee Ie eae ered en 261, 313
Grappellil v, DerekeBlocks (Holdings) Mota sO Si) © Agnew tenet cis tte) area 485, 491
Gray Vi TONES (OS) eos gs oxcas cack neesgiast aoepds elve ee eg Re ae ae Re See oeeen ee 496
Grayey; Steadi(99.9) 1C Rag eo pope aes eens aepeg eer Riera a Ted ere eae IC eS META ae nae een 254
Grealisiy; Opunir (2003 ECA serenereranetaleseveye ohce eneere ae RENO ONRy Seyes TUEyNM eercece ee ae a ere 280
Great Lakes Steamship Co v Maple Leaf Milling Co Ltd (1924), PC ..................... 305
Table of cases iii
PAGE
Greatorex v Greatorex (Pope, Pt 20 defendant) (2000) .............c0-.eececsseceseess 223
GrechivsOdhamsprresspletdi(@958) atid (958) 9 Alen yet ase ee ek ee B24),
Greenky, AllgMotors: etd (19.177) iC Ace ee =. ce Se ee) Sees dae at 58
GreengvaBantramia( 183.0) meee E54 LEI Bs Bacher catenin Sickie there Soe asa 93
Greens ve Utton TOSS) Myprrcrysteswavorirar ns teratcramensnsrseeneestent Geren dORe Rnacras ee ee. 13959
Greenkva ChelseasWaterworksiCo(i894) aCAWw as scenes nee. ee 443
GreenhyeD ewavillandh@oGs yt) Oe ORE x eesti Sante ed a oe ee ee 08 544
Greenky Goddard: (NZ02)PORI. me aUt. naceiee off te.) ect By yan). h. jl cee i rain 93
Grecenive bumesyNewspapersmetdi(ZO0I inyacrorrivcracr: <i)rhs crete eee Pee 492
Greeneiva ChelseayB orough Councili(1954) NC AGS ¥5.7)44.20 2... en ke ee ee eee 8838
Greenhalshiv, British Railways: Board (1969) @AW vy. needs eee 334, 338
Greeninseva Wilkinsoni('825) (e049. cis. cee Pen Ge Sh weg pretay 63
Greenock Conpniwa Caledonian RlyaC ono) lew, es... ae eee, See ees 447
Green woodsveBennett Qh973)) iC AM yonwcatantactsnc See Ae
ee larsn.ccvsnss ee
srst 19, 63
Greenwoodkvascym oun (US Gill)_ EX Chyler wscntev ect estcecs-nolecesruorte oewaza ee bee ee ee 24
Greerayekaulknena(908) etre Dear eens eI Ee ee cnn Lee Bee 63
Greensplitdivarearmantands@ orders btdu(522)5 CAgees a4 eins ee eee ee 139, 141, 142
Gregeivaescotth(Z002) AGAs Oak 2ERe Ae oe eeene eee Dee LA oo) be) are ee 284, 291
Grevoryvalkellys(978) Aaa AE. Re penile fen ete cae ee 313, 320
Gre zoLyAve R Iper( L829) Weis. Ae. eek eh ee Paes 2. Lei e Aate ke EAU Sten phn tp OS 73
GrecoryavaRonsmouth: Cityacouncili(@000)S HU... .- eee eee ane 540, 541, 542
Greicevalnsolen (L978) woke etsce eed eee ean cee Eee eee Oe eee 1535, WS4 S77
GreingvalmperialeAinwaysuetd) (9ST) 4CAs ecorncuav-yone Meee eee ao tere de net eae 611
Crean oun We ehisiye dy(ENR AKG 7 on wean aoe AGH a GUE aan ANE Oee OA AS casita domo oc 95
Gricesvesteurport) [ennis! Hockey and Squash @lub/(1997)),CA | .0°es.. Wee eine 2..cee 646
Griffin, Lawson and Williams v Clwyd Health Authority (2001), CA .................... 629
GrifttithsavabritishiCoaliC@ orpnu(ZOON); {GAL csrorsnononce venanarenew ceorev a He Ree Pont
coescropsecrc ms 607
Guittithsavalivierpoole Corp 9 67) &CAM arcerp. er-4-bf nce teehee Rare nde eeetelceee eee Ree eee 642
(Grit th sav aWallliiaimsel 99 5) CAG feaoeaeteree mersne ssAekedociete eles Gamoee IH reine A ee 605
Grinhamevew lle yAGSS) terrsncysn-srckcnscstoiraser arseah Aaneeee eh ANG ea ieee eee
aeeveucwcatava ge h 45
Grobbelaar v News Group Newspapers Ltd (2001), CA; revsd (2002), HL ........ 488, 530, 577
Groomevi Crockerg@939)3 CA wait, ak se ete he he SAS wirchin Bt gtSe Be 483, 514
GroontveSelbya 2002) BOCAS woxancweeneccrateranercxerer neater’ iGawe atk Wea Getans RPE L Meee 227, 602
vaunetede
GT OSEVA CT OOK UNDG2) iege sears ctcxceesswers asecater raata owawawairaicses tar Waneterebar menoroaceeneeee eA Te 530, 557
GrossivellewiseHiliman tdi Glos)! CA ary ahpswancdeesn ereho htee RE ee eee aes
Act tecncharapste cee oe are 120
GrosvenonhoteliCo vaHamiltony(S94)ikGA Aa coat hee eee Sees 397, 421
GroteavachestenandsHolyheadyRivs@ on(lS48 cactus ncieumeenes
iaramarnar ewe a Neeene teeeete 561
vorssones
Grovesevelordawaimbormes(ls98) 5CAS I rp-yxrcrsre ectce-nevcte Ahan a oreee Ree, ee one 457, 460, 467
GroOvicave DDOCtory 997s) MINE eran: rctavert tansMonesarerseranerarosedse: Aerts hieOtakeatae pe tataes Satna Nan i ee 624
GuayavasupebublishingiCo WMtdi@l9s2) catia i(lo53 Reiter att oe serene. seetine ese eeeety. e tetelr 142
GuUEstEy Warren (CLSSA) ie tel. eee eterid oS Wee Ree atta ateh., Se, ceo reo. Wee 585
Guinness (Arthur), Son & Co (Dublin) Ltd v The Freshfield (Owners), The Lady Gwendolen
(LOGS) MCA ROMA a ceccecrsnettctseieas hoped qenerediace Marirevararatene teKerotatehan ANGE eee POR eM oe MM 643
Gunter a vAstorg (le9) wesc Ae eee OA At ee ee akan EOD, NOT PER 160
Gwilliam v West Hertfordshire Hospitals NHS TRust (2003), CA .................-..-.. 343
H
H (a healthcare worker) v N (a health authority) (2002), CA .............000...55....55 172
IRC etl esahwitleuve llseve i
to(CANUD) Soooscoosee exes boo 5060 c.00l.6 ooo corona baoo ormak 128
HIH Casualty and General Insurance Ltd v Chase Manhattan Bank (2001), CA; on appeal
(20031) ARREARS ROI chee eh acsnssa pcwatsnatey cesar ect een oi tetot AO Ae ene a reas Nhe 120
HL Motor Works (Willesden) Ltd v Alwahbi (1977), CA 222... 22. eee 608
Hadmormbroguctions sataavatiamiltony (1983) Eien Melens 161
erence cie: oheeeee.nate tata aeeetnrertrtetere
Hague v Deputy Governor of Parkhurst Prison. See R v Deputy Governor of Parkhurst Prison,
ex p Hague
Hale vy Hants and. Dorset. MotorServices) Ltd! (1947), CAV! 2555 ss ee rare eee eee 293
Haleavesennin2stb x0Si((193:8)) iC Ay gern werctetet te taretat Wr ten-y-tarek tenets steteie satel 434, 438, 441, 445, 449
Haley v London Electricity Board (1965), HL ..........+-.-. 0s. eee sees eee ee. 187, 260
HalfordavaBrookesu(tll992) ier weer marten tony smoker armen ayon Redewatewe teeee ue elevate ee ronnie atorsytate 630
qhtetie ek MONA kta
HallevaBbeckenhama@ orp (1949) pasate vca-sereteroneratcreterosttave <letehlt akeotek 411
sei? \Wnlkoyn (IGE). oe on ogoeuee ss coe ceCOON C06 ODO O br aa tdais coed DOls Dn is moo oa 615
Hallavawoolstont Halll Wersure i tdi(2000) NGA: ciety nett. tots, at. erste ee iaicha tlie elleelereie 109
liv Table of cases
\ : PAGE
Hallt& CovktdviPearlbers (1956) ..5<...:.2 eet Atco eee ee eee es eee ais)
Halli G7&2sE)sLidiv Barclay,(11937)) CA Free ae ae ee ee SEE seed ace ee 61
Halley, The. See Liverpool, Brazil and River Plate Steam Navigation Co Ltd v Benham, The
Halley
Mallidayev, Holgate s(iS68)) fae 25 28 yee cas.suc,oy csveueuad dane aveg ee aevuerer ere ee ee ee Sil
HalseyevaBrotherhood (USS 1) vCA a: ay. diersss.s2cceneaectege ee Ga tee RR I oe eee Pa 142
Halsey v Esso Petroleum Co Ltd (1961) ............. 389, 396, 398, 403, 410, 417, 425, 434
Hamble Fisheries Ltd v L Gardner .& Sons Ltd, The Rebecca Elaine (1999), CA ........... 374
Hambrookeyv.Stokes, Bros: (1925) CA. ooicnseccepe cence st Eo ee ee 219
HamiltonsveAl Bayed: (2001); HG, « ssreicveuscsvcveucneusud
perdegn eee otek he ee eee a 509
HamuiltonveAnderson, (USS8) AHL. 5,jesc.ssscpce ccc eure eee eee ce ee Ree rac eee 511
Hamiltondy, Papakura District Councils(2002)) RC a aaasaast eee See tient 443
Hammersmith and City Rly Co v Brand. See Brand v Hammersmith and City Rly Co
Hammertoniva Earl of Dysarti(916) spHy pectin, op ease te ae, nee ee ees S77
HampsaveDarbyzi(1948) 1GA cin c8ceest stots melee Su eee ce Vee Ieee 66, 67, 93
Hannah wa Peel s(1i945) CS ae aae ok cegscvesccueysiausieutueee tances aut chao ae eee Oe OO eee ae 5)
Hannamiv AMann ((1984).) GA 5,5 iceccvs <scuscchacsvsccatee ocktebdn ams Waco eee eae RUAN ee ede eo Se)
Hanson v Wearmouth Coal Co Ltd and Sunderland Gas Co (1939), CA .................-. 445
Harakas v Baltic Mercantile and Shipping Exchange Ltd (1982), CA .................-.-. 534
Hardaker.y Idle District Council (S96), CA ease crserus ceceeee 560, 564
Hardietandiiicane std) vsChilton (1928) 5(CA: 4 ..2,-...0es See se afte teva reie eyed ete 162
Hardwickjvaliudson;((1999)) CAs Sersece con. Shacs ac Sieteh cbsuencrseay usanuspaieyousychertoueuey Setard oa evenAeIes eexe 600
Hardy, v. Central London Rly (€o,(1920); CAs cinco eee ae eee eee 336, 354
BlardyaveRyleu(E829 ip resis iat- seuss etal vohoiesneceuesaks o.ocrgasncueeut aun ak tekte Sahat sa ee 633
Hargreaves qv Brethertoni(1959) es ae sees S eae sere se Sere eee a eee 165, 547
Hammett :v: Bond.(1925)\ HL. 6.226288" 5 sitesi ts Atlas Se heel an ae Jee ae eee 42
Harper .v (Charlesworth (S25) fovvcsecdyeyecsgsue.yeneusisueceyevevsyPecd=ue ee kk ME A ey eee Re 78
HarperaviGNibadent &sSons (1933) 5@A ns leyenseccsepoie cnt oye ee eo tebe a ane 424, 425, 426
HarperavaGodsellq (8770) iestvtusist-iencls oe yok runccutaetehouepmreucusseueetusaey-oae tien ree ieer <i ae 60
Harrinstoni(Earl)eveDerbysCorpn (90S). oicievsucces<t-ususscveusyeusssseseeu-wncus.e eee ate ee 633
Harns'v_; Birkenhead Corpnt(1976) j}@Ar =.2 53. EES ea erie rote Sette a eevee See 333
HarrisiveDe;Pinna (886) 5CAur ais Beton. |. se ee edd ements: ane ee ee 394
Marnis-viEmpress, Motors td (1983)) CA a... crteewete-uesepoaccscacscuceere
ote ee Ge eek a ee 599
Harnisgvalubbocks (iO 7iyeGAy (ols, cccsyeasucosteonycucy-ncutkeusu
osu uveasaeeu-t2ukyckycyoae ace Se eet 529
HatrisiveWatrenrandsbhillips: (VOUS) io a<c-,:cpsucusteusuclacicteste
he eteeee eevee ee eee 132
Harrisontv, BritishsRailways Board (198i) %. 4.1. a-ha) eee, oe ate feel eee 316
Harrisonivi Bushy (S55) rc bs ieee oysvscsuwseusuanoneiecueuensve Meee dS odesEee RO, Ae, Sa eS 521
Harrisonev Dukesofikutlangdi(i893) CASE aarmns sees cuctes-tes,e hee eee er ieee eee 76
Hamison:-veMuchelinghyre, Co Wtd) (USS) iaeiegeu-sucusveieneiers neues qevay--sss- cheer anee oe ee ee 566
Harrison) vaNatronali(CoalgBoardi(95i) MHL) see eee nc a eet ee cieeeeee 254, 464, 575
Harnisonivasoutnwark,and Vauxhall Water Col(89ill) mae scien eae ee 403
HatrodsalitdivaRs Harroduletdi(l923) SC Avg t eewa ie oxic, ei denen nodes te he chore okMEE ee 134
Hatroldiavawatneyt@lis9 8s CA ey ee cuceececces eteceeeergecuete cecusuess akeeus chests eeus eyueeaen ss ee ee ete 425
Harrow; Vondon) Borough) Councilv; Donohue) (1993), CA: =... ea. Se 6 ee 74
Harta ChiefiConstable: ofiK ent (1983) GRE: Sa: a ee et ee ee 101
HantleyavaBirminghamiCitysDistnict;Council| (1992) CAV arene een eee 630
Hartleyava Moxhamel 842) jac fap. ore aca, 4 creo arousal tones reua eey a R ee ee 67
Hartwell v Grayson Rollo and Clover Docks Ltd (1947), CA ..............
00 0c ceeee eee 333
Harvey v Northumberland(County Councill@003)R@AGee emer oso oe | ee eee: 599
Harveys vARiG; OF Dell Ltd) (958) 2esuscusyevessusseuteers
een cen ee a eee 660, 661
HarveyivaRoadtHaulace! Executiviel(l952) Si@Ae Sram a seaeto ome ere Renairan are. eran Sit
Haseldinervi@A\ Daw Sontltdi(19 4) SCAM aoe eseyee eaerretrcueee 178, 256, 343, 371, 372, 373
Hasselbladi(GB) Ltd wiOrbinson(1 985) KEA feeb eee ate ae cee ae eed ee SOO oii
Hattoniva Sutherland: (2.002); CARi4 fone > Peo eee oeAe ek 220, 224, 260, 271
Hattoniv, Unitedskinedomi(2002) SE CIHR @ mae. pais iene er eer ees ee 409
Havana Cigar and Tobacco Factories Ltd v Oddenino (1924), CA ....................4-. 130
Hawkins: vy Coulsdonjand) Purley, UDC (1954) 1CAGry. saan tee Leanne ees ee ae 383,8373
Hay. vauches (UOTS RGA We ours hei cssunutueacatyyasaceeatntacasuc.usyarcraeeh
xeeeeeta ae Rl eee Ee 615
Hay<(or Bourhill) vavoungi(l943) HI Rebere eee eee ee eee eatin 178, 188, 219, 260
Hay deniwallaydent(1992)) (CA. ciess.csuosscsasgencaneunin
along tds teensusicrnes Ss-<ec~ SOR Se, ee 616
Haydonivakent County, Councilli(1978) 5CAs eerie rccucaceaucuscue iene eevee eet em eae 642
Haynes anwood (935) CAL er pie cele caer niceieemerne 191, 218, 256, 327, 437
Haystead sv, Chief Constablevofi Derbyshire;(2000) 9 eee eee ee aie peeiee Dit BIBS
Table of cases \v
PAGE
Haywardsvanhompson, (1982) MCARe ential
awed ee) fient 489, 491, 532
Headford v Bristol and District Health Authority (1995), CA ........c0ccccccccccceecece. 634
Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968), HC of A ...........e000 --0-ee. 61
Heapavalnd: CoopetandyAllisoppultd (1940). GAGs as at ee ee: ee Fee en 416
FleathtivalKeyss CUO SA) md SAG oncx. spe eiacenavcosdcnwat setchesk yee LORD, Ae beer eee 80
Heaton v Axa Equity and Law Life Assurance Society plc (2002), HL .......... 624, 657, 659
Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union (1973) SHI oo6
Heavcnmy thendera (i883) GAC ty peti cscry See ee ee ae Y WS IRS, OBS SAU)
HebditchavaMacill wainer Gls). aCA x.y.y. vexotteter4-4enertstoen coeeokey Voreeeioe Ae e S21
Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964), HL ......... SSO MeLOON 237838"
238, 330, 632
Hegarty v EE Caledonia Ltd (1996); on appeal (1997), CA ..........000-..
cesses
00. eee 223
Mecartyavas binen (NS 7,8)smaltay (8718) eC Aten r eywns olrr-l-w eye rwscy donc ee an ane 87, 109
Heiivahankine (200!) iwCAN yir-scny.neyr set:kestelcnch Pvweieyciworanen
|Ree ee ce: 299, 596, 604, 606
Fell wae vaNaitchelluCUS Oia beck ct eenveck chert eck tie A RR el: Me ee eh 496
Helman v Horsham and Worthing Assessment Committee (1949), CA ................... 78
Helstan Securities Ltd v Hertfordshire County Council (1978) ..................-ceeeeeee 50
emnmmesnvastokeshogesiGolfiClubiG920) iGA Wireie 1 eeer eree ee ee ieeeeee ine eee 82
Mendersonmv@iendersons@liS43)) y.v.v.y-rorscreer-krrerictclerencbolavst
Rava ee eM
uines¥.1ee 623
Hendetsonkvellcntysb Jenkins cc Sonssandee vans (1970): blame. me sete eae eee 2S
Henderson v Merrett Syndicates Ltd (1995), HL ................... LSet 23 235 e37.
264, 317, 589, 632
EVeENGersOne ce CORVAWAllTams: GLS95) 5GALS pcr tescvspoue siercuttene ences esei nce oken ee uce acai a are es 59
Menleyavac amerons 94 S)5 CAG Eee ce Pek eet banner cee
AIC et 31
enwoodsvalarrisont(LS72)imasemec ts os ener ha eee een raheee econ tans Re SE ee ee 526
Heranger, SS (Owners) v SS Diamond (Owners) (1939), HL ...............0.-.00-. 262, 313
Herbagesvgrressdramy Itdl((@lO84) eC Amen ceteretc- 1tessreheveeeeteceyet ee raaicroee neh eee een eee 505
Herd v Weardale Steel Coal and Coke Co Ltd (1913), CA; affd (1915), HL ............. 41, 43
Flermimanaves mith UlO3'8 Pee persis Arend teens ech akrave ceeeae ee te 543
HSIN SVE BOYLen CLS 34) Omen eee RelcPaeeevee y a hawcxcrak a ruscchs eed ane ae tee ER eM es os 44
HemingaveMinistrysot Defencen(2003i) ACA pat. ace ae etek sine Ciena cee eee tee toe ee 597
Herschtal (or Herschthal) v Stewart and Ardem) ltd)(1940) Wank: 8. Se. ee ee 371
Heslop ivi Chapman’ (US53)), eicst.¥igosaressecc wshceoe force cAMP Pah tens. IN RU Teg pars tae Rees Move 546
HevicantveRuane iGO 9) Mis Wai varetee Mane toot reenero aiebe ea cee rtceda, Saeed hE Ae lake cotta a lanes 222
HewettaveAl Browns sransportaltdy (992) CAg may. ects. seers totreie here,oe iene eee AYP
Hewisongva MendianiShipping see (2002) RC Amaia nacre ce theerctc eee cient neve ete stares 473
Lewitt sve BOnvitin lO ON GAe raWevacteesceversterckc restromedocencsstraiseswatewerec teyrerelienemers rae cone ower eee SioW
Heydort waSmnith (1610) Pees weer Fes Pe BE hs 67
BickmantveMaiseya(lOOO)S GA rs fora Wester etna menerae ecto tes ea eens aah. ee Rene RSet ts cP 76
MIckShVabritishaltanspon. CommissionN(l9 58) mAs were. meee reetel tacts erel orate etter: cartes Bills
HicksaveChnefeConstabletoisthess outhay orkshire Police (1992) 5Hil ee sateen ee cee eae 609
Bicksevabaulkners (SS) sattde (US So) CAn yen cwcnevernckskejoreeercuotae
Lanevod Nea etckaict eek Neste ches Aretere 543
Hil beKyanvaldattome Cl SGA)ip p.ccevevey heretic ch chet Mn ost RIM NON Me Nes cp Dae des ce SEM ove ates 559
Hilder v Associated Portland Cement Manufacturers Ltd (1961) ................... 248, 355
HilliveChieti@onstableiof West yorkshire (1989), HI w o2 a ca-in 1 aiemucrereliete 182, 193, 209
Ete VasMOV.ettn (L992) vevsnencgenow.devcr- rexecxcra mentvenononcvenencistaeed van nenaten ete, Acta eee eee Beye raed 337, 451
ei Ay Sree NO eos a ena aah eee cn maa OMe OL. oem oe a Seach MicaSabai cis Ouch ec 591
paul xy" tinyeyorse (ORR) Soopcaoupca sacs an O OO OA MD Oo OOD OM SG nenicn ouch culate 76, 78
Hillesden:Secunitics: Lid vi Ryjak. Ltd (98S) eirem aireadatuetne. stolenomienetstcnn nen. eer tiaineeret tater cNelaten 64
ni ersava Aira VI ISti Yn (UO GD)e ersten kee rcncear ercloteeevar totsketchauciaratete akatata stele etetekeforre¥spthatensievsketoy late 442
Hindustan Steam Shipping Co Ltd v Siemens Bros & Co Ltd (1955) .........---...--005. 374
1SiheteR. wy, \Wiisari
rte <(GIOTp Seen nec er cen mtn me cea n So anor Oka Soc. olsOita 129, 134
Hiottevs London and North) Western Rly Co: (1879), CA: sie ieye omnes) oe ale te 49
reer
Hivac Ltd v Park Royal Scientific Instruments Ltd (1946), CA .............--..55. Sy, FAO)
Hoarerscn © ohSetareiele) fetetepsier tei eletees 445, 448
OnvaMIGA pine GLI 23) 9 Seepenpeasy sesexetasepetsrstensvehefelenetey<te
Hobbsave@ inline: do. €o Ltd! (1929) CA rector gerereterstemarets tctetorsterer Posey tact ye aeteal rete svete 534
Hobbs (E) (Farms) Ltd v Baxenden Chemical Co Ltd (1992) .................2000. 374, 441
Hodge & Sons v Anglo-American Oil Co (1922), CA .......-. 6. eee eee eee eeeeee 3/8
niches 7 MWC (UIAD) Foren acssanecacpooono aso Et ooUS bus OOGn Death oer map tooo. 162
Hodgkinson and Corby Ltd v Wards Mobility Services Ltd (1995) .............-..0.005. 138
Hodgsoniw: Sidney. (1866) ©.Sins siecle acerca ee ae 6 GIN Rigdon es ere ee Oe 651
Hodasongvabrappn (1989); MELO tnsec caved detereen Re vee ereeitetere tener. ehslstatelt eecventtctefeactelalcreroree 598
Hoffman-La Roche v DDSA Pharmaceuticals Fees
(1969), CA ........... cs eeseees 136
...00
lvi Table of cases
‘ PAGE
Holbeck Hall Hotel Ltd v Scarborough Borough Council (2000), CA ................ 407, 414
Holden v Chief Constable of Lancashire (1987), CA ............ amet! byes Jeerehedows
femcdld 581
Holdsworth Ltd v Associated Newspapers Ltd (1937), CA ............0 cee eee eee eee 484
Holey Sittingboume and! Sheerness Rly Co (1861) 5 ce be ea totes oe cstel ee 465, 559, 564
Holgate-Mohammed ive Duke (984) A, 2) soteseustosonesor-icic)-Weactopedetedetetsh-vcet-1t eee A Re 101, 102
Holliday; vaNationali Delephone Coi(l899)) CAvss sameeren ear Pie hiont imei tial 560
Hollins v Fowler. See Fowler v Hollins
Hollywoodksilvermbhoxe harmultdivelmmett (193.6) yet easetret- et treet te eee 389, 403
Holmangy Johnson (UTS poise stesso cainevsteneneneicbersueiseu ouayodaye herahe eee eek NRC NAN Meet Pee ome 106
Holmesty Bagoerdi853) iin daccacac.ckia. S0gGeo eke eee oR eee. oe BOE ae ae 92
RROLMe|SIVe Mat fereg (LS 751) eects iota taedace Rtes casereeepe aecae dedaveap Uepawebenswanedtereae lean Memes Dixy, PA, a
HolmesaveNorfolksC@ountyeCouncil(L9 Si) ieee seer ered ees eine aaa ete eth eee B82
Holmesiva Wilson: (1839)... nae acs cee cusses, se ae eet echo cen eta eeeeieiee oh atta 74
Holtyvebayners killinotonn (i996) MCA se, ccs se cccocs sevens bousnnitsbaveheyeregsecdeeycedteuenegee
eee eae DADE ey],
Holtby vy) Brigham: aaCowan (Hull) etd (Q000)5\ CAG ya ieracaere suc euseeuceee terete etek eee eee 287
Holthamivs Metropolitan! Rolices@omn (1987) eCAtee eres eerie ee eee tee 100
Homburg Houtimport BV v Agrosin Private Ltd, The Starsin (1999); on appeal (2001),
GA. Siecle kis Ly ROR A Ea). Sone eee eee 245
Homesv™ Bentincka(1820) SE xC here Sane eae eter honed, ae ke Ree be ee eee 510
Home Brewery Co Ltd v William Davis & Co (Leicester) Ltd (1987) .................04- 392
HomerOffice va Dorset Yachti@o) td) (11970), TL tes. eee eect 180, 193, 202, 203, 298
Honeywill & Stein Ltd v Larkin Bros (London’s Commercial Photographers) Ltd (1934),
CAS as BERN ce BRO A co Licks sousace icunpteeete OL OR ee ree or Pee 552, 560
Hook v, Cunard Steamship i\Coultd) (1953) cess eagerness ee eRe ee eres 45, 98
HopperiveReever(sl Pek niscce ene as beet ckom ham hive ieee eee aoe eee 35
Hornaly; Neuberger Products. Mtd)(1957) 2GARE. ise once aes ee eres PAI
Horrocksevaleo wer (OS) MEUILS 5 tb cre snaegcueysususekc suetauccudsaicuede enon ean eRe EP eee S14 SihSag SI
Horsfall) vo Thomas: (862) eters ad. SELL SE nk. sak Seo Joke See ee 23
orstieldevaBrowe QliOS2) 4cya. ccore ascrs eeucue o/s oucsscucueue touruebedeseycienetsustae aeeve eee eee 99
Hortonivalap ling Contracts etdi(2.003) CA os eveteyereue cut arcueueeueeyciei-1- ea ee ee ee te 470
Hosking va DeyHavallandAurcraft'CoIitd (1949) Ae eee Sone eee eee 465, 559
Hotson v East Berkshire Area Health Authority (1987), HL ...................... 283, 284
Hough valondon Express Newspaper Ltd (940) SCAL eee ieustach deen ee 486
HonghlandiveRers tow, (iuxunys Coaches) td (1962) CAN A ery y-usie ae ene ees SY,
Houldsworth v City of Glasgow Bank and Liquidators (1880), HL .....................4. 35)//
Hounslow London Borough Council v Twickenham Garden Developments Ltd (1971) ...... 719
HMousecroit sveburnetisl9s6)y CAC or remremcrn sierra eae 594, 596, 599, 600, 601, 606
Howard v Furness Houlder Argentine Lines Ltd and A and R Brown Ltd (1936) ........... 44]
Howard vi tarrisy (S84). 4s cert Ae octet sous eococasiZedeusy «covers muske eseveusie <a eNO ee ee ee ST 59
Howardsyv shirlstar Contamer diransport tds (1990) GAGE meeeenenner.) teeter a eee as 106
Howard Marine and Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd (1978), CA ....127
Hubbard ivaPitt(lo7s)atidn(osiGyiCA. | inahsiccleuscos aloe hae ee A. CR: 76, 417
Hubbuck & Sons v Wilkinson, Heywood and Clark (1899), CA ............2 0.0. eee eee 140
Hucksiyr Coles(1993) 3CAL maa Asta Be Baer eat dete esetce) ecini sere ee oe 265
Hudsontv Ridse.Manufactuning: Coylbtdi (1957) hase 5 eee eer eee ee eine ae 269, 565
Huchessy ordvAdvocater(l963) aHIb gama 45.8 tone ttiensskuc acticin se ee 300, 302
Hnghesiv NicKeownn (L985) aye purtryatuse ee eteueasscieucitueuca tena deusecoy ouchares eee ee 601
BughessveRencivals (US 8S) bil gene ssqetens eyletedea Pele Adenacuttetycuraticyncuestuacatr
Ae ee 355, 560
Hulley v; Silversprings Bleachingvand Dyeme, Co ltd) (1922) aa seer ane ee eee eee 418
elton: (E)\éa Convatvones. (19 TO) Fe oi eueuusunyensseamueye
dus eae t eS 489, 491
HumphreyssviDreamland (Margate) std) (930) SIS sayin. tle eee See era 3338
Humphries? (or Humphreys) ivaGousinss (UST7) ei air-sea ee ee 434, 436, 444
MuntiveDowmant (618) whaaged eyo cih ks eee be ae a. Ree ra eater ae eae 80
ldunbiwyeGreat Northern Rly: €ox(l890)- GAS Ly. ie * xd en coral eaters mies eee ee ee 332)
FhuntiveSeverss (1994) eee, eet Acas ieseeebcomray Zacacocuceuc ences AMO Ee eee ee 600, 601
Hunter Vv Butler(1996)2 CAS pti ROE So core aoe 612
Huntersy (Canaryawihartebtdi(l997)s Elegante cuentas 6, 39, 387, 389, 390, 393, 395, 398,
402, 404, 408, 409, 410, 438, 449
Huntley: Fvs WROrNton (LOST) Pe aS epsyunetiteasheasteue aencaspesescueyssouckeulvevecucu ere eee ee eee ee 149
HurdmanveNorth: Eastern Rly Corliss) 5GAgs sar sciieiere kiran ete ese ee te 397, 435
Hurleys ve Dyke: (1979). EU ion cp apes, Mois sisconae cesses bcatue tsgootaskaueleesicizac RE ee ae ee 873
Hurlstone vakondon Hlectric Riy Cos (914); CAW ater eeecine cee eee nea 558
Hurrelliw Ellisi(1845)csmciiat, if ee eek eS ee > SS eaeercs es. AOE 2 ses ee oor 70
Table of cases Wii
PAGE
Hussainivelancaster© ityaC ouncil (1998) n@ Ac 2 eee eee 411
Hussain v New Taplow Paper Mills Ltd (1987), CA; affd (1988) Hlsgter ee eeAe oe 603, 604
Hussienkv,; Choneshookakcam (1197.0) SPC te a) seni 100, 101
PAG Hp OANA NARA TDN, (LIA) oa jatcncccecesnteg a ht oicia ahclas ctsiaaadseyincslalca unset oy I ee a ee 67
Hutchinsongvah avidsonk(l945) Meee yes, sea es aes. ee ee 80
Hutchinsoniv Epsom and St Helier NHS Trust (2002) .425 0..s06. nesaead. cs sssees sees 287
buthevabioth (LOS) iC Aree, < irene Sep eee A ee | AES enki 492, 493
HINXtOrdgvastovaltaywardacce © 0};(1989) mA menea eraiiy15s) SR en ee 23'5
Eiviam siya beterson (MOOI) Wera-rect henson hyectvou) verte coukel ooterer an ae Re oa 486
ilydesv;MamesideyArea Health Authority) (981) CA). ....-. 4.4.4.2 eheee eee 109
Hyde Corpn v Oldham Ashton and Hyde Electric Tramway Ltd (1900), CA ............... 76
I
IBWsltdv,Coussensa il OSI) CA weerte. SO ee Od ge i ete cr Ae erste ane 62, 64, 66
L@igietdaveshatwelltGlOGS) Mee ws Savy vena 4-1 a aekaceeenscs sek ee, eos 322, 324, 325, 472, 575
Ibaraki Maru, The. See Candlewood Navigation Corpn Ltd v Mitsui OSK Lines Ltd, The Ibaraki
Maru
ichardivsPran coulis s(UOTGS) cccayas, ress kts. atescuavsve teeeaaveeno cute uation eA MANOEL EL a ore 605
Rifords UD CavgBealy (925) ihvsepspaccter cecesaereyevouceessesreis) ae. stse OO O 412
HisiweveSamuelsy(UOGSIE IGA oe oooh pono alsychcbogoi ohteeAeA Ee IAS EE Pee 567, 596
Illustrated Newspapers Ltd v Publicity Services (London) Ltd (1938) ............... 134, 135
Incledoniey Watson yQUSO2) hoa. Naar ete AU ed oe eee ee eck 120
Indata Equipment Supplies Ltd (t/a Autofleet) v ACL Ltd (1998), CA ................... 165
Independent Broadcasting Authority v EMI Electronics Ltd and BICC Construction Ltd (1978),
CA att dil 80) SLE AN an Soltscceyeycvo tad Malte eR ae See eee ee ae Pee ee aes 377
India (Republic) and Government of the Republic of India (Ministry of Defence) v India
Steamship Co Ltd, The Indian Grace (1992), CA; revsd sub nom India (Republic) v India
Steamship Co Ltd, The Indian Endurance, The Indian Grace (1993), HL ............ 585
initialtSenvicessletaivye Putter (UOGS aC AURA 28 2 ae Se sss acura AMER arene eee 171
URCeveMullents CoseMarcarines etd! (90) He ae ererces hae oo rks cine eh ena hee 135
UO Ae |orcronibetccr IDEA niclie goa 2 bee octen oOe nome ERE Leis hen aaa cognia 5 calo.a-on oe 104
TAME SHVALTER (CLSAA) pier ear outa ks voy kayWe vekete:wachcanacdc sfabsyevaticastiessd'abevai sisters) chee a stERE er 34
Inshore Services (International) Ltd v NFFO Services Ltd (2001), CA .............. 15770163
insnrancerComersvaloycen(ho4sy. ia ces eicuekcies124fucusyeuk ery dedi eynyayehapnsavatevep eetochatten beeen B21aes25
Invercargill City Council v Hamlin (1994), NZCA; affd (1996), PC ............ 231, 360, 627
Iivenigioumvestmentsplid avellacketin(1995) 5 PC a. gens 1s rasp eae ati nome eet ae 64, 80
Iqbaliva Vondon=iransportExecutiver(l9 73) SiCAN nc. cpa: dee ny oc oo ete = apres 567, 569
Iron Trades Mutual Insurance Co Ltd v JK Buckenham Ltd (1990) ........ DASE O0sROS2
lsancwachiet Constablesofawiest: Midlands (200M) accra no) sca ae ee ae eae 16
tsaacke (Onmlsack)nvaGiarks (OrsClarke) (NOMS) jer.cct cts ckccee eet) doer ee eR a eamnanee of cle 58
IsaacsnN) rd: Sons ltd vaC ooks (L925 iain eee t-te ett chet eos) bewebetene ge fees merece 509, 513
IslandRecordsiLidmexapi(l97S) SCA wenn tty cater t a<htaresiereiers tabs econ aelionet afateyaterodote 165, 457, 589
IsiandgRecordsebid valinnoaintemationalispic @l99S)) ways. in. t-te aaeer tsa eet 622
Issasvallackney, Wondon) Boroushy Council (U99T) NCA, Vea cree crcraiaicroe
etalon ier 459, 463, 465
J
URve Ov stony (999) Meare uw eet circled suka olenenn) cesta Mele neetepae ttt teen aea-oanee ee 280
JEB Fasteners Ltd v Marks Bloom & Co (a firm) (1981); on appeal (1983), CA ..... ME, SAG
PACKS OHAVaE ANGAINS (1.855) eevee leteeesea ryeaeebere elevotae evayora ayia abiaysy caer-¥snelevtevatNiettel onesie okcleviRoiel=f 496
Dacolieva Guittithis (1999) ewer tram eavessient cisions aoe) he yersseret svsssuay enerCreretcr shenecdenee een eal eeebs tet 574
Tereclng 7 ILC (HIOSW) BIL.) ence oe op onunet ose moo borm Creo GN SD OU oD OD hb omeopow ppp OS 426
Vacobsiva Marton Sopbartnensn(UG94) ie pepece revere eresveuecexcuenl-Fon-tsk-kexehsvetetonsta eter Marae renee ie 362, 375
Macobsnva Se wan (1S72)) sibling ye.cvcieye.s eyeonekeneuenar-voseyeruce weg-VovestoUedov-UckelotcRokele he-lctake etek uetERsashnayeta= 60
Jageardky SawyenGl 995) MGA Miser stk dei ere erie) ee elareya-1ey-t is -vsaViedabelshat 421, 422
VaMesmv EB OStON USS) meer) aetna eysleek me Reeete Ree) eeeesobte sea ot ingen uesatt SP)
Jameson v Central Electricity Generating Board (Babcock Energy, third party) (2000),
JEG, ws cro aosc mo on SABO we ats Mer roto ie cone neem nia oes Camo nn aaa 613, 624, 657, 659
Jamiesonrecec onvalamicson (1898) GAs gypsy craceciteek Ate ie-k days rsieietche bees -nenetete otovers ayh
Jan de Nul (UK) Ltd v NV Royale Belge (2000); affd sub nom Jan de Nul (UK) Ltd v Axa
Royale Belge SA (formerly NV Royale Belge) (2002), CA .................-., 424, 427
Vanvieraya SWECNE YAHOO) CA ary srctsysc2p hoysusvelcisl feick- Aauntetend -taiedetietes ce osucetoe Toe MeREEORsoeaovny olesar 38
lviii Table of cases
\ PAGE
JarmanvandtPlatiavalbBarget tdi lO 7) CAg ier teen tie ren tear tenoct yet Ween a.)ohtee 165
Jasperson veDominion MobaccorCon(1923) SPE Maes ae sae Mise seghe tee eee 154
JaahiPIweAKhbar COSA) eee wes Ran Pen eed See ee toe deere vere eee REE AR ene 354
JaundrillevnGilletesOO Gy) atest etataeae aerate enceed ecccary aya neon cteorhchsi nO oS ee rele Cee 453
FAV" SMG VATACOBINGL OS 3) RH A eve tae Wa tevsyaressbetarshamed sodeavennecesgchas aos:ahaa eee Ie ar bee a 129
Jebsonkv Ministrycof Detencex@2000)M@A) Fees eae aire eatin tas nde ene 190
Vettertesevs Duncombe {CES OD) Iw Peery strstr tay heres raraycainottec atcncmp ctses) fom tks tantra ect such Seen Se 494
Te tlorday Geer 97 O) RGA vere is ote PAS NO alae ccc ns AE LEE NE as 607
VSPOMMWS ViivitarikUST) arene axcesar oxenereerversites ofaraeonetev eeteaeanensae vi aechenar aha NT on ee 81
Venningsky Rundall (L799) esscvars crvenen evans enshanaye ort qe a Bc OO oe Ra eS teens eee tom Me 650
Jerred'v. RoddamiDent’& Sonustdi(l948) seeks xt ee teres costo an ones Manes een eae se eieyetebe dans 660
JoblingiveAssociated Dairies Metdi@l9S2)) HIG. ea hee gate acre tee eee ae clas 296
JoelevaMortsontl essay. ihre cna crnkoees eee ee wae ern Stake os Son rate nen Gr reac ae ee a meets 568
John veMGNE tds €199 6) CAM te. acta reno, oseacintre cin nA ert oon eee et 479, 533, 581
Johnsonava Coventry..Churchill international hid (1992). aac ete =n erent a aor 554
JoHAsSoneveDIproses(LSO3.) ECA hse Maa ik see oearoun angeSavspegndh ancyrms MMM TN et aa ae Me Se 68
JohnsonkveEmersonrand Sparrows (1S 7/1) Para itt ane ea ee te ar Poel nee Molt etnm eecai 541
JohnsonkvaGore: Wioodkdc1C 0.(2002) Mil a sepru neyererenne tautineie eee rea ona 584, 623, 644
Johnson. Vv Reasbtdi (U9 62) ACA.» oscversncrstenae ond svavevane ssa ceatona) ceanstshatcectend, oh Oot REM le oe 190
Johnsonuy+State*of California Gl 9GS) Ra Ae.cn ety saver Aeon ene Pan ede oe ae 204
Johnson (Assigneerof Cumming) vestear (1863)! ..5 208 a. aaa anna s stem aio eee teen 61
Johnson Electric Industrial Manufacturing Ltd v Mabuchi-Motor KK (1986) ............. 140
fohnston &.Co.vi Om Ewing: &. Co; (882). HL. sasssecncechores whetcsopts) soarorg A motets ee 133
Johnstone v Bloomsbury Health Authority (1992), CA .............. DANEE260 227S 7S sO
JohnstonervaPedlaniGlO2 1), SEVIER Sie SER hacoaec eat tieraa, Mech cote IGet, Ae eens ake,A Sea a 105
Johnstone vesuttonk (1786) VE x,Chysatiati(l7Si7)5, Ai woosreuseet cookexh potcws orn cnetnee at hetae eee 543
Jolley v London Borough of Sutton (1998), CA; revsd (2000), HL ................. 336, 339
Jolletiety eWillmeter Sct COU (197i) He Bees Ae eg Meo he MeN ea tothe. gh ene.A Ra teen Reeees 86
JOHESTVAB Oy. CELLS TG Eka ioe heave ek A rR ce AN, Ot RANEEr NY Acs Mca pert NE 251, 314
Jonesev (Carter. (USAG)! Paces steered waeders ta:de atleratac ancacharwnae Ah Aor NRO ee: Ae. RN es Be 621
JonestvaChapman(S47.) sede aman Ae ae TN ee SY Mee Nate Ree SEE 79
Jonesty MesMarchant{ Gus) neha nk Ales SY ee ive Sets 5 el Ee Re ae ER 5)/
JonestyeDumibrell. CLS Sil) aewevctey acne ere enctee tere romans cat oracoe hence cata eh Meee AO eee 120
fonesivekestiniog Rly: Co.Cli868)) GHPee eee ee ees ne sf ad AA eee oe 432, 434, 437
Tones Wel one su(L91G6) Ea ge se i A SA SIN oe a ee ae ee 497
Joneswvslhivox Quarries: Ltd) (1952) SCAG ae wage sera eee eines deena en east ae 308, 312, 313
JonestvtllanrwsStiWUID GLOW) Ra svavetancyosgsnct evapazied move oe eshoe Mme avMe Rceatoeoetieae MTR ed acta ae 409
Jones *vaMianchester: Corpn GL952) SCAR sca ort sehr eee ee. See 561, 661
JonésvysPollardi(lOS TSCA, Sees Sh ee ee Re LS 479
JonesuveSkeltonsGl963) 2ROG, Nee ae he Ai ee ES AD ISERee, SeM S 488
Jonestve Stroud “Districhi@ouncilh l988) mAs kes tee ee ee eee ee ene ae EI ee 631
Jonestvaswansea City Council (990) Ne A-Tevsdi(l990) SHICs ee arctan a ene a 547, 548
Jores we walkansa(WiynnpartezOdefendants) i000) 5CAR Rant.) ae a ae cena Re ae 318
JonessBrosu(Hunstanton)itdiy2 Stevens (L955) sCAs Gin anew cen aerate te rane eee 152, 158
JordimmyA Crum prea eee kf s ceWen. eres dated to pe RAR ale Ra eter ann eyea er 93
Josephi(D) iLidivaRealphewoodises Cos tdi (USS. cee ne ora acres eee ere eter 65
Joycer MotorsSurveys wht: (1948). ais. .c 1s amantec o arse aad ve a AN rah Sareea 139, 142
Joycon: Sensuptar G99 sk CAN a ocas Siceavaon hearse eke oes Sea eo Saks se re toe aoe 139, 140, 143
Junior BooksaiitdevaVeitchicConltdiGl983) Sri meee we faeces
ena eeae a ee SMES 5
K
Kee IMP Costa Gl O76)? CA RAE ahh eanBees cece He PAR RTE en A OTN Td 615
Kava Pi ethird sparty:) 993.) sosp ccsoanencestenertncton keteastanonskoncrsenha eanch nah SURAT Oe 658
Kev ssecretanys of statesfor the Home; Department (2002) Ay ae eee en ies 206
KR v Bryn Alyn Community (Holdings) Ltd (in liquidation) (2003), CA ................. 630
Kaberry v Freethcartwright (formerly Freeth Carthwright Hunt Dickens) (a firm) (2002),
CAD EN CSc BSR ede tiantechtesOtav oeaac a eROeEe OR ondoe ow ve RIE ann SR RE ee VOT
KahlerivaMidland Bankeltdi(l950) Ee Ree ep aaces era sterewe alete ree, SACOM en me oe 49
Kaliningrad, The and The Nadezhda Krupskaya (1997) ...................0.4. MS7S8H 159
Kandallay BrtishrAinways Boardi(l981) 0 S ae ete ee ed aoe a ee 612
Kanesva Newsborest: District) Councila(2002) siCAW a arceacestcrstceeences
tote tna et oe eae 190, 206
Table of cases \ix
PAGE
oe Georgis, The. See Virgo Steamship Co SA v Skaarup Shipping Corpn, The Kapetan
eorgis
Kaphinde Abbey National: plei(1999)), CAbne hn hee le osaitds hk eel eee 241, 554
Kartlex. Ltd ys Poole:.( 1933) a.c.:.:1,4 PORDAS A lars eee wat Acton st Slee de weeren ee? 51
Kark (Norman) Publications v Odhams Press Ltd (1962) ..... 00.0.0 cece...
cceccccceeee. 130
KearsiveKars (1996) }44RaGS nek autre Airy nee bde are h hoes 3h RBS AL eel hots 601
Kavanagh, Re, ex p Bankrupt v Jackson (Trustee) (1950), CA ...........0.-00-00 eee ee. 651
KayvavaAyishirevands Arran) Health Board(1987)) HL) e242 045250 +45 seen heen) 284
Kea vave IMWaeleilt (1968) eC Ansan eres ov tie ua nh eee ci ee a hain is coh oe! 567
INavetvaRobertsons(OO Us © Ann eyes Naren ete ae ee on 139, 140, 142
KWealeyays Heardi(l983)) ah yen. ese eerey oe) Ae ERGs Fines este pone DISS LT 340
KreanwveMeGivar (982) iCA te 88 a stent wus Bie snob eel Ais Sol rahe bores Pscents 134
INearm-Pnicesvalents@ ountyaCouncil(2003)5 CAwee nan ee ey ee en ee ee 253
Kearney valeondontandsBrightonyRilya@o (18,0) eee eee eee te ae ee DAS
Keating v Elvan Reinforced Concrete Co Ltd (1967); affd (1968), CA ................0.. 599
Keeblesvalickerin gall i706) Sam Sn oss, face Soptavsvo to ee ne 113
Keenan v United Kingdom (Application 27229/95) (2001), ECtHR ..................... 191
KellvgzveBastibles(l996)s CAten: Meet, tego wrens iee.. tere ke Saeki ee 630
Nell yavaO sMalleys (LSS9)Fee BSS PIS sO ae RIO FS he <p 520
Kellyavebartin stong(1833)i eee eee eek eens 4Ost. aehih titeien tee Dae eet S25)
ellVzvaslinlin og(865) meer. cave siayeu iiosineye eee eee xeini eee eee 526
Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd (1957) ......... 76, 391, 392
Nemsleyivalooti(l952))% HL Aare, Aves a.aeeee rn aoe ee eesti aerate eran 526, 528
Kenfield Motors Ltd v Hayles and Rees (RODS) eed coerce yctrcs Wekaseptic ae eee BS
Kennardiy GornyeBros SaC olitdi(9211) Hee eee nas ithe bE ee 434, 442, 444
Kennawayayve Lhompson (198i) CAs acoso ue eee al eee ee en 588
392, 422,
IKentivebrtishyRailways, Board)\(1995) (@Avty trea sae ee a een eee
S97
Kentoy; Grifhiths7Q001) SCA pry ati eval bey. ci dee So eee 190
Pe ee Re
Keppeltbusi Co LidivasazadibineAhmady(1974) PCa eens oes oe ean.eee Sil
eae
ei nents teed siol
Ket byavaRedbridgesiealthyAuthonityn(994)) fosciycecucccst-uovcucsucicesu 605
Nerrava Kennedys (1942 \igh serpin ttc cette eheh sin oe eee Meee Sec
498
Kettemanivelansel: Properties, Lid (987), SHI as aera ae: Ae ome aia nine raeiee
631
Khashoscivale@ Mapgazinesvitdi(986)) CAW as.) aa. ae ee ae ee aie Miramar 503, 504
Nhashoscitvasmithn(lOSO) CAS Fei cba scccx cote ceereettacectereedecctectere
secteh-t-be sks veka teen
e 171
Whodaparast vas hadl(ZO0O0)RCASE . A srarcctefed Seethesetotatacls (lecctsdctsleeucgced Pe aia eatenahe tos ee meteeeks aoe 580
KhorasandpiansvaBush (1993) 5CA) Pee as eecwecorcbkae et Ae ia nee ee Se 39, 438
Kaamivg MGNgidi(2002) mGArs Lees. Alec ae ce wee a ee ae Me 479, 533, 606
Keraminvel Ne tle(i995)): IC Am twee sree reget cagestence eornqege hey seueG Merete ee a 479
Kiddle v City Business Properties Ltd (or City Business Premises Ltd) (1942) ........ 419, 444
Kamberley-Clark Lidar ortisterling=L tdi (loo7) Rarer meet nee eerie eee 127
Keingevalehillipsy (9535 CAs Pen ees, teeters geste) -t.vebs ese ae eS et IN 255
KMingeveSmithy@l995) 4GAM eed aes Speer MTEL Y. eyeserty Shick aces ey ae eee rerio 268
Kincavavictoriainsurance Cometdi(1896) PbCire © eet nak tata ete en. tsleriense satevereteta et ehedaie 653
Kein ysaPreropativemmasaltpetres (L606) p-cewyar tetas raceme tenminer eka Bere etceier cnctevelen kre OS
KaneshottmvaAssociatediient Newspapers td (99) CANT iijcr crs eee netted teenie rier 520
Kink ve Ge gOnya LS 7O)e erie crete iette ccaseedesshoucseassacnsadescuousheweexcy
a eee ee
orehncra 66, 67, 95
Kirkham waBbourhey(lO58)) price a aces Vase mney ase etisalat icteeemeiree fay te iet oter tee 584
Kirkham v Chief Constable of the Greater Manchester Police (1990), CA ....... 107, 108, 295
Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd (1993), HL ........ 11
Kitchensv oyaleAimborcerAssociationy (L958) CAN reas. ne rtetnen(erneietdteveri-aey- fe vate 635
Ke, IMG (IEE): ob eaawoc soe cercta Poot Pep OER eR OU Rocca eee ec ra eam S06 tag od tp choc 279
Knapp) vi Railway Executives (i949) iCA oor .ncfeecesss-teveiet ioe ieieesy eietelsig teksbstehed- sisionet=s == he 469
|
-Sanfedits yet ekel|e e (SAD OAN Sena wannsuonuouseasooCguScaurasolnhacunoubuoab an ube De. 278
Kenrehtavalbomen@fiice s(990)) meyer terveetst rss eel rea-thetekeceieluesekee -nsuezoli hot-d-Wff Rene Nl 252
Knichtleyavelohnsy (982) §CAG errs sed-ttors toe eects tial ek tant fee ker eter tyes a 298
Knupffer v Londén Express Newspaper Ltd (1944), HL ........:. 00.08
.... sei eeee 489, 490
KondisivaStateuliransport Authority (1984); TIC of Agen eres te eteteteionens ole eile nie is 267
Ronski cravabGogdmantiitd: (1928) GAM semicrmite tya bhi ear icntaor ahi ceere ter nS:
Kooragang Investments Pty Ltd v Richardson & Wrench EA CIO82) SR GTS eens ae ter 126s 507
KeoursisaihexG924 MG Ag mae. getter reas Rete icicicici get dae ere eee 293, 653, 654, 655
Keraljavs McGrath (986)) gr-tterrstaers ta eave eeteieretet arYe tere reyescieiee thane eepeyetae 317, 580, 604
nyse W leecin (ICR go ocod pooacaneadee doe Tedu Pe nEe oreo ououalp rbd panhaa amomo Op 601
Reubachaveltollandst (1937) eek suena terre ek estat -nenteboxe joysletee -tetereie etmuenemeattcne tents 371, 374
Ix Table of cases
\ PAGE
Kuchenmeistersy some; Officey (1958) mee. oer. Ce eee ete ain. ieee ent ene 41
Kuddus v Chief Constable of Leicestershire Constabulary (2001), Hise cte 166, 580, 581, 582
Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) (2001), CA; affd (2002), HL ...61, 64
Kuwait Airways Corpn v Iraqi Airways Corpn (No 11) (2003) .....................200-. 640
KuwaitOil Manker |Co SAK All Bader @000), Al Fees eeReIe 3e Fees ee eeenanees, 146
Kwei Tek Chao (t/a Zung Fu Co) v British Traders and Shippers Ltd (1954) .............. 125
KynastoncveDRPR «(987) seit. scarccne Sect tine oe AA DAES ee. ae, SEMEN AD care: 103
L
invakKeadinssboroughyCouncilk (2 OOM) MCA yy ccenrae eee rennet eee 511, 541, 547
LE Jones (Insurance Brokers) Ltd v Portsmouth City Council (2003), CA ........... 412, 449
URC Minternationalv Lilla Edets, Sales Co (1973) 434 .ttees ected eee eee ern ae 13g.
Lady Gwendolen, The. See Guinness (Arthur), Son & Co (Dublin) Ltd v The Freshfield
(Owners), The Lady Gwendolen
WakeivaKKanige(167.0), Peat, ee ieo.s. dersvaucwsnaectewsetre loustedsoans weentaecenwacs4ephaNcus ACN od EE oR 508
Bamby, Camden Wondon Borough Council((1981) CAS wie eee etree ete 298, 299
Mamineswe PornelllI (N7053)ieracea ee aR hcncraonsc ses encesmonpontnee nck Face ea ee 590
Pampertavelastem» NationalkOmmnibusi@opltdi(i9s4) eevee eee nee 315, 499, 579
Lancashire and Yorkshire Rly Co, London and North Western Rly Co and Graeser Ltd v
MacNicol (918), esD C vires reve anveees ee tired ccricmerors Cmeaniece datas Ranaiorste heme een 57, 60
Lancashire County Council v Municipal Mutual Insurance Ltd (1997), CA ..............-. 581
Eancashire: WargoniCouvelitzhupb (SGI) eis sceceeeccnscsteese-eeeceyeceevceeen eA Ace ae Se.
Lancuva Dixons (1847) ime: dete A Ree 5 LP Se ED LE RNS SIUONE TEE 78
Banesveblollowaya lo S)a © Atben.cncncrsncnctexcrsncresekeschesereke
ene Seep ite Ree ee ate 91, 108
WanekvashinevRoohne Con Oxford) ulbtdi(i995) SCAR erent we een ce SoS,
Lang brook. Properties) Ltd) va Surrey, County, Council (1969) ans nae ee aniens erat OBS:
Langham v Wellingborough School Governors and Fryer (1932), CA .................04. 279.
Langridge v Levy (1837); affd sub nom Levy v Langridge (1838), Ex Ch ....... 122, 124, 369
EaBlante: vielkaPlantes (19953) uixccan-cevencrcsreneVerstareterctone
hoteeetotede tee MONET Ncere a PA ae 193
Larner v Solihull Metropolitan Borough Council (2001), CA ...................... 206, 210
Laskey, Jaggard and Brown v United Kingdom (1997), ECtHR ........................4-. 87
athamivsReJohnsonyand Nephewaltd)/(1913), CAS. et Ae, eee ee eee 336
Batimer vaAE Celta i(1952) M@ As. att) (953) SHE, e-s-v-eeysecetee ice eee ae 8he 25250268
WattenavdBraddelli(S Spy Aa 0 ogo eee Fees sacaeapcncironcussed ouptr hoa Wo Rect see ETO Pee ne ee ES 87
BaughtoniveBishopromsodor andi Mant(S72) veowyr-creiee eee ieee he eee ere ee 522
Paunieavenaslanus uildingyCoyerdi(lo42) (CAC waeeae rcenictenteeeenerehs teteaen ene ae ae eee ee DIS
Bavenderavall etts xl 942) wesc tev.eteview tescscrstatoos sosvayceseatsyorot te she cea a ne 74
Bavendersy Diamints itd (1948) srevsd"(1949) CAC a. Sunn. ieee ee eee. ets 469, 472
KavertonivskKaapasha)(t/aslakeaway.Supreme)s (2002) GAC eee tee eee eee 338
Eawaveblewelliyn(Ql 9062s GA eat Seer sectane sconce ones rete Wok, ots ievcd UO eee S11
Law Debenture Trust Corpn ple v Ural Caspian Oil Corpn Ltd (1995), CA ............... iS
HawlesssvaAnglo-Beyptians Cotton.and Oil Cor(869) Pans wee ee eee eee ee 518
Bawrencenvs@hiet, Constable ofsStatfordshire(2 000). CA aera a mien ee ante re 607
Eawsiveklormplaceitd! (1981) csc.ccxscc.0.eeed che eee ees AR aero RR ey 394
Wazenbyanve Whites LS Fil))Mewes clenwctapene euteeeowNoretosotesealenerexasesshshamencreec rans imac Ae ae Re 130
BeachivaMoneya (Watson jandiBlackmore)i (1765) )ecewssccy-uncee anc enters eee ee 105
FeagueraA cainsti€ruelys portswitd! ivi Scott (1986) Maine. ae sencer: eee oe ere were ke Seren ae 74, 77
Leakey v National Trust for Places of Historic Interest or Natural Beauty (1980),
CAS yack createHeRe Me ROMoe RMI MONON RONG eHPIERS REIS ERE 391, 406, 407, 414, 436, 450
Peame svaBraye (803) wh iccsyerstencrsncnencnsuene netomat hanevab sponse tatetokateasads vsevcearch Rgck Ray: RPS ROR eR ae RRAe 335)
eanse. v= Lord Egerton 943)) eins. se tiausnctotewoosnegers anctsreve: Soheauce eee oe eet ee ee 425
Beery.-Atkinsonzand! Brooks: (1609) eigen. excacaceenorenever snetenckancbansns#ateases |SEONG a ee Meee Is eee =Iy/
Weer Kaaley: (S69) Wit yehton ancie ciedenehensnonatevanagenswe Sonahawatanopctod Woaeageousney Aenea mee eee ey)
ee: valuancashiresand YorkshiresRivs Coy (1877) eyrseeetecceemnccnes tent aan net ne ee 624
hee: WaSheard::(1956)2C Aw, se8-k ect, Ses tech ee a) OPI ck, FO ae 597
Leéeave Thompson t(1989).6 CAV eee iced setter ee eee ee nF ZANE SS89.
Lee«@ioe) LtdivalordsDalmery(1927) merece eet eee arene enone Ee ene ee 151
Bee: Kar Chooiws Lee. Lian Choont (1967) RG seein teen ee tanh ee eee |ae 133
Rees Tine Sang vaChune. Chi-kceuns) G990) RG aye yeeer te eias sierra ae ene ee 553, 554
PeedsiIndustrial Co-operativessocietyaltdivaSlacks (924). fala nist ss tere anes) ae 74
LeemanisvaMontagun (1936) tcevecierctenceck aechancneetnctaesecdat meet narereaclceet ahs cee a ene we eee 407
Wer FanuyvaMalcomsons (S48) a eicrse ees. Aacoat recon neha ter ee rey way dicyrc Te 490
Table of cases \xi
PAGE
Legal & General Mortgage Services Ltd v HPC Professional Services (a firm) (1997) ...... 314
eightvaG ladstoney(19.09) Meats Giee IE). acl oy Acre hyele ett ce hg tia 95
Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd, The Aliakmon (1985), CA; affd (1986),
lalllo. Sn troid reas Ge Ain& JeeSoa ent oe es en ee I ie 179, 185, 228, 229, 244
enehy (Walliam) <a Combidcvatey.dont@l93il) Eimer aaa ee ree 67, 86
Wealvievre: vi Gouldl Gl 893 EO Ayako ete. Soc Risin a cette A Ee ee 178
Memmonkvawebba (i804) 5Ass attidy(895)y Hyscience
cee a ene ee eee BS UN@
emonpva Simmons m(lS 88) ayy pace chgosto oeces Ciersaeoie eee eee Se a ae 496
VemosavekennedyaUcioh) Development Conlidi( 6) 1GA nee 4 ee eee as eee 588
empricreavallancen (S/O) mnie eee mete cates coc ecco to ead onlya Moke Ries ekaure he 124
Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd (1915), HL ....................- 642
ester (R)dbtdiv, Sheilla(omshiell) iO) SC AWS yee ovy.. cs eo Ae ee ee ee ee ee 650
Petanggvac cooper (965) iCA® xpremiere ctscrci cs ercselus sl ences heute eeu: 2352 oS 2 RO2O
ILomnhs OEE IScere Rake (Coy (ISAM IAC on a Apamoascoe cmd hog sscudoueucanaopecces 320
CV Chava GOOG WANR (LS Si7) OAM ate tick isha clapactchelaieedhdawpaee e Pa ee hee ee Si,
Levy v Langridge. See Langridge v Levy
RewandiveBaselynClOOS) ares. We cere eucee ete mene laces cise Mea als ol od eae ae eee 9)
Lewis v Chief Constable of the South Wales Constabulary (1991), CA .................--- 98
Lewis (John) & Co Ltd v Tims. See Tims v John Lewis & Co Ltd
Vewisham_BoroughiCouncil, vi Maloneya(l948)iGAg © jae sel anne ei. eee 78
WewiSeSeLEUStSmRey (95'S) Reewstusyavevsruvaseyeterisivecen ckcker sR IN ee aa 78
Peyvevellamiltonn (93 Siegen ci Aveusicucictswegexsccackevaleu suchokeyacnevone ronnie ar and es AP Sa 532
Liddle v North Riding of Yorkshire County Council (1934), CA ......................... 76
iebiqussEx(ractwolmvicats@omltdavallanbunys (S67) cet eee eee 130
Liesbosch, Dredger (Owners) v SS Edison (Owners) (1933), HL ................ 303, 583, 608
Mithivebcasleyi G980)iC AG eee: oy seis wee ees Ser Ate eRe TIN are, evasion 630
PIGEON VME AtS OTe LOA OPEC ARE Sots, 5 ayatect earouasoroushesSyenche kecaskspoeeeeavinye seus Su UAcce oe RE eS IOA SE 602
illeyavaRoneye(tS92)s DC) ic satin aeeaeieee ae here ee WEN eet gee pee hae meteor Sil
Lim Poh Choo v Camden and Islington Area Health Authority (1980), HL . 598, 599, 602, 605
Iemma bricks veh cenchwan dipbareyg (LOOSE cueycvereeeun cucker eeeresecruskencue eauvues sheesh OPE Oe eae S38
Pimpusay-London Generali OnmibusiCorlitd’(i862)), Ex @b va as aera aera erence <tr 569
iimcolngvabanielsnGl9 G2) ICA orc ccysmrawati aceite cee te oe oes ieee oes eee A SHO TSulseo2
WindseyaCountysCouncil pvalMlarshall USS7) ELL A. eevee. ais tee erara a telnet 561
Pinekervanaleiomindusinies mtd (T1980) CAs 227 nce deride ed eee oh eae ae eee 470
Linotype Co Ltd v British Empire Type-Setting Machine Co Ltd (1899), HL ............ 483
Bronelaboratonespitdivs EvansuQl985i\i © Ame ecw -c.tresec etsy tonetoate keteaey slate cares Seeree oneceticeas tee Ny
Lippiattavasouth Gloucestershire Councili(999) CA ene erties 411, 413, 415, 434
Wisteravellesleys tall Tetdi(2. 002) Meine tS histo te Pie cichokeioictsteies
eecee ots -- See, sP2, s/3)
Wistere ve erryanians (8i7.0)) %Hla oe fcassucncssncusssucue see ayaorsnes sees ae Ueeven yan Osea raes canta 100, 544
Histersv Romford Ice-and Cold’ Storage Co) Ltdi(l957) pHa. cane. ol. dee ee ae 660, 661
Liverpool, Brazil and River Plate Steam Navigation Co Ltd v Benham, The Halley (1868) . 553
BiverpoolCorpnkva na CoehillecaSonmltdy (UOMS) Sirens -krragenetr ete tanelee ieedeuentat leet Rete 418, 419
Mivincstonemve MinistrymotaDetence: (1984) ICANT Y vnann.1-kenteterieta: <-rikee tere folie) iekeiied- 32
Bivingstone.v Rawyards«Coali@on(ls SO) s Elle eccte mics sentation ale eetatat Weert dy trees 81
WlorvdivaDavidesymercnCo) td (986) RG veya cra tele oe ee ee a eee 487
MloydavaGracesssmuthe cd (Cor (O12) PEM tire 2. rata tat -iaisy nepatt. atBleke keenon hte ID53n55 0, Sui
Lloyde:v West Midlands Gas Board (1971), (CA)... 2. cnn aee was Hee RE ee sy. DS
Lloyds Bank Ltd v Chartered Bank of India, Australia and China (1929), CA .............. 54
Locabail International Finance Ltd v Agroexport, The Sea Hawk (1986), CA ............. 588
Lochgelly Iron and Coal Co v M’Mullan (1934), HL 0. eee eeee eee eeee 177, 464
.......---.
Layee WP INA (UBYIBY 5550 506dunsoo sndddawoueDeecgoUDUOd TSS OUE OES 5ocan ad 6.400000 Om 45
Bockett wa Acacuv hanes: letdi (93S) rer wenerat crate ote tekesieutes onote pene ae aortas nee ea 369
iLeayel davange sylsehae (IEE) 1sNG, pogoececansad sunpootoubo buh DoohUraronn hoc AAfoobOunosoae 376
Lodge Holes Colliery Co Ltd v Wednesbury Corpn (1908), HL .........-.-.. 2020s eee 420
Logan v Uttlesford District Council and Hammond (1986), CA ......-..-.-.0-0-2020000- 659
ondoneArtistssbtdtvalittlen (1969) a@Amgmar facnitcts elactapivns aeleeteletel-/atettietatoo) totebstst 526
London Association for Protection of Trade v Greenlands Ltd (1916), HL ...... 521, 525, 645
London Computer*Operators Training Ltd v BBC (1973), CA ..........-..-0.--. 220005. 487
London-Corpn v Appleyard (1963) 2.0.0.2 60 nee ee te ee NN oe eee es So
EG @maGattermoles (Garages)! Ltdr@l9s3) 5CAmene, anecir euarr errr rr ketene eto oy 565, 569
London County Freehold and Leasehold Properties Ltd v Berkeley Property and Investment
Ore EYON (ON. Scene istic Co On petra cr Win. DLO) nolo bi obtain 125
rondonrerro=Goncrete, Co) Ltd. vy, Justicz,. (2500); CAl Pema. tern. See as 2 eee 142
Ixii Table of cases
\ PAGE
LondoniGraving, DockiCorltdvveHortonk(l951) Hse eect ercieeteeho ede ereee cree 341
London Passenger Transport Board v Upson (1949), HL ........ LO 261, 463, 467
Long ive Hepworth (lO G68) Verena 15 a at ican elena oem MONE Pe ny Cao denteet cmv sesseas 626
ong avesmithsonk Gl9i(8) WDC. ccireres a.we eae ova naa reed sonveu vee ncnsian PovsnaearewetansncReoeRE ees 153
Hongsvi lolchard:&sSons Lid. (00) SCAM, ook eet Ee tet ton Aer mena 630
ions denlivabritishy@oalvCorpni (i998) Say payer eros) eto Pelee aes etRnR eee 603, 604
Rongdon-Grifhithsvesmith (1950) iraeceaara ces neee ee ee A ene rere eae roe 518, 522, 645
Bongmeidiv: HollidaysCl 85s). 2..2Nesexecansasvouewsnentnewenewenexeuesen
dawSemeneiekecouctonsR nen Meee 370
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) (1982), HL ........... 146, 148, 155, 163, 165,
458, 464, 467, 589
Lonrho ple v Fayed (1991), CA; on appeal (1992), HL ......... 114, 115, 116, 146, 148, 164
KonthouplesveFayed.i(No i) ClO 91) y Secret. Sonnac aEAS SORE Te 159
WOTABVAR FICS M(US 7/3.) Aeaeekeedcech et etere deeatelesotte aesnov onesusrorsneh ror sewn I Ae Sen Te ee Si
Losinjska Plovidba v Transco Overseas Ltd, The Orjula (1995) .................... 23ST S
LotanigveG ross: (CUSIO) meg usecte passe wseractos serenswssterner stsnc ne rence Ee cand eh, UPC Poe ate 69
Lotus CarsyLidty Jaguar Cars) Ltd) (1982) oc ii one wc ee eee nena ateae) Late oeenetet sbRS te 161
Eoudon iwi Ryderi(l953)); CAv regen sos teats oc~:re ee Meh swonoteshcdonsy onopedanet Pedal tree Oo ee er mes 36, 78
Loudonw Ryder: (No.2) (1953) Fs SL ee eee Bae ae, PE. RE Se Sa a eR T3589
Boutchansky ve limessNewspapersslutd! (2002) CAN ie, aeet ay otete: «cette atee aay eee 479, 525
Koutchanskyiyv. Dimes Newspapers: Ltd! (No2)/ (2002) MCAm eer eae 492, 524
Kovernvabortioh LondonwAuthority (959) co,fever ar-norosaroncn-ponsp-nekoa snnohoxst-2e etevoea ete tenFeet ee Pee 304
Lovedayavs Renton (199.0) x aesesce-seccen eee eter ote eaic acecteete-vane ne HR cc Seco ottc 59/4)
Lowenyaw Walker: (09111) )Hwee ek iil, SS BA hat ene pene 336
How sev. Melford) \Gi876)),, FUE wsysis: secsonexerciseonpoecsdeen Sores ee AN Ue te A Ae tte ee oe ae YS
Lucas-Box v Associated Newspapers Group plc (1986), CA ................. cee eee eee $02
Lucas-Boxev News:.Group Newspapers Widi(l986)iCA esate tetera Neate 488
eumtleyav Gyex (853i) iiey 2 kerio tous eteis esdonne ree cam koe LSOP 1ST 1S3aeSS S760
Luxmoore-May v Messenger May Baverstock (a firm) (1990), CA ............-...0-005-5 266
Lydesve Barnard (1836)) e050: SE OE es He Gh PR 126
Bynchmy, niehite(l8 60) Qaeh oxsadveccesssven cron raaonaeesavenswaninad oe nieoans haut oeaaa cae eee a 495, 498
Bynerve Nicholls: (L906) setscpsicp2 He Sele ed, SIRO) SERS) BE | 140, 143
LyonvandtLyoneveDaily Melegraphyltdi(1943)5 CA) vata eye. ae eae ee 530
Eyons) ()r&sSonsive Walkinsx(899) CAGE ty csedrces acl forthe t ere arene ke ar oor 417
Lyons; Sons ’& Coty Gulliver (LOUS) MCAS Ze la sroxacsce thon oa et tee rece eam ee eee oe oat 425
M
M v Calderdale and Kirklees Health Authority (1998), County Ct ....................... 562
MBa(antadultmedicalitreatment)siRel(1997) CAS a ersa--narrseraciiee
ee eee 28, 88, 95
MTM Construction Ltd v William Reid Engineering Ltd (1998), OH .................... $59
Maberley v Henry W Peabody & Co of London Ltd, Rowland Smith Motors Ltd and Rowland
Smithn@946)ia ice FI SS 3 Se ee ee Oe DE eee 421, 586
M’Alister (or Donoghue) v Stevenson (1932) ................. 7S 7OM2IBS 36753709375
McAuley aw Bristol CityaCouncil (992) RCAD 7reae,. cose <r Ae as a ele ae an eeane 363
McC a(akminon) SRE] XG1:9 8S) MAL i svacenesraccnsvonaversvovorsneverstor
Po AM Rae Oe Saxo Ot ee eens 1.03
McCafferty v Metropolitan Police District Receiver (1977), CA ..................02005. 628
MeCainvkoodsslitdivaGrandiallseindustriesstdi(lO9ih) 27 nen een en. eae mene reer eee rare 374
MeCalliveA belesz7 61976) SCAG. Raters Aarts Rec AI et SPD te,Se A ee 74
McCamley-v Cammelliaird Shipbuilders Ltdi(1990) CAS hanes redo oe eee 604, 606
McCauley: vi Hopeu(Carryl athirdyparty)i(li999) ICAmie ns is ete sec eee ee, ene ete 280
Mc Gomi besvaReadg@lOS5i)s acdsewepapstapsttenccn-tencwotertectoxsasnevsscesysu’iticcnouey
Sew wokePeneneKslee SE ome ne ee 412
MECGombienveDaviess (1 S05) Beco ccsietiorsuonoxazevtoxexeronersitoreponckone
os So ot Ae era eee ee ee Si)
McConkeysveAmec: plen(l9 90) IGA soy. ke cencnenencrapcncncrinenshsscestexsirorapseanticsat
yet eee aeRO er nee 556
McCulloch v Lewis A May (Produce Distributors) Ltd (1947) ..................... 134, 136
McDermid v Nash Dredging and Reclamation Co Ltd (1987), HL ..... 267) LOS2 Mle 27D 62
MacDonald v Glasgow Western Hospitals Board of Management (1954) ................. 561
McDonaldis\Corpniva Steely (1997) cattdn(loo TiC Ae era. ae ern akbtn ern en een 480
McDonald’s Hamburgers Ltd v Burger King (UK) Ltd (1986); revsd (1987), CA ........... 141
Macdougallav Knight (1890) 5GAS ee a5 eh oeicescecncketersueencncnshe toeeet che NET Me, IREMeede re 585
McElhinney-v. Ireland) (Applications31253/96);(2001)9 ECtHIRG er senmve haere eee 639
McKarlaneiveBE iCaledoniatiitdi (i994) C Ag ery aie tr etonerche Paice arene eee 223, 224
MacKarlaneivaGlasgowa@ity, Counculi(2001) EAD © ceyeyncy-ieacencnencierel to ree ne ee 554
McFarlane walayside Health Board (2000); IL) Seas sere ete) eee 227, 297, 602
Table of cases \xiii
PAGE
McGeown v Northern Ireland Housing Executive (1995), HL...................... 334, 335
McGheeava Nationali@oal¥Board) (1197/2) mrs eee ee) ne en 287, 288, 470
McGowanaveStotts(923)iCAg. 29h <a e).. SAE LE a he EL oseetiath | ogre
neue elt oy 279
MecGowanevsStotts (1930) RCA Ses es coorccecraxnccrseon od ORR ERE a RA epee 2755276
McGrath v Chief Constable of the Royal Ulster Constabulary (2001), HL ................. 9
Mi Gregori, Greporyi (1843) gave tt oat iS ees de ecen dente ey Ay & ew 482
McHalety,Wiatsonn(l964) SH Go fete er) ane an ec yeh hws REN et)? le 255
MacievichiveAndersons(l952) 1C/A meer eye pence ete eee ee ek Se oe eae 423
Mcllkenny v Chief Constable of West Midlands (1980), CA; affd sub nom Hunter v Chief
Wonstablevofwese Midlands Policel(198il) SHIb maa eee eee ee ee 105
Mackays va Borthwicks (1982): a eseeey. hyMpnene ree OkSet panies I ae tye. yan 313
McK ayave ESsexeAtea HealthtAnthority (1982) "i©Aum ora ae ee ee 180, 217, 226
Mackayzvel orda(hS 60) aya s,aan tesetee ce emerson tens ee Ait os 2 By cecastel ee an Shes Salil
NICK eanh vaRMCIVOra(U8O)Pesosazsoconacokeytasyahszestatioso\susteyakoxsi
SENSO Nc RGR aieA Ct Ch og ete 58
MeKenna, vasitisheAlumimiumeletde(2002)i egayseik-cacaerai
ee ee 6, 408, 438
MeKernankvenraserg (93h) HG <0fyAvance acrucuiowiersieyd Aes ee eee 149
McKew v Holland & Hannen & Cubitts (Scotland) Ltd (1969) .....................0000- 296
MckKinnonindustnesiitdivy Walker (195i) PC fone. < cero. nyc Oe) eee 396, 422
MeWarennvabrads treet (lOG9) inc ncy-esuctcssecveusn-neasscl7
toe ee eon chee 304
Maran ehlingvebryor(lis42) Pewee piecebtictlexs.ch-telousisheacssuceeeteac
ceuagtacc AN a ee een. oe So
Mackcayevadiats (O06)! TAL xcopy anus stouscce-naesyavanl ret eet sd OPEN ee ates eB aS 122
MiEbcodtva Mi Ghies(iS4) mins. were oe niin See, fret Whe eee a ee es 54
MceLoughlingveGrovers:(2002) (CARS ints pat hee toe Cone le See epee (ace 195
McKouchhintveOrB nant (983) Sie sacri ein ene Breet een eee L831, 219; 220
McManusitv Bowes: (19338) 3\C A geet s. Rore seyret A. erent hls gee 52
McMeechan v Secretary of State for Employment (1997), CA ..................000005- 554
MeMillanevalordsAdvocate 199i) oben, teeteee nk ta. bid. Eee «Aon anton 342
MacMillan’Magazines Ltd'v REN Publishing Co Ltd (1998) 2.0220. sa. can de 141
McNaughton (James) Paper Group Ltd v Hicks Anderson & Co (1991), CA .............. D'S
NoNicholiveGrandyrQLOS2 iste fcpteyae tiedxeteucks Patent aitnaleaceibersdekedtncd
se ee De nee 492
MePhailive Personse(namesmunknown))(197/3))aC Awl steed acetate eer see Re 74
MEPhersone ve Daniels (M829) Meat recat ote seek earch ltt teetoee et TRIO AES LVRS ER 492, 502
Mc@urire vy, Western’ Morninea News; Co) (1903) CA cee cinta coltrarersrateene tise esstokedechotells 530
MeWihirter wiManning (1954) (ieee sserdnee isan! ace) tee elele eel ee ae Se 493
MatomvaA damsn(sli97,0) CA TeCARR An J cctevtn odes ahAcree |. baie PR ERS Ts.> od dicho lobe ohRegen 124
Mahesan S/O Thambiah v Malaysia Government Officers’ Co-operative Housing Society Ltd
(G19 7D) EP Carty: oe ed ee, RN PRES s jenerees: ) tegsey et perk, Leper! 12S e591
MatonnveOsbornes(l9 39) GAY gga cece sore oie eucseaetonsiepsucnetl
AA Pee ee ee. 276, 277
Mahon svaR alin (S98) 5CA ac cessr arvana nites nt EAA oe MAR eR Pah Met Eee ae 509
NanonuvoRahnedNo2) 2000) GA ee dea cakasurcves hte eren ce lokueucys| een were pees 511, 541
Mairave Woo0dsGlO48)RRs teeta. trate teeta eee eee gach eee eet Se ae 647
Maira (No 3), The. See National Bank of Greece SA v Pinios Shipping Co, The Maira
Maitland'vak teand JieRaisbeck andiHewitt Ibtdi(1944)) CA. oir. ciu-- piel pieiorercierena >--far te427
Makanjuolagy Metropolitan) PoliceyComri( 1992) NC Ate eae ree rites ried)enol Sial
Malachyavas open (L836) mwamr tester meter reisiiial oiteinrse ie. ee ea.gerata heer rotheeie tetahPet 139, 141, 142
NAlcolriavabroad bursty (97.0) ae errnmetrite tesa natetocteunerevioy. olseeted-u-betkc kotNee gerae sates 301, 304
IMENTS Ay Seubert eG COUNT SG Soe Pagan MAAR OO aU Go ee mOe ODO or oC Ot pe ma scm ean AA 88
MealtrootaveNoxale tds (U9S5)\insew eer eae ot:leieas ucusectntdsarietnastsachearscacicn-delsie
Perera aamicneh Teele 371
Matletiays Dunni(lO49)\ prea atey a tiats tack cise ete te ietmtetet ovnelaed - Gtior-epshstepsbaterst sensor ratatttet 3,115
Malonetyalvaskey a(907) CAG. © ae 2 Pcck. chab.pauetsl teases cvs ialeseenalelctiegel «ite tetater= dete ahah fedeseled= 408
Malone v Metropolitan Police Comr (1979) ..........-- eee eee ce cee eee 172
Malotiesys Rowan 1984 )) ermnee ants aeaiel feed We credarc etapa settones -terattenetetefotan etic erated chavatelien aialeke 615
Malyon-v Plummer (1964), (CA... cost cie cesaic nie eee veiniea nse2 ahalslealealtel fol leledelers olecrete s 612
Iv Elbe Wi Rapin (ISI)) aan coceeseels Gcotes aad ea nonoos anon Orbe dcoue oo ro Dom eecc 540, 544
Manchester Airport plc v Dutton (2000), CA see cece eee eee eee eens 79, 82
...........
Manchester Corpn. v Farnworth (1930), HL .........-.---- see escent 104, 397, 418
Manchester Corpn)v Markland (1936); Hl 2... 2. ae Se se ne lel eres olelee 261
Manchester Ship Ganal Co v Manchester Racecourse Co (1901), CA ............-..-545- 161
nietetera-' cetedey aleve idee tester -Cateuetiout et 50
Manders: vi Williarise(1S49) i tecgepree a teraiesaeaatatoneseie
Mangena v Edward Lloyd Ltd (1908); on appeal (1909), CA ....... 20... e eee ee eee eee 519
Mangena v_ Wright (1909), 2.1.4. 22921). 22d Seen Lake Lk tis cattle ee A S27)
Manstield vaWeetabixelstdy(1998)= CAGE Paleriqterete densclstensate 259
srr iciyt creretremiatae Gttioneistotclotateictet-
Mantonnvabrocklebanks (1923) s@ Actemem eer tt dea tere tells aeretarene e/taten eet - 27, 67, 68
xiv Table of cases
\ PAGE
Mappev: News) Group Newspapers Lidi@l998)" C Ameer Se eiSee |. Sever, Meets. 4. rset 487
Marcic v Thames Water Utilities Ltd (2001); affd (2002), CA ..2%................ 415, 418
Marcicivalhbamesawaterm Utilities td) (No: 2). (00M) eeererccruceneet ere ac renter oh pee 589
Marcrotuwaconspleidgyesimith (195i) CAs cose cess etctaxen stron eee ua atten he eee 78
Marengo v Daily Sketch and Sunday Graphic Ltd (1948), HL .......................245. 137
Mareva Cia Naviera SA v International Bulkcarriers SA, The Mareva (1975), CA ......... 587
Margarine Union GmbH v Cambay Prince Steamship Co Ltd (1969) ..................... 185
Marintrans AB v Comet Shipping.Co Ltd, The Shinjitsu Maru (No 5) (1985) ............. 318
Mariola Marine Corpn v Lloyd’s Register of Shipping, The Morning Watch (1990) ....... 236
Markt,é2) CouLtdiy Knight Steamship Coll tdiql9 10) © A amines. eetercrreet
cere teh mieten arn 646
Marriage v East Norfolk Rivers Catchment Board (1950), CA ...................2-..5.. 104
MarrinanivaVvibarts(1 968) 5CAG 3 icycnceectice tar Ste D ON ey es Sa 147, 512, 547
MarshallivaOsmonds (U9 83a CAC guy cewoyskoe cette teReomelteroaretekexe osctose soko oe 250, 251
Marston; v-Brtish Railways Board:(197.6) ie. Sesce.c eteete teres uc cacao ee eee ee 629
Martinis Childsi(2002)i. CA. «cwacescasvepcereans royeneney0sysyaitanopsncl eevee Aah UCU EA es Ne eR 83
Niartinrvili GE (1899) seG Aves of,clk SABA Rises ecsersinipopcucss dpe ty Oy Ae ee ee 425
Martin. v Porter (1839) tie nsx, couee SPA hoes ce eee Ot. ee TEE, Pe poneeante, Neen 81
Marntiney dremperley (L843) saenc.s sncsevspsraeszagssener aoiccteue ine ee ee i I eee. ETE 553
Maxtinuvalwiatsons, (L994) s@Acsrevsdi(1199 6) Sable oy wyeyeysy-wvvvy-w- ey Ane 540, 542, 545
Masonive Clarke 61955) Sublease AE @ ese Remake diasSoca edsdodeacines a ae ee ee rere 76, 78, 79
MasonivallevyeAutotPartsvofeEnelandeletd) (967) cae-scnmcucnsdcncacnsnetoncte Pee ee a 441, 449
Mason v Williams and Williams Ltd and Thomas:Turton & Sons Ltd (1955) ........ B23 16
Masper ve Browa (L876), Wetscnivcusrsoitucsercres chcuslosadcnea tycwei Puacaeda dySeer eee Ree Oy eee 105
Massamivaiiborleyes: Cattle, Food) Co G’880) CA a iaipey cece ee te Ene cua ier real
Masson Seeley & Co Ltd v Embosotype Manufacturing Co (1924) ...................... N32
Mastersive BrentyLondon: BorouchyCouncill (19 7:S8)mipeye a rey ier. et eee a Peeper 37)
Matania v National Provincial Bank Ltd and Elevenist Syndicate Ltd (1936),
CGAis Sattesi iano cee eee i Me pea A eed, 1 Rs OAD NAISEE We RIS,OS,Ate SER 400, 415, 559
MatthewsavaMinistry<oL Defence: @003)sihilmena cetera emir Arr Seer teeny Pete eee 639
MatthewsiveWicksr@li9. 8:7) VGA ms,sioe gonna:heycys8sosworives ooNewS chePouce nw WDE RN Pa 454
Mattis v Pollock (#/a Flamingo’s Nightclub) (2002) .....:. 2.208205. .20h 0. ed. 567, 572
MaxeyaDrainape:Boardiv Great Northern! Rly, Coi(i912)5 DO ay... cisco leer oe eee oS
Maxam sali tdivalD yer (978) 6k kxBisceseasuspcusidtootroree
teh feed PO Fo ey SON COP 133
Maynard v West Midlands Regional Health Authority (1984), HL ...................... 265
Maynesrainubty wLidavs Compatina’ Bank G@iO84) RG vrs eee eee ae 51
Mayoky'Seatont WDCLG19 08) rer ahs Sees Dee, SRE EE. A ee 398
Meadenva HarmeevallondonyBorough) Council: (1979) 5CAG 1r0--0- eee eee 159
MeahtvaMicCreameri(INor2)s (OSG) ania Res seen eh anes, ead ee ee 602
MearsavalbondoneandySouthiWesterni Riva oy(GLS62)) oreo cceenca-n-sen-nsecus eee ae eee ee 70
MedcalititvaMardell (2.002) SPIE sacs. tee ho taccwpes aerials hdc tech Poe ne ny Ac Rc 121
Mediana (Owners) v Comet (Owners, Master and Crew of the Lightship), The Mediana
(L900) SPIILS Sek... £210: pees oe. ROI a: 1S Rye RN OS STE. I A 70, 577, 608
Meekins-vHensoni (1964 \i-eeracenotek. Gece Ao Ps ee. ee ae es Ee 518, 647
Meering v Grahame-White Aviation Co Ltd (1919), CA ................0.0.0
00.0000 ee 44
MesosivaliiverpoolaCorpnn (96S) SCAG a vcerewsecucucucwavenenenexck- Womensxcesuet genspenht tea aL eee 641
Mehnre tiv Perry (97779) ace toe les. Sie weer. cee ocd sedeeoie)EME ee ee ee 616
Melhuishivs Clitfordi: (998) ere. cp tsigsineshat atic kheastow oaccotssre Avan een ee ee 646
MeL yam ivigRRe rds(1931) stay even oyeousae reise cette epcathe one erate eteey nda ee if
Mentmore Manufacturing Co Ltd v Fomento (Sterling Area) Ltd (1955), CA ........ 140, 142
MercantilesMarme Service zAssociationavalboms (19 1G) ACA i077. 2 tetas Meee eee 645
Mercer v South Eastern and Chatham Rly Co’s Managing Committee (1922) ............. 190
Meridian Global Funds Management Asia Ltd v Securities Commission (1995), PC ......... 146
MerivaleavaGarsomy (LS 8i) a Aetet sey ccaceca ico eure: oureceeeenn com ue ee 52659527, 15297530
Merkur Island Shipping Corpn v Laughton (1983), HL .................. 114, 145, 156, 163
MenliniviBritishiNucleanuelsaplei(l990) ive area eects teteatens, ce ont. Rr ey eee 468
Merrettty, Babb: (2001); iCAgece 32 cersiud,.. deceit Re ee RE eR 200, 551
Mernicksiva Nott=Bowerm(L965)s GAuse saan oe EO ee ee, es) 510
MeringtonvalronbrdgesMetalaworks aitdi((1952) memeemrreiner terete. haere oir eesti rete 327
Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd (1947), HL ...... 255)
Mersey Docks and Harbour Board Trustees v Gibbs (1866) ........................ 200, 256
Metall und Rohstoff AG v ACLI Metals (London) Ltd (1984), CA ...................... 124
Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc (1990), CA ........ 148, 159, 546
Metropolitan Asylum District: Managers v Hill) (1881), HL... 2.52599).
2eeee ae oe 417
Table of cases \xv
PAGE
Metropolitan Properties Ltd v Jones (939) eRe Speier et guyheh E Mra Rg elo 408
Meux’s Brewery Co v City of London Electric MightingyCor@l895)s CAI eee ee 409
Meyosveblecthicalransipission, Ltd G9A2\ 80!) bt). erelathle®. acseeuk? loeosiecoetel op Hews 75
Michaelivas picrssandsRondsltds (1909) me emer 6 ey ee ee eS es 496, 498
Michaels v Taylor Woodrow Developments Ltd (2001)
So.005 a pied Oi Dhre O Att Ree eS 3's EL Reet ae ee Ie 147, 150, 158, 160, 164, 165, 166
Mid'Kent Holdings ple v General. Utilities plc (1997)).4 wht i. eh s.asad eds RA 467
Middlebrook Mushrooms Ltd v Transport and General Workers’ Union (1993), CA ....... S3
Midland§Bankslnist|CoibtdiviGreeni(No}3) (1982), GA 9.2. 80) ee) Sees ee 146, 647
Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) (1979) ..................--. 317
Midland Bank ple v Bardgrove Property Services Ltd (1991); affd (1992), CA ............ Id
Midwood & Co Ltd v Manchester Corpn (1905), CA ........... 400, 410, 412, 437, 441, 450
Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918), CA ...............-00-e eee. 435
Mii anavaB asseyaGhO9 3) NiGAge wyerey ete, . Nek seins shui a sacs casas Oe RRR ee eS.
Millandives erckalnbesl: cde(O69) CAIN I tC Cgue hres kernel 5) oe) eee) Wo arene. oe 468
Milkerava lacksong. 77 @ A asi aspacesscntacpensnswitiyinseiminentsocAa ee 248, 392, 417, 419, 588
Millertvelondon) BlecthicaliManutacturing Co. 1:td(1976). (CA. ..... Ace ... peneeee oe 628
Millervasouthcofscotland)BlectnicityaBoardi(1958)in. ...cc ansnrosn-- ee eee Gee 358
VET LTT COTA VRE O XA (ALES S'S)) Ned caelenacon 5kcacpowcous eb 9:4 Oreseaecas evoeaves wopaioaaye chasesuauces ed UE Ae 130
Mil SevarAtmstrong ailhey Bernina S'S8) siblle meee iret: eee mee ee eosin eegreee 315
NAT SRV gS TOOKSTRCOMO IE ciscaninsecesecnsyspausrs) <0 sovemeuerwesys oe kA eb Otel ee A ®rst! 56
Miulnicsval xpressaNewspapersn(2003))) te Sr 6 ess scree tyes chycyiysutyacees ete ee 507
Mineral Transporter, The. See Candlewood Navigation Corpn Ltd v Mitsui OSK Lines Ltd,
The Mineral Transporter
Minister ofshealthaveBell ott Clo44y CAC 5, Meade ake de. ee ae; Ee Se Ae ee 3)
MinistryzofiHousingyand) LocalliGovernmentiwaSharp (1970). CA ...)...0 000s ose lee 237
Nim VEG OOH UOS ME CA io ge youscons eueventchat-aleyctenceeveeeuscutas
paar: Panaurneusn casPherae eee 363, 416, 425
WiHterEv weil eS (198.0) Wairiiltrame 4 Meee FoF, crvcucucuenctewonsnsyeacncatuouiecbe
te toe Oe Rea a ORT Sule
Miraflores (Owners) v George Livanos (Owners) (1967), HL .................2..00.005. 660
Mirasetstudiosva@ounter-Feat Clothing, Co Ltd (991) aoc yenne asus os ee 2 en ee Page, -ts)33
Minvanedvavenlenleyva2002))h GC Acvatiida (2008) aEla csevertersrsnycrusrcuevctient
cetera 3 eet. ey ee 453
Mitchelliiy: Rabemandihaberpbtdi(99S8) Ris eats cweter-itaecietete oe ote ie ted Ree ey Teen che ORs 485
Mitchellivabhinstekuddland: Renniesetdl (1936) mea or ete rent cavern Liew. 28 51/3
iM acelerst! ay hl Mayol eva¥e! (UNO PAY (GISTPAR CIN == hss sak spaces onas asec aeanea season oc 597, 598
MoclikenaveAtRievxollercca Come td (lors CAM tetera cucmsewianneiet ais tionets eleoaw Glarsiehonacienet aise 605
Mohamed Amininvelogendrarkumar Bannernee (1947), BC a2. ceecieccier ceric emcee eee 540
MoliianinvaniinistryxoteDetences (1994) a rgeyecapn-tevtns cedararepeverareyerseeoadtecttagh
mraiece eee Reet Sstare 607
Wollomva BB Ga(COGS) itaeiescercd nee fey Aer ware tae nayexeegery se yeaa see Btot Sea a 482
Monday slydex 998i) GAe Neb yp ioccn cone i enconstodecertuaiaiie aievaRrehstte nde Aiea sideclle eR B SyIL?
Mon KEV aWiakbeya(1935 GAC WN 2 oes Si leMeestacciartursanccisuchs &ote a? eens 8Oh.RRO ME 461
Monkseve Dy Kest Cl SS ON tia tain -aun deen acto eater ccs deecs mickcnatncr ions Sa en es AS RET 78
NWionsonavemussalds ital (CUS 94) CAD ee ease cecectewacsanessaannietentecetaronsysacs agees eeak eusenaies 494, 534
Milormiaaranrerny ie Aolivitxor [Opavekersroxorel WEitel KOAUUUID (CAN Sa opape ote neo subono ccoosecenodga
ae ae 554
NMontoomeny aves LMOmip Sore (LS 91) pill msmssysyeyeel spetey-b=taco iedae iced cheater ete mee sett 130
Montreal vaMontreall Locomotive Works: Lid) (1947) RG. yWierd.
. cle lent tots tase ee 555
Nioorcava Cana dianpbaciticastcamsiitpyy © On(OAS) iaee penersraws Fav-v eed -vav-use- ewe vaustere
reer ae 515)
IM OOE: We IDES 1D GUO SHAN MOI: Sha aon dans soo OR aC eae Mag CO oocro Oa d monte mae Toccoa 608
NIQOTEEVINGW SiO tathemiOnlametd UO 72 ai@Agmenay rwnras mie to ieees attest Steers teleta, eseale 504
MOODLE RVR OAStera ELSSG) Mer Ritter oeee terete teen ten aedenadeic) ctceetes eptstensureteienstoyers siiarsl oe)=m) 4 S37, Sysi3}
WEGOLCAVAINY HO XMOIS OLS 11956) iyGAriecsecnckee sterncdeuaelen CeO tee oh ey aU Nanale one eget ool eed =< Pps)
Moore v Regents of the University of California (1990) .............2-. 0-2 eesse eee eee.
Moorgate Mercantile Co Ltd v Finch and Read (1962), CGAY REE AEH? Bate Fe A 5)5)
Moralesava Eccleston (991) GA yee rier rele ane ielet-tedeaes cuert tenes creys) olnctleWafen-ns serosal Pes}).¢ sill}
IMGremvanWicaviers (L928) ii@ANis center teet micut te kor visite erslepersinis oteh-toys wecesy-vat-tsichateke Qeeher-eeere 512
Moreank valbinicenis(1SO3))iaertctec icereverie svaek-lvntt revevewewcete) Wend.y-ynuenanewstsus¥ ls hstsssbalrctedse-d-tataesyaterevel 481
Morgantv iViarqurs (1855) aint b ie oe teed revel apetefevetetete alefelis ale tiers eialevaels ste-lrectehecreeie is61
Morgan v Odhams Press Ltd (1971), HL 2... 2-000 e cee eee ens 489
Morganl vy Powella(liS42)ie st swckneters tesco -sses rere eleva bonito retin oretonsteict tefo alehndn leds¥s\iee tetany 81
Morgan Crucible Co ple v Hill Samuclesi@o Matd (USI) yOCAS Be seect. y=. hese ee. eeevty eats 235
Morgansivaltaunchbury, (1973) pI e rarer renee a)tee eievey elsy foe-tetel= says=)-Petee=Feuevere el i, Sa
Moriarty v Brooks (1834), Ex Ch ...0. 22sec ete 93
MoniartyaavaaM c@ anthiya (197.8) istwrec-tavetcucte teen teeter fetessearsseystyba teretiny nas 2 vera oieyabolerovnteache ctrl 601
Morison v London County and Westminster Bank Ltd (1914), CA ...........---+....---- Sf)
Ixvi Table of cases
x PAGE
Morning Watch, The. See Mariola Marine Corpn v Lloyd’s eee of Shipping,
The Morning Watch
Morrell v International Thomson Publishing Ltd (1989), CA ...................2.. 488, 502
Morrisiv) Baron. & {Eo (U9 18) 5 yeas Wonoars onaskerecacacorccok eer peer Alen Metals Seeman. Sect 624
Morrissv;BlaenaucGwent DistrictiCouncili(1982) CAwieeriy tae era ec Perera et retetate 454
Morris v Breaveglen Ltd (t/a AnzacyGonsiructionyCo)) (1993) sCAg cei merece 556
Morrisw@WeMartinuse;sons. td (966); CARR ae eae fer 8 tee ee eye. ee eee eee epee ow
Morris v.F ord’ Motor CosltdiGllo73)5 CAY Adee ee ee So es wee 660
MorrissvaLuton: Corpni (11946); (CAS 9. sccuacah Maree tec Stes SERIE Oe iene Ae ada ee 262
Mornsiv Murray (19911) 5CA marred ere er eens eee tee 3215 3225132'5.9326, 3285 329 52
Morris: v. West Hartlepool:Steam! Navigation’'Go) Ltd (1956)s HIT. sro te itll 273
Morrisey: Winsbury=W nites (93:7)... vos -eac.0 Stee SAULT Doe ee ael. Seeaen ees Qa.
MorriseMotorsaetdiv, Willey (v/a\Gyand WeiMotors)i@i959) aces. eee eer eee rare ee 131
Mornissv Marsdeng(l952)) a: sesccxcustty § eeteeysccoyoconcysucxononsssncusteerstetaokehead
otal cbe ieee ee 27, 592, 648
Morton-Norwich Products Inc v Intercen Ltd (No 2) (1981) ...................... 170, 582
Mossav iChristchurchsRib© (1925) Moy occucnow-scaveyexsy overvlecysueyseyousdune cowed ee ee eee eee ne 420
Mottiv;Shoolbred:QU875)), cccciccs.srace: Peeted ao stckats elele Seek re eT na ee NL, On See 427
Mousses Gases (G08) oe 05 jos0 czecsicrececavexencs Pee See Se ere oe eer ee 96
Niovav ¢Stoopy (G09) sisda Peensicersey Stet Ato: BSP A Soy shonesie duno lea ayes cance 389, 405, 407
Muirheadiv Industnalifank Specialities Ltdi(1986)) |
CAl Seen ss cere s etree DASHES 5
MulcahysvaMinistry.of Defencer(i996) CAR etre: scucietonie-.1 crevice eee ee eee 178, 639
Mulsravemn@ den. (591) iaserc ie cad ene by veces es SAL IR EG FID Me ee SW.
MulhollandsandsieddiitdivaBaker (1939) ipastrsavees nono sree 8 tlets eae va 449
Mulkerrms#vi, Pricewaterhouse) Coopers (2001) NCA. 235... sense eee oe 651
Miullardiv, (Ben: VineySteamersietdu(1'97,1) KA ae eee eae ee ree ae ee 472
Millett, v..Masoni. (i866), gy.sepwszwnt tee tee ore eee AU PET Ice oI ae TT, 124
Moulllingv: Richards (1998) seCA. bay 3h te dh ncsof Sarsvas vee Maran cues icy RO aN 259-03
Miullimer:veblonence: (LS 7:8) GA se rsetccc otinsheseemstcsexstel ato ence meterevaccion) ence eae ee 5)I
Mullis v United States Lines Co (1969) SEGRE). ceed b:Sete tees he ears By peel 342
Miunrogv. Willmott (U949)) esc s ie,<ocicpat cyan Rene 505 apoE ae:SERRIORS Fe, SoA rE 63
Munstergvalvamb: (1883) iCA: ods. tecni te ees vet tea ee raehho mees te iece e neNateeee 511
Murdoch) v, GlaciensMetall. Coulstdi@li998)s CAL yaaa ee kc pee) oe eee 396
Murphy v Brentwood District Council (1990), CA; revsd (1991), HL ....... LG, S183 S84:
186, 229, 230, 243, 244,
3555135755359 9360 S61E
363, 375, 462, 625, 631
MurphyevaGulbane (19,777), GAwsy ct uensarats tte ero hess Aor Pees SI 87, 90; 351, 611
MiurraysVeibastelndia. Con( lS 2ili) ies ¥voxocyspsncdxss seomsvcrsdetotwneyass ba ovweeeeeerenie ee ee 626
MurrayavillarmincayeArenavlbtd eosli)iC Avs germs exnrnyerst-«teeonaie dence ae ee 321
Murravave Minister ofspetence: (1985) ie asec en cae eee ok een eee ee ee 36
MurrayaveMinistry, off Defencen (1988) %Elligerua- 10 siiccs ry vPeeTpee cee De Re 44
Murrayavis huter (1:9'7.6)GA wa, yasctpiyvoneroisotos-ver anciensen ateacvescven one ooo AC ea ee eee 609
Muscrovesvabandelisx(l909) CA. sac: .ccaccrsctere acct reer heen te ee ae ee 434, 437, 449
Musurus, BevaveGadbaniGis94) CA. jeje) gra iaseatecs over uh eek © eee eee 627, 640
Mutual ifexand @itizens: Assurance Comtidl val vatted) 97) eip Gamera ry..) ane eee 233
Myroftavasleight. (9210) ai cecsravarssacticumernses-arcnraaee
6h heed Aare NSMEOE. Oats SO RENEE Dn ee 482
N
NWiEtdiva Woods ihe dNawalay (19779) Heer. ticigeie, cheuch-nc Genel nett eaten as Re See 161
Nadezhda Krupskaya, The. See Kaliningrad, The and The Nadezhda Krupskaya
Nahhas v Pier House (Cheyne Walk) Management Ltd (1984) ......................... Dz
INancew British Columbia BlectricuR ly,Comtdidios ln PC ance See ete 313
Nashivy Ely, Lillycd. Co, (1993) CAS sae caeye ae ayo WIN racy SPs ansyny.yss Pin tee oe Pete ae 628, 630
INasheyv. Sheents(1.953i)nec,actvee tape ese RIMMED sexe xauexsyaraeteveree siti me nade cans Ae ee 35
National Bank of Greece SA v Pinios Shipping Co, The Maira (1989), CA; on appeal (1990),
2 Ce ue aA a Rae Meme ne OER AS ARG REAR Mee eo els ns B. 317, 589
National Coal Board v England. See England v National Coal Board
National Coal Board v J E Evans & Co (Cardiff) Ltd (1951), CA .................. 24, 27, 68
National Phonograph Co Ltd v Edison-Bell Consolidated Phonograph Co Ltd (1908), CA .. 164
National, Provincial Bank Lidty, Ainsworth: (1.965) sHloae ae. tet ee nee ae eee 78
National sfelephone: Cow; Bakera(li895)) ievai eeck vee en Te ie ee ee 434
Nationwide Building;Societyzv Wewisi(1993)5 CAs sannaeenieniaesite tained 2 ees nee 647
Table of cases \xvii
PAGE
Nationwide Building Society v Thimbleby & Co (1999) .. 20.0.0. c ccc cece cece ccc eeceeee SiG,
Nawala, The. See NWL Ltd v Woods, The Nawala
Neate tVgHardinioi (USS) aie) se S45. seeryeet * cored). = eo peop fee wet a! 590
Nelmes v Chief Constable of Avon and Somerset Constabularyi(1993) {CAM ee ae ee 454
ING ISOnmVAINECHO Song (20 0iI)P. tas sore ake baa eeroe te ee a 8 Hil tu
Nels onty Raphael (979) iea Sees Loe TRe ANNE Shera haem
ath vocbereel guabuatll sears 558
iNettleshipmvawestong (Oil) CAT essen
ee ee Dee 92, 8240325
iNetzevabdes (946) Miaary We Races (geek aA. oes carne: StS
Gt PRA a, et A A 105
iINcutKo zenayCorpnkva Golden Iitds(1996)m GAMER. 1a: § te eee ee nen het on cas 1333:
iNewillesvalcondon: Express Newspapers Ltd)(19119)), Hb a4 44055 40 ene ene eae ST.
Newport Association Football Club Ltd v Football Association of Wales Ltd (1995) ....... 165
News Group Newspapers Ltd v Society of Graphical and Allied Trades 82 (No 2)
GION eee Rocka eae Osc Cee te nn aesaes oon teane On ALTE On ae 156, 162, 163, 426
iNewsteadivalzondon Express) Newspaper ltd! (1940) © AW ae ee eee eee 491
iINewsweeks Inc vaBB CE(979) GAP SAY 109, 3.8 geicbeornereet TE ates, J Bice oi Oe ee 136
Newronmvgieds erleys (MOS9) Mei eee 5 oePeds so oyareycslibacerseti-eungtien leeysuece:oyaberec eee as OY 650
Ne Chunkeuiveleei@huent Lat, (1988) Chee. hie eo see or ee ees 25, 275280
INichollsiveEly Beet; sugar Hactony [tdi(1936)NCAu.Anmee
so nan e eee 428, 577
NicholsgvaMars land (876) GAN Fey ey oh aye tesctaslcnone ceca selerevira clan eet ee 294, 447
Nicholson v Atlas Steel Foundry and Engineering Co Ltd (1957), HL .................... Aes
Nicoll Siva Bastacdu(USS5)) garg vcchsxsuetsxsecnekeyoy ve Versokoxdvoysot onchcpeor esesto ischac ts RE 2 49
iINvel diva ondon;andiNorthawestemeRlva@ on(18743) eases te cs oes ena ee 95
Niru Battery Manufacturing Co v Milestone Trading Ltd (2002) ........................ 121
INitciein’ Eireann leorantasysInco Alloys Ltds(992)) oe. s.6.csocae ees es Z5ilees Olean
INoblegvaH annisony (192.6) se)GCipyitee esr nna Oa PA viele overs e-s.. lon EAN ee 440, 448
Non-Marine Underwriters, Lloyd’s of London v Scolera (2000) ...................022405- 86
NormiangveAlin(2000)5 CGAgeet re cate & - erecoty a fre SS eal eR ern Mine) oe 626
Nonmankvahutirempublishin octal @iG99) GAC We ae i.e crs cae yar yatcletia cpeys arco ea ence nee 481
North Central (or General) Wagon and Finance Co Ltd v Graham (1950), CA ............. 50
DNORtH AEN EVES OWICeTIM AUS 515) asp cpcves suertewejorevananenésGoney oroscyGnchor'scah haxlsPerousier3cc: TORAEREI Ro RENIST ke 52
Nonhernsandblastingak ty, ltdiv, Harnisy(199 7) © fv Al ea eee ie ee ae ee ee 363
Nonthemimlenritonyjave viens elu(1995) 5Clot VAG ria acd yas Ie 1517,
Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd (1936),
Gee colt 64 Po cee ee Oe ERE of We hE A Re EA AeA tt a ei eho od as,Se 248, 441, 444
Nor ideo: senvices: Ltdiv, Ontanionbydio) (97.8) mee ami ee eet eee toe tera ne 395
INonwoodpvaNavanm QOS1) CA re Myeh ves os ceo ont) Accpity Site novaybss auth PEEP ee eens ee 558
Noting bani AlldnidceeQhiOiile)ieseat) tate beccety oncaseysy-onctotere rere yeredetats, eaves Seat cers as 558
Notting ham Citys Counciliy, Zam (asminor)((2002)5 @Aw tess Miscasd: teehee...keys 424
Nunanevas outhermakiva@o: (1924) CALA Eo iisei.-15 ohio beeen eee ete ere 611
INvbers (omNybure)bveblandelaans(lS92) 5CAR spent crag riety. tte Peart eA cpatale eeben stl chs) ke lorete 60
Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) (1997), HL ............ 627
O
Onleas winkeye on (AUDD), CAV Sesoosccussss eh mee oo tos ooo odo sous UG ads HE GO wb et 632
Makdevavalboyste tax(19S iIh)saCoA eee ee ashy psy Way ae ah oae ca phavay dices. clays apatite Phe arate oe 59, 60
(Opiate xe WWEMISCNOIIY). Soc cucec cosh so ss B 5 bon bo nabbooc ot oosnc cdo od op bbs Be mn mons 605
Ocean Frost, The. See Armagas Ltd v Mundogas SA, The Ocean Frost
Oceangas (Gibraltar) Ltd v Port of London Authority, The Cavendish (1993) ............ SOI)
@OxConnell-velacksomuGli9/2) saGAg wep weet een ean cet Nedovenpearedonien etoteiatetrrtaln tat SIG), Sil sy
(eyClroivare ay Wella (IGRI), IAG” ae caus cuaueooeby obocucae soonac sco csoaacneT SOs Sei!
@ddvavaleord Panlet (ISOs) Mera ews ete ee re oes sapere pees tc Rete a ta eee 516
Oertli (T) AG v E J Bowman (London) Ltd, William Page & Co (Turmix Sales) Ltd,
Farnsworth, Parness and Marlow (1956); on appeal (1957), CA ..........-.--+-+45- 654
Office Cleaning Services Ltd vy Westminster Office Cleaning Association (1944), CA; affd
(HOA, Illy Coperacsees Ceonoccnne nooo do neoauncosengeradhe oelouEoD oon kdabe 136
Ogwo v Taylor (1988), CA; affd (1988), HL ........-.....-.2.- senses PINS DR, BPA SoM
O’Hara v Chief Constable of Royal Ulster Constabulary (1997), HL ............------.5. 101
Olley v Marlborough Court Ltd (1949), CA 20.2... :2 ec cee cee eee ee ee cee tees 565
Olotuvallome Office (997), WAG eso tas as =eae creee 5, 6, 31, 41, 43, 44, 462, 463
O’Loughlin v Cape Distribution Ltd (2001), Ga. rap AEN ORE Pi i CRE 6 FER cn ot 5 SoeMi a 616
On Demand Information ple (in administrative receivership) v Michael Gerson (Finance) ple
(XKOIOY, CINE sige (CAWP Aslive So peo cere liane
cuore conc aeeseensucneaccecroo Sul
Ixviii Table of cases
a PAGE
Ontario Ltd (384238) v The Queen in right of Canada (1983) ............---.
eee eee ee eee 56
Orange v Chief Constable of West Yorkshire Police (2001), CA ...#............... 249, 327
Orjula, The. See Losinjska Plovidba v Transco Overseas Ltd, The Orjula
OrmistonivaGreathwestemun |yvaC onli) immer: sew trent, tales aia weytat ee Pelee deyretaroun eee 496
@ropesas Then Gl 943) MCA es.F pete tase tes satashe sss ae overes cedoxntucessiTea Mn Ses 298, 584, 585
O’Rourke v Camden London Borough Council (1998), HL ..............-0200% 462, 466, 467
Osbomisv Mhomas; Boulter. s&:Soni(1930)s CAG caeeiccspacccrseierednteut seve Sed eee 494, 495
OsbornsysVieitchti8'5Sip. essa cese-Peponcs stokek >.o-syvalShacks sede okoe eckee shsLelel chsMewes meiOncho eer ae at eae 3)Ff
@sbomerv, Londonsand North} Western Rly Co (1888); D@lae2 5 2. eer eas teeter 320
OrShea Vv MGNal tdi 2001) ciccs,ausotasssrnccotenere te Veen, eee a ee elec ener eee 491
Osman; v/ United Kangsdomi(1998) SECth Raaee seem ie cre ere t eee tee eee eee nett 210
OrSullivantve Willianish (992A waa). Diy Lec egees Ps Se eed Peete 50, 61, 69, 584
OiiogveBoltonrandy Nornisy G93. mses acy erica the cca oes wey ence Shonen dewealcreyee eet ee 359
Oughton wiSeppingss (USBO), asics: snssisicrccies Mexdeyhe ete seMobos. PARNER Meee te OR ett ce oR cere 590
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty, The Wagon Mound (No 2)
(LO GT) AAR CH Pe oS Verdc nd cera ites 252, 256, 300, 301, 391, 405, 421, 427, 429
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon Mound
(UDO) iP CS. init rains asnssckitpiacace ere ve ae ee ee: SEE ee 26, 300, 443
OwWenkv Ie wy (G72) 6ouicisp sesaisposradeiars,cespar secyeesnared dpcced saneeagucspameyoncudttack AA Soren oR meee cee eae 58
@wenlveNorthampton, Borough: @ouncil (S92) iG Awe cress estore cesses eee 646
OwenivsO Connon UOC) wera sey wena choco overs aiosich oisirssshh tienehtesonexaniovtapenrenex eee, MORO Ne Or 9)
Owens vebrimmell (L977) iecmucce eta aes Loe eee, stot Sere 3135. 319325
PLG Research Ltd v Ardon International Ltd (1993); revsd (1994), CA ...............4.. 654
Pacific Colcotronis, The. See UBAF Ltd v European American Banking Corpn, The Pacific
Colcotronis :
Padburysv.HollidaysandiGreenwoodvibtdi (loi?) aCAG ere cere aoe a ee aortas ie 563
Radmorepveliawrences(S4.0)) srs. ccxctcusess sas <nevcceectopcucuch nceouey cb SOkaeen nace Rt ee eae eee ee 52
RaccavelRead (1984) G5 Os 5, Bec: cedacecosesisinrekt hgh RONAN Ae oA ORT ce ten GANS NSP nn oe 3138
Pagesvasmithi(lO 9G) AW, Circ feisty tad eke:occ 5 at Rhee: a en ee 2205223
Page Motors Ltd v Epsom and Ewell Borough Council (1981), CA ..................05.. 414
RaincroaCotlidwastiNeots: Gas,andliCoke .Co)(1939) SCA acer eee ene eeeee 76
Raltreys vGreater, London: Council (i985)... ee ee ete eee 603
Palmer-v Bowman, (2000), Cir sc 5 a vse acoweyon suovcexepeyesterscteoesitenos oro ot.obvs oh tcl gk omen oe Re ee 435
Palmersy Durntordekord! (afin) (1992) 2s acne nce tele oe eee eee eee 547
Palmer vy Lees Wealthy Authority, (1993); atid (999) Si@Aginr. mn seeree ee ZNO 224
Palserativ ons sland Railroad |Con(l928) 0 a-2sny-aera-e
eae ee eae eee 187, 248
Ramplinvvalxpress Newspapers Wede(Now2) (loss) CAG marisa akseenersiaet-t
ere cee ere eee se 532
PaovOn'v: FaugYausloneyW980) OP Gis Sar. Bee. Maaco oes ee ee eee ee 163
Eapeave Cumbrias@ ountys ©ounci] (992) ee ret eae torra aie eres eRe Rice aires 260
Rarisevmlieviy aGUS 60))a fe ery Ro ye cpt citeA casaioyeraytureieee aseevice eoeae eapeee Rona oe es IM 527
Paris v Stepney Borough Council (1950), CA; revsd (1951), HL . 247, 248, 249, 260, 271, 324
Rarkenivi BritishtAiways. Boards G@l982)CAW. 2 ane ces en bloc Pae dvte ee he eee, SF 525553
Barker yi God inne(19728) oo ayasspsirovasenonencv-Roucweeoy syeveaslhg Sean eae ae oc eercrewa Ste COs Ie ae ae 58
Panker-Knolletdavaknollaintematronal tal (1962) ibllo ay cssetepete erase een eee eee 129
Parkes:v Prescott.(11869)) Exe @hagnat> o3.5...A ene oe ee eS See ae 492
Parkinson, iverpool¥Gorpnit(i9s.0). iGA. Saree ict: Cert. Rite Peek es 2511
Parkinson v St James and Seacroft University Hospital NHS Trust (2002),
Coa: Reva ah hi ee a oN a eo oR OR 200, 227, 228, 240, 241, 602
Parmitergv? Coupland: (S40) pn. Wi ekh.).isecustemeseeere
oct aa eo kee I eee 481
Partyevi Cleavers (977.0) SHIA e Bay. Sere iace | SOY ees eerie, 13 Se 2 eee es 603
Parsons: viSurgeya(1864) jie ht a8 Os) a R.AB 522
Parsons (H) (Livestock) Ltd v Uttley Ingham & Co Ltd (1978), CA .................... 304
Pasleyav: Breemangl789)) Sse ees see ee CRS clos es ORNS <BBcoeeme cehay ee 119
Pasmore v Oswaldtwistle UDC (1898), HL .......... R ) Be SAD ARRAS so © 465
Patel.v WH, Smithv(Eziot)sbtdi(ios7) ACA meee. ae eee eee A74, 81
Patrickuv:. Colerick; (1838)icj2)se Rah cera ee Pee heed ee) eerie Re 110
Paynex(Sammuel) y.Johnysetehelll btdk(2002)5 syreaepeeserennederere
ranean ite ecient ea 360
Paynenvi Rogertss (U7
9A i Sk sitse, Sentesteccmette kate Se aE eee eo erg 416
Peabody Donation Fund (Governors) v Sir Lindsay Parkinson & Co Ltd (1985), CA; affd
CEO SS) SS pops Stet atop ak AOS SSS tack Ste oe cee ae Oye: 181, 627
Table of cases \xix
PAGE
MEACHEVE VAAN (CLS 26) citvancnstenchenal Med: AMSO AD
sticosv-v
eT whe atersisna
Beat oft) don8 et 68
Rearceavasecretanysot State sormDetence:(1988)s Hil aa. ane eee ee ee 639
Beekave Guineys (1873) beonsctre eee ee Ae eee I BhGit Eo Te aa nie 1205121
Eemolds Wines Pty Uidv Elliott (1946); HC of A... <0. o ccnp as. @RaRL) Re 57, 69
RenningtonkvalNortise (L956) teen eh at See ttn ee ee MT pve eeda A cei ae Se)US)
Reniyavevimbledon UDC zandslless (S99) CA manera nn) Seen See 425, 560, 564
Pentongy Caldwell. (1945), sir. essy-tcrscr~. 0 Bek OA. AA, Bed, nn tee 522
Beppeta(Inspectormonabaxes) avs tanta (993) see eys eee oe ees) teas Scene 626
ever aava citlSs (L940) BPC wa conc Lee ho See bbe is 9 518
RETCTArVeg Al divaty (i953, esCAl wcwccveynace
iysecrer
TL el Ee
anstaisc
ee cug
ee 74
Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd (1924) ........ Sy
Rerkowskieve Welling tong Corpnl (\959)ibcs/adek ity eater ee Pate eee ean rat 338)7/
Perl (P) (Exporters) Ltd v Camden London Borough Council (1983), CA ...... 192, 193, 194,
356, 414
Retretiave COlinS a(lOO SC Age enn ar tr yas ee 184, 196, 198, 232, 240, 373
PekhyaVakKendnicks, Lransporteltda(l956) CAL was 4p ieeieinaorie one 434, 438, 446, 449
Pemyavoidney -Ebillipssc.soni(atirm)) (1982) GARE: eta. auee ys. eee eaten = 80, 583
Perry (Howard E) & Co Ltd v British Railways Board (1980) ..................... 58, 60, 66
Renvian Guano CoyLlid ve Dreyis BrostsaCos(1s92)mHIh eee. sei. ate Seer. Sele enacted tte 583
Peter Pan Manufacturing Corpn v Corsets Silhouette Ltd (1964) ¢...................005. 170
RCLCTSR Vals AGL
Al PNES SS))ll-g-necencecceaex-nsecwet eekakx okckseneo eae mensncny istced A eee, ee 502
Peters v Prince of Wales Theatre (Birmingham) Ltd (1943), CA ....................00. 444
etuex (ord evahleneares LO) pie m.s aay.erue sie: cetn ene ten ae A ee ee or eS 5)7
IREtLO rad ew Cmva Siniitbig(2.0.00) ieeye: exateresactey poycesvcesy-ckpercecpceniatouvoncnonewoh Pees eR 125
Phelps v Hillingdon London Borough Council (2001), HL .......... 196, 200, 201, 207, 210,
459, 462, 467, 626, 639
Bhtlipsavy. Naylor i859). te Ae ene Geen ieee 22 SPOT a SR Te Sweat EY 544
RRIPSave Will lammW Diteleyaletda(OSS i penacrschea sete e coi AEETE.weeee ee in ene Oran 258
Phillips v Britannia Hygienic Laundry Co (1923); on appeal (1923), CA ... 254, 466, 467, 563
ALOU PSeavg AQ CUI CL O43) agente weweescuenewsrarceh perry OrcAan RRUKGRGR raororer amdoriNapces cacao eee eT ee 623
NID Sav betta (WOOT)EsCAL cats cece ones sacacg coche reine er ona thee ef ee PPS 340
EAP OLE RVC
LLSWAN Ul SSID) wos concen kessactos Seonsvocck xcteesNorsersrekstane! Shed gh OO ee etc ne eee 5)7
DID pSave Och estere GOrpmy (L955) spaces. seseveveroreeeass attsrsea a Ge ee ee NP ec 336, 340
PA CKAnG Bye Sin tilys C13 O30) rage smartyontrentoasy eh crapct Skye AD Somohre ENS ee RAE te, Oe Sank, OEE ee 560
Pickering v Liverpool Daily Post and Echo Newspapers ple (1991), HL .......... 4, 460, 469
BICKCTIN GOavg OG GaQU Si 5:)wircwenrycrcucn venues schon-¥yates Hehaicwsitucce tarsecsFococeseckch otht AM SAAR SMU Ie et 74
RickctigvEnilishsRallbncimeenin galstdn (98,0) altlcae-a: eee ae eects ewer een eter eee te 598, 611
Ricktord velmpertalChemicalulmdustnies pplcr(h998) MHL, 2s eiiaa ees taceteteinn «Me ened conte 284
Bione yave blOliters bransportasenvicesmltGn lO Di) ekenrweete- ksh Reicknekte necro aoe oe 295,061
Pike v Waldrum and Peninsular and Oriental Steam Navigation Co (1952) ................ 44
Piller(Anton) KG vy Manufacturine Processes; Lid (1976) SG@An im, 423 yas eeeees Byes
RAlMOremv eelCOCKS S.S))bryraewincks seein oem woke oncwmenteesy sMarerays sPehawt ighSEMA UReMIReePORT RCRA OR Ree 2
Pirelli General Cable Works Ltd v Oscar Faber & Partners (1983), HL .......... O25: 627, 103k
Exit Var On OV ati (WES 13)) eaerencassavertatncnziensy stauedshafersecletckcnss<yards tN 2-1a AMR TPN OS ECE. Ss eR ORE MMOS ater 514
Bittssveblunt. (LOCA Dae. Bea. Mem ey Aad Set see A. We LOG) M07 32083255328.
Plangev, Chict Constable of south Humberside Policei(1992) 5CAy yy ya. esnrettt eet ee 101
Plasycoed Colliextes Co Lidiy Parttidges Jones 2 Gorlbtdi(U912) SD Gere rete eels eettree 50
Platform Home Loans Ltd v Oyston Shipways Ltd (1998), CA; revsd (1999), HL ......... 314
Rlatopkilmssltd wasperdeli (961) aCAcsattdy (TOG) Mile mee see.tre serv create iver tataee «Bere 504, 534
Playa Larga, The (Owners of Cargo lately laden on board) v I Congreso del Partido (Owners),
Marble Islands, The (Owners of Cargo lately laden on board) v I Congreso del Partido
(Oumens), IN Conuaso Glelrredieto (ICES). RIE osoetbogenounoed hobaG DobuauS Smamoo or 640
Playa Larga and The Marble Islands, The. See Empresa Exportadora de Azucar v Industria
Azucarera Nacional SA, The Playa Larga and The Marble Islands
Blessey,€o) ples, Wilson) (LOS25 ieracts cccatecue ere wieieoveoreo acted yey Semel puree retealcs eels 164
Plomien Fuel Economiser Co Ltd v National School of Salesmanship Ltd (1943), CA ...... 136
Plnmbav Cobden Flours Wiallsn@ opletele (US) EU sieve acta eseinee lore soeirente onesie cusp <osuanctaft et 569
Piiuranncie se Glibvanea GAN ON SaaS oes oecusacveouu: canoes cea oomro ams ONO oe cee. $23
Plymouth Mutual Co-operative and Industrial Society Ltd v Traders’ Publishing Association
iCal (HOU COON 7 clscha a nmin one sb Oe cutis Mua aanln tons Hactad ) cpaage en atom gee 529
elena lel Perrercs Som (IGRI RKO waacmoue se6 570
Bec good poecoonsaneneennencounete
PUAN se WEIS eyISPs oo Ne ot ora uiboonabee So nbine ton Pogo asesouPe cop ees unum oe 122
Bolllonixnan wy \Wiskie(IRS)) poavddoseoscuanooc eUsen oo Gpiagco 6cocaine linen ara 93
oooesods
Ixx Table of cases
XY PAGE
Rolly Reck(Holdings)iiple va brelfordi(@l98 6) © Amey geri rr eos 488, 504, 528

PontardaweyRD Civ Moore-Gwyn' (1929) See aed eis. eel eee ere che aie435
PontiacsMarina PtesLidiy, CDE HotelsMinternationalLid’(1997)ieery-14- 2 2) eit 134
Ponting tvaNoakesw@lis9A) ils srk aac eiaecc athe Moet OEE Si ncdoo ARS eee aPOeNS ote, ONS 441
Port Swettenham Authority v TW Wu & Co (M) Sdn Bhd (1979), PC ................... S12
Porter v Barking and Dagenham London Borough Council (1990) ...................... 253
Portland Managementslbtd vetarte (97/7), CA easy cece vse scious eet ene en aes a 719
Possfund Custodian Trustee Ltd vyDiamond (McGrigor Donald (a firm), third party) (1996): 122
EPoultonavavondonrands south Westermuklys © on(SG) me yercrsy vente a ee eee 643
RoundermwverondonsUndersroundsltdi(l995) ima. seusecsiersers eich acted ee etree wea 611
Powell v Birmingham Vinegar Brewery Co Ltd (1896), CA; revsd sub nom Birmingham
Vinegan Brewery) Co Utdiv; Powell (11897). HILL. ja aceeiee etch ete eneta taser tere tees VA)
PowellaviFalliCusso) ACA, Ve 8855. bette Sao Res, | ere td Aa e 432
RowellkvnGelstons (OMG) Yo ssvslors axcrensuss Sis spaMiesareeseea laseane anne onalcube peselcie teaasee eas areca 492
PowellkvoRhillipsu@’ 972) CAMS e eae ecto acre tithe elo eee ieee oe: Aa see ees 254
POwellbva Rees: GUS37) evs.ssi:deacns snanscaususceyensvesvevaiarsvape aera Meratetecete elect here a RRP ER eee teoee eee TnM: shee 590
Powelliv Streatham Manor Nursing Homie (1935) seem ete eee rotted ce me eteee cer DiS
PracticesDirection (1984). ..0.0.5.7.08 BOs 3 SA a ee A ia Se Soe ee 596
Practice Direction (Mareva and Anton Piller orders: forms) (1997) ..................... 587
Practices Noten Gli993 \ipe rae cd. cee eS ona rd Seen Se rary Od eens Rinse Sot eees 89
Rraedv7Grahiamy (889) CAs sscers wee eneren cones ysis ition Sollscauanora oor eee Oe eee a2
Pratt, v-Swaines(1828) b.caincnhae, ede Saale eee) enn i eer one 626
Prebble v Television New Zealand Ltd (1995), PC Renn RO SKA Soran neta Masts rt tcec 509
Prestom v7 Mercer (1656) ait oicsvsueceseddexyeo:ccnars estan susvousceusieveceiecscouslccs ett tamed meate Meare oe 30)
Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd (1953),
ONES otorn 3 fan A Oa ce coARM Ata ar ore Pond 5 Ae ee aaron 441, 588, 656
Pride Valley Foods Ltd v Hall & Partners (Contract Management) Ltd (2001), CA ........ 319
PridhampvelemelHempstead Corpa) (1970). CAy saan eee nie See eae ee 642
Printerstandsbinishers) Litdive Holloway«@l964)s 22 5.5. s 4h.t esas ote eee 161, 172
PRL OFRVA WAlSONG (USSG) eerie xche eurenevreitsy sucess susie wecocteoyo esse esate eek ae eee ee On ee ee 502
BritchardevaBineosi(980)srevsdulO8 0) CAM erecta) cnee-teescicheierne-
nena ee eee 158, 161
pritchardhy, JdeCobdeniL tdi (988) CAM eraser
eee nner 597, 598, 602, 605
Pritchard wt Post: Office (1950) SCA Rey s.r, 5 ee Ee ee ee 260
Proccasbroducts LtdiveE Vans: 64. SOnSMutdl( LOSI ee ak.sy vacua leer eet ee
135 eee eee
ProleaveAllens( 1950) cc. eee Aaa ee: wee eek aoet. erie. See AR Ee. beri, 4 ee 646
PTOSSETAVPE GMONGSTCLSSSNE pacsvsyscala vorcvesenceeseceueues sro r NeueYelousue eea9 SOONERS Oa ee
652 eee
Prosser(A) &Sonsltdty, Bevy (955) CA... atiagn re oe eva eae eRe Sey Ae
445 ee eee
Protheroeavs Railwayskxecutivie. (195i) Pe eeaenacterers tates eee eyeeietenen, sie sreaisic. aren
346
Proudman vy 2Allens(19S4 iis feo tee ecscscnh aoe OO eh ee AR aes SERIE >, I 95 ree
Prudential Assurance: ComMidi val orenz (LO7M)erroetricie eseae eens tae ener eee
159
Prudential Assurance Co Ltd v Newman Industries Ltd (1981) ..................... 645, 646
Bulinianaveawialtersninl Sen oni SOMe CA era acyscsus eventos euerstteset a ereasicr o)-1ee ee 493 491, 492,
PuorcellgvzS owler@1877). CAg*. {228 t t sea: Be serene tee ese es Ure 526
Purdewsand! PurdewaveSeress=smith (1993) secre craa ciice mia sicuatiis aeteee a one eRRPRCe Oe ya
Purefoy Engineering Co Ltd v Sykes Boxall & Co Ltd, Sykes and Boxall (1955), CA ...... SZ
Pursell svaHorn (838) scccnsias atk CORE See Sees hee cite Be nee a a ee ee 35
PwilbachtCollrery«Collitdiky Woodman: (19,15) SHI eee werent ieee tance) ana See 419
Pyer(VA)i(Oxiord)pietdivaGrahan: (2003) HI) ean aaereiyce re citrate iene seen eee ween 74
RymevaGrcat.NorthemeRivs Co(l863) 2x: Chee aeres preeieee eects Seen iene ins ee aie ey 612
Q
@ualcast (Wolverhampton) tidy sraymness (1959) syrlleneass ere tree eet ee eee ee 262
Quarman’y Burmett{ (1840) scien er roc nai ate tac cic em eta clement eaetere at ane ete S56
Quartz iHill’ConsolrdatediGolaiMinine Co veEyre (L8sS)CAe ee eee en nee ees 541
Queen Mary, The. See Bishop v Cunard White Star Co Ltd, The Queen Mary
Quilty; va windsor: (1999) SOM tan enact aA catia ten tr eee eee eee eee 482
Ouinlandiy:Govermoroteswaleside bnisor (2 ()02))a"C Ammer mre none rir t tn renee tee 43
Oumnty Eeathem, (900) Shee. etree thie er ane 146, 147, 157
Quinn’ Vv" Scott (GLOGS es Sata cee ne eee ee eee 2508256
@Oumtas vy Nationale smelting Comstdn th OG) C Ate te tree nce een ne ee Sy)
Table of cases \xxi
PAGE
R
BevetaIMAnte SS ie ease oa nett acl ta say nia ee eee Oe 120
HeeSTAL STIS
TETETTTTESTUUICICe:) plone ml pel i a ly Send dor tele a 86
DeaCUR OND) SO Nee a eee ence ii chic + ae ae tom ae ee ie 91
Rave ountllbpexe pukarechenmeister( 1947) GAUee cae ty. ee eee 105
R v Bournewood Community and Mental Health NHS sinuste xap mies (999) stl een eee 42
R (Wilkinson) v Broadmoor Special Hospital Authority (2002), CA ................-.---. 34
ReveB Ow ne OO4) Sill scireseme sec. grea tee er ars tan te eetee ed eh ete ere ee 87
R v Chief Constable of North Wales Police, ex p AB (1997); affd sub nom R v Chief Constable
ON INET Wales Police, Gx ja Mra (OLB) (A paaanagdadndcs beeen donb oaBens o
ogee 5
RavaClarences (he 88) 66 GRate nit meets meses en ee tern Gre et eee en eee 87
Ravecolohana( 200) eM
OArryertrr amhatct cors ter rho Fe eee ee oe ee 39, 40
Reve Cotes worthy (OA) meer rewory ec p eee etn ee hee eerrea aetet ee 35
ReveD aye S45) ear ee smn es oP er Mer tec RYN ha Tenet de oe ea ee pian
35
R v Deputy Governor of Parkhurst Prison, ex p Hague (1992), HL ............. 42, 460, 462,
465, 466, 653
R v Governor of Brockhill Prison, ex p Evans (No 2) (2001), HL ...................-. 41, 44
Ravectaiam-Camppelleexapeblerperts(l93o)) tn ae tae rater
seei nmeee 104
R v H (assault of child: reasonable chastisement) (2001), CA .............000200 0 97, 651
00s
TSE IRENE NEVEWC AEAe eI
ETYO ge ne a ran ir ele Rg te I ar elem IE le Ala panes te SO B7/
IRF RellBeTSS a Co sai are ea RR i ne ent sew i Aten aterree OC 54
Raval Vine Xam IN (OOD) arertewar Sed 1 ave es Se Ope Sr a Wee ee Ie eR, Corky ley rare 95
1S SRR TANGKO)rental GAUO) we Oy Neato a Pe IRIE a at SR ent le yn cr cey Seta mera liry Seiten Serer 91
Reval caderandabsc CiGlS25;) mee tes texsceehe teed paneer Lite hee cer EINER ee oars a eee Sy7
R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) Ltd: C-5/94
CCLQIELGN 8 SKed)!oS Ales ae aeie ea emma le bi Pe asin iad bene Sareea meeanen er 12, 471
R (on the application of Ford) v Press Complaints Commission (2002) .................. 172
REV AALINATIeCU S.G 51)a CNet pers ieee csp cosa teas aot AR Ree aisha ciseeaISNCaN Cartan Sues Dees ead citemen PRE 97
Rev BENCHATSOLN (C1099) eaOna Mitarny veiw ay dg tay WCC Va Son? Cueto pata gd ne ok had: 88
ISS hd RG aedSS ISVSS)ea hy, ee re een an Ue ONS Ee ae ee NST 102
JRE Sy RUTEPC 7A CE Na a aa oc a ae ee aR Rr ae RE ns ill
REV AISTESSELUE GIS 211) are Ra MRR Bar Pe SE RSE ahs Sesto a Se soa aH MO ven cobra Pies 426
IR ASE COREY GIA) aes De Bie See OL Es aa ee Ce Bee ae eee een ene 37)
REVS CEG COLL ES aUMION. (LS aly) caesar aceon suger celica auevegasctesauty sueyyc seven ss lgersatohotswea esteCalas lOeceiar 78
R (on the application of Williamson) v Secretary of State for Education and Employment
(C2002 rathdC O02 eg © Nemes rte arenes Becars risea teesrisaeacrale sonai cotsFoire aay5 cep aReROakey egies 97
R v Secretary of State for Social Services, West Midlands Regional Health Authority and
Birmingham Area Health Authority (Teaching), ex p Hincks (1979); affd (1980),
R v Secretary of State for Transport, ex p Factortame Ltd: C-48/93 (1996), ECJ; apld (1997);
affd (1998), CA; affd sub nom R v Secretary of State for Transport, ex p Factortame Ltd
(INOS S)E (UIS9
9S) aN osretrace secon Seceye cA ce SieVeis farstiatar sa sanenahaeherssntg toad atopmaae Seana ciamags 12, 471
R v Secretary of State for Transport, ex p Factortame (No 7) (2001) ................ O25
[8 ae NEP) oCUN gS Soi Gals Sens Seas aon eIomS Momma ooo ee oe eu oe ores 99
[Rep aneranarel SCY) OY: aes aes BO ae eee Can mn OM Eom uc emo niece cdc. 424, 427
Raye TRECeT CUO) iGi» oma er agra Pacis Gee eo ron n hormone a AS me taille 'sont 88
Ramya e he ta(L9G) eee rapa atetennr ee mes, ere ayre,one caer bossescake terskskseskeyapeete atoll rea 101
Rae Wii GIG Acie SAG eae ead oto meneaind sees syoooeuuodc aster cetn mae She 426
R'Bpeoliciestat lov dusevebutlen (95.0))ces cee ycepas es teeee stented rae See Re oa ns 627
RGA Cora wlnellerah(WICES) CW AaAn eM ee dodo dtudcansameaanan
aoancwoecna es 166, 458, 589
copes emOmo ced acc 548, 571, 581
Ravere we" ier Oran (ICOY elRN Gee maeananaaadsocaccres
|
Radley v London and North Western Rly Co (1876), HL .............--.2-- 220+ ssees 309
Radstock Co-operative and Industrial Society v Norton-Radstock UDC (1968), CA ........ 412
Raceetts vakind aters (US/.3) rvs meee reer tepals tyes oleicreelae eeeeee) puter oie iaeecceegsan sea 130
[RETNA UNSERE Lal ANOS COAG” Sg ROME Ne bb ode dad ob de oetoacec caau ere 220, 282, 298
Railways, Comm vo McDermott (1967) PG yo: ngs ee ernest ae eee cs cick nic 354
Railways Comr v Quinlan (1964), PC 0.2.0.2 eee i ei ot he ene ee we 358
Rainham Chemical Works Ltd v Belvedere Fish Guano Co (1921), HL ......... 433, 434, 436,
437, 440, 654
Ratt cavalleciiiy (2.0.02) masses sere arteries eee ae nee Tau ce ae ee antl SOM)
Raja (administratrix of the estate of Raja) v Austin Gray (a firm) (2002); revsd (2002),
(iy emer eiaapi ee poae tee h Ok cA ie ra a a RR oe o> SFni ete Sea eee ETC 183
xxii Table of cases
\ PAGE
RamseyavabHartleya (i977) CA peer. 5 5 5 seh fideo etiela ercpardis Groca ayers aresoueharetas sch ay eee 651, 653
Randivs€raiga(lo 9) 5CA ge SHI, 2 oe cheers: o\san elsrnicceid oceania eaaene so eae onder ceerern ohne AIRE, GRE. Sees 569
Randall valarrante(1955)s CAM ee Satenne en Rce ee ede caeones Guha emenepe tuecerca wagensan 76
Rantzen v Mirror Group Newspapers (1986) Ltd (1994), CA ................ 5, 478, 479, 533
erie 7 Ione Ierneng, CORE) (AN 25554552595 7sccusno dahon te nb: tnnme becde= 389
RatchitfivaMic@onnell (GioOy CAG yrs Tn aa aherinhcley sycota altos exgione, cc EEE OG eis Sey, Bs
Ratcliffe? vaEwansn Us 92)) 8 CA paieents cee NeaRrciiy coc renianciteveuces: aucyed aay aneherskepers 138, 139, 142, 483
Ravenga: Vv Mackintoshiv(lS24)i8 Qik it sahiece acachare cree mut lekontes achAe aetNeier tears arc ee 544
Ravenscroitgvercdcnakticbolacembransatianticn (OO) CAQ ss ep eterteiete eter rtee teens 222
Rayner ve Mitchell GL Si merssiekorte eo ret aicies ors oiayace ove ass pyarayseyay-¥ saeco aarha eer ieua eee a 568
Razzelv: Snowball (i954) aCAs Rt Bee. sae nee rts aestoic oe ee ee eI BS IE Rs ae 561
Readiv: Coker (S533) a eenen cleerate ome oct ec ces onerey cuoyietiedive araholees, dhe rebone te oeokskal iseak Copiers 36
Readiv' CroyGong@orpns(lOssy iis ca fc ckqacecanareteevane menera caw zc eerel Neyer pee gees ane cEene 371
Read v Friendly Society of Operative Stonemasons of England, Ireland and Wales (1902);
arte deO02) RG Ae ee seers ace nigocgosn strcvensuccer cnavech cnnzantenpemege taste saree hae ein eta oes 152 SS
RE AGEN APLATIISSY(MODS)! 7coxsoicn pe Cucnch orcntssensees sxetes Seeneteione. oAie tetoySeeirenes Okeseam O eRe near ORSa Sees ere 598
Read v J Lyons & Co Ltd (1946), CA; affd (1947), HL ............. 366, 372, 389, 408, 432,
433, 434, 436, 437,
439, 440, 441, 442
Rebecca Elaine, The. See Hamble Fisheries Ltd v L Gardner & Sons Ltd, The Rebecca Elaine
Reckitt & Colman Products Ltd v Borden Inc (1990), HL ............... 1237S as selss
Reddaway: vBenthamiHemp-spinning: Co) (1892)5, CAs ee. a. es siete = aie ile 137
RedlandsBricksslitdavaMorriss (1970). MELICS ae ee nooooicuenercnshaiceueccusperntto
denne dace trees 588
Redpathavabeltast-andsGounty Down Rly. (.94i) moa een ares eee ett tere 603
Rees v Darlington Memorial Hospital NHS Trust (2002), CA ..................--4- 227, 240
Reeves v Metropolitan Police Comr (1998), CA; revsd (1999), HL ....... 107,, 1095 190; 295;
S16h 31953205327
Regan v Williamson (1976) ...... RTE Be eiloeoe feMain ais eusssensyatle aiskclin SereNpecacp apy LES cee aes 616
Reidwvaairbanks@l853) Men eae sens Ach beers s cxa Sasa amas Wace eben sera a nes 63
ReidavaRUSHySALOMp KIS! GTOUP PlLei(LSS9) CA acess ctapercl a1enet hetayekotat ayaa ls apse eee arate 271
Reliance CarRacilities etd veRodine Motors (1952) eA eas pe eee er Paves 50
Rely-2-belll Burglanandshire Alarm) @o) td! v Eisler (1926) ie 1 seer eae eee 161
Resolute Maritime Inc v Nippon Kaiji Kyokai, The Skopas (1983) ...................... r7
ReyillivaNewberye (1996) 7CA Fenestraeet 0, Wile Oss ile, Ssaile se, Se
RGVISRVCOTItny SS O) ta. Seto pccme a cacnseis reece eter deeae erarea eee EM RR tere cece eae rete eer pl
Rey v Lecouturier (1908), CA; affd sub nom Lecouturier v Rey (1910), HL .............. 130
Revinold hve @ lanka (10725) (eaters. eee tte Ae ce cig cia ores hastens deep coma cee eran oe sehen ee 73
Reynolds vakennedy (7 AS) a wergat ege tecerex ere erecascatenne acs heaede eteheee keRRS kek To sere RCE 542
Reynoldseve Metropolitan Police Comn (1 985)5 CAve =e ae ee ee ae see we ete eee 541
Reynoldsives bippinesrederationmletda@lO2Byer er-ryae yaya aria eer ee rete a 147
Reynolds v Times Newspapers Ltd (1998), CA; affd (2001), HL .......... 478, 523, 524, 526
Rhodestve Monlesi (Sosy CGAg mire ety ate eres, seavtio. ayers oxoney aucun'orctercrcksholor cxonanonsain CA Ge oR eee IIe 62
Ra DS CEyaN OTT R(2 OUND) ECA acti cy ey one ee et hae yy teen range a heart nee aa era 438
RACeRVER CE ANGLO OO) CA grrr teeter pee Pe tate ca miscss areeev tis ae cioriae Re a Tee ee eee 622
RichFvapastertieldi@l’ S47) e2-x eed. Se ee ES 0 ee ee eh nS Ga ee race eae 411
Richey CCa(U9S3) GAR So cichacie ie Geecis ie ace ae Cee CRER OE Ren EEC Reena 354, 650
Rich (Marc) & Co AG v Bishop Rock Marine Co Ltd, The Nicholas H (1996),
EDLY SR Ree came ape ee A A ne eo nares Menor eum eeeaeren 183, 186, 188, 195, 228
RichardsevalDaviest (92Iie wees eee cette trons cusinenen Romig Pea Lienert ee 76
Richards:VaNaume OlOGT) SCA teeters delim saceccee ae eyopen ae ROSETTA ee a Senet eee mee 509
RichardsoneveAtkinsounGl723i)ie. eo aeacrscencarn cays cnet ceeral apme steno Pee eatsvetebeareae we area 56
RichandsonpvelRiGebroducts, letde C20 OO) ea crncgatacecal tac cetne ane etter arene gee ene ree 384
Richardsonéy, Pitt-Staniey (LOOS)SICAs we amen eye tea ieseee ientean Sie ree reece 459, 461, 465
RichardsongvaSiivesten: (87/3) geaeercr cere eee en terceeyarrelieccys temic ee airy eae ne anne ee 2
RichardsOnevastephensonn@lankenIccdu (lOO) mraeramnener tects teatweet ramen ie rete ae ae 268
IRI ches: VaR Ps(WO 73iin CN ae,Sera te caves tee tag eeeeRe Rg tae ener os So eae a Pee 544
Riches wiNewsi Group Newspapersy lta @l985) CA sae eea imi eee err a aye}s}s saey!t
Richleytvalaull(19 05) eewcwsteer ee wioarion skaneckceme Gir Paces tert eee cere 275
RickardsyValcothiane Glos) srccaoeaepericat omer tach geipes cierto eet el Mee oR ee are 433, 440, 446
Ricket va Directorsetc.ol thea Metropolitannhilys On S6y)\mereuen ie Serene tee eee 424, 425
INTE SLAPS Sate BY) Coa COCO U (CMEe gsOn emingmadadueetc bonsedeen.c6 pope Ode Subba res 650
Ricketts: v hos lulllin ota a(S PC As ere cparcrcncneter-sciots travee ante erties cesrsieeeierarare tere seeeae 567
RIGA kese Ww Winteal annie Corgan (Ie (OA passe cundadecssadadcdcoscdcoduudedacdude 461
Table of cases \xxiii
Riddick v Thames Board Mills Ltd (1977), CA

RRL GmNA SURAEO LS OVA Mri 9'cteinn ce
carsoansccravovsnsios eons Svc sycnav eeolbeadectn es oan RA: 139
Rigby v Chief Constable of Northamptonshire (1985) ...96, 250, 432, 434, 437, 442, 447, 448
RimmengvalbiverpoollGitya@ouncill (11985)sC@Aw sees e.g 4.cn4s. coo... 358, 362, 363
RIV er Save Citi og(982) CAGE RONUN oe UE baie tha ta te Gee ee 563
Ravine gil ainkin (i539) peste ty.eceart rately nr roritoceae al atte eae oe ee 508
Rivtow Marine Ltd v Washington Ironworks (1974) .... cece ....
ccc eccecccccccece
.ee. 374
Ropentsavavonnstoner (i989) eC Ae Ret CLS 2S BPO ey Feed teins beens went 600
RobertsavaRamsbottomly (980) qan as a cae oe ee Ee en eee SS)
Robentsxvaneadk (i Si2)) Gam time {NAR 5 ie. 8 eo SO RRO E Fema Peedi: opeireln Bis Ue 24
RGbertseveRobents¢ (G57) Me. hy Oe KRY aoe ue) bt en entatanaet <i Wed aig SO hes 97
Robertsive Raylerg (S45) pees. sees apocrine A AA ee ee ET a ee SEES A 92
ROHETISEV MY Att RSMO) IEE A Pesca. srsaa deck es RS SE s, Ee arented balsa e 49
IRODETESONGV ARIG] CynLORIN CA ae oss Fay csorsisnarererk on AS calnd) ae tn oo eee 646
Robinson! vy BalmainiNew Ferry, CoLtdi(1910), HC of A ...........2.-.-.200 0.) dese ee 43
RoObInSonkyaBbeaconstieldiRIDG (OMA eae 004s a ee, eee 560, 564
RobmsongyaChamberss (Now?) (946) lees ces arses kee as
teen 495
ROpPINS ONE VaRoilviertzG@US SOC AG piers Wien ee Ei oye ae Glee eine areeg 395
IRObINsonkvabost Officer GOs) EGA. «td se aumens sai Se 293, 304
Robinson v St Helens Metropolitan Borough Council (2002), CAv.................-0-00-- 630
Robmsonavaward: Gl958) ta we Ga eee Waa eis Ay, Sa hE Oh cg a ine SAPO epee EE 498
Robsongvallallett: (967)ee tas etree, S Ware ensetl,o dienes bk ee Bae ee 75, 336
Rod verssvalVviawa (SAO) rene i stem teeie fener 3 2 Oe) BF Onn ae cn Neti Sere cp 590
RocavaMinisterof Health Gi954)satidi(l954).1@ Av eps. 5.0 vo tenet eee DSHS 7, MSS 2 57-
PANT PRS SS 18S)
Roce tive Austin) (997 haere Aaah A Picaeosccikee eancaa inthe eee See ae Ae 584
Rosersmvalviacnamanan(S SB) Weae.cricneteteseucw saves nic uelensite lod seco as ate ote er ARE Oe eR 70
ROC EISaVE NIShiRIdersn(antirm) i983) sCAN 5 ates ce Saran oe Re aT ae red or. are 562
ROosershvaRajendroyDutie(860) ARCas prmecaserscact muse cet tom tinue, © saceae en.oy eRe AR, Se 4
eogersevaspences(ls44)) be xiCh atid (1846) eaescs.dheeette eiao cedictn See ants See eee eee 652
ROS ers ava Wihittakerg (MOOS EC Of FAS se antisense arcnkeve oe. i ee ee 249
RoleskvaNathant( 963) CAMO Ee pete ARR Tete Be 5 Ss SR ees SERA Se. Re 340, 341
Roncarel liv Muplessise( 1959) separa creoreneveners ons enceence tees creme eee Meee nen ete pepsree eee 548
Ronexe Properties: Lid vy John Lame (Construction) Lidy(1983) CAR aan. eee er otis 658
RookesiveBarmard: (L9G4)S EL eefreucclac sane cs tae iaeela Seite ae 124. 152; 162,579
GOL VAW AUIS ONE CUB7) Fee fs Se cps ciesieee cence a Sess sul SU spe ccaccecavonts orrage ne eePAE ANS ns hoe 68
IROSERVE BUC Kiet trl ON) eaA ae, ape cehas Ri cenaee eee Secovan 0sSV ckovayakwayapeb raycreo e eT cee 652
ROSeRVeHOrde (HOST, SIUC Mpercpcreta.crczneesite sds oe eds vietactans kolo acre Oe 4 Aledeg oe 609
RosexvaviilesadliSiSi yoy ie te ta ERAS Re. BE Ame etna vey Ae seeps Sat 8 425
OS emva entye (CUOG ON) GA eae ewe oeacest tency vsstantewer Ove atcha “olepsaa aac aeeee MeO Rec 354, 570
Ross v Associated Portland Cement Manufacturers Ltd (1964), HL ..................... 473
OSSava Calmitense (i980) Mawar oeys Wome refers doves, pa-vakcleitals aleetanreeeher mannan eneys ISS Peres Sily
ROSSeVeReddent (G72), Phen pws Ao sortyoncra oxy sxtiostuson vacueeSeereuaes tances SnD aLee ee 444
IROSShveRUg9 e=irice: (81.6) mee deren wearer era pees lccryal cnsxakelo oh eiakce ice Rok eet eae ve 461
ROStey AE Gangs (1990) Pew Aiststte eentte telelcnchemees cosa iatcyarens: a)sre saUscars aperdevatad een 508, 509, 511
IROUSCRVEGTAVClWOLKS) etd (USA ONS AL eo ccerre, adcecatee a elie)cosslerokeatts oxaiatla char: <bobcysravsn- ayersueuetet starters 441
ROuUSemVASquITeS CLOTS) MEAG meat rteyter nae eer aren tote Ritter tikes CRP Pene Meta tar Feber ioeuate 293, 311
Rowlimeavadhakaro Properties lAdi(l98S8) WRG ice cde @ orn ee erties tetsct 182, 418
ase vy Weratore (CUOANS N00, Caen cao soonntee ce eeceeeeoeonmaeU mma An Mon OOO oo o0 541, 546
Royal Aquarium and Summer and Winter Garden Society v Parkinson (1892),
OU ek Brie yy PF 8 SAO TT ER PN Seen ean re PR Sc. neta arSepa 55
Royal Baking Powder Co v Wright, Crossley & Co (1900), HL ............--..---. 139, 141
Royal Brompton Hospital NHS Trust v Hammond (Taylor Woodrow Construction (Holdings)
itdebarte2 Opdefendant) n(2002) 5 erie apseyeveretancccsciorsicciscetenet beyodetenene ota -neese ssapelos2 etcans 657
Royscot Trust Ltd v Rogerson (1991), CA .......- 20. see cee e cee eee eee ete nes 127
Rubber Improvement Ltd v Daily Telegraph Ltd (1964), HL ......... 481, 486, 487, 502, 579
Ruddimanra&a@ ony, Sinith (S89) 5DG y ere ay eye stesso mieten er eeteneberet tert -e-tedts 2 henner 567
Rushmer v Polsue and Alfieri Ltd (1906), CA; affd sub nom Polsue and Alfieri Ltd v Rushmer
(IUD, RIG so 5a. coco coo phi Abobo 6cb anda man a Onin Gains o CheoDiEpi eanoA cacao Racei ors 396
RiussellavoDukevotNortolka(l949) CA cpt sn-yeicttm senate we eneteketitenets setae: oleeteeeli-esf- testers 501
Rance wnkenenin (IMINO) COIN a) aod ocogsg hOeN Repo Ge bu D BN co DU Ob On Scud mc b certmeraae 486
Ruxley Electronics and Construction Ltd v BorsytheiloOS yes eet nck Ore402
etek aterneeet
[ua y Lalla (GBI) 56 oop pore eu sch vuuuer ceepeupeess 500000 Une ceo chou COT UDO GO Da Aun 97
Ixxiv Table of cases
¥ PAGE
Ryeford Homes Ltd and Mewburn Property Co Ltd v Sevenoaks District Council
(LIDS9)) ee En ees cess ir wo Mahconeseaklcners xismentea Roesiateilonen ee 410, 428, 439, 441
Rylands v Fletcher. See Fletcher v Rylands and Horrocks
S
Sidadultipaticntasterilisation) >Rei (2001) © Agee wreath ence eet ttan terte teeter teehee tate 90
Siva Gloucestershine County iCoungil (OOM) NCA rae arta tee een ier en oteen 210
Sava Newham) LondoniBoroughiGounciliql998)) =CAR eae et-e-pa ee tat ete eeere arenraren aeeveitane S25
Savawa (childvabusesdamages) (995) iC Awe erect steacekol- heeMckee Ave okspon en Meee eee eee ek 626
S and K Holdings Ltd v Throgmorton Publications Ltd (1972), CA ...................4-. 504
SCMi(U Ka ctdivawa. WinittallecrSoni etd (OTM) CALS ereccentes cerseeenens er ene ener ee 242
SOS) Kinderdork Intemational wv; Bittay.en(1996) 3P©@ aaa. ae aeraitene ee hee Pere ex)
Sachsevi Miklos} (1948) =GA Cuscews sts sree Sais Gy Te ee ee 62
SackssveJioniess (92S Vig iy <2.) oesscraxerta eo Saye ahi: ERA as DPR Pa OR Deut Ie Sane POIRIER RE 397
Sadgroviesv Holes (U9OM) |)CA oracero gneve eset ovrocmvertyexevonneoons Atha eet:Cote aie Tene oe IMR Reena 493
Sadler Greatewesterm RiysCor(l896) se yay. ie ecco tee ena eet etterseenviioratis etree 655
Safeway. Stores ple yo Tate (2001), CAs ics cect tia nein iteckn excheicdepct Pict Ree:Memenete 488
Sahib Foods Ltd, Re, Co-operative Insurance Soco[iety Ltd v Paskin Kyriakides Sands (a firm)
(20 VED) Reena cate een PRR AE cet etn to Mecano SNM thre mae, Cars EN Ae nn RN 319
SaidiviButt (L920) Meer ears Paine det es orct.crapover sycneen OA ee ee eee 151
St Albans City and District Council v International Computers Ltd (1996), CA ........... 372
StAnnesuwelll Brewienya Copvakoberts) (i928) 5CAG ara crsenctsiecce een crane 415, 416, 437, 441
StiGeorge syHealthcarewNHSeirustavs Si (1998) 5\GAl fetes cept te a eens ere een arse 88, 95
SteblelenisesmeltingiConvalippinga (S65) reset cen maeiciene ie cnet rere 397, 398, 401
Salesleaseslétd veDavis (999) (GAs, 9 Wie Jobin ere ook ea eeRBA oercrelena hee Re Oe 61
Salsburyive Woodland (197.0) GA ayes sarcvovestvn Suarcesyn raya cvancien neta crs ceeceabee enaeeC eae 561, 564
Sampsoniv Hodson=Pressingen (19S) sCAT icra 21. Alexei tote ee eee nee tele etal 399, 450
SamuelfandiiscombeiveRowe@lS92)\ yen sere cheiceein iene eee eet te enn eee 63
Sanchez vi MedicinasAsturiana SAS ©-1'83/001(2002) SE@U0 = bine ste dae cee hereeee 378
Sandersivi Snelli(lO98) SHE ofA ces See NN hy ee avs nc Oy Oe 154
Sanders-Clark v Grosvenor Mansions Co Ltd and D’Allessandri (1900) .................. 403
Sandersonmve Varsdenrandwonesi(1922) 8@ Aue mena Shia Arete eee eRe an ate a ere 56
Saundersive Edwards: (1987) CAA. 4 Hes 5 8k SOU). SEAR: Fh eee 106, 124
Saundersaveleceas, western: Health Authonttya (1993) ooo yee cite clas a eke heer iene eeenene ance eee 276
Savace, vabairclough! (2000) eC Ack yt. arts excite. nccrerla sued oot let chang klar Re ee 406, 429
SAvdlegveRoDertsK GS Sp cesses ccontecscececrenamcv anon! cubignePencish hence omemcyencesileyen ere che eae eae ee 541
SavovalotelsplowveB BE (LOS2 i ciccesexcescanccacene muhrevateverssercaransesyoncusucesysnawaus iocceaee keke a Me 589
Scala Ballroom (Wolverhampton) Lidl) v Ratchiffes(1958), CA, 2.55. .402.-ee ee eee ee 149
ScarsbrookavalNias on: GU. Gil)) Meter ens sos es tcteenceer ens scence uacctaka. neces suckersence Reese eee ENE ee 654
Schloendonfi vasocietysofiNewa orks Hospitalu(lOi4) Eeepan cetrae). fees tae ene es 88
Schnerderivabisovatehn (O60) serrate cesverceces, oy cerca ques aloes ean ecbenceaceteore See oa On ee 304
Schnedemva Heating GIS 108) i eyskccsx sconce oor etcae Parra coi pa aoe rockon a eae ee eee 120
Selinerdenave ere he (lO S5))h CAG cccnctsccertcncuevsuskersus toes oesusndueuay/cpsuevonen icatecss/cb oe MG eee Pa ee, 510
Scotlandgvasolomonu(QOO2) cctevcnese 4 bsyemal-wannesianstes kentuoraliePercuanionsrauenses
earcrancnens PeeRene Ce eee ee 50
ScottaveAssorteds British: Ports) (2.000) yea ccsenessccrcrvcccetars cevct crenata eta reveeehote ayeet eee nee 355
Scottavalondonvand St KatherinesDocksi@o (865) REx] Chime Gee eee eee 274
ScottaveaMatthewaBrown &.Co, tdi (i884) ae accra tue aa eee een eae ee 92
Scottavpoampsony S82) gC) vyeyiecy ire crmorcherma creer ace Vonctwthetcqacieactele esis, eek kee eee 534
Scottsv?-Shepherd. (1973))t viernes 0. soe MF, ARE ee Se fe Se. Bs), PALS)
Scottavas tanstrelay (S683) See wesw cwcicasroeenctcteu heer ekeu ee kopansbalc barren nce cReeen el onckate ene rome Syllil
Scltisivakeyse/ (00M wEAcw 128 22RD TR PAP th ce 2 - ByRen tes co 251
Sea Hawk, The. See Locabail International Finance Ltd v Agroexport, The Sea Hawk
SeacenwcGopydexslbtd (1967) SCAT. ccrsco.sct werhersisons xed chee ie te AA RR: APE ere: 171
SedmaniwviCuppledicki(lOUS nec itera etd oe horn lecos orn Oe ee Se eee, eee, eee oF
Seaman¢vaNetherclifitt (i876), (CA. .. Reicc heirs 5 take emer AL TTA.). SNE eee EE erNA ee Silat
Secretary of State for Defence v Guardian Newspapers Ltd (1985), HL ................... 66
Secretary of State for the Environment v Essex, Goodman & Suggitt (1986) ............. 627
Seeretany ofmsiatemtor, the Home) Depantmentiv sRObba(L. 995) ier oe) yee eet inet eee ee 95
Sedleigh-Dentiteldivs ©; Callaghan (194.0) SEI nies ete ont tee eee B SOS 974 SOBmES OT.
411, 413, 417, 427, 450
Sefton v Tophams Ltd (1965), CA; revsd sub nom Tophams Ltd v Earl of Sefton (1967),
|G Weir tetete centre ceric er cect cere cree eee ETS CPM NE REN a Bo Bafasop 161
Table of cases \xxv
PAGE
Selby Bridge (Proprietors) v Sunday Telegraph Ltd (1966) ....... cece
...... cece cece e. 484
SeligmantivaDockeny(W949)p estos ctacyec eng ies a ck GN EE Se hor iors helen ©: 414, 435
pellarsiv Rest. (LOS4 eit tet ie tion ail lecmeh aanaks winch, bt acerteed <6 es 590
Selvanayagam v University of the West Indies (1983), PC ...... ccc....0
ccee ceceeeeee. 297
Demlesso poOltwaregletdavyGlarkes (1996) aves ened eeWN e eee, 587
Setongy datones(l887))s1C Ag betas Nig vanes. Or ennieicen 6 vata CEN Fay fatal tates eh cael rT ork yy)
Sewatwalpurave ATi unvbals G93) IP Gu ayPoteet 8 sel) 0 v9oy ere ee UR a ea 76
SewellavalNattonaluelephones@ogltd (1907) @ Auer ya aa eee na 45
Sevmoursvabutterworth (S62) Mey. Sarees eye ae TA a ee ee 526
Shahgvestandard Chartered/Bank (1999) NCA an ee ee 502
Shakoonvasics(t/aretemallHealtha@o)i(200I)) meascece cec eeeee 258
ShansonbygEowand (097 eM ee srausucscicckeucth xeueyoravovsvonoreeeceah div Oe Ce Mem ee ee a 486
utensleace
ShapironvalWawM ontam 923) A isc geasveuckcecncuswecs obesaote totter ueseacvvbvnc ALA ee 139, 142
Shaplandyvabaliners O99) CAs. yopscs 0 sosonccnencionerg eackocierecoue Ae A en ee 551, 630
SHanmankve Metittgandubatcherstetd) (196) etree ics rareetee eeaerse eee ea ee 520
SharphvaAv.cnygan duerw oods(193 8) @Al ey yn evinscrncect tec eee eea ee 232
SHATPCaVeL Mm Sw.cetinotsc s Onpltdd@i9G3) Rares asa i escent cers ee Se ee 358
Shamodiv WondontandsNorth, Westen. Rily ©o (1849)... 2.94. ees on de ee. 24
Sheanmangval ollandy (O50) AG Ameer AAG. A ek. olered eee each ee eee 600
Shearskve Mendel ots (UO U4 Re MONS. AEE ovcve ayosew ee ee AUT ED oecerned te iLSh
Shearson Lehman Hutton Inc v Maclaine Watson & Co Ltd, J H Rayner (Mincing Lane) Ltd
(GL 89) Iseorre ste < Beret ESE Re >. OE TIEN AEE ORE Reh pent dymeteor pen orate. | eee 167
Sheldon v RHM Outhwaite (Underwriting Agencies) Ltd (1996), HL ..................... 634
SheliermveCitysof ondoniElecine, Lighting Coi(1'895)..CAN. 1.cad- ee eee eee 421, 588
Shelleyavaraddocks(lOSO)sC Ampere tii oes FR oS asdesoirassocicustencucwtnunes
Re Le 124
ShendishyManorbtdivaColemany (200i) "GA we ye cereva-y2 creer,
SRE ee ee ne 644
Stiepheardavavhittaketa (LS i7/5)) meee cae arienduce ecvancissooneroovncartwuomusnedeasnvane
PEM ccaeneetee e483
ShepherdivaRosnO fitcen(1995) MACAW Re Senne attire, Wee Ne in. Ane is ee ae eel 610
Shepherd (or Shepard or Sheppard or Sheperd) v Wakeman (1662) ...................... 140
Shen danavaNeweOuaya co) (USS8)geet u Ace fe sce cc cakes cueinencnaie ea eee Ace oo Se 5)
SbielsavaCturkshanks((l953)) mew 4 set ke,ccs-ko) keane ee oe ee AE ee ath rete ee tee 614
Shiffman v Grand Priory in British Realm of Venerable Order of the Hospital of St John of
Verusal
cmp 93 OB ee pee ee che anes ice ieee Ee LEE ee 434, 445
Shinjitsu Maru No 5, The. See Marintrans AB v Comet Shipping Co Ltd, The Shinjitsu
Maru (No 5)
Shipleyavamodhuntens (USSG) Bete wa ae weet er ceteas ©.SyAe etch, Mee ayun cualcheBie h AIURT Pe 485
ShinvellliivarlackwoodseE'statesu@otdi(li9sis) \CA aes Sesser sarees ato Riise ieee ete 356
ShorlandivaeGovettsGlS26)) siccieccccsnivenucheh
omeid eetete eects Ri meee. SER er aerate, Re eye 70
Shortive toca elrendersonytdiGl 946) s Pb os circ cucvevsseucsenencuclannstae
vita Sees tetote eaten ae iehoes 552
Shrewsbutyess( Countess) Case (G00) ycrae aetna . ol REA a ee, ne ee 78
Shrosberyava Osinastonn (USI) pacers einstein cee Mone cere keene 546
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley
LOS pital (O85) aaa yaepretty eters aie teesota) ee aecseatedadeteTecoeenenetotamus
teciorskcy ere atten 88, 249
Sigurdson' wy British Columbia ElectnciRiy,@opLtdi(1953) sPCs Nerve reerieta er tieteo= onde neonate. teStI
Silcottevae Metropolitan RolicesConirs (1996) miGA a. sory ny- inet) ert ieiean ae 545, 548
Sign Af pune (USE EID Moa soo SOO DOOR AG Auman yrs oom ed Sr Dae Monod 6 ol 481, 482
Simaan General Contracting Co v Pilkington Glass Ltd (No 2) (1988), CA ...... 229, 243, 375
Sime v Sutclifte Catering Scotland Utd! (1990); Ct of Sess). 2 ties. tetteias asterier- ote 556
SimlassavakhonddatBborouchi@ouncili@i982) §CAGe cer sem fe eee hier ie eee er enre 340
Simmonds v Newport Abercarn Black Vein Steam Coal Co (1921), CA ..........-...--5. 469
Simmonsavaleillystonen (S53); sac ctdensceeey-cs vst at teen noreta anetnnat as adorei iene erate eee nohcereensual arses et 56
SHinnianloes WIN OMCAIIOIAO), SAC. Gana caueaweooeeen soo Us gue oco ome aot ot 7 oOo oc 496
Simms aRemexapmbrustec: (OSA) iC Asi specetccte creek tersttetas oted ReNNN AN.Y-|cheoe Oke)arate tetaiisaa caeweyiehs 65
Simon v Islington Borough Council (1943), CA «0.1... eee eens 466, 641
Simpson v Al Dairies Farms Ltd (2001), CA 00 cece eee
.....--...-- eee eee eee 340
Simpson v Norwest Holst Southern Ltd (GEEEKU) ROT ar st Be BOB OOS Ae ciocus ais ora Mun tec 628
akeues oreUeMl 409
SimpsonsvaSavage (S56) marek eke ra Nevreeae aeaveltetaeterkstet thefefet=fatenerstogstetenstar-r-a.f-leho
Simpson v Weber (1925), DC 2.0.0.0 .0 2 cece eee ence cree cent en eee e eee e eens 74
SindellavaAbbottalabotatoniess (9 80) eee erecta rcteney otarchka perettrene cneRcne Olenero? elect ewe ees toes 386
Singer Machine Manufacturers v Wilson (1877), HL .......-. 0-00.00 esees eee eee eens 130
Singer Manufacturing Co v Loog (VESPA IN GU Bem 3c,5 aarand Stony trata vy concentateetacn MeL re aera) 133
Simos Ml MVS) XCIN oa auasecpoopscseccuucbanahp sano CDe ATO CO oan Ud toed Oc mL 103
Siveyer tv Albison(1935)) Lh Gita &
pi Bettas ac essieieseieinusneseienetsjarsieiesrierniei batt Aewe 109
cieieiaterne
Ixxvi Table of cases
\ PAGE
Skopas, The. See Resolute Maritime Inc v Nippon Kaiji Kyokai, ite Skopas
SkusenvaGranada Melevistons td (996). (CAC cs, voce tetcrcrenspcnsicisecncurietseees
cisterns he eens een te 481, 485
Slade v Battersea and Putney Group Hospital Management Committee (1955) ....... 337, 354
Slaterzv-Clay, CrossiCo Ltd (1956); CAG 2 eae a eee cee eects nak eee nen Pan eee 3250354
Slazengers ltd va@iGibbs) Sa Coi OMG) ie ncreactaven yk 0-1ck Meee ree nee ae ae ee Aree eee cae 483
Shimev DailyaTelegraphelstd (968) (CA. vacate et Oe eee eee 488
Slipper waBB CaO ila) yiCA ree, Fes cso edeyscrewsgoversy staxpov re eS EN 492, 493, 499
Smeatonsvelifordy@orpnn(l954) ie 64.1 ak A EE B88 eee. ake 437, 441, 443
SmnithiveAingeriGl990)y GA 3 ik AA ls FA oak aor eomnsdccl ee OE, 452
SmaithtveArustinmleatts tds (9S9) Sa ps acestescencrrevcice Merah vee A Ee AR ne ae PLY)
Smiuthev, Bakersé&esSons. (U8 9h) Emo. Sat eee BIND eee. See 268, 323, 328, 329
Smith¥vaC had wicks (8 84)) eM hess 5 epcdeheeaewedes chop hc nsxonshsxonahonepcaseea cnn en TR 12050122
Smith tvaD reir, (199.6) erste ras ode ace cack eect act eroycvoncyavoncvionenone ou yh Oa A aeee Nee Aare cole eae 361
Smiithiv Hast BlloemRDG.(V9S6) yi seenseoneten vedecstoncvemspocstaensieoeee
tee ee ee ne Ae eee 546
Smrthev EnglHts CUS 93)) acne ssicpccns ones4p oteconcendcenecey eho)sienna thee RM ENE, ea 579
SmithiyacicisSaBushi@lO90) ME ey.) scr a are oe eee 233023082655 329 83308562
Snrithivs Giddy, (UO O4) ie Bete Fee Aw taseg casarcapveohes cane en I ee 392, 402
SmithivabeechsBrain &1Goi Ltd (962), ..... 2a yee. eee. eee ee eed 304
Smith valbeurs 301945) eae. (eet a A ee eee or ae 192
Smith v Littlewoods Organisation Ltd (1987), HL ......... 189, 191, 194, 356, 413, 437, 446
Smithtv MoydssESBiGroupsples00L)N@ Ard... seine oF. peices oketctel. eetenel a= feyeere ten etree 54
Smithivalvondonland south Western Riya@o) (1870), Exa@hiee ei. eet teen citer eee 188
Smith v Manchester City Council (or Manchester Corpn) (1974), CA ..............2..-. 599
ShthtvaeS cotta (USAWim. Rtas vo Naa teas Sed oe eee AS fg neta TON IE 532
Smith ave S Cott UO TB iy haMem eed ote eatencyclonekde crane cise veuthcet snap AEN A A 411, 434
SinithivaS tagsesi(1 GSO) TION 1 .,Sinn cactorsvorsuze eeucsensever et aa ae oe, RE re ee 568
Smnitheve Stoney (UGA Ey. At aecnct ckne capencusceFacncelney anceygedragsachsen AO eee ee 74, 77
Smithies v National Association of Operative Plasterers (1909), CA .................... L52
Smoker 'v, London Fire andi Civil’DefenceAuthonitys(l99), (HI eee, ee See ee ese 604
Smoldonxvawibitworth(l997) CAS cx.)oe robe acaehene ileychokes ssoscxsaisa shoe te nae B22.
Sniezekey, Bundya(etchwonth) metd (2000) siCAr yaya sysence eye ne nee ee ee 629
Snooker Mannione(l982) See te ae ee. Cee ee eee fs. ee Sere ee 336
S Oanes vain
Shibx(U8257,) ies. sey eas eoney teen wo asonee eencaewe Aw cece cdowecwee seen ae a EON 526
Sochackt viSasr@ioayee ARs. 4k ae SRS eA Pe ee, ee ee 276, 441
Societe-Anonyme: deskemorquage ai belice vaBennetts (1911) 2.6
-a eee eee 157
Société Commerciale de Réassurance v ERAS (International) Ltd, Re ERAS EIL appeals (1992),
NIE PRIN es eee Pastels gatstunt Dopeme Ache we ce NON RVI es Fo I ee 632
Societynotsincorporated eAccountants.v, Vincent(i954)ia as. een 134
SolegvaweltHalle Tetdk (973) wn 5 vt anice veeeecceee Rae ee Pe 4k nd A. te ee a 346
Sollowayav, MelWaush linn (i938) PG vac pe ccatesxcususeoucs yexsusesweucvaxe: oh Meee tame A cae aeee 62, 65
Solomonkvalrinigann (1 SGG)tcks vs parry vshshs enlist askonn nn ovoc) Baad: NRO ee 105
Somernvaillew Hawkinss(issili) it. ae Cea 2 me A Ae CAEL. A Be Ses ee S22
yoyo) | Whe Syacoqilay.(() ELPA) Yon)allOca Comte Merc, enesr oyeecenee Dee ee nr eee eR DOE Le ook Boll 149, 151
South Australia Asset Management Corpn v York Montague Ltd (1997), HL ............. 237
South Hetton Coal Co v North-Eastern News Association (1894), CA .............. 484, 531
Southestatiordshirea Water. Cova smanman (896) pce caves oe ee ne 53
South Wales Miners’ Federation v Glamorgan Coal Co Ltd. See Glamorgan Coal Co Ltd v
South Wales Miners’ Federation
Southport Corpn v Esso Petroleum Co Ltd (1953); on appeal (1954), CA; affd sub nom Esso
Petroleum! Co Lidsy, Southport +Corpne(1 956) wine ee eee ee 24, 74, 96, 411
Southwark London Borough Council v Tanner (2001), HL .................... 407, 411, 416
Southwark London Borough Council v Williams (1971), CA ........................000. 95
Spaldinps(AcG) SaBrosaveAaw, Gainage dtd (OLS) aCAG caer ements Ae neeee) Aer ee Sw
Spalding (A G) & Bros v A W Gamage Ltd and Benetfink & Co Ltd (1915),
1D Oi erM cre 3 cen eae Nr Pere rr Re Lh ie Secern te 127s AShy ISS ee186
Spargo’v North Essex District Health Authority (1997); CA” .c228s2 25e).e. cee Sen 629
Sparham-Souter v Town and Country Developments (Essex) Ltd (1976), CA ............. 631
Spartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd (1973), CA ...... 186, 242, 579
Speedivalihomas: Swati &1Co etd (O43 GAT eee ee ee eee 270
SpeediSeal’Productsstd wv Raddinstoni (986) AGA waa meee creer enere 546
Spencer v) Londonand| Birmingham) Rly Co (i836)\cin eee eee eee ieee eee 428
Spencer-Wardivihumberts1 (1995) CAN gar sea rei etree nmecety payin t eee EN re 632
Spicermva Sine] (946) ae pcnccycncysseckcn acek tev nce eater aceon ae cae ear 400, 415, 416, 420
Table of cases \xxvii
PAGE
SpillavalMayler(l S69) Ges. oe Aare ee ty re foe, cea) PoP PUREE aap 516, 523
SpittlesvBunneyalOsS)NCAgemscd 5.05 eel ne Soret ever Rebbe a ines a 615, 616
Spring v Guardian Assurance plc (1995), HL .............. 141, 184, 197, 240, 285, 514, 525
Spunghead SpinningsCosv; Ruleya (S68) semen eey tere ewe: eves aout ae 166, 589
Square v Model Farm Dairies (Bournemouth) Ltd (1939), CA ........0.--00cccceceeceeee 465
Standard Chartered Bank v Pakistan National Shipping Corpn (No 2) (1999), CA; revsd in part
sub nom Standard Chartered Bank v Pakistan National Shipping Corpn (Nos 2 and 4)
(2003) EL a Penile EERRS) acti eke ANS hy 8 es eeeingaye bodied 123, 643
Standard Chartered Bank v Pakistan National Shipping Corpn (No 4) (2001), CA .... 315, 316
Stacy v Sherrin (1913)
Stahtordavs ContiCommodityaSenvicesuletdy(198i) i 4 anos ancca.sehiet ae Belk 237
Stanbunyavak xetera€ [email protected])) i avetem, 000 neni) ins ea oe a ee ee 3755576
Stanleyavebowelly (Us lll) term sty ere ol a Nordere s aaucdteun rack yee ee Ae, Ol ag P17)
Stanlevavasaddiques (992)NG Ace oi ea rat cwcicn-vencurcadlosten swish ee ea died as eee 616
Stanhardava@halessertehersl etd) (2002)! antctascea etn aie nna area
astnecsc aenSeen 416
Stansbicavahromani(HO4as)GAvee 4 sed J ee LA CN ed pet ee 194
SfablOng val wantshmyouldenwetdr (i960) Bam e eri a. nea adetia shoo. ncon ence nee 609
SAY Vir PARES (UIC), ACA S ae ree a clas aan aa eee Ma mee aOR a oni oma oboe 543
StaplesavavicsteDotset District @ouncili(995) 5GAN yee ey ice tere eee 342
StaplevavaGypsumeMinesi Ltd Ql953)s Hs 0,055 ere Aa eee CURTIS: AEE SE S095 Silhs19
Starsin, The. See Homburg Houtimport BV v Agrosin, The Starsin
SlAtienoOsgyAOLOLAUgyaowharinerss (LOSS) mee a eee eee eee ee ene ee 155
Staveley ronrand Chemical Co.Ltd Jonesi(1956),,ML) 2. a0na0saensscue
sages. 313; 472, 565
SicedmangvibB C1002) MG Apts, Retesc). AE ee el ome ees or. ee 479
SicedsavaleverellvVianaremicntysenvicess td (2001) CAW na, tciik.eteed-
ee eee 8630
Stemnavablakey (99S) Reger ts esAe ee ees ae. Oe ey ey Se le a he ey 653
Sieniicttavalaancock. anduPetersal OS ONE s Sei aettvehs Seale eee eee touks: Shacl dechake taal deere 3725 563
Stephens: veAngliany Water, Authonitys (1987) CAy aa oan. prot cei ee aera ee a BSA Ise e 185
SlLephensmvarAwery LOSS Mecca Wav cA ae,akoraet okra «Aled reper era cremate eee ren eee i 170, 172
Sle PUSS AVM NAY CTSM LSS.) mewn Mex-we tect ay eeu ave alesetlevesansvinevceaysy crater A AMa ape rhe A aan ena oe Ree 37
Diephensonsva Donaldson) ace SOnsa (LO Sil)ke ie Toe taal here eens tee ene a eee ein 483
SLEROAnEVEE.W Roca MIO Ore’ (Ae tiniid) n(1:9'7,0)) MaerA toes eee ee-e ee ete tay even ce ee te eee 23
SCOR eV mba Ota 7.) CAG iss:acsecuarth oxoverRoeestra a Pte aba hetero. Ne,aM adeheba Pornhs VR TRsPeta eee ree tee 519
StevedonnssandeHaulace, Services Lid v, Puller)(Q00t) MCAe ss Sie. eae. aie ok ae 555
STEVENS RV MIE
CI EMCI ALOS.) Meterres axel teloxy cyover resoxen avery syiakg een hoaeNedee ote toteholes Mena ae eenh 522
Stevens=va Midland: CountiessR1vcCoy(1854)) cic cicrcrsictveve rer renee eerie ter eatetahs 2h Perera owe,aes 544
Stevenson (or Stephenson) Jordan & Harrison Ltd v MacDonald and Evans (1952), CA ....553
STO AT Gavan OVEN Oa(ILS
07Ody Says shown cpreroy A esr eich) akcheney oevanas ceones Cancer spaxsmarer lstcoed merentc Mean Manes: secon 141
Stewattava est. Adtnucan vlerminals, Ltd (964) aCA\ eerie e Riarere > feleee clare eetor. tts eine shad oie 301
Simp SOUMV MV OOGRSee SOM UL OSS) Cm proce fen ears == abn oeaero eeePua aL ucesp wen aue heme ts atchon 612
Stock dalekvalblansanrdudlS 3) ns sais ceacrchess nccsncdopor sictaysatsenerer niet toee hie etwas a Meee 508
Stoxe-onsinent ity, Counciliavaw edcaJiawassyLtd (L988), (CA yaa en ene elena von oer 391
Stone v Bolton (1950), CA; on appeal sub nom Bolton v Stone (1951), HL .... 247, 248, 391,
400, 425, 427, 443, 449
Stonceyalanten (lai) aCAmmrem fe ewe Nee Aa PRR chen meet heya 3 aroun oerctondceenh Rpeaticee ees seote 334
Sie WOO] (GO Coc chadebaeoe OB oo mes ab OD eC Mee Oe Oe OtC DOmrOomcd te or kn amadiio.c 568
Storevava Challamdsy (SS) Meare tech ea ahentaledate Sava -Petefovel oteteretelLorNeate Sucteenets fede ete Bioes oteRenens 498
Stovin v Wise (Norfolk County Council, third party) (1996), HL ..... 17, 181, 186, 189, 190,
192, 194, 196, 201,
204, 207, 208
Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd (1952), CA ...... 64, 65
Strattorad (Jenyice Sonmlidiy Windley (1965), He ae nae as IS3H 154555; 1615 162
Streetaval oun ttorda (19.85) sable mveahs cisieersis cally. cto.<amban Rae ooh tania varatet omen Royefetaelen oy~ 0 eeielers 78
Strvaubratyy Weyetraloyiiay (ISPD) 26 ot camun Bap MOO OUG RO DUMUD ODPdeh ECS 66 oN oh aodor some eciaa ml 93
Sioa ntavaBeIl(USO) eGAw ey pamela uct taysdaieecreles sacle eraecaeite saat Pelton ascites rahefeistMensiner Benet 525
Stubbings:v Webb) (1993); HL. 222 cece ence ene eee nen cee ee ce nneee: 626, 630, 633, 651
Sturges v Bridgman (1879), CA ....... 0.005 e eee eee eee 388, 394, 396, 401, 404, 419
Sturtevant Engineering Co Ltd v Sturtevant Mill Co of USA Ltd (1936) ................- We)
Sun Life Assurance Co of Canada v WH Smith & Son Ltd (1933), CA ..............000-- 506
Surtees ‘v Kingston-upon-Thames Borough Council (1991), CA ......... eee. 651
60s. sees.
STIEZUEROVErseasnlitday: INOLOSA (L999) CA pins ae ernie terthe 8 meeaheret devant, Ja ela nye leben onecuedecent ats 148
Sutcliffe v Chief Constable of West Yorkshire (1995),CA ........ cee eee eee 59
02. ce cece ...
SNiclittenvabresscramuletde( LOOM) CA Ma. a ateacerca cesisveke Crem a obeote cee ANTE auchs) settee 499, 533
Ixxviii Table of cases
. PAGE
Sutcliffctv, Sayer (1987); CACM fae Se Ee en rt teal areas, pulmapa RSPRk) EAL Mee 362
Sutclitfenvaihackrahs (1974) ROH ea aay irot arr racine token ter SS bck AAR Senneet 103
Sutherland Shires@ounctliveHeyman (1985)) H@ior Agate ere ei cient 184, 198
Sutton v Population Services Family Planning Programme Ltd (1981) ................... 604
Swadlingevi Coopers (93Qn GAs revsd (1931) tee pect teeters atten cad-patcktare ee Sill
Swain; Hillmank(2001) MCAS Aa ®, each See Ase orto. Seat. ch claved esaPeleeenanteey ote ntewe 480
SwainkwaNatniekampPure (996 )NCA® Aemerteim. clentiacici-i seeehts temsins eet) komistc ieee teestee= Sul
Swankves alisburyaConstructroni@ou-td) (L966) RG) eyiay-rsesy eparctan ac stiestenet pene ene cee a DETBs
Swiftivalewsbury. (1874) SEx Chit. ataack Gates seria See S. Seem eee 126
Swiss Bank Corpn v Lloyds Bank Ltd (1979); varied (1982), CA; affd (1982), HL .... 157, 161
Syed; Vall ay (ILOMs)SA ie Steroecn arene ssietatenssdeabts alelteRee ade aleach oateue RAs ACEO EAC: Semana 8 enon 58
Sy Kestvellarry a2 OOM CA ye, eopeen lersirenes Soemayies onan october opetyetst encase nen ae SMG AAEM ec eae 363
Sykes) va North) Eastern Rily; Cog (i875) aac s eran aoe oi arte exe elrel aie eee eee ee 612
SV KES ‘VaeSyKesiQlis24) Fp Pie ote, arc evarsvraisurpiavepensiss eynyparerey cidhsigsyaqeclspay rape OPRene oYMRR TO Mr Ree 129
SylvestersveChapmian) Ltd) (1935) oc cceneiecnecerte sino; cuacnapavnylovsceuaietet esa ReMeds, slemepetteh. (gleelevey cio) tanPaens 327
Szalatnay=Stacholy: Kink (11946); attd) (1947), CA. cae cet ee eee eee eee 509
Myi(adult-trefusalyof treatment) Rem 993)" CAR cas aac eee eos eee ee 28, 88, 95
T(a minor) (wardship»medicalttreatment); Rei(l1997) NGA ere ae eta is ies 89, 96
dev Northevorkshire; County «Council! (i993) NiGiA Gx. Seren eee ee ee ee eee S72
UPVC SOLOS8) ee ek, See, Ee ee Ee eee ee eae 90
PsandwcMi vaUnited Kingdomi(2002) SECtHIRG ys... 4ena 4 see oor Sl e20982116
ihaddiweBastwood (1985), CA. sase.cscnaec Mead ube s dk RE Ie eee be see ee 511
ihatteValesRiby Comvalenkainsi(L913). SHE, Serer ae ere tate ee 612
Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd (1986), PC ............. PAN BylIh. Skee)
MaittingeckveAllbevaletdyGl9 93) AC Ate. ae. ee yer tet, pe se 135; 136537
Malborivs Berkshire: County, Councili (1994) MC AMA eons aoe 4a ee ae re 584
Mamliniw Hannaford n(l95 0) KCAL oer eperecspesrtherafewnrovaray
aterctsvenaronertnehataten-is) a teearch aeeeae nee ee 637
Tang Man Sit (Personal Representatives) v Capacious Investments Ltd (1996), PC ........ 622
Tappenden (t/a English and American Autos) v Artus (1964), CA ...............-0 000 eeee 58
Marasofhivenegents. ofthe University) of Califomial (1976) 2c cient tee Peete ee 72
argettsy loriaen Borough Council) (1992) SCARE eee oe ane eRe Ree ee 361, 364, 372
arrantavahowlands: (979) ice. n ease ie B.S Na, 8 ohn oA aceaos cernA a 642
Wasciiverckalprotieondonyltds(Z00l) ICAS ara eee tore eee ay eee 468, 472
Tate & Lyle Industries Ltd v Greater London Council (1983), HL .... 104, 228, 408, 418, 425
WaylorsvChesterk (1869) wey pita eeok co eee cts ee Meavaras acacutuaccveievaunice ate eth Rene ee 106
iiaylorava Directonoiithe| Serious FraudiOfiice (1999) SHI aes eee et eee eer ee Oli?
Gaylonev Hall (U74D yi55s. trtis eco one Genscases saver cae erendeciac a ood Me REM Cane he 497
Waylon, Diverpools@ onpny (193.9) ioe reps arte ratercverteve omer .ceyestoestescy-valleflcraye anen a ee 356
ayloréy ©} Connors (L9OW)S Ly. 3) lg See 1 aan Oe ee eee 597, 614
LaylovivakerkinsZ¢1607): £2225.) ees Yee sene.cee dae te a SS ee 497
hayvloravaRovers€ oxtetde (966) ee. cers et. se ee Aaee es toe hee eu eee cele cece eee 563
May lonevaRowan (83'S) paras, eo eet, conse weet hs TR Sy Sle ccc 69
aylorevasmytby CLOG) Ee Faces eee ots NON toyerasce cvevtcice lkenskin obenSycieuchuel= Ret keds A ere 146
Waylori(Gak); (Wholesale) sitdiv dep worthsulitd (1977) i re ee ae eee 420
Delnikoft vaMatusevitch (199) S@AsFon appealii(l992)., Hilba.. weet. c teeter. 526, 528, 530
shempertonsvarussella (S93) GAS We. tavscce acne belay: eee ease eee eeace oo ne et pee Us Wsys
Mempestuvasnowdens( 1952) CAM F, qeers 5 pPacteke sieecais toa sven org el aia saison we oe 543
Mennent:v, BarlkofeGlascown (S64) qHibameane ae eee ct evn aiewnr daar ei epee coe 420, 447
etleyay 16hittwa (i986) Ea topos. a eee.) ee ee te eee a a ee eee 399, 411
Thaarup v Hulton Press Ltd (1943), CA ......... Bh, dential serena SRM eae ON LD RC a 482
ithackeny (Crown Prosecutions Service: (19977) SA aren ea at tee ne ee ee 545
iihakev; Maurice; (1984) crevsd (1986) 5 © Ag se eect teecence ae ee ee 212, 264
ihharpeaveStaliwood (i843) c: Hives a lsretas helesrey tedtic:s. sus 2 aa ee ae oy area 69
M@hatchersyi Greate Westerner yi Cox(1893))iCAmiea iets seen a eee 354
hatchersw sattlejohns(1978)5' CAS SEERA eee ee eee ee Oe ae eee 608
itheakeriveRichardson* (1962) CAG As eed nye. ae Ae leet ee 8 ee). ee 486, 492
whomassv*BathsDistrict HealthAuthority (1995) GA geese penne fear eee ee 583
ihomas) vaBradbury, Agnew rsaiCopltdi(l90G) NGA yo. ete eet) ee 526, 530
ithomas:v; British Railways: Board ((1976)) CAMS) see eeee cate eaeee 334, 354
MhomastvaGulf/Oil- Refining Ltd!(1979) \ sone sansa ns anaes ees eee eee ee 179
Table of cases \xxix
PAGE
Thomas v National Union of Mineworkers (South Wales Atea) (1986) meen eee ae 37, 417
Sle News Group Newspapers Ltd (sued as News Group International Ltd) (2002),
RMMe RCMeE oxox Ro RoR VSRTORN SUNeMoy ee Aabaro oP R SOYSoy.niiovdyor 8 atcuncicr ste) RNR: ANE PER 40
sthomasava Quartermaines (1887) CGAm ia eee ee ene g 178, 323
dibomasayvehomasnlsssyt iateaey 4 e) AOE T SOE) SONY hs pun Rell Ae Mcrceerine yt ye ees 418
Mionrastve Whip schilS\UMAden Tiree) J thers cat ly rh MOA h oS A Beceem doe litre 590
Thomas and Evans Ltd v Mid-Rhondda Co-operative Society Ltd (L941 CAvES sites5M 44]
Thompson. v Anglo-Saxon, Petroleum/Co: Ltd (1955) 0000) LLL jados oe Me oe ome 564
Thompson v Bankstown Municipal Council (1953), HC of A................ 2022. 337, 354
wthompsonsvs Bernard 401807) ieawverac esccd oun <0 oh AS RES ae rr A At aie 496
Thompson v Brown Construction (Ebbw Vale) Ltd (1981), HL ..................2-.00-. 630
sihompsonnve Cliver Alexanders écabartners! (1992) yee wees et een Aen eer 357
‘hompson&y tEarthyaClos) hs5. Awe, end ye eel lie etd 4 al beveetoa Sea aeekenarien | Lally 75
hompsonmvaGroson adsliecmetesccaeeas penelope. toa Fond Jorn n-raecnecterseAdve erate SA Mead tatnatee eG 411
hompsonkvalC Cn(US99 CAM. APP corey hoki CC SOONER 655
Thompson! v Metropolitan’ Police Comm (1998), CA ......0cccncneenn-slseseseese.. 45, 581
Thompson v News Group Newspapers Ltd (2001) .............000000000eeeeeee 7, 479, 480
MNOMPSON BVH LTICER (19/8) MEME wereseu Verewersioneerny So Pekhivescovet oor ends Ce Oe 615
Thompson v Smiths Shiprepairers (North Shields) Ltd (1984) ................. 254, 268, 624
bhompsoneveWarded953) CAs. errand Lee D. ews ee eek RIN: eh etal 78
shontpson-S chwabsvaCostakiG(lOSOyNi©AW Me wandonee ee eeaeee
.-scte 394, 396
Thomson (D C) & Co Ltd v Deakin (1952), CA ............... 150; 1S 535545 1555156
phone vavgleord skrerry a(SID) Reve meter ene rance syn pee poo oraunt de on case tee 482
Thornton v Kirklees Metropolitan Borough Council (1979), CA ...............02..0000. 466
dihorpenvebrumfitte (S73) tecnico atl. Aen, See eer nine th. 420
Three Rivers District Council v Bank of England (No 3) (2000), HL .... 12, 43, 471, 547, 548
ihurstonivac harlesa (9.05) Mawes wot rcicchonct tex Acc ee ASE Mean Ante ena 579, 585
BRICK Hey Re ally(10/73) Bemneie cote decease amin vate eee SAL ER RCTAa ees RRR of ei CRE an gi ee 92
nidyavebattmana(l 934) reC Ages eekete esnth devs tacnn ohAah deote rutcs teedeee iL ROS Mere ne ice 262
pile yaves tevensone@lo39)\ca Alea eer. FS, SYN chao onbe ae evens SRE 440
hamothyAVeE Simpson (USSD) Meee kee, hen A a ata ee Ee Ane eRe 100
Tims v John Lewis & Co Ltd (1951), CA; revsd sub nom Lewis (John) & Co Ltd v Tims
CUS SEMEL BpPetes ciceoot URN pet be PUNE ME SH de NI estek bead a eT 101, 102, 540
Tesilderr pn oyol {IAA Aen oe EE AS Oem eee desl ei A On A A tee B 56
iimnsleyave Dudleya (lO Sil seG Aw eye rote syaraicntn suchen een teboie: noe. Seen spel A lester hae tons 345
Mamslevavel lillian: (C994) TAM fon oper atesesac atin wate eho oo aromna acoRs eae ae te, Aol 106
ihitchenervebritishakallwaysy 5 Cards (9.83) silica «seen nei jee aie etet ets einer ey een wee 3192
hoddaveAdami (002) KGAtaena ay Sane 8 ar we a Ee eA 462, 463, 467
Trayarel Se VOUS aOR Oe em ect on ee ets cumin enw, Meri eRne, Seta oe ae eeeeee OeAe ein oa 416
Moddbvektawkinsr (SST) waver mera eee kere eseae eee et cL RNR Eate SEN AT SENG S22 0e52/5
Mo fhave LCD Owe] A01993)) aes cordate ton aeewaeat estas acroete arte ovcron: weak uotePonch eeeMov sea Ree 399, 416, 450
MolhausennveDavicsnGl8ss))watids (LS S38) GAS yrceee cyber ier -ncrrebeee etry ache eeN cere 398
dholleyavel Ssh tye Sa Sous td) (LOSI) Im Seventy =k Aestata «obser tebara, Seow e bedvatawaneneest ae)» 482, 486
AO IES Sy Maren: (SIA) Valle aoe See he Ch eos CEMA e Meee men CE eno eh oon oc one aamns 633
RolstovaMiloslavskysvelniteduksne dom (1995) hae CURR Gor cyerceereten icnensistchey ster-tstenarctersearaeal
stein 478
Tomlinson v Congleton Borough Council (2002), CA .............-...-. Syl, Bee ey 2)5)5)
‘Wrovayexayayel ye tyoniadbagees (CRYIN 2 3 5A 5 Bolles Boro bo OOO bc ob mae eee On Akan SIG Sisy, S772
Topp v London Country Bus (South West) Ltd (1993), CA .......-......-.0.. 191, 437, 446
oOLontopLo wer Copstdays paskiwans CUTS) iP Gry serene an ates eetane teat on«tek-retee nates aneoe ete se 269
iLorquayalotel Corltdiy Cousins (1969), \CA eee
ae ete o- e tee [S152 1545161
Mothievalbed cers (2 002)5 CAG ns Aer scrtttyes noite toto: Me serohennmternrw Ate ott bemrelesees Stone 584
Tawa {PEAS (IGE), GUN 20 bemtmaoece ae eb ebb DEO Ops Gop Leste oon mata one Ar cena 42
Tournier v National Provincial and Union Bank of England (1924), CA ............ 481, 488
MOMCreOOtLCOMltdived Ores) (997) GAN peters wlous estes-r-csusy etre nL Aerettat a aes ats So, Sy
ownscnduvastonemloms a meartnens (198) sCA Ns po. avenue el coeteye teste ee nete) ionsiera 657
Monreal vw Weta: (USD. oe oneeeoeanadense Sobcoe hhUobe ebb Ec Ree imaceuy Acinos 38, 71
Mirappava Mackicn (OG9) sec 4 .1:-13:paees crt eee ate detector tetMertens stteosicbetseanet afore atone =P a 510
M@reasure Cot CosktdevatHiamley Bros Ltd) (1950)) 1.1021 5e. AN Were nseleeeteiene fersietels: Shssate SY
teachin w lee (IG), aeanacconecasnnduer sve seone Boop alde aameo agiaG ako tidied fc 301
Gee tev SIMA Say, CAN SOR A Ath SIGs irae hich terres Meo ADR e EUOI Re So 314
Trenberth (John) Ltd v National Westminster Bank Ltd (1979) ................-..-05-- 588
Trendtex Trading Corpn v Crédit Suisse (1982), HL 3.......2-.5..-5.-.0 0000s eee eee 652
line vettmvatscen (1955) C-AUreney.epeta terete ennPoreneyaterrrs ctrtotstars tees etakercrercr ve htetae sayy: 420, 426, 427
Ixxx Table of cases
. PAGE
Trollope & Sons v London Building Trades Federation (1895), CA .................+.45: 149
Trotman v British Railways Board (1975) .................-5. ntreeat Mlmee) ve. eae 254
dirotteriwa Maclean (S99). pan nres. 4 Sn SA SRE Beep sasSheva eens a oes Noa reed canner nceorev ewes 81
Mrathe(NZ)Lidevad verye (1959) eke, SASS... ie A ees Tee ar ete 529
Msikata) v Newspaper Publishing ple (1997), CA... . teen eee oan eee = 520, 524
bibervallewiSavager(UGG) Me../5 74s seas leva qesieeessnccancro eee owedapse steed Neneh enela Mee ree 3, if
TuckersviNewnmian (1839) Bee tatoseek ccleaner ase ee eee 409
Mucker vaNews: MediasOwnershipy Utd (O86) Ramee Sek eter seen ntae tyteed wets st.es. i neneonenenene 7
MullayweReedi(1S 23) cee pte Me CA RE LP Ay ae Eee oe 93
MunbridzesWellsi€ orpniveBairdi(d896): HII Ysa eet ee Sea eee eee ee 76
hurmersy sAmbler (USAT) so Sees. Red SO De IP a EE, 2 SPR teers 544
ilumernvaManstieldi@orpny (U9 7S)RCA. 2 2..eeenn reer ae eee ee te DISD 6
Turner (otherwise Robertson) v Metro-Goldwyn-Mayer Pictures Ltd (1950),
JU Seo oe cio ty eet CTC Ree RE Te eae eteen AS. DIRASS SiS AS 2Oss29 "531
iumennvs Ministnycots Defencer (L969) CAN a ccciercn cracks aoraeien ses nee nee tee note eee 603
MusontvaEvansr(L84O)y., 1. Soe ais dele dole eda A RR 2 Ee ee Sai
Mussaudev, ussaud(USIO) oi easesscovsoucsjonconowcorancr A Ae kok keltosMOE e R ee 129
Muottle, veBucks (UQOO) eaevpr ters cckcteccuseortkckes her-neucdskbedier-kucnecnce eee ee eee ene 114
uttonsy ADF Walter Ltd (1986) {88033261 cee ates & eae eee aes Yee 350
Mwineiv, BeansiExpresselids (1.946) vattdad946)) CA 2e 3.42 4> eee eee 354, 570
byreravaUnited kingdom) (97S) SECtEIRG, gic dierent ee nie none ke oer a ees 97
U
UBAF Ltd v European American Banking Corpn, The Pacific Colcotronis (1984),
GAs. LER LER ee US 0S hc. oo: faving Ae deed. Gees pet ee 126, 627
WCB Banksplesy, DavidwaRinder plciGi998)\ Meera erccvcecet recreate Seer ee eee 314
UdalexvaBloomsbury, AreasiealthAuthority, (11933) ii aaceatacrs ae eee ee ee a eee ee 226
WitramaresCorpnaveouche MOSM) 1S Gees Fe aahso essence n serra eee de ee ee NH
Uniform Star, The. See Shipping Co Uniform Inc v International Transport Workers’
Federation, The Uniform StarUnion Bank of Canada v Rideau Lumber Co (1902) ...... 63
Union Credit Bank Ltd v Mersey Docks and Harbour Board (1899) ...................45. 58
Union Transport Finance Ltd v British Car Auctions Ltd (1978), CA .................. 50855
Wnited AustraliaikidwaBarclayssBank bidi(l94), MILs ss: aesacn as ae eee 59 168621. 622.1623
WnitedsBiscmits (Wik)ibtdi veAsda:Stores bedi(OOT) an arercictavctesycnces
Mernene eae eee ee 132
WnitedMexthyx (Collientesi Con Rei G872) me aaa ae a aca ee ee a eee eee Praca |
WnitedStatesive Garroll Towing: Comnc (25.00) eee tacts ares ieee ae ee eee 252
United States of America and France v Dollfus Mieg et Cie SA and Bank of England
(952) Meee A, Bee, See Pek, Sere SA ee th, BPs vocsk eee roe Ae 65, 69
Universe Tankships Inc of Monrovia v International Transport Workers Federation, The
WiverseaSentinele (MOSS ao. 5 a 4yoracnsco sks scat: atk ek yee ee ae nee ee 592
Wisi Mgsyelel alle SiGUSHiS)) Weer fp seb seein ok acodnconenthckexopoton ceeutire thcite aoe ae ee a I 520
Uxbridge Permanent Benefit Building Society v Pickard (1939), CA ..................... >) //
Vv
Vacwell Engineering Co Ltd v BDH Chemicals Ltd (1971); revsd (1971), CA ........ 302.378
Valpyavesanderss(orsSaunders) (1848) Mit.ceeentendetnts o caseaehed a teneere cyile aiePAE haber nee ecaneas 622
WanlOppents) Combtdivalnedesars tdl(19211) Ces a astecyar eee ole nena te ee a ee ee a)
Vancouver GeneraliHospital vy, McDaniel! (1934), PGs ees) eet une ee edn ee 254
Vandyke v Fender (Sun Insurance Office Ltd, third party) (1970), CA .............. 568, 660
Wasey; vesumeysbree inns ((1996)5 GA. vs sraiscatacorsuspoted stelensy shesechPayee UAeea ae eee Seen eee SWall
Vaughan v: [email protected])9 200. $2. Cas eee AE eet Sone. Seep ae is ss Se)
Vaughan waMenloveq(is37). aadasen 4 Jos ao acter roars tet a en ee WTS 5256 25
Vaughan wiRoper& ‘CoLtidi(l94 7) NCA. Veda ec ee eee 269 eee
Vealeycbeards (11930) 6.2 ei Sis ces csacsvsaclac Asdcthoeoy scotoeAecclletin tac peue aire eT ee Sil?
Vellino v Chief Constable of Greater Manchester (2002) CAWs een ee ee 109
WVenablesiv) NewsiGroupsNewspapers: ltdi(2 00!) ees eee ere eee fy WS e479
Memeyry> WilkimslO62))' Mec. i arcePes Sm Sed cuncoin sichateA cave NERY ORSE RPA A nee ee ee 466
Wermonty?Bosleya(dO9
7) CAN ews ac On er ote Ao onsen es eo 219; 220
Verschures Creameries Ltd v Hull and Netherlands Steamship €o Ltd (1921), CA .......... 621
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937), HC of A .......... 396
VictonianiRailwaysi@omrsay,:Coultas)(1888)) PG financier
ene ee 219
Table of cases \xxxi
PAGE
Videan v British Transport Commission (1963), CA ..........c0cccccccececcceee. DNs, B)s)if
Vine v Waltham Forest London BoroushsCouncili(2000) GAM ae tee ee ges 67, 87
Wane Products iLidiv. Mackenzier & ‘Co-_Ltd (1969)... 0c cn nc cucu dP2OL ee ee Se 35
Virgo Steamship Co SA v Skaarup Shipping Corpn, The Kapetan Georgis (1988) .......... 242
WizetellvavaMudiexsiSclectslibrarvaletdi( 900)" @AU shee Lyles seeee eee, 505, 506
Vodafone Group plc v Orange Personal Communications Services Ltd (GUIDO Ti) er. Peer 141
Woddenkys GaytomlandiGaytoni (200i) i, eran ee a ee Se ee 334, 349
Vokes (C G) Ltd v Evans and Marble Arch Motor Supplies Ltd (1931), CA ............... 29
Ww
W (a minor) (medical treatment: court’s jurisdiction), Re (1993), CA ...............200-. 89
Wiiva eodellE 990) SCAG pis & csvaca cores Scho oun ntssalancnSk a ee 7A), 98}
Wikvebssex, County, Council: (2001) MHIe, S024 656s... ba nesadsc nas ant lals pee. ZO ZTO
WiBive Bauer Publishing eletds(2002)> Rays wlanevolt hanehetes® eye. cle. dyendh eee 7 OMIT
Warneravalnremationall Rive @onGhO2i) trea kauets er or ives t ton. ae eee Le 218
Wagon Mound (No 2), The. See Overseas Tankship (UK) Ltd v Miller Steamship Co Pty,
The Wagon Mound (No 2)
Wagon Mound, The. See Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd,
The Wagon Mound
Wiahtitan BanksibtdivaGhant Cheng iKume(lo75) PG), 56) eee ae eenee ee 657
WiallavakShenwoodiécasonsmiranspott Ltd) (1999). CA’). 53 Mle eee ee ee 584
WialnwaohtivallomerOfitces(2 002)i@ Agr a:teeyaen eee Sees 7, 26, 38, 40, 46, 479, 480
WalclevavaAGookes (i849) Rieti Star, sctie Retest: ocr psec a is chaetavcew cavetteracee ee ek ee 503
WrallkenmvaBa tnd (tS 92)) oP Coe aracssoysa. raps Neysc Seosion autusureseetaies evo rel ecoxcaeee 105
Wralkeray.Clyde-andewreng hs iene ds eet areas ees IS ee. See) Seed D ee 60
WalkermyiNorthumberland)[email protected] (1995) 2235 40 te ates 224, 252, 271
Mialkem(Reten) Kovac one etduvallodosoms (909) GA a era erraia chassis ee ee eee 529
Walken @ohn)Sszsons letdivallenry: Ost dé. Combtdl(1970)) 5 4 a0 sek ee eee me 13'S
Wialkicvavanrectsionsonsings td((1.97,9). ye Levee ee eicevee iso On es We ete 630
Wiallacekve Newmtorn (9 82) Uns AAMT A. av sraeee cost Ae a IE RL Shee oe 452
Wallevaie FLOM S7.6)) Paneer) suc eraicd khnedastaha seen ee ea eieed unmriees 5 Ree ee aie: 650
VU S Ve att SWS S53) ea cseaecaes suena Mac i aconcutoncae teciausse’s rolientuicdisairg eeveaaa caconciarerck EO one a ee 78
VLSI Ve TER TURE te Hie RO Ree ert eee nnn Mee eer Ge Re Ae as 424, 425
Wialstevalrlolste ds: Coultdi( TOSS) GAM co: ansvanc acs Reale ate te Sao ae 277, 560
Walter Ashtony (1902 )paney cre eee ee See. See. fs. 1 San. Aare) ree 134
Waltenevasclfen(lSsill)-satid, (i852). een bene. See ee) RS aoe 388, 394, 400
Wraltonm Bits hmlbevlandaWks ltd'i((97,.8) erm a fore ee teen, fear) eee ape ete ene 374
Wandsworth London Borough Council v Railtrack ple (2000); affd (2002), CA ........... 407
Wraplesvasucteya county, Councili(l998) MC Ay 5c eraeciet ne ee croc eters eeierene tes Sulees 2
Wards, ChickiGonstableiof WestuViidlands Police@i997), (CAR termes sitios © Jato eet 543
Wiardiv HenttordshireGountya@ouncil (STO) GAS ©Ayan Wa seceicra icra 4. ei te iret ms etl 338
Wyjar daevanls © COS.8) AP hae soyoeees as a okale evoboyoyohcuesroveekaystanine syorceushaay eae ele aud UNC ROM its NNER 251
Wandieva Nia carl eygi/ Oi) Ieates oycx cecesayeyranes oyexononyStorsks ccenie chRN ee Sloat Seleeeobs MEM cawentees 69
Wiandevakatzstlotel. (zondom)m(UO9D esCACM earecsafey ven ox. shed yon ae esl oe Sea re 339
Wardiivadlescop stores etd (UOT G UG AN Pier. srcseeen fetire otek salen ceKss seesientny CGEM Mana Rhee 276
\wiental &y \WHersK- (UISSKON Gens co ee c Seioe tO cena On AREER Cuan Oh DO b De chmoce Scag 6 Onin cr 499
Ward Lock & Co Ltd v Operative Printers’ Assistants’ Society (1906), CA .............. 417
Wareavs Garston Maulage: Comltdi (O44 © AR More peactsvscesttoien romantica sexy eure eter ee cate ater 427
Ware and De Freville Ltd v Motor Trade Association (1921), CA .............. 115, 162, 483
Wem wrlearelabinore! (OIREIN: poe oops ce een Deeb one Ae mace hore ei cc 41, 42, 87, 102
Warnink (Erven) BV v J Townend & Sons (Hull) Ltd (1979), HL ..... INS ea27> 133),0 iS saelsS
Weraren \y ltembys (nel (IRAs. sceeee ae meena een racoocneemoeroomeerncruconnerncoe.5. 571
‘Waratoa\y \Wermcsn, (Ue) lee ne oe ene heen Deb mn Mannan Sinan to neon oars nocd cc 493
Waren: 7 Wigan), (IGT), KO/NE eee te eter t Boone od.ch oom oon aamn is ono oi arian: 103
\Wasai, sj) (ECM). os geaes eon Ose ECC OU et gn Oe Ot) 08515 00 C5 aoe AGGRO SOE 508
WAS ORNRVEN VALLE TIRES OS) cgzcecieict <-oycl-r ayacewien ole Aisi analopalalevee vue)ebensistwnrars Gorden uaa) eennr Henin) eens 5)1)
Waters v Metropolitan Police Comr (2000), HL ........-. 2.6... ecece ee eee eee eee 162
Walkin, wy [leis (5S) Maes owarngd Peoeen pene out ooo e om nam Com nar anu ct cor Abst 502
Watkins v Birmingham City ree (CROTON CASS eres eeskscspards cs Sh aoe ee ae 556
\WWETE0S \7 LLCO MGIEIO)) ¢ ceoauce Senn OO RRO BODO UNOS ou Om cns Geman Noms reed ay Teor 542, 545
Watson v British Boxing Board of Control idk@00MaGA? ates erce stmt +. 200, 322
Watson v Buckley Osborne Garrett & Co Ltd and Wyrovoys Products Ltd (1940) ......... 37
Ixxxii Table of cases
Xv PAGE
‘Watsonsve MSE wani( 1905) SHU s.5-see N o 2, SO EER A Sede ee. hocks 512
Watsoniva Maclean (1858) ex Chim aster ee ana sae BePS ere SF teen 2,HOMEee 54
Watson val Murray SoC On(1955) eestor cececosea ceosteo hte At choatte pete Re AD. tA, Meee na 75, 80
Watson) (administratorsaon)mvaWiAllmotta (1991))iarrcs treet chee cette teat ote eee 611, 616
Wattave Hertfordshire: County (Councili(i954) "AY Fees Watney eee 2502515 252321
Watt, Kesteven County: Councilli(1955) mC Avi toes een nee toe =e ote 462 ore
Wiatteve Wongsdonw(lO3O) SCA aa alte cetcoyeecronadhenet chotigy wallyusneyrelcts/ nee wedaa taka eed Sinners 2D tee
Watt (or Dhomeas)ikv Dhomass(1947)S FILS se iia tates. chee neers ieee ele, Meee AA eee 23}
Watts vaEntieldtRotingsMullsn(Aduminiunn) Metdi (1952) CAR rere re eee see eeeesre t-te eee 469
Watts v Times Newspapers Ltd (Schilling & Lom (a firm), third party) (1997), CA .. 516, 525
WiauchopetvaMordecar(1970 SG An io <n ce cvciacp cis aes aoe aera eae OU IO 280
Waverley BoroughCouncillvabletcheni(1995) CAMs mr aetna eterna es eaeer tated eheP neers te 53
WiearingevePirellip iste 1197712) 5ELE meey-voees aieuner ences venenatis Roe nN En orsteotade fe eee aah ete tee 468
IWeaversvs Wards (G16) cssccrsssucrarsyeveuonrsoares
oyedcrtacer 0)anloncee tic MeReakebeats aoeeT Me ce 24, 27, 34, 649
Webb v Barclays Bank ple and Portsmouth Hospitals NHS Trust (2001) ................. 298
Wiebbrv; Beavan: (US 83))icc tapeusisesick atstevsostcusrchab acaneycperveliv acnererstecetete s auateral Neh eye eReNedeoem RR oo een 496
Webbivailimesibublishing:Comtdi(1960) mere wees. eee ree ea arco. Prd rare 518, 520
WeeddellivaJAePearcer®& Major (988) was. oan schon antes eee: eee te 651, 653
Weir v Bettison (sued as Chief Constable of Merseyside Police) (2003), CA .............. 556
Weld-Blundelliy; Stephens (920) Serle teers, oe heccsest ota cree ccveeich heleneonetsuey Peeve 192, 499
Weldon.vilimes BookiCo;Ltdi(oll) ACA 2 ee Ae ees nee ere any ie Och cee cere 506
Wellaway-v Courtier (1918), DG vy coun feta actos: Meemeneteteda: Heino Ses:HISIIEER Sysco eee 76
Weller & Co v Foot and Mouth Disease Reseach Institutes 966) meres ee errr 115, 242, 439
Wiellss:vaS iitly ((UOU/4 iy 53 sycwettauspesecusvoy avesacevenaeenceonajien sMsewetetendrahs Renata anlsnenehecevencus saat nee eI cue eer 123
Wiellsav Wells: 998) NLA gyng8 hot, Bercy Rea cheat iene untae a. aH a ee eee 597, 598
Welshiv; Chief Constable of the Merseyside Police (1993) aaa-s ssa ane ee eee 545, 638
WenlocksvaMoloneyi(l967)) 9.CA aise tok oe nol eee so eaten che MO ERe oct, PAN edt Rete: Ae Bele 651
Wenmani wv 7Ashi (853) eraeeeiino niec Se LE. Seed. ves 493, 521
Wennhakeve Morgank(1 888) aDEU Rl....8R EE DAS icds te dete vd Seteee ae eta aed ore ee ete 69, 493
WientworthsvawaltshiresCountys@ouncill((1993): CAS eee ee 332, 462, 468, 642
WiershofavaMetropolitansPolices@omniGl97Siite muvu-ee-rs eee eevee eee eee 100, 544
Wiestay Bristol iramways: Con(loos)miCA me 4s, eon ener ten ry ora eonieee 432, 434, 448
Westivismall wood QliS38))ctotctckerensterey ovo xia tecveeeatney ccrorctsne renereLciae Resi naiaie mech hee, Rear 45
Wiest evaaw este (ILO 1I1)) 2 CA eee syetie erctrc teatefter ahcuPeet taseNresusecwacevaweresayaucyeeavet
eascrcayewemetctet Se een aero 510
Wiesti(H)xccis onueidtve shephardii(964)) SI gern rccyae-coeie me eee ee eee ene 604, 605
Wiest) ondoni@ommercialeBanksltdivakatson(US84)) CAT. aie oe meena 8 eeteneeeta ateieee 123
Western Counties Manure Co v Lawes Chemical Manure Co (1874) ..................... 139
Western Engraving Co v Film Laboratories Ltd (1936), CA ....................04- 434, 441
Westhoughton Coal and Cannel Co Ltd v Wigan Coal Corpn Ltd (1939), CA ............. 436
Westrippav, Baldocks (1938) <attdi(i939)\ CA waey riers os seetee ett nen neSe Tee anes gg 74
WestwoodiveRostsOthce (1974). US yc Noe? eee ales BRAD ee ero eR aoe 473
Whalley;v; Lancashirerand Yorkshire: Rly, Coi(lisS4) Ay yaaa aoe ieee eee 95, 435
Wihatnianivs Rearsons (S68) wisr-pste nore oe sts oe ess eo rake non shai ciulcins Gatien a 568
Wiheativ; E) Vaconrs-Co Lidl (1966) SAL a. oens val y no VA ee ee ee ee $32
Wiheatley;vileodges(U97:1) IDC oe.5 pacraun caseaicestsp-Sengae inthe sveee ete A ee AO ee ee 101
Wiheelerivs CopasnClO SU) ii 5 ycnaseten ondevsyousssyanenersnsnaiarsv Seekcaswslo Ore ae ASE RTO ERA OOM a AON Beg 344
Wiheelernvaasaundersslbcde OOS CAt Pree wor: /cinyaoloteyabeyance 397, 418, 422, 451
WiheelervalNew. Merton: BoardlMilismetde(l933)aiG@Ay cayenne. centre on ee Se tee roe 472
Wheta\veScandlyn) Gl952) Fee ace. a tegen oe See Aint Sad SERED see ee 81
Whiter Bateya dC omlbtda(1 892) me More eS s\Sere. See SM. Ih Ae AE See A 522
WihitesvaBlackmore:(1972) siCAmwra.ttikiis tte eee Seo ease ee ee eee 341, 347, 349
White v Chief Constable of the South Yorkshire Police (1997), CA; revsd (1999),
IB) arin wigoschose cnc OM eee ae GCs eee Une Deer: eeOee 18; 1LO9S2ZISH2195224, 2255234
Wihitesvaliolbrookekrecision Castings Ltd) (985) Ay varie te eee eee eee 268
White v J and F Stone (Lighting and Radio) Ltd (1939), CA... ... .2.% 228i. k ase 492, 517
Wiitenveloness (1993) @ AlwardiGl9.95)) abtIesupreme terete ear rice ware US, RIES USI 9 GapeliOr.
LOS S213 2lOm23i5
D3 Sen39 265i Wi,
WihitexveMellink (89Si) MEU sper vcesick-scucwrascrcncesh
ene Ae Ro hae RenweneM Se ee Rae 132, 140, 142, 143
Wihite: ve Morrisn( L852) 0308 2 Srorspsvocci.o) ave a:shone al PP TAMURA RULE ATED 69
WiitenveRiley7(92li) xCAD sy Mess teredt, Beeches meee teeter tert eee eee eae eer ee oe 147, 157
White v St Albans City and District Council (1990), CA
White v= White? (950) CAuio. tenet co ent Beira Be ae teed 8 een ie oy ps 649
Table of cases \xxxiii
PAGE
WihitetordiveHunter: (O50) NHS 0:47 sce ee ED Cape ee eel oe 254
Mvnitehousesvelordan) (OSI) abe aes nee = oe en ORE weir sian aa 266, 273
Pepi leyyad Ware (lO) OAS 8 Oe damcneya vacua tRER ts ortea bos oft he 50
Whiting v Hillingdon London Borough Council (1970) .. 2.2.0.0... cccece cee cccceceee. 8382
Whitmoress(Edenbridse)seidiyeStantordi(1909)))ss95. 40.) eee eee ee 436
Whitwham v Westminster Brymbo Coal and Coke Co (1896); affd (S896) FCA: leer 2 ee 80
Wickham Holdings Ltd v Brooke House Motors Ltd (1967), CA .........-e0cecee cece. SI; 62
WACKSEvabenthamig iON oa encarta cimecy sacs sack] IMR, Cae Pe raat eben. 542
Wielandiv, CymlaltordyCarpetsiLtdi(969) maa eee eee ee ee 29730156302
WalchickgveManks-and Silverstone, (1934)) 4.425. 1 ee ee ed ee ee 416
Willd eave Natersn (S55) masses borane acs cncsae os 2G cia ectac ot Ce ERO re de Gti 60
Malkesivebung ertocdaMarket: Cos (1835) muses. Ane eee) ae eaee ets 424
Wallkinsivelelohtons (O32) ese men cracrus beanie sts acer acc an OA: A. See 415
WallksinsongveAnclitt, (BED) sietd((1986) aCAR: ae aiayee” peer ne fey, Nm ee 628
WalkinsoneveDowntony (L897) serec ci. secs a4 xioars crernh he A ee ee are 38, 122, 142
Wilks (formerly infant) v Cheltenham Home Guard Motor Cycle and Light Car Club (1971),
CA Tes Hae od tessue aeees encesticc ecsessuorcvsMca fe NA EE BAIN oe be 322
WalliamsweArcheri() 847), BxiGhy 5a kee tee 0 OES Bn 0 enlie peels ea) 65
WallltamsyvalB anksa (1.85.9) aera, ose kertts Social ey cee aren eae ae eee De 546
Williams v Birmingham Battery and Metal Co (1899), CA .....¢....... 00. cece eeeee 268
WwillramssveCanditie Conpny (19S 0) 9(CAC rae ae a eae re a ee ee eee 339
Wiilliamspvetdum pane ys UOTS) eyecare. sors oe te ceca kee al ute ee 26, 33, 649
Wallliamsyvabtursey(1959)) HC coieAs 2) eet ceed Seen ek. ety eee, kev eee, 9 ee 154
Williams v Natural Life Health Foods Ltd (1998), HL .............. PSS) PA 8s PA OLE
241, 242, 643, 647
WalliamssvebeeliRiver Wand-and Minerals €o, tdi (i886). GAl me ae or oe eee ee eee 65
WallramsseeB Conv HuBbronnleysd&Coultdi(l909) CARE ere ceases test acini teiiers ssi
Williams Onmv@ineeta (S74) meena menrea sme wr tire ory vrs eya ede ae yea ee SF)
Wallramsonavesonnel Thomycroft Saicoulketd (1940) GAVE?» Weetgdn ome ere eines 615
VAIS RRR WVCTICE (CHS IIS!) Bape reteset sacar cs a -atem eee eveuchs cbs oct leis Meee acta heoeeeans nae ee ata 54
WiallSonmveMinistrynoteDetencen (OSI) mince csrcgeeyerrn cca varnanes sieves neem aas cues enedcrane 607
Wilsher v Essex Area Health Authority (1987), CA; revsd (1988), HL ........ Q57ee 2695 279)
292, 561
Wilsons Rest exe pm vinen (USS GAs serene nth wy ta nsatee ces casevenerrct oy Sian nyeteye eee ottiene eer @ 651
WiTLSOTuR Var Esat eta ((133)3) amen areas eine totter Canine uerre er oerge A OP CONN Utn Dyci nyc jen ancl aviaeys 68
WalsonvaHodsson’s. Kingston) Brewery, Col (LOS) SDC Semi seeds -eseetet- etsas ed daa ctee 564
WilsonuvaHousin ceorpmy (L997); saci sessisl ache tucks susinncacc cesae ON Ne Shag Meee, Senne ot ee 159
Miilsormva leombank tdi (1963) io sre acesestotereteste =:coensesvarcrascosactsice
aso Seen SeaRieere ea 61, 62, 68
WalsontwaaNewbeary ad Saynek 6 taal et. ciate batches ae Seen Sh. See Richtee IE 434
Witlsonmvabnmele (1987) 5CARIN at cits & Ava wP Eat thts,Sete iee Nitro Pe SSW Ree. ceeeaterae.i etl 33, 649
Walsonivalyneside window, Cleaning Gon(l958) NCA Wercmi cis teiett. eeeietoteeaseste of articles 269
WalsonmvaU nied Gounties: Bank. Ltd (1920) 5EUG yas arp etegete ein Sever eee ener sie ears) eee 651
Wil sonmvawaddelli(@USi76)e UILTS .. yer laeiee diarc ste tetomtstedit- sl thean: reese anesthe caewen nn etdeme 435
Were 7 WIESE (CADUIN (GIN ee een coe ono cubenemenn et ror eo eeosoayiec eet oto n gute a Sle
Witlsonsiaca Glyde: Coal: Coultdavabnslishy(U938)) gills wean vetereneia ceaclea etet ienerten ceecuteks aetieR st tart 269
Wilts United Dairies Ltd v Thomas Robinson, Sons & Co Ltd (1957); affd (1958),
Oe ee eR eae rt ne es is eter heise ae CR Cee 131, 142
Wiinchiv Mid Bedtordshize: District: Councilll(2002)ie girs acre srenenss tence seers icia) tenietenen ck.)etanes 411
Wing v London General Omnibus Co (1909), CA .........2-- 22-2 eeee eee eee Dili.
WAI SRG TMS (ICLP ACO 4 hs cto © Oe Bem ORAS acidnyonS o plake c 6 a a kameka tc 49, 54, 68
Winnipeg Condominium Corpn No 36 v Bird Construction Co Ltd (1993); on appeal
(OSS) sCantS Ge yas ae a ie eee ey ence 4)ats are meester a Lr yaivs 360
Wainstanleyav, Bampton) (9431) <5 cer.) rare ote Steer lettelendivtelaiaieln'y ialetsferarsiad eitser« SS, Sy
(Wineries au (Ceucctiie PAUDKe: (IOS) JENG, Senco onsanmn con enmamonccmmoacuacocnoaueuaune PLT PETS
Cuneo oun neddundondoadods0 o> 177, 369
\Warnitedovojarerial a7 \Whoveins (C14) Gap eons ancococomoaes
Viner w Moen (RMD) 6ssues.cseso0 tn obucodccommi donna omulnbadcoons saan oo8r 75
\WIES WAL SEne (IDS (ON fame ones noc oUenO cnt cde ocn se soo oun due Clo Oui cuts aoe duca ob. 605
260s eee eee eee eee eee 607
Wisely v John Fulton (Plumbers) Ltd (2000) ........-..-
Withers vy Perry Chain Co Ltd (1961), CA 0. eee ee 249, 324
Wolverhampton New Waterworks Co v HawkestordaGhS59))im mews cucnwicwacve) serosa ieler scutes 466
WomblesubidavawomblestSkapslotde (19717) i y-revet creronehe acetate cseersteundenede tment oYtotnya)(ol= ree-tca fala 134
Wong v Parkside Health NHS Trust (OAUMINS (ON wins aed 580.0 10.06 6 OMe ETO OCD Morea ceric 39
eet 265
Wong (Edward) Finance Co Ltd v Johnson Stokesraa Masten (984)shG saa. aes eieiai
Ixxxiv Table of cases
\ PAGE
Woodkvabelli(@s56)onsappeal (85.6) Exe Chic creek ere Colter eeeeret eee ter serehetenae 52
Woodhva ConwayaCorpni (O14) CAG sme ore eee eecaeee Tee ade
© oes 422
Woodivalbanesandi@leatont (S84) ajar o1-10.cxonerch svovenarcuctausrcWaaeauay stokedew Wnt egeKoteie oie IRC Ree ee 42
Woodivi Meadbitters(1845)) sc ceed SOS ES Ate Pee es Distant eoeeeen 83
IWoodtvaMore woods (184i t eens A Aaah adored Merce ds Moe IM ho oa ei Nene menneoegee eats 64, 81
Wioodruphva Nicoll @998)) CAM ise rece e ocr-0. ANC dn CPE. aa Gee aR NEM Se eae eco: caer 600
Woodward’s Trade Mark, Re, Woodward Ltd v Boulton Macro Ltd (1915) ............... 130
WooldridgenvaSummnens (U968)) iG AR escrs ore oseiicnowen deten ayescnetens aneecnc ueRocRene eae 250302585 3226325
Woollerton sa WilsonsltdivaRichard:@ostainnitd'(197,0) ee ty cin neet aot eens ei ior re ele 588
Wiorlseya(E) 6c @ onlttdivaC oopert(l989) ie. ease aches ened eee ete eee ee ane 143
Wiorsfoldevallowea(19.8 0) GA rei owen uerisnarononte tevcneriensn anfeton MetronerartelieWontaect choschisneselpeeyeR chem aMeee eae ee 262
Wiorslevave Tambrandsaltdl (2000) CGA ers sarc seeaesneic echo bik cho Ce. NE RENEE. ets 383
Wiotherspoonkva Gurion (S72) eRe ora aeatxeteuayctasa illest can eucnney- sytem eas een 130
Wioyka és (Conv, London’ and) Northern Trading: Co (i922) 5GATT r ria. e iced eee ler eheneen 25
WarichtveButish Railways Boardi@983) SW meta oe steko eee fs eee ete 594, 595, 607
Wright*vGedzicht(193.0))4. Fao eas ke, FRIAR eR eee Lh SAR 499
Wiiehtive Cheshines@ountya Councils (952) siCA acs essen coseeerreye tree eee rience era 254
Wright v Dunlop Rubber Co Ltd (1971); affd (1972), CA ............. bent 2.wate
Ae 374, 384
Wrightivaliodse: (1993) CAue. = Daeeeee ec enc ieeia ec ep Dat oe, A Cees. eres 282
WinishtevcRams cots (lG67,) ge i-cyemsccts lacs Mack. Muah Sind wSeepee Sieh deco eee Ps ols ee 67
Wari chit: Vac WilSome(lG99)) Fae 5 5 OBIS = Reece cenihimicnanonchene etme regae tee AE ea ad 41
Win CHERVAWOOd ate CUSSS)) APRS ecccioncscxcenenaiter ctionte Bhicheyetlouesencue:te oucxsuclic RRMD oeMOMMA 515
Wright, Layman and Umney Ltd v Wright (1949), CAs LO I ee a ee LZ9
Wiringenve oben (L940) 5CA, a ciarsisuesiueroistoce ubetehe ois alane ieee stoke ite etek er. 397, 416
Wryattsvaliullinsdon London Borough) Council! (1978) CA. 2.2 eae eee eee eee 467
x
X v Bedfordshire County Council (1994), CA; affd (1995), HL ........... LESHeLOONAN9GS 20K,
203, 204, 205, 206, 207, 458,
459, 462, 463, 466, 467
XEVIPVAHOSS)L Freer aeieren: ates hee RE Ae hele fa OL GD CR ROTA, 17.0 Seals
Y
ia (mentalipatients bonesmatrow idonation).wRei(997) i ae oe anes oe eee ee 28, 90
Wachukavi Oliverblarsi@oactdi(. 949) 4iP Cae eke erate, fe crete eee ta uae eterno PES)
hWarmouthmveakrancen (S87) wer, 5 weniercrrocet: Actese Ce weesaci ncterereccincnci Ae OMete Rese acn ee ae 323
Yelland v Powell Duffryn Associated Collieries Ltd (No 2) (1941), CA; on appeal sub nom
Davies v Powell Duffryn Associated Collieries Ltd (1942), HL ............ 609, 613, 614
Wepremianuvescarborou shyGeneraliiospitall (i980) ee mento eenenes Seene eer eee oc ee 561
Hoan vaedwanwkvansiScs sons, (hOS82)iee sane oes arene Clee: CRICeR. red ShaIOR Ieee ete 314
Yorkshire Dale Steamship Co Ltd v Minister of War Transport, The Coxwold (1942), HL .282
Woullkvaltarbottle, (79M) ELA 5 Swe fob 5.5,Solanhy aa nyo Rtonysesiaic Oekon.ace PEARL ae eat Oe ee 58
NOUNS WH BOK Ses CONG OSM) OF ous ctatlosa.tnenanoiscan ee teadoe ik Re eee AR Beck SE CER 570
YounsiwiEdwardiBoxrs Cometal (19S1) GAR. Shae... seen. See oe RN ee Ee 354
Noun save Vlacracy S62) aiwpe ateclwthe.cusns i ekeues crcesuchence chana Uuateadesge tyencsuet esky oomcgsl octener ner<All a 140
MounsivePercivalsGlosayeGAl 5A.iin, Ae olde hy denc Ree Raiece Senne Ae ew ed P. sot 614
WiOUNT VER AN GIS BANPS sinc dcuae snaueroariorcestentene Ctenticet Rete oaacan MT NEE A RMD, COO, ee 650
Niounge(Bdward) (SiC osletd ivaHoltn( 947) sx. crdcs, ca ciomrecrves.1soerstae Ree etn kon eee Vif
VounsssaWoodssletdive west (980) tGAO tery. enaniecl tee. ede. Aen Aenea ea Ae, Senne 554
Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934), CA ................0.. 481, 494
Kuen Kune eum A-Giot Hongkong (l988) PCa. mice acres ae te eens mee ee enna 182
Z
Zavemited Kang dom: (2002) 5b CUIR Se ciate rayears deen -eyehas startet tate reset 8, 11, 209, 216, 459
Part |
Introduction
2. Introduction
Contents ‘
CHAPTERS PAGE
1 The law oftorts « 3

CHAPTER |
The law of torts
Section |. What is a tort?

The very word tort may pose a conundrum for the novice law student. Crime and
contract will be terms with which he or she is already familiar, but what does tort mean?
What is the law of torts about? Much ink has been spilt in attempts to define tort with
only limited success; at least for the student new to the subject. Winfield’s classic
definition declared:
Tortious liability arises from the breach of a duty primarily fixed by law; such
duty is towards persons generally and its breach is redressable by an action for
unliquidated damages. !
A more recent definition, offered by Peter Birks, suggests that a tort is:
[T]he breach of a legal duty which affects the interests of an individual to a
degree which the law regards as sufficient to allow that individual to complain
on his or her own account rather than as a representative of society as a whole.’
Yet these definitions do little more than point towards one kind of remedy that is
available in tort and towards certain distinctions between tort and other branches of
the law.’ Historically, in contract, for example, the duties undertaken by the parties
were generally fixed by agreement. By contrast, duties in tort were imposed on all
citizens. And while in crime redress was by means of punishment by the state, in tort
the redress was primarily by way of an award of compensation sought directly from the
defendant by the claimant. Today, as we shall see at the end of this chapter, even those
distinctions between tort and other branches of law are sometimes blurred. Partly for
this reason, a satisfactory definition of tort remains largely elusive. Perhaps the best
explanation that can be offered at this stage is this. Tort is that branch of the civil law
relating to obligations imposed by operation of law on all natural and artificial persons.
td Winfield, Province of the Law of Tort (1931) p 92.

2 Birks, ‘The Concept of a Civil Wrong’ in Owen (ed), Philosophical Foundations of Tort Law
(995) ipio ls
3 For a fuller account of the distinction between tort and other branches of the civil law, see
Fleming, The Law of Torts (1998) pp 3-5 and Cane, The Anatomy of Tort Law (1997) pp 182-
196.
4 Introduction
It concerns the basic duties one person owes to another outside of a contract or the
obligations triggered by an unjust enrichment. No further attempt at defining tort will
be made here, since, as Pollock rightly said:
there is ... rather too much talk about definitions. A definition, strictly speaking,
is nothing but an abbreviation in which the user of the term defined may please
himself.
It is the functions and purposes of the law of torts that are of greater importance, and
these are matters that can be explained in comparatively simple terms.
Tort law defines the obligations imposed on one member of society to his or her
fellows and provides compensation and other remedies for harms caused by breach of
such obligations. Tort is often described as centrally concerned with corrective justice
— that is, loss-adjustment from the person initially wronged to the wrongdoer.’ In
consequence, the law of torts is often judged by its success or otherwise as a
compensation system. In simple terms, since most tort actions have as their objective
monetary compensation for a loss inflicted on the claimant by the defendant, the
question that most often arises is ‘who should bear the relevant cost?’ Should it lie
where it falls on the unfortunate claimant? Or is the conduct of the defendant such that
the law should shift the loss to him? In the tort of negligence, and many of the torts
discussed in Parts IV and V, for example, loss adjustment is a core issue. Tort’s ‘success’
in these areas must therefore be judged at least in part by its efficacy as a compensation
system.
But compensation is not tort’s only concern, and monetary damages are not the only
available remedy. Torts are also designed to protect fundamental human interests.
Here, ‘interests’ may be defined as the kinds of claims, wants or desires that people
seek to satisfy in life, which a civilised society ought to recognise as theirs as of right.
Society must therefore determine which of the many human interests are so fundamental
that the law should recognise them and provide a remedy when those interests are
violated by others.
In the first edition of this work, Street’s emphasis on the claimant’s interests as opposed
to the defendant’s wrongdoing was perceived as radical, even bizarre. Yet I retain and
endorse his emphasis on interests. No claim in tort can succeed, however morally
reprehensible the defendant’s conduct, unless the court first recognises some form of
harm suffered by the claimant that involves a violation of an interest sufficient to
confer on the claimant a legal right to protection of that interest.° The starting point of
any analysis of the law of torts must be a consideration of those rights and interests
which the law of tort protects. It is apparent that one of the functions of the law of torts
is the protection of what are popularly known as human rights. Yet until the Human
Rights Act 1998 came into force in October 2000, tort law’s protection of human rights
was piecemeal and unsystematic. As we shall see in the next section, the Act has now
reinforced the role of torts in protecting human interests and enabled the courts to
4 Book review (1931) 47 LOR 588.
5 There is now a voluminous literature on tort law and corrective justice, but especially good is
Weinrib, The Idea of Private Law (1995) and (more briefly) Wright, ‘Right, Justice and Tort
Law’ in Owen (ed), Philosophical Foundations of Tort Law (1995).
6 See, for example, Rogers v Rajendro Dutt (1860) 25 JP 3; Bradford Corpn v Pickles [1895] AC
587, HL; Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370, HL.
The law of torts 5
break free of some of the historical restrictions on developing the protection of certain
interests.
Section 2. Human rights and protected interests

We now attempt to identify those interests which common law has traditionally protected
in order to consider how a human rights analysis broadens, or potentially broadens,
the scope of such interests. We also consider whether interests hitherto unknown to
the common law may emerge in the new ‘human rights era’. But first, a brief explanation
of the mechanics of the Human Rights Act 1998 is called for.
(A) The Human Rights Act 1998

The Human Rights Act 1998 has prompted academics and judges to rethink seriously
the boundaries and substance of tort law.’ Although the full effects of the passage of
the Act on the law of torts are yet to emerge, it has already become apparent that the
Act’s impact will be significant. Much of the case law that has already begun to
develop will be discussed in the context of the relevant following chapters. But for
present purposes, it is useful to explain something of the scheme of the Act, to enable
some appreciation of its relationship to the law of torts in general terms.
Contrary to what is often said in the press, the Human Rights Act did not incorporate
the European Convention on Human Rights into English law. Rather, the Act provides
(1) that, wherever possible, primary and subordinate legislation must be interpreted in
a way which is compatible with ‘Convention rights’* and (2) that it is unlawful for any
public authority to act in a way that is incompatible with a ‘Convention right’.
“Convention rights’ mean the fundamental rights and freedoms set out in Articles 2 to
12 and 14 of the Convention, Articles | to 3 of the First Protocol (concerning rights to
property, education and free elections) and Articles 1 and 2 of the Sixth Protocol
(abolishing the death penalty).'° Reference to relevant Articles and Protocols will be
made from time to time throughout this book and all the relevant Articles and Protocols
are set out in full in Appendix 1. Section 11 of the Human Rights Act 1998 makes it clear
that ‘Convention rights’ exist in addition to, not in substitution for, rights and freedoms
already endorsed at common law. It may, at first glance, seem odd that no express
provision of the Act appears to require that the judges develop the common law in a
manner consistent with ‘Convention rights’. Two factors explain that apparent omission.
First, for some years now English judges have, wherever possible, sought to ensure
that the common law is consistent with such rights.'' Secondly, and more importantly,
section 6 of the Act makes it unlawful for any public authority to act in a way
a For comprehensive treatment, see Wright, Zort Law and Human Rights (2001). And for a
useful introductory account see Buxton, ‘The Human Rights Act and Private Law’ (2000) 116
LQR 48.
8 See HRA 1998, s 3. For an introductory account of the Act, see Ewing ‘The Human Rights Act
and Parliamentary Democracy’ (1999) 62 MLR 79.
9 See HRA 1998; s 6.
10 See HRA 1998, s 1.
11 See, for example, Rantzen v Mirror Group Newspapers [1993] 4 All ER 975, CA; Olotu v
Home Office [1997] 1 WLR 328, CA; R v Chief Constable of North Wales Police, ex p AB
[1998] 3 WLR 57, CA.
6 Introduction
incompatible with ‘Convention rights’, and since the courts are classified as public
authorities’? a judge adjudicating on a claim in tort must,develop the common law
compatibly with ‘Convention rights’ and ensure consistency between common law
and ‘Convention rights’.'’
For the tort lawyer, the most crucial element of the Act is the provision that ‘Convention
rights’ are directly enforceable against public authorities, and that an individual who
considers that his rights have been violated can sue for damages.'* Where an individual
considers that a public authority has acted in breach of ‘Convention rights’, a number
of rather different outcomes must be considered. First, in many cases, the self-same
rights conferred by the Convention are already recognised by the law of torts. For
example, Article 5 provides for a right to liberty and security and protects the citizen
against arbitrary detention. The ancient tort of false imprisonment protects that same
fundamental interest. A person alleging unlawful arrest by the police will not need to
resort to claiming a breach of Article 5. He can perfectly well sue in false imprisonment.
But in determining whether that arrest was lawful, the court will be mindful of the
provisions of Article 5 and the jurisprudence of the European Court of Human Rights."
What if a ‘Convention right’ is not so well established in domestic law. Arguably
privacy is not.'® The claimant might then elect to bring his claim under the Act alleging
breach of Article 8 which requires respect for private and family life. If he elects for a
Convention remedy alone he can sue under the Act, but only if the defendant is a
public authority. Were we to discover that the Home Office is bugging our office, suing
a government department as a public authority should be straightforward. But, what if
a tabloid newspaper invades our homes splashing our private business all over its
front page? It is arguable that the newspaper, too, may be classified as a public authority,
for section 6(3)(b) classifies as a public authority ‘any person certain of whose functions
are functions of a public nature’. State schools and universities thus clearly qualify as
public bodies, as do charities such as the NSPCC. But the status of other bodies
remains unclear for the present, and much still needs to be worked out by the courts in
terms of what constitutes a public authority for the purposes of the Act.
Next, let us consider the situation where the wrongdoer is an entirely private individual
— let us say, a colleague who invades our privacy by persistently peering through our
window and monitoring our private correspondence. In practical terms, some common
law remedy may often be found within which to frame a cause of action which will be
reinforced by reference to ‘Convention rights’. The ‘snooper’ who peers through
windows and opens mail could be liable for harassment"’ or trespass to goods.'* But if
12 See HRA 1998, s 6(3)(a).
13 Otherwise the court itself acts unlawfully under HRA 1998, s 6.
14 See HRA 1998, ss 7-8.
15 As is already the case, well illustrated in the judgments of the members of the Court of Appeal
in Olotu v Home Office [1997] 1 WLR 328, CA.
16 Something very close to a tort of invasion of privacy seemed to be developing in this country,
but was set back considerably by the decision of the House of Lords in Hunter v Canary Wharf
Ltd [1997] AC 655, HL (discussed in ch 18). But whether the restrictive approach on rights to
sue in nuisance adopted in Hunter will survive the passage of the Human Rights Act has already
been questioned. In McKenna v British Aluminium Ltd, (2002) Times, 25 April, Neuberger J
refused to strike out an action on the basis that Hunter was arguably incompatible with Cs’
Convention rights.
li Seen 3.
18 See ch 4.
The law of torts 7
the facts of the case do not lend themselves adequately to the invocation of an existing
common law action, what is the position?
Before the Human Rights Act 1998 came into force, the right to privacy was never
firmly established at common law in this country.'? The protection of privacy that did
exist was achieved in an ad hoc and piecemeal fashion via the laws of defamation,
confidentiality, nuisance and trespass to land. In Douglas v Hello! Ltd,° however,
Sedley LJ took a robust step towards recognising such a right. The case concerned an
application for an injunction to restrain publication of wedding photographs taken of
two famous film stars. According to his Lordship in an obiter passage in his judgment,
the court’s obligation to adjudicate consistently with a claimant’s Article 8 right would
enable it to develop the existing common law so as to give full and proper protection to
the Convention right to privacy.”' But three important countervailing views must be
noted.
First, not long after the decision in Douglas v Hello! Ltd the impact of the Human
Rights Act in this arena once again fell to be considered judicially. In the High Court in
Thompson and Venables v News Group Newspapers,” Butler-Sloss LJ expressed the
view that the courts were constrained to the extent that they could only offer further
protection to privacy interests within the parameters of extant common law actions.
She did not feel that the courts possessed carte blanche to create new causes of
action. Her view was later endorsed (albeit obiter) by the Court of Appeal in Wainwright
v Home Office.” In relation to the development of privacy rights within the law of torts,
Buxton LJ said this:
I have no doubt that in being invited to recognise the existence of a tort of
breach of privacy we are indeed being invited to make the law, and not merely to
apply it. Diffidence in the face of such an invitation is not, in my view, an
abdication of our responsibility, but rather a recognition that, in areas involving
extremely contested and strongly conflicting social interests, the judges are
extremely ill-equipped to undertake the detailed investigations necessary before
the proper shape of the law can be decided. It is only by enquiry outside the
narrow boundaries of a particular case that the proper ambit of such a tort can be
determined. The interests of democracy demand that such enquiry should be
conducted in order to inform, and the appropriate conclusions should be drawn
from the enquiry by, Parliament and not the courts. It is thus for Parliament to
remove, if it thinks fit, the barrier to the recognition of a tort of breach of privacy.”
Thirdly, after the wedding photographs had been published in the Douglas case, the
wealthy claimants pursued an action for damages alleging, among other things,
infringement of their privacy rights. Lindsay J held that English law does not recognise
19 Cf the United States where the right not to have facts concerning C’s private life made public
against his will was established in Melvin v Reid (1931) 297 P 91. See also Tucker v News Media
Ownership Ltd [1986] 2 NZLR 716 and (less equivocally) Bradley v Wingnut Films Ltd [1993]
1 NZLR for parallel rights in New Zealand.
20 [2001] QB 967.
21 [2001] QB 967, at [129].
22 [2001] Fam 430.
23 [2001] QB 967, at para 112.[2002] 3 WLR 405, CA.
24 [2002] 3 WLR 404, at [112], CA.
8 Introduction
privacy as an independently protected right.* Adopting the Wainwright line of

reasoning, he gave five (not altogether distinct) reasons why it was unnecessary for
him to set firmly in place a tort protecting privacy.”° While this decision may ostensibly
appear to have halted the move towards the establishment of such a tort, it must be
borne in mind that it was only a first instance case, and thus no more binding than any
of the preceding case law.”’
Thus, in summary, the most we can say is that there arguably remains an obligation on
the part of the English courts to develop the common law in a fashion that is consistent
with the Article 8 Convention right to respect for privacy. This would be an aspect of
the Act’s so-called horizontal effect.** On the other hand, this horizontal effect should
not be seen as empowering the courts to engage in free-and-easy judicial legislation,
and Article 6 (which grants a right to a fair trial) cannot be invoked to chivvy the courts
along in this respect, for Article 6 does not carry with it any substantive civil law rights:
it merely provides a procedural guarantee.”
Finally, in this context, we must note that in relation to primary legislation the courts’
role remains limited by the doctrine of Parliamentary sovereignty. Section 3 of the Act
only requires the judges to interpret domestic statutes consistently with ‘Convention
rights’ so far as it is possible so to do. The Act grants no power to strike down
legislation; and in cases where legislation cannot be interpreted in a manner that is
consistent with Convention Rights, the higher courts are limited to issuing a declaration
of incompatibility.*°
(B) Interests protected by the law of torts

One important issue that must be identified here is that it is not uncommon for the
central question in a tort claim to be how the law must reconcile competing interests.
For example, every citizen can assert a right to free speech as well as a nght to freedom
from the deliberate publication of words injurious to his reputation. Thus, protecting
A’s compelling interest in the latter may involve restricting B’s right to the former.
25 Douglas v Hello! Ltd (No 6) [2003] EWHC 786, at [229].

26 Lindsay J felt (i) the arguments against a tort protecting privacy voiced in Wainwright were
more compelling than those of Sedley LJ in the original Douglas v Hello! Ltd decision; (ii)
there was no hole in English law that needed to be filled by such a tort (the instant case being
successful on the basis of breach of confidence); (iii) if there was a need for privacy to be
protected by law, it was a matter best left to Parliament to implement; (iv) the existing law on
breach of confidence goes far enough and (v) a tort centring on privacy would not avail C of
anything that existing confidence actions would not provide: Douglas v Hello! Ltd (No 6)
[2003] EWHC 786.
27 On the other hand, note the operation of the defence of discluren in the public interetst in this
context: see Campbell v MGN Ltd [2003] QB 633, CA. (Photographs of a controversial
supermodel attending Narcotics Anonymous were held not to be a breach of confidence nor an
actionable invasion of privacy: the disclosure of publication of the photographs were held to
be in the public interest.)
28 See Bamforth, ‘The Application of the Human Rights Act 1998 to Public Authorities and
Private Bodies’ [1999] CLJ 159; Wade, ‘Horizons of Horizontality’ (2000) 116 LQR 217;
Hunt, ‘The Horizontal Effect of the Human Rights Act’ [1998] PL 423.
29 See the twin decisions of the European Court of Human Rights, in Z v United Kingdom (2001)
34 EHRR 97 and TP and KM v United Kingdom (2001) 34 EHRR 42. See also Gearty, ‘Osman
Unravels’ (2002) 65 MLR 87 and Gearty, ‘Unravelling Osman’ (2001) 64 MLR 159.
30 See HRA 1998, s 4.
The law of torts 9
Hence, certain defences that justify what would otherwise constitute tortious conduct
are of crucial importance. And it should be noted that nearly all ‘Convention rights’ are
qualified in some measure.
We look now at the kinds of interests that the law of torts protects.
(1) Intentional invasion of personal and proprietary interests

The protection of the person from deliberately inflicted physical harm, restrictions on
freedom of movement, and the protection of interests in tangible property — especially
the right to non-interference with land and goods — were originally the most important
concerns of the law of torts. Their importance will be recognised by dealing first in this
book with the invasion of these interests by intentional conduct. The relevant torts
include interference with goods and trespass in its various forms. It is these torts
which provide the foundation of the protection of ‘Convention rights’ to life (Article
2), to freedom from torture or degrading treatment (Article 3), to freedom from slavery
(Article 4), to liberty (Article 5) and to peaceful possession of property (First Protocol,
Article 1).
(2) Interests in economic relations, business and trading interests?'

The extensive protection afforded to individuals’ interests in freedom from physical
harm and in their property is not mirrored by similar protection of interests in economic
and business activities. The so-called ‘economic torts’ remain somewhat unclear in
their scope. Furthermore, very real difficulties exist in reconciling protection of one
individual’s economic interests with another’s right to engage in free competition in a
market economy. Torts in this area include deceit, passing off, interference with
contractual relations, conspiracy and intimidation. “Convention rights’ would not appear
to play any immediate role in these economic torts.
(3) Interests in intellectual property

Interests in tangible property, land and goods are, as we shall see, well protected by
the common law. Intellectual property in confidential information, copyright, and patents,
poses greater problems. Much of the law in this field is statutory and interests in
intellectual property generally overlap with interests in economic relations. But this is
not invariably so. For example, breach of confidence — as yet a fairly embryonic tort —
protects a patient’s right to confidentiality from his doctor as much as a multinational
company’s right to protection of their trade secrets.
(4) Negligent interference with personal, proprietary and economic interests
Protection of persons and property limited to deliberately inflicted harm would be

manifestly inadequate in our complex and overcrowded world. Nor would such limited
31 For thoroughgoing consideration see Carty, An Analysis of the Economic Torts (2001).
10 Introduction
protection meet the requirements of the Human Rights Convention to safeguard life
and bodily security. Since the landmark decision in Donoghue v Stevenson in 1932,
however, the courts have developed the tort of negligence to safeguard further personal
safety (including, within limits, mental integrity), property and economic interests. But
because of the absence.of any requirement that harm be inflicted ‘directly’ in the tort of
negligence,” the judges have adopted a cautious and relatively unpredictable approach
to protecting economic interests from negligently inflicted harm.
(5) Further protection of personal and proprietary interests

Personal and proprietary interests rank so highly in the order of priority of interests
protected by the law of torts, and within the hierarchy of “Convention nights’ that
further torts have emerged offering protection for those interests against conduct
which is not necessarily, or cannot be proved to be, either intentional or negligent.
There are torts of ancient origin — such as nuisance — and there are those of much more
recent vintage — such as the rule in Rylands v Fletcher — which were developed during
the height of the industrial revolution when a whole new range of threats to private
property were born almost overnight. Both these torts highlight the importance vested
by the common law in the landowner’s interest in his property, sometimes seemingly in
a manner that gives greater emphasis to these interests than to those in freedom from
personal injury.**
The action for breach of statutory duty represents the common law’s response to
comparatively recent welfarist legislation, usually designed to improve standards of
public health and personal safety. Equally, albeit at the behest of the European
Community, Parliament has also introduced a regime of strict liability for injuries caused
by defective and dangerous goods.**
(6) Reputation
The law of torts has long protected an individual’s interest in his reputation via the
torts of libel and slander. But these torts are of limited scope and, as we have already
remarked, fall a long way short of providing comprehensive protection to individual’s
privacy interests. These torts are also subject to a wide range of partial and complete
defences.*°
(7) Due process

A right to protection from malicious abuse of the judicial process is recognised in the
tort of malicious prosecution and its ancillary tort of abuse of process. Now it seems
that a tort to prevent abuse of the administrative process is in its early infancy; and
32 For the import of this, see ch 2.

33 But cf Gearty, ‘The Place of Private Nuisance in the Modern Law of Torts’ [1989] CLJ 214.
34 See ch 17.
35) |SeesRarte23:
The law of torts \\
Article 6 of the European Convention on Human Rights looks set to contribute

significantly to its development.*°
(8) Miscellaneous interests: ‘convention rights’ and European Community law rights
The antiquity and somewhat piecemeal development of torts means that there are a
number of residual torts which defy classification. More importantly, however, a
question now arises as to whether the principles developed by the common law offer
adequate coverage of ‘Convention rights’. Does the Convention recognise interests
unknown to the common law? The most obvious example of a possible lacuna in the
law of tort has already been noted: the protection of privacy guaranteed in the
Convention by Article 8. However privacy is also an excellent example of how dangerous
it may be to look at any alleged human right in isolation. Article 10 establishes a right
to freedom of expression, to hold opinions and disseminate information. The media
and others fear that a right to privacy, if developed without proper safeguards, could
undermine that latter right. Unscrupulous individuals whose conduct adversely affects
others’ interests would seek to use Article 8 to prevent public knowledge of their own
activities. But Article 8 would permit the publication and dissemination of such
information so long as it could be shown to be necessary within the specific terms
mentioned in Article 8(2).*’
Turning to European Community Law Rights, it has for some time been recognised by
the English courts that directly applicable European Community Law can create
obligations the breach of which entitle affected persons to sue for the harm thereby
caused.** But as originally understood, these ‘eurotorts’*? were strictly limited to
instances in which the European legislation in question imposed obligations on private
individuals. Thus, in one case where the United Kingdom was in breach of its
obligations and imposed an unlawful ban on the import of turkeys from France,” it was
held that no private law right of action arose and that only public law redress by way
of judicial review was available. Since then, the European Court of Justice has recognised
a much wider principle of state liability that undermines the reasoning in this case.*! In
Francovich v Italian Republic” the European Court held that failure by a member
state to implement a directive from the Community designed to create rights on the part
of particular individuals would give rise to a claim in damages on the part of those
individuals. What was perhaps most significant and remarkable about the decision in
Francovich was that the Community legislation in question was not directly effective
(which meant that, in the absence of an action against the state, there would have been
36 It has already been raised on a number of occasions in connection with the striking out of
negligence claims: see Z v United Kingdom (2001) 34 EHRR 97 and TP and KM v United
Kingdom (2001) 34 EHRR 42. See also Gearty, ‘Osman Unravels’ (2002) 65 MLR 87.
37 See Appendix 1.
38 Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130, HL.
39 It has been confirmed that an action for a breach of Community legislation is of the same order
as an action for breach of statutory duty and that therefore the action is one in tort: see R v
Secretary of State for Transport, ex p Factortame (No 7) [2001] 1 WLR 942.
40 Bourgoin SA v Ministry of Agriculture [1986] QB 716, CA.
41 The House of Lords also doubted its correctness in Kirklees Metropolitan Borough Council v
Wickes Building Supplies Ltd [1993] AC 227, HL.
42 [1993] 2 CMLR 66. See Craig (1997) 113 LQR 67.
12 Introduction
no-one against whomvan action could have been brought). But it has now been made
clear by the European court that the Francovich principle applies equally where the
legislation is of direct effect,* where the breach of Community law entails a legislative
act (not merely an omission), and in respect of administrative decisions.”
The conditions that must be satisfied in order to sue according to this ‘eurotort’
principle were set out by Lord Slynn in R v Secretary of State for Transport, ex p
Factortame Ltd. He said:
Before a member state can be held liable, a national court must find that
(i) the relevant rule of Community law is one which is intended to confer rights
on individuals;
(i) the breach must be sufficiently serious;
(iii) there must be a direct causal link between the breach and the loss complained
of. 46
The similarity between the first requirement and the test adopted in relation to an
action for breach of (domestic) statutory duty is immediately striking.*’ Furthermore, it
is clear that this requirement can be invoked to restrict the operation of the Francovich
principle. For in Three Rivers District Council v Bank of England (No 3),** for example,
the House of Lords held that a failure to comply with a banking directive concerning
the regulation of credit institutions was fundamentally concerned with harmonising
banking practice, and not with protecting depositors. As such, the Community
legislation in question was not viewed as intended to confer rights on individuals, and
the eurotort action in that case failed at the first stage.
It has since been explained further in relation to the second limb, that the pivotal
phrase ‘sufficiently serious’ does not necessarily require negligence or fault (although
fault may be a material consideration), and that the seriousness of the breach must be
judged in the context of the clarity of the community rule breached and, where
appropriate, the legislative discretion afforded to the member state.”
Section 3. Theoretical perspectives on the law of torts

In recent years there has been much theorising about the proper parameters of tort
law; about the bases of tortious liability;°! and about whether tort law should serve
43 Brasserie du Pécheur SA v Federal Republic of Germany (Case C-46/93) [1996] ECR 1-1029.
44 Rv Secretary of State for Transport, ex p Factortame Ltd (Case C-48/93).
45 Rv Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) (Case C5/94)
[1996] ECR 1-2553.
46 [1999] 4 All ER 906, at 916, HL. These conditions derive directly from the decision of the
European Court of Justice in Brasserie du Pécheur SA v Federal Republic of Germany (Case
C-46/93) [1996] ECR 1-1029, para 74.
47 See ch 21.
48 [2000] 2 WLR 1220, HL.
49 Rv Secretary of State for Transport, ex p Factortame Ltd (No 5) [1999] 4 All ER 906, HL.
50 See, eg, Weinrib, ‘Understanding Tort Law’ (1989) 23 Val U Law Rev 485 and, Weinrib, The
Idea of Private Law (1995).
51 See, eg, Coleman, Risks and Wrongs (1992). Cf Abel, ‘A Socialist Approach to Risk’ (1982)
Maryland LR 695.
The law of torts 13
individual or collective goals. In this section, some of these perspectives are considered
in order to supply the reader with a wider theoretical context in which to set the
following chapters.
(A) A law of tort or a law of torts?

It is sometimes said that it makes more sense to talk in terms of a law of torts than
simply the law of tort, given the various bases of liability that apply to various torts,
given the different interests that different torts protect, and given the peculiar historical
genesis of the nominate torts. There may be something in this, but it is largely an
academic point. When considering the vast body of authorities, it is clear that in
practical terms it counts for little to contend that the infliction of unjustifiable harm is
always a tort, or that there is a fixed catalogue of circumstances which alone and for all
time mark the limit of what are torts.** There is no problem peculiar to the law of torts
here. Certain situations have been held to involve torts and will continue to do so in
the absence of statutory repeal. Similarly, others have been held not to be tortious, and
the courts upon which those decisions are binding will likewise continue to follow
them. These fundamental points are also often camouflaged behind the Latin maxims
damnum sine injuria and injuria sine damno, which (not because of their aid to
understanding, but because the student may meet them elsewhere) must be shortly
explained. Damnum sine injuria merely means that one may have suffered damage and
yet have no action in tort; in short, that the damage of which he complains is not an
interest protected by the law of tort. Injuria sine damno is a shorthand version of the
rule that some interests are so important that their violation is an actionable tort without
proof of tangible damage.
(B) Wrongfulness in tort law

The relationship within the law of torts of rights and wrongs must be very briefly
addressed. It is not enough merely to identify the kinds of interest that tort protects.
The kinds of wrongdoing considered sufficient to violate those interests must also be
identified.** The deliberate invasion of an interest can easily be classified in terms that
demand that the law should intervene to require the defendant to compensate for the
harm he has caused the claimant. Certain interests, however, may be so crucial to the
claimant, and so vulnerable to accidental harm, that negligence on the part of the
defendant suffices to engage his liability in tort. Exceptionally, the relationship of the
claimant and the defendant or the nature of the defendant’s conduct will give rise to
strict liability. In such instances, the law requires the defendant to bear an absolute
responsibility for protecting the claimant’s interests.
52 See, eg, Weinrib, (1989) 23 Val U Law Rev 485. Cf Schwartz, ‘Mixed Theories of Tort Law:
Affirming both Deterrence and Corrective Justice’ (1997) 75 Tex LR 1801 and Waldron,
‘Moments of Carelessness and Massive Loss’ in Owen (ed), Philosophical Foundations of Tort
Law, op cit.
53 See further Murphy, ‘Formularism and Tort Law’ [1999] Adelaide LR 15.
54 See Cane, The Anatomy of Tort Law (1997).
14. Introduction
It is also unprofitableto dwell here on the importance of motive or malice. It follows

from what has been said that an act, even though it is malicious, will not incur tortious
liability unless the interest that it violates is protected by some extant tort.°° By the
same token, however, the interest interfered with is occasionally rated so low in the
hierarchy of tort-protected interests that only malicious invasions are forbidden.”
Which these interests are, the reader will discover as he or she progresses through the
remaining chapters of this book.
(C) ‘Ghosts from the past’: forms of action”

Until the passing of the Common Law Procedure Act 1852 and the Judicature Act 1875
a claimant could only sue in tort if he brought his cause of action within a recognised
form of action — that is, one for which some particular writ of summons was available.
Although the forms of action are now abolished, many old cases cannot be understood
without some knowledge of what they were.°* Moreover, classifications of torts derive
from the various writs, so that rules worked out under them have necessarily been the
starting point for any growth in the law of torts which has taken place since. Many
seemingly arbitrary divisions between one tort and another today are explained only
by reference to the forms of action. Thus, the writ of trespass lay only for direct
injuries, while the form of action known as ‘action on the case’ developed separately
for indirect injuries. And it will be seen in due course that even now trespass is not
committed where the injury is indirect.
A claimant does not have to plead a tort of negligence, trespass or whatever; he merely
sets out the relevant facts. Yet torts can overlap so that on any given facts a claimant
may succeed by contending at trial that the facts satisfied the requirements of either of
two (or more) torts. On the other hand, the claimant may fail where he relies on, say, the
rule in Rylands v Fletcher rather than private nuisance if he argues only that the facts
proved satisfy all the requirements of Rylands v Fletcher (but they in fact do not) and
he could have advanced further facts that would have satisfied the tort of nuisance.
The claimant’s error will be one of oral argument, not of pleading, except when he fails
to plead an allegation of fact which, although not material in one tort, would have been
requisite for the other. Strictly speaking, a judge could find for the claimant merely by
holding that, on the facts proved, there was a tort. But, given the splitting up into
compartments of the law of torts, the judge will ordinarily decide that the claimant wins
because the defendant has committed some specific tort. The law does not say that
intentionally and carelessly inflicted harm will be tortious in certain circumstances.
55 Fierce competition that damages one’s business interests and is prompted by malice, for
example, will not by itself suffice to invoke the protection afforded by the economic torts.
There must normally also be some illegal act on the part of D.
56 The fact that tort law ranks certain interests higher than others should not be assumed to be
either logically coherent or able to withstand detailed scrutiny: see Murphy, ‘Formularism and
Tort Law’ [1999] Adelaide LR 15.
57 See Maitland, The Forms of Action at Common Law (1909).
58 For an accessible account, see Williams and Hepple, Foundations of the Law of Tort (1984) ch
a.
DO ESeCIChES:
The law of torts \5
Instead, it defines the limits of each tort, many of which overlap and says to the
claimant: “You win if you establish facts which satisfy the definitions of any one of
those torts’.
With regard to any particular decided case, the student is then concerned to know, not
only that the claimant has succeeded on certain facts, but also which tort has been
committed, for he or she then learns the elements of that tort. Normally a court cannot
be expected to find for a litigant on the basis of arguments that he has not advanced in
court. If the facts pleaded constitute nuisance but not negligence he can hardly
complain at losing when he fails to argue before the court that the tort of nuisance has
been committed.
(D) Conflict between certainty and justice

The conflict between the demands of certainty and justice is a recurrent theme in case
law. The claims of certainty are less pressing in the case of the law of torts than in some
other branches of the law — eg, the law of property. The purchaser of land must be
assured that the law on the faith of which he acquires a good title is not liable to
change; it is less important that the law should settle precisely and for all time, say, the
limits of liability of doctors for harm caused to their patients. Yet, the development of
some torts has been seriously affected by the judicial urge for that certainty which is
believed by many to result from making rigid categories. The courts, for example, once
thought fit to divide entrants on to land into three rigid categories — invitees, licensees
and trespassers — in order to determine the duty of occupiers to them in respect of their
personal safety, with the result that in 1957 the Occupiers’ Liability Act had to be
passed in order to clear up the confusion that this method had brought about.®
A significant measure of complexity in this context stems from the fact that there are
profoundly competing accounts of what justice entails. Such disagreement over the
appropriate conception of justice to employ — corrective, distributive, or even retributive
— bedevils the debate about the appropriate balance between justice and certainty.°!
To some extent, then, the fact that common agreement on the justice of any given case
is likely to be elusive is a good reason for the courts to err on the side of certainty.”
(E) Loss distribution, deterrence and economic analysis

The traditional approach of the law of torts has been to ask whether a loss that B has
suffered should be shifted to A. If A were at fault, the answer would usually be to shift
that loss from innocent victim B to wrongdoer A.* There is, however, another view: by
spreading the loss from an individual victim to many who benefit from an activity that
60! See: ch 15:

61 See, eg, Coleman ‘The Practice of Corrective Justice’ in Owen (ed), Philosophical Foundations
of Tort Law, op cit. a 8 eA
62 On the other hand, the judiciary in recent years have made explicit their pursuit of justice
within tort law, especially in the arena of liability for pure economic loss: see, eg, White v Jones
[1995] 1 All ER 691, HL and Murphy, ‘Expectation Losses, Negligent Omissions and the
Tortious Duty of Care’ [1996] CLJ 43.
63 Loosely, this account may be termed corrective justice.
16 Introduction
has caused it, the loss is more easily and more fairly borne.“* The employer whose
workman is injured can spread the loss through raising the price of his product. The
same argument applies where his product injures a consumer. This principle of loss
distribution is seen in the firm acceptance of vicarious liability: that an employer is
answerable for the torts committed by those who work for him. Equally, loss distribution
is reinforced by widespread insurance.® The employer or vehicle owner can readily
insure — and is often compelled to do so — against the risk of his negligently inflicting
harm on third parties. His premium (and the premium of other drivers) falls short of the
amount payable in damages for a typical road accident. Yet in this way the aggregate
cost of all car accidents is distributed among all properly insured car drivers. Some
judges even acknowledge that they are the readier to find negligence, or to make high
compensatory awards, when they know that the damages will be paid by an insurance
company (and thus, in turn, premium payers).
But while loss distribution via insurance can guarantee tort victims that there will be
money available to pay them the damages they are awarded in court, it also largely
undermines another of tort law’s goals. This other goal is deterrence, and it stems from
the fact that the imposition of tort liability operates not simply to transfer the relevant
loss from victim to tortfeasor, but also to deter tortious conduct from the outside. Put
at its simplest, the more a person commits a tort, the more he will have to pay in
damages. Thus he endeavours not to commit such torts in the first place.’ Imposing
strict liability for breaches of statutory duties on employers and on the manufacturers
of defective products encourages the maintenance of the high standards of safety in
order to avoid liability.
Yet the operation of deterrence within tort law is not without its problems. To begin
with, in many instances the tortfeasor’s conduct is in no sense deliberately harmful or
even what might be termed ‘calculated negligence’.® Secondly, for the courts to ensure
in other areas that ‘tort does not pay’, recourse to exemplary damages is sometimes
thought to be necessary (even though punishment is not strictly one of tort law’s
functions).® Thirdly, judges are on occasion cautious about invoking principles of
deterrence, fearful that it will lead to over-cautious, defensive conduct. This concern is
particularly evident in medical litigation despite the fact that there is scant evidence of
defensive medicine.
Finally, we should note in this context (essentially concerned with the efficiency and
effectiveness of tort law) that much academic work has been done on the economic
analysis of tort law.’”? According to this school of thought, the law is criticised and
64 This is what the term distributive justice means.
65 See Cane ch 9; Stapleton ‘Tort, Insurance and Ideology’ (1995) 58 MLR 520.
66 See Murphy v Brentwood District Council [1990] 2 All ER 908, at 923, HL, per Lord Keith.
67 This deterrent effect is not entirely absent in contexts where there is compulsory insurance,
since repeated car accidents, for example, will lead to the tortfeasor having to pay higher and
higher insurance premiums.
68 The driver who takes the odd chance with amber traffic lights might appropriately be described
thus.
69 See, eg, Cassell & Co v Broome [1972] AC 1027, HL (D published defamatory material
concerning C in the expectation that profits would outweigh an award of compensatory
damages). See further Law Commission Report, Exemplary, Aggravated and Restitutionary
Damages, Law Com No 247 (1997).
70 For a general introduction to economic analysis see Burrows and Veljanowski, Readings in the
Economics of Law and Regulation (1984).
The law of torts \7
evaluated on the basis of criteria of economic efficiency. So, in the present context, the
crucial issue becomes whether the operation of a particular tort is cost effective.”! The
principal objectives should not be to eliminate all damage, but rather to deter conduct
that results in damage where the cost of preventing the accident is less than the cost
(in damages) of the accident occurring. On such criteria any change from fault-based
liability to strict liability would have to depend on proof that the total additional costs
to the potential defendants — additional precautions, insurance and so on — did not
exceed the total cost to individuals of the risk created by the enterprise. Normal concepts
of fairness and justice can be relevant only if susceptible to being assigned economic
value.”
Economic analysis is a useful tool to attain an understanding of the operation of
certain torts, in particular negligence, nuisance and product liability. It offers a measure
by which our often confused system of compensation law may be judged and found
wanting. Economic analysis can never be an all-embracing explanation ofthe objective
of the law of torts, nor have English judges expressly relied on academic exposition of
economic analysis when making law.” Economic efficiency is simply one of the many
(sometimes conflicting) objectives of tort law.
(F) The judges and laissez-faire
Much of the law relating to economic transactions is only understood if the implied
judicial acceptance of laissez-faire is considered. This is merely one facet of the
individualism of the law of torts, especially prominent during the nineteenth century.
It is an influence which still persists, although less pervasively, in the face of the
modern tendency towards welfarism.”*
(G) Limits on the effectiveness of tort law

Though there is much theorising about what should and should not be actionable in
tort, the law of torts remains essentially practical. Judges have little patience with
trivial claims. For example, they may deny a remedy by way of trespass to the person
for mere touching.’”° They recognise the limits of the wrongs that the law is capable of
redressing, however morally reprehensible they may be; avarice, brutal words and
ingratitude, for instance, are not dealt with by the law of torts. Along with this is a
judicial dread of a flood of actions. It is often avowedly for this reason that the courts
have so far been reluctant to allow claims for negligently inflicted foreseeable economic
loss where the range of claimants as a result of one incident might be large.”°
71 Calabresi, The Cost of Accidents (1970); Posner, The Economic Analysis of Law (1987); and
Calabresi, Zort Law: Cases and Economic Analysis (1982).
72 Some lawyer-economists, of course, contend that an economic approach to tort law is a fair
one because it can be justified in accordance with objective, economic criteria. But this argument
presupposes that the objective economic criteria are themselves fair.
73 Although they do take economic efficiency into account in determining the limits of liability
for negligence on occasion: see, eg, Stovin v Wise [1996] AC 923, HL.
74 See generally Cane, Tort Law and Economic Interests (1996).
75 See Collins v Wilcock [1984] 1 WLR 1172.
16 wScerchelzZ:
18 Introduction
The courts also display a marked caution in the context of awarding damages for non-
material harms. Damages in many torts cannot be fixed with mathematical precision.
Thus, the problem of calculating damages in, say, the tort of false imprisonment is
different entirely from that of measuring damages in an action for breach of contract
based on failure to perform a contract for the sale of goods. The courts have rightly
been on their guard to restrain gold-digging actions. But sometimes they have been
excessively wary, and later courts have had to overrule earlier decisions. That said,
while it is true that the courts have moved on from their initial absolute refusal to
recognise nervous shock as a head of damage, they still remain fearful of imposing
open-ended liability on tortfeasors and thus maintain fairly strict limits on recovery for
psychiatric harm.”
Section 4. Tort and other branches of law

For some writers the juridical divisions between torts and other areas of the common
law — principally the law of contract and the law of unjust enrichment — have become
so blurred that they prefer not to talk of three separate branches of the common law
but, instead, of a general law of obligations.’”* Historically, contract law alone was
concerned with the obligation to fulfil undertakings voluntarily made (so long as good
consideration had been provided). By contrast, as we have seen, the obligation
underlying torts is one to refrain from violating another’s legally recognised rights and
interests. Finally, with its roots in Roman law, the law of unjust enrichment concerns
the obligation to reverse unjust and unjustifiable gains.” While obligations lawyers
recognise that it is possible to distinguish these three areas of law in this way, they
contend that it is only possible to do so in broad terms. They believe that there are too
many areas of overlap (in terms of the bases of damages awarded and the sources of
the obligations) for this tripartite classification to be worthwhile. For example, the
burgeoning tort law associated with voluntary assumptions of responsibility stemming
from the decision in Hedley Byrne & Co v Heller & Partners Ltd,* is seen by some to
undermine the cardinal principles that only contractual obligations are created by the
parties themselves and that tortious obligations are imposed by rules of law.
There are also other areas of overlap that persuade such writers that it is better to talk
in terms of a general law of obligations. For instance, both contract and tort generally
concern awards of damages for harm done (whether broken promises or broken legs).*!
But this is not exclusively the case, and contractual remedies may be assessed in the
light of benefits acquired by the other party; and herein lies a point of connection with
77 As in White v Chief Constable of South Yorkshire Police [1999] 1 All ER 1, HL. For rigorous
analysis of the legitimacy of the courts’ stance in this context see Murphy, ‘Negligently
Inflicted Psychiatric Harm — A Re-appraisal’ (1995) 15 Leg Studies 415.
78 For some of the debate see Cane, The Anatomy of Tort Law (1997) pp 182-196, and more
thoroughly, Waddams, Dimensions of Private Law: Categories and Concepts in Anglo-American
Legal Reasoning (2003).
79 See Giglio, ‘A Systematic Approach to ‘Unjust’ and ‘Unjustified’ Enrichment’ (2003) 23 OJLS
(forthcoming).
80 [1964] AC 465, HL. See also White v Jones, supra; Henderson v Merrett Syndicate [1994] 3 All
ER 506, HL.
81 Furthermore, while the measure of damages in contract was once distinctively that of ‘expectation
loss’, this has begun to feature also in the law of tort: see White v Jones, supra. See also Murphy,
‘Expectation Losses, Negligent Omissions and the Tortious Duty of Care’ (1996) 55 CLJ 43.
The law of torts \9
the law of unjust enrichment.* At the same time, both tort and unjust enrichment can
be linked in that their obligations derive from rules of law rather than reciprocal
undertakings.** In consequence of these juridical connections, the argument in favour
of reconceptualising the common law in terms of a law of obligations is not without
considerable merit. On the other hand, it is nonetheless submitted here that the clearest
grasp of the principles, aims and objectives of tort law — together with an appreciation
of its distinctiveness in terms of the range of interests protected — may best be derived
from its exposition in isolation from the law of contract and the law of unjust enrichment.
Finally, it should be noted that certain types of conduct simultaneously constitute

both a crime and a tort; thus the thief who steals your watch commits both the crime of
theft and the tort of conversion. The function of criminal law is to protect the interest
of the public at large (or the state), whereas the primary aim of the law of torts is to
protect the interests of individuals rather than to punish certain categories of wrongdoer.
82 In contract, if A builds B a fence for which B fails to pay, B is in breach of contract. If the
benefit is conferred extra contractually, however, the action will lie in restitution (eg, Greenwood
v Bennett [1973] QB 195, CA: A, believing the car he bought from a thief to be his own,
effected several improvements upon it; B, the true owner, to whom the car had to be returned
was liable to A-in respect of his unjust enrichment in the form of those car improvements).
83 Occasionally, contractual obligations are imposed by rules of law — eg, the duty to perform a
service with reasonable care imposed by the Supply of Goods and Services Act 1982, s 13. But
these obligations are imposed only within the pre-existing framework of reciprocal, voluntary
obligations.
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PART II
Intentional invasions of interests in

person and property
22 Intentional invasions of interests in person and property
Contents .
CHAPTERS % PAGE
2 Intentional torts today 2

3 Trespass to the person and related torts 31
4 Wrongful interference with goods 47
5 Trespass to land B
6 Defences to intentional torts 85
CHAPTER 2
Intentional torts today
The detailed examination of tort law begins here with a discussion of those torts that
centre on an intentional interference with interests in the person and in property. Most
of the torts examined in this Part of the book are forms of trespass. However, before
proceeding to a detailed consideration of the various torts, we may usefully consider
three matters of general importance: (i) the relationship of trespass to negligence, (ii)
the sense in which, in trespass, an intentional act on the part of the defendant is
required, and most importantly, (iii) the context in which intentional torts, in particular
trespass, remain relevant today.
Section |. Trespass and negligence

Compensation for injuries to the person and to property was first given by the courts
from at least the thirteenth century onwards.' By this time writs of trespass were in
common use. A suit in trespass could succeed only where the interference was ‘direct’.
Only subsequently was the action on the case developed to provide compensatory
damages for injuries that were indirectly inflicted. Even in comparatively recent times,
the Court of Appeal has maintained the importance of the directness requirement in
trespass: it is still not enough simply to set out in the writ the facts of the case together
with the relief or remedy sought; the writ must also state the cause of action.” On the
other hand, the fact that an allegation of trespass will fail for want of directness does
not mean that the claimant will fail altogether. Some alternative right of action in tort
may lie.
Until the middle of the last century, and the decision in Letang v Cooper,’ one would
have said with some confidence that the torts of trespass and negligence were both
available in cases of direct injuries sustained as a result of careless conduct. This
conclusion would have arisen from the fact that, historically, trespass actions would
1 See Lunney and Oliphant, Tort Law: Text and Materials (2000) pp 3-9, or more comprehensively,
Maitland, The Forms of Action at Common Law (1909).
Sterman v E W & W J Moore Ltd [1970] 1 QB 596, CA.
Wr [1965] 1 QB 232, CA.
succeed unless the defendant could show inevitable accident.’ In other words, mere
carelessness on the defendant’s part would not allow him to escape liability in trespass.
But the relationship between negligence and trespass was cast into doubt by divergent
judgments in that case. Before we explore the extent of that divergence, however, let us
note three uncontroversial points.
1 Whatever its history, trespass in its modern context — whether to the person,
goods or land — has come to be the means by which the common law protects the
citizen from deliberate violation of his fundamental rights to security of his person
and property.
2 Acclaim based on negligence is not affected by any doubt there may be whether
the injury is direct.
3 An employer is not vicariously liable for a trespass committed by one of his
employees.”
The largely academic confusion that now surrounds the relationship between
negligence and trespass began in Fowler v Lanning.® There, the claimant in his
statement of claim alleged simply that the defendant shot the claimant seeking to avoid
having to give particulars (details) of either intention or negligence on the part of the
defendant. His claim was also thus framed because in trespass the burden of disproving
intention or carelessness lay with the defendant. Diplock J proffered an elegant analysis
of the development of the torts of trespass and negligence concluding that the onus of
proving negligence lies with the claimant regardless of whether he grounds his action
in trespass or negligence.
Diplock J overtly sought to ensure that the claimant could not gain an unfair advantage
by resurrecting ancient distinctions based on the old forms of action. This can be
explained on the basis that any judge’s instinct will be that if a claimant is the victim of
carelessness he should be required to prove negligence on the part of the defendant.
On the other hand, the decision in Fowler v Lanning was technically concerned only
with the question of who should bear the burden of proof in cases of unintentional
trespass. In so far as the decision insisted only that a claimant’s statement of claim
4 Weaver v Ward (1616) Hob 134.

5 Sharrod v London and North Western Rly Co (1849) 4 Exch 580. Nevertheless, under the
old writ system an action on the case would have lain against the master even for the intentional
wrongdoing of a servant: Seymour v Greenwood (1861) 7 H & N 355; Bayley v Manchester,
Sheffield and Lincolnshire Rly Co (1873) LR 8 CP 148, Ex Ch. Thus, although Lord Tucker
in Esso Petroleum Co Ltd v Southport Corpn [1956] AC 218, at 244, HL stated correctly that
trespass does not lie against the servant’s master, this does not mean that the master can only
be sued if the servant’s conduct constitutes negligence. An action derived from the old action
on the case will lie against the master where an act committed by his servant in the course of
his employment, although it does not constitute negligence, does constitute an intentional
trespass. This distinction between trespass and negligence is therefore of little practical
importance since the abolition of the forms of action: see, eg, National Coal Board v J E
Evans & Co (Cardiff) Ltd and Maberley Parker Ltd [1951] 2 KB 861, CA. But if a trespass is
committed in circumstances which merely humiliate or insult C, no action in negligence will
arise, although an action in trespass will avail and may even yield aggravated damages: see
Fogg v McKnight [1968] NZLR 330.
There is at least another minor difference. Trespass is actionable per se; in negligence
damage must be proved. If, therefore, there is an interval between the wrongful act and the
occurrence of damage, an action in trespass may be time-barred before one of negligence; cf
Roberts v Read (1812) 16 East 215.
6 [1959] 1 QB 426.
should state whether the action was founded on intentional or negligent conduct, it
fell short of an outright rejection of the notion of unintentional trespass. It did no more
than extend to all instances of trespass the hitherto anomalous principle that had only
applied in the context of trespass on the highway: namely, that the burden of proof lay
on the claimant to show the defendant’s negligence.’
However, a more fundamental reassessment of the future of unintentional trespass
was only six years away.
In Letang v Cooper the facts were as follows.®
D negligently drove his car over the legs of C, who was sunbathing on the grass
car park of a hotel. More than three years later, C sued D. Rules on limitation of
actions provide that actions for ‘negligence, nuisance or breach of duty’ are
barred after three years while other tort actions are barred after six years. C relied
on trespass in an effort to prevent her action from being time-barred.
Naturally, the Court of Appeal did not wish to reach the absurd conclusion that an
action for negligent trespass would lie, although an action for negligence simplciter
would not. Lord Denning MR and Danckwerts LJ held the distinction between trespass
and case to be obsolete. The former insisted that there is no overlap between trespass
and negligence; that if the act is intentional it is trespass and not negligence, and vice
versa.” Diplock LJ, however, did not go so far. He thought that trespass could still be
committed negligently. He argued that it did not matter how the claimant described his
cause of action. If the essence of the complaint was that the defendant had acted
negligently, then the claimant must prove that negligence and prove resulting harm. In
other words, the claimant would gain no practical advantage from framing his action in
trespass rather than negligence.!°
In the wake of Letang v Cooper, therefore, it would appear that actions for negligent
trespass have effectively disappeared: either in juridical terms (for Lord Denning MR),
or in practical terms (for Diplock LJ). Yet in academic terms we still cannot conclusively
assert that trespass has no relevance when negligent conduct is relied on; and there
may still be particular cases where a claimant perceives there to be an advantage to be
gained from framing a claim in trespass rather than in negligence.
Relying on the historical precedents that injury resulting from direct applications of
force fall within the ambit of trespass to the person, the claimant may seek to avoid
some obstacle fatal to a claim in the modern tort of negligence. It may be that substantively
in trespass a claimant does not need to prove that the defendant owed him a duty of
care (as would be required in negligence), but merely that he was careless as to the risk
of direct injury. But it is impossible to determine the issue with any certainty because,
in claims for ‘negligent trespass’, the courts have not clarified whether ‘negligent’
means simply careless, or such conduct as would give rise to an action in negligence.
In practice, examples of careless conduct causing direct injury that would not give rise
to a duty of care are hard to find today. Consider the following examples. (1)A party is
| Holmes v Mather (1875) LR 10 Ex 261.

8 [1965] 1 QB 232, CA.
9 [1965] 1 QB 232, at 240, CA.
10 Compare intentional trespass which is actionable per se.
out in a country park, shooting game. The defendant’s eyesight is poor and she
shoots wildly, injuring a fellow ‘sportsman’ some yards ahead of her. Proving a duty to
avoid injury to her fellow will not be problematic. (2) Aware ofher fallibility, the defendant
removes herself from the crowd, again shooting wildly, she injures an abandoned child
who has fallen asleep hidden in the undergrowth. There may be no duty to the child in
such circumstances, but, however inept her shooting, is the defendant in the latter
case in any sense careless? Trespass requires proof of either intention or negligence
on any analysis. A claim does not lie (at any rate in modern times) on simple proof of
direct injury. '!
A second, and better grounded, substantive advantage to be gained from suing for
negligent trespass, rather than in the tort of negligence, relates to the principles
governing remoteness of damage in negligence.'? Even where carelessness is proved,
under the tort of negligence the defendant is only responsible for injuries or harm of a
kind reasonably foreseeable by him. If, for example, the defendant ought only to have
foreseen a risk of damage to the claimant’s goods by impact, he is not liable if his
carelessness results in damage by fire.'? By contrast, trespass is actionable per se, and
all the damage actually ensuing from the defendant’s unlawful act is generally
recoverable. '*
Section 2. Intention and trespass

The mental state of the doer of an act is often important in tort. It is essential to
distinguish motive, intention, negligence, accident, and involuntariness. A voluntary
act may be regarded as a muscular contraction or relaxation that is not effected under
compulsion. However, in order to determine whether a tort has been committed
intentionally, one must ask: what constitutes, for the purpose of the particular tort, an
invasion of the interest of the claimant, and then whether the defendant, in doing this
act, desired that invasion as a consequence. There is, however, one refinement of this
which causes difficulties. If in the circumstances he had knowledge that his conduct
was substantially certain to result in a particular outcome (not merely that he might
have foreseen it) his act would still be deemed to be intentional.
The defendant may desire consequences ulterior to those which constitute the tortious
invasion of the claimant’s interest. For example, a defendant may disable the claimant
in order to prevent him from competing against him in a race. In such a case, those
desired ulterior consequences that go beyond the striking itself are described as the
defendant’s ‘motive’. The term ‘motive’ is also properly used to describe the emotion
that prompts the defendant to commit the act, for example rage, hatred or jealousy. By
contrast, we usually describe as negligent an act on the part of the defendant that a
11 Fowler v Lanning [1959] 1 QB 426.

12 See’ post:
13. The Wagon Mound [1961] AC 388, PC.
14 Wainwright v Home Office [2001] EWCA Civ 2081, at [71], [2002] 3 WLR 405, at [71], CA.
See also Williams v Humphrey (1975) Times, 20 February. C recovered in trespass when he
suffered a serious ankle injury after D pushed him into a swimming pool. Could he have shown
that that kind of injury was foreseeable in negligence?
reasonable person would have foreseen was likely to cause harm or damage to the
claimant’s interest.
The significance of these differences between the various categories of mental state is
illustrated in the following scenarios.
1. Ifaman throws a stone at a woman, his trespass to her person is intentional; that
he threw it because she had jilted him would be immaterial in determining his
liability in trespass — that would be his motive.
2. If he did not throw the stone for the purpose of hitting her but ought to have
foreseen that it was likely that the stone would hit her, his act would be unintentional
but nevertheless negligent.
3. Ifthe stone hit her solely because it rebounded off a tree at which he had thrown
it, his conduct would be voluntary (ie intentional) so far only as the throwing is
concerned, but the stone hitting the woman would be accidental.
4 If, while he was holding the stone in his hand, a third party seized his arm and by
twisting it compelled him to release his hold on it, whereupon it fell on the woman’s
foot, his conduct would be involuntary and could never give rise to liability on his
part (though the third party may be liable'’).
These distinctions are important for all the trespass torts — whether it be trespass to
the person, to land, or to goods. Each tort may be committed where the defendant’s
conduct is intentional. It may also still be possible to incur liability in trespass on the
basis of negligent conduct, as we have already seen. On the other hand, such liability
can never result from a purely involuntary act.'© But what about a non-negligent,
unintentional act?
Early common lawyers were not especially interested in the mental state of the
defendant. They were satisfied to ask whether the defendant had directly inflicted on
the claimant the harm complained of.'’ With the development of the modern tort of
negligence in the nineteenth century, however, the problem of accidental trespass
became important and was examined in a series of important cases.'* The effect of
these cases is that a suit alleging trespass based on a non-negligent unintentional act
will not now succeed.
Section 3. Relevance of trespass today

Even a brief survey of almost any major series of law reports will reveal many negligence
cases and probably only a handful of decisions on trespass to the person, goods or
land. Does this evidence indicate either that these intentional torts are failing in their
purpose, or that trespass should be regarded as of only historic interest? Certainly
not! First the boundaries set by the trespass torts on intentional interferences with
15 See Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890, Div Ct.
16 Weaver v Ward (1616) Hob 134.
17 HEL vol viii 456-8.
18 Holmes v Mather (1875) LR 10 Exch 261; Stanley v Powell [1891] 1 QB 86; Gayler and Pope
Ltd v B Davies & Son Ltd [1924] 2 KB 75; Manton v Brocklebank [1923] 2 KB 212, CA;
National Coal Board v JE Evans & Co (Cardiff) Ltd [1951] 2 KB 861, CA; Fowler v Lanning,
supra. Cf Morriss v Marsden [1952] 1 All ER 925.
another’s person or property are well understood in society generally. All sorts of grey
areas exist in negligence; for example, the extent to which fhe law protects individuals
against emotional distress. By contrast, far fewer uncertainties exist in the law of
trespass making it a clear and important body of law ina relatively small but nonetheless
significant number of cases. Furthermore, too much should not be read into the relatively
few reported cases. Since it is mainly the grey areas of the law that generate contested
litigation, a proliferation of trespass claims is not to be expected. Equally, many cases
reported under the heading of police powers (especially concerning wrongful arrest)
are really cases that skirt the fringes of the trespass torts even though they are not
reported as trespass cases. The same is true of many cases reported in the context of
medical law; for in this area any physical contact with a patient constitutes a battery,
unless authorised by the patient or a guardian competent to act on her behalf. As such
the tort of battery has been an important vehicle by which the courts have addressed
key questions of human rights, including the right to life itself.'? Such questions have
included whether severely mentally handicapped women can be sterilised,” whether
blood transfusions may be administered to an unconscious patient who had earlier
refused to sanction such a procedure,*' whether a woman in labour could be subjected
to surgery to save her baby against her will,” whether a mentally handicapped woman
could be used as a bone marrow donor to save her sister’s life’? and even in what
circumstances the common law sanctioned passive euthanasia.”
Secondly, the fact that the civil law complements the criminal law in prohibiting one
person from beating another, or seizing his goods, or invading his land, is clear beyond
debate. Yet the fact that there is a lower threshold of proof in the civil law means that
the trespass torts possess a distinctive deterrent element. One might, for instance,
perceive this additional deterrent in connection with an act that would be difficult to
prove beyond all reasonable doubt (the criminal standard of proof), but could probably
be proven on the balance of probabilities (the civil law standard).
Thirdly, and relatedly, since the tort of trespass to the person overlaps to a considerable
extent with the crime of assault, we find that many cases are disposed of purely as a
matter of criminal law. This, of course, is because the perpetrator of the criminal assault
is rarely worth suing. Thus, it is unsurprising that the rate of reported criminal assaults
far exceeds their tortious counterparts. On the other hand, there has been in recent
years a small but steady stream of cases brought in battery by victims of criminal
attacks.
Fourthly, it is worth emphasising again the point made in the preceding chapter that
trespass torts offer a ready means by which to vindicate the fundamental human rights
guaranteed by the European Convention on Human Rights, which was all but imported
into English law by virtue of the Human Rights Act 1998.
19 See further Brazier, Medicine, Patients and the Law (2003).

20 Fv West Berkshire Health Authority [1989] 2 All ER 545, HL.
21 Re T (Adult: Refusal of Medical Treatment) [1993] Fam 95, CA.
22 Re MB (1997) 8 Med LR 217, CA.
23 Re Y [1997] Fam 110.
24 Airedale NHS Trust v Bland [1993] AC 789, HL.
Finally, the intentional torts generally, and trespass torts in particular, have never
really looked likely to lapse into desuetude. Trespass torts have historically defined,
and continue to define, the limits of acceptable conduct between citizens, and between
citizens and the state. They play a crucial role in support of rights to individual security,
autonomy and freedom. The common law built the foundations of civil liberties in
England within the framework of trespass;”° and it is inconceivable that the passage of
the Human Rights Act will consign the intentional torts to history. True, the citizen
deprived of his liberty by the state, degraded by police brutality or unlawfully spied on
by the security services may have an additional or alternative ‘Convention remedy’.”°
But the established trespass torts together with the tort of false imprisonment already
vindicate the citizen’s rights. What the Human Rights Act is more likely to do is prompt
the common law judges into developing yet further the scope of the intentional torts,
and to lay to rest some of their historical baggage. We noted in the previous chapter,
for example, the strides that have already been taken by the courts towards developing
tort’s protection of privacy and confidentiality.
aS
25 And not just trespass to the person: for example, in Entick v Carrington (1765) ‘aWils
to
trespass to land and goods provided the context for the guarantee of the citizen’s right
freedom from unlawful searches and seizures by the Crown.
26 Human Rights Act 1998, ss 7-8.
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CHAPTER 3
Trespass to the person and related torts
Section 1. Introduction
The torts of battery, assault and false imprisonment are among the most ancient.
Analysis of these torts will demonstrate that in protecting bodily integrity and liberty,
tort law may be limited in its scope by its historical antecedents. The language associated
with these torts is also, on occasion, rather archaic. Yet the intentional torts to the
person continue to safeguard the most basic of human rights and the judges have
shown a willingness to innovate in order to ensure that tort law keeps pace with
modern society. Even prior to the enactment of the Human Rights Act, common law
Judges sought to test how far the conditions of a particular tort matched the relevant
provisions of the European Convention on Human Rights.' Articles 2 and 3 respectively
guarantee the right to life and to freedom from torture or degrading treatment. Article 5
asserts the right to liberty and security of person and seeks to ensure that the state
cannot detain persons without substantial grounds justifying that deprivation of
liberty.’ Article 8 establishes a right to respect for private and family life. The very same
fundamental interests are protected by the existing common law, albeit to a slightly
lesser degree and without such clarity of articulation as is found in the Convention.
In time, of course, the protection offered by the Convention and the common law will
probably converge now that the Human Rights Act 1998 is in force. On the one hand,
the courts will have to develop the common law in a manner that is compatible with
Convention rights,’ while, on the other, claims for battery and false imprisonment
against public authorities such as the police, may well be litigated in the alternative
under the Act.’
Section 2. Battery
There are several key elements in the tort of battery that are evident from the following
working definition of the tort:
1 See, eg, Olotu v Home Office [1997] 1 All ER 385, CA.
2 See Art 5(2)-(5) and Art 6.
3 Human Rights Act 1998, s 6.
4 HRA 1998, s 7.
Battery is any act of the defendant that directly and intentionally (or possibly
negligently*) causes some physical contact with the person of the claimant
without the claimant’s consent.
>
(A) Defendant’s state of mind

Today, whatever the historical scope for the negligent infliction of a battery may be,
most modern suits are likely to be based on an intentional act of the defendant. What
is crucial, then, is to define what is meant by ‘intentional act’ in this context. There are
two broad possibilities:
1. D intended only to act in the way that he did.
2. D both intended to act in the way that he did and the resulting contact with C.
In most cases, there is a distinction here of little consequence. If A aims a punch at B
and succeeds in striking B, there is nothing to separate A’s act (the thrown punch)
from the outcome of that act (say, B’s broken nose). But in some circumstances, A may
do a thing without intending a particular outcome. If D aims his rifle at C, then pulls the
trigger, there is no doubt that he intended to shoot C. But if D aims his rifle at a
partridge on a hunting trip but accidentally shoots C, it is clear that D intended the act
(firing the gun) but not necessarily the outcome (C’s injury). In such circumstances it
would probably be stretching the tort too far to hold D liable. But if D aimed his gun at
a third party, T, then pulled the trigger missing T and shooting C instead we might wish
to hold D liable.
In terms of D’s mental state in the first example, there is a genuine accident (probably
without carelessness, even, on D’s part). In the second example, D’s act was reckless.
This may be the basis upon which the English courts might, like the Americans, borrow
the criminal law notion of ‘transferred intent’ and apply it in tort law.° One argument for
so doing is that battery is both a tort and a crime. Thus, as De Grey CJ observed in
Scott v Shepherd, “though criminal cases are no rule for civil ones ... yet in trespass I
think there is an analogy’.’ In that case there was held to be a battery where D threw a
lighted squib into a crowded market place that was tossed from one trader to another
before it eventually exploded in the face of C. But the case is inconclusive since the
main issue there was whether there was sufficient directness to satisfy the requirements
of the tort. A more recent, but no more conclusive, case is Haystead v Chief Constable
of Derbyshire.® There the defendant punched a woman in the face with the result that
she dropped the baby she was holding. He was charged with criminal assault in relation
to the baby. Clearly the tortious counterpart of this crime is a battery. The Divisional
Court did not even consider the application of the transferred intent doctrine but said
merely that:
5 Historically, negligent trespass was a sufficient basis of liability. Whether that is still the case
following the decision in Letang v Cooper [1965] 1 QB 232, CA is a moot point: see ch 2.
6 American Restatement, Torts (2d) & 32. See also Prosser, ‘Transferred Intent’ (1967) 45 Tex
L Rev 650. In Livingstone v Ministry of Defence [1984] NI 356, CA, it was held that where D
fired a baton round injuring C it mattered not whether he fired at C or another person — D was
liable in battery unless he could prove lawful justification for his act.
7 (1773) 2 Wm BI 892 at 899. Cf Coward v Baddeley (1859) 4 H & N 478, at 480, per Pollock
CB.
8 [2000] 3 All ER 890, Div Ct.
There is no difference in logic or good sense between the facts of this case and
one where the defendant might have used a weapon to fell the child to the floor,
save only that this is a case of reckless and not intentional battery.
Here, again, the court emphasised the directness of the act rather than whether the
defendant’s intention must apply only to his actions, or whether it must also extend to
the outcome of those actions. On the other hand, the case signals a clear unwillingness
on the part of the courts to allow defendants in such cases to escape liability. It is
perhaps also worth noting that while the defendant was charged with a criminal assault,
the extract just quoted makes reference to a battery. But all of this overlooks the
counter-argument that can be made that although certain forms of conduct should be
branded morally wrong, and thus deserving of criminal punishment, they may not
warrant a remedy in tort to which branch of the law both motive and malice are irrelevant
in determining liability (if not the amount of damages).
In cases where contact with the claimant is unproblematic, it is well established that
the defendant need not have intended the claimant any harm. Battery is actionable per
se without proof of any injury or damage to the claimant. He must have understood
that his conduct was beyond the bounds of physical contact ‘generally acceptable in
the ordinary conduct of everyday life’.’ The Court of Appeal said in Wilson v Pringle'®
that the claimant must show that the defendant’s touching of the claimant was a
‘hostile’ touching. Hostility is not to be equated with ill-will or malevolence. It means
an understanding by the defendant that he is doing something to which the claimant
may object, something that the claimant may regard as an unlawful intrusion on his
rights to physical privacy and personal autonomy. Thus, the bare allegation that one
13-year-old boy jumped on another in the course of horseplay was insufficient of itself
to establish a battery. Further evidence of intent to injure or distress the claimant was
called for. Had a grown man engaged in similar conduct, the result would almost
certainly have been different. Away from the sports field, mature adults do not generally
regard it as acceptable conduct for their colleagues to leap on them or wrestle them to
the ground.
In F v West Berkshire Health Authority'' Lord Goff doubted that the use of the word
‘hostile’, however defined, was appropriate to describe the necessary state of mind in
battery. A surgeon operating on a patient to preserve her life and health may be motivated
by his judgment as to her best interests, not hostility towards her. Yet if she is competent
to do so, and has refused to consent to a particular course of treatment, he commits a
battery. Lord Goff preferred the following approach. Any deliberate touching of
another’s body, beyond the bounds of acceptable everyday conduct, is, in the absence
of lawful excuse, capable of constituting a battery. Where a person by reason of some
permanent or temporary mental incapacity cannot consent himself to medical or other
necessary procedures, the requisite lawful excuse may have to be found in a principle
of necessity.
Collins v Wilcock [1984] 3 All ER 374, at 378.

10 [1987] QB 237. Cf Williams v Humphrey (1975) Times, 20 February (15-year-old schoolboy
liable for prank of pushing another boy into swimming pool).
11 [1989] 2 All ER 545, at 564.
(B) No consent by the claimant

The absence of consent is so inherent in the notion of a tortious invasion of interests
in the person that the absence of consent must be established by the claimant. This
might at first sight seemsather odd, but any lingering doubt that the onus of proving
absence of consent lies on the claimant was laid to rest in Freeman v Home Office (No
2).'? A prisoner alleged that he had been injected with powerful mood-changing drugs
against his will. The judge held that since the essence of battery is a specific and
unpermitted intrusion on the claimant’s body, it was for the claimant to establish that
the intrusion was unpermitted. This he failed to do. Part of the rationale for this approach
is that a contrary result would potentially have posed severe problems for all doctors,
not just prison medical officers. Any contact with a patient — eg, vaccinations or even
examining sore throats with a spatula — would prima facie constitute battery. To escape
liability, the doctor would have to prove consent which would be extremely difficult in
cases involving minor procedures where no written consent had been obtained, or if
records had been lost, or if the doctor had died."
On the other hand, in the context of actions by suspects against the police, or prisoners
against prison authorities, casting the burden of proof on the claimant might vitiate the
effectiveness of a battery action as a mechanism for vindicating their civil liberties.'4 In
such circumstances cases would turn on the contest between the word of the prisoner
and the word of ‘respectable’ members of society in a position of responsibility.
That which constitutes a valid consent is often a fundamental issue, especially in
cases of trespass in the medical context. It may be a question of exactly what the
patient consented to, or indeed whether he was competent to give consent.'° Logically,
as it is for the claimant to prove absence of consent, it might be expected that we
should deal with consent here. But in practice, once the claimant has raised sufficient
evidence to cast doubt on the reality of a purported consent, consent is still treated as
a defence. (The ingredients of a genuine consent are discussed in the chapter devoted
to defences to the intentional torts.'®)
(C) The character of the defendant’s act

There is no battery unless there is an act by the defendant. Merely to obstruct the
entrance to a room by standing still is not of itself enough.'’ No battery is committed
if there is an incident over which the defendant has no control."*
12 [1983] 3 All ER 589, at 594—S; affd [1984] QB 524, CA.

13 As had the prison doctor in Freeman v Home Office (No 2) [1984] QB 524, CA.
14 But see R (on the application of Wilkinson) v Broadmoor Hospital [2001] EWCA Civ 1545,
CA.
15 Where medical treatment is administered to a mental patient without his consent, that treatment
may nonetheless be justified so long as it doe not amount to inhuman or degrading treatment
contrary to Art 3 of the European Convention on Human Rights: R (on the application of
Wilkinson) v Broadmoor Hospital [2001] EWCA Civ, 1545, CA.
16 Ché6.
17 Innes v Wylie (1844) 1 Car & Kir 257, at 263 per Lord Denman CJ. A motorist who accidentally
drives his car onto a police constable’s foot while parking commits no battery, but does he if
he then ignores the constable’s plea to ‘Get off my foot’? See the criminal law case of Fagan
v Metropolitan Police Comr [1969] 1 QB 439 (D convicted).
18 D was not liable when a frightened horse ran away with him and collided with C: see Gibbons
v Pepper (1695) 2 Salk 637. See also Weaver v Ward (1616) Hob 134; Holmes v Mather (1875)
LR 10 Exch 261.
There can be no battery unless there is contact with the claimant. But is any contact,
however slight, enough? It would be rational to say that this tort protects not merely
the interest in freedom from bodily harm, but also that in freedom from insult. Lord Goff
has suggested that battery protects a person ‘not only against physical injury but
against any form of physical molestation’.'? Such a formulation explains why spitting
in the face is battery but touching another in a crowd is not. It also explains the view of
Holt CJ, ‘that the least touching of another in anger is battery’ but that ‘if two or more
meet in a narrow passage, and without any violence or design of harm, the one touches
the other gently, it is no battery’.*° The courts cannot, and should not be expected to,
give protection against these unavoidable incidents of everyday life, and thus the
second statement just quoted can be classed as an example of a permitted contact.”!
Battery, then, protects a person against all unpermitted contacts, irrespective of whether
there is any physical harm. So, taking fingerprints,” spitting in another’s face,” cutting
another’s hair against his or her will” are all batteries.
As with all trespasses to the person, the act must be a ‘direct’ one. It is not enough that
the act ‘causes’ the contact. Contact must follow immediately from the act of the
defendant;”* or at least be a continuation of his act.”° Thus, for a ship to ram another
may be a trespass despite the effect of the current.’ Similarly, it is battery where A
strikes B’s horse so that the horse bolts throwing B to the ground,”* or where D
punches a third party so that injury results to C.’° It is also a trespass to the person to
overturn a carriage or chair in which the claimant is sitting?*° If battery protected
against insult generally, and not merely against bodily harm, then contact with anything
so closely attached to, or associated with, the person that it could be regarded as part
thereof would be treated as a battery. The matter was investigated in Pursell v Horn’!
where it was decided that throwing water on to the clothes being worn by the claimant
was not necessarily battery. This case suggests that contact with things attached to
the person may be battery only if there is also a transmission of force to the body of the
claimant.*” The protection from insult or indignity afforded by the tort of battery is
19 See F v West Berkshire Health Authority [1989] 2 All ER 545, at 563, HL.
20 Cole v Turner (1704) 6 Mod Rep 149.
21 This explains, too, the dictum in Tuberville v Savage (1669) 1 Mod Rep 3 to the effect that
striking another on the breast in discourse is not actionable. But what if a police constable who
knows that a passing pedestrian does not wish to answer his questions continues to tap him on
the shoulder so that he will stop to be interrogated? See Donnelly v Jackman [1970] 1 All ER
987.
22 Dumbell v Roberts [1944] 1 All ER 326, at 330, CA, per Scott LJ; Callis v Gunn [1964] | QB
495.
23 Rv Cotesworth (1704) 6 Mod Rep 172.
24 Forde v Skinner (1830) 4 C & P 239. Cf Nash v Sheen (1953) Times, 13 March (actionable
to apply to C’s hair a ‘tone-rinse’ which caused a rash).
25 Leame v Bray (1803) 3 East 593, at 603, per Le Blanc J.
26 Scott v Shepherd (1773) 2 Wm BI 892, at 899, per De Grey CJ.
27 Covell v Laming (1808) | Camp 497.
28 Dodwell v Burford (1669) 1 Mod Rep 24. But note that there may be a claim for intentional
infliction of harm even though trespass is not proved (see post).
29 Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 Div Ct (D punched a woman
causing her to drop a child she was holding).
30 Hopper v Reeve (1817) 7 Taunt 698.
31 (1838) 8 Ad & El 602.
32 ‘It must imply personal violence’ (1838) 8 Ad & El 602, at 604, per Lord Denman CJ. In R v
Day (1845) 4 LTOS 493 Parke B held that it was the crime of battery to slit with a knife a
victim’s clothes, and although the victim was cut, this did not seem material.
limited to insult or indignity inflicted by touching that person, however trivial the
touching may be.*? : vd
(D) Damages ’
Battery, like all suits in trespass, is actionable per se — that is, without proof of damage.
It seems also that, once the tort is proved, consequential loss in respect of goods, as
well as the personal damage sustained, can be recovered.** Furthermore, the courts
can award additional damages on account of insult or injury to feelings in respect of a
battery that has caused harm.*°
Section 3. Assault
Though the commission of an assault will often occur just before the commission of a
battery, it makes sense to deal with assault second because the tort’s definition refers
to battery.
An assault is any act of the defendant which directly and intentionally (or possibly
negligently*°) causes the claimant reasonably to apprehend the imminent infliction
of a battery.
(A) The character of the defendant’s conduct

The law of assault is substantially similar to the law of battery except that, in assault,
an apprehension of contact (rather than contact itself) must be established. Usually
when there is a battery, there will also be an assault, but not, for instance, when a
person is hit from behind. To point a loaded gun at the claimant, to shake a fist under
his nose, to curse him in a threatening manner, to aim a blow at him which is intercepted,
or to surround him with a display of force,*’ is to assault him. Clearly, if the defendant
by his act intends to commit a battery and the claimant apprehends it, it is an assault.
Within the tort of assault** what must be apprehended, however, is actual physical
contact. Photographing a person against his will is an intrusion on his privacy but not
an actionable assault.*”
33 Thus, an unwanted kiss is actionable.

34 Glover v London and South Western Rly Co (1867) LR 3 QB 25 (C may have been able to claim
for the loss of his race glasses had he not carelessly left them behind when he was wrongfully
removed from a railway carriage).
35 Loudon v Ryder [1953] 2 QB 202, CA. There is doubt as to whether such damages are available
in cases where the battery does not occasion any physical harm.
36 It is in accordance with principle to include foreseeable though unintended harm, but decisions
are lacking. Eg, if D unintentionally brandishes a stick close to a woman, but without intending
to hit or alarm her, it is submitted that D’s conduct is tortious if he could reasonably foresee
that his act would have one of those effects.
37 Read v Coker (1853) 13 CB 850.
38 In the criminal law it has been held that threatening telephone calls amount to a criminal
assault: R v Ireland [1998] AC 147, HL. But it is suggested here that developments in relation
to the tort of intentional infliction of harm will make any similar expansion of the tort of
assault unnecessary — ie, where there is no prospect of an immediate battery. Cf Rogers,
Winfield and Jolowicz on Tort (2002) p79.
39 Murray v Minister of Defence [1985] 12 NIJB 12.
The effect of the origin of this tort on the present law is seen when one asks whether
to brandish an unloaded pistol is an assault. In 1840 it was still being said that this was
not assault because the defendant could not have intended a battery.” Tindal CJ had
said 10 years previously that ‘it is not every threat, when there is no actual physical
violence, that constitutes an assault, there must, in all cases, be the means of carrying
the threat into effect’.*! These cases have not been overruled, but it is the ratio of one
criminal law case that to point an unloaded gun at the claimant is an assault,” and it is
submitted that a modern court would hold reach a similar conclusion in tort. The gist of
the tort is that an act which causes a reasonable person to apprehend a battery
constitutes an assault. The test for what constitutes reasonable apprehension of an
imminent battery is objective not subjective, and a reasonable person could not be
expected to know that the gun was not loaded. Conversely, if the claimant is paranoid
and perceives the defendant’s innocuous waving of his hand in the air during
conversation as a threat, there is no assault.
Where interventions of the police, or other protective measures, ensure that defendants
cannot carry out threats of violence and abuse, there is no assault committed. So,
where working miners were driven on buses into their collieries with police guards, the
threats yelled at them by strikers were not assaults. The claimants could not reasonably
have apprehended that those threats would be carried out there and then. Their distress
and emotional strain was not the result of an apprehension of an immediate battery. In
the light of this decision, it is apparent that assault provides only limited protection
from the infliction of mental anxiety.
At one time it was thought that mere words could not constitute an assault.“ But the
House of Lords in R v Ireland squashed that fallacy in criminal law. Words that instil
a reasonable fear of an imminent battery should equally amount to a tortious assault
for ‘[the] means by which persons of evil disposition may intentionally or carelessly
cause another to fear immediate and unlawful violence vary according to
circumstances’.*° On the other hand, words accompanying an act may explain away
what might otherwise be an assault. Thus, there was no assault where the defendant
with his hand on his sword said: ‘[i]f it were not assize-time, I would not take such
language from you’.*’
40 Blake v Barnard (1840) 9 C & P 626.

41 Stephens v Myers (1830) 4 C & P 349, at 349-50. In Osborn v Veitch (1858) 1 F & F 317 it
was held that to point a loaded gun at half-cock at C was an assault but this was because there
was ‘a present ability of doing the act threatened’.
42 Rv St George (1840) 9 C & P 483.
43 Thomas v NUM [1985] 2 All ER 1, at 24.
44 The case usually relied on is R v Meade and Belt (1823) 1 Lew CC 184, where it was said obiter
(at 185) per Holroyd J that ‘no words or singing are equivalent to an assault’.
45 [1998] AC 147, HL.
46 [1997] 3 WLR 534, at 550, HL, per Lord Hoffmann. R v Ireland centred on a telephone call,
but unless the call is made from a mobile phone just outside C’s house, it seems contrary to
principle to embrace such a case within the tort of assault for want of immediacy.
47 Tuberville v Savage (1669) | Mod Rep 3.
Section 4. Intentional physical harm other than trespass to person

od
This innominate tort may be defined in the following terms.
A wilful act (or statement) of the defendant, calculated to cause physical harm to
the claimant and in fact causing physical harm to him, is a tort.
This rule was established by Wright J, in Wilkinson v Downton:*
C was told by D, who knew it to be untrue, that her husband had been seriously
injured in an accident. Believing this, she suffered nervous shock resulting in
serious physical illness, and was held to have a cause of action.
The Court of Appeal upheld Wilkinson v Downton in Janvier v Sweeney:”
Ds, private detectives, told C that unless she procured certain letters belonging
to her mistress for them, they would disclose to the authorities that her fiancé, an
internee, was a traitor. Ds knew they had no such evidence. C recovered damages
for the physical illness brought on by nervous shock occasioned by Ds’ conduct.
Although both the above cases feature psychiatric harm, the tort is not thus confined.
Since intentional acts which indirectly cause harm are not trespasses, there are many
situations where, but for the judgment in Wilkinson v Downton, there might be no
action. Putting poison in another’s tea or digging a pit into which it is intended that
another shall fall are not trespasses, but should properly be regarded as intentional
physical harms within the rule in Wilkinson v Downton. The old cases declaring that it
is a tortious act deliberately to set spring guns or other mechanical devices with the
intention of injuring trespassers seem to belong to this category.*° It seems confusing
to speak of negligence when the defendant has deliberately inflicted the harm.
It has been suggested that it is wrong to state that in this tort one must prove that the
defendant intended to cause the harm, and that the cases decide that one need only
prove an intention to do the act.*'! But Wright J said:*? ‘One question is whether the
defendant’s act was so plainly calculated to produce some effect of the kind which was
produced that an intention to produce it ought to be imputed to the defendant’. That
fact that the motive was a joke is irrelevant. However, this does hint at a problem: if the
words uttered in that case were intended as a joke, in what sense was the defendant’s
conduct calculated to cause harm?
An answer to this question has recently been supplied by the Court of Appeal in
Wainwright v Home Office.
A mother and her son with learning difficulties were subjected to a strip search
before they could enter a prison to visit a second son who was imprisoned there.
Although no physical contact was made with the mother, she nonetheless
48 [1897] 2 QB 57, 66 LJQB 493 (the fuller report).

49 [1919] 2 KB 316, CA.
50 Deane v Clayton (1817) 7 Taunt 489 (court equally divided whether it was actionable on the
case to set iron spikes for dogs); Bird v Holbrook (1828) 4 Bing 628 (setter of spring gun liable
in case to pursuer of stray fowl). Cf Zownsend v Wathen (1808) 9 East 277.
51 Goodhart, Book Review (1994) 7 MLR 88.
52 [1897] 2 QB 57 at 59.
53 [2001] EWCA Civ 2081, [2002] 3 WLR 40.
complained of the humiliating and procedurally improper way in which the search
was conducted. Her complaint was that the prison staff, in forcing her to undergo
the search, had wilfully caused her to do something to herself that infringed her
legal right to privacy and exacerbated her existing depression.
Among the many issues that fell for consideration was the question of the defendant’s
mental state for the purposes of this tort. All three judges were of the view that either
actual intention or objective recklessness would suffice. As Lord Woolf put it: ‘the act
has to be either one which is done with the intention of causing harm or done in
circumstances where it was so likely that harm would be incurred that an intention to
produce harm has to be imputed’.
Historically, the rule in Wilkinson v Downton has been a little used tort. For a time,
during the mid-1990s, it looked as though the principle would be extended beyond the
protection of physical and mental health, to the protection from harassment.*> Yet
recent dicta emanating from the Court of Appeal decision in Wong v Parkside Health
NHS Trust* look to have halted this expansion of the tort in its tracks. The preferred
route being redress sought under the Protection from Harassment Act 1997.
Section 1 of that Act provides that conduct amounting to harassment of another
becomes a criminal offence unless justifiable for the purpose of detecting or preventing
crime, or authorised by law, or, in the particular circumstances, that conduct was
reasonable. The victim of such harassment, be it actual or apprehended, is granted a
right to sue in tort for breach of statutory duty by section 2 of the Act. In the light of
this, and drawing on the earlier (obiter) words of Lord Hoffmann in Hunter v Canary
Wharf Ltd,*’ the Court of Appeal expressed the view that the creation of a statutory tort
of harassment has obviated the need for any further development of the common law.
This is highly dubious. For a start, although the 1997 Act provides no concrete definition
of harassment, it is at least clear that conduct constitutes harassment only if the
defendant knows or ought to know that his activities amount to harassment.** But the
degree of distress or harm required to render unsocial behaviour harassment remains
to be determined; and maybe the courts will be lenient in this respect preferring not to
characterise many forms of undesirable conduct as criminal harassment. As such,
since the tort under the Act is parasitic on the offence of harassment, it may well
transpire that the Act offers rather less by way of civil law protection than the Court of
Appeal seems to suppose. Secondly, since the Act requires a course of conduct — that
54 [2001] EWCA Civ 2081, at [44], [2002] 3 WLR 405, at [44]. Buxton LJ specifically described
the test as involving ‘objective recklessness’, at [79]; and Mummery LJ agreed with both of
the other judges.
55 The decision in Khorasandjian v Bush [1993] QB 727, [1993] 3 All ER 669, looked for a time
as though it might be taking the rule in Wilkinson v Downton into new territory: the protection
of privacy with no requirement of mental or physical harm. See also Burris v Azadani [1995]
1 WLR 1372, CA (some recognition of protection from mere harassment on the part of the
then Master of the Rolls).
56 [2001] EWCA Civ 1721, CA.
57 [1997] 2 WLR 684, at 709.
58 For these purposes D ought to know that which a reasonable person in possession of the same
information would know: Protection from Harassment Act 1997, s 1(2). No account is to be
taken of any mental deficiency on D’s part. Thus, schizophrenia being the reason behind
sending threatening letters to a local MP is not to be taken into account: R v Colohan [2001]
EWCA Crim 1251, at [21], [2001] 2 FLR 757, at [21].
is, conduct on at least two occasions”? — it is clear that one-off incidents of harassing
‘ yr . . . . .
conduct do not fall within the statute. “
On the other hand, it is by no means clear that the rule in Wilkinson v Downton is apt
to be invoked to fill the gaps left by the Act. The question of whether an intention to
cause distress falling short of physical or recognised psychiatric harm would suffice
was addressed in Wainwright vyHome Office.® Unfortunately, no clear answer was
provided. For Lord Woolf, liability could be incurred where D intended to cause, or
was reckless at to causing, ‘severe emotional distress’ on the condition that ‘bodily
harm resulted from it’.®' By contrast, Buxton LJ was of the view that there must be
intention or recklessness as to physical or psychiatric harm. He was forthright that
‘[i]Jntention or recklessness merely as to severe emotional distress ... is not enough’.
In practice, there is little between the two stances since it is well understood that the
recovery for psychiatric harm in negligence is dependent upon the infliction of severe
emotional distress. Given this link between recognised psychiatric harm and severe
emotional distress, it would be difficult to argue that one intended only to inflict such
distress but that one was not reckless as to causing a recognised form of psychiatric
injury. Nonetheless, it is submitted that, in theoretical terms, Lord Woolf’s is the
preferable approach. Since the enactment of the Human Rights Act 1998, the courts
have been obliged to develop the common law consistently with Convention rights;®
and it would seem that the insistence that there be some form of tangible harm for the
purpose of this tort overlooks the right to respect for private life conferred by Article
8 of the Convention. To permit the intentional infliction of emotional stress falling
short of psychiatric harm is extremely difficult to reconcile with this right.
Section 5. False imprisonment

This tort may be defined in the following terms.
An act of the defendant which directly and intentionally (or possibly negligently)
causes the confinement of the claimant within an area delimited by the defendant.
This definition captures the essence of the final intentional tort, which is rather
inadequately known as false imprisonment.
Usually when there is a false imprisonment there will also be an assault or battery, but
not, for example, where A voluntarily enters a room and B then locks the door. This tort
protects the interest in freedom from confinement, it protects against the loss of liberty.
59 Protection from Harassment Act 1997, s 7(3). Interestingly, this will include a series of
newspaper articles, or a series of threatening letters from someone unknown to C: see,
respectively, Thomas v News Group Newspapers [2001] EWCA Civ 1233, [2002] EMLR 78;
Rv Colohan [2001] EWCA Crim 1251, [2001] 2 FLR 757.
60 [2001] EWCA Civ 2081, [2002] 3 WLR 405.
61 [2001] EWCA Civ 2081, at [50], [2002] 3 WLR 405, at [50].
62 [2001] EWCA Civ 2081, at [80], [2002] 3 WLR 405, at [80].
63 Quaere whether subjecting prison visitors to strip-searches that were in view of others might
qualify as degrading treatment within Art 3 of the Human Rights Convention.
64 The term ‘false’ conveys little to nothing of what this tort concerns.
Trespass to the person and related torts 4\
(A) State of mind

Normally this tort must be intentional in the sense that the defendant must intend to do
an act which is at least substantially certain to effect the confinement. There is no need
to show malice. Indeed, even where there is good faith on the part of the defendant, he
may still be liable for his intentional confinement of the claimant. Thus, in R v Governor
of Brockhill Prison, ex p Evans (No 2)® a prison governor who calculated the claimant’s
day of release in accordance with the law as understood at the time of her conviction
was held liable when a subsequent change in the law meant that the prisoner should
have been released 59 days earlier.
On principle, negligence ought to be enough. Accordingly, if a person locks a door,

being negligently unaware of the presence of somebody in the room, this should be
false imprisonment. On the other hand, a remedy was made available in one case under
the auspices of the tort of negligence when a prisoner was negligently detained for a
period that exceeded that authorised by the court.”
(B) Character of the Act

Like other trespasses, this tort is actionable per se but the courts have insisted upon
total (as opposed to partial) restraint of the person.°’ Thus, to prevent a man from
crossing a bridge except by making a detour around part of the area of the bridge which
has been closed off is not false imprisonment. Nor was it false imprisonment if A were
able to escape from his confinement by a nominal trespass on the land of a third
party.®
It is well established that although confinement must be total, it need not be in a prison
as the name of the tort perhaps suggests. One may be confined in a house,” in a
prison,” in a mine,’! or even in a vehicle.” How large the area of confinement can be
obviously depends on the circumstances of each particular case — it could be tortious
to restrict a man to a large country estate, or perhaps even to restrain him from leaving,
say, the Isle of Man. Yet if A prevented B from landing in England from the Continent,
that act could not be a false imprisonment.”? The important point is that the boundaries
of the area of confinement must be fixed by the defendant. As Coleridge J said in Bird
v Jones."
65 [2001] 2 AC 19, HL. Cf Olotu v Home Office [1997] 1 WLR 328, CA (prisoner held beyond
proper term of confinement but no liability for false imprisonment because the prisoner could
not lawfully be released in the absence of court order authorising such release).
66 Clarke v Crew [1999] NLJR 899, CA.
67 Partial restraint may be the subject of an action on the case, on proof of damage: Wright v
Wilson (1699) 1 Ld Raym 739; Bird v Jones (1845) 7 QB 742, at 752, per Patterson J.
68 Wright v Wilson, supra; the court thought that a special action on the case would lie.
69 Warner v Riddiford (1858) 4 CBNS 180.
70 Cobbett v Grey (1849) 4 Exch 729.
71 Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67, HL.
72 Burton v Davies [1953] QSR 26 (Queensland), driving a car at such a speed as to prevent a
passenger from alighting is false imprisonment.
73 But in Kuchenmeister v Home Office [1958] 1 QB 496, it was held to be imprisonment for
immigration officers to prevent an alien from proceeding from an airport to an aircraft and
from embarking on it, even though the Aliens Order, 1953, authorised them to prescribe limits
within which he must remain.
74 (1845) 7 QB 742, at 744.
‘
Some confusion seems ... to arise from confounding imprisonment of the body
with mere loss of freedom ... Imprisonment ... includes ‘the notion of restraint
within some limits defined by a will or power exterior to our own.
Lord Denman, in his dissenting judgment in the same case, said:”
As long as Iam prevented from doing what I have a right to do, of what importance
is it that Iam permitted to do something else? ... If] am locked in a room, am I not
imprisoned because I might effect my escape through a window, or because I
might find an exit dangerous or inconvenient to myself, as by wading through
water ...?
Although this contention was rejected so far as the adequacy of a partial restraint is
concerned, it is suggested that, if someone can only escape at the risk of personal
injury, or if it is otherwise unreasonable” for him to escape, it constitutes the tort of
false imprisonment. The barriers need not be physical. Thus, when a Commissioner in
Lunacy wrongfully used his authority to dissuade the claimant from leaving his office,
he was liable in false imprisonment.”’ But where a voluntary mental patient is only
restrained in the sense that he would be compulsorily detained” if he attempted to
leave, there is no false imprisonment.” For the purposes of the tort, the confinement
must be actual, not merely potential or conditional.*°
Restraint on movement in the street even by a mere threat of force that intimidates a
person into compliance without laying hands on him is false imprisonment.*! restraint
A
effected by an assertion of authority is enough — so those who seek compensation
because they have been wrongfully arrested by policemen claim for false imprisonment,
and need not establish that the policeman touched them.*’ The claimant need not risk
violence by resisting his arrester.
Once a person is lawfully detained, changes in the conditions of his detention will not
render that detention unlawful. In a series of cases prisoners sought to assert that
detention in intolerable or unsanitary cells, constituted false imprisonment. The House
of Lords finally rejected such claims.*’ Once a prisoner is lawfully imprisoned by virtue
of the Prison Act 1952, he no longer enjoys any ‘residualliberty’, and the prison
authorities are entitled to restrain and define his movements. This does not mean,
75 (1845) 7 QB 742, at 754-5.

76 If A removes B’s bathing costume in a swimming pool and B does not leave the pool until he
has found someone to lend him another costume, is he falsely imprisoned?
77 Harnett v Bond [1925] AC 669, HL.
78 By virtue of the compulsory powers contained in the Mental Health Act 1983.
79 Rv Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458, HL.
80 But note the dissent of Lord Steyn in that case ([1999] 1 AC 458, at 495) that it was a ‘fairy
tale’ to suggest that the patient was free to leave.
81 But can one be imprisoned by telephone, and would a threat of force to a family member
suffice?
82 Warner v Riddiford (1858) 4 CBNS 180, especially at 204, per Willes J; Chinn v Morris (1826)
2 C & P 361; Grainger v Hill (1838) 4 Bing NC 212; Wood v Lane (1834) 6 C & P 774. What
if C is accused of shoplifting, but in order to avoid the embarrassment of a conversation in a
crowded store he accompanies the store detective to the office? Cf Conn v David Spencer Ltd
[1930] 1 DLR 805.
83 Rv Deputy Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58, HL. But note the obiter
suggestion in Joumia v Evans (1999) Times, 1 April, CA that it is arguable that a gaoler who
locks a prisoner in his cell in violation of the governor’s orders may be liable under this tort.
however, that a prisoner subjected to intolerable hardship is remediless. In appropriate

circumstances he may have an action for assault and battery, for misfeasance in public
office, or, if the conditions of confinement affect his health, under the tort of negligence.
It is suggested that similar analysis may be applied to detention by police officers who
retain the right to detain (albeit not in the unlawful manner). For, if a remedy in false
imprisonment lay, once an arrested person could establish that the conditions of his
detention render his further detention unlawful, the logical consequence would be
that from that moment on he could go free, using reasonable force, if necessary, to
effect his escape.
Similarly, it has been held that a person held on remand beyond the 1 12-day limit set by
Regulations could not sue the prison authorities for false imprisonment.* The claimant
was lawfully in the custody of the prison governor and only an order of the Crown
Court could secure her release. The failure of the Crown Prosecution Service to bring
her to trial or arrange her release on bail, and her own surprising failure to apply for bail,
did not affect the validity of her detention. The claimant’s right was not to be released
from prison per se, but to an order of the court releasing her on bail.
False imprisonment must result from a direct act of the defendant which deprives the
claimant of his liberty. So, it is not false imprisonment to cause a person to be temporarily
detained in an asylum by making false statements to the authorities about his behaviour.*°
However short the period of detention, an action for false imprisonment will lie, provided
that the other requirements of the tort are satisfied.
A false imprisonment will normally result from some positive act; but in Herd v Weardale
Steel, Coal and Coke Co*’ the question arose as to whether there might be liability in
respect of a mere omission.**
C, a miner employed by Ds, descended their mine in pursuance of his contract of
employment. During his shift C requested that Ds carry him to the surface in
their cage. In refusing this request Ds committed no breach of contract: their
contractual obligation was to transport C to the surface at the end of his shift.
The action in false imprisonment also failed.*
This case is authority for the proposition that failure to provide a means of egress from
premises is not a tort where there is no duty to provide it. Thus, if A falls down B’s mine
while trespassing on B’s land, it is not false imprisonment should B refuse to bring him
84 This, however, would require proof of malice: see Three Rivers District Council v Bank of
England (No 3) [2000] 2 WLR 1220.
85 Olotu v Home Office [1997] 1 WLR 328, CA (the Court of Appeal expressly addressed how far
their findings were compatible with Art 5 of the Human Rights Convention); Quinland v
Governor of Swaleside Prison [2002] EWCA Civ 174, [2002] 3 WLR 807.
86 But an action on the case lay against a medical practitioner, who negligently certified that C
was insane, whereupon she was detained in a mental hospital: De Freville v Dill (1927) 96
LJKB 1056. Quaere, is it false imprisonment to deflate the tyres of the invalid chair in which
a cripple is travelling, or to take away the ladder of a tiler who is on the roof?
87 [1913] 3 KB 771, CA; affd [1915] AC 67, HL.
88 Because both are acts of commission, not of omission, consider the example of a student
forbidden to leave the lecture room until the end of the lecture, and a conductor who will not
allow one who has boarded the wrong bus to alight without paying his fare.
89 Cf Robinson v Balmain New Ferry Co Ltd [1910] AC 295 at 299, PC: ‘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’.
to the surface in his lift° What the case left undecided is whether the failure to carry
out a duty — contractual or otherwise — may constitute a false imprisonment even
though there has been no positive act on the part of the defendant. But the House of
Lords in R v Governor of Brockhill Prison, ex p Evans (No 2)°' has now made it clear
that the tort is committed where an obligation to release a prisoner who has served his
full term is not fulfilled on time.
(C) Knowledge of the claimant

Surprisingly, perhaps, there is no requirement that the claimant alleging false
imprisonment was aware of the relevant restraint on his freedom at the time of his
confinement. Prior to 1988 the authorities on this issue were in conflict. In Herring v
Boyle” an action brought on behalf of a schoolboy detained at school by his
headmaster during the holidays because his parents had not paid the fees failed. The
judge found that the boy was unaware of his detention. But in Meering v Grahame-
White Aviation Co”’ a man persuaded by works police to remain in an office, but
unaware that had he tried to leave he would have been prevented from doing so,
successfully recovered damages for his imprisonment. The House of Lords in Murray
v Ministry of Defence™ endorsed that latter judgment. Actual knowledge of detention
is not a necessary element of the tort of false imprisonment. Proof of a total restraint of
liberty is sufficient. Lord Griffiths declared:
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.”°
It may also be false imprisonment even if the ‘prisoner’ has a reasonable means of
escape at his disposal, but does not know of it. Here, however, he would probably
have to show that a reasonable man would not have known of it either.
(D) Who is liable for a false imprisonment?

The usual question to be asked when deciding who can be sued for false imprisonment
is: who was ‘active in promoting and causing’ the confinement?” It is often necessary
to determine who can be sued when a person is detained and charged for an offence
where the arrest is unjustified by law.”’ (The separate question of lawful arrest as a
defence is examined later.)
Giving information to the police, on the basis of which a police officer exercises his
own judgment and arrests the claimant, does not impose on the informer responsibility
90 And if B’s refusal caused A to die of starvation?

91 [2001] 2 AC 19, HL. Cf Olotu v Home Office [1997] 1 WLR 328, CA.
92 (1834) 1 CrM & R 377.
93 (1919) 122 LT 44.
94 [1988] 2 All ER 521.
95 [1988] 1 WLR 692, at 704.
96 Aitken v Bedwell (1827) Mood & M 68.
97 See Pike v Waldrum and P & O Navigation Co [1952] 1 Lloyd’s Rep 431 on the liability of
naval authorities and a ship’s captain for the arrest of a seaman.
for that arrest, however likely it is that an arrest will ensue from the information proffered.
Thus a store detective was not liable when the claimant was arrested on the basis of
information which she gave to police officers, even though her information proved to
be erroneous.”* Even signing the charge sheet at the police station will not necessarily
render the private citizen liable for the detention of the claimant.” It must be shown
that the claimant’s detention was truly the act of the defendant rather than of the police
officers concerned. So where a police officer refused to take the claimant into custody
unless the defendant charged him and signed the charge sheet, the defendant not the
police officer was held responsible for that detention.'”
If the defendant wrongfully gives the claimant into custody and then the magistrate
remands the claimant, the defendant is answerable in false imprisonment for damages
only up to the time of the judicial remand. Once a judicial act interposes, liability for
false imprisonment ceases.'®' It is important to distinguish false imprisonment from
malicious prosecution, a tort concerned with the abuse of the judicial process, and
which, unlike false imprisonment, calls for proof of malice and of absence of reasonable
cause.'” Therefore, if A wrongfully prefers a complaint against B before a magistrate
who then issues a warrant or tries him forthwith or remands him, A has not committed
the tort of false imprisonment,'® even if the magistrate has no jurisdiction.'™
(E) Damages
Like the other trespass torts, false imprisonment is actionable without proof of damage.
In addition to damages for loss of liberty the court may compensate for injury to
feelings and loss of reputation.'
In claims for false imprisonment, awards of damages are currently made by juries. The
amounts of such awards against the police escalated in recent years with an award of
£200,000 in exemplary damages being made in one such action brought by Mr Hsu. In
Thompson v Metropolitan Police Comr,'°’ where the police appealed against the
award to Mr Hsu, the Court of Appeal issued guidelines on the criteria which should
now determine awards of compensation for false imprisonment and malicious
prosecution. Judges directing the jury on the issue of damages must address the
following matters. Save in exceptional cases, damages are to be awarded only to
compensate the claimant for the injury suffered, not to punish the defendant. Basic
damages to compensate the claimant for loss of liberty would generally start at about
£500 for the first hour of detention, but thereafter be calculated on a reducing scale to
98 Davidson v Chief Constable of North Wales [1994] 2 All ER 597, CA. See also Gosden v
Elphick (1849) 4 Exch 445.
99 Sewell v National Telephone Co [1907] 1 KB 557, CA; Grinham v Willey (1859) 4 H & N 496.
100 Austin v Dowling (1870) LR 5 CP 534. See also Ansell v Thomas [1974] Crim LR 31, CA where
it was recognised that a person may be liable in false imprisonment either because he himself
effected the arrest or — in line with the general principle that he who instigates another to
commit a tort is a joint tortfeasor — because he actively promoted the arrest of another.
101 Lock v Ashton (1848) 12 QB 871.
102 See ch 26.
103 Brown v Chapman (1848) 6 CB 365.
104 West v Smallwood (1838) 3 M & W 418.
105 Hook v Cunard Steamship Co Ltd {1953] 1 All ER 1021.
106 [1998] QB 498, CA.
allow around £3,000 for24 hours unlawful imprisonment and a ‘progressively reducing
scale’ for subsequent days.:Aggravated damages should be awarded only on evidence
of humiliating circumstances surrounding the detention,'”’ or especially malicious or
oppressive behaviour by police officers. Aggravated damages would rarely be less
than £1000 but would net generally approach double the figure for basic damages.
Exemplary damages must be exceptional, based on a judgment that the sum of basic
and aggravated damages is inadequate to punish the defendant for oppressive and
arbitrary behaviour. Juries must note that an award of exemplary damages constitutes
a windfall for the claimant and that where damages come out of police funds, the
burden of payment falls on the police budget affecting perhaps the operational efficiency
of the service. The amount of exemplary damages must be no more than is sufficient to
mark the jury’s disapproval of police behaviour. A particularly disgraceful instance of
misbehaviour might merit an award of £25,000; and £50,000 should be regarded as an
absolute maximum. As such, the Court of Appeal reduced the award of £200,000 to
£15,000.
Given the facts in both Mr Hsu’s case, and the second case with which the police’s
appeal against his award was joined, it might be asked why, in the light of the gross
brutality involved in those cases, the Court of Appeal was so anxious to reduce levels
of damages for false imprisonment. Was it solely to protect police funds, and if so, can
this be justified in terms of justice?'°’ Whether it can or cannot, it has since been held
that where exemplary damages.are awarded, there should be no necessary implication
that aggravated damages, too, should be awarded.'” Another crucial factor is this.
Awards for pain and suffering in personal injury claims remain relatively low. A claimant
suffering two broken legs, enduring weeks of hospitalisation and some continuing
incapacity might be awarded only about £50,000. How should compensation for loss
of liberty and transient humiliation compare to compensation for injury?
Section 6. Other forms of compensation

Many of the torts discussed in this chapter will also be crimes. A court which has
convicted a person of an offence (other than a road traffic offence) may require him to
compensate the victim for any personal injury, loss or damage resulting.''!° The Criminal
Injuries Compensation Scheme further provides for awards of compensation to victims
of crime who have sustained personal injuries. However, detailed discussion of that
scheme falls outside the scope of this book.
107 See Wainwright v Home Office [2001] EWCA Civ 2081, [2002] 3 WLR 405.
108 In relation to the question of whether retributive justice ought to play any part in tort law, see
generally Law Com No 247, Aggravated, Exemplary and Restitutionary Damages (1997).
109 Isaac v Chief Constable of West Midlands [2001] EWCA Civ 1405.
110 See Criminal Injuries Compensation Act 1995.
CHAPTER 4
Wrongful interference with goods
Section |. Introduction
The law might be expected to protect persons whose title to, or possession of, goods
is interfered with, or whose goods are damaged by intentional conduct. Broadly
speaking, English law does this, but not in any systematic way. And this is so despite
a comprehensive review of these chattel torts by the Law Reform Committee! that led
to a recommendation that the various torts relating to intentional interferences with
goods should be replaced by a single tort of ‘wrongful interference with chattels’. In
fact, this recommendation was only implemented to a very limited extent in the form of
the Torts (Interference with Goods) Act 1977.° Hence it is still important to attempt to
understand the various chattel torts.
The action for trespass to goods, affords a remedy where there has been an intentional
or careless direct interference with goods in the claimant’s possession at the time of
the trespass, whether that be by taking the goods from him or damaging the goods
without removing them. It is of no help where the relevant interference with the goods
was indirect, nor is trespass generally available where the goods are not in the
possession of the claimant. Thus if student A lends his book overnight to student B,
who gives it or sells it to C, an action in trespass will not lie against C.
The oldest of the chattel torts — the writ of detinue — developed to provide a remedy for
wrongful detention of goods. A person with a right to immediate possession of goods
could, by way of an action in detinue, recover the goods themselves or payment of
their value and consequential damages for their detention upon evidence that the
defendant had wrongfully refused to surrender the goods on demand. In many
instances, the facts which gave rise to a remedy in detinue simultaneously created a
cause of action in conversion, the latest of the major chattel torts to evolve. Detinue
was abolished by the Torts (Interference with Goods) Act 1977. But the one clear
instance of detinue that did not constitute conversion at common law — loss or
1 . See the 18th Report of the Law Reform Committee (Conversion and Detinue) (1971) Cmnd
4774.
x See Palmer, ‘The Application of the Torts (Interference with Goods) Act 1977 to Actions in
Bailment’ (1978) 41 MLR 629.
destruction of goods in bréach of duty by a bailee? — was ‘transformed’ into a statutory

conversion by section 2(2) of that Act. vd
The action for conversion (originally called trover) developed upon a legal fiction.*
The original form of the pleadings alleged that the defendant had found the claimant’s
chattels and had wrongfully converted them to his own use. The allegation of finding
could not be contested and the essence of the tort became the wrongful conversion of
the goods to the use of the defendant. As seizing goods and carrying them away is
quite clearly a wrongful conversion of goods, conversion is also often available
concurrently with trespass. But merely moving or damaging goods without converting
them to the defendant’s own use remains remediable in trespass alone.° The action for
conversion lies not only where the claimant has actual possession of the relevant
goods but also where he has a right to immediate possession of the goods. Consider
again the earlier example of the aggrieved student A. Should B refuse to return the
book to him he commits conversion. Should B have sold the book to C who also
refuses to deliver the book back to its true owner, both B and C may be sued for
conversion.
The major chattel torts of trespass and conversion protect interests in possession. But
there are also several residual torts derived from the action on the case that protect the
rights of owners not in possession in certain cases. And where goods are lost or
damaged as a result of the defendant’s breach of a duty of care, an action may lie in
negligence.
The archaic nature of the chattel torts adds to the intrinsic difficulty of the subject of
wrongful interference with goods. That difficulty is unavoidable in that, as the essence
of trespass or conversion is very often whether the defendant wrongfully and unlawfully
dealt with the claimant’s goods, the basic question of law in issue may be one of
contract or personal property,° or even one of mercantile law.’ For example, if A enters
into a conditional sale agreement with B to purchase a car, and before A has completed
all the payments on the car he sells it to C, when B seeks to recover the car or its value
from C via an action for conversion, the court will have to consider the authority (if
any) of A to sell the car to B. That authority will depend on:
1 the terms of the contract between A and B; and
2 the relevant personal property rules on title to goods.
The Torts (Interference with Goods) Act 1977 introduces a collective description
‘wrongful interference with goods’® to cover conversion, trespass to goods, negligence
resulting in damage to goods or an interest in goods, and any other tort in so far as it
results in damage to goods or an interest in goods. This is done to facilitate common
3 When goods are entrusted by one person (the bailor) to another (the bailee) a bailment is
created which imposes on the bailee duties towards the bailor in respect of those goods. The
nature of the bailment — whether gratuitous or for reward, voluntary or involuntary — will
determine the scope of the duty owed by the bailee.
4 For details of the history of detinue and conversion and the interplay between the historic
chattel torts, see Milsom, ‘Not Doing is No Trespass’ [1954] CLJ 105; Simpson, ‘The
Introduction of the Action on the Case for Conversion’ (1959) 75 LQR 364.
Bushel v Miller (1718) 1 Stra 128; Fouldes v Willoughby (1841) 8 M & W 540.
See Bell, Modern Law of Personal Property (1989).
See The Future Express [1993] 2 Lloyd’s Rep 542, CA.
CANN Torts (Interference with Goods) Act 1977, s 1.
treatment of all chattel torts in respect of remedies and procedure. But the Act neither
redefines nor replaces the existing substantive rules on trespass, conversion, or the
residual chattel torts. The substantive impact of the Act is thus limited. One novel
provision does, however, allow bailees to dispose of uncollected goods,’ but apart
from this, the main impact of the 1977 Act is to simplify and rationalise the remedies and
procedures relating to chattel torts. The intricacies of conversion and trespass must
still be explored.
Section 2. Conversion
Conversion involves an intentional'® dealing with goods that is seriously inconsistent
with the possession or right to immediate possession of another person. The tort
protects the claimant’s interest in the dominion and control of his goods. It does not
protect his interest in their physical condition. This is why the tort is much concerned
with problems of title to personal property, and so often involves complex rules of
commercial law.'!
(A) Interest of the claimant
The claimant must have either possession or the right to immediate possession.'”
English law in this respect favours possession at the expense of ownership. For example,
if a landlord has rented out furnished accommodation for a fixed term and a third party
commits an act of conversion in respect of some of the furniture, the landlord has no
right to sue in conversion, although the tenant may do so."*
(1) Bailment
Where goods have been entrusted to another so as to create a bailment, the bailee can
sue third parties in conversion."* If the bailment is determinable at will, the bailor may
also sue because he is then deemed to have an immediate right to possession.’ A
9 Without statutory authority to do so bailees (eg, drycleaners) disposing of uncollected goods

would be liable for conversion for so doing. Sections 12,13 and Sch | repeal and replace the
earlier and unsatisfactory Disposal of Uncollected Goods Act 1952.
10 At common law an act of conversion had to be a voluntary act; hence the need to make the
wrongful loss or destruction of goods by a bailee in breach of duty a statutory conversion once
detinue was abolished.
11 As in The Future Express, supra. The tort appears to be actionable without proof of special
damage: Hiort v London and North Western Rly Co (1879) 4 Ex D 188.
12 The Future Express, supra; Gordon v Harper (1796) 7 Term Rep 9. As to equitable rights to
possess see Clerk & Lindsell ch 14.
13 Gordon v Harper, supra; and see Roberts v Wyatt (1810) 2 Taunt 268; City Motors (1933) Pty
Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477, H Ct (Australia).
14 The bailment gives him the right to possession of the goods for the period of the bailment. In
The Winkfield [1902] P 42, CA, the Postmaster-General, as bailee, could recover the full value
of mail lost through D’s wrongdoing.
15 As the bailment can be terminated at will, the owner retains the right to demand the goods back
instantly: Nicolls v Bastard (1835) 2 Cr M & R 659; Kahler v Midland Bank Ltd [1950] AC 24,
at 56, HL, per Lord Radcliffe.
bailment which originally gave to the bailor no immediate right to possess may become
a bailment at will. Manders v Williams" is illustrative. oe
C supplied porter in casks to a publican on condition that he was to return the

empty casks within six months. It was held that C could sue a sheriff who seized
some empty casks (within six months of their being supplied) in connection with
debt owed by the publican. Under the contract, once the casks were empty, the
publican became a bailee at will, whereupon C was entitled to immediate
possession.
Where a bailor and bailee enjoy concurrent rights to sue in conversion, they cannot
both exercise those rights and so effect double recovery against the defendant.'’ The
successful claimant who sues first must then account to the other for the proportion of
the damages representing his interest in the property. So, where the owner of a car had
lent the vehicle to his girlfriend, and the car was damaged while in her possession, his
successful claim for damages based on his right to recover the car at will precluded a
second action by the girlfriend albeit she had possession of the car at the time the
damage was done.'* In very many cases, however, the crucial issue for the bailor who
owns the goods, is whether he enjoys a right to immediate possession: is the bailment,
or has it become, a bailment at will? Or has some wrongful act of the bailee ended the
bailment; for if a bailee does a wrongful act which may be deemed to terminate the
bailment, the bailor may sue. Sale of the goods by the bailee will ordinarily terminate
the bailment and the bailor can then sue either the bailee or the third party.'? Destruction
of the goods” or dealing with them in a manner wholly inconsistent with the terms of
the bailment,”’ will have the same result. Thus, it will often be a matter of interpreting
the contract to decide whether a particular act of the bailee determines the bailment, or,
at least, makes it determinable at will. This is especially true in the case of hire-purchase
agreements which normally prohibit the hirer from selling or otherwise disposing of
the goods,” and empower the owner to terminate the agreement if the prohibition is
disregarded. If, for example, the agreement dispenses with notice of termination to the
hirer, the owner can sue a party who purchases from the hirer in unwitting contravention
of such a prohibition.” In Whiteley Ltd v Hilt™ the facts were as follows.
16 (1849) 4 Exch 339.

17 Nicolls v Bastard, supra (once one has sued, the case is closed).
18 O'Sullivan v Williams [1992] 3 All ER 385, CA.
19 Cooper v Willomatt (1845) 1 CB 672; Scotland v Solomon [2002] EWHC 1886 (Ch), (2002)
146 Sol Jo LB 218. Of course, at the conclusion of the purported act of sale, the bailee’s
interest is forfeited and the bailor is entitled to immediate possession. But if the sale is one
which passes a good title, when can the bailor be said to have an immediate right to possess (ie,
a right to sue the bailee in conversion)?
20 Bryant v Wardell (1848) 2 Exch 479, at 482.
21 Plasycoed Collieries Co Ltd v Partridge, Jones & Co Ltd [1912] 2 KB 345, at 351, per
Hamilton J. Presumably, this does not extend to excess of permitted user.
22 It is standard practice in hire-purchase agreements, by express terms, to make the benefits of
the hirer’s option to purchase unassignable: Helstan Securities Ltd v Hertfordshire County
Council [1978] 3 All ER 262.
23 North Central Wagon and Finance Co Ltd v Graham [1950] 2 KB 7, CA (sale by bailee made
hiring determinable at will of bailor: as explained in Reliance Car Facilities Ltd v Roding
Motors [1952] 2 QB 844, CA; Union Transport Finance Ltd v British Car Auctions Ltd [1978]
2 All ER 385, CA (damages recovered from auctioneer who sold car on instructions of a hire-
purchaser).
24 [1918] 2 KB 808, CA.
Wrongful interference with goods 5\
The hire-purchase agreement allowed the hirer to purchase a piano after payment
ofthe final instalment. It did not prohibit her from transferring the piano during
the hiring period. It was held that the owners had no cause of action against the
transferee who had paid all the instalments that remained owing.
This may be compared wih Belsize Motor Supply Co v Cox.®

The owners were authorised to determine the agreement if the hirers parted with
possession ofthe hired goods. It was held that (i) the owners could recover from
a pledgee ofthe hirer only the instalments that were still owing, and (ii) that the
agreement continued in force despite the transfer of the goods.
In effect, the courts treat hire-purchase agreements as sui generis in that they are
regarded as creating a proprietary interest separate from the contractual interest under
the bailment agreement.”°
(2) Lien and pledge
In certain cases where goods are entrusted to another to carry out particular services
(eg, repairs), the person in possession of those goods acquires a lien over the goods.
That is, he may retain the goods until he is paid for the services.*’ The holder of a lien
may sue in conversion;** but if he wrongfully parts with possession of the goods, he
loses his lien, and his act is itself a conversion which ends the bailment and entitles the
owner to sue him.” A pledge (deposit of goods as security for a debt), however,
confers something more than a lien. It confers a power to sell in default of payment on
the agreed date. So, in Donald v Suckling*® it was held that a re-pledge by the pledgee
did not end the pledge and the original pledgor could not sue the second pledgee
without tendering the sum owing. Similarly, the assignee of a pledgor cannot sue the
pledgee who sells the goods because, until the sum owing 1s paid, there is no immediate
right to possession.*!
(3) Sale
It is often difficult to discover which of the parties to a contract for the sale of goods
has an interest sufficient to support an action in conversion. The crucial question is
25 [1914] 1 KB 244; Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1 All ER 117, CA.
26 Cf Karflex Ltd v Poole [1933] 2 KB 251, at 263-4, per Goddard J; On Demand Information plc
v Michael Gerson (Finance) plc [2001] 1 WLR 155, at 171, CA, per Robert Walker LJ.
27 See Bell, ch 6.
28 In Lord v Price (1873) LR 9 Exch 54, the buyer of goods in possession of the seller, who had
a lien for the price, could not sue a third party. Is it desirable to prevent the owner from suing
a third party if a carrier has a lien?
29 Mulliner v Florence (1878) 3 QBD 484, CA.
30 (1866) LR 1 QB 585. A mere equitable pledge may be sufficient: Maynegrain Pty Ltd v
Compafina Bank [1984] 1 NSWLR 258.
31 Halliday v Holgate (1868) LR 3 Exch 299. Cf Bradley v Copley (1845) 1 CB 685. The
assignee of a bill of sale which authorises the borrower to remain in possession of the goods
cannot sue in conversion for a wrongful seizure of the goods by a sheriff, because, until the
assignee has demanded payment and been refused, or the borrower has otherwise defaulted in
payment, he has no immediate right to possession.
whether at the date of the alleged conversion the buyer has a sufficient right to immediate
possession of the goods.” In Empresa Exportadora de Azucar.y IANSA,* the claimants
had contracted to buy, and had paid for, two cargoes of sugar to be shipped to them in
Chile by the defendants from Cuba. On the orders of the Cuban government, after a
military take-over in Chile, the ship discharging the first cargo sailed away with the
cargo only partially unloaded and the second ship was diverted back to Cuba part way
through its voyage. The buyers:were held to have an immediate right to possession of
both the partially unloaded cargo and the diverted cargo and succeeded in their action
for conversion against the sellers.
Sales on credit terms pose rather more difficulties. In Bloxam v Sanders** it was held
that, where goods were sold on credit, the buyer could ordinarily sue the seller in
conversion if he wrongfully sold them to a third party, but that, if the seller exercised
his right of stoppage in transitu upon the buyer becoming insolvent, the buyer could
no longer sue. In the absence of credit terms, the buyer, although he may have the
property in the goods, has no right to immediate possession until he tenders or pays
the price.*
(4) Licensee
Sometimes a licensee may be able to sue in conversion. In Northam v Bowden* the
claimant had a licence to prospect certain land for tin, and the defendant, without
permission, carted away some of the soil on this land. It was held that ‘if the claimant
had a right to the gravel and soil for the purpose of getting any mineral that could be
found in it, he had such a possession of the whole as entitled him to maintain an action
for its conversion against a wrongdoer’.*’ Apart from such cases of profits a prendre,
licensees of goods are bailees and call for no separate treatment.
(5) Finder
The rule that possession is sufficient to ground a claim in conversion means that in
certain circumstances someone who finds a chattel can keep it and protect his right to
do so against third parties. The rules regarding finding were authoritatively settled in
Parker v British Airways Board although their application to particular cases is often
difficult:
The finder of a chattel acquires rights over it if the true owner is unknown and
the chattel appears to have been abandoned or lost and he takes it into his care
and control. He acquires a right to keep it against all but the true owner or one
32 See, eg, Wood v Bell (1856) 5 E & B 772 (the punching of a name on the keel of ship evinced
intention to pass property from the ship to C who had commissioned it).
33 [1983] 2 Lloyd’s Rep 171, CA (a defence of ‘act of state’ was rejected).
34 (1825)4B&C 941.
35 But compare Chinery v Viall (1860) 5 H & N 288 where the court decided the case without
regard to the fact that the contract was a sale on credit.
3.6 (1855) 11yExech 70!
37 (1855) 11 Exch 70, at 73, per Martin B.
who can assert a prior right to keep the chattel which was subsisting at the time
when the finder took the chattel into his care and control.
In the classic case of Armory v Delamirie® a chimney sweep’s boy who found a jewel
was able to sue when the goldsmith’s apprentice to whom he had handed the jewel for
valuation refused to return it to him. On the other hand, any employee or agent who
finds goods in the course of his employment does so on behalf of his employer who
acquires a finder’s rights. Anyone with finder’s rights has an obligation to take
reasonable steps to trace the true owner.
Finally, an occupier of land or a building has rights superior to those of a finder

over goods in, under, or attached to that land or building. Thus, a medieval gold
brooch buried eight inches under the soil in a public park found by the use of a
metal detector,”” and a prehistoric boat embedded in the soil six feet below the
surface,*' belong to the landowner. Similar rules apply to ships, vehicles and
aircraft. Yet an occupier of premises has rights superior to those of a finder over
goods upon or in, but not attached to, the premises only if, before the finding, he
has manifested an intention to exercise control over the building and the things
which may be upon it or in it.”
(6) Jus tertii (third party rights)

By virtue of the Torts (Interference with Goods) Act 1977* the defendant in an action
of conversion or other wrongful interference is entitled to prove that a third party has
a better right than the claimant with respect to all or any part of the interest claimed by
the claimant. The aims of this provision are to avoid a multiplicity of actions by allowing
interested third parties to apply to be joined in actions, to protect defendants against
the risk of being liable to two different claimants in respect of the same interference,
and to limit the claimant’s damages to his actual loss. The relevant date for ascertaining
the interest of the third party is the date of the alleged conversion.“
Although the Act abolished the former principle that a possessor of goods could
recover for the full amount of their value although he was not the owner, and even
though he was not personally liable to the owner to that extent, it is unclear whether
the Act has this effect where the relevant third party cannot be found or joined in the
38 [1982] QB 1004, at 1017, CA, per Donaldson LJ.

39 (1721) 1 Stra 505.
40 Waverley Borough Council v Fletcher [1996] QB 334, CA. See also South Staffordshire Water
Co v Sharman [1896] 2 QB 44.
41 Elwes v Brigg Gas Co (1886) 33 Ch D 562.
42 Parker v British Airways Board [1982] QB 1004, CA (C found a gold bracelet on the floor at
an airport and handed it in with his name and address and a request that it be returned if
unclaimed. D failed to return it and sold it but the court held the proceeds were rightly C’s. D,
on the facts, had shown no intention beforehand to exercise such control over the lounge as to
displace C’s rights as a finder.) In similar vein see Bridges v Hawkesworth (1851) 21 LIQB 75
and Hannah v Peel [1945] KB 509. Cf London Corpn v Appelyard [1963] 2 All ER 834 (goods
attached to premises).
43 Torts (Interference with Goods) Act 1977, s 8(1).
44 De Franco v Metropolitan Police Comr (1987) Times, 8 May, CA.
proceedings.** That said, the rules do abolish the principle that a bailee is estopped
from denying the bailor’s title: when sued by his bailor, he can now have a named third
party joined in.
(B) The subject matter

Any goods can be converted: Although cheques are of value only as choses in action,
the courts have allowed the full value represented by them to be recovered in conversion,
except where the cheque has been altered, so as to become a worthless piece of
paper* . So, where bankers do not handle actual cash, but merely make the appropriate
entries by credit or debit balances, the courts treat the conversion as being of the
cheque under which the money was transferred, and the value as the sum represented
by the cheque.*” This doctrine, applicable to all negotiable instruments, shows that
converson may occasionally lie in respect of rights in intangible property. But this is
not the limit. In Bavins Jnr and Sims v London and South Western Bank* the Court of
Appeal thought that the full value of a non-negotiable document evidencing a debt
could be recovered in an action for conversion. Equally, any intangible right that is
represented in the ordinary course of business by a special written instrument, even
though not negotiable, seems to be recoverable. Thus, a life insurance policy” or a
guarantee’ may also be converted.
Advances in medical science pose some fascinating conundrums concerning property
rights in human body products. For example, if a husband about to undergo
chemotherapy stores sperm to enable his wife to conceive via artificial insemination at
some later date, is the sperm bank liable for conversion if it takes that sperm and uses
it, without the donor’s consent, to inseminate a patient other than his wife? In relation
to such a case, the clearest guidance is to be gleaned from the decision in Dobson v
North Tyneside Health Authority.’ There, the claimants’ daughter’s brain was removed
after she had died in hospital. The brain was initially stored at the second defendant’s
hospital, but then subsequently disposed of. The claimants sued in conversion alleging
that the defendants’ failure to keep and preserve the brain deprived them of the
opportunity to discover whether the deceased’s tumours were benign or malignant.
The Court of Appeal dismissed the claim for conversion re-affirming the principle that
generally there is no property right in a corpse, or its parts. Only where some significant
process has been undertaken to alter that body, or preserve it for scientific or exhibition
purposes, can any title to the body be claimed. So, a museum possessing a valuable
Egyptian mummy can assert a claim to that mummy, and, apparently, doctors who
deliberately preserved a two-headed foetus could maintain a similar claim.”
45 See, eg, The Winkfield [1902] P 42, CA, for the pre-Act principle. Notwithstanding the literal
wording of the Act, it seems that the rule in The Winkfield may have survived in such
circumstances: see Costello v Chief Constable of Derbyshire Constabulary [2001] EWCA Civ
381, [2001] 1 WLR 1437.
46 Smith v Lloyds TSB Group plc [2001] QB 541.
47 Lloyds Bank v Chartered Bank of India, Australia and China [1929] | KB 40, at 55-6, CA,
per Scrutton LJ.
48 [1900] | QB 270.
49 Wills v Wells (1818) 2 Moore CP 247; Watson v MacLean (1858) EB & E 75.
50 M'Leod v M’Ghie (1841) 2 Man & G 326.
51 [1996] 4 All ER 474, CA.
52 Doodeward v Spence (1908) 6 CLR 406. And see now R v Kelly [1998] 3 All ER 741, CA.
Dobson expressly addressed property in tissues and organs taken from the dead. But
obiter dicta in the case suggest that a similar approach should be taken in relation to
products taken from living human bodies. Unless and until some special process alters
the very nature of the body product in England, as in the US,® a claim in conversion
for misuse of such products looks likely to fail.%4
(C) Defendant’s state of mind

Save for the statutory conversion created by section 2(2) of the Torts (Interference
with Goods Act 1977, there can only be a conversion if there is intentional conduct that
interferes with the claimant’s goods.
In Ashby v Tolhurst® the facts were as follows.
A third party had driven away C’s car which he had left in D’s car park. At the trial
C gave evidence that the attendant told him that he had ‘given’ the car to the
third party. His case in conversion rested upon the assertion that this word
“imports that the attendant took some active step to place this thief in possession
of the motor car’ but it was found ‘impossible to collect that meaning out of the
words’. There was therefore no conversion, quite apart from the fact that the
conditions on the ticket were also deemed to exclude liability.
If the defendant deals intentionally with the goods in a manner which interferes with
the claimant’s control, his act will constitute conversion, even if he does not ‘intend to
challenge the property or possession of the true owner’.*° In other words, liability is
strict and it matters not that the defendant commits a conversion by mistake or in good
faith.’ So, vis a vis the true owner, it is no defence for an auctioneer, after selling
goods on behalf of a client, honestly delivering them to the buyer, and paying the
proceeds of sale to his client, to say that he was unaware that his client did not own the
goods.**
(D) Acts of conversion

In some instances, especially those involving a sale of the goods, it is eminently clear
that the act is sufficiently inconsistent with the true owner’s rights to be conversion.
In many other instances, however, the courts have a discretion as to whether they will
53 See the famous case of Moore v Regents of the University of California 793 P 2d 479 (Cal
1990) where C failed to assert property rights in a cell-line developed from his excised spleen.
54 See generally Matthews, ‘Whose Body? People as Property’ [1983] CLP 193.
55 [1937] 2 KB 242, CA.
56 Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178, at 202, HL, per Lord
Porter; Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738.
57 Fowler v Hollins (1872) LR 7 QB 616, at 639, per Cleasby B; affd sub nom Hollins v Fowler
(1875) LR 7 HL 757 (followed in Union Transport Finance Ltd v British Car Auctions Ltd
[1978] 2 All ER 385, CA, and R H Willis & Son v British Car Auctions Ltd [1978] 2 All ER 392,
CA).
58 Picci titer Co v Curtis & Son [1892] 1 QB 495. In Moorgate Mercantile Co Ltd v Finch and
Read [1962] 1 QB 701, CA, the borrower of a car had it confiscated upon conviction for
carrying in it uncustomed watches. This was rightly held to be a conversion, for the confiscation
was the result of his intentional act of carrying the watches in the car. See also Chubb Cash Ltd
v John Crilley & Son [1983] 2 All ER 294, CA.
treat the act as sufficiently inconsistent with the true owner’s rights to be conversion.
This is particularly true in the case of physical damage to,,the goods and breach of
bailment. Regrettably, the courts have not spelt out fully the factors which go to the
exercise of their discretion. But the most important are probably the extent and duration
of the control or dominion exercised over the goods, the intention and motive of the
defendant, the amount of damage to the goods, and the cost and inconvenience to the
true owner.
(1) Taking goods or dispossessing

To take goods out of the possession of another may be to convert them. To steal, or to
seize under legal process without justification,” is a certainly conversion. If, after
lopping off the branches of his neighbour’s apple tree when they overhang his land, a
householder appropriates the fruit, he also commits conversion. Merely to remove
goods from one place to another, however, is not conversion.®' Thus, where a porter
moved another’s goods in order to reach his own, and negligently failed to replace
them, he was not liable in conversion for their subsequent loss.” It may be conversion,
however, if they are moved to an unreasonable place with an intrinsic risk of loss. In
Forsdick v Collins,® for instance, the defendant came into possession of land on
which the claimant had a block of Portland stone and the removal of the Portland stone
by the defendant ‘to a distance’ was held to be a conversion. A deprivation of goods
that is more than a mere moving (ie, deprives the claimant of their use for however
long), will be conversion,™ as will forcing the claimant to hand over goods under
duress.”
(2) Destroying or altering

To destroy goods is to convert them, if done intentionally.°° The quantum of harm
constituting a destruction for this purpose is clearly a question of degree, but mere
damage is not a conversion.®’ A change of identity not amounting to destruction is
also enough. For example, to draw out part of a vessel of liquor and fill it up with water
is conversion;® but perhaps merely to cut a log in two is not.” If goods are used for
59 Tinkler v Poole (1770) 5 Burr 2657; Burton v Hughes (1824) 2 Bing 173; Chubb Cash Ltd v
John Crilley & Son, supra.
60 Mills v Brooker [1919] 1 KB 555.
61 Fouldes v Willoughby (1841) 8 M & W 540, where D removed C’s horses from a ferry boat on
to the shore because he did not wish C to travel in the boat.
62 Bushel v Miller (1718) 1 Stra 128.
63 (1816) 1 Stark 173. Cf Sanderson v Marsden and Jones (1922) 10 LI L Rep 467, CA (D
removing timber from quay to his premises not a conversion).
64 Empresa Exportadora de Azucar v IANSA [1983] 2 Lloyd’s Rep 171, CA. But see to the
contrary 384238 Ontario Ltd v The Queen in Right of Canada (1983) 8 DLR (4th) 676.
65 Grainger v Hill (1838) 4 Bing NC 212.
66 Purely accidental destruction is not conversion: Simmons v Lillystone (1853) 8 Exch 431.
67 Fouldes v Willoughby, supra, at 549, per Alderson B.
68 Richardson v Atkinson (1723) | Stra 576.
69 Simmons v Lillystone, supra, at 442, per Parke B.
a purpose which eliminates their utility as goods in their ori ginal form —eg, making a fur
coat from animal skins — this is conversion.”° But it is not conversion to bottle another’s
wine in order to preserve it.”!
(3) Using
To use goods as one’s own is ordinarily to convert them. It was thus conversion for a
person, to whom carbolic acid drums were delivered by mistake, to deal with them as
his own by pouring the contents into his tank.” Equally, a claim ‘would not be defeated
by the fact that the defendant whom he sues for the misuse of his temporary dominion
of the property claims to be an agent for someone else’.”> However, a mere misuse by
a bailee, unaccompanied by any denial of title, is not a conversion, although it may
constitute some other tort.”4
(4) Receipt, disposition and delivery

Voluntarily” to receive goods in consummation of a transaction which is intended by
the parties to give to the recipient some proprietary rights in the goods may be a
conversion actionable by the owner.’”° It has been held to be a conversion for a purchaser
so to receive goods from someone who has no title.”’ If, however, the defendant
receives the goods in good faith for the purposes of storage or transport,’”’ he does
not commit conversion because there is no assertion of a proprietary interest in the
goods. Receipt of goods by way of pledge is conversion if the delivery is conversion.”
In relation to disposition and delivery, there is generally no conversion where a person
agrees to sell goods to which he has no title, but does not transfer possession of them.
The bargain and sale are void if the seller has no rights in the goods.*° On the other
70 Jones v de Marchant (1916) 28 DLR 561 (approved in Foskett v McKeown [2001] 1 AC 102,
HL. In such cases, the owner of the materials becomes the owner of the product if the material
can be wholly or substantially indentified in the product: Glencore International AG v Metro
Trading International Inc [2001] 1 Lloyd’s Rep 284.
71 Philpott v Kelley (1835) 3 Ad & El 106.
72 Lancashire and Yorkshire Rly Co v MacNicoll (1918) 88 LJKB 601. It has also been said that
‘[t]he wearing of a peal is conversion’: Lord Petre v Heneage (1701) 12 Mod Rep 519, at 520,
per Holt CJ. See also the many examples given in Mulgrave v Ogden (1591) Cro Eliz 219.
73 Morison v London County and Westminster Bank Ltd [1914] 3 KB 356, at 386, CA, per
Phillimore LJ (obiter).
74 Lee v Atkinson and Brooks (1609) Yelv 172 (when the hirer of a horse deviates, an action on
case lies); approved in Donald v Suckling (1866) LR 1 QB 585, at 615, per Blackburn J, who
said that if the act is repugnant to the bailment, it is conversion, but ‘where the act, though
unauthorised, is not repugnant to the contract as to show a disclaimer’ it is not. Penfolds Wines
Pty Ltd v Elliott (1946) 74 CLR 204.
75 Receipt by an involuntary bailee is not conversion.
716 Cf M’Combie v Davies (1805) 6 East 538, at 540, per Lord Ellenborough CJ: ‘Certainly a man
is guilty of a conversion who takes my property by assignment from another who has no
authority to dispose of it; for what is that but assisting that other in carrying his wrongful act
into effect?’
77 Farrant v Thompson (1822) 5 B & Ald 826.
78 Hollins v Fowler (1875) LR 7 HL 757, at 767, per Blackburn J. Cf Sheridan v New Quay Co
(1858) 4 CBNS 618 (carrier).
79 Sale of Goods Act 1979, s 11(2).
80 Lancashire Waggon Co v Fitzhugh (1861) 6 H & N 502; he may, however, be liable for
injurious falsehood: see ch 8.
hand, a person who without lawful authority disposes of goods with the intention of
transferring the title to ‘another, and does deliver the goods, thereby commits a
conversion. A sale and a pledge*! may each constitute such a disposition. In Syeds v
Hay a sea-captain was liable for delivering goods to another in the wrongful belief
that he had a lien on them. In certain circumstances, however, the courts and Parliament
have developed exceptions to the nemo dat rule (whereby a person who does not have
good title, may not pass to another a good title). The nature of, and reasons for, these
exceptions are not dealt with here, however, for they are properly to be seen as matters
of commercial (not tort) law.*?
(5) Misdelivery by carrier

A carrier™ or warehouseman** who by mistake delivers goods to the wrong person,
commits a conversion whether or not his mistake is innocent.*® But failure to deliver
because the goods have been lost or destroyed by accident or carelessness is not
conversion.*’ Nor is it conversion for a bailee** or pledgee*’ without notice of the
claim of the true owner to return goods to the person from whom he received them.
(6) Refusal to surrender on demand

A refusal to surrender goods upon lawful and reasonable demand is a conversion.” In
particular, this covers the situation where the possession of the defendant was originally
lawful. It may be invoked, for example, where the receiving is not itself actionable. The
most important case since the abolition of detinue by the Torts (Interference with
Goods) Act 1977 is Howard E Perry & Co Ltd v British Railways Board.’ The
defendants, fearing industrial action by their employees during a national steelworkers
strike, refused to surrender to the claimants steel belonging to the claimants that was
being held in the defendants’ depots. The defendants admitted that the claimants were
81 Parker v Godin (1728) 2 Stra 813.

82 (1791) 4 Term Rep 260. But if someone entrusts another with a chattel to be used by him, the
bailor impliedly authorises the bailee to allow a lien for the cost of necessary repairs to be
created over it: Green v All Motors Ltd [1917] 1 KB 625, CA; Tappenden v Artus [1964] 2 QB
185, CA.
83 Some illustrative cases were discussed in the 10th edition of this book.
84 Youl v Harbottle (1791) Peake 68, NP.
85 Devereux v Barclay (1819) 2 B & Ald 702.
86 If the carrier delivers in accordance with the seller’s instructions (or even as a carrier would
interpret his instructions according to the usual course of business although he in fact delivered
them to a person to whom the seller did not intend delivery to be made) this is not a
misdelivery: McKean v Mclvor (1870) LR 6 Exch 36. It is conversion by a carrier to deliver
goods to another carrier by whom they are misappropriated, unless the defendant carrier is
authorised to make a sub-contract: Garnham, Harris and Elton Ltd v Alfred W Ellis (Transport)
Ltd [1967] 2 All ER 940.
87 Owen v Lewyn (1672) 1 Vent 223; The Arpad [1934] P 189, at 232, CA per Maugham LJ.
88 Hollins v Fowler (1875) LR 7 HL 757, at 767, per Blackburn J. Otherwise the bailee would be
in an impossible position, for if he retained the goods he could not plead a title paramount of
which he was unaware.
89 Union Credit Bank Ltd v Mersey Docks and Harbour Board [1899] 2 QB 205.
90 Eason v Newman (1596) Cro Eliz 495; Isaack v Clark (1615) 2 Bulst 306, at 310, per
Dodderidge J; Baldwin v Cole (1704) 6 Mod Rep 212.
91 [1980] 2 All ER 579.
entitled to immediate possession and it was held that their refusal to allow the claimants
to enter the depots and collect the steel was wrongful.
There is a large amount of case law on this topic, but the principles are quite simple.
Even if the defendant no longer has possession at the time of the demand and refusal,
it is no defence for him to prove that, prior to the accrual of the claimant’s title, he
wrongfully parted with them.”? On the other hand, the defendant may postpone
surrender until after he has had a reasonable time in which to confirm the title of the
claimant, or, if he is an employee, to consult his employer.”? This reasonableness is a
question of fact. Many factors may be relevant — the time of the demand, the expense
and inconvenience of immediate compliance, the knowledge on the part of the defendant
of the claimant’s title, and of his identity, and whether the defendant has adequately
conveyed to the claimant the grounds for his temporary refusal. An estoppel may
sometimes operate to prevent the defendant from setting up facts which would otherwise
have justified a refusal.”
(7) Goods lost or destroyed

At common law there could be no conversion where there was no voluntary act.
Section 2(2) of the Torts (Interference with Goods) Act 1977 therefore provides as
follows.
An action lies in conversion for loss or destruction of goods which a bailee has
allowed to happen in breach of his duty to his bailor (that is to say it lies in a case
which is not otherwise conversion, but would have been detinue before detinue
was abolished).
Bailees are required to take reasonable care of goods in their keeping and are liable for
the loss or destruction of such goods unless they can disprove fault; but they are
not insurers of the goods. In Sutcliffe v Chief Constable of West Yorkshire’® an arson
attack destroyed the claimant’s car which had been lawfully seized by the police and
which was being held in a police station yard. The Court of Appeal dismissed the
claimant’s claim for conversion. The attack was unprecedented, and in respect of the
claimant’s property the defendant had done all that was reasonable to take care of the
vehicle.
Denial of title is not of itself conversion.”’ There may, however, be conversion of
goods although the defendant has not physically dealt with them,”* or been in physical
92 Bristol and West of England Bank v Midland Rly Co [1891] 2 QB 653, CA.
93 Alexander v Southey (1821) 5 B & Ald 247.
94 Seton, Laing & Co v Lafone (1887) 19 QBD 68, CA; Henderson & Co v Williams [1895] 1 QB
S21 CAS
95 A bailee will ordinarily be liable unless he disproves fault: Houghland v R R Low (Luxury
Coaches) Ltd [1962] 1 QB 694, CA. An involuntary bailee is not liable for failure to return
merely because he has lost the goods; Howard v Harris (1884) 1 Cab & El 253. However, he
is liable if he destroys or damages the goods. If the bailee is unaware that the goods on his
premises are not his property (ie, he is an ‘unconscious bailee’), he is under a duty to exercise
reasonable care to ascertain that they were his own before he destroys them: AVX Ltd v EGM
Solders Ltd (1982) Times, 7 July.
96 [1996] RTR 86, CA.
97 Torts (Interference with Goods) Act 1977, s 11(3). Cf Oakley v Lyster [1931] 1 KB 148, CA.
98 Van Oppen & Co Ltd v Tredegars Ltd (1921) 37 TLR 504.
possession of them,” if his acts deprive the claimant of his right to possession or
amount to a substantial interference with that right.'°? But asmere threat to prevent an
owner in possession from removing his goods will not of itself amount to conversion. '°!
Where goods are left onland and occupier B acquires the land on which the goods lie
from occupier A, then if occupier B refuses to allow the true owner to enter the land and
retrieve them, the refusal is not necessarily conversion.'” It may become conversion,
however, if occupier B himself asserts any right in respect of the goods,'” or denies
the claimant most of the rights of ownership, including the right to possession, for a
period which is plainly indefinite.'" But this needs to be established as a question of
fact.
(8) Residual acts amounting to a conversion

The foregoing categories of conversion are not exhaustive. There are other acts, not
capable of being readily classified, which may yet fall within the definition of
conversion.'” In these residual cases, judicial discretion to treat the act as sufficiently
inconsistent with the true owner’s rights for a conversion is especially important.
(E) Conversion as between co-owners’

Section 10(1)(a) of the Torts (Interference with Goods) Act 1977 provides that co-
ownership is no defence to an action founded on conversion where the defendant,
without the authority of the other co-owner, destroys the goods, or disposes of them
in a way giving a good title to the entire property in the goods, or otherwise does
anything equivalent to the destruction of the other interest in the goods. Thus, a
partner who paid cheques into a third person’s bank account was, by excluding his co-
owner’s right to enjoy the proceeds, liable for conversion.'°’ A co-owner cannot,
however, be sued for conversion if he merely makes use of the common property in a
reasonable way.'’’ Nor was there necessarily a conversion where the co-owner took
and kept the goods.'® The law requires a destruction of the goods or something
99 Eg, Oakley v Lyster [1931] 1 KB 148, CA.

100 Oakley v Lyster [1931] | KB 148, CA; Lancashire and Yorkshire Rly Co, London and North
Western Rly Co and Graeser Ltd v MacNicoll (1918) 88 LJKB 601.
101 England vy Cowley (1873) LR 8 Exch 126.
102 Wilde v Waters (1855) 24 LJCP 193, at 195, per Maule J; British Economical Lamp Co Ltd v
Empire Mile End Lane Ltd (1913) 29 TLR 386.
103 Walker v Clyde (1861) 10 CBNS 381; H E Dibble Ltd v Moore [1970] 2 QB 181, CA.
104 HowardE Perry & Co Ltd v British Railways Board [1980] 2 All ER 579, at 583, per Sir Robert
Megarry VC; Bryanston Leasings Ltd v Principality Finance Ltd [1977] RTR 45.
105 See the dictum of Bramwell B in England vy Cowley (1873) LR 8 Exch 126.
106 Note the Sale of Goods Act 1979, ss 20A and 20B whereby a buyer of a quantity of goods
forming part of a larger bulk becomes a proportionate co-owner of those goods.
107 Baker v Barclays Bank Ltd [1955] 2 All ER 571.
108 As, for instance, by cutting grass and making hay in the common field (Jacobs v Seward
(1872) LR 5 HL 464) or extracting the oil and the other valuable parts of a dead whale which
is owned in common: Fennings v Lord Grenville (1808) 1 Taunt 241.
109 The bailee of common property from one co-owner is not guilty of conversion if he refuses to
deliver the property on the demand of another co-owner (Atwood v Ernest (1853) 13 CB 881;
Harper v Godsell (1870) LR 5 QB 422) unless the latter has a special property in the entire
chattel (Nyberg v Handelaar [1892] 2 QB 202, CA).
equivalent to it.'"° The Torts (Interference with Goods) Act 1977 further provides in
section 10(1)(b) that it is also no defence to an action founded on conversion where
the defendant, without the authority of the other co-owner, purports to dispose of the
goods in such a way as would give a good title to the entire property in the goods if he
were acting with the authority of all the co-owners of the goods.
These rules do not affect the law concerning execution or enforcement of judgments,
or the law concerning any form ofdistress.''!
(F) Damages
The major effect of the Torts (Interference with Goods) Act 1977 was to rationalise the
remedies available to claimants suing in conversion, both in relation to the damages
which may be awarded and in making provision for specific return of the goods by way
of orders for delivery. On the other hand, the related issue of remoteness of damage is
still governed by the common law, and the test is one of reasonable foreseeability.''*
(1) Atcommon law, C with a limited interest in the goods could normally recover their
full value from a third party. Under the Torts (Interference with Goods) Act 1977, s
8 and rules of court, however, C now has to identify any other person whom he
knows to have an interest in the goods and any such interested party may be
joined, whereupon the damages may be apportioned among the interested parties
in proportion to their respective interests.''’ Where the other interested party is
not traced — as in cases of finding, or a missing bailor — C in possession can
recover the full value of the goods, but is liable to account to the true owner.''*
Where D has an interest in the goods, C’s damages in respect of the interference
with his interest are limited to the value of that interest.''* An unpaid seller who
sold to a third party was held liable to the original buyer, to whom he had not
delivered the goods,''® who was not in default, for only the value of the goods
less the contract price owing to him.
(2) C,in conversion, is entitled to be compensated to the extent of the value to him of
the goods of which he has been deprived. This will often appropriately be the
market value of the goods. Where goods are of a kind which can be readily bought
in the market, the actual market value will be the appropriate measure; otherwise
the replacement value in a comparable state,''’ or the original cost minus
depreciation will be the standard. Where the actual value of C’s interest in the
110 Morgan v Marquis (1853) 9 Exch 145; Baker v Barclays Bank Ltd [1955] 2 All ER 571.
111 Torts (Interference with Goods) Act 1977, s 11(2). The rules apply equally to intentional
trespass to goods as they apply to conversion.
112 Saleslease Ltd v Davis [1999] 1 WLR 1664, CA; Kuwait Airways Corpn v Iraqi Airways Co
(Nos 4 and 5) (2001] 3 WLR 1117, CA.
114 Wilson v Lombank Ltd [1963] 1 All ER 740; O'Sullivan v Williams [1992] 3 All ER 385, at 387,
CA.
115 Johnson v Stear (1863) 15 CBNS 330 (owner suing pledgee); Belsize Motor Supply Co v Cox
[1914] 1 KB 244 (owner suing assignee of hirer).
116 If an unpaid seller takes goods out of the buyer’s possession he is liable in conversion for the
full value of the goods without deduction for the unpaid price: Healing (Sales) Pty Ltd v Inglis
Electrix Pty Ltd (1968) 42 ALJR 280, H Ct (Australia), following Gillard v Britton (1841) 8 M
& W 575.
117 J & E Hall Ltd v Barclay [1937] 3 All ER 620, CA.
62. Intentional invasions of interests in person and property
goods is less than the market value he may be awarded the value of that interest
and not the higher market value.''® In Wickham Holdings Ltd v Brooke House
Motors'"’ the hirer of a car sold the car in breach of his hire purchase agreement.
The finance company that owned the car was held able to recover from the ultimate
purchaser of the Vehicle only the value of the outstanding hire purchase
instalments due, and not the higher value of the car itself. In Chubb Cash Ltd v
John Crilley & Son (a firm)'*® C sold a cash register on hire purchase terms. He
then assigned the instalments due under the agreement to a credit company in
return for a loan agreeing to pay all instalments due should the purchaser of the
register default on the hire purchase. In his action for conversion against bailiffs
who had seized the cash register, C was awarded only the market value of the
goods and not the higher amount due under his agreement with the credit company.
That consequential loss was held to be irrecoverable.
Where a negotiable instrument or other document ordinarily representing a chose
in action is converted, the value which the document represents, and not merely
its value as a piece of paper, is the basis of the quantum of damages.
(3) ‘The general rule is that a [claimant] whose property is irreversibly converted has
vested in him a right to damages for conversion measured by the value of the
property at the date of conversion.’'?! Once a claim for conversion has accrued to
C, it is not open to him to delay the issue of his writ and thereby base his action on
a subsequent demand and refusal — the duty to mitigate damages operates.'”°
A rule basing damages on the value at the date of conversion can be seen to work to
C’s benefit in certain circumstances. If the goods decrease in value between the date of
the conversion and the date of judgment, C may still recover the value at the date of
conversion. |”
However, the general rule is not immutable. In conversion, as in other torts, the normal
purpose of an award of damages is to compensate C for the loss he actually sustains.'4
Thus, the market value (even where ascertainable) at the date of conversion will not
necessarily mark the top limit of damages recoverable in the following instances.
(i) Evidence later turns up to show what was the value at the date of conversion.'”°
(il) The market value of the goods rises between the date of the cause of action and
trial. If the act of conversion relied on by C isa sale, and by the time when C knows
or ought to know of the sale the value has increased, C can recover that higher
value.'*° There is some authority also for the view that, from a broker who has
118 But see Edmondson v Nuttall (1864) 17 CBNS 280 and Wilson v Lombank Ltd [1963] 1 All ER
740 (a case in trespass).
119 [1967] 1 All ER 117, CA.
120 [1983] 2 All ER 294, CA.
121 BBMB Finance (Hong Kong) Ltd v Eda Holdings Ltd [1991] 2 All ER 129, PC.
122 Empresa Exportadora de Azucar v IANSA [1983] 2 Lloyd’s Rep 171, CA.
123 Rhodes v Moules [1895] 1 Ch 236 (D converted C’s shares, the market price of which dropped
before judgment. D not permitted simply to purchase the same number of shares for C). See
also the similar result in Solloway v McLaughlin [1938] AC 247, PC, and BBMB Finance v
Eda Holdings Ltd, supra.
124 Brandeis Goldschmidt & Co v Western Transport Ltd [1981] QB 864, CA; JBL Ltd v Coussens
[1991] 2 All ER 133, at 139, CA.
125 Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178, at 203, HL per Lord
Porter.
126 Sachs v Miklos [1948] 2 KB 23, CA.
sold his stock, C may recover its increased value within a reasonable time for
buying replacement stock;'?’ that is, the court estimates the value of the chance
of a profit.'** In Greening v Wilkinson the facts were as follows.'2°
D refused to hand over to C warrants for cotton belonging to C. At the time
of the demand and refusal, the warrants were worth 6d per Ib, but at the time
of the trial they were worth 10'/2d per Ib. The jury awarded damages on the
basis of 10'/2d per lb in accordance with Abbott CJ’s ruling that they ‘may
give the value at the time of the conversion, or at any subsequent time, at
their discretion, because the [claimant] might have had a good opportunity
of selling the goods if they had not been detained’.'*°
(iii) If D converts C’s goods and then increases their value, C cannot ordinarily recover
that increased value.'*' Thus, where D converted a partially built ship which he
then completed at his own expense, the court’s view was that C was entitled to
recover the market value of the completed ship less the expense incurred by D in
completing it.'*? Where the act of conversion reliéd on takes place after the
improvement made to the goods, section 6(1) of the 1977 Act now applies. If D has
improved the goods in the mistaken but honest belief that he had a good title to
them, an allowance is made for the extent to which (at the time at which the goods
fall to be valued in assessing damages) the value of the goods is attributable to
the improvement. If, eg, the improver is sued for later selling the goods, the
statutory allowance applies.'*? A similar allowance is enjoyed by purported
purchasers of goods improved by another, provided again that the purchaser
acted in good faith.'** Subsequent purchasers enjoy the same protection.'*> Thus
an eventual buyer in good faith of a stolen car when sued by the true owner will
have the damages reduced to reflect any improvements made on it since the theft.
The Act leaves it uncertain whether the common law rule that an improver who did
not act in good faith was entitled to a deduction still survives, or whether the
statutory requirement of good faith must be taken to supersede the common law.
At common law special rules applied to goods severed from the land such as coal,
other minerals,'*° and timber:'*’ If, for instance, D innocently severed C’s coal he
was liable only for the value of the coal in the seam, but if his act was wilful, he was
Samuel and Escombe v Rowe (1892) 8 TLR 488.

Aitken v Gardiner (1956) 4 DLR (2d) 119 (Ontario HC).
(Us2syell © & P6725:
Lord Porter left open the soundness of this judgment in Caxton Publishing Co Ltd v Sutherland
Publishing Co [1939] AC 178, at 203, HL.
Caxton Publishing Co Ltd v Sutherland Publishing Co, supra; Greenwood v Bennett [1973]
QB 195, CA.
Reid v Fairbanks (1853) 13 CB 692 (the parties settled the size of the damages awarded).
And see Munro v Willmott [1949] 1 KB 295 at common law (where C relied on a demand and
refusal rather than an earlier conversion, C could not recover the value as increased by D’s
improvement).
Torts (Interference with Goods) Act 1977, s 6(2).
Torts (Interference with Goods) Act 1977, s 6(3).
The English cases have concerned coal. But see the New Zealand case of Blenheim Borough
and Wairau River Board v British Pavements (Canterbury) Ltd [1940] NZLR 564 concerning
shale.
Burmah Trading Corpn v Mirza Mahomed Allay Sherazee and Burmah Co Ltd (1878) LR 5
Ind App 130; Union Bank of Canada v Rideau Lumber Co (1902) 4 OLR 721; Greer v
Faulkner (1908) 40 SCR 399 (Canada).
liable for its value immediately after severance.'** These rules may be unaffected
by the Act.'*° vd
(iv) If C incurs pecuniary loss as a direct consequence of the conversion he may
recover this as special damages in addition to the market value of the goods.
Thus, for example, 2 workman deprived of his tools recovered loss of wages,'*°
and the owner of a converted pony could claim the cost of hiring another.'*' In
Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd'” (a
detinue case), it was held to be irrelevant that Cs would not have been able to hire
out for the whole period of that wrongful detention those goods that Ds wrongfully
failed to return. This is because the usual but for test of causation does not apply
in conversion.'*
(v) Although detinue was abolished by section 2(1) of the Torts (Interference with
Goods) Act 1977, section 3 of that Act preserved the remedies for what would
previously have been detinue by making them available in conversion.'** Where
D has possession of the goods at the time that proceedings are begun, he cannot,
by disposing of the goods, reduce to its market value his liability for loss caused
by detention of a profit earning chattel. However, where the remedy lies in damages,
while the general rule in conversion is that the value of the converted goods is
ascertained at the date of conversion, in detinue it was the date of judgment. The
approach under the Act was set out in JBL Ltd v Coussens.'* There, the Court of
Appeal held that in cases of temporary deprivation of property (in this case, two
cars), where no irreversible act of conversion is committed, evidence must be
adduced as to the true loss suffered by the owner. The measure of damages was
not to be fixed arbitrarily at either the date of conversion or the date of judgment.
Their Lordships remitted the case back to the master for evidence of (a) the value
of the cars, and (b) what Cs would have done with the cars had they been returned
when requested. If, for example, Cs would have sold the cars between the dates of
conversion and judgment, the value of the cars at that time, plus interest, would
represent a proper measure of damages.
(vi) Since the effect of a judgment for damages is to transfer the title to D,'*° itfollows
that the court will not award damages both for loss of use and the value of the
goods where the effect would be doubly to compensate C. The capacity for
profitable use is part of the value of the goods. Thus where D converted certain
manufacturing plant belonging to C, he was liable for the value of the plant when
138 Wood v Morewood (1841) 3 QB 440n.

Sy The Act applies only where D improves goods; it seems doubtful whether severing minerals to
make them saleable amounts to improving them.
140 Bodley v Reynolds (1846) 8 QB 779.
141 Davis v Oswell (1837) 7 C & P 804.
142 [1952] 2 QB 246, CA; confirmed in Jnverugie Investments v Hackett [1995] 3 All ER 841,
845, PC. Where D converted a Rolls Royce on hire from Cs and then put it out of his power
to return it, he remained liable for the hiring charges, namely over £13,000, until it was
returned, although its value when converted was only £7,500, Hillesden Securities Ltd v Ryjak
Ltd [1983] 2 All ER 184.
143 Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2001] 3 WLR 1117 (aircraft seized
by the Iraqi government were converted, and Cs were entitled to their full value even though
they would probably have been destroyed had they not been requisitioned).
144 Hillesden Securities Ltd v Ryjak Ltd [1983] 2 All ER 184.
145 [199 127A ER 1332 CAG
146 Ellis v John Stenning & Son [1932] 2 Ch 81.
converted but not for loss of use between that date and trial.'*”7 On the other hand,
if D wrongfully detains goods and later sells them, it seems that C can recover, in
addition to their value, the loss of use from the date of the unlawful detention until
sale," and indeed until C had a reasonable opportunity to buy a replacement
after learning of that sale,'*? but not for loss of use until trial.
(vii) It is doubtful in what circumstances a buyer who does not recover his goods can
claim a loss of re-sale profit.'*” Where a conversion action based on non-delivery
is an alternative to an action in contract and the seller is unaware of the re-sale
contract, the loss of profit is not recoverable as such in conversion. However,
where there is no market in the goods, the re-sale price may be evidence of value.'*!
If the defendant returns the goods before trial, the courts will reduce the damages in
conversion by the amount of its value at that time.'*? In short, the court will not
enforce a sale on the defendant, and ‘subject to the payment of costs and special
damages (if there are any) an action for damages for conversion can always be stayed
if the defendant offers to hand over the property in dispute’.'*? The value of the goods
when returned is set off against the damages calculated per the preceding paragraphs.
Where goods acquired by the claimant for use in a manufacturing process have been
wrongfully detained but later returned, the claimant must show that a loss of profit or
other pecuniary loss has resulted from the detention.'* If he fails to prove that he
would have used the goods at any time before their return, he cannot recover the fall
in their market value over the period of their detention and may receive only nominal
damages.'*° It will be otherwise where he has purchased the goods for re-sale during
the period of detention.'*°
(G) Other remedies

The Torts (Interference with Goods) Act 1977 introduced common remedies for all
forms of ‘wrongful interferences with goods’. Section 3 provides that in proceedings
for conversion, or any other chattel tort, against a person in possession or control of
147 Re Simms, ex p Trustee [1934] Ch 1, CA.

148 Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246, at
255, CA, per Denning LJ.
149 Re Simms, ex p Trustee [1934] Ch 1, at 30 per Romer LJ.
150 This loss was recovered in France v Gaudet (1871) LR 6 QB 199.
151 The Arpad [1934] P 189, CA. Conversely, a buyer still recovered the market value from a
seller not delivering to him, although the loss of the buyer on his contract of re-sale was less
than this sum: D Joseph Ltd v Ralph Wood & Co Ltd [1951] WN 224.
152 Fisher v Prince (1762) 3 Burr 1363; Solloway v McLaughlin [1938] AC 247, at 258-9, PC.
153 USA and Republic of France v Dollfus Mieg et Compagnie SA and Bank of England [1952]
AC 582, at 619, HL, per Lord Radcliffe.
154 Brandeis Goldschmidt & Co Ltd v Western Transport Ltd [1981] QB 864, at 870, CA, per
Brandon LJ; Williams v Peel River Land and Mineral Co Ltd (1886) 55 LT 689, at 692-693,
CA, per Bowen LJ. See also Williams v Archer (1847) 5 CB 318; Barrow v Arnaud (1846) 8 QB
595, 604, Ex Ch.
155 Williams v Peel River Land and Mineral Co Ltd (1886) 55 LT 689, at 692-693, CA, per Bowen
LJ; Bryanston Leasings Ltd v Principality Finance Ltd [1977] RTR 45; Brandeis Goldschmidt
& Co Ltd v Western Transport Ltd [1981] QB 864, at 871, per Brandon LJ.
156 Brandeis Goldschmidt & Co Ltd v Western Transport Ltd [1981] QB 864, at 873, CA, per
Brandon LJ.
the goods, the following relief may be given, as far as is appropriate:'*’ (i) an order for
delivery and for payment of any consequential damages;'* (ii) an order for delivery of
the goods, but giving the defendant the alternative of paying damages by reference to
the value of the goods, together in either alternative with payment of any consequential
damages;'® or (ii) damages.'®°
If it is shown to the court’s satisfaction that an order for delivery and payment of any
consequential damages has not been complied with, the court may revoke the order (or
the relevant part of it)'®' and make an order for payment of damages by reference to the
value of the goods.'® Where an order is made for delivery but giving the defendant
the alternative of paying damages,'® the defendant may satisfy the order by returning
the goods at any time before execution of judgment, but without prejudice to liability
to pay any consequential damages.'™ Where goods are not detained — eg, where they
have been destroyed — the normal form of judgment is for damages.
Section 3. Trespass to goods

This tort protects several interests. First, like conversion (which is more commonly
invoked), this tort also protects the claimant’s interest in the possession of his goods.
Secondly, trespass protects his interest in the physical condition of the goods and,
thirdly, it protects the inviolability of the goods (ie, it protects against intermeddling).
(A) Forms of trespass

Trespass takes various forms. Taking goods out of the possession of another,'®
moving them from one place to another,'® or even bringing one’s person into contact
with them,'®’ or directing a missile at them'® have all been held to be trespasses.
157 Torts (Interference with Goods) Act 1977, s 3(1). See Secretary of State for Defence v Guardian
Newspapers Ltd [1985] AC 339, HL.
158 Torts (Interference with Goods) Act 1977, s 3(2)(a). Cf Howard E Perry & Co Ltd v British
Railways Board [1980] 2 All ER 579.
159 Torts (Interference with Goods) Act 1977, s 3(2)(b). For principles governing the application
of s 3(2)(b) orders see JBL Ltd v Coussens [1991] 2 All ER 133, CA. Cf Howard E Perry & Co
Ltd v British Railways Board, supra.
160 Torts (Interference with Goods) Act 1977, s 3(2)(c).
161 Torts (Interference with Goods) Act 1977, s 3(4)(a).
162 Torts (Interference with Goods) Act 1977, s 3(4)(b).
163 That is, under the Torts (Interference with Goods) Act 1977, s 3(2)(b). An order for delivery
of the goods under s 3(2)(a) or 3(2)(b) of the Act may impose such conditions as may be
determined by the court, or pursuant to rules of court and, in particular, where damages by
reference to the value of the goods would not be the whole of the value of the goods, C may be
required to make an allowance to reflect the difference: s 3(2)(b). For example, a bailor’s
action against the bailee may be one in which the measure of damages is not the full value of
the goods. Then, the court may order delivery of the goods, but require the bailor to pay the
bailee a sum reflecting the difference. Where an allowance is to be made under s 6(1) or 6(2)
of the Act in respect of an improvement of the goods, and an order is made under s 3(2)(a) or
3(2)(b) of the Act, the court may assess the allowance to be made in respect of the improvement
and by the order require, as a condition for delivery of the goods, that allowance be made by C.
165 Brewer v Dew (1843) 11 M & W 625.
166 Kirk v Gregory (1876) 1 Ex D 55; Fouldes v Willoughby (1841) 8 M & W 540, at 544-5, per
Lord Abinger.
167 Fouldes v Willoughby (1841) 8 M & W 540, at 549, per Alderson B (obiter): ‘Scratching the
panel of a carriage would be a trespass’.
168 Hamps v Darby [1948] 2 KB 311, CA.
(B) Character of the defendant’s act

There cannot be a trespass if the interference is indirect.'? Thus, to lock the room in
which the claimant has his goods is not a trespass to them.'” Although he who mixes
a drug with the feed of a racehorse commits a trespass to the feed, he does not commit
a trespass to the racehorse when it is later given the feed.'’! Nor is it clear whether it is
trespass to cause the goods of a claimant to come into harmful contact with some other
object; for example, to drive sheep over the edge of a cliff into the sea.'” It is, however,
trespass to goods to wheelclamp unlawfully,'* cut and take away trees,'* beat a
dog!” or shoot racing pigeons'”* (whether the goods were capable of being stolen is
irrelevant'”’ ).
A dictum of Lord Blanesburgh in Leitch & Co Ltd v Leydon'”* is often cited to support
the view that it is always actionable per se. But technically the matter was left undecided
in that case. Some, on the other hand, state that there is clear authority for the proposition
that trespass is actionable per se, but only where there is a dispossession of the
claimant. Yet in Kirk v Gregory'” a woman, who moved ritigs belonging to a man who
had just died from one room in his house to another was held liable in nominal damages
for this. This case has been treated as consistent with this latter view, but an asportation
(ie, a moving of the goods) is not necessarily a dispossession.'*° If in gently reversing
my car I touch the bumper of another car, the brake of which has not been applied, and,
without damaging it, cause it to move a few inches, I have not dispossessed the owner,
though I have asported it. On the other hand, there are good reasons for making all
trespasses to goods actionable per se, and this approach is consistent with the
authorities as well as the general principle in the trespass torts. Otherwise the law
would leave remediless the perhaps not oversensitive person who declined to wear
her Armani blouse again after her flatmate had ‘borrowed’ it to wear to a party. Perhaps
the correct question, in concert with other trespasses, is whether the relevant touching
was beyond what is acceptable in everyday life.'*' Picking up and admiring a friend’s
Armani blouse (worth £300) may not be so objectionable as wearing it without her
permission?

The problem of whether there is liability for trespasses which are neither intentional
nor negligent has been examined in chapter 2. The same approach is taken in this
169 Covell v Laming (1808) 1 Camp 497.

170 Hartley v Moxham (1842) 3 QB 701.
171 Hutchins v Maughan [1947] VLR 131 (Victoria Sup Ct) carries the point in the text.
172 It is not trespass merely because one’s animal inflicts direct injury on goods: see Manton v
Brocklebank [1923] 2 KB 212, CA (especially at 229 per Atkin LJ).
173 Vine v Waltham Forest London Borough Council [2000] 1 WLR 2383. It is unlawful to clamp
without a licence: see the Private Security Industry Act 2001, s 3(2)Q).
174 Heydon v Smith (1610) 2 Brownl 328.
175 Wright v Ramscot (1667) 1 Saund 84.
176 Hamps v Darby [1948] 2 KB 311, CA.
177 [1948] 2 KB 311, at 322, CA, per Evershed LJ.
178 [1931] AC 90, at 106, HL.
179 (1876) 1 Ex D S55.
180 Cf Burroughes v Bayne (1860) 5 H & N 296, at 305-6, per Channell B.
181 Cf trespass to the person: F v West Berkshire Health Authority [1989] 2 All ER 545.
context so that there is ho liability in respect of an act that is neither intentional nor
negligent.'*? There is, then, no liability for an accidental trespass to goods.'*’ But, if
the defendant intended to interfere, his trespass is intentional even though he did not
know that his act amounted to a trespass (eg, if he believed the goods to be his own).
(D) The interest of the claimant

The claimant must be in possession of the goods at the time of the interference.
Possession connotes both the power (factum) of exercising physical control and the
intention (animus) to exercise such control on his own behalf. Whether the claimant is
the owner is immaterial. So, if A intends to catch a butterfly, which is in his garden, and
before he can do so it flies on to the highway where B catches it, A has no possession
—there is animus but not factum. Lord Esher has said that ‘[t]he [claimant] in an action
of trespass must at the time of the trespass have the present possession of the goods,
either actual or constructive, or a legal right to the immediate possession’.'** Thus, a
cyclist leaving his cycle outside a shop remains in possession of it but, if a thief rides
away on it, the thief then has the possession although he obtained it wrongfully.'*®
Therefore, if A took B’s gun and handed it to C, B could not sue C in trespass (unless
he showed that C authorised or ratified A’s act), because B would have had no
possession at the time when C received possession from A.'* If a lodger holds goods
on sale or return from a shopkeeper, and those goods are seized in pursuance of a
lawful execution on the landlord’s goods, this is trespass to the lodger.'*’ And if X and
Y both claim the right to goods which neither has previously possessed, and in a
scuffle for them X snatches them from Y’s hand Y has no possession upon which to
found a suit in trespass.'** A bailee, even a gratuitous one,'*’ can sue in trespass. The
Crown could therefore sue in respect of the loss of Post Office mail.'°° Where a landlord
demised land to the claimant for 21 years, with liberty to dig a half acre of brick-earth
annually, and to dig in excess of that at an agreed price, the claimant could sue a third
party who took away brick-earth from the land.'?' A bailor does not have possession
182 National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861, CA. Although the ratio
is probably that the injury was caused by the conduct of the claimant (see especially per Cohen
LJ at 875) all three judges gave considered judgments to the effect that there was no liability
for accidental trespass to goods.
183 In Manton v Brocklebank {1923] 2 KB 212, at 229, CA, Atkin LJ held that ‘whether a horse
directly injures goods, or a dog accomplishes an ‘asportavit’ of a golf ball, he does not involve
his owner in liability for trespass to goods, at any rate unless the owner has intentionally caused
the act complained of’.
184 Johnson v Diprose [1893] 1 QB 512, at 515, CA.
185 Costello v Chief Constable of Derbyshire Constabulary [2001] EWCA Civ 381, [2001] 1 WLR
1437, CA (confirms that a thief may sue; thus the police who detain a stolen car are liable to
C (not actually the thief) when they are unable to identify the real owner).
186 Wilson v Barker (1833) 4 B & Ad 614. Cf Badkin v Powell (1776) 2 Cowp 476. See also Wilson
v Lombank Ltd [1963] 1 All ER 740.
187 Colwill v Reeves (1811) 2 Camp 575. Cf Lord Ellenborough (at 576, obiter) ‘If a man puts corn
into my bag ... because it is impossible to distinguish what was mine from what was his’.
188 Peachey v Wing (1826) 5 LJOSKB 55.
189 Rooth v Wilson (1817) 1 B & Ald 59.
190 The Winkfield [1902] P 42, CA.
191 Attersoll v Stevens (1808) 1 Taunt 183.
and therefore cannot ordinarily sue in trespass for an act done to the goods bailed.'”
If, however, the bailor has an immediate right to possession as in the case of a bailment
at will — eg, where a young man had lent his car to his girlfriend while he was on
holiday' — he may then sue.!”
Want of possession precluded success in an action brought by the assignees of a
bankrupt against a sheriff who seized goods when unaware ofa secret act of bankruptcy
by the bankrupt.'*° For the same reason a telephone subscriber would have no action
if the police tapped his telephone line. But there are three apparent exceptions to the
rule that possession is essential:
1 In White v Morris'*® it was held that, where goods were assigned as security for
a loan upon trust to permit the assignor to remain in possession until default in
repayment, the assignee could sue in trespass while the goods were still in the
assignor’s possession. It may be assumed, despite lack of authority for such a
general proposition, that all trustees may sue for trespass to goods in the hands
of the beneficiary on the basis that they share possession with him.!%”
2 The title of executors or administrators relates back to the death of the deceased,
and this entitles them to sue for a trespass between the date of the death and the
date of the grant.'”®
3 The owner of a franchise in wrecks has been deemed to have constructive
possession of a wreck so as to enable him to sue in trespass a person who seized
a cask of whisky before he could do so.'”
‘Trespass to goods’ is expressly included in the definition of a ‘wrongful interference
with goods’ within the Torts (Interference with Goods) Act 1977.* Thus, the defence
of jus tertii is no longer available,’”' and the statutory rules regarding co-ownership
apply, as do all forms of relief provided by that Act in appropriate cases.*”
(E) Damages
(1) Measure
Where the claimant has been deprived of the goods, he is entitled to their value by way
of damages. This rule applies to suits by bailees against third parties, but when the
assignee under a bill of sale wrongfully seized from the assignor goods comprised in
192 Gordon v Harper (1796) 7 Term Rep 9; Ward v Macauley (1791) 4 Term Rep 489; but see
United States of America and Republic of France v Dollfus Mieg et Cie SA [1952] AC 582, at
611, HL, per Lord Porter.
193 O’Sullivan v Williams [1992] 3 All ER 385, CA.
194 Lotan v Cross (1810) 2 Camp 464; Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, at
226-8, per Dixon J.
195 Balme v Hutton (1833) 9 Bing 471. See also Taylor v Rowan (1835) 7 C & P 70. Cf Wennhak
v Morgan (1888) 20 QBD 635.
196 (1852) 11 CB 1015.
197 See Barker v Furlong [1891] 2 Ch 172 (conversion).
198 Tharpe v Stallwood (1843) 5 Man & G 760.
199 Dunwich Corpn v Sterry (1831) 1 B & Ad 831.
200 Torts (Interference with Goods) Act 1977, s 1(b).
201 Torts (Interference with Goods) Act 1977, s 8(1). Section 11(1) excludes contributory negligence
as a defence in proceedings based on intentional trespass.
the bill, the damages awarded to the assignor were limited to the value of his interest in
them.” A claimant may recover general damages for loss.of use of goods (as distinct
from special damages for loss of profits from the goods) although he would not have
been using them during the period within which he has been deprived of their use.*”
The provisions of the*Torts (Interference with Goods) Act 1977 considered earlier,
apply equally in this context.
(2) Trespass ab initio

Where any person having by authority of law*” entered on land or seized goods, or
arrested a person, subsequently commits a trespass, his original act will in certain
circumstances be deemed itself to be a trespass.”°° The doctrine has little practical
relevance today. Its importance is mainly limited to the fact that, presumably, damages
may be assessed on the basis that the entire conduct of the defendant, and not merely
his subsequent wrongful act, is tortious.*””
Section 4. Residual torts

There are many circumstances where the violation of interests in goods is not protected
by trespass, conversion or even the tort of negligence. The action analogous to the
old action on the case has generally proved fruitful in filling these gaps. What follows,
therefore, is to be treated as merely illustrative of this wider right of action, and not as
an exhaustive account of the circumstances in which it may be held available in the
future. These torts, too, are forms of ‘wrongful interference with goods’ so that, where
relevant, the provisions of the Torts (Interference with Goods) Act 1977 apply.
Trespass and conversion are especially restrictive in that they are not available to a
claimant who neither possesses nor has an immediate right to possess the goods. Yet
the case of Mears v London and South Western Rly Co*® has firmly established that
if goods are destroyed or damaged, the owner may sue without having possession or
an immediate right to possess. The rule benefits, for example, a bailor, a purchaser
where the vendor has a lien for unpaid purchase money, and a mortgagee. He must
prove damage to his interest; taking the goods from the possessor without affecting
title is insufficient. Presumably, the act complained of must be wrongful in the sense
that it is one which, had the claimant had possession of the chattel (or the immediate
right to it), it would have grounded a suit in trespass, or conversion. So, where the
employer of the claimant, a conductor on a public transport vehicle, endorsed on the
claimant’s licence (which was in the employer’s possession) ‘discharged for being Is
4d short’ he was liable in case for defacing it.?”
203 Brierly v Kendall (1852) 17 QB 937.

204 The Mediana [1900] AC 113, at 117-8, per Earl of Halsbury LC.
205 Authority of law is distinct from permission of another — eg, it covers one who enters an inn,
but not the buyer of a ticket for a seat at a theatre.
206 The Distress for Rent Act 1737, s 19, abolished this rule in the case of distress for rent.
207 Shorland v Govett (1826) 5 B & C 485.
208 (1862) 11 CBNS 850.
209 Rogers v Macnamara (1853) 14 CB 27. Cf Hurrell v Ellis (1845) 2 CB 295 (C recovered
damages for loss of employment where an action for libel did not lie).
Credit agreements present interesting problems in this respect. If a car which is the
subject of a credit agreement is seriously damaged, can the owner sue in case? If the
hirer exercises his option to buy, what does the owner lose? And, yet, if (as is likely in
such an event) the hirer does not exercise it, the owner is left without an effective
remedy other than in case. It seems that, until the hirer opts, the owner is to be regarded
as the reversioner and can sue.
It will be recalled, too, that a bailee disregarding the terms of his bailment may sometimes
be liable in case, though not in conversion, and that to deny the claimant access to his
goods or to interfere with his freedom of using them is also actionable on the case.
Further, to place baited traps on one’s land near the highway so as to attract dogs into
the traps, and in consequence of which dogs are so trapped, is a tort in this category.*"”
210 Townsend v Wathen (1808) 9 East 277.

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CHAPTER 5
Trespass to land
Section |. Trespass
This tort protects the interest of the claimant in having his land free from the unjustified
physical intrusion of another. Because of this emphasis on physical interference with
possession, it follows that it is not the function of the tort to protect ownership as
such. Nonetheless, the purpose of many lawsuits in trespass is not the recovery of
damages but rather the settlement of disputed rights over land, and a judgment may be
backed by the sanction of an injunction if the action succeeds. Furthermore, the use of
this action in tort as a means of resolving disputes over title has been facilitated by the
rule that trespass is actionable per se.!
(A) Types of act that constitute trespass
As with all forms of trespass, there must be directness. It is not trespass if the defendant’s
invasion of the claimant’s land is indirect. So, a claimant landowner who complains
that the defendant has erected a spout to drain away water from the eaves of the house
of the defendant, as a result of which water has dripped on to the claimant’s adjoining
land, can sue only in nuisance, not in trespass.” The difficulty associated with drawing
the line between ‘direct’ and ‘indirect’ invasions is illustrated by two cases. In Gregory
v Piper’ it was held to be trespass where rubbish that was placed near the claimant’s
land, on drying, rolled on to it because of natural forces. By contrast, in British
1 Bush v Smith (1953) 162 Estates Gazette 430, CA. The growing awareness of the scope of the
declaratory judgment could lead to a declining use of trespass for this purpose: see Loudon v
Ryder (No 2) [1953] Ch 423; Acton Corpn v Morris [1953] 2 All ER 932, CA. (D locked the
door of his house, thereby denying C access to his upper flat. Though the court doubted
whether this was trespass, it held that C could have a declaration of his right of access.) The
action for recovery of land is also important in this connection: see post. Where C does not
mention trespass to land in his pleadings, he is not restricted to the alternative claim for breach
of contract; he may still claim exemplary damages for the trespass: Drane v Evangelou [1978]
2 All ER 437, CA.
2 Reynolds v Clark (1725) 2 Ld Raym 1399. Cf Lemmon v Webb [1894] 3 Ch 1, at 24, CA, per
Kay LJ: the encroachment of boughs and roots of trees is not trespass, but a nuisance.
3 (1829)9B & C 591.
Waterways Board v Sévern Trent Water Ltd* it was made clear that an action may only
be brought by the riparian right owner in respect of the direet fouling of a river or other
watercourse, yet that an action would not lie in respect of the fouling of adjoining land
Directly causing some, foreign matter® to enter or come into physical contact with the
land of the claimant is a trespass. Thus, firing a gun into the claimant’s soil, or placing
a ladder against his wall,’ or driving nails into the same,* or encouraging a dog to run
onto his land,’ or removing his doors and windows,'° or throwing a person onto his
land,'' are all trespasses. But in all cases the intrusion on the claimant’s land must
result from some act or omission on the part of the defendant, or persons for whom he
is responsible.
Simply to enter another’s land is a trespass.'? But such an entry may be an assertion of
title, in which case an action in trespass will, in effect, determine who has title.'* To
remain on the land after a trespassory entry thereon is in itself also a trespass: a
‘continuing trespass’ as it is commonly called. Similarly, if A places goods on B’s land
and is successfully sued by B in trespass for this act, he is also liable to further actions
in trespass for the continued presence of the goods on the land if he fails thereafter to
remove them." If, on the other hand, he merely commits an act such as digging a hole,
or removing goods — that is, if he does not wrongfully allow anything to remain on the
land — the fact that the harm thus occasioned continues is not enough to make it a
4 [2001] EWCA Civ 276, [2002] Ch 25, CA. This decision is more in line with existing
authority such as the decisionof Denning LJ in Southport Corpn v Esso Petroleum Co Ltd
[1954] 2 QB 182, at 195-6, CA (supported by Lords Radcliffe and Tucker [1956] AC 218, at
242 and 244, HL) where discharge of oil from a ship, which, when carried by tide on to C’s
foreshore, was held not to constitute a trespass, because it involved consequential, not direct,
damage.
5 Perhaps anything having size or mass, including gases, flames, beams from searchlights and
mirrors, but not vibrations.
Pickering v Rudd (1815) 4 Camp 219, at 220, HL, per Lord Ellenborough.
Westripp v Baldock {1938] 2 All ER 779; affd [1939] 1 All ER 279, CA.
Simpson v Weber (1925) 133 LT 46.
onanBeckwith v Shordike (1767) 4 Burr 2092. But note League Against Cruel Sports Ltd v Scott
Oo
[1986] QB 240 where it was held that the intrusion of D’s hounds onto C’s land does not
necessarily consitute a trespass by D: C must prove that D either intended the hounds to enter
C’s land, or that D negligently failed to exercise suitable control over the hounds.
10 Lavender v Betts [1942] 2 All ER 72. But this does not apply to D turning off the gas and
electricity at the meter in his cellar, for the purpose of evicting the tenant of rooms on an
upper floor, because the consequence is indirect: Perera v Vandiyar [1953] 1 All ER 1109, CA.
This is now a criminal offence under s | of the Protection from Eviction Act 1977; but no
action for breach of statutory duty lies: McCall v Abelesz [1976] QB 585, CA.
11 Smith v Stone (1647) Sty 65.
12 A squatter — ie ‘one who, without any colour of right, enters on an unoccupied house or land,
intending to stay there as long as he can’ — is a trespasser: McPhail v Persons (Names
Unknown) [1973] Ch 447, at 456, CA, per Lord Denning MR. But as to a squatter’s ability to
dispossess the true paper title owner of his right of possession by acting inconsistently with it
for a fixed period of time, without ever himself having any intention of acquiring legal title,
see J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, HL.
13 If D has not entered, it will normally be impossible, then, to use an action in trespass as a means
of settling a dispute in title.
14 Holmes v Wilson (1839) 10 Ad & El 503. If C seeks an injunction, the court has a discretion to
award damages in lieu of such injunction which also take into account the likely future damage.
This, in effect, settles the price which D must pay for the right to commit the trespass in the
future, and no subsequent action will lie in respect thereof: Leeds Industrial Co-operative
Society v Slack [1924] AC 851, HL. Nevertheless, the landowner is prima facie entitled to his
injunction even where the acts complained of cause no harm: see Patel vyWH Smith (Eziot) Ltd
[1987] | WLR 853, CA; Harrow London Borough Council v Donohue [1993] NPC 49, CA.
Trespass to land 75
continuing trespass; damages can be recovered only once for such a trespass.'> In
short, there is a continuing trespass only when that which continued after the first
action is itself a trespass.
A person who is on land with the permission of the possessor has been held a trespasser
if he remains there for an unreasonable time after the termination of that permission.'°
Also, “[w]hen a householder lives in a dwelling-house to which there is a garden in
front and does not lock the gate of the garden, it gives an implied licence to any
member of the public who has lawful reason for doing so to proceed from the gate to
the front door or back door, and to inquire whether he may be admitted and to conduct
his lawful business’ .'’ If the licence is withdrawn, he is also not a trespasser during the
reasonable time which he takes to leave the premises.'* There is also the additional
reasoning here that trespass is a wrong against possession. Thus, since the termination
of the tenancy does not coincide exactly with the claimant assuming possession, it
follows that a time lag will exist before an action can be brought. But where the claimant
has acquired possession and the trespass continues, a lawsuit may be brought. In
Konskier v B Goodman Ltd," for example, the facts were as follows:
D, a builder had permission from the possessor of a building to leave rubbish

there while demolishing part of it. During the currency of this licence, C became
tenant of the building and was held entitled to recover in trespass from the
builder when the latter did not remove the rubbish after the expiry of the licence.
If a tenant, with the consent of the landlord, stays on at the expiration of his term, so
that he thereby becomes a tenant, either from year to year or at his will, his remaining
there is not an act of trespass so long as the tenancy has not been properly determined.”
If however, he is a mere tenant at sufferance (thus remaining without permission of the
landlord) the landlord may enter and demand possession and sue in trespass.”!
Finally, Watson v Murray & Co provides an illustration (if not an extension”’) of the
types of acts that may constitute trespass to land.”
Ds, who were sheriff’s officers, seized goods inC’s shop under writs of execution.
It was held that each of the following acts amounted to trespass: locking C’s
premises so as to exclude her therefrom when they had lotted the goods for the
15 Clegg v Dearden (1848) 12 QB 576, at 601.

16 Minister of Health v Bellotti [1944] KB 298, CA. Cf the conflicting obiter dicta of Lord
Ellenborough and Bayley J in Winterbourne v Morgan (1809) 11 East 395, at 402 and 405.
17 Robson v Hallett {1967] 2 All ER 407, [1967] 2 QB 939 at 953-4, per Diplock LJ, CA. QB
939, at 953-4, CA, per Diplock LJ. In Brunner v Williams (1975) 73 LGR 266, a weights and
measures inspector was held to have no implied licence to enter C’s garden to see whether a
coal dealer was infringing the Weights and Measures Act 1963; all he may do is go to C’s door
and ask permission..
18 Robson v Hallett [1967] 2 QB 939, at 953-4, CA, per Diplock LJ.
19 [1928] 1 KB 421, CA. Presumably, D’s successor in title to the chattels would also be liable in
trespass for knowingly allowing them to remain on C’s land.
20 Dougal v McCarthy [1893] 1 QB 736, at 739-40, per Lord Esher; Meye v Electric Transmission
Ltd [1942] Ch 290.
21 If the deceased tenant’s widow remains there after his death she, too, can be sued in trespass:
Thompson v Earthy [1951] 2 KB 596.
22 Were all the acts here held to be trespasses sufficiently direct? See Acton Corpn v Morris
[1953] 2 All ER 932, CA (not cited in the present case).
23 Sass eOBMe
purpose of a sale opening her premises for a public viewing of the goods;
affixing posters on her premises. by
(B) What may constitute the subject matter of an action?

The tort is trespass to land. Obviously, then, merely walking on the surface of the
claimant’s land is enough to constitute the tort of trespass. Anything attached to the
soil, and capable of being separately possessed, may also be the subject matter of
trespass such as damage to grass” or turnips,” or a profit a prendre (eg, a fishery).”°
Possession of land may be separated, as it were, horizontally so that, for instance, A
may possess the pasturage, B the surface and subsoil, and C the minerals below. Each
of them may sue if the subject matter of his possession is invaded. Highway authorities,
for example, often have the surface of streets vested in them by statute: and so they
(not the owners of the subjacent or adjoining land’’) may sue for surface trespasses,
such as breaking up the street,”* or erecting structures on the highway.” Yet a highway
is subject to a public right of way. Thus, if a person uses a highway for purposes other
than those ‘reasonably incident to its user’*’ as a highway (which may include a
peaceful demonstration*'), his act is a trespass. The purpose need not be unlawful in
itself. Interrupting a shoot** and obtaining information on the speed and performance
of racehorses on the adjoining land of the owner of the highway soil,** have both been
held to be trespasses.
It may be trespass to tunnel beneath the surface of land, to mine there, to use a cave
beneath it or to drive building foundations through the soil. In the absence of specific
provision to the contrary, the owner of the surface is presumed to own that which is
underground. It is also trespass to invade that portion of the airspace which is necessary
for the ordinary use of the land and the structures upon it.** However, an aircraft does
not infringe any of the claimant’s rights to airspace by being flown over his land for the
purpose of photographing it.*°
24 Richards v Davies [1921] 1 Ch 90, at 94-5, per Lawrence J.

25 Wellaway v Courtier [1918] | KB 200.
26 Cf Hill v Tupper (1863) 2 H & C 121, at 127, per Pollock CB: Mason v Clarke [1955] AC 778,
HL (right to take rabbits). The principle does not, however, extend to an easement: see Paine
& Co v St Neots Gas and Coke Co [1939] 3 All ER 812, CA.
27 In Hubbard vy Pitt [1976] QB 142, CA Lord Denning held that where the surface of a pavement
was vested in the local highway authority the adjoining owner could not sue for trespass to the
pavement.
28 Hyde Corpn v Oldham, Ashton and Hyde Electric Tramway Ltd (1900) 64 JP 596, CA.
29 Sewai Jaipur v Arjun Lal [1937] 4 All ER 5, PC. See also Tunbridge Wells Corpn v Baird (1896]
AC 434, HL; Cox v Glue (1848) 5 CB 533.
30 Liddle v Yorkshire (North Riding) County Council [1934] 2 KB 101, at 127.
31 DPP v Jones [1999] 2 AC 240, at 256, HL, per Lord Irvine LC: ‘the law should not make
unlawful what is commonplace and well accepted’.
32 Harrison v Duke of Rutland [1893] 1 QB 142, CA.
33 Hickman v Maisey [1900] 1 QB 752, CA. Cf Randall v Tarrant [1955] 1 All ER 600, CA (a
motorist who parked his car on the highway and then trespassed on the adjoining field was held
not to be a trespasser on the highway).
34 Kelsen v Imperial Tobacco Co of Great Britain and Ireland Ltd [1957] 2 QB 334 (D’s
advertising sign projecting into airspace above C’s shop held a trespass); Anchor Brewhouse
Developments v Berkley House Docklands Developments Ltd (1987) 284 Estates Gazette 625
(crane passing over land without permission a trespass).
35 Baron Bernstein of Leigh v Skyviews and General Ltd [1978] QB 479.
Trespass to land 77
Apart from the position at common law, the Civil Aviation Act 1982 provides that, with
the exception of aircraft belonging to, or exclusively employed in, the service of Her
Majesty,” no action shall lie in respect of trespass or nuisance by reason only of the
flight of an aircraft over any property at a height above the ground, which, having
regard to weather and other circumstances of the case, is reasonable.>’ Subject to the
same exception, the owner of an aircraft is liable for all material loss or damage to
persons or property caused by that aircraft, whether in flight, taking off** or landing, or
by a person in it or articles falling from it, without proof of negligence or intention or
other cause of action.*’

The rules in respect of trespass to land seem to be essentially similar to those for other
forms of trespass. If the defendant intended to enter the land, then he may be liable in
trespass whether or not he intended to invade the claimant’s interest in exclusive
possession. Mistake, as such, is no defence in trespass; it will not avail the defendant
that he innocently thought that he was on his own land.*’ On the other hand, there is
no liability if the entry was totally involuntary. Thus, for example, a person who is
carried onto the land of the claimant by a third party is not liable in trespass.*' Also,
notwithstanding the decision in Letang v Cooper,” it must be assumed for the time
being that a negligent unintentional act of trespass is enough.*’ Thus, if A intentionally
throws a stone on to C’s land and, as he should have foreseen, it ricochets on to B’s
land, this is probably trespass to B’s land as well as C’s.
(D) Who may sue?

It is generally said that it is possession of the land that entitles a claimant to sue in
trespass. Thus, if the claimant has a legal estate and exclusive possession he may sue
in trespass. But at the same time, the tenant (not the landlord) can sue if a third party
36 Civil Aviation Act 1982, ss 49(3), 76(1).

37 Civil Aviation Act 1982, s 76(1). The section applies to all flights which are at a reasonable
height and comply with statutory requirements. But the ordinary liabilities in trespass or
nuisance would arise for any other wrongful activity carried on by or from the aircraft, such as
deliberate emission of vast quantities of smoke that polluted C’s land: Baron Bernstein of Leigh
v Skyviews and General Ltd [1978] QB 479, at 489, per Griffiths J.
38 The ordinary common law applies to accidents caused by the aircraft, while taxiing to the
take-off point: Blankley v Godley [1952] 1 All ER 436n.
39 Civil Aviation Act 1982, s 76(2).
40 Basely v Clarkson (1681) 3 Lev 37; Nelson v Nicholson (2001) Independent, 22 January.
41 Smith v Stone (1647) Sty 65. But note that entering the land of others pursuant to threats 1s
no defence for such an entry will be regarded as having been voluntary: Gilbert v Stone (1647)
Style 72, 82 ER 539.
42 [1965] | QB 232, CA. For discussion see ch 2.
43 Certainly in League against Cruel Sports Ltd v Scott [1986] QB 240 Park J expressed the view
that liability in trespass could ensue from the negligent failure of D to control hounds properly
so that they enter C’s land.
trespasses on the land demised;** the owner of an equitable interest with possession
can sue;* and a statutory possession will also found a trespass action.*°
The Court of Appeal has held that ‘a person may have such a right of exclusive
possession of property,as will entitle him to bring an action for trespass against the
owner of that property but which confers no interest whatever in the land’.*’ Those
whose interests fall short of those of a lessee may also be able to sue in trespass if in
fact they have exclusive occupation. Thus, whether a lodger can sue in trespass would
depend on whether on the facts he had exclusive occupation — in other words, it would
be relevant whether he had an outdoor key and whether he could bar access to the
rooms.**
In National Provincial Bank Ltd v Ainsworth” the House of Lords unanimously held
that a deserted wife at that time had only a personal, but no proprietary, interest in the
matrimonial home. Nonetheless, Lord Upjohn held that as she had exclusive occupation
she could therefore bring proceedings against trespassers. In Hill v Tupper°® the facts
were as follows:
X Co leased certain land, which adjoined their canal, to C. C was also given ‘the
sole and exclusive rights’ to rent out pleasure boats for use on the canal.
Subsequently, D set up a rival concern, whereupon he was sued in trespass by
C. C conceded that X Co could sue D in trespass, but at the same time C argued
that he could also sue.
Since the claimant’s concession was tantamount to an admission that he did not have
exclusive occupation, the court dismissed the action. It did however add that if a
claimant could show that his interest amounted to a new species of property right he
44 Cooper v Crabtree (1882) 20 Ch D 589, CA. C with an Jnteresse termini could not sue if he
never took possession: Wallis v Hands [1893] 2 Ch 75.
45 Mason v Clarke [1955] AC 778, HL. Another example is Loudon v Ryder [1953] 2 QB 202,
CA, where C was entitled to the premises under a declaration of trust merely (and see Re Lewis s
Trusts (1953) Times, 26 March) and yet recovered damages for trespass to the land. A beneficiary
under a trust for sale may also sue: Bull v Bull [1955] 1 All ER 253, at 255, CA, per Denning
LJ (obiter).
46 Cruise v Terrell [1922] 1 KB 664, CA; Lewisham Borough Council v Maloney [1948] | KB 50,
CA. Whether the landlord of a tenant at will can sue third parties in trespass is undecided:
Attersoll v Stevens (1808), 1 Taunt 183, cf Shrewsbury'’s (Countess) Case (1600) 5 Co Rep
13b.
47 Marcroft Wagons Ltd v Smith [1951] 2 KB 496, at 501, CA, per Evershed MR. Brown v Brash
and Ambrose [1948] 2 KB 247, CA and Thompson v Ward [1953] 2 QB 153, CA, show that
a statutory tenant who leaves his premises even for a period of five to ten years with the
intention of eventually returning there has the right to sue in trespass. It is sufficient, eg, if he
installs someone as licensee yet signals his intention to return by, say, leaving furniture there.
48 Lane v Dixon (1847) 3 CB 776; Monks v Dykes (1839) 4 M & W 567; Helman v Horsham and
Worthing Assessment Committee [1949] 2 KB 335, at 347, CA, per Evershed LJ; R v St
George's Union (1871) LR 7 QB 90. Similarly, C who could not rely on possession under his
lease from the Crown because it was void for non-compliance with a statute was held to have
‘actual possession ... sufficient to entitle the party possessing it to maintain trespass against
persons who have no title at all, and are mere wrongdoers’: Harper v Charlesworth (1825) 4 B
& C 574, at 591, per Bayley J. The House of Lords in Street v Mountford [1985] AC 809, held
that where the intention evidenced by the agreement between the parties was to grant exclusive
possession for a period of time and at a rent there will normally be found to be a tenancy in any
case.
49 [1965] AC 1175, HL.
50 (1863)2H & C 121.
Trespass to land 79
would be able to succeed, subject to the caveat that it was not the policy of the law to
allow the courts to create new rights in land. However, in Manchester Airport ple v
Dutton’' a licensee who had not yet entered into occupation was entitled to eject
trespassers who had set up a protest camp. As Laws LJ explained in that case: ‘a
licensee not in occupation may claim possession against a trespasser if that is a
necessary remedy to vindicate and give effect to such rights of occupation as by
contract with his licensor he enjoys’. On the other hand, it was made clear that an
action for damages would not have been available on those facts. The action was
limited to exercising a superior right in the land in order to gain possession.
It is generally no defence to a trespasser that the claimant’s possession of the land is

unlawful. The simple fact of possession is normally enough.” But as against the true
owner, the rule is different. In Delaney v TP Smith Ltd” the claimant entered property
held under a lease that was unenforceable because it did not comply with the
requirements of section 40 of the Law of Property Act 1925 relating to a memorandum
in writing. As such, he was unable to sue his landlord in trespass for ejecting him. Two
extracts from the dicta in that case are important here:
A mere trespasser cannot, by the very act of trespass, immediately and without
acquiescence, give himself what the law understands by possession against the
person whom he ejects, and drive him to produce his title, if he can, without
delay, reinstate himself in his former possession.™
If there are two persons in a field, each asserting that the field is his, and each
doing some act in the assertion of the right of possession, and if the question is,
which of those two is in actual possession, I answer, the person who has the title
is in actual possession, and the other is a trespasser.”
If a claimant has a right to immediate possession of the land, he can, once he has
entered upon it, sue for trespasses committed by third parties between the date of
accrual of this right of entry and the actual date of his entry.°*° This is often called
trespass by relation.*’ It operates according to the legal fiction whereby, upon his
entry onto the land, the party entitled to possession is deemed to have been in
possession from the date of his right to such possession accruing.
51 [2000] 1 QB 133, at 150, CA. See also Hounslow London Borough Council v Twickenham
Garden Developments Ltd [1971] Ch 233, at 257, per Megarry J. But cf Street v Mountford
(supra), on the distinction between tenancies and occupational licences.
52 Graham v Peat (1801) 1 East 244. In Mason v Clarke [1955] AC 778, HL, Viscount Simonds
and Lord Oaksey held that the bare possession of a profit a prendre was enough to found an
action in trespass.
53 [1946] KB 393, CA.
54 Browne v Dawson (1840) 12 Ad & El 624, at 629. In Portland Managements Ltd v Harte
[1977] QB 306, CA, it was held that if C proves ownership and his intention to resume
possession the onus is on D to prove that he is not a trespasser.
55 Jones v Chapman (1847) 2 Exch 803, at 821, per Maule J (approved Lows v Telford (1876) |
App Cas 414, at 426, HL, per Lord Selborne).
56 Barnett v Earl of Guildford (1855) 11 Exch 19.
57 Suppose that the effect of a proviso for forfeiture in a lease is that the lease subsists until
proceedings for forfeiture are brought; this doctrine of trespass by relation would not then
allow a lessor, who is entitled by the terms of the lease to forfeit it, to claim damages for the
period between the act giving ground for forfeiture and the issue of the writ: Elliott v Boynton
[1924] 1 Ch 236, CA.
Although damages in trespass are not available to those without possession whose
interests in land are violated, such persons are not entirely without a remedy. A landlord
will ordinarily have contractual rights against tenants who damage his interest — eg, by
allowing the premises to fall into disrepair — and the law of property will also afford a
remedy of a tortious nature to a landlord who establishes that his tenant has damaged
the reversionary interest.**
If a non-possessory interest in land is violated by a third party, an action derived from
the old action on the case may lie. The claimant must prove ‘such permanent injury as
would be necessarily prejudicial to the reversioner’.*? Thus, in one case, it was not
enough to prove that the defendant’s cart-wheels had made an impression on the
surface of the land;® the impressions lacked permanency.
Section 2. Remedies
(A) Damages
The claimant is entitled to full reparation for his loss. Generally, the depreciation in
selling value will be an adequate measure for destruction of, or damage to, land and
buildings. On occasion, though, the claimant can also recover special damages such
as business profits,°' or the cost of replacement premises.® Equally, where the cost of
reinstatement or repair exceeds the diminution in value of the property, those costs
may be awarded as damages provided expenditure on such reinstatement and repair is
reasonable.® In any event, the cost of repair will provide important evidence of the
claimant’s loss, especially where there is no market in which the value of the property
may be ascertained, or where the claimant can prove that it was reasonable to have the
property restored.“ All measures of damages — whether based on market value or
replacement cost — are subordinate to the general and overriding tort principle of
restoring the claimant to the same position he was in before the tort was committed.
The measure of damages for wrongful occupancy of land (mesne profits) is generally
assessed in terms of the reasonable rental value of the land during the time of the
defendant’s occupancy. So in Jnverugie Investments Ltd v Hackett, the claimants
58 Landlord-tenant relationships of this kind are customarily, and appropriately, dealt with in
textbooks on real property, not in those on torts.
59 Baxter v Taylor (1832) 5 B & Ad 72, at 75, per Taunton J.
60 Ibid. For a lessee to deny access to a reversioner entitled to enter and view is also actionable on
the case: Hunt v Dowman (1618) Cro Jac 478.
61 Watson v Murray & Co [1955] 2 QB 1. Cf Dunn v Large (1783) 3 Doug KB 335 (when D
ejected C from an inn, closed it down and sent custom elsewhere, C refused loss of sale value,
but only because he did not specially plead it).
62 Dominion Mosaics and Tile Co v Trafalgar Trucking Co [1990] 2 All ER 246, CA.
63 Heath v Keys [1984] CLY 3568. Damages based on the cost of repair are only available when
C does in fact intend to carry out repairs: Perry v Sidney Phillips & Son [1982] 3 All ER 705,
CA.
64 For a lucid statement, see Hutchinson v Davidson 1945 SC 395.
65 Farmer Giles Ltd v Wessex Water Authority [1990] 18 EG 102, CA. In Bisney v Swanston
(1972) 225 Estates Gazette 2299, CA, D put a trailer on C’s transport cafe ground so as to
interfere with C’s business as much as possible. As well as damages for loss of business, £250
aggravated damages were awarded against D for intending to interfere with malice and spite.
66 [1995] 1 WLR 713, PC. See also Whitwham v Westminster Brymbo Coal and Coke Co [1896]
1 Ch 894; affd [1896] 2 Ch 538, CA.
Trespass to land 8\
were awarded the equivalent of the letting value of the whole of the holiday apartment
block wrongfully occupied by the defendant trespassers, even though in practice only
about 35-40% of the apartments were actually rented out by the defendants, or could
have been by the claimants. The claimants were entitled to compensation for the
wrongful use of their property, regardless of whether they had suffered any actual loss
from being deprived of the use of that property or whether the defendants had in fact
benefited from their wrongdoing. However, the decision in Davies v Ilieff*’ provides an
important rider to this approach in that, if the premises concerned are also the claimant’s
home (rather than merely commercial residential premises), the court should add to the
ordinary letting value a sum in general damages to reflect the insult of the trespass.
Where goods such as coal, minerals or trees are severed from the land, the measure of
damages depends on whether the act is wilful or innocent.® If the defendant’s severance
is innocent, the claimant’s damages amount to the value of the goods in their raw state
(eg, coal still in a seam) minus the cost of severance and removal.” If the act is wilful,
however, the claimant’s damages reflect the market value of the goods when they first
became a chattel minus on/y the cost of removal — eg, hauling coal to the surface — but
not the cost of severance.”” Whether in either case the defendant can also deduct an
additional sum by way of profit for his work, or whether the claimant is entitled to the
value of the severed goods less only the defendant’s actual expenses, is not settled.”
But in the future, it may be that the courts will approach these cases on the basis of the
steadily developing law of unjust enrichment rather than the law of trespass (though
a sum for the actual trespass will, of course, remain available).
Finally, a tenant who is unlawfully evicted by his landlord may recover exemplary
damages in trespass.”
(B) Injunctions
Injunctions, even of the interim variety, are available in the case of continuing trespasses
to restrain the trespasser.” And mandatory injunctions can be obtained in order to
require a trespasser to restore the land to its former state. In Nelson v Nicholson," for
example, the facts were these:
67 2000 WL 33201551.
68 ‘Wilful’ includes ‘fraudulent’; whether it includes ‘negligent’ is doubtful: Wood v Morewood
(1841) 3 QB 440n; Re United Merthyr Collieries Co (1872) LR 15 Eq 46. In Trotter v Maclean
(1879) 13 Ch D 574, at 587 Fry J said (obiter) that the burden of proving wilfulness is on C.
69 Jegon v Vivian (1871) 6 Ch App 742.
70 Martin v Porter (1839) 5 M & W 351; Morgan v Powell (1842) 3 QB 278. If C could not
himself reach the seam in order to extract the mineral, his damages are based on what a third
party would pay him by way of royalty for permission to extract: Livingstone v Rawyards Coal
Co (1880) 5 App Cas 25, HL.
71 Jegon v Vivian (supra), and A-G v Tomline (1880) 14 Ch D 58 would allow the innocent D his
profit. Cf Re United Merthyr Collieries Co (1872) LR 15 Eq 46. In Tai Te Wheta v Scandlyn
[1952] NZLR 30 it was held that even an innocent trespasser could not set off the value of
improvements done by him to the land. See also Lord Cawdor v Lewis (1835) 1 Y & C Ex 427.
72 Drane v Evangelou [1978] 2 All ER 437. Surprisingly, however, in Devonshire v Jenkins
(1979) 129 NLJ 849 it was held that exemplary damages were not recoverable if in fact the
evicting landlord did not obtain that profit which he sought by his attempted unlawful eviction.
73. Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853, CA.
74 (2001) Independent, 22 January.
82 Jntentional invasions of interests in person and property
Cs had recently resolved a boundary dispute with their neighbours. In resolving

the dispute, it became apparent that Ds had planted asleylandii hedge on Cs’
land. They conceded that this constituted a trespass. Cs then sought a mandatory
injunction to require Ds to remove the hedge since they could not do so themselves
under the terms of atestrictive covenant that prevented them from removing any
fence, hedge, tree or shrubs within 30 feet of the boundary between the two
plots of land.
Despite the defendants proposing an undertaking whereby they, the defendants, would
keep the hedge trimmed to a height no greater than seven feet, the court granted the
injunction sought, making the point that the proposed undertaking would not bind the
defendants’ successors in title.
(C) Recovery of land

It is an established rule of common law that the person entitled to possession may use
reasonably necessary force to remove a trespasser.” But in many instances, the rightful
occupant may prefer to pursue an action for recovery of land. In order to succeed, the
claimant must demonstrate the relative weakness of the defendant’s possessory rights.
In other words, the claimant need not show that he has perfect title, merely a better title
than the defendant. The clearest modern authority on this remedy is Manchester
Airport plc v Dutton.’’ Manchester Airport needed to remove certain trees in
neighbouring woods and they were granted a licence by the owner to ‘enter and
occupy the woods’ in this connection. Prior to this, however, protestors had occupied
the woods. In order to carry out the work, the airport sought an order for possession
against the protestors. Noting that although Manchester Airport was not the owner of
the woods, the Court of Appeal nonetheless granted the order on the basis that the
airport had a superior nght to occupation than the protestors. What was significant
was the fact that the owner had included in the licence a right of occupation.
Accordingly, in the ostensibly similar case of Countryside Residential (North Thames)
Ltd v Tugwell” the court refused such an order on the grounds that the licence in
question merely conferred permission to carry out work on the land, but not a right to
occupy it.
Section 3. Defences
(A) justification
Occasionally it will be possible to show legal justification for one’s presence on another’s
land. In such circumstances, there is no actionable trespass. Thus, for example, under
the Countryside and Rights of Way Act 2000 rights are conferred to enter land to make
arrangements for the general public to have access to open countryside. In such
circumstances no tort is committed so long as the entrant complies with the specified
75 Hemmings v Stoke Poges Golf Club [1920] 1 KB 720.

76 [2000] 1 QB 133, CA.
77 [2000] 34 EG 87, CA.
Trespass to land 83
statutory restrictions within which he must act.’’ Equally, in certain circumstances

police officers are permitted to enter land to make an arrest and to search the premises
following such an arrest” and private individuals have certain similar common law
rights to enter another’s land to abate a nuisance or reclaim wrongfully taken personal
property.*°
In fact, there are many forms of justification — whether originating in statute or ancient
rules of common law — that are simply too numerous to list here. In this book, it suffices
to note two general principles: (a) that a recognised legal authority to enter another’s
land will defeat any prospective trespass action; and (b) that a distinction must be
drawn between an absolute right to do an act and a mere power to do an act, which D
elects to do in a fashion that involves an avoidable trespass.*!
(B) Licence
The defendant may raise the defence of licence where the claimant landowner has
granted him a permission, whether express or implied, to enter the land. Such licences
do not require that the entrant be granted any proprietary rights in respect of the land;
a permission simply to be there suffices. On the other hand, if the entrant exceeds the
permission conferred by the licence he becomes a trespasser. Thus, for example, if A is
granted permission to enter B’s land for the purposes of photographing wildlife, he
may not fish in his lake without becoming a trespasser. Similarly, if the landowner
revokes the licence, the entrant may not remain on his land. And this is so regardless
of whether the licence was conferred gratuitously or by virtue of a contract.”
78 See the Countryside and Rights of Way Act 2000, s 2.

79 Police and Criminal Evidence Act 1984, ss 17-18.
80 See also the statutory procedure set out in the Access to Neighbouring Land Act 1992 which
permits an applicant to seek an access order from the court in order to enter a neighbour’s land
to carry out reasonably necessary works for the preservation of his own land.
81 In British Waterways Board v Severn Trent Water Ltd [2001] EWCA Civ 276, [2002] Ch 25 it
was stressed that while a statute authorised certain waterworks, it did not impliedly also confer
upon D a right to discharge surplus water into another’s watercourse. The court adverted to the
crucial difference between mere convenient ways of carrying out statutory operations and
actual necessary methods. A similarly restrictive approach is applied to rights conferred by way
of conveyance: see Martin v Childs [2002] EWCA Civ 283, CA.
82 Revocation of a contractual licence, it seems, does not require mutually agreed contractual
variation. Any complaint about such revocation — effectively a breach of contract — must be
pursued under the law of contract: see Wood v Leadbitter (1845) 13 M & W 838 (contractual
entrant to racecourse ejected in breach of contract: only remedy lay in contract).
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CHAPTER 6
Defences to the intentional torts
This chapter considers all the important defences which may be available in respect of
the torts so far described. It must not be thought that these defences apply only to
these torts. Many of them — eg, consent, statutory authority, ex turpi causa — are
general defences, and are capable of being defences to almost any tort. However
defences have a particular importance in the present context because the key question
in claims for trespass and the like is often likely to centre on whether, in the actual
circumstances of the case, there is any lawful excuse or justification for the conduct
complained of. Thus, taking false imprisonment as an example, most common law
claims tend to turn on whether the detention of an alleged criminal was justifiable.
Articles 5 and 6 of the Human Rights Convention which protect the rights to liberty
and security of the person do so in ten brief words. Over a page, however, is devoted
to possible justifications for deprivation of such rights. In short, defences to intentional
torts are crucial in defining individual rights.
Section |. Mistake and inevitable accident

Previous chapters have revealed that mistake is no defence to the intentional torts. If
the defendant intended to drive his tractor on to the claimant’s land, then his reasonable
mistake that the land was his own will be no defence.' Mistake must, however, be
distinguished from inevitable accident. If the defendant shows that the tractor went
onto the land solely because of a defect in the steering which no amount of care could
have prevented, he will not be liable. In such a case he neither intended to end up on
the claimant’s land, nor could he have avoided doing so by taking every care.
Although mistake per se is no defence, it may be relevant to know in the context of

some other defence whether the defendant was mistaken as to some fact. Ifa policeman
arrests someone without a warrant who in fact has not committed an arrestable offence,
and whom he has no grounds to suspect had committed one, false imprisonment
occurs. But if on the other hand he mistakenly believed on reasonable grounds that
1 Similarly where there is liability for negligent acts, if, though his act is not intentional, he
foresees the consequences, mistake about the surrounding circumstances will not afford him a
defence.
the claimant had committed an arrestable offence, the defence of lawful arrest is open
to the officer.’ ; mI
In Fowler v Lanning? the claimant’s pleadings in a claim for trespass asserted baldly
‘the defendant shot the,claimant’. Diplock J held that the pleadings disclosed no valid
cause of action. For trespass to lie, he said, the claimant must aver and prove that the
defendant acted either intentionally or negligently. And since the onus of proving
conduct now rests on the claimant, there is no longer any need for the ancient defence
of ‘inevitable accident’: if the facts of the case rest on such an event no cause of action
will exist.
Section 2. Consent
(A) General
The common law will not permit someone who has freely assented to conduct by
another to sue that other for damages resulting from that conduct. This principle is
captured in the Latin maxim volenti non fit injuria. Consent may take two forms, either
where the claimant expressly consents to an invasion of his interest which would
otherwise be a tort (this form is conveniently called consent), or a willingness on the
part of the claimant to run the risk of injury from a particular source of danger (often
called assumption of risk).
It is convenient to treat consent as a defence even though it is now clear that in

trespass to the person (but not in trespass to land), the burden of proving want of
consent lies with the claimant.* Consent may be given expressly or it may be inferred
from conduct. A boxer cannot complain if his opponent hits him with a straight left to
the nose. A footballer consents to those tackles which the rules permit, and also, it is
submitted, to those tackles contravening the rules where the rule infringed is framed to
maintain the skill of the game. Otherwise, however — say, where an opponent commits
a ‘professional foul’ — the conduct involved is entirely beyond what the player agreed
to risk when embarking on the game.°
Establishing just what can reasonably be inferred from conduct can be problematic. If
a claimant has habitually allowed children to play on his field, consent may constitute
a defence to a claim against a frolicking child, but not, perhaps, against a party of
adults using the field for a firework display. Arthur v Anker’ explored the boundaries of
consent in a very relevant modern context. It was held that where a person unlawfully
2 Police and Criminal Evidence Act 1984, s 24(6).

3 [1959] 1 QB 426.
4 Freeman v Home Office (No 2) [1984] QB 524; affd [1984] 1 All ER 1036, CA. On one
interpretation, Lord Blanesburgh in William Leitch & Co Ltd v Leydon [1931] AC 90, at 109,
HL, could have been applying the rule relating to assault to trespass to goods. In Jolliffe v
Willmett & Co [1971] 1 All ER 478, a wife living apart from her husband authorised an inquiry
agent to enter her husband’s flat; the inquiry agent’s defence of leave and licence failed when
the husband sued him for trespass to land.
5 See R v Billinghurst [1978] Crim LR 553; Affutu-Nartoy v Clarke (1984) Times, 9 February. As
to duty of care owed by one competitor to another, see Condon v Basi [1985] 2 All ER 453,
CA.
6 [1997] QB 564, CA. Contrast the position in Canada in Non-Marine Underwriters, Lloyd’s of
London v Scalera [2000] 1 SCR 551.
parked his car on another’s land, knowing that the owners asserted a right to wheel-
clamp trespassing vehicles and charge for their release, he impliedly consented not
only to the otherwise unlawful detention of his car, so that there was no trespass to
goods, but also to being required to pay a reasonable fee to ensure the un-clamping of
the vehicle.’
Consent must relate to the act complained of. The tenant may consent to her landlord
entering the land to examine repairs, but not to his assaulting her. Fraud may invalidate
an apparent consent, but only if the fraud is as to the very nature of the act consented
to. Thus, nineteenth century judgments held that a woman’s consent to sexual
intercourse was not vitiated by her ignorance that her lover was infected with syphilis:*
any fraud was purely collateral to the essence of the act.’ Consent obtained by duress
is no consent.'° An important question concerns the effect on the validity of consent
of a show of authority — eg, the policeman, who, without formally arresting or charging
a suspect, asks him to accompany him to the police station. In such a case, the policeman
has no defence if the claimant goes because of an assertion of authority by him:
consent obtained by a show of authority is no consent.'! Equally, if the claimant is
drunk or otherwise incapable of giving consent, the consent is invalid and no defence
lies?
The overriding interest of the state in maintaining order and punishing wrongdoers is
such that it is not necessarily a defence in criminal law that the victim has consented to
the criminal act.'? No considerations of policy prevent the courts from holding that
consent to a crime is a valid defence in tort, and it may be assumed that the courts will
hold that consent may be a defence in tort in such circumstances."
7 Cf Vine v Waltham Forest London Borough Council [2000] 1 WLR 2383, CA where it was held
that if the release fee is exorbitant, consent to its payment cannot be implied where the person
parking the car does not actually see the sign (albeit that such a sign would normally be
described as both prominently posted and clear in its terms). The difference lies in the fee
charged for un-clamping.
8 R v Clarence (1888) 22 QBD 23, at 44; Hegarty v Shine (1878) 14 Cox CC 124, CA. Do you
think that Hegarty v Shine would be decided the same way today in a different moral climate?
Would consent to intercourse defeat a claim in trespass where D had been infected with AIDS?
9 What if D impersonates C’s husband, or a bigamist ‘marries’ C, who is innocent, and has
intercourse? (Held actionable in Graham v Saville [1945] 2 DLR 489, Ontario CA.)
10 Yet in Latter v Braddell (1881) 50 LJQB 448, a servant who complied, reluctantly, crying and
under protest, with an order of her mistress that she be medically examined to check whether
she was pregnant, was held to have consented.
11 Warner v Riddiford (1858) 4 CBNS 180. Submissions in Freeman v Home Office, supra, that
the relationship between prisoner and prison doctor was such that the former could never
freely consent to treatment by the latter failed. But the judge at first instance made it clear that
in looking at the reality of a prisoner’s consent to medical treatment the doctor’s power to
affect the prisoner’s situation must be borne in mind.
12 Must C’s consent be manifested to D? Is it enough if D reasonably believes that C has
consented?
13. Rv Brown [1994] 1 AC 212, HL. The European Court of Human Rights subsequently ruled that
the decision in Brown did not constitute a violation of Article 8 of the Convention: Laskey,
Jaggard and Brown v United Kingdom (1997) 24 EHRR 39.
14 Barnes v Nayer (1986) Times, 19 December, CA; Murphy v Culhane [1977] QB 94, CA (held
that the defence of consent might be available in respect of a crime, and at the same time also
held that a plea of ex turpi causa might also be open to D).
(B) Consent to médical treatment

Any physical contact with a patient without his or her consent to that contact is prima
facie a battery.'° Consent need not be written and in practice will often be implied from
conduct, for example holding out one’s arm to receive an injection. Where surgery or
more serious invasive treatment is contemplated, patients will usually be asked to sign
a standard consent form agreeing to the operation or other treatment. Such consent is
ineffective unless an adequate explanation of the broad nature of what is to be done to
the patient is provided.'® But a failure to warn the patient of the risks or side-effects of
the treatment proposed will not vitiate the patient’s consent.'’ It may be a breach of the
doctor’s duty to give the patient proper and skilled advice, but as such it will be
actionable only in negligence.'* Only when the defendant actively misleads the patient
will a claim in battery normally be appropriate."
Where the patient is an adult who is conscious and competent, the law’s requirement
for consent to treatment recognises and enforces the right to self-determination. In F’
v West Berkshire Health Authority” Lord Goff endorsed the famous principle
enunciated by an American judge that ‘[e]very human being of adult years and sound
mind has a right to determine what shall be done with his own body’.221
It is no defence to an action in battery for a doctor to assert that he acted in what he

believed to be the patient’s interests, or even to preserve her life. Thus, if a Jehovah’s
Witness has unequivocally refused to authorise a blood transfusion, a doctor
administering blood against her will commits a battery.** But where it is unclear whether
the patient did freely, and with full understanding, reject life-saving treatment, it has
been held that doctors act lawfully in erring on the side of preserving life.” Slight
authority suggesting that a pregnant woman might be required to submit to a Caesarian
section to protect the interests of the viable foetus was ultimately overruled by the
Court of Appeal.” Their Lordships held that the foetus lacked any legal personality to
justify violating its mother’s autonomy, providing that the mother remained mentally
competent.
The Family Law Reform Act 1969 provides that a minor over 16 may provide an effective
consent to surgical, medical or dental treatment. In the case of children under 16, that
Act preserves the common law rule that, providing the individual child is mature
enough to make his or her own decision on the treatment proposed, the child herself
15 F v West Berkshire Health Authority [1989] 2 All ER 545, HL. See also Brazier, Medicine,
Patients and the Law (2003) ch 4.
16 Chatterton v Gerson [1981] QB 432, at 443, per Bristow J.
17 Chatterton v Gerson, supra, at 444; Freeman v Home Office (No 2), supra. The bringing of
actions in battery where the essence of the claim is inadequate advice was deplored by their
Lordships in Sidaway v Board of Governors of Bethlem Royal Hospital and the Maudsley
Hospital [1985] 2 WLR 480, HL.
18 See Sidaway v Board of Governors of Bethlem Royal Hospital [1985] 2 WLR 480, HL.
19 See Appleton v Garrett [1996] PIQR P 1. See also the criminal conviction in R v Tabassum
[2000] 2 Cr App Rep 328, CA where D had no qualifications whatever. Cf R v Richardson
[1999] QB 444 where D, a dentist, had merely been suspended from practice.
20 [1989] 2 All ER 545, at 564, HL.
21 Schloendorff v Society of New York Hospital 211 NY 125 (1914), per Cardozo J.
22 Malette v Shulman [1991] 2 Med LR 162, CA.
23 Re T (adult: refusal of medical treatment) [1992] 4 All ER 649, CA.
24 Re MB [1997] 8 Med LR 217; St George’s Healthcare NHS Trust v S [1998] 3 All ER 673, CA.
can give an effective consent.”> Thus, Mrs Gillick’s attempt to ensure that no girl under
16 could lawfully be prescribed the contraceptive pill without parental agreement failed.
The House of Lords held that, if such a girl seeking contraception or abortion should
refuse adamantly to consult with her parents, the doctor may lawfully treat her provided
he is satisfied that she has sufficient understanding of what was involved in the
treatment and its implications for her.” In other words, children under 16 have the
capacity to authorise treatment for themselves once competent to do so. But it seems
that although a ‘Gillick competent’ child can consent to treatment, there is no similar
capacity to refuse treatment. The Court of Appeal has held that the parental power to
consent on the minor’s behalf continues even after the minor acquires an independent
capacity to consent for himself.*’
It does not matter whether a minor’s capacity derives from achieving the necessary
maturity to be Gillick competent, or reaching the age of 16 and acquiring capacity
under the Family Law Reform Act 1969. But in both cases the right to consent does not
include a veto over treatment, for consent by either the minor or any person with
parental responsibility for him authorises treatment and ensures that any necessary
physical contacts entailed in treatment are not batteries.
In the case of even younger children, parental consent to treatment is effective to
authorise treatment beneficial to the child.** Thus, no battery is committed by a doctor
who, with parental consent, vaccinates a protesting four-year-old against measles.
Where the procedure proposed is not clearly and unequivocally beneficial to the child,
however, parental consent alone may not be sufficient to authorise it. Where, for
example, the surgery is proposed not to deal with some immediate physical problem —
such as a hysterectomy to remove a cancerous uterus — the authorisation of the court
must be sought before such serious and generally irreversible surgery is performed or
the surgeon may risk liability for battery and prosecution for criminal assault.*” When
the patient is under 18, authorisation can be sought by either an order under the
Children Act 1989°° or, preferably, by invoking the inherent jurisdiction of the High
Court.*!
Once a person reaches the age of majority, the law currently makes no provision for
anyone else to be endowed with authority to act for him in matters relating to his
personal welfare and health. Difficulties arise where a normal adult requires immediate
surgery following a road accident but is unconscious, and in cases where adults who
have profound mental handicap are unable to consent to treatment themselves. In the
first case (or where the patient is, say, under anaesthesia) it has long been accepted
that doctors act lawfully in doing whatever is necessary to preserve the patient’s life
and prevent any permanent damage to health. In F v West Berkshire Health Authority”
the House of Lords made it clear that the defence of necessity could be invoked to
25 Family Law Reform Act 1969, s 8(3).
26 Gillick v West Norfolk and Wisbech AHA [1986] AC 112, HL.
27. Re W (a minor) (medical treatment) [1993] Fam 64, CA.
28 Re D [1976] Fam 185. See also Re B [1981] 1 WLR 1421. But note that in Re T [1997] 1 WLR
242 the Court of Appeal, endorsing parental refusal of a liver transplant for their son, regarded
parental objections to treatment as crucial in defining the child’s interests.
29 Re B (a minor) (wardship: sterilisation) [1987] 2 All ER 206, at 214, HL, per Lord Templeman.
30 A specific issue order under the Children Act 1989, ss 8(1) and 10.
31 Practice Note (Sterilisation: minors and mental health patients) [1993] 3 All ER 222.
32 [1989] 2 All ER 545, at 565-6, HL.
permit such treatment. They also elected to extend the defence of necessity to the
second kind of case: patients suffering from permanent mental incapacity.*
In firmly entrenching this necessity principle,** their Lordships added the twin provisos
that (i) the treatment must be in the best interests of the patient*®* and (ii) it must be
treatment that would be endorsed by a reasonable body of medical opinion.** This
best interests/necessity principle applies to all forms of treatment from routine dental
treatment to radical and irreversible measures such as abortion and sterilisation.
In F v West Berkshire Health Authority the facts were as follows.
F was a 36-year-old woman with a mental age of five to six. She was thought by
staff to have started a full sexual relationship with a male patient and it was
proposed that she be sterilised. The Law Lords unanimously endorsed surgery.
But in what sense was such surgery ‘necessary’?*’ Onthe other hand would it be right
simply to leave F to become pregnant and then debate whether abortion was
‘necessary’?** The elasticity of the concept is evident
also in later cases such as Re Y
(Mental Patient: Bone Marrow Donation)*® where it was held ‘necessary’ for an
incompetent young woman to donate bone marrow to try to aid her sister whose
premature death would otherwise have had a potentially distressing effect upon her.
Cases like Re Y illustrate the crucial social and ethical decisions prompted by society’s
duty to care for those unable to make their own decisions. The judges have done their
best to adapt extant torts to meet modern needs. But as yet, no statutory developments
have followed the Law Commission’s proposals in this context, despite its thorough
review of the law on treatment of patients with mental incapacity in 1995.*°
Section 3. Contributory negligence

This defence is fully examined in what is obviously its most appropriate place, the law
of negligence.*' Contributory negligence is no defence to proceedings founded on
conversion or intentional trespass to goods;* but it is available in battery.”
33 In cases of permanent mental incapacity where psychiatric treatment is required, elaborate

provisions exist within the Mental Health Act 1983 to dispense with the requirement of
consent. But it is important that in assessing the competence of a patient, that doctors do not
allow the question of mental capacity to be confused with the consequences of the patient’s
decision: see Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449. The details of
such matters fall outside the scope of this book, but see further Brazier, ch 5.
34 Their Lordships rejected the alternative basis of implied consent (an inapt legal fiction in
relation to those with permanent mental incapacity).
35 Where more than one treatment option emerges from the views expressed by responsible
practitioners, it is for the court to select the single option that it considers to be in the
patient’s best interests, which as a matter of logic only one option can be: Re S (Adult Patient:
Sterilisation) [2001] 3 WLR 1288, CA.
36 See Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
37 See Jones, ‘Justifying Medical Treatment without Consent’ (1989) 5 PN 178.
38 Consider the worst-case scenario in T v T [1988] Fam 52 (a 19-year-old girl with a mental age
of 21/2, doubly incontinent and incapable of communicating with others had become pregnant).
39 [1997] Fam 110.
40 Law Commission Report No 231 Mental Incapacity.
41 See ch 15.
42 Torts (Interference with Goods) Act 1977, s 11(1), except that the defence is open to a
collecting banker sued for conversion of a cheque: Banking Act 1979, s 47.
43 Murphy v Culhane [1977] QB 94, CA; Barnes v Nayer (supra); Revill v Newbery [1996] QB
567, CA.
Defences to the intentional torts 9\
Section 4. Self-defence
An act which might otherwise constitute trespass to the person may be justified if the
defendant is able to establish that he acted in self-defence,’ that he was merely repelling
an attack (or threatened attack) on the part of the claimant. The defendant must prove
that in the circumstances it was reasonable that he should defend himself and that the
force used by him was reasonable.
In Cockcroft v Smith, the facts were as follows.

The clerk of a court sued an attorney for biting off his forefinger in a scuffle in
court. Holt CJ held that, in itself, it was no defence that C had first run his fingers
towards D’s eyes, for a man must not ‘in case of a small assault, give a violent or
an unreasonable return’.*
The right to use reasonable force to protect oneself against injury or threat of injury
applies equally to resisting unlawful arrest.*° However, what constitutes reasonable
force is a question of fact in each case.*’ It will be material to consider whether the
claimant could have escaped, whether he resisted with the most reasonable means
available, whether the act of the defendant went beyond the limits of defence to pure
revenge, whether the defendant continued to use violence after the danger had passed,
and whether the claimant’s attack was, or was reasonably expected to be, violent.**
It has been said that, even though the force used is no greater than is required for
protection, it is still no defence unless the defendant also proves that the force used
was not disproportionate to the nature of the evil sought to be avoided; but the cases
do not establish such a legal rule.” In Cross v Kirkby,°° for example, A struck B with the
self-same baseball bat that B had used to attack A (once A had grappled it from him).
The blow fractured B’s skull and was shown to have involved much greater than
average force. Nonetheless, it was held to be a blow in self-defence. The relationship
between the harm threatened and the means of defence used is one element of fact to
be considered in deciding the general question of reasonableness.°! Suppose that A
pins B against a wall and repeatedly kisses her against her will, and the only means
whereby she can compel A to desist is by lacerating his wrists with scissors, having
failed to push him away because of his superior size and strength. Does her defence
fail because the evil of wounding is argued to outweigh the evil of unwanted kisses?
44 Even though the provocation by C may not on the facts justify the battery, it may be a ground
for reducing damages: Fraser v Berkeley (1836) 7 C & P 621, at 624, per Lord Abinger; Lane
v Holloway [1968] 1 QB 379, CA.
45 (1705) 2 Salk 642. In fact C failed on a finding that his act did endanger D’s eye.
46 Rv McKoy (2002) Times, 17 June, CA; Codd v Cabe (1876) | Ex D 352.
47 The notion of any duty to retreat was expressly condemned by the Court of Appeal in R v Bird
[1985] 2 All ER 513. As to force exerted where the danger is miscalculated but the intervention
was based on a reasonable mistake, see Albert v Lavin [1982] AC 546, CA.
48 Revill v Newbery [1996] QB 567, CA.
49 Cook v Beal (1697) 1 Ld Raym 176; Cockcroft v Smith, supra; Dale v Wood (1822) 7 Moore
CP 33. In each case the force used was unnecessary for self-defence.
50 (2000) Times, 5 April, CA.
51. Turner v Metro-Goldwyn-Meyer Pictures Ltd [1950] 1 All ER 449, at 471, HL, per Lord
Oaksey (obiter): ‘If you are attacked by a prize-fighter you are not bound to adhere to the
Queensbury rules in your defence’.
= X
Section 5. Defence of another person
The cases clearly establish that an employee may justify a battery in defence of his
employer, and an employer™ may lawfully strike someone in defence of his employee.*
Equally, a wife may defend her husband, and a man may defend any member of his
household.™ It may be that this form of defence extends to the protection of other
persons, although authority is lacking. For instance, a guard may claim the right to
defend railway passengers. It is submitted that in all these cases the key question is
whether it is reasonable for the defendant to protect the other person.
As with self-defence, the conduct of the defendant must be reasonable in all the
circumstances, and it is conceivable that one relevant factor may be the relationship
between the defendant and the person whom he defended (ie, one may use greater
force in defence of a close relative than of a stranger). At the very least, the facts must
probably* be such as to have justified the third person in defending himself. If the
defendant acted in order to prevent the claimant from perpetrating a felony jeopardising
the life of a third party, that was a defence in itself.°° Felonies were abolished by the
Criminal Law Act 1967, but it is submitted that any general right to intervene to prevent
a criminal attack on another is now provided for solely by section 3 of that Act. If the
defendant goes beyond merely protecting another and chastises the attacker, then,
unless he has the defence of discipline, he is liable for that act of chastisement.
Section 6. Defence of one’s property

One may use reasonable force to defend land or chattels in one’s possession against
any person threatening to commit or actually committing a trespass to the property;
but the defendant must have such possession as would enable him to sue the claimant
in trespass. Thus the captain of a cricket club who removed the claimant from the field
could not plead that he had ejected a trespasser, because the captain did not have
possession of the field.*’ A lack of possession was also crucial in Scott v Matthew
Brown & Co Ltd.*
D was on the land merely as a result of ejecting C by an act of trespass whereupon
C, the true owner, at once re-entered. D forcibly removed him, and was held not
to have sufficient possession to sue in trespass, and therefore to have no defence
against C’s battery action.
If the defendant has a mere right to possess, but not actual possession, he may have
some other defence — re-entry in the case of land, or recaption in the case of chattels —
but he cannot successfully plead that he was defending his property.*?
52 Barfoot v Reynolds (1734) 2 Stra 953.

53 Seaman v Cuppledick (1615) Owen 150; Tickell v Read (1773) Lofft 215. Cf Leward v Basely
(1695) 1 Ld Raym 62.
54 A-G’s Reference (No 2 of 1983) [1984] QB 456, CA; Leward v Basely, supra. Today, we may
assume that both propositions apply equally to men and women.
55 There is one doubtful case when D reasonably but mistakenly believes that the third party had,
in the circumstances, the privilege to defend himself.
56 Handcock v Baker (1800) 2 Bos & P 260, at 265, per Chambre J. See also Coupey v Henley
(1797) 2 Esp: 539;
57 Holmes v Bagge (1853) 1 E & B 782; Dean v Hogg (1834) 10 Bing 345.
58 (1884) 51 LT 746.
59 Roberts v Tayler (1845) 1 CB 117, at 126-7, per Tindal CJ.
To remain on land after permission has expired is trespass: therefore the defence is
available to a defendant who ejects such a person. A threatened intrusion is also
sufficient: if the claimant has taken the key of the defendant’s car and is about to enter
the car, the defendant may resist this potential trespass to his chattel.
As with defence of the person, if the defendant has a reasonable belief that force is
essential to end the trespass, he may use it although he is mistaken in thinking it to be
necessary. But if he mistakenly believes that the claimant is a trespasser, he has no
defence. What is reasonable force in this context also depends on the facts, though
guidance may be sought from the decided cases.
If a person enters another’s house with force and violence, the owner of the
house may justify turning him out (using no more force than is necessary),
without a previous request to depart; but if the person enters quietly, the other
party cannot justify turning him out, without a previous request to depart.*!
As the law does not generally value interests in property as highly as those in the
person, the use of force in defence of the former is harder to justify than in the case of
self-defence. Firing a shotgun at a burglar breaking into a garden shed, but who shows
no overt sign of violence to the person was held in Revill v Newbery” to be
disproportionate force in defence of property; but the claimant’s damages were reduced
by two thirds in the light of his contributory fault. May it be that unless the claimant
resists his expulsion so as to bring the rules of self-defence into play, the courts will
treat force likely to cause death or serious bodily harm as unjustifiable in the defence
of property?®
The courts have often had to consider the extent to which a defendant could use
mechanical devices or other methods to protect his property. The test appears, once
again, to be one of reasonableness. Thus, attempting to deter trespassers or burglars
by placing barbed wire or spiked railings on the confines of one’s land is reasonable,
and there is no liability if another is subsequently injured by them. On the oher hand,
if one deliberately and without notice sets spring guns or any other such device that
is calculated to kill or cause grievous bodily harm, the courts will not consider it to be
reasonable.
Where dogs (or, theoretically, other animals) are used to protect one’s property, the
relevant rules concerning defence of one’s property are contained in the Animals Act
1971. According to that legislation, a person is not liable ‘for any damage caused by an
animal kept on any premises or structure to a person trespassing there, if it is proved
60 Green v Bartram (1830) 4 C & P 308; Moriarty v Brooks (1834) 6 C & P 684, Ex Ch.
61 Tullay v Reed (1823) 1 C & P 6, per Park J. Cf Green v Goddard (1702) 2 Salk 641;
Polkinhorn v Wright (1845) 8 QB 197.
62 [1996] QB 567 CA. See also Collins v Renison (1754) Say 138; Moriarty v Brooks (1834) 6 (€
& P 684 Ex Ch. Cf Stroud v Bradbury [1952] 2 All ER 76.
63. As to when killing intruding animals may be justified, see Hamps v Darby [1948] 2 KB 311,
CA.
64 See Deane v Clayton (1817) 7 Taunt 489.
65 Bird v Holbrook (1828) 4 Bing 628; distinguished in Jordin v Crump (1841) 8 M & W 782. But
see now the Offences Against the Person Act 1861, s 31. In A-G Reference (No 2 of 1983)
[1984] QB 456, CA (D had armed himself with petrol bombs to repel rioters who had earlier
smashed into his shop. The court held that D was entitled to acquittal if his object was to
protect his family or his property from imminent attack and the force employed was
reasonable.)
either (a) that the animal was not kept there for the protection of persons or property;
or (b) (if the animal was Kept there for the protection of persons or property) that
keeping it there for that purpose was not unreasonable’.
Section 7. Defence of another’s property

According to Blackstone, it is a defence to protect the property of other members of
one’s household;*’ and although one might expect the courts to permit this defence
only within narrow limits, by analogy with defence of another, it may be assumed to
exist.
Section 8. Preventing crime

The above discussion relates to the right given to individuals at common law to
defend themselves, their property and other closely related persons. By contrast,
section 3 the Criminal Law Act 1967 confers a public right to use ‘such force as is
reasonable in the prevention of crime’. Clearly there is some overlap, but the private
and the public rights to use force defensively must be distinguished in at least two
instances. First, it is unclear whether a common law right exists to use force to repel an
attack on a stranger whereas this is plainly within section 3. Secondly, the right to use
force under section 3 is clearly inferior to the common law right of self defence in that
if an attacker is insane, or a child under 10, no crime can be committed, hence section
3 cannot be invoked.
Section 9. Necessity
(A) Distinguished from defence of property

The difference between the defence of necessity and that of defence of property is
that while the latter presupposes that the claimant is prima facie a wrongdoer, the
former contemplates the infliction of harm on an innocent claimant. When, for instance,
the defendant barricades his land against flood-water and, in consequence, the
claimant’s land is flooded, the defence of necessity may lie against the claimant who is
not responsible for creating the threat of danger. Here, the law may be expected to give
greater weight to the claimant’s interest, and, accordingly, to restrict the scope of the
defence.
(B) Scope
The necessity defence has two forms: private necessity and public necessity. In relation
to the former, one may lawfully protect one’s person and property®® (and that of
66 Animals Act 1971, s 5(3).

67 Book III, 3; no modern cases have been traced.
68 Cope v Sharpe (No 2) [1912] 1 KB 496, CA (D justified in burning heather on C’s land in order
to prevent fire on C’s land spreading to land on which D’s master had shooting rights).
another) against the threat of harm even though the consequence is that an innocent
person suffers a loss. Thus, one may do what is necessary to protect one’s property
against a threatened flood, even though flooding of a neighbour’s land ensues.”
Similarly, it is justifiable to divert pests away from one’s land although they then
damage a neighbour’s crops instead.’! But homeless persons who enter empty housing
awaiting development cannot invoke the defence: ‘necessity’ requires there to be an
urgent situation of imminent peril in order to invoke this defence.”
As we have already seen, necessity has been extended to the context of medical
treatment. A doctor is justified by the defence of necessity in operating to save the life
of an unconscious patient and in giving what she judges to be the appropriate care to
mentally incapacitated patients.” But there is no defence if the doctor knows that the
competent patient freely, and with full understanding of the seriousness of a decision
to refuse treatment, refuses life-saving treatment.” Even where the patient specifies in
advance that under certain circumstances he or she would not wish treatment (such as
artificial ventilation) to be continued, the doctors may not continue the treatment on
the basis of necessity once those circumstances transpire.” And in the latter stages of
pregnancy where the interests of a viable foetus are at stake, the maternal right to
bodily integrity now prevails.’”° Nor may prisoners on hunger strike lawfully be force-
fed.”’ Necessity in terms of the interest of a third party (or society) in saving life cannot
override individual autonomy so long as the individual at risk is mentally competent.”
Turning to public necessity, several ancient cases establish that a citizen might lawfully
enter another’s land to erect fortifications for the defence of the realm” or to fight
fires,*° or to justify throwing cargo overboard in order to save the lives of the ship’s
69 Proudman v Allen [1954] SASR 336 (D, believing that C’s unoccupied car was about to run
into another vehicle, jumped into the driving seat so that car ran into the sea and sank — no
trespass). See also Kirk v Gregory (1876) 1 Ex D 55 (moving a dead person’s valuables to a
safer place is only justified if necessary for the safety of those goods).
70 Nield v London and North Western Rly Co (1874) LR 10 Exch 4, at 7, per Bramwell B; Maxey
Drainage Board v Great Northern Rly Co (1912) 106 LT 429, at 430, per Lush J Div Ct;
Gerrard v Crowe [1921] 1 AC 395, PC. If D’s land is already flooded he may not divert that
flood water onto C’s land: Whalley v Lancashire and Yorkshire Rly Co (1884) 13 QBD 131.
71. Greyvensteyn v Hattingh [1911] AC 355, PC (D entered land of a 3rd party while diverting the
pests).
72 Southwark London Borough Council v Williams [1971] Ch 734, CA.
73 F v West Berkshire Health Authority [1989] 2 All ER 545, HL. And where the incompetent
patient objects to treatment, no breach of the Human Rights Convention, Art 3 occurs if the
treatment is necessary in the patient’s best interests: see R v M, ex p N [2002] EWHC 1911.
74 Re T (adult: refusal of medical treatment) [1993] Fam 95, CA. See also Re B [2002] EWHC
429, [2002] 2 All ER 449 (Competent tetraplegic may insist a ventilator be switched off. The
court stressed that in assessing the patient’s capacity to decline treatment, the doctors must
not allow the question of competence to be confused with the consequences of the patient’s
decision, however serious.)
75 Re AK [2001] 1 FLR 129 (and nothing in the Human Rights Convention alters this position).
76 Re MB [1997] 8 Med LR 217; St George's Healthcare NHS Trust v S [1998] 3 All ER 673, CA.
77 Secretary of State for the Home Department v Robb [1995] Fam 127, overruling Leigh v
Gladstone (1909) 26 TLR 139.
78 For the test of mental competence, see Re C [1994] | WLR 290; Re MB [1997] 8 Med LR
Dili
79 YB 21H 7 — the point was taken on demurrer but no judgment given on it; The Case of the
King’s Prerogative in Saltpetre (1606) 12 Co Rep 12 (obiter dictum in resolution of judges).
80 Dewey v White (1827) Mood & M 56 (D justified in throwing down C’s chimney because of risk
that it would otherwise fall on highway below); Case of Saltpetre, supra (justified in destroying
buildings). Fire brigades now have statutory authority dating from Metropolitan Fire Brigade
Act 1865, s 12 to do such things.
passengers,*! (but whether compensation is payable to the victims of such acts is

uncertain®). More recently, the public interest in preserving life has been used to
invoke this defence where genuine doubt existed as to whether the patient had freely
refused life-saving treatment.*?
In order to raise the defence of either public or private necessity there must be both an
actual (or what seems to a reasonable man to be actual) danger, and the steps taken
must reasonable in the light of all the facts.** Thus, if the claimant relies on an allegedly
negligent act, the defence of necessity cannot be considered, for then the same standard
would be applied to determine the issues of both necessity and negligence.®
Accordingly, in Rigby v Chief Constable of Northamptonshire® the police were held
liable for firing a CS gas canister into the claimant’s shop to flush out a dangerous
psychopath without having adequate fire-fighting equipment available. The shop was
burned out. The judge held that necessity was a good defence to trespass in such an
emergency, but that the police were liable in negligence for their failure to ensure that
they had sufficient fire-fighting back-up when the canister was released into the
claimant’s property.
Section 10. The Mental Health Acts

Persons who suffer from such a degree of mental disorder as to pose a risk of harm to
themselves or to others may be subject both to detention and compulsory treatment
against their will under the Mental Health Act 1983 and the Mental Health (Patients in
the Community) Act 1995. These Acts permit what would otherwise constitute false
imprisonment and battery; but the detailed provisions of the legislation are beyond
the scope of this book.
Section ||. Discipline

Where force is used neither in self-defence nor in the prevention of crime, but rather to
punish another, that punishment — which would otherwise constitute battery or false
imprisonment — must now generally be justified by statutory authority (eg, the Prison
Act 1952). The sanction given by the common law to those in authority disciplining
those subject to their authority is today virtually a matter of legal history. Exercise of
disciplinary powers remains a defence in tort only in relation to children and in the odd
case of passengers on ships and aircraft.
81 Mouse’ case (1608) 12 Co Rep 63. Cf Southport Corpn v Esso Petroleum Co Ltd [1954] 2 QB
182; revsd [1956] AC 218, HL. Cf also the restricted common law right to deviate from a
foundrous highway at least where it is public, and the land entered belongs to a person responsible
for the highway’s foundrous state (Stacy v Sherrin (1913) 29 TLR 555).
82 ‘No’: Bohlen 39 HLR 370; ‘yes’: British Cast Plate Manufacturers (Governor & Co) v Meredith
(1792) 4 Term Rep 794, at 797, per Buller J (obiter); Inconclusive dicta in Case of Saltpetre,
supra and Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, HL.
83 Re T (adult: refusal of medical treatment) [1997] 1 WLR 242, CA.
84 Cope v Sharpe (No 2) [1912] 1 KB 496, CA, illustrates both these requirements.
85 Southport Corpn v Esso Petroleum Co Ltd, supra.
86 [1985] 2 All ER 985.
(A) Children
(1) By parents
Save in the case of injuries inflicted before birth where children are expressly excluded
from suing their mothers, children are not prevented from suing their parents even
while they remain minors.*’ Section 1(7) of the Children and Young Persons Act 1933
presumes, however, that parents can administer forcible chastisement provided only
reasonable corrective force is used.** Similarly, parents may justify detention of their
children by way of punishment so long as such detention — otherwise false imprisonment
— 1s reasonable in all the circumstances.*? Changes in social mores and in the status of
children have diminished parental rights of discipline.
Yet, while a growing body of opinion supports outlawing any right of physical
punishment, it is doubtful whether English law has changed significantly. Article 3 of
the Human Rights Convention bans inhuman or degrading treatment and may be
invoked in connection with all physical chastisement whether the recipient is a child or
an adult.” However, it appears that in assessing whether there has been an abrogation
of Article 3, it will be necessary for the courts to take account of the parent’s Article 7
right not to be held guilty of any criminal offence that did not constitute a criminal
offence under national or international law at the time it was committed.*' In other
words, in cases where the parent’s act does not constitute a criminal offence, this
factor will be a prima facie (but by no means conclusive) indication of the
reasonableness of the chastisement.
(2) By schoolteachers and others responsible for their children or for their training and
education
At one time schoolteachers, both at boarding and day schools, and in the maintained
and the independent sectors, had the right to use reasonable force to correct the
children under their tutelage.” Nowadays, however, and not least against the
background of the Human Rights Convention, the rights of persons other than parents
to punish children in a manner that would otherwise be tortious are extremely limited.
Section 548 of the Education Act 1996, for example, prohibits corporal punishment in
both state and independent schools.” In relation to detention after school, or
87 Eg, Ash v Lady Ash (1696) Comb 357 (a daughter was able to sue her mother in trespass to the
person); Roberts v Roberts (1657) Hard 96 (an infant obtained an injunction against her
father).
88 Ink uy (Reasonable Chastisement) [2001] EWCA Crim 1024, [2001] 2 FLR 431, it was held
that reasonableness will be judged by reference to (i) the nature and context of D’s behaviour,
(ii) the duration of D’s behaviour, (iii) the physical and mental consequences to the child, (iv)
the age and personal characteristics of the child, and (v) the reasons given by D for administering
the punishment.
89 Rv Rahman (1985) 81 Cr App Rep 349, CA.
90 See, eg, Tyrer v United Kingdom (1978) 2 EHRR 1; A v United Kingdom (1998) 27 EHRR 611.
91 Rv H, supra.
92 Fitzgerald v Northcote (1865) 4 F & F 656 (headmaster, boarding school); Ryan v Fildes
[1938] 3 All ER 517 (assistant mistress, day school). ]
93 The Act’s extension to independent schools, not merely in respect of state-funded pupils, was
made clear in R (on the application of Williamson) v Secretary of State for Education and
Employment {2001] EWHC Admin 960, [2002] i FLR 493.
confiscating a child’s property, it seems that a serious breach of discipline must be

shown.” Similar rules apply to children in community hemes” or in local authority
foster placements.”
(B) Passengers in public transport

The captain of a ship may use reasonable force against anyone on his ship who
commits ‘some act calculated in the apprehension of a reasonable man to interfere with
the safety of the ship or the due prosecution of the voyage’,”’ provided also, it seems,
that he believes it necessary for the purpose.” A captain was not, therefore, justified in
detaining a passenger in his cabin for a week because the passenger thumbed his nose
to the captain and did not apologise.” The cases traced have only been concerned
with ships, but the same defence may be available to captains of aircraft, and to those
in charge of rail and road transport (though perhaps in a restricted class of circumstances
in respect of these last two).
Section 12. Arrest, search and seizure

The powers of arrest, search and seizure conferred on police officers, and to a limited
extent on private citizens, by the Police and Criminal Evidence Act 1984 are in practice
the most important of all the defences discussed in this chapter. Lawful arrest, search
or seizure may constitute a defence to false imprisonment, battery, trespass to land or
an interference with goods. In the case of unlawful arrest, the victim may use force that
would otherwise be a battery in order to resist that unlawful arrest. The Police and
Criminal Evidence Act 1984 to some extent codifies earlier case law and legislation on
police powers. But it also conferred new powers on the police. Nevertheless, a fair
amount of pre-1984 Act case law remains relevant to the definition of police powers.'”
The Human Rights Act also requires that provision for lawful arrest meets the principles
set out in Article 5 of the Convention.
(A) Arrest
(1) By a policeman with a warrant
A policeman who arrests a person under a warrant acts lawfully and commits no
trespass. Even if there is a ‘defect of jurisdiction’ in the magistrate who issued the
warrant, a constable is statutorily exempt from liability if he acts in obedience to the
warrant.'°' Thus, a constable commits no tort if he obeys even an ‘invalid or unlawful
94 Fitzgerald v Northcote, supra.

95 Children’s Homes Regulations 1991 (SI 1991/1506), reg 8(2)(a).
96 Foster Placement (Children) Regulations 1991 (SI 1991/910), Sch 2, para 5.
97 Aldworth v Stewart (1866) 4 F & F 957, at 961, per Channell B.
98 Hook v Cunard Steamship Co Ltd [1953] 1 All ER 1021.
99 Aldworth v Stewart (1866) 4 F & F 957.
100 Lewis v Chief Constable of South Wales Constabulary [1991] 1 All ER 206, at 208, CA, per
Balcombe LJ.
101 Constables Protection Act 1750, s 6.
warrant’.'”’ Obedience to the warrant is always central: thus he is liable if he arrests the
wrong person, or acts outside his jurisdiction.’ He must produce the warrant on
demand, and will be liable if he fails so to do.
(2) Arrest without warrant

Section 24 of the Police and Criminal Evidence Act 1984 provides for a category of
‘arrestable offences’ (which are relatively grave in nature).' Any person, constable or
private citizen, may arrest without warrant anyone who is or whom, with reasonable
cause, he suspects to be, in the act of committing an arrestable offence.'°° Any person
may also arrest anyone whom he has reasonable cause to believe has committed an
arrestable offence provided that such arrestable offence has in fact been committed.'
Here, private citizens act at their peril; for if, despite appearances, no crime has been
committed, they may will be liable for false imprisonment consequent on the unlawful
arrest.'°’ Here, constables enjoy greater powers, however, for even though no arrestable
offence has been committed, a constable may, if he reasonably suspects that such an
offence has been committed, arrest any person, whom he, with reasonable cause,
suspects to be guilty of that offence.'°* Equally, he may arrest any person who is, or
whom he, with reasonable cause, suspects to be about to commit an arrestable offence.'”
Finally, police officers may make an arrest under any other statute that creates a power
of arrest exercisable by any person.!'!°
Section 117 of the 1984 Act authorises constables to use reasonable force in exercising
any of their powers under the Act including making an arrest. Private citizens arresting
a person under the 1984 Act must rely on section 3 of the Criminal Law Act 1967 which
authorises the use of reasonable force by anyone in the prevention of crime.
Section 25 of the Police and Criminal Evidence Act 1984 provides a significant extension
to police powers of arrest: it grants a power of general arrest, not limited to arrestable
offences. Constables who have reasonable cause to believe that any offence is being
or has been committed may arrest any person reasonably suspected of that offence if
it appears to the constable that the service of a summons is impracticable or inappropriate
102 McGrath v Chief Constable of the Royal Ulster Constabulary [2001] 3 WLR 312; Horsfield v
Brown [1932] 1 KB 355, at 369.
103 As to constables’ jurisdiction see now the Magistrates’ Courts Act 1980, s 125(2).
104 For details, see Police and Criminal Evidence Act 1984, s 24 and Criminal Justice and Police
Act 2001, s 71.
105 Magistrates’ Courts Act 1980, s 24(4).
107 R v Self [1992] 3 All ER 476, CA (a store detective arrested a customer whom she saw putting
a bar of chocolate in his pocket; he was acquitted of theft and the arrest was found to be
unlawful).
108 Magistrates’ Courts Act 1980, s 24(6). Hence it may be crucial to ascertain whether responsibility
for an arrest lies with a constable, or the person who informed him of the possible crime and
sought to have a suspect detained: see Davidson v Chief Constable of North Wales [1994] 2 All
ER 597, CA.
109 Magistrates’ Courts Act 1980, s DAG)
110 Gapper v Chief Constable of Avon and Somerset [2000] QB 29, CA.
because any of the general arrest conditions is satisfied.''' And, it must not be
overlooked that in addition to police powers of arrest in respect of arrestable offences
and the novel general arrest power under the 1984 Act, the statute also expressly
preserves a number of specific arrest powers under earlier Acts,'!” and that subsequent
legislation has conferred further arrest powers on the police.''
Finally, common law powers to intervene to prevent breaches of the peace are unaffected
by the 1984 Act.''4 Constables and private citizens may arrest without warrant a person
committing a breach of the peace (or who, having done so, is reasonably believed to be
about to renew it),''> or where an imminent breach is reasonably apprehended.''°
Exceptionally a person may be detained without a formal arrest in order to prevent, or
stop, a breach of the peace."
(B) Reasonable cause

Powers of arrest, and the complementary crime prevention police powers of search and
seizure, are generally dependent on reasonable cause for relevant suspicion.''* The
balance between the citizen’s interest in personal freedom and the public interest in
efficient criminal law enforcement is a delicate one. In deference to the former, however,
the burden of proving reasonable cause justifying the arrest, lies with the defendant,''®
(albeit that in cases of malicious prosecution the burden rests with the claimant). And
although jury trial is still available in actions for false imprisonment the question of
‘reasonable cause’ is one of law, and thus one for the judge to decide.'”° Mere suspicion
—ie, a hunch — is insufficient. But suspicion is a lesser state of mind than knowledge of
guilt,'*' so in order to have reasonable cause for suspicion, a constable must himself
have subjective grounds for forming such an opinion, and be able to justify those
grounds objectively, to show that there is reasonable evidence to support his suspicion.
A constable who arrested a person simply because he was ordered to do so by a
superior officer would act unlawfully because he himself would have had no basis on
which to form reasonable grounds for suspicion. But where a briefing from senior
officers gave information about the claimant’s suspected involvement in a terrorist
murder, that briefing was found sufficient to establish that the arresting constable who
11 _ The general arrest conditions are wide in scope and include, inter alia, that the constable
believes that the suspected person has given a false name, or refuses to give a satisfactory
address for service of a summons, or that he may, unless arrested, injure himself or another, or
cause damage to property, or commit an offence against public decency.
112 Magistrates’ Courts Act 1980, ss 26 and 2. Various other statutes also confer a variety of
powers on private citizens.
113 See,eg, the Criminal Justice and Public Order Act 1994.
114 Bibby v Chief Constable of Essex (2000) 164 JP 297, CA.
115 Timothy v Simpson (1835) 1 Cr M & R 757. Police are not entitled to arrest for obstruction
of an officer in the execution of his duty unless the disturbance caused, or was likely to cause,
a breach of the peace: Wershof v Metropolitan Police Comr [1978] 3 All ER 540, CA.
116 Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705, CA.
117 Albert v Lavin [1982] AC 546, HL.
118 As is the related provision of Article 5(1)(c) of the Human Rights Convention.
119 Holtham v Metropolitan Police Comr (1987) Times, 28 November, CA; Allen v Wright (1838)
SuG Saba 22"
120 Lister v Perryman (1870) LR 4 HL 521.
121 Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942, PC.
identified the claimant from the briefing had reasonable cause to suspect him of the
crime. '7?
Once reasonable cause for suspicion has been established, the constable need not
generally prove that arrest was necessary. Constables are endowed with a discretion
to arrest; they are rarely under a duty so to do. Thus, the House of Lords held in
Holgate-Mohammed v Duke'** that this discretion could only be challenged if the
constable could be proved to have acted on some immaterial or irrelevant consideration.
Taking advantage of a suspicion of a crime to arrest your wife’s lover and incarcerate
him for a few hours would clearly be unlawful! Furthermore, the Court of Appeal has
held that a constable acts unlawfully when carrying out an arrest of a person he knows
perfectly well will never be charged.'™4
(C) Manner of arrest

The Police and Criminal Evidence Act 1984 sets out the basic rules governing the
manner of a lawful arrest.'*° They relate largely to informing the arrestee of (a) the fact
that he is under lawful arrest, and (b) the grounds for that arrest. This information must
be given even if the ground for the arrest appears obvious.'”° Only an escape before
the arrestor can practicably explain the arrest and its grounds can now excuse a failure
to impart the relevant information.'”’ But the dual requirement of the Act is very basic,
and earlier case law elaborating the criteria for a valid arrest remain relevant. So,
explanation must be in plain, simple English, and the arrestee must be given enough
details to enable him to understand fully why he is being arrested.'”* It is not enough
to tell him that he has been arrested ‘for burglary’.'*? Equally, where an arrestee was
told that he was being arrested for unlawful possession of a car, the Court of Appeal
held that to be insufficient to make clear whether the arrest related to theft or unlawful
handling of the vehicle.'*°
If an arrestor is (or ought to be) aware that the arrested person is deaf or unable to
understand English, he must take reasonable steps to try to communicate with his
suspect. But the arrest will not be invalid because the arrestor cannot immediately
summon an interpreter to his side.'*' And an arrest by words alone will not generally
suffice unless the arrested person submits to arrest. Some physical! contact is required
to bring the arrested person, nominally at least, under the arrestor’s control.'”
122 O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, HL; Shaaban Bin
Hussien v Chong Fook Kam, [1970] AC 942, PC.
123 [1984] AC 437.
124 Plange v Chief Constable of South Humberside Police (1992) Times, 23 March, CA.
125 PACE 1984, s 28. This largely mirrors the common law rules in Christie v Leachinsky [1947]
AC 573, HL.
126 Magistrates’ Courts Act 1980, s 28(2), (4). And see Article 5(2) of the Human Rights Convention.
128 Christie v Leachinsky, [1947] AC 573, at 587, per Viscount Simon.
129 R v Telfer [1976] Crim LR 562.
130 Abbassy v Metropolitan Police Comr [1990] 1 All ER 193 (note, too, that in judging the
sufficiency of information given to the arrested person by a constable, earlier conversations
between the two may be taken into account).
131 John Lewis & Co Ltd v Tims [1952] AC 676, at 681, HL; Wheatley v Lodge [1971] 1 WLR 29,
at 34.
132 Hart v Chief Constable of Kent [1983] RTR 484, DC.
Although not stated in the Act, it is submitted that the general arrest power in section
25 of the Police and Criminal Evidence Act 1984 (which theoretically permits arrest for
any offence, even a parking offence) must equally require the constable to tell the
arrested person what exceptional circumstance justifies arrest. This is because rules
governing the manner of arrest are designed to enable arrested persons to become
aware that their liberty has been lawfully curtailed.'*
Private citizens effecting an arrest must, as soon as is reasonable, hand the arrested
person over to the police. They cannot imprison suspects on their own premises. Yet
this does not always mean the police must be summoned instantly. In John Lewis &
Co Ltd v Tims,'** for example, where the defendant’s store detectives arrested the
claimant, she was held for some 20 to 60 minutes while the manager decided whether to
call the police. The House of Lords held on the facts that the delay and its purpose
were reasonable.
Occasionally police officers may take suspects to the police station without arrest in
order to ‘help the police with their inquiries’. The police can then decide, after
questioning the suspect, whether to press charges. There is no power to hold suspects
without arrest for ‘questioning’.'** Thus, in one case involving detention without
arrest, Devlin J told the jury: ‘[y]ou may sometimes read in novels and detective stories
... that persons are sometimes taken into custody for questioning. There is no such
power in this country. A man cannot be detained unless he is arrested.’'*° Only if the
claimant freely agreed to go to, and remain in, the police station can liability for false
imprisonment in such a case be rebutted.'*’ The unlawful practice of detention without
arrest must be distinguished from another, more common (and lawful) practice whereby
a person is arrested on the basis of (minor) charge A while further inquiries are made
about his possible involvement in (more serious) matter B. So long as the initial arrest
was prima facie lawful, it can only be challenged if it can be proved to have been
effected in bad faith or for some irrelevant or improper purpose.'**
(D) Entry, search and seizure

The Police and Criminal Evidence Act 1984 confers on constables powers far greater in
extent than those ill-defined powers enjoyed by the police at common law to enter
premises, search persons and property and to seize evidence.'*” Exercise of powers of
entry, search and seizure will in an appropriate case provide a good defence to actions
for trespass whether to land, person, or goods, and to actions for conversion. But
detailed exposition of the powers provided for by the Police and Criminal Evidence Act
1984 is beyond the scope of a work on torts.'*° It suffices to note that these police
133 See Christie v Leachinsky, [1947] AC 573, at 587, per Viscount Simon.
134 [1952] AC 676, HL.
135 Save by virtue of the exceptional provision made under the Prevention of Terrorism (Temporary
Provisions) Act 1989.
136 R v Roberts (1953) Guardian, 25 March.
137 See Warner v Riddiford (1858) 4 CBNS 180 (show of authority may negate apparent consent:
on whom would the burden of proving absence of consent fall?).
138 See Holgate-Mohammed v Duke [1984] AC 437, [1984] 1 All ER 1054, HL.
139 See also the additional powers of seizure conferred by the Criminal Justice and Police Act 2001,
ss 50-51.
140 See Clerk & Lindsell ch 17.
powers include a power to stop and search persons in public places for stolen or
prohibited articles,'*' a power of entry to effect an arrest for an arrestable offence,'”
and powers to enter premises to save life or lives or prevent serious damage to property.
Equally, where the occupier of premises has been arrested for an arrestable offence,
those premises may later be searched for evidence concerning that or any related
offence.'** And any premises on which a person is arrested for any offence may be
searched.'™ All these powers are additional to the power to seek a search warrant from
magistrates. '4°
Section 13. Judicial acts

Judges and magistrates have generally enjoyed immunity from tort actions: the risk of
frivolous and vexatious actions discrediting the judicial process as a whole being
perceived to outweigh the risk of harm occasioned by a corrupt or malicious judge. In
relation to the inferior courts, Lord Denning suggested in Sirros v Moore'*° that such
liability might arise if the claimant could prove that the judge acted in bad faith. But the
House of Lords in Re McC held that in so far as he sought to apply such a doctrine to
magistrates he was wrong,'*’ and reached no conclusive opinion as far as judges of
other inferior courts were concerned. In response to Re McC, Parliament legislated to
clarify the liability of magistrates: a magistrate cannot now be liable for any act within
his jurisdiction, and only in respect of acts beyond his jurisdiction but only if he acted
in bad faith.'** At the same time, it is clear that judges of the High Court and above may
only be liable for an act flagrantly beyond their authority (and so, very obviously, in
bad faith).'*? But this leaves the position unclear in relation to judges of county and
Crown courts. On principle, however, it has been asked whether it is justifiable to grant
any judge immunity from the consequences of his mistakes, an immunity not shared
by other professionals?'*°
It follows from the foregoing that it may be a defence to false imprisonment, trespass
or conversion that the act was done in execution of the judicial process. Where,
however, a judicial act done in good faith results in an arrest or detention in
contravention of the principles embodied in Article 5 of the Human Rights Convention,
an action for damages will lie under section 9 of the Human Rights Act 1998.
141 Police and Criminal Evidence Act 1984, s 1.

142 Police and Criminal Evidence Act 1984, s 17. No power existed at common law: Kynaston v
DPP (1987) 87 Cr App Rep 200, DC.
143 Police and Criminal Evidence Act 1984, nan
146 [1975] QB 118, CA.
147 Supra, at 541-2, per Lord Bridge. And note Warren v Warren [1996] 3 WLR 1129, at 1137,
CA.
148 Justices of the Peace Act 1997 ss 51-52 (re-enacting equivalent provisions of the Courts and
Legal Services Act 1990, s 108).
149 Re McC [1985] AC 528, HL.
150 See Brazier, ‘Judicial Immunity and the Independence of the Judiciary’ [1976] PL 397. But
note that members of tribunals may claim a similar immunity so long as some judicial or quasi-
judicial function has been conferred on them by statute; simply because a professional duty
includes acting fairly will not confer any immunity: Sutcliffe v Thackrah [1974] AC 727, HL.
Note also Arenson v Casson, Beckman, Rutley & Co [1977] AC 405, HL (defence possibly
available to arbitrators).
Section 14. Statutory authority

Public bodies and officials may only do acts which would be unlawful in others if they
are authorised to do them by statute. In tort cases of this type, then, the question
before the courts is whether the Act in question authorised the official to perform the
act complained of.'*' Certain guiding principles have been developed by the courts in
order to answer this question. Either a duty or a power to do the act will afford a
defence.'** The defendant must prove that the tort would be an inevitable result of
performing the act authorised. If, for instance, a local authority built an efficient electricity
generating station, the fumes from which damaged crops of the claimant, they would
only have a defence if they proved not merely that an efficient station had been built,
but also that they had used all reasonable care in the light of current technical and
scientific skill to prevent the commission of a tort.'** On the other hand, they have an
absolute defence, regardless of proving these precautions, if they can discharge the
very heavy burden of proving that the Act authorised them to disregard these matters.'**
In determining whether Parliament intended to deprive the claimant of a right to sue,
the presence of some alternative special provision in the Act for compensating those
injured by the statutory activity may be material, and sometimes even decisive. It is
also important to look at the nature of the power. Powers to execute some particular
work or carry on some particular undertaking, such as building a reservoir or a gasworks,
‘are, in the absence of clear provision to the contrary in the Act, limited to the doing of
the particular things authorised without infringement of the rights of others, except in
so far as any such infringement may be a demonstrably necessary consequence of
doing what is authorised to be done’.'® If, however, a public body is required to
execute a variety of works at its discretion (many of which are likely to affect private
rights), the body will rarely be prevented from infringing those rights, for that would
prevent it from doing the very task which it was set up to perform.'”°
Section 15. Acts connected with parliamentary proceedings

It is a defence that the act complained of took place in the course of parliamentary
business and as part thereof,'*’ for each House of Parliament has a parliamentary
privilege to regulate its own concerns.'* Whether this extends to an assault was,
however, expressly left open in Elliot’s case.'°°
151 IRC v Rossminster Ltd [1980] AC 952, HL is an example of the difficult problems of statutory
construction which may arise.
152 Hammersmith and City Rly Co v Brand (1868) LR 4 HL 171.
153 Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509, HL.
154 Manchester Corpn v Farnworth [1930] AC 171, HL; Geddis v Bann Reservoir Proprietors
(1878) 3 App Cas 430, HL.
155 Marriage v East Norfolk Rivers Catchment Board [1950] 1 KB 284, at 307, CA, per Jenkins
lL.
156 [1950] 1 KB 284, at 307-8, CA, per Jenkins LJ. The cases on this defence of statutory
authority are numerous but since they turn on the interpretation of the particular statutes and
merely illustrate the general principle set out in the text. It is needless to discuss them here.
157 Report of Select Committee on Official Secrets Acts HC 101 of 1939.
158 Bradlaugh v Gossett (1884) 12 QBD 271; R v Graham-Campbell, ex p Herbert [1935] 1 KB
594.
159 (1629) 3 State Tr 293.
Defences to the intentional torts \05
Section 16. Executive acts

In general it is no defence that the act complained of is an act of the executive.' But
to this rule there are two exceptions.
(A) Act of state

Neither the official responsible, nor the Crown is liable for injuries tortiously inflicted
upon aliens outside the territorial jurisdiction of the Crown by authority or subsequent
ratification of the Crown.'*' If the act is committed in British territory, the defence avails
only where the claimant is an enemy alien'® or, possibly, a friendly alien resident in
British territory who has broken his duty of temporary local allegiance to the Crown.'®
(B) Prerogative
The Crown still retains a few prerogative powers to interfere with the rights of the
citizen. If it takes property under prerogative powers, it ordinarily has to pay
compensation.'™ If, however, the power is exercised during, or in contemplation of,
war there is no entitlement to compensation in respect of damage to, or destruction of,
property. '®
Section 17. An act which is also a crime
(A) Assault and battery

The ordinary principle of res judicata applies to suits in tort, with the result that it is a
defence to subsequent proceedings that the same issue has previously been litigated
between the same parties. It is, however, no defence that the act is also a crime in
respect of which the defendant has been convicted or acquitted.'®° Section 45 of the
Offences Against the Person Act 1861 provides an exception to this rule. In certain
cases, classified by that Act as minor assaults, the criminal conviction operates as a
bar to subsequent proceedings in tort.'®’
160 Leach v Money (1765) 19 State Tr 1001.

161 Buron v Denman (1848) 2 Exch 167; Walker v Baird [1892] AC 491, PC. In A-G v Nissan
[1970] AC 179, HL, it was left undecided whether in any circumstances Act of State could ever
be pleaded against British subjects in respect of acts outside the realm.
162 R v Bottrill, ex p Kuechenmeister [1947] KB 41, at 57, CA, per Asquith LJ; Netz v Chuter Ede
[1946] Ch 224.
163 Johnstone v Pedlar [1921] 2 AC 262, HL. It may be, however, that the Crown must indicate
that it has withdrawn its protection of the alien before the defence becomes available (see per
Lord Atkinson, at 285).
164 A-G v Nissan [1970] AC 179, HL.
165 War Damage Act 1965, s 1(1) (reversing Burmah Oil Co Ltd v Lord Advocate [1965] AC 75,
HL).
166 jae Mcllkenny v Chief Constable of the West Midlands [1980] QB 283, CA.
167 For examples of the application of Offences Against the Person Act 1861, s 45 see Solomon
v Frinigan (1866) 30 JP Jo 756; Masper v Brown (1876) 1 CPD 97; Dyer v Munday [1895] |
QB 742, CA.
Clunis thus confirms, and explains, a series of decisions denying a remedy in tort to,
among others, a burglar seeking to sue the driver of his getaway car,'*° and the widow
of a burglar claiming loss of dependency against the driver responsible for her husband’s
death in a road accident'*! (her dependency being the loss of his income from crime).
But other decisions are now difficult to explain. In Revill v Newbery,'® the claimant’s
very presence on the defendant’s property derived from his criminal conduct. But for
his crime, he would not have been injured. Yet the defence could not be invoked.
Consider, too, Lane v Holloway.'*?
Anelderly man provoked an argument with D by striking him on the shoulder (a

minor criminal assault). D retaliated by way ofa violent assault on C. A plea of ex
turpi raised by D failed. D’s response was out of all proportion to C’s wrongful
conduct.
In both cases the claimant’s criminal wrongdoing triggered the harm of which they
subsequently complained. So, can these cases really be distinguished from Clunis on
the ground that the very injury of which Clunis complained was the inevitable
consequence ofhis crime, whereas in Revil/ and Lane the claims related to injuries that
were not, arguably, the inevitable consequence of their wrongdoing? If so, a further
problem arises because in Cross v Kirkby,'** the Court of Appeal held that the defence
would be available in respect of A striking B (and fracturing his skull) with a baseball
bat that A had grappled from B, and with which B had initially struck A. If not, one way
of reconciling these four Court of Appeal decisions is on the basis that criminal conduct
on the claimant’s part will normally entitle the defendant to invoke the defence, but not
where his response 1s wholly disproportionate to the defendant’s criminal act. On this
footing, Lane and Revill could be explained by virtue of the fact that the defendant’s
response to the claimant’s relatively trivial crime was out of all proportion the claimant’s
criminality, whereas in Clunis and Cross the defendant’s wrongdoing could not be
described thus. However, the Court of Appeal in Cross held that proportionality was
not an appropriate touchstone in this context. The reasoning given was that the defence
does not exist for the benefit of the defendant, but rather to deny a claimant a remedy
deriving from his own excessive criminal conduct.'* Arguably, however, this approach
seems only semantically (as opposed to substantively) distinct.
The reconciliation of the leading modern cases attempted here does not, however,
adequately explain the earlier case law (that is yet to be overruled) which suggested
that anti-social or disgraceful conduct falling short of criminality could suffice in this
context.'*° Thus, the difficult job of classifying just what degree of bad or immoral
conduct gives rise to the defence arguably remains, despite the vigorous condemnation
of the ‘affront to public conscience’ test in both Tinsley v Milligan and Clunis v
Camden and Islington Health Authority. Furthermore, earlier authorities suggesting
180 Ashton v Turner [1981] QB 137.

181 Burns v Edman [1970] 2 QB 541.
182 Supra.
183 [1968] 1 QB 379, CA.
185 In fact, Beldam LJ, who delivered the judgment of the Court, posed the converse question of
‘whether one of the parties whose illegal conduct might be regarded as trivial, should be
precluded from recovering damages resulting from an aggravated assault in retaliation’.
186 Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283.
that cases of this kind can be dealt with on the basis that no duty of care is owed to a
criminal also continue to abide;'*’ although it has recently been said that such cases
do not offer any conceptual explanation of, or basis for, the ex turpi defence.'**
Assuming that conduct short of crime remains a possible basis for a plea of ex turpi,
any test other than a broad policy based approach to ‘public conscience’ seems difficult
to envisage and the discretionary nature of an anti-social ex turpi plea appears
inevitable. '* It must be noted, however, that concepts of disgraceful or immoral conduct
change with the times. In 1868, for example, it was held that a woman seeking to sue her
lover for infecting her with venereal disease must fail because of her own flagrant
immorality in engaging in extra-marital intercourse.'” Judges today would be unlikely
to follow that Victorian precedent.
In 1981, Lord Denning argued that suicide, although no longer criminal, was such an
intrinsically immoral act that damages should never be awarded for the consequences
of suicide or attempted suicide.'*' But the Court of Appeal in Kirkham v Chief Constable
of Greater Manchester Police disapproved his dictum. The claimant’s husband was
seriously disturbed and had attempted suicide. The police failed to tell the prison
authorities of his condition and he successfully committed suicide. His widow recovered
compensation for the negligence of the police. Similarly, in Reeves v Metropolitan
Police Comr'** it was held that where a prisoner was known to be a suicide risk, ex
turpi did not apply to bar a claim by his widow even though the deceased was mentally
competent. This self-harm was exactly the conduct that the defendants had a duty to
guard against.
It remains to be seen whether legislation will follow the Law Commission’s
recommendation in this context that the current law should be replaced with a structured
discretion that would allow the courts to debar a claimant’s action where that action
arises from, or is connected to, illegal conduct on the claimant’s part.'”? But whatever
the lingering uncertainty in this area, it is important to note that, often, the facts that
give rise to the possibility of a plea of ex turpi may also give rise to other defences.
Thus, for example, if] throw a brick through my neighbour’s window yelling “come out
and fight’, and he beats me to a pulp, he may also argue that I was volenti to the
ensuing fight or possibly contributorily negligent as to my safety.
Section 19. Self-help remedies

In addition to the defences so far discussed, the law sanctions a number of ‘self-help’
remedies enabling a person against whom some prior tort has been committed to take
action to remedy the damage done in a manner that would otherwise itself be tortious.
187 See, eg, Ashton v Turner [1981] QB 137.

188 Vellino v Chief Constable of Greater Manchester Police [2001] EWCA Civ 1249, [2002] |
WLR 218, at [19], CA per Schiemann LJ.
189 See Hall v Woolston Hall Leisure Ltd [2000] 4 All ER 787, at [79], CA where Mance LJ
commented that ‘the underlying test remains one of public policy’.
190 Hegarty v Shine (1878) 14 Cox CC 145; and see Siveyer v Allison [1935] 2 KB 403.
191 Hyde v Tameside Area Health Authority (1981) 2 PN 26, 1CAS
192 [1998] 2 All ER 381, CA.
193 Law Commission, The I/legality Defence in Tort (2001).
Y
These include retaking chattels wrongly withheld from the claimant,'* abatement of
nuisance,'®> distress damage feasant'® and replevin.'”’ Such defences need not be
discussed here in depth. It suffices to note that the courts are generally reluctant to
allow ancient remedies tg be revived in order to expand the freedom of the citizen to
resort to self-help. Nonetheless, such remedies refuse to fade away entirely, as is
witnessed by a comparatively recent attempt to defend wheel-clamping by invoking
distress damage feasant.'*
194 This defence known as recaption of chattels can therefore be used where a trespass to, or
conversion of, C’s goods has taken place. See Blades v Higgs (1865) 11 HL Cas 621; Patrick
v Colerick (1838) 3 M & W 483; Anthony v Haney (1832) 8 Bing 186.
195 Eg, chopping off branches of overhanging trees: see Lemmon v Webb [1895] AC 1, HL.
196 Seizing a chattel unlawfully on your land as security until compensation is paid (eg, until the bus
company pays for the damage done to your rosebed by a bus which has veered off the road and
into your garden). Distress damage feasant may no longer be utilised to seize animals: Animals
Act 1971, s 7(1).
197 An action to reclaim goods taken under some wrongful judicial process.
198 Arthur v Anker [1997] QB 564, CA.
PART III
Intentional interference with economic

Interests
112 Intentional interference with economic interests
x
Contents
a”
CHAPTERS PAGE
7 Interference with economic interests 113

8 False representations 119
9 Interference with contract or trade 145
10 Intellectual property interests 169
CHAPTER 7
Interference with economic interests
Section |. Rights and economic interests!

The law of torts affords every member of society comprehensive protection from
deliberately inflicted harm to his person, his goods and his land by means of the torts
discussed in the previous part of this book. Protection of legitimate interests in a
person’s livelihood, in his business and trading interests, is significantly less
comprehensive. Should my economic prosperity and that of my family be diminished
because I have been physically attacked and can no longer work, my attacker must
compensate us for our loss of income. Where the defendant claims some justification
or authority for what he did to me, the onus lies on him to establish lawful grounds for
interfering with my right to bodily security. If one workman takes the tools of another,
he does so at his peril. A misguided belief that the tools were his own will not avail him.
Yet if a businessman motivated by pure spite against another mounts a campaign to
destroy the other’s business, to seduce away from him his customers, to dissuade
other traders from dealing with him, the injured party may have no remedy in tort for
the loss of his livelihood.
In Allen v Flood’ the House of Lords, by a majority, stifled the growth of any general
principle of liability in tort for intentional and malicious interference with economic and
business interests.> Flood and Taylor were shipwrights taken on for the day by the
Glengall Iron Company to work on the woodwork of a ship. During the day, other
employees of the company, who were boilermakers, discovered that the respondents
had previously been employed by another firm working on ironwork. The boilermakers
belonged to a union that objected strongly to shipwrights being employed to do
ironwork. Allen, an official of the union, sought an interview with an officer of the
Glengall Iron Company and told him that unless the respondents were dismissed, all
the boilermakers would ‘knock off work’. Flood and Taylor were told at the end of the
day that their services would no longer be required. They brought an action against
Allen for maliciously inducing the company not to employ them on subsequent
occasions, for intentionally interfering with their livelihood.
1 See generally Carty, An Analysis of the Economic Torts (2001); Weir, Economic Torts (1997).
2 [1898] AC 1, at 14. a,
3 In Keeble v Hickeringall (1706) 11 East 574n Holt CJ enunciated a broad principle to this
effect.
112. Intentional interference with economic interests
Contents
CHAPTERS PAGE
7 Interference with economic interests 113

8 False representations 119
9 Interference with contract or trade 145
10 Intellectual property interests 169
CHAPTER 7
Interference with economic interests
Section |. Rights and economic interests!

The law of torts affords every member of society comprehensive protection from
deliberately inflicted harm to his person, his goods and his land by means of the torts
discussed in the previous part of this book. Protection of legitimate interests in a
person’s livelihood, in his business and trading interests, is significantly less
comprehensive. Should my economic prosperity and that of my family be diminished
because I have been physically attacked and can no longer work, my attacker must
compensate us for our loss of income. Where the defendant claims some justification
or authority for what he did to me, the onus lies on him to establish lawful grounds for
interfering with my right to bodily security. If one workman takes the tools of another,
he does so at his peril. A misguided belief that the tools were his own will not avail him.
Yet if a businessman motivated by pure spite against another mounts a campaign to
destroy the other’s business, to seduce away from him his customers, to dissuade
other traders from dealing with him, the injured party may have no remedy in tort for
the loss of his livelihood.
In Allen v Flood’ the House of Lords, by a majority, stifled the growth of any general
principle of liability in tort for intentional and malicious interference with economic and
business interests. Flood and Taylor were shipwrights taken on for the day by the
Glengall Iron Company to work on the woodwork of a ship. During the day, other
employees of the company, who were boilermakers, discovered that the respondents
had previously been employed by another firm working on ironwork. The boilermakers
belonged to a union that objected strongly to shipwrights being employed to do
ironwork. Allen, an official of the union, sought an interview with an officer of the
Glengall Iron Company and told him that unless the respondents were dismissed, all
the boilermakers would ‘knock off work’. Flood and Taylor were told at the end of the
day that their services would no longer be required. They brought an action against
Allen for maliciously inducing the company not to employ them on subsequent
occasions, for intentionally interfering with their livelihood.
1 See generally Carty, An Analysis of the Economic Torts (2001); Weir, Economic Torts (1997).
De S98 ACM ete: pel
3) In Keeble v Hickeringall (1706) 11 East 574n Holt CJ enunciated a broad principle to this
effect.
The case for the respondents depended largely on establishing a positive right to
protection of their economic interests. Expressing the min6rity opinion, and holding
that such a right did exist, Hawkins J described it as:
... the legal right which each of the [claimants], in common with every man in this
country, has to pursue freely and without hindrance, interruption or molestation
that profession, trade or calling which he has adopted for his livelihood.’
The majority, however, refused to recognise such a right which would have been akin
to rights to bodily security, property or reputation. Instead, they recognised merely a
person’s freedom to pursue his livelihood or business. Allen, in seeking to persuade
the company not to re-engage the respondents, was equally exercising his freedom to
arrange affairs, as he saw it, in the interests of the members of his union. The House of
Lords, having found nothing intentionally unlawful in what Allen did, further rejected
the contention that his motive, to ‘punish’ the respondents for their earlier breach of
the boilermakers’ desired ‘monopoly’ of ironwork, transformed an otherwise lawful act
into an unlawful act actionable in tort.
The absence of any general right to protection of economic interests in English law
has had several consequences. First, it has restricted the scope of tort law in guarding
claimants against unfair practices by others. An English claimant in the equivalent
circumstances of the American claimant in Tuttle v Buck’ — where the wealthy defendant
set up a rival barber’s shop with much lower prices purely to drive the claimant out of
business — would be left remediless. In Minnesota, the claimant recovered for his
losses.°®
Secondly, the development of the economic torts became haphazard.’ The prior
existence of specific torts of inducing breach of contract and conspiracy was confirmed
in Allen v Flood. The next 80 years or so saw the extension of that first tort® as well as
the development of the tort of intimidation and other innominate torts of unlawful
interference. Then Lord Diplock suggested a common thread linking these economic
torts: a ‘genus’ tort of unlawful interference with the trade or business of another (the
traditional economic torts being mere “species’).’
Thirdly, the restricted development of liability for deliberately inflicted harm to economic
interests has necessarily had an effect on the development of negligence in relation to
damage to economic interests. Can a rational system of law refuse a remedy to a
businessman who suffers financial losses because of the deliberate and spiteful conduct
4 [1898] AC 1, at 14.
5 107 Min 145 (1909).
6 On the development of rights in economic interests in the US generally, see Heydon, Economic
Torts (2nd edn).
7 See the comment of Lord Wedderburn that the economic torts have been at best ‘a ramshackle
construction for decades’ (cited in Carty, n 1, p15). See also Carty, ‘Intentional Violation of
Economic Interests: the Limits of Common Law Liability’ (1988) 104 LQR 250.
8 This tort in later years embraced the more general wrongdoing of interference with existing
contracts.
9 Merkur Island Shipping Corpn Laughton [1983] 2 AC 570, HL. The boundaries of any such
tort remain hazy. It is at best still a developing tort: see Lonrho plc v Fayed [1989] 2 All ER
65, at 71, CA, per Dillon LJ. For an analysis of the implication of such a ‘genus’ tort and
consideration of the role of tort in this area see Carty, ‘Intentional Violation of Economic
Interests: the Limits of Common Law Liability’ (1988) 104 LQR 250.
Interference with economic interests 115
of a rival, and grant a remedy where identical losses result from some third party’s
negligence?" Ifa firm of cattle auctioneers lose business because a rival firm undercut
their fees and offer farmers inducements to send cattle only to them. The firm’s loss is
irrecoverable. But what if that same firm suffers an identical loss of business because
a neighbouring research institute negligently allows foot and mouth disease to spread
to local cattle, and government restrictions on the movement of cattle stop all cattle
auctions for a period of months?'! We shall see later that it is not necessarily inconsistent
to make the latter liable for his negligence while the former remains free of legal
responsibility for his deliberate actions.
Section 2. Free competition, unfair competition!”

What must next be considered is why the English courts reject a general right to the
protection of economic interests. The clearest explanation is to be found in a dictum of
Atkin LJ in Ware and de Freville Ltd v Motor Trade Association.
[T]he right of the individual to carry on his trade or profession or execute his
own activities, whatever they may be, without interruption, so long as he refrains
from tort or crime, affords an unsatisfactory basis for determining what is
actionable, in as much as the right is conditioned by a precisely similar right in
the rest of his fellow men. Such co-existing rights do in a world of competition
necessarily impinge upon one another ... The true question is, was the power of
the [claimant] to carry on his trade etc, interrupted by an act which the law deems
wrongful. '°
Historically, English law has favoured free competition. Such a stance is manifestly
inconsistent with any assumption that the interest in pursuing a livelihood or a trade
is entitled to absolute legal protection.'* Acts of competitors, or others, damaging a
person in his business are to be regarded as tortious only if the act causing the damage
was in itself ‘unlawful’. Leaving to one side the circularity of this statement, there
appear to be three discernible categories of ‘unlawful act’. The first comprises those
specific torts concerned with false representations.'° Free competition does not validate
the use of lies and fraud to do down one’s competitors. Thus, the tort of deceit imposes
liability for false representations in reliance on which the claimant suffers damage.
Passing off prevents D falsely cashing in on the reputation of C by misrepresenting to
customers either the provenance or quality of his goods. And injurious falsehood
10 For the suggestion that it cannot, see Sales and Stilitz, ‘Intentional Infliction of Harm by
Unlawful Means’ (1999) 115 LQR 411.
See Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569.
See generally, Rodger and MacCulloch (eds), The UK Competition Act: A New Era for UK
Competition Law (2000).
13 [1921] 3 KB 40, at 79, CA. For the origins of the doctrine of free competition within the
common law, see the Case of Gloucester Grammar School (1410) YB 11 Hen 4 fo 47 pl 21.
14. Modern competition law is governed by Arts 81 and 82 of the EC Treaty (which treaty is
directly applicable in England) and the Competition Act 1998. Discussion of these instruments
is beyond the scope of this book; but see MacCulloch, ‘Private Enforcement of the Competition
’ Act Prohibitions’ in Rodger and MacCulloch (eds), The UK Competition Act: A New Era for UK
Competition Law (2000).
15 But note deceit may also be relevant in other ‘classic’ economic torts: Lonrho plc v Fayed
[1990] 2 QB 479, CA.
‘punishes’ the trader who falsely disparages his competitors. All these torts are in a
very real sense ‘unfair competition’ torts, and are fully discussed in the next chapter.
Secondly, there are the classic economic torts of inducing breach of contract,
conspiracy, intimidation‘and so on. These are the torts which Lord Diplock has now
suggested belong to one ‘genus’ of unlawful acts interfering with trade or business.
Historically, these torts were seen (and taught) as almost exclusively labour law torts
of little interest to mainstream tort students. It was the bitter and long-running litigation
over the takeover of Harrods ‘liberated’ them from their labour law straightjacket.'®
Thirdly, and finally, there is a growing group of torts concerned with the protection of
intellectual property. Many are largely statutory — eg, actions for breach of copyright
and infringement of patents — but the residual action for breach of confidence remains
subject to development by the common law, especially in the light of the Human Rights
Act 1998.”
The categories of torts concerned with economic interests will be dealt with in the
order outlined above. No attempt will be made to outline or consider in any detail the
immunities of trade unions in respect of torts in the second category. The emphasis
will be placed on the broad function of these torts in the context of fair competition,
and the civil rights of employers and workers. Detailed examination of statutory
provisions for breach of copyright etc, also fall beyond the scope of this book. As
such, the chapter on the third category of intellectual property torts is short and
intended simply to complete the picture of liability in respect of interference with
economic interests (albeit in introductory fashion).
Section 3. Economic loss and negligence

An attempt must now be made to answer the question posed earlier of whether the
common law can rationally impose liability for negligent violation of economic interests
while intentional violations remain non-actionable. Two primary issues need to be
considered. Do the reasons for not imposing liability in respect of intentional violations
apply with equal force to negligence? If it is correct to explain the basic principle of
liability for intentional interference with economic interests in terms of a ‘genus’ tort of
liability for any unlawful act violating economic interests, can negligence be regarded
as a further ‘species’ of unlawful act?
The rationale for regarding the ‘right’ to pursue a trade or livelihood as a freedom to
carry on that trade or livelihood (as opposed to a right accorded the same status as the
right to bodily security), derives from the judicial perception of the demands of free
competition. Just as | am free to set up in business as a greengrocer, and to choose to
whom I will sell and from whom I will buy my produce, so is my neighbour generally
free'® to do the same regardless of whether it drives me out of business. The market
16 See Lonrho plc v Fayed [1992] 1 AC 448, HL.

17 See Phillipson and Fenwick, “Breach of Confidence as a Privacy Remedy in the Human Rights
Act’ (2000) 63 MLR 660. See also Douglas v Hello! Ltd (No 6) [2003] EWHC 786 for the
latest appellate judicial statement on the scope of this action.
18 His rights are, of course, subject to legal restrictions such as the prohibition of the abuse of a
dominant market position contained in Art 82 of the EC Treaty.
Interference with economic interests \\7
economy encourages success, and it favours the survival of the fittest. But if my
business suffers because of another’s negligence — eg, ifa careless contractor fractures
a gas main and the road leading to my shop is blocked off for several days while repairs
are carried out — there is no harm done to the doctrine of free competition in imposing
liability upon the negligent actor. Indeed, the opposite is the case: a competitive
economy requires that each enterprise should maximise its skill, enhance its own
profitability and offer the optimum service.
So let us turn to the second question of whether negligence can properly be regarded
as a ‘species’ of ‘unlawful act’ in this context (if there is no reason derived from the
principle of free and fair competition that negligent interference with economic interests
should not be actionable). The first point to note is that mere carelessness can no more
constitute a tort in relation to economic interests than malicious or spiteful motives on
their own. A negligently caused explosion in South Manchester which because of the
vagaries of the city’s ancient sewage system results in part of the city centre being
blocked to traffic for several hours will not, and should not, result in liability for all the
consequent business losses. However, where the relationship of the claimant and the
defendant is sufficiently close that the claimant relies and depends upon the care and
skill of the defendant to safeguard his economic interests, a failure to exercise that skill
—a breach of duty, in other words — can be regarded as an unlawful act creating liability
for the ensuing loss subject to two possible caveats.
The first concerns the respective roles of contract and tort. At one time, it might have
been thought that no liability should be imposed by the law of tort in favour of C where
he had no contract with D in respect of the provision of goods or services upon which
Crelies.'? However, in the light of the broadening of liability ushered in by the Contracts
(Rights of Third Parties) Act 1999, and the House of Lords decision in White v Jones,”°
it may well be that the courts would now be more receptive to negligence claims in this
context than in the past.’!
The second, probably firmer, caveat relates to the implications of liability for negligently
inflicted economic loss. Where would the limits of liability be drawn to avoid the
spectre of liability ‘in an indeterminate amount for an indeterminate time to an
indeterminate class’.” Both caveats illustrate the very real problems of defining the
scope of any duty to avoid negligently inflicted economic loss; yet neither constitutes
an unanswerable case that such loss should never be recoverable in tort. They do,
however, support the general stance that recovery for pure economic loss should be
the exception rather than the rule. To put it crudely, the law will always be readier to
require others to take care to protect you from physical harm than to demand that they
look after your financial and other economic interests for no reward.
19 See Cane, ‘Contract, Tort and Economic Loss’ in Furmston (ed), The Law of Tort (1986).
20 [1995] 2 AC 207, HL. See the discussion in Murphy, ‘Expectation Losses, Negligent Omissions
‘and the Tortious Duty of Care’ [1996] CLJ 43.
21 Murphy v Brentwood District Council [1991] 1 AC 398, HL.
22 Ultramares Corpn v Touche 174 NE 441, at 444 (1931), per Cardozo J; Caparo Industries ple
v Dickman [1990] 2 AC 605, HL.
Section 4. Economic torts and economic regulation”?

The discussion so far in this chapter has largely ignored the important fact that the
principle of free competition has been reshaped considerably by the Parliamentary
endeavour to eliminate unfair trade practices™* and the judiciary’s comparatively recent
insistence that free competition be fair competition.” These developments must be
noted as we examine the scope of the economic torts in 2003.
23 See Carty, , An Analysis of the Economic Torts (2001).

24 Competition Act 1998. For analysis see Rodger and MacCulloch, The UK Competition Act: A
New Era for UK Competition Law (2000).
25 See, eg, Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] 2 All ER 927, at 933, HL,
where Lord Diplock noted that the ‘increasing recognition by Parliament of the need for more
rigorous standards of commercial honesty is a factor which should not be overlooked by a judge
confronted by the choice whether or not to extend by analogy to circumstances in which it has
not previously been applied in a previous case whether the circumstances although different
had some features in common with those of the case which he has to decide’.
CHAPTER 8
False representations
Section |. Deceit
The use of deliberately false representations on which the claimant is induced to, and
does, rely to his detriment has for more than 200 years been actionable by means of the
tort of deceit.' Judicial recognition that fraud never constituted fair competition has a
much longer history,’ but whether earlier authorities are founded in contract, equity or
tort is a matter for the legal historian. What is still crucially important is the fact that the
law relating to misrepresentations cannot be understood fully by considering tort
alone. A misrepresentation may concurrently create rights of action in tort and contract.
A misrepresentation not actionable in tort may give rise to a right to rescind a contract,
and misrepresentations unconcerned with contract may create an estoppel. The
relationship between common law and equitable remedies for misrepresentation further
complicate the picture.
The development of the separate tort of deceit, with which we are concerned in this
chapter, dates from the decision in Pasley v Freeman.
D falsely misrepresented to C that X was a person to whom C might safely sell
goods on credit. C suffered loss by relying on this representation and had an
action on the case for deceit.
The tort has been defined in terms of several key elements. It is:
a false representation made by D knowingly, or without belief in its truth or
recklessly, careless whether it be true or false, with the intention that C should
act in reliance upon the representation, which causes damage to C in consequence
of his reliance upon it.
1 Pasley v Freeman (1789) 3 Term Rep 51.

2 There has been a writ of deceit since 1201.
3. (1789) 3 Term Rep 51.
(A) False representation

od
Usually the representation will consist of written or spoken words. But it may be
assumed that any conduct calculated to mislead will suffice* — eg, turning back the
mileage indicator on the»odometer of a car when negotiating its sale. Furthermore,
‘[w]here the defendant has manifestly approved and adopted a representation made
by some third person’ he may himself commit the tort.. Where a statement is
simultaneously capable of bearing a true and a false interpretation, and the defendant
knows of the false one, there is a false representation for present purposes.°
Active concealment of the truth whereby the claimant is prevented from getting
information which he otherwise would have got is a sufficient misrepresentation
although no positive misstatement is made.’ And although mere non-disclosure is not
enough,® a statement which is misleading because it is incomplete may be actionable.
Thus, Lord Cairns held in Peek v Gurney:° ‘there must ... be some active misstatement
of fact, or, at all events, such a partial and fragmentary statement of fact, as that the
withholding of that which is not stated makes that which is stated absolutely false’.
Where a statement by the defendant was accurate when made but, owing to a change
of circumstances of which the defendant has become aware, it ceases to be true, there
is an actionable misrepresentation if the defendant, by remaining silent, induces the
claimant to act on the basis of the original statement, as Jncledon v Watson illustrates.'°
In an advertisement for the sale of his school, D stated the number of scholars at
that time. That statement was not proved to be inaccurate. During the course of
negotiations, the number decreased. C, who bought on the faith of the
representation, and who was not informed of the reduction, was held to have an
action in deceit for damages.
This case illustrates that what counts is whether the statement is false when the
claimant acts upon it.'' There is some,'* albeit inconclusive, support for the view that
an action lies if the defendant, though believing the statement to be true when he made
it, later learns of its falsity but does not disclose this to the claimant who subsequently
relies on that statement. There are contracts in which, because only one party can
know the material facts — eg, contracts of insurance — that party has a legal duty to
4 Cf R v Barnard (1837) 7 C & P 784.

Nn Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205, at 211, HL,
per Lord Maugham.
6 Smith v Chadwick (1884) 9 App Cas 187, at 201, HL, per Lord Blackburn. If the court
construes documents as false, but is not satisfied that D intended to give them that false
meaning, he is not liable in deceit: Gross v Lewis Hillman Ltd [1970] Ch 445, CA.
7 Cf Schneider v Heath (1813) 3 Camp 506 (buyer of ship obtained rescission of a contract
induced by seller taking ship from slipway into water, thereby concealing its rotten timbers).
8 There is generally no duty of candour. Even in the exceptional case of insurance contracts,
avoidance of the contract (rather than an action in deceit) is the appropriate remedy: Banque
Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd [1990] 1 QB 665; HIH. Casualty and
General Insurance Ltd v Chase Manhattan Bank [2001] EWCA Civ 1250, [2001] 2 Lloyd’s
Rep 483.
9 (1873) LR 6 HL 377, at 403, HL. See also Banque Financiére de la Cité v Westgate Insurance
Co Ltd [1990] 2 All ER 947, at 955, HL.
10 (1862) 2 F & F 841; Jones v Dumbrell [1981] VR 199.
11 Cf Briess v Woolley [1954] AC 333, HL.
12 Brownlie v Campbell (1880) 5 App Cas 925, at 950, HL, per Lord Blackburn (obiter)
False representations \2\
disclose material information. Upon breach of this duty the contract is voidable. Whether
that failure to disclose amounts to the tort of deceit is undecided.
(B) Knowledge of falsity

Derry v Peek" establishes that, in order to make the defendant liable, he must have
made the statement ‘knowingly, or without belief in its truth, or recklessly, careless
whether it be true or false’. In short, the claimant must prove that the defendant did not
honestly believe it to be true.'* It is not deceit merely because he has no reasonable
grounds for believing it. The facts of the case show how onerous this burden may be.
A company was empowered by private Act to run trams by animal power, or, if
the consent of the Board of Trade was obtained, by steam power. The directors,
believing that the Board of Trade would give this consent as a matter of course
(since the Board of Trade raised no objection when the plans were laid before it),
issued a prospectus saying that the company had the power to run trams by
steam power. Relying on this prospectus, the respondent bought shares in the
company. The Board of Trade eventually refused its consent, and later the
company was wound up.
The House of Lords held that an action in deceit against the directors failed because
no want of honest belief on the part of any director was established by the respondent."
Their Lordships have further held that before a barrister could put his signature to an
allegation of fraud, he must have received instructions to do so and have evidence
before him to make good the allegation.'® The receipt of instructions was not enough
in itself. And however negligent a defendant may be, that is not sufficient to make him
liable in deceit.
(C) Intention to deceive

The claimant must prove that the statement was ‘made with the intention that it should
be acted upon by the claimant, or by a class of persons which will include the claimant’.'’
Thus, a deceit action may be based on an advertisement in a newspaper if the claimant
shows that he was one of a class of persons at whom the advertisement was directed.'*
Lord Cairns in Peek v Gurney’? might be taken as saying that the claimant must prove
that the defendant ‘intended’ — in the sense that he desired or had the purpose — that
13. (1889) 14 App Cas 337, at 374, HL, per Lord Herschell.
14 Although C need not shoulder a criminal standard of proof, his burden of proving fraud is
stricter than that of the ordinary civil standard: see Hornal v Neuberger Products Ltd [1957]
1 QB 247, CA.
15 But see now Companies Act 1985, ss 67-69 (statutory liability for false prospectuses). See also
Niru Battery Manufacturing Co v Milestone Trading Ltd [2002] EWHC 1425 (Comm), [2002]
All ER (Comm) 705 (director liable for personal instigation and procurement of a
misrepresentation).
16 Medcalf vMardell [2002] UKHL 27, [2002] 3 All ER 721.
17 Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205, at 211, HL,
per Lord Maugham. .
18 Richardson v Silvester (1873) LR 9 QB 34 (C misled by false advertisement in press that a farm
was for sale).
19 (1873) LR 6 HL 377.
the claimant should act on the statement. Intention is, however, best interpreted in the
way in which it is normally interpreted in torts: that is, if the misrepresentation is
calculated, or if its natural and necessary consequence is to induce the claimant, then
the defendant’s conduct is intentional.’
A misrepresentation need not be communicated to the claimant by the defendant,
provided that the defendant intended that it be communicated to him and that he rely
on it. In Pilmore v Hood"! the facts were as follows.
A, who was negotiating the sale of a public house to B, made certain false
statements to B concerning the takings of the public house. The transaction fell
through. To A’s knowledge, B passed on to C these false statements. A then sold
to C without correcting these statements and was held to be liable to him in
deceit.
The claimant must also have been influenced in the manner intended. If, therefore,
company promoters issued a prospectus to the claimant, who bought shares (not by
subscribing to this issue, but subsequently on the market), and the prospectus was
not calculated to influence market dealings, no action would lie.” The motive of the
defendant is irrelevant; it is no excuse that the defendant who made a false statement
about shares of some company genuinely believed that investment in that company
would be advantageous to the claimant,”’ and still less that the defendant did not
intend the claimant to suffer any loss in consequence of the misrepresentation.”*
However, promoters will be liable for this tort where they issue false information about
a company to inflate the market value of shares in that company for their personal
gain.”
(D) Reliance of the claimant

The claimant must prove that the misrepresentation of the defendant both influenced
him’° and caused him to act to his own prejudice as he did.”’ The action lies if the
misrepresentation was only one of several factors acting upon the mind of the claimant.
If the court is satisfied that the false statement was ‘actively present to his mind’ when
he acted, it will not readily hold that the claimant might nevertheless have acted as he
did, even if the false statement had not been made.** The courts sometimes say that
20 Polhill v Walter (1832) 3 B & Ad 114; Richardson v Silvester, supra, and see support for this
view in Peek vy Gurney, supra, at 399 and 401, HL, per Lords Chelmsford and Colonsay.
21 (1838) 5 Bing NC 97. See also Langridge v Levy (1837) 2M & W 519.
22 Peek v Gurney, supra, had similar facts. Cf Andrews v Mockford [1896] 1 QB 372, CA. The
Stock Exchange now makes a public advertisement of an issue a condition precedent to the
grant of a market quotation, and intention to induce marketing dealings will presumably now
be imputed.
23 Smith v Chadwick (1884) 9 App Cas 187, at 201, HL, per Lord Blackburn.
24 Brown, Jenkinson & Co Ltd v Percy Dalton (London) Ltd [1957] 2 QB 621, CA.
25 Possfund Custodian Trustee Ltd v Diamond [{1996] 2 All ER 774.
26 Downs v Chappell [1996] 3 All ER 344, CA.
27 Smith v Chadwick (1884) 9 App Cas 187, HL; MacLeay v Tait [1906] AC 24, HL. There must
be some conduct of C’s in reliance on the representation. Harmful effects produced directly on
C (eg, if the false statement causes him to be ill) are not the subject of a claim for this tort, even
though C does not recover in the same action for loss suffered through acts performed in
reliance: Wilkinson v Downton [1897] 2 QB 57.
28 Edgington v Fitzmaurice (1885) 29 Ch D 459, CA.
False representations 123
the misrepresentation must be material; they mean that if the claimant acted in a way
that a person was likely to act in reliance on the statement of the defendant, this would
be prima facie evidence that he did so rely on it.” Furthermore, the fact that the
claimant acted foolishly is of no moment, for there is no scope for invoking the defence
of contributory negligence in the context of deceit.°°
It is sometimes doubted whether a misrepresentation of an opinion is actionable. Of
course, there is an area of privilege to tell untruths without liability in deceit. An
example is the seller who inflatedly describes his house as highly desirable and
commodious — such sales talk does not constitute actionable misrepresentation. Further,
if both parties have equal access to information about goods, and one falsely describes
them as first class, then no action lies. When, however, the opinion purports to impart
information to another who is not on an equal footing — eg, if a dealer states to a
customer that a new machine of the type sold by him can lift 5,000 Ibs — an action will
he?
The same general principles govern statements of law.* If the representations refer to
legal principles as distinct from the facts on which these principles operate, and the
parties are on an equal footing, those representations are only expressions of belief
and of the same effect as expressions of opinion between parties on an equal footing.
In other cases where the defendant professes legal knowledge beyond that of the
claimant, the ordinary rules of liability for deceit apply.
It is equally confusing to state that a misrepresentation of intention is never an actionable
deceit. Certainly, if a defendant promises to do something and fails to carry out his
promise, the claimant must ordinarily look to the law of contract for his remedy. If,
however, the defendant at the time of his statement lacks either the will or the power to
carry out the promise, there is a misrepresentation capable of giving rise to liability for
deceit. Thus, it was actionable to state in a company’s invitation to the public to
subscribe to an issue of debentures that the loan was being floated in order to improve
buildings, when the real purpose was to discharge existing liabilities.**
Contributory negligence has been held to be no defence in a deceit action. A claimant
who relied on the statement made by the defendant about the turnover of a public
house which was to be sold was successful in an action in deceit although, had he
availed himself of the opportunity of examining the accounts afforded by the defendant,
he would have discovered the error.** On the other hand, a claimant who is aware of
the falsity,’> and, perhaps, one who is misled by any patent defect,** cannot recover.
29 Arnison v Smith (1889) 41 Ch D 348, at 369, CA, per Lord Halsbury ILC.
30 Standard Chartered Bank v Pakistan National Shipping Corpn (Nos 2 and 4) {2002] UKHL
43, [2003] 1 AC 959.
31 Cf Brown v Raphael [1958] Ch 636, CA.
32 West London Commercial Bank Ltd v Kitson (1884) 13 QBD 360, CA.
33 Edgington v Fitzmaurice (1885) 29 Ch D 459, CA.
34 Dobell v Stevens (1825) 3 B & C 623.
35 He is not taken to know of facts coming to the knowledge of his agent where the agent did not
acquire that knowledge in his capacity as agent for C: Wells v Smith [1914] 3 KB 722.
36 Cf Horsfall vy Thomas (1862) 1 H & C 90.
(E) Loss
There is no cause of action unless the claimant proves that he has sustained loss or
damage.*’ Ordinarily, the damages will be for pecuniary loss, but damages for personal
injuries** and for loss of property®” are also recoverable.
The claimant is entitled to recover all the actual damage directly flowing from the fraud,
even though not foreseeable. If he is induced by fraud to buy business property he
can claim not only the difference between the price and market value, but also, for
example, expenses reasonably incurred in trying to run the business fraudulently sold
to him,*° interest on loans entered into to facilitate the purchase of the property,*' and
the loss of the profit which he might reasonably have earned but for the defendant’s
deceit.”
It is unclear whether exemplary damages can be awarded in deceit. The availability of
exemplary damages in this tort depends on the weight to be attributed to Lord Devlin’s
endeavour in Rookes v Barnard to restrict exemplary damages to three classes of
conduct. Certainly, aggravated damages for injury to feelings and dignity may be
awarded in deceit.*
(F) Agency
Agency is generally of little relevance in the law of torts. But deceit provides an
exception to this rule. As well as being vicariously liable for false statements made by
agents who are employees, a principal may also be liable for representations, made on
his behalf by independent persons acting for him in relation to a particular transaction
—eg, an estate agent or broker. A principal who expressly authorises a statement which
he and the agent know to be untrue is liable with the agent as a joint tortfeasor. He is
vicariously liable for statements known to be untrue by the agent and will further be
liable where one agent passes on to another information which he knows to be false in
37 Damage need not be proved in order to obtain rescission: Goldrei Foucard & Son v Sinclair
and Russian Chamber of Commerce in London [1918] 1 KB 180, at 192, CA, per Sargant LJ;
Lempriere v Lange (1879) 12 Ch D 675 (infant, on becoming tenant, made a false representation
— landlord could rescind although he could not recover damages for value of use and occupation).
38 Langridge v Levy (1837) 2 M & W 519; Graham v Saville [1945] 2 DLR 489 (CA Ontario)
(C was induced to ‘marry’ D by D’s fraudulent claim that he was a bachelor. C became pregnant
by D and later recovered damages in deceit for physical injuries consequent on the pregnancy
and for reduced matrimonial prospects).
39 Mullett v Mason (1866) LR | CP 559 (fraudulent misrepresentation that a cow was free from
disease; the loss of five other infected cows was also held recoverable in deceit).
40 Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158, CA; Banque Bruxelles Lambert SA v Eagle
Star Insurance Co Ltd [1997] AC 191, HL.
41 Archer v Brown [1985] QB 401 (loss resulting from C’s impecuniosity did not prevent its
recovery).
42 East v Maurer [1991] 2 All ER 733, CA. Clef Aquitaine Sarl v Laporte Materials (Barrow) Ltd
[2001] QB 488, CA.
43 Mafo v Adams [1970] 1 QB 548; Archer v Brown, supra; Metall und Rohstoff AG v ACLI Metals
(London) Ltd [1984] 1 Lloyd’s Rep 598, CA. See more generally, Law Commission Report,
Exemplary, Aggravated and Restitutionary Damages Law Com No 247 (1997).
44 [1964] AC 1129, HL.
45 Archer v Brown, supra; Shelley v Paddock [1980] QB 348, CA; Saunders v Edwards [1987] 2
All ER 651, CA. But note the doubts of the Court of Appeal regarding aggravated damages
generally in Gibbons v South West Water Services Ltd [1993] QB 507, CA.
order that the second ‘innocent’ agent may pass it on to the claimant who then acts on
it to his detriment.** It is unclear whether, if an agent makes a statement without
knowing it to be untrue, and without authority to make that statement, the principal is
liable in deceit if he would have known of the falsity of the statement.’”
The key question in relation to liability for deceit by agents is generally whether the
false representation was made within the scope of the agent’s actual or ostensible
authority. Was it a representation which the agent was actually authorised to make, or
which the principal’s conduct of affairs allowed him to appear to be authorised to
make?** At any rate, where the agent is also an employee” the fact that he sets out to
deceive his employer as well as the claimant, and intends to benefit himself alone, will
not relieve the principal from liability for the agent’s deceit.’ But the false representation
must be one which the agent had ostensible authority to make. The principal will not
be liable simply because the agent is his employee. For the purposes of the tort of
deceit, the employee’s course of employment is delimited by the scope of his
authority.*' Lord Keith explained the rationale of the rule governing a principal’s
vicarious liability for deceit thus:
In the end of the day the question is whether the circumstances under which a
servant has made a fraudulent representation which has caused loss to an
innocent party contracting with him are such as to make it just for the employer
to bear the loss. Such circumstances exist where the employer by words or
conduct has induced the injured party to believe that the servant was acting in
the lawful course of the employer’s business. They do not exist where such
belief, although it is present, has been brought about through misguided reliance
on the servant himself, when the servant is not authorised to do what he was
purporting to do, when what he is purporting to do is not within the class of acts
that an employee in his position is usually authorised to do and when the
employer has done nothing to represent that he is authorised to do it.
A principal whose agent has been bribed to induce him to enter into a transaction on
the principal’s behalf has a claim in tort against the briber for damages.** He cannot,
however, receive double compensation by pursuing both his equitable remedy to
recover the bribe from the agent and his tort action against the briber. He must elect
between these two remedies. Where an agent offers a bribe acting within the scope of
46 London County Freehold and Leasehold Properties Ltd v Berkeley Property and Investment
Co Ltd [1936] 2 All ER 1039, CA (as explained in Anglo-Scottish Beet Sugar Corpn Lid v
Spalding UDC [1937] 2 KB 607). _
47 Armstrong v Strain [1952] 1 KB 232, CA (held not to be tortious); but was this decision per
incuriam? See Woyka & Co v London and Northern Trading Co (1922) 10 HL Rep 110, CA.
48 In Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1982] AC 462, PC; Petrotrade
Inc v Smith [2000] 1 Lloyd’s Rep 486.
49 When the agent is not a servant and the fraud is initially aimed at the principal there will be no
vicarious liability to other victims of the fraud: Kwei Tek Chao v British Traders and Shippers
Ltd [1954] 2 QB 459.
50. Lloyd v Grace Smith & Co Ltd [1912] AC 716, HL.
51 Armagas Ltd v Mundogas SA, The Ocean Frost [1986] AC 717, IU,
7
52 [1986] AC 717, at 781, HL.
53. Mahesan S/O Thambiah v Malaysian Government Officers’ Co-operative Housing Society Ltd
[1979] AC 374, PC.
his actual or ostensible authority, the principal will be vicariously liable for that fraud
as much as for any other act of deceit. .
(G) Statute of Frauds Amendment Act 1828

By section 6 of the Statute of Frauds Amendment Act 1828:
No action shall be brought whereby to charge any person upon or by reason of
any representation or assurance made or given concerning or relating to the
character, conduct, credit, ability, trade, or dealings of any other person, to the
intent or purpose that such other person may obtain credit, money, or goods
upon, [sic] unless such representation or assurance be made in writing signed
by the party to be charged therewith.
The section prevents evasion of the Statute of Frauds (which requires guarantees to
be in writing) by suing in tort instead of contract, and, in interpreting it, the courts have
consistently taken heed of this legislative purpose.”
The Act does not apply to actions for breach of contract, and in all probability is
confined to ‘actions upon representations as such’.*° The signature of an agent does
not satisfy the requirements of the section.’ Even though the defendant has induced
the claimant to give credit to secure a pecuniary gain for himself, it seems the Act
applies.*®
(H) Misrepresentation Act 1967

The Misrepresentation Act 1967, s 2(1) enacts:
Where a person has entered into a contract after a misrepresentation has been
made to him by another party thereto and as a result thereof he has suffered loss,
then, if the person making the misrepresentation would be liable to damages in
respect thereof had the misrepresentation been made fraudulently, that person
shall be so liable notwithstanding that the misrepresentation was not made
fraudulently, unless he proves that he had reasonable ground to believe and did
believe up to the time the contract was made that the facts represented were true.
The important effect of this provision is that where the misrepresentation by a party
induces the claimant to enter into a contract with him, the claimant can recover damages
for resulting loss without proving fraud. A claimant may succeed under this Act although
he fails in negligence (for want of a duty of care), and the usual burden of proof is
reversed: the onus is on the representor to demonstrate his belief in the truth of the
54 The Ocean Frost [1986] AC 717, CA.

55 Lyde v Barnard (1836) 1 M & W 101; Banbury v Bank of Montreal [1918] AC 626, HL.
56 Banbury v Bank of Montreal [1918] AC 626, HL.
57 Swift v Jewsbury and Goddard (1874) LR 9 QB 301, Ex Ch. Signature on behalf of a company
by its duly authorised agent is, for the purposes of s 6, the signature of the company: UBAF Ltd
v European American Banking Corpn [1984] QB 713, CA.
58 So held the House of Lords when interpreting the equivalent provisions of a Scottish statute in
Clydesdale Bank Ltd v Paton [1896] AC 381, HL.
False representations \27
representation.” The Act does not extend the scope of the tort of negligence. Rather,
it generally extends the separate tort of deceit,” and the rules of deceit not negligence
will generally govern such issues as the measure of damages.*' However, contributory
negligence is available as a partial defence in a claim under the Act when liability under
the Act is concurrent with liability in common law negligence.”
Where the representation falls outside the scope of the Act — eg, where it is made by
a person who is not a party to the contract — the victim of negligence will still have to
rely on the tort of negligence. The 1967 Act does not impose liability on the agent
personally if he makes false representations to induce the making of a contract. His
liability, too, remains to be established at common law, in either deceit or negligence.”
Prior to the 1967 Act there were circumstances in which the victim of an innocent
misrepresentation could seek rescission of a contract although he could not have
sued for deceit. Section 2(2) of the Act now effectively provides the court with a
discretion to require the victim of an innocent misrepresentation to accept damages in
lieu of rescission. Rescission can be obtained although damage is not proven.
Presumably the court could award damages in lieu of rescission to a person who has
not proved damage.
Section 2. Passing off**

The action for deceit affords a remedy to businessmen who are the direct target of
fraudulent misrepresentation. By contrast, the tort of passing off protects traders
against misrepresentations aimed at their customers that are calculated to damage the
trader’s business or goodwill. The classic tort of passing off was limited to the use by
A of the trade name or trade mark ofa rival, B, with a view to inducing B’s customers to
believe that the goods were produced by B thus cashing in on B’s goodwill. But the
scope of the tort has gradually expanded during the 20th century so that in 1979, Lord
Parker described the right which is protected by this tort as the ‘property in the business
or goodwill likely to be injured by the misrepresentation’.®
This broader tort was tested in Erven Warnink BV v J Townend & Sons (Hull) Ltd®
C manufactured an alcoholic drink known as Advocaat. Its principal ingredients
were eggs and spirits with an admixture of wine. D had for several years
manufactured another alcoholic egg drink composed of egg and fortified wine
known as Egg Flip and up to 1974 marketed it under that name. Because of the
vagaries of the excise laws which impose higher duties on spirits than fortified
59 Howard Marine and Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd [1978] QB 574,
CA.
60 The Act does not apply where the representation was made by a third party, including the
defendant’s agent: Resolute Maritime Inc v Nippon Kaiji Kyokai [1983] 2 All ER 1.
61 Royscott Trust Ltd v Rogerson [1991] 2 QB 297, CA.
62 Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560.
63 Resolute Maritime Inc v Nippon Kaiji Kyokai [1983] 2 All ER 1.
64 See Carty, An Analysis of the Economic Torts (2000), ch 8.
65 AG Spalding & Bros v A W Gamage Ltd (1915) 84 LJ Ch 449, at 452, He
66 [1979] AC 731, HL. And see Associated Newspapers plc v Insert Media Ltd [1991] 3 All ER
535, CA; Mirage Studios v Counter-Feat Clothing Co Ltd [1991] FSR 145; Kimberley-Clark
Ltd v Fort Sterling Ltd [1997] FSR 877.
wine Egg Flip sold at a lower price than Advocaat. In 1974 D began selling their
product as Keeling’s Old English Advocaat and gained’a large share of the
English Advocaat market.
The House of Lords held that no-one was likely to be deceived into believing that the
defendants’ drink was Dutch Advocaat (ie, that they were buying the claimants’
product), and so no cause of action for passing off in its classic form arose.
Nevertheless, the name Advocaat was generally understood to denote a distinct species
of drink by virtue of which the claimants had built up their goodwill, and the defendants’
misrepresentation had induced the public to believe they were buying Advocaat causing
damage to the claimants’ business and goodwill. On these findings a cause of action
arose in tort.
Lord Diplock identified five characteristics necessary to found an action for passing
off in its wider form, namely:
(a) a misrepresentation;
(b) made by a trader in the course of trade;
(c) to his prospective customers, or to ultimate consumers of his goods;
(d) calculated to injure the business or goodwill of another trader; and
(e) which causes actual damage to the business or goodwill of the trader by whom
the action is brought, cr will probably do so.°’
This broad approach arguably unhinges the tort from its origins, purportedly protecting
‘business’ (a broad class of interests), rather than goodwill (as originally intended).
Thus, in a departure from preceding editions of this work, analysis of the tort will here
be undertaken in accordance with the tripartite framework of the tort that has regained
popularity in recent years, and which Lord Oliver has described as the ‘classic trinity’®
of misrepresentation, goodwill and damage.
(A) Misrepresentation
The first requirement in any passing off action is that the defendant must have made a
misrepresentation. As Lloyd J has stated, it is insufficient if there has been no
misrepresentation, for ‘people make assumptions, jump to unjustified conclusions...
[and] these are cases of non-actionable confusion’.”
(1) Kinds of misrepresentation

Misrepresentations may take many forms, and various titles may be applied to the
different kinds.”' Here, we simply note that they may take the following forms.”
67 [1979] 2 All ER 927, at 932, HL. See also the slightly more restrictive definition given by Lord
Fraser, at 943. Both opinions are considered in Anheuser-Busch Inc v Budejovicky Budvar NP
[1984] FSR 413.
68 Dworkin, ‘Unfair Competition: Is the Common Law Developing a New Tort?’ [1979] EIPR
241.
69 Reckitt & Colman Products Ltd v Borden Inc [1990] RPC 340, at 341, HL.
70 HFC Bank plc v Midland Bank plc [2000] FSR 176, at 201.
71 See, eg, Carty, An Analysis of the Economic Torts (2000), pp187-202.
72 The list in the text is not necessarily exhaustive. For example, in Francis Day and Hunter Ltd
v Twentieth Century Fox Corpn Ltd [1939] 4 All ER 192, at 199, PC, Lord Wright thought the
tort would be made out where people went to a performance of D’s work under the impression
that they were going to witness C’s work.
(A) MARKETING A PRODUCT AS THAT OF THE CLAIMANT

One must not market one’s product claiming falsely that it is the claimant’s product.”
(B) USING THE CLAIMANT’S NAME

To engage in the same line of business as the claimant and to use a similar name may
be passing off.” If the defendant carries on business in his own name (or one which he
has assumed for some time” ) then he does not commit this tort unless there are further
special circumstances showing dishonesty:’° he is entitled knowingly to take
advantage of the benefits which may accrue to him from the trade use of his own
name.”’ But if he confusingly describes his goods by his own name, it is no defence
that his use is bona fide.”* A company does not, however, acquire and incorporate the
individual rights of its promoters to carry on business under their names.”
(c) USING THE CLAIMANT’S TRADE NAME

To use the claimant’s trade name — that is, the designation adopted by the claimant to
identify goods or services he markets or supplies — may constitute misrepresentation
for the purposes of this tort. The following are examples.
To describe and sell sauce as ‘Yorkshire Relish’ was to commit a tort against the
original manufacturer of sauce under that name.*?
At the request of D, C used the name, ‘Dr Crock and his Crackpots’ when
broadcasting with his band on D’s programme. When C left this programme, he
was entitled to restrain D from putting another band on the programme with the
title ‘Dr Crock and his Crackpots’.*'
73 Lord Byron v Johnston (1816) 2 Mer 29 (D advertised poems as Byron’s when they were
written by another person with a different name); C G Vokes Ltd v F J Evans and Marble Arch
Motor Supplies Ltd (1931) 49 RPC 140, CA (CE Ltd were sub-contractors for C. It was held
that C could restrain D from passing off the wipers in question as those of C when D acquired
the wipers directly from CE Ltd. Because C normally inspected the wipers, D was deemed to
have done so in this instance).
74 Tussaud v Tussaud (1890) 44 Ch D 678; Boswell-Wilkie Circus (Pty) Ltd v Brian Boswell Circus
(Pty) Ltd [1985] FSR 434.
75 Jay’s Ltd v Jacobi [1933] Ch 411.
76 Sykes v Sykes (1824) 3 B & C 541. Cf Croft v Day (1843) 7 Beav 84. In Wright, Layman and
Umney Ltd v Wright (1949) 66 RPC 149, CA (D could use his own name, but committed passing
off once he traded as ‘Wright’s Chemical Co’).
77. John Brinsmead Ltd v Brinsmead and Waddington & Sons Ltd (1913) 29 TLR 237; on appeal
(1913) 29 TLR 706, CA; Burgess v Burgess (1853) 3 De GM & G 896. There is no similar
protection for a nickname: Biba Group Ltd v Biba Boutique [1980] RPC 413.
78 Parker-Knoll Ltd v Knoll International Ltd [1962] RPC 265, HL; W H Allen & Co v Brown
Watson Ltd [1965] RPC 191 (C published a very successful, unexpurgated edition of Frank
Harris’ My Life and Loves; D committed passing off when he bought the rights then published
an expurgated, abridged version under the same title).
79 Tussaud v Tussaud (1890) 44 Ch D 678. Nor has a foreign company a right to set up in England
in competitive business with C, a company of the same name: Sturtevant Engineering Co Ltd
v Sturtevant Mill Co of USA Ltd [1936] 3 All ER 137.
80 Powell v Birmingham Vinegar Brewery Co [1896] 2 Ch 54, CA.
81 Hines v Winnick [1947] Ch 708. Cf Forbes v Kemsley Newspapers Ltd [1951] 2 TLR 656
(Sunday Times could not publish articles under name of Mary Delane, unless they were written
by C, its former correspondent of that name).
If the trade name merely describes the goods or their characteristics, then ordinarily
the claimant cannot prevent others from using it. For eXample the terms vacuum
cleaner,’ gripe water,’ cellular textiles,** nourishing stout** and shredded wheat*°
may all be used with impunity. A very heavy burden of proof is cast on the claimant
who seeks to establish that a name which is merely descriptive of the product has
acquired a technical secondary meaning, so exclusively associated with the claimant’s
own products, that its use by others is calculated to deceive purchasers. This burden
was nonetheless discharged by the makers of ‘Camel Hair Belting’ in the leading case
of Reddaway v Banham.*’ The task is a little easier where the descriptive words
connect the product with the place of its manufacture: the manufacturers of “Glenfield
Starch’,** ‘Stone Ales’®? and ‘Chartreuse liqueurs’,*® have all succeeded in passing
off actions.
The courts are much more willing to protect the use of a fanciful name, namely one that
does not describe the quality of the goods — for example, ‘Apollinaris’.”' It has been
suggested, however, that a person originally entitled to protection for a fanciful name
may lose that right if the name later becomes a mere description of the type of product
rather than a word associated with goods of the claimant.” Yet no case confirms
this,” and the attempt failed in Havana Cigar and Tobacco Factories Ltd v Oddenino™
C was the original manufacturer of Corona cigars. D supplied other cigars as
Corona cigars. C successfully sued in passing off, the court rejecting D’s argument
that the word no longer described a brand of cigar, but only a particular size of
cigar.
(D) USING THE CLAIMANT’S TRADE MARK”?

It may be tortious to use the claimant’s trade mark — that is, a design, picture or other
arrangement affixed by him to goods which he markets so as to identify them with
him.”°
82 British Vacuum Cleaner Co Ltd v New Vacuum Cleaner Co Ltd [1907] 2 Ch 312.
83 Re Woodward’ Trade Mark, Woodward Ltd v Boulton Macro Ltd (1915) 85 LJ Ch 27.
84 Cellular Clothing Co v Maxton and Murray [1899] AC 326, HL.
85 Raggett v Findlater (1873) LR 17 Eq 29.
86 Canadian Shredded Wheat Co Ltd v Kellogg Co of Canada Ltd {1938] 1 All ER 618, PC.
87 [1896] AC 199, HL.
88 Wotherspoon v Currie (1872) LR 5 HL, 508, HL.
89 Montgomery v Thompson [1891] AC 217, HL.
90 Rey v Lecouturier [1908] 2 Ch 715; affd sub nom Lecouturier v Rey [1910] AC 262, HL.
91 Apollinaris Co Ltd v Norrish (1875) 33 LT 242.
92 Eg Ford v Foster (1872) 7 Ch App 611 (obiter).
93 The cases usually cited here are Liebig’s Extract of Meat Co Ltd v Hanbury (1867) 17 LT 298
and Lazenby v White (1871) 41 LJ Ch 354n. A further case, much more in point is G H Gledhill
& Sons Ltd v British Perforated Toilet Paper Co (1911) 28 RPC 429, CA. In Norman Kark
Publications v Odhams Press Ltd [1962] 1 All ER 636, C lost the protection of a trade name
in a magazine seven years after its amalgamation with another magazine.
94 [1924] 1 Ch 179, CA. The same outcome was reached in Antec International Ltd v South
Western Chicks (Warren) Ltd [1998] 18 LS Gaz R 32 (‘farm fluid’ was held to be a trade name
— derived from Antec Farm Fluid S — and not merely a generic term).
95 Compare the related wrong of infringement of a trade mark under the Trade Marks Act 1994.
But note that under that Act, there is no need to prove goodwill in a trade mark: Fisons ple v
Norton Healthcare Ltd [1994] FSR 745.
96 Millington v Fox (1838) 3 My & Cr 338; Singer Machine Manufacturers v Wilson (1877) 3
App Cas 376, at 391-2, HL, per Lord Cairns LC.
False representations 13\
The Trade Marks Act 1994, s 2(2) expressly preserves the common-law action of passing
off in respect of trade marks. This may be a valuable resort where the claimant fails to
prove registration, or where the registration does not extend to the goods in question,
or where it is invalid. In such cases, the statutory action for infringement of the
claimant’s trade mark will fail and it will be necessary to have recourse to the common-
law action.
(E) IMITATING THE APPEARANCE OF THE CLAIMANT’S GOODS
To imitate the appearance of the claimant’s goods may be passing off (especially
where this is accompanied by other sources of confusion, such as a similar name” ).
So, where claimants had for over 30 years marketed lemon juice in a distinctive yellow
plastic squeeze-pack shaped like a natural lemon, they could maintain an action for
passing off against the defendants who produced their juice in a similar container.
They were entitled to protect the distinctive ‘get-up’ of their product.”
If the appearance complained of is dictated by functional considerations — eg, the
purpose or performance of the goods, or simplicity in handling or processing them —
the courts will be reluctant to interfere. An action to prevent the use by the defendant
of the normal shape of shaving stick container accordingly failed.” Yet the manufacturer
of laundry blue which had a knobbed stick through the middle of the container was
able to prevent the defendant from marketing a product similar in appearance, since he
satisfied the court that this appearance was more than merely functional — the defendant
was at liberty to have a stick in his product, but not one of the same ‘get-up’ as the
claimant’s.'” Protection will not be afforded where the defendant’s product is merely
similar to that of the claimant in particulars which are common to all types of that
manufactured product.!”!
(F) SELLING GOODS INFERIOR TO CLAIMANT'S GOODS, THEREBY MISLEADING THE PURCHASER
A defendant must not sell goods which are in fact, and which are described as, the
goods of the claimant, but which are of a quality inferior to that of the normal new and
current product of the claimant, in such a way as to cause prospective purchasers to
believe that the goods are the normal, new and current product of the claimant.
Thus, the manufacturers of Gillette razor blades obtained an injunction restraining the
defendant from selling used Gillette blades as ‘genuine’ ones.'” On the other hand, a
97 Massam v Thorley’ Cattle Food Co (1880) 14 Ch D 748, CA.

98 Reckitt & Colman Products Ltd v Borden Inc [1990] 1 All ER 873, HL.
99 JB Williams Co v H Bronnley & Co Ltd (1909) 26 RPC 765, CA.
100 William Edge & Sons Ltd v William Niccolls & Sons Ltd [1911] AC 693, HL.
101 Jamieson & Co v Jamieson (1898) 14 TLR 160, CA.
102 Gillette Safety Razor Co and Gillette Safety Razor Ltd v Franks (1924) 40 TLR 606. Cf AG
Spalding & Bros v AW Gamage Ltd (1915) 84 LJ Ch 449, HL (D restrained from selling C’s
footballs with the false inference that they were of the type currently marketed by C); Wilts
United Dairies Ltd v Thomas Robinson Sons & Co Ltd [1958] RPC 94, CA (D sold canned milk
under C’s trade name without revealing that the contents were appreciably older than those
‘habitually marketed by C); Morris Motors Ltd v Lilley [1959] 3 All ER 737 (D sold a car as a
‘new Morris’ when he bought it from a retail customer who had taken delivery of it as a new car
immediately before. D was representing himself as authorised by C, the car manufacturers, and
that passing off therefore injured the goodwill of C).
x
general dealer in a working-class area who advertised in his shop: ‘All types of electric
lamps and fittings at cut prices’ was held not liable in passing off to the manufacturers
of Osram lamps for selling old Osram lamps, because it was not established that his
acts were calculated to deceive the public into thinking that new lamps were being
offered for sale.'°? Judicial reluctance to decide the respective merits of various
products'™ led to a denial of a remedy in Harris v Warren and Phillips. 105
The publishers of a songwriter, who had recently attained fame, were unable to
restrain D from passing off as new work the writer’s early work (in which D had
the copyright, and which, it was contended, was of greatly inferior quality to her
latest work) as new work. The court held that it could draw no sharp dividing line
between the quality of her early and her recent songs.
(s) FALSE ADVERTISING
False advertising is largely governed by regulations which provide for complaint to

the Director of Fair Trading.'°° However, three cases illustrate when false advertising
may also amount to passing off. The first is Cadbury Schweppes Pty Ltd v Pub Squash
CoPidsds?
C successfully launched a new canned lemon drink with a big media advertising
campaign. The following year, D launched a similar drink with a media campaign
in which D imitated the slogans and visual images of C’s advertising. It was held
that such advertising could be passing off, but the action failed: C failed to
prove that there had been a confusing misrepresentation.
In Masson Seeley & Co Ltd v Embosotype Manufacturing Co,'* D deliberately

created a market for their goods by copying C’s catalogue so as to induce the
public to believe that goods offered by D were those of C — customers of C
normally ordered goods by reference to certain coined key words in the catalogue,
and D used the same artificial words in their catalogue. Although D’s goods
were inferior to those sold by C, this was held to be passing off.
In Associated Newspapers plc v Insert Media Ltd,'”” D arranged to insert
advertising material into C’s newspapers without their authority. Readers would
assume that the newspaper had sanctioned the inserts, with consequent potential
damage to C’s reputation and goodwill. D’s conduct was found to constitute a
misrepresentation amounting to passing-off.
General Electric Co and British Thomson-Houston Co v Pryce’s Stores (1933) 50 RPC 232.
104 Cf White v Mellin [1895] AC 154, HL.
105 (1918) 87 LJ Ch 491.
106 Control of Misleading Advertisement Regulations (SI 1988 No 915) as amended by the Control
of Misleading Advertisements (Amendment) Regulations (SI 2000 No 914).
107 {1981] 1 All ER 213, PC. Cf United Biscuits (UK) Ltd v Asda Stores Ltd [1997] RPC 513
(launching and advertising a biscuit called ‘Puffin’, which was presented in a similar manner to
C’s market leader, called ‘Penguin’, was passing off).
108 (1924) 41 RPC 160. Cf Purefoy Engineering Co Ltd v Sykes Boxall & Co Ltd (1955) 72 RPC
89, CA.
109 [1991] 3 All ER 535, CA.
On the other hand, if the defendant merely makes inflated claims about his own product,
a rival may not sue for passing off even though he thereby suffered loss.!!°
(H) CHARACTER MERCHANDISING

The developing trade of character merchandising allows great profits to be made from
exploiting the popularity of famous television characters, both real and fictional. In
particular, children’s cartoons have spawned industries of their own. Having seen the
Teenage Mutant Ninja Turtles on television, child viewers pestered their parents for
Turtle paraphernalia such as turtle mugs. Recognising that unlicensed distributors
would try to cash in on the craze an injunction was granted to prevent unauthorised
use of the ‘Turtle’ connection in Mirage Studios v Counter-Feat Clothing.'"'
(2) Representation must be likely to deceive the claimant’s customers

The misrepresentation must be made either to prospective customers of the claimant
or to ultimate consumers of goods or services supplied by him.''? It must also be likely
to deceive them. Likelihood of deceit is a question of law: the judge must decide on the
balance of probabilities whether a substantial number of the members of the public
would be misled by the representation.''’ In assessing this, the court will take account
of who the likely customers for the product or service are.''4 Thus, although the
ordinary standard to be applied is that of the unwary member of the public,'!> if the
particular trade is exclusively with experts, the test must be whether such an expert is
likely to be deceived.''® To an extent, then, each case must be decided on its own facts,
in the light of the particular product or service in question. One case that illustrates
this point involved a defendant who put a design of two elephants on yarn tickets of
material to be sold in rural districts of India, the fact that his design was different from
that of the two elephants pictured on the claimant’s yarn tickets did not prevent the
House of Lords from finding for the claimant.'"’
110 BBC v Talksport Ltd [2001] FSR 53 (BBC lost audience when Talksport misrepresented that
their commentators were broadcasting live from a football stadium: no remedy was available
because there was no injury to goodwill).
111 [1991] FSR 145. See also BBC Worldwide Ltd v Pally Screen Printing Ltd [1998] FSR 665 (D
made T-shirts bearing prints of the Teletubbies). But do the public care who makes such T-
shirts, and, if not, in what sense have the public been deceived?
112 Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731, at 742, HL per Lord
Diplock. As regards foreign-based companies, the law is uncertain. According to one account,
the foreign-based company must establish that it has customers in England: see the Warnink
case, supra, at 943-4, HL, per Lord Fraser; Athletes Foot Marketing Associates Inc v Cobra
Sports Co [1980] RPC 343. On the other hand, Maxim’s, the famous Paris restaurant, succeeded
in preventing a Norfolk restaurant from trading under that name despite having no trading
base in England: Maxim's Ltd v Dye [1978] 2 All ER 55. Note also the perhaps surprising
decision in Burge v Haycock [2001] EWCA Civ 900, [2002] RPC 553, CA where C (a political
party) successfully restrained D from dishonestly standing in their name.
113 Neutrogena Corpn v Golden Ltd [1996] RPC 473, CA; Arsenal Football Club ple v Reed
[2001] RPC 922.
114 Bollinger v Costa Brava Wine Co Ltd [1961] 1 All ER 561.
115 Reckitt & Colman Products Ltd v Borden Inc [1990] | All ER 873, at 888, HL, per Lord
‘ Oliver.
116 Singer Manufacturing Co v Loog (1882) 8 App Cas 15, HL.
117 Johnston & Co v Orr-Ewing (1882) 7 App Cas 219, HL. Cf William Edge & Sons Ltd v William
Niccolls & Sons Ltd [1911] AC 693, HL; Lee Kar Choo v Lee Lian Choon [1967] 1 AC 602,
EC.
Even if the parties have no common field of activity, an action may still lie provided that
injury to goodwill from confusion is established. Thus, a méneylender who sets up in
trade under the same name as an established bank can be restrained on the ground that
it would endanger the bank’s reputation if it were thought also to be a moneylender.''®
The Times newspaper obtained an injunction against the defendant who represented it
to be his principal or business associate in his cycle dealer business.'!? On the other
hand, Granada TV could not prevent Ford from calling a new model Granada, for there
was neither a connection or association between the two activities, nor any proved
confusion of the public.'”? A well-known children’s broadcaster who used the
pseudonym Uncle Mac could not prevent the defendants from marketing ‘Uncle Mac’s
Puffed Wheat’ for the same reason: no damage to his goodwill.'*' Nor could the
creator of ‘The Wombles’ prevent the marketing of ‘Wombles Skips’.'”* But in the light
of the developments of a trade in ‘character’ itself, might these cases be decided
differently today? The defendants in the latter case might not be harming the reputation
of the originator of the Wombles per se but what about limiting the profit to be exploited
from the character.'*?
Where the misrepresentation relates to a product produced by a group of traders,
rather than one single claimant, the group must establish that they constitute a
distinctive class of traders who have built up goodwill by the use of a particular name
or description of goods. Thus, the French producers of champagne succeeded by
establishing they all operated from the Champagne region in France.'** And the Dutch
manufacturers of Advocaat proved that their product was generally recognised to
share a particular and distinctive composition: eggs and spirits.'*
(3) Representation in the course of a trade

The representation must be made in the course of a trade. Trade is liberally defined and
includes pursuit of a profession'*® and a person’s interest in his literary and performance
rights.'?’ The tort is even available to protect the name of a political party where the
party in question can demonstrate that it has valuable property in terms of the goodwill
in its name. '8
118 Harrods Ltd v R Harrod Ltd (1923) 40 TLR 195, CA.

119 Walter v Ashton [1902] 2 Ch 282.
120 Granada Group Ltd v Ford Motor Co Ltd [1973] RPC 49.
121 McCulloch v Lewis A May (Produce Distributors) Ltd [1947] 2 All ER 845.
122 Wombles Ltd v Wombles Skips Ltd [1977] RPC 99. Cf Annabel’s (Berkeley Square) Ltd v G
Schock [1972] RPC 838, CA (Annabel’s Club and Annabel’s Escort Agency).
123 See Mirage Studios v Counter-Feat Clothing, supra.
124 J Bollinger v Costa Brava Wine Co, supra.
125 Erven Warnink BV v J Townend & Sons (Hull) Ltd, supra.
126 Society of Incorporated Accountants v Vincent (1954) 71 RPC 325. But note the curious
decision in Pontiac Marina Pte Ltd v CDL Hotels International Ltd [1997] FSR 725 (H Ct,
Singapore) where Chao Hick Tin J held that trading need not have actually commenced for
goodwill to have arisen (and therefore be vulnerable).
127 See Lord Byron v Johnston (1816) 2 Mer 29; Hines v Winnick [1947] Ch 708, [1947] 2 All ER
517; Illustrated Newspapers Ltd v Publicity Services (London) Ltd [1938] Ch 414, [1938] 1 All
ER 321%
128 Burge v Haycock [2002] RPC 553, CA. The earlier, seemingly contrary decision in Kean v
McGivan [1982] FSR 119, CA, was distinguished as an extempore decision confined to its own
particular facts.
(B) Goodwill
Nearly all the examples so far given constitute passing off in the form of inducing
consumers to believe that they are purchasing the claimant’s products. But passing
off extends beyond such cases. In A G Spalding & Bros v A W Gamage Ltd'” Lord
Parker stated that the tort protected goodwill — that is, ‘the attractive force that brings
in custom’.'*° This theme was picked up in the famous ‘Champagne’ case of J Bollinger
v Costa Brava Wine Co Ltd'>'
D marketed ‘Spanish Champagne’, a Spanish wine. C was one of several
manufacturers of champagne in the Champagne region of France. The court
found that members of the public bought D’s wine in the mistaken belief that
they were buying champagne from the vineyards of Champagne. It was held D
had committed the tort of passing off.
Crucially, Danckwerts J held that the description ‘champagne’ was part of the claimants’
goodwill and a right of property. A group of persons producing goods in a certain
locality and naming those goods by reference to that locality were entitled to protection
against competitors who sought to cash in on their goodwill and reputation by attaching
that name to a product originating from a different locality and with which the competing
product has no rational association.'** The limitation to goods produced in a certain
locality was considered immaterial in Erven Warnink BV v J Townend & Sons (Hull)
Ltd'*> The Dutch traders in that case recovered for the loss in their business resulting
from the defendants’ misleading appropriation of the name Advocaat for their different
and cheaper alcoholic egg drink. The crucial issues were:
1 whether there was a ‘distinctive class of goods’; and
2 that those goods were marketed in England by a class of persons whose product
was genuinely indicated by the use of the name Advocaat.
An earlier decision, not confined to goods or services per se, further illustrates the
protection afforded to goodwill. In ///ustrated Newspapers Ltd v Publicity Services
(London) Ltd'** the facts were as follows.
C owned certain illustrated periodicals. Ds supplied hotels with folders (bearing
the name of the appropriate periodical) for C, but without C’s permission inserted
a four-page advertisement in the middle, headed ‘Supplement’. Ds justified their
conduct on the ground that nobody was induced to deal them in the mistaken
belief that they were dealing with C. Nonetheless, C could sue for the harm thus
caused to C’s goodwill among the advertising media by Ds’ misrepresentation.
129 (1915) 84 LJ Ch 449, HL.

130 IRC v Muller & Co’s Margarine Ltd [1901] AC 217, at 223-4, HL.
131 [1960] Ch 262; subsequent proceedings [1961] 1 All ER 561. Followed in Vine Products Ltd v
Mackenzie & Co Ltd [1969] RPC 1 (‘Sherry’ to be confined to products from Jerez in Spain);
Consejo Regulador de las Denominaciones v Matthew Clark & Sons [1992] FSR 525 and in
John Walker & Sons Ltd v Henry Ost & Co Ltd [1970] 2 All ER 106 (injunction granted to one
whisky blender to restrain D from passing off as ‘Scotch Whisky’, whisky mixed with cane
spirit). But note also Taittinger SA v Allbev Ltd [1993] FSR 641, CA.
132 See also Chocosuisse Union des Fabricants Suisses de Chocolat v Cadbury Ltd [1998] RPC
117 (Chocolate manufacturers in Switzerland granted an injunction to protect their ‘Swiss
chocolate’).
, .
133 [1979] AC 731, HL.
134 [1938] Ch 414. And see Associated Newspapers ple v Insert Media Ltd, supra; Bristol
Conservatories Ltd v Conservatories Custom Built Ltd [1989] RPC 455, CA.
.S
(C) Damage
A passing off action can be brought even where no damage can be proved;'*° the
probability of damage is enough.'*° The test is whether a false representation has in
fact been made, fraudulently or otherwise,'*’ and whether this will foreseeably result
in consumers being misled.'** Proof of intention to deceive is also not essential (by
contrast with the tort of deceit).!°° It is unnecessary (though desirable, where possible)
to prove that any members of the public were actually deceived. Thus, where the
defendant had done no more than sell to middlemen who were not themselves deceived,
the action still lay where it was to be expected that in due course the act of the
defendant would be calculated to cause confusion in the minds of the purchasing
public.'*°
It is not essential that the person deceived should know the name of the claimant: it is
enough ‘if a person minded to obtain goods which are identified in his mind with a
certain definite commercial source is led by false statements to accept goods coming
from a different commercial source’.'*' If the public would not in any sense be confused,
there is no tort.'*” But when a cordial was marketed as ‘elderflower champagne’ it was
held that some consumers might link the drink with real champagne, thus damaging the
reputation of the genuine article.'*
135 Draper v Trist [1939] 3 All ER 513, CA; Procea Products Ltd v Evans & Sons Ltd (1951) 68
REE 0:
136 HP Bulmer Ltd and Showerings Ltd v J Bollinger SA [1978] RPC 79, CA. Only want of damage
prevented an action for this tort from being available in McCulloch v Lewis A May (Produce
Distributors) Ltd [1947] 2 All ER 845. Other cases where the action failed for this reason are
A-G and General Council of Medical Education of United Kingdom Registration v Barrett
Proprietaries Ltd (1932) 50 RPC 45 (publishers of British Pharmacopoea could not recover
against defendants who used letters ‘BP’ on cartons of drugs made by them): Taittinger SA v
Allbev Ltd [1993] FSR 641, CA.
137 Indeed, in Gillette UK Ltd v Edenwest Ltd [1994] RPC 279 it was held that innocence on the
part of D was no defence to an action for damages against him.
138 AG Spalding & Bros v AW Gamage Ltd (1915) 84 LJ Ch 449, at 452, HL, per Lord Parker. For
cases where there was held to be no confusion, see Grand Hotel Co of Caledonia Springs v
Wilson [1904] AC 103, PC (C’s product ‘Caledonian Waters’ — D found a new spring in
Caledonia and marketed its product as ‘from our spring at Caledonia’); Office Cleaning Services
Ltd v Westminster Office Cleaning Association (1944) 61 RPC 133, CA; affd (1946) 63 RPC
39, HL (rival firms of office cleaners trading under the above names, respectively).
139 Baume & Co Ltd v A H Moore Ltd [1958] Ch 907, CA.
140 Draper v Trist [1939] 3 All ER 513, CA.
141 Plomien Fuel Economiser Co Ltd v National School of Salesmanship Ltd (1943) 60 RPC 209,
at 214, CA, per Lord Green MR. The same applies even though the drug passed off by imitating
get-up was sold on prescription only so that the public had no choice of supplier: F Hoffman-
La Roche & Co AG v DDSA Pharmaceuticals Ltd [1969] FSR 410, CA.
142 Examples of failure for this reason include Cadbury Schweppes Pty Ltd v Pub Squash Co Pty
Ltd [1981] 1 All ER 213, PC and Newsweek Inc v BBC [1979] RPC 441, CA (the owners of the
magazine Newsweek could not prevent the BBC from using the same name for a new current
affairs programme for nobody would confuse a programme with a magazine).
143 Taittinger SA v Allbev Ltd [1993] FSR 641, CA.
(D) Defences
None of the general defences to torts that might apply calls for special attention. But
it is worth noting that consent is perhaps the most important in this context.!“
(E) Remedies
(1) Injunction
This remedy is often the most important to the claimant. As always, it is awarded at the
discretion of the court, and the actual form of the injunction is often one of the most
contested points in this class of litigation.'*° If the defendant’s conduct is calculated
to divert customers, even though no sale has occurred, then in accordance with general
principles, an injunction will lie to prevent the apprehended wrong.'“°
(2) Damages
In the archetypal case, claimants recover damages for the loss of profits sustained in
consequence of customers being diverted from them to the defendant. But it is not per
se in respect of such loss that they may claim. Rather, all loss must be referable to
goodwill, which lies at the heart of the classic trinity. But goodwill has been recognised
as capable of being harmed in several ways beyond mere diversion of customers. Loss
of business reputation,'*’ restriction of the claimant’s expansion potential (within
limits),'** and dilution (of the effectiveness of distinctive symbols)'*” are some examples.
The alternative to the common law inquiry into damages is the equitable remedy of an
account of the profits made by the defendant by virtue of the passing off.'*° There are
dicta to the effect that an account of profits will not be directed for such period as the
defendant’s action was innocent.'*' It is uncertain whether more than nominal damages
may be awarded when the defendant neither knew nor ought to have known’ that he
was committing the tort of passing off.'»
144 Ex turpi causa is a defence: Lee v Haley (1869) 5 Ch App 155; Ford v Foster (1872) 7 Ch App
611, at 630-1, CA, per Mellish LJ.
145 In the absence of a threat to continue the acts complained of, the courts may grant a declaration
but not an injunction (though giving liberty to apply for an injunction, eg, if D does continue):
Treasure Cot Co Ltd v Hamley Bros (1950) 67 RPC 89.
146 Reddaway v Bentham Hemp-Spinning Co [1892] 2 QB 639, at 648, CA, per Smith LJ.
147 AG Spalding and Bros v AW Gamage Ltd (1918) 35 RPC 101; Treasure Cot Co Ltd v Hamley
Bros, supra.
148 Alfred Dunhill Ltd v Sunoptic SA [1979] FSR 337, CA; LRC International v Lilla Edets Sales
Company [1973] RPC 560.
149 Taittinger SA v Allbev Ltd [1993] FSR 641, CA
150 In computing this profit, sales by D to middlemen can be considered, although the middlemen
were not deceived, and had not passed the goods on to the public: Lever v Goodwin (1887) 36
Ch Dr GA:
151 Edelsten v Edelsten (1863) 1 De GJ & Sm 185, at 199, HL, per Lord Westbury.
152 Edward Young & Co Ltd v Holt (1947) 65 RPC 25: held that ‘innocent’ bears this meaning.
153 Draper v Trist, supra; Marengo v Daily Sketch and Sunday Graphic Ltd (1948) 65 RPC 242,
at 251, HL, per Lord Simonds.
138 Intentional inierference with economic interests
(F) Unfair trading and passing off

The House of Lords, in Erven Warnink BV v J Townend & Sons (Hull) Ltd, extended
the classic tort of passing off to a wider class of misrepresentations resulting in damage
to a rival’s goodwill. Italso paved the way towards the tort becoming a means of
controlling unfair trading practices.'** Lord Diplock recognised that Parliament has
progressively intervened to impose on traders higher standards of commercial
candour.'*> He clearly indicated that the steady trend in legislation reflecting the
legislative view of what is today acceptable conduct in the marketplace should be
matched by the development of the common law. Consequently, earlier decisions that
misleading trade practices did not amount, on their facts, to the tort of passing off may
now need to be regarded with some caution.'*° However, there may come a point when
the extension of passing off becomes a means of protecting a monopoly and of
excluding all competition? Lord Bridge in Reckitt & Colman Products Ltd v Borden
Inc'*’ warned of this danger.
Section 3. Malicious falsehood

The tort of malicious falsehood also operates to protect interests in goodwill and
economic reputation.'** Passing off prevents competitors from using false
representations to cash in on the claimant’s goodwill. Malicious falsehood, by contrast,
affords a remedy where business reputation is maliciously disparaged even though no
aspersion is made against the character of an individual sufficient to give rise to a
cause of action in defamation. The Court of Appeal has set out the parameters of this
tort as follows:
[A]n action will lie for written or oral falsehoods ... where they are maliciously
published, where they are calculated in the ordinary course of things to produce,
and where they do produce, actual damage.’
(A) Interests protected'”

Originally, this tort protected persons against unwarranted attacks on their title to
land, by virtue of which they might be hampered in the disposal of that land. Hence, it
was called ‘slander of title’.'*' Later, it was held equally applicable to goods, in which
154 Cf Hodgkinson and Corby Ltd v Wards Mobility Ltd [1995] FSR 169. See also Carty, An
Analysis of the Economic Torts (2000), pp235-237 and note the protection afforded to a
political party to restrain a person standing for election in that party’s name in Burge v
Haycock [2002] RPC 553, CA (D was a member of the British National Party attempting to
stand as a member of the ‘Countryside Alliance’).
155 [1979] 2 All ER 927, at 933.
156 See, eg, Cambridge University Press v University Tutorial Press (1928) 45 RPC 335 where D’s
conduct in deceiving the public that their book was of a particular class was not actionable by
C whose book fell within that class. Would that case now be treated as ‘reverse passing off’ as
in Bristol Conservatories Ltd v Conservatories Custom Built Ltd [1989] RPC 455 (D using C’s
catalogues to sell their own goods)?
157 [1990] 1 All ER 873, at 877, HL.
158 CHC Software Care Ltd v Hopkins & Wood [1993] FSR 241.
159 Ratcliffe v Evans [1892] 2 QB 524, at 527, CA.
160 See Newark, ‘Malice in Actions on the Case for Words’ (1944) 60 LQR 366.
161 Eg, Gerard v Dickenson (1590) Cro Eliz 196.
case the tort was usually called ‘slander of goods’.' By 1874 it was established that
disparagements of the quality of property, as well as aspersions on title to it, were
tortious.'®* Before the end of the century, Ratcliffe v Evans'“ made clear that the tort
could be committed whenever damaging lies about a business were uttered (hence,
another name given to this tort — ‘trade libel’). Since then, the tort has been referred to
by many names,'® but the term malicious falsehood is preferred here because it was
used by Bowen LJ in Ratcliffe v Evans, and because it is the term that is also used in
the Defamation Act 1952.'® The potential ambit and utility of this tort was considerably
expanded by two decisions of the Court of Appeal which endorsed its applicability
wherever one’s economic interests are threatened,'®’ and rejected the idea that only
truly commercial interests are protected. As such, the demarcation between malicious
falsehood and defamation is partly blurred.'*
Any type of interest in land, whether vested in possession or not,'® is protected.
Trade marks,'”’ patents,'’! trade names,'” copyright'’ and company shares,'”* may
all be the subject of actionable disparagements. The following random illustrations of
circumstances treated by the courts as being within the scope of the tort demonstrate
its extent. An untrue statement by the defendant to a customer that the claimant, a
commercial traveller with whom the customer had formerly dealt, was now in the
employment of the defendant’s firm;'” failure to delete the name of the claimant (a
musical accompanist), from the programme of a concert series in which she was no
longer to appear (because, as a result of this, others might not offer her engagements);'”°
a false statement in the defendant’s newspaper that the claimant had ceased to carry
on business;'’’ an erroneous statement that the claimant’s wife (who helped the
claimant in his drapery business) had committed adultery in the shop with the parson
newly appointed to the parish.'”* Finally, Joyce v Motor Surveys Ltd is a particularly
useful example of a successful action in malicious falsehood.'”
C became the tenant of one of D’s lock-up garages in order to have premises at
which he could be registered as a tyre dealer. D subsequently wished to evict C
in order to sell the entire property with vacant possession. D therefore told the
Post Office not to forward any more mail to him at that address, and told the tyre
162 Malachy v Soper (1836) 3 Bing NC 371. Cf Green v Button (1835) 2 Cr M & R 707 (D told
person who had contracted with C to sell him timber that he, D, had a lien on it, and thereby
prevented C from obtaining delivery).
163 Western Counties Manure Co v Lawes Chemical Manure Co (1874) LR 9 Exch 218.
164 [1892] 2 QB 524, CA.
165 See Carty, , An Analysis of the Economic Torts (2000), p151.
166 Defamation Act 1952, s 3.
167 Kaye v Robertson [1991] FSR 62, CA; Joyce v Sengupta [1993] 1 All ER 897, CA.
168 See also Gibbons, ‘Defamation Reconsidered’ (1996) 16 OJLS 587.
169 Vaughan vy Ellis (1608) Cro Jac 213.
170 Greers Ltd v Pearman and Corder Ltd (1922) 39 RPC 406, CA.
171 Wren v Weild (1869) LR 4 QB 730.
172 Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95, HE:
173 Dicks v Brooks (1880) 15 Ch D 22.
174 Malachy v Soper (1836) 3 Bing NC 371.
175 Balden v Shorter [1933] Ch 427. The action failed for a different reason.
176.Shapiro v La Morta (1923) 130 LT 622, CA. The action failed for other reasons.
177 Ratcliffe v Evans, supra; Danish Mercantile Co v Beaumont (1950) 67 RPC 111 (D’s bare
statement that he was the only authorised importer of certain machines).
178 Riding v Smith (1876) 1 Ex D 91.
179 [1948] Ch 252.
manufacturers’ association that he was no longer trading there. D’s conduct was
held to constitute malicious falsehood. 4
The essence of the tort is that the defendant’s lies cause economic damage to the
claimant. So, in 1662, depriving the claimant of her opportunity of marriage gave rise to
liability.'®° In 1991, in Kaye v Robertson,'*' the claimant actor was photographed
without his consent as he lay in a hospital bed recovering from near fatal injuries. The
newspaper presented a story concerning him as though it had been obtained with his
authority and thereby deprived Mr Kaye of the opportunity to market his own account.
That was held to be sufficient to constitute malicious falsehood.'* In Joyce v
Sengupta'®’ the defendant newspaper published an article insinuating that the claimant
had abused her position as lady’s maid to the Princess Royal to steal from her employer
personal letters. The claimant contended that the article might well prejudice her future
employment prospects. Her claim in malicious falsehood was allowed to proceed.
(B) Disparagement
It is a disparagement if there is some misstatement as to the extent of the claimant’s
interest in his property or as to the quality of his goods. Thus, a false statement by a
newspaper owner that the circulation of his newspaper greatly exceeded that of the
claimant’s rival newspaper was held to be capable of being tortious.'*
A threat of proceedings for infringement of a patent'® or a trade mark'*® may be
enough. The Patents Act 1977, section 70'*’ the Trade Marks Act 1994, section 21, the
Registered Designs Act 1949, section 26 and the Copyright, Designs and Patents Act
1988, section 253 all make it a statutory tort for a person by circulars, advertisements or
otherwise to threaten proceedings for infringement wherever the defendant is unable
to prove that the claimant’s act constitutes an infringement of the defendant’s patent,
trade mark, registered design or design rights. On the other hand, an assertion by way
of mere ‘puffery’ that the defendant’s goods are better than the claimant’s, is not
actionable.'** But, if the defendant’s claims are couched in terms of verifiable facts
(whether scientific or otherwise), and those facts can be shown to be untrue, an action
will lie.'*
The courts will not conduct advertising campaigns for businessmen by deciding the
relative merits of their competing trade products. The leading case is White v Mellin.'°°
180 Sheperd v Wakeman (1662) 1 Sid 79.

181 [1991] FSR 62, CA.
182 It is also worthy of mention that the Court of Appeal was keen to offer protection against the
gross invasion of the actor’s privacy.
183 [1993] 1 All ER 897, CA.
184 Lyne v Nicholls (1906) 23 TLR 86. Cf Evans v Harlow (1844) 5 QB 624.
185 Mentmore Manufacturing Co Ltd v Fomento (Sterling Area) Ltd (1955) 72 RPC 157, CA.
186 Colley v Hart (1890) 44 Ch D 179, at 183, per North J.
187 See Johnson Electric Industrial Manufacturing Ltd v Mabuchi-Motor KK [1986] FSR 280.
188 Young v Macrae (1862) 3 B & S 264; Hubbuck & Sons v Wilkinson, Heywood and Clark
[1899] 1 QB 86, CA.
189 De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd [1975] 2
All ER 599; DSG Retail Ltd v Comet Group plc [2002] EWHC 116, [2002] FSR 58.
190 [1895] AC 154, HL.
False representations \4\|
W bought, for sale in his shop, bottles of infant food made by M and affixed on
them, before selling to customers, a label that Dr V’s food for infants and invalids
(in fact a product of W) was better in particular respects than any other. An
action for malicious falsehood failed, on the ground, among other things, that
this mere puff was not a disparagement.'”!
The test is whether a reasonable man would take the claim that denigrates the claimant’s
goods as one made seriously.'”
(C) False statement

The claimant has the burden of establishing that the statement was untrue.'“ The
statement must be a false one about the claimant or his property; it is not enough that
a false statement resulted in harm to him.
(D) Publication
Because the essence of the tort is the effect produced by the false statement on
persons entering into relations with the claimant, the falsehood must be published to
persons other than the claimant.'** Whether a negligent or accidental publication is
sufficient is undecided. However, it is clear that the defendant is liable for a re-publication
that is the natural and probable result of his original publication.'*
(E) Malice
This is undoubtedly the most difficult and controversial element in this tort although,
at the outset, it can be made clear that good faith on the part of the defendant will
always be a good defence.'*° The difficulty comes in defining what amounts to malice,
something that the cases decided during the last 70 or so years'’’ have uniformly
insisted that the claimant needs to prove. In this context, malice has been variously
defined as ‘improper motive’,'** an intention to injure,'”” or want of honest belief in the
truth of the statement.” Significantly, the courts have not usually preferred any of
these definitions to the exclusion of the others.*°' Thus, the House of Lords in White
191 Could M have succeeded on the basis of one of the other torts dealt with in this chapter?
192 De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd [1975] 2
All ER 599; test subsequently applied in Vodaphone Group ple v Orange Personal
Communications Services Ltd [1997] FSR 34, per Jacob J.
193 Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95, at 99, HL, per Lord
Davey. And see also Joyce v Sengupta, supra, at 901, per Sir Donald Nicholls VC. Note that
where the statement is ‘not obviously untrue’, no action will lie: MacMillan Magazines Ltd v
RCN Publishing Co Ltd [1998] FSR 9, per Neuberger J.
194 Cf Malachy v Soper (1836) 3 Bing NC 371.
195 Cellactite and British Uralite Ltd v H H Robertson & Co (1957) Times, 23 July, CA.
196 Spring v Guardian Assurance plc [1994] 3 All ER 129, HL.
197 See, eg, McDonald's Hamburgers Ltd v Burgerking UK Ltd [1986] FSR 45.
198 Balden v Shorter [1933] Ch 427, at 430, per Maugham J.
199 Steward v Young (1870) LR 5 CP 122, at 127, per Montague Smith J.
200 Greers Ltd v Pearman and Corder Ltd (1922) 39 RPC 406, at 417, CA, per Scrutton LJ.
201 Indeed, British Railway Traffic and Electric Co v CRC Co and LCC [1922] 2 KB 260, is one of
the few cases where the court has held that some particular type of these variants of malice has
to be proved. No case where such a finding was essential to the decision has been traced.
v Mellin’ held that either an intention to injure or knowledge of the falsity of the
statement would suffice. “i
Lord Coleridge LCJ set out a guiding principle in Halsey v Brotherhood.’ He said:
although it injures and is untrue ... it is a statement that the defendant has a right
to make, unless, besides its untruth and besides its injury, express malice is
proved, that is to say, want of bona fides or the presence of mala fides.
The claimant may discharge his burden of proving this element of bad faith in any one
of several ways. He may do so by proving that the defendant made the statement
knowing it to be false, or that he made it recklessly, careless whether it was true or
false.’ A defendant shown to have been actuated by ill-will, will be held to have acted
with ‘malice’. He will be liable if his purpose was to damage the claimant’s business,
even, it seems, although he was also acting for the benefit of his own interests.*” It
also seems to suffice that the defendant knew his statement to be untrue: the claimant
does not also have to prove that he intended (or even knew) that the statement was
disparaging.°”°
London Ferro-Concrete Co Ltd v Justicz affords a typical example of a claimant’s
successful discharge of his burden of proving malice.”
D wrote to a firm of contractors that C (who was his competitor for a sub-
contract with the firm) used ‘inadequate’ methods of work. The court held that D
knew his statement to be untrue and he was held liable in malicious falsehood.
(F) Damage
The claimant must prove that the false statement caused him pecuniary loss.” A
debatable point has been whether the requirement that special damage has to be
proved can be discharged by showing general loss of custom without adducing
evidence that particular customers have withdrawn their business in consequence of
the falsehood.*” Whether evidence of general loss of business will be sufficient
depends on ‘the nature and circumstances of the falsehood’.”'® For example, a claimant
cannot be expected to produce individuals who have been affected by a statement in
202 [1895] AC 154, HL (the ratio is to be found most clearly in the opinion of Lord Herschell LC,
at 160). Cf Shapiro v La Morta (1923) 130 LT 622, at 628, CA, per Atkin LJ and Greers Ltd
v Pearman and Corder Ltd (1922) 39 RPC 406, at 417-8, CA, per Scrutton LJ.
203 (1881) 19 Ch D 386, at 388, CA. Cf Wren v Weild (1869) LR 4 QB 730.
204 Kaye v Robertson [1991] FSR 62, at 67, CA, per Glidewell LJ.
205 The ratio of Joyce v Motor Surveys Ltd [1948] Ch 252 (where D wanted to make his property
saleable with vacant possession) is supported by the judgment of Collins MR in Alcott v Millar's
Karri and Jarrah Forests Ltd (1904) 91 LT 722, at 723, CA. Cf Mentmore Manufacturing Co
Ltd v Fomento (Sterling Area) Ltd (1955) 72 RPC 157, CA.
206 Wilts United Dairies Ltd v Thomas Robinson Sons & Co Ltd [1957] RPC 220; affd (but this
point was not considered) [1958] RPC 94, CA.
207 (1951) 68 RPC 261, CA.
208 Ajello v Worsley [1898] 1 Ch 274; Shapiro v La Morta (1923) 130 LT 622, CA; Allason v
Campbell (1996) Times, 8 May. When the damage complained of is physical injury, this tort
is presumably not applicable and Wilkinson v Downton [1897] 2 QB 57 must be relied on. Cf
Guay v Sun Publishing Co Ltd [1952] 2 DLR 479; affd [1953] 4 DLR 577.
209 Malachy v Soper (1836) Bing NC 371 decided that the tort is not actionable per se.
210 Ratcliffe v Evans [1892] 2 QB 524, at 533, CA.
a newspaper, and evidence of general business loss will in such a case be admitted.
The same rule has been extended to a circular to customers, where, in the circumstances,
the circular was reasonably likely to cause a decline in business.2!'! On the other hand,
a claimant who complained that the defendants had stated in their newspaper that his
house was haunted, but who neither produced witnesses giving evidence that the
statement had influenced them to the detriment of the claimant, nor showed that the
house had depreciated in value as a result of it, failed.2!2 The expenses of bringing
litigation in order to remove a cloud on the title placed by the defendant’s statement
are treated as special damages.”
The difficulties inherent in proving actual loss led to actions for malicious falsehood
becoming extremely rare.*'* Consequently the common law rules on damage have
been modified by the Defamation Act 1952, section 3 of which provides:
In an action for slander of title, slander of goods or other malicious falsehood, it
shall not be necessary to allege or prove special damage — (a) if the words upon
which the action is founded are calculated to cause pecuniary damage to the
[claimant] and are published in writing or other permanent form;7!> or (b) if the
said words are calculated to cause pecuniary damage to the [claimant] in respect
of any office, profession, calling, trade or business”'® held or carried on by him
at the time of the publication.*"’
In the vast majority of cases concerning this tort, it will now no longer be necessary to
prove special damage.*'* This is especially important in view of the doubt as to whether
an injunction could be obtained before the Act where damage was merely likely to
accrue.”'? The economic damage inflicted on the claimant by the falsehood may be
accompanied by considerable mental distress and injury to feelings.” The Court of
Appeal in Joyce v Sengupta*' suggested that injury to feelings was not per se
recoverable. But Sir Michael Kerr contended that within general damages, an award of
aggravated damages might partly reflect the injury to the claimant’s feelings and dignity.
(G) Defences
In those circumstances where a defendant in defamation could plead legislative
immunity or absolute privilege — eg, in relation to statements in judicial proceedings —
211 E Worsley & Co Ltd v Cooper [1939] 1 All ER 290. Cf Lyne v Nicholls (1906) 23 TLR 86.
212 Barrett v Associated Newspapers Ltd (1907) 23 TLR 666, CA.
213 Elborow v Allen (1622) Cro Jac 642.
214 Joyce v Sengupta [1993] 1 All ER 897, at 906, CA
215 This includes broadcasting.
216 These words probably have the same meaning here as in the context of defamation.
217 Note, too, in Joyce v Sengupta, supra, the court said that the Defamation Act 1952, s 3 is not
confined to nominal damages.
218 A claimant who relies on s 3 of the Defamation Act 1952 is not allowed to prove special
damage unless he has specifically pleaded it: Calvet v Tomkies [1963] 3 All ER 610, CA. ,
219 Dunlop Pneumatic Tyre Co Ltd v Maison Talbot (1904) 20 TLR 579, CA. Cf White v Mellin
[1895] AC 154, at 163-4 and 167, HL. Note that Easycare Inc v Bryan Lawrence & Co
[1995] FSR 597 establishes that the normal rules applicable to the granting of interlocutory
‘injunctions do not apply in cases of malicious falsehood. ae
220 In Fielding v Variety Inc [1967] 2 QB 841, CA Lord Denning stated that damages for injured
feelings were not recoverable for the tort of malicious falsehood.
221 [1993] | All ER 897.
the same defence wouldbe available here. Formerly, it might have been apt to say that
the defences of qualified privilege in defamation were similarly applicable, but the
present insistence on malice in this tort makes it irrelevant any longer to consider that
point.
(H) Malicious falsehood and defamation

There are clear similarities between malicious falsehood and the related tort of
defamation.” It is apparent, for example, that there are occasions when the claimant
has a choice between the two. In Joyce v Sengupta, where the claimant argued that
allegations that she had stolen from the Princess Royal constituted a malicious
falsehood threatening her employment prospects, the defendants contended that her
proper remedy lay in defamation. By electing to sue in malicious falsehood the claimant
was able to obtain legal aid (which was unavailable in defamation”” ) and the defendant
lost the right to trial by jury. The Court of Appeal refused to strike out the claimant’s
claim.
There is no principle of law that a claimant must pursue the most appropriate remedy.
She is entitled to elect the action that best suits her following Joyce v Sengupta: as
long as one has an arguable case that defamatory allegations may damage one’s
financial prospects as well as one’s reputation, one may choose whether to sue in
defamation or malicious falsehood.
222 See Gibbons, ‘Defamation Reconsidered’ (1996) 16 OJLS 587.

223 And is nowadays also unavailable in malicious falsehood.
CHAPTER 9
Interference with contract or trade
Allen v Flood' established the ground rules for liability in tort for interference with
economic interests other than by way of false representations. A person has no absolute
right to pursue his trade or livelihood. He merely enjoys a freedom to promote his
business and financial interests; and this the law must reconcile with the equivalent
freedoms enjoyed by all his fellows. Where the conduct of one person damages the
business interests of another, or interferes with his freedom to advance his trade or
livelihood, the ‘existence of a bad motive, in the case of an act which is not otherwise
illegal, will not convert that act into a civil wrong’.
For nearly a century subsequent to Allen v Flood, the development of tort liability for
interference with trade was sporadic. There appeared to be a haphazard list of nominate
torts, including, among others, conspiracy, inducing breach of contract and intimidation.
In an attempt to rationalise matters, Lord Diplock enunciated the notion that there is
‘genus’ tort of ‘interfering with the trade or business of another person by doing
unlawful acts’? of which the various nominate economic torts are merely ‘species’.
Unfortunately, this is an inexact explanatory account since, as will be seen, not all the
economic torts can be said to fit Lord Diplock’s description of the ‘genus’ tort. In
particular, conspiracy actions based on the decision in Crofter Hand Woven Harris
Tweed Co Ltd v Veitch* and direct inducement of breach of contract do not fit this
account for want of an unlawful act.’ Nonetheless, Lord Diplock’s proposition does
help to explain the link between the ‘false representation’ torts considered in the
previous chapter with the ‘general’ economic torts discussed in this chapter.°
1 [1898] AC 1, HL.
2 [1898] AC 1, at 92, per Lord Herschell.
3 Merkur Island Shipping Corpn v Laughton [1983] 2 AC 570, at 608, HL.
4 [1942] AC 435, HL.
) For a contrary view, see Weir, Economic Torts (1997). But see also the powerful critique of
Weir’s view in Bagshaw, ‘Can the Economic Torts be Unified?’ (1998) 18 OJLS 729.
6 See Carty, ‘Intentional Violation of Economic Interests: the Limits of Common Law Liability’
(1988) 104 LQR 250.
Section |. Conspiracy’
i]
The tort of conspiracy takes two forms:

1 ‘unlawful means conspiracy’ — where two or more persons combine to do an
unlawful act, or a lawful act by unlawful means; and
2 ‘simple conspiracy’ — where two or more persons combine wilfully to injure another
in his trade, and damage to his trade results.*
The first form of conspiracy is now largely superfluous in that, if unlawful means are
used to interfere in trade, the ‘genus’ tort of unlawful interference with trade will
necessarily be committed.? The second kind of conspiracy is anomalous in that it
contradicts the fundamental assumption in Allen v Flood that motive alone cannot
make illegal that which would otherwise be legal conduct. It can be justified only as ‘a
crude (and arbitrary) method of attacking an abuse of market power’.'° In Lonrho Ltd
v Shell Petroleum Co Ltd (No 2) the House of Lords recognised conspiracy as a
‘highly anomalous cause of action’ but considered it too well established to be
discarded.'!
(A) Combination
The requirement of combination is generally straightforward. The ancient fiction that
a husband and wife were one person in the eyes of the common law no longer prevents
spouses being liable together for the tort of conspiracy.'* Directors and their company
may conspire together since the company is a separate legal entity.'’ However, to
establish such a conspiracy, it is essential to identify the relevant “mind and will’ of the
company (normally found in the director who had management or control over the
particular act in question).'* From this, it follows that the relevant alter ego of the
company will be located in different people for different purposes (usually discoverable
from the company’s articles of association).'°
Where the combination takes the form of a conspiracy to do an unlawful act, it is
essential to establish the sense in which the relevant act is ‘unlawful’. In Marrinan v
7 See Carty, An Analysis of the Economic Torts (2000) ch 2.

8 Quinn v Leathem [1901] AC 495, HL.
9 See Lonrho plc v Fayed [1991] 3 All ER 303, at 312, HL, per Lord Bridge. On the other hand,
the fact that there has been a combination may help to persuade the court more readily to
grant an injunction or a higher award of damages: Kuwait Oil Co SAK v Al Bader [2000] 2 All
ER (Comm) 271, CA. Equally, the tort of conspiracy may also be a useful mechanism to make
both conspirators joint-tortfeasors and thus expand the remit of liability: see Sales, ‘The Tort
of Conspiracy and Civil Secondary Liability’ [1990] CLJ 491.
10 See Carty, An Analysis of the Economic Torts (2000) ch 2. See also Clerk and Lindsell para
24.117 where it is pertinently suggested that a combination of two street corner grocers is
unlikely to be more oppressive to competitors than the actions of a supermarket chain in
single ownership.
11 [1982] AC 173, HL. And see Lonrho ple v Fayed [1991] 3 All ER 303, at 307, HL, per Lord
Bridge.
12 Midland Bank Trust Co Ltd v Green (No 3) [1982] Ch 529, CA.
13. Belmont Finance Corpn Ltd v Williams Furniture Ltd [1979] Ch 250, CA. And see Taylor v
Smyth [1991] 1 IR 142 (conspiring with companies under the accused’s control).
14 El Ajou v Dollar Land Holdings pie [1994] 2 All ER 685, CA.
15 Meridan Global Funds Management Asia Ltd v Securities Commission [1995] 3 All ER 918,
at 923, PC, per Lord Hoffmann.
Interference with contract or trade \47
Vibart'’ M pleaded that V and X — both policemen —had conspired to make defamatory
statements about him to the DPP, and to give false evidence at the Old Bailey and at a
later enquiry by the Masters of his Inn. None of these three statements could ever form
the subject of a civil action because of the absolute privilege afforded judicial
proceedings. But neither was there an actionable conspiracy because the acts allegedly
causing the damage could not ground any form of civil action.'” The decision illustrates
not only that unlawful act conspiracy is not confined to interference with economic
interests, but, more importantly, that it has little practical significance as an independent
tort. Had the statements in Marrinan not been privileged, the defendants would have
been liable in any event as joint tortfeasors. There would have been no need to resort
to an action framed in terms of conspiracy.
Combinations with which the tort of conspiracy is concerned may take many forms.
Examples include traders combining to ward off the competition of a rival trader;'*
trade union officials combining to compel an employer to dismiss a non-union
employee;'? an employers’ federation and a trade union combining to deprive a worker
belonging to another union of his job so as to promote collective bargaining in the
industry concerned; employees collectively threatening a strike unless the employer
dismissed a worker belonging to another union.”! But this list is not exhaustive.
(B) The purpose of the defendants

The principles underpinning conspiracy can be stated quite simply; and the decision
in Crofter Hand Woven Harris Tweed Co Ltd v Veitch” assists in this exposition.
The appellants produced tweed cloth in the Outer Hebrides. Only the weaving
of their cloth took place on the island; they imported yarn from the mainland.
Other firms had their cloth spun as well as woven on the island. The respondents,
V and M, were trade union officials of the union to which most of the spinners
employed in the island mills belonged. Employers of these men informed V and
M that the competition of the appellants prevented them from raising wages.
The respondents (who were assumed by some of their Lordships to be acting in
combination with the mill-owners) instructed dockers at the island’s port to
refuse to handle yarn imported from the mainland consigned to the appellants as
well as cloth made by the appellants for export. Without breaking their contracts
of employment, the dockers consented. The appellants sought to stop this
embargo on the ground that it was an actionable conspiracy. They failed. The
House of Lords held that the predominant purpose of the combination was the
legitimate promotion of the interests of the combiners.
16 [1963] 1 QB 528, CA.

17 The requirement that the unlawful means must be actionable in their own right was emphatically
underlined in Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493, at 511, per Laddie
Ue
18 Mogul Steamship Co v McGregor, Gow & Co [1892] AC 25, HL (action failed).
19 Quinn v Leathem [1901] AC 495, HL (action succeeded).
20 Reynolds v Shipping Federation Ltd [1924] | Ch 28 (action failed).
21. White v Riley [1921] 1 Ch 1, CA (action failed).
22 [1942] AC 435, HL.
The tort of simple conspiracy is thus committed only when the predominant purpose
of the defendants’ combination is deliberately to inflict danvage on the claimant.” It is
not enough to demonstrate that the defendants were well aware that damage to the
claimants was an inevitable consequence of their collective action. Until 1981, the
requirement that the defendants intended to cause injury to the claimant was thought
to apply only to simple conspiracy where no unlawful means are employed to damage
the claimant’s interests. But the House of Lords in Lonrho Ltd v Shell Petroleum Co
Ltd (No 2)** held otherwise. The defendants breached sanctions orders against the
illegal regime in Rhodesia, substantially increasing their profits at the claimant’s expense.
Rejecting the claim in conspiracy, the House of Lords found that even if unlawful
means were used to further the conspiracy, no liability arose unless the defendants
acted ‘for the purpose not of protecting their own interests but of injuring the interests
of the claimant’.”> How, then, does unlawful means conspiracy differ from simple
conspiracy? Any significant distinction between the two would effectively have been
obviated by the Court of Appeal’s decision in Metall und Rohstoff AG v Donaldson
Lufkin and Jenrette*® where it was held that in all cases of conspiracy the predominant
intention of the defendants must be injury to the claimant. Had that decision stood,
any group of conspirators could have justified their action by showing that their
primary design was to secure their own commercial advantage. Yet, that interpretation
of Lonrho Ltd v Shell Petroleum Co Ltd was decisively rejected by the House of Lords
in Lonrho plc v Fayed’’ where their Lordships insisted on distinguishing intention
from motive.
C, who had sought to take over the House of Fraser (including Harrods), alleged
that D had unlawfully made false and fraudulent representations to the Secretary
of State for Trade** and Industry, thus procuring a successful takeover of the
disputed company. There could be no doubt that D’s predominant intention was
to advance D’s own interests. So the Court of Appeal struck out C’s claim in
conspiracy.””? However, in the House of Lords, Lord Bridge affirmed that (1) in
any action for conspiracy, proof of an intent to injure C is required, and (2) in
unlawful means conspiracy that intention need not be D’s primary design.
If unlawful means are used to forward the conspiracy, the defendants cannot excuse
the use of such means by proving that their main purpose was to protect or advance
their own interests.*? However, since the advent of a tort of interference with trade by
unlawful means, a plea of unlawful means conspiracy has probably become otiose.*!
23 [1942] AC 435, at 445, 452, 478, 490 and 493, HL.
PHN VA ANC, 19/3}. 1al.
25 [1982] AC 173, at 189, HL.
26 [1990] 1 QB 391.
27 [1992] 1 AC 448.
28 But will it be necessary at the full trial to prove that the misrepresentation on the part of D
constituted actionable deceit? See Michaels v Taylor Woodrow Developments Ltd [2001] Ch
493; Lonrho plc v Fayed [1989] 2 All ER 65, at 69, CA.
29 [1989] 2 All ER 65.
30 Lonrho v Fayed, supra, at 309-10, HL, per Lord Bridge.
31 If anything, the use of the genus tort of unlawful interference with trade is more generous
because a broader definition of ‘unlawful means’ appears to apply in that context (see below).
In cases of conspiracy, it has been suggested judicially that ‘unlawful’ means no more and no
less than an independent tort actionable by C. See, eg, Michaels v Taylor Woodrow Developments
Ltd [2001] Ch 493; Crédit Lyonnais Bank Nederland NV v Export Credit Guarantee Department
[1998] 1 Lloyd’s Rep 19, CA. Cf Surzur Overseas Ltd v Koros [1999] 2 Lloyd’s Rep 611, CA.
In simple conspiracy, when the defendants’ predominant purpose is injury to the

claimant, it will not avail them that they have the subsidiary interest of protecting their
own interests. If, however, the defendants’ predominant purpose is the protection of
their own interests, there is no actionable conspiracy even though a subsidiary purpose
is to damage the claimant. The defendants’ legitimate interests extend beyond material
ones: if trade union officers further a purpose which is not calculated to improve the
financial state of their members, but which is honestly believed by them to be desirable,
and has in fact the support of their members — eg, officers of a musicians’ union
opposing racial discrimination among dance-hall patrons” — this is a legitimate interest.
Beyond that, the meaning of ‘legitimate’ is not clear. Perhaps a combination for the
purpose of making the claimant pay a debt owed by him to the defendant union (on
pain of otherwise being deprived of work), is an example of an illegitimate interest.>?
But once the bona fides of the defendants is established, it is irrelevant that the
damage inflicted to secure the purpose is disproportionately severe:*4 the defendants
are not liable merely because they were actuated by spite or ill-will.*° Yet ‘it is sufficient
if all the various combining parties have their own legitimate trade or business interests
to gain, even though these interests may be of differing kinds’.*
It is uncertain whether the burden of proving the purpose of damaging the claimant
lies with the claimant. Lords Wright*’ and Porter** thought it was; Viscount Maugham
held that it lay with the defendant while the other two law lords were silent on the
matter. However, the majority view seems preferable:*” it accords with earlier House of
Lords decisions and with the expressed intention of the Law Lords in Lonrho Ltd v
Shell Petroleum Co Ltd to confine the ambit of the anomalous tort of simple
conspiracy.*°
(C) Justification
Wherever the burden of proof lies, it is clear that the scope of justification in simple
conspiracy is wider than in the ‘general’ economic torts: the defendant who proves
that his primary object was to further his legitimate trade interests succeeds. As we
shall see, however, that does not per se justify procuring a breach of contract. In
32 Scala Ballroom (Wolverhampton) Ltd v Ratcliffe [1958] 3 All ER 220, CA. After Rookes v
Barnard, this decision might be different unless no breach of contract was threatened.
33 Giblan v National Amalgamated Labourers’ Union of Great Britain and Ireland {1903] 2 KB
600, CA.
34 Crofter Hand Woven Harris Tweed Co Ltd Veitch [1942] AC 435, at 447, HL, per Viscount
Simon. Cf Trollope & Sons v London Building Trades Federation (1895) 72 LT 342, CA.
35 In Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, HL, Lord Wright said (at
471): ‘I cannot see how the pursuit of a legitimate practical object can be vitiated by glee at the
adversary’s expected discomfiture’. Cf Viscount Simon, at 444-5 and Viscount Maugham, at
450. Yet the court must inquire into the state of knowledge of Ds whenever it is relevant for
the ascertainment of their purpose: Huntley v Thorton [1957] 1 All ER 234; Bird v O'Neal
[1960] AC 907, PC.
36 Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, at 453, HL, per Viscount
Maugham; cf the judgment of Evatt J in McKerman v Fraser (1931) 46 CLR 343 (High Ct
Australia).
37 [1942] AC 435, at 471, HL.
38 [1942] AC 435, at 495, HL.
39 Certainly, it was applied in Huntley v Thornton [1957] | All ER 234.
40 And see Sorrell v Smith [1925} AC 700, HL.
practice, conspirators will almost always be able to show that they were actuated by
self-interest. It follows, therefore, that conspiracy is a relatively unimportant tort in the
field of economic affairs: the chances of a successful action (where no alternative
cause of action would lie) are remote. This is the inevitable result of the judicial reluctance
to look beyond the purposes of the parties to the economic consequences of their
conduct:
... we live in a competitive or acquisitive society, and the English common law
may have felt that it was beyond its power to fix by any but the crudest
distinctions the metes and bounds which divide the rightful from the wrongful
use of the actor’s own freedom, leaving the precise application in any particular
case to the jury or judge of fact. If further principles of regulation or control are
to be introduced, that is a matter for the legislature.*!
There are now indications that judicial attitudes to competition are changing, with
more emphasis being placed on fairness. Nevertheless, the House of Lords in Lonrho
clearly indicated its distaste for the tort of simple conspiracy, and its role, as we have
already noted, is now minimal. By contrast, the future role of unlawful means conspiracy
is inextricably bound up with the fate of its offspring, the so-called genus tort of
unlawful interference.”
Section 2. Interference with an existing contract®
(A) Origins of the tort: directly inducing a breach of contract

For well over a century a distinct tort of inducing breach of contract has been
recognised.** The tort is committed when the defendant knowingly induces a third
party to break his contract with the claimant, and loss to the claimant results therefrom.
It is not necessary to prove that any unlawful means were employed by the defendant
where breach was directly induced.* As such, directly inducing a breach of contract
does not fit within Lord Diplock’s genus tort of unlawful interference with trade. But
the original tort of inducing breach of contract has been extended in various ways:
1 Inducing a breach of non-contractual obligations may be actionable.
2 Indirect procurement of a breach of contract may be actionable so long as unlawful
means are used.
3 Interference with a contract short of procuring an actual breach may also be
actionable upon proof of unlawful means.
Yet it has been convincingly argued that the second and third extensions are in fact
species of the genus tort of unlawful interference.*°
41 Crofter Hand Woven Harris Tweed Co Ltd v Veitch, supra, at 472, HL, per Lord Wright.
42 See Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493, at 516, per Laddie J; Lonrho
ple v Fayed, supra, at 314, HL, per Lord Templeman.
43 See Bagshaw, ‘Inducing Breach of Contract’ in Horder (ed), Oxford Essays in Jurisprudence,
4th Series (2000); Carty, An Analysis of the Economic Torts (2000) ch 3.
44 Lumley v Gye (1853) 2 E & B 216.
45 DC Thomson & Co Ltd v Deakin [1952] Ch 646, CA.
46 See Carty, An Analysis of the Economic Torts (2000).
Interference with contract or trade \5\
An action for enticement of a servant from his master’s service was established by the
sixteenth century.*’ But a separate, and generally applicable, tort of inducing breach of
contract without lawful justification or excuse dates from Lumley v Gye.*® There, the
court held, on plea of demurer, that the following facts could constitute a tort.
A singer was under a contract to sing at C’s theatre but she was not C’s servant.
She was induced by D, who knew of this contract,’° to break it in order to sing
at D’s theatre instead.
This new principle was soon extended from contracts of service to contracts generally;
and dicta in some cases indeed contemplated its application to advantageous business
relations not embodied in contracts.*° But Allen v Flood! restricted its scope to
interferences with existing contracts, or other enforceable civil obligations. The elements
of this tort must now be examined.
(1) Kinds of contract

Any valid and enforceable contract can found an action upon subsequent
interference.’ Meagre evidence of its terms is enough®’ but interference with a void
contract is, of course, not actionable.”
(2) Kinds of breach

In a departure from dicta in the early part of last century,*° the Court of Appeal decision
in Law Debenture Trust Corpn v Ural Caspian Oil Corpn,*° made it clear that inducing
a breach of any contractual obligation — including the duty to pay damages when a
primary contractual obligation has been broken — can give rise to tortious liability.*’
Furthermore, the breach need not itself be actionable. In Torquay Hotel Co Ltd v
Cousins* an injunction was granted against the defendants who, in the course of
industrial action, were attempting to stop a supplier fulfilling his contract with the
claimant. The contract expressly exempted either party from liability for events beyond
47 Separate torts of enticing and harbouring servants were abolished by the Administration of
Justice Act 1982.
48 (1853)2E
& B 216.
49 C failed at the subsequent trial, the jury finding that D did not believe the contract between C
and Wagner to be binding: see Waddams, ‘Johanna Wagner and the Rival Opera Houses’ (2001)
117 LQR 431.
50 Temperton v Russell [1893] 1 QB 715, CA (preventing C from making a contract); Bowen v
Hall (1881) 6 QBD 333, CA.
51 [1898] AC 1, HL; Sorrell v Smith [1925] AC 700, HL.
52 Cf DC Thomson & Co Ltd v Deakin [1952] Ch 646, at 677, CA, per Evershed MR; Findlay v
Blaylock 1937 SC 21.
53 Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762, CA.
54 Shears v Mendeloff (1914) 30 TLR 342 (infant’s contract); Said v Butt [1920] 3 KB 497
(mistake); Joe Lee Ltd v Lord Dalmery [1927] 1 Ch 300 (gaming); British Motor Trade
Association v Gray 1951 SC 586 (contract void in restraint of trade - obiter dictum of Lord
Keith).
Soe De as Marks v Lord Greenwood [1936] 1 All ER 863, at 872, per Porter J; doubted by
Evershed MR in D C Thomson & Co Ltd v Deakin [1952] Ch 646, at 689-90, CA.
56 [1995] Ch 152, CA.
57 [1994] 3 WLR 1221, at 1235, CA, per Beldam LJ.
58 [1969] 2 Ch 106, CA.
their control (such as labour disputes), which led to a failure to perform. The Court of
Appeal interpreted the clause as ‘an exception from liability for non-performance rather
than an exception from the obligation to perform’. Thus, the defendant’s conduct
still constituted inducing a breach of that latter obligation.
Many actions turn on interpretation of the contract to decide whether there has been
a breach. Hivac Ltd v Park Royal Scientific Instruments Ltd® is a good example.
C had been the only English maker of midget valves for hearing aids. Setting up
in competition, D employed some of C’s staff in their spare time. It was held that
an implied term must be read into the engagement of this staff that the latter
should not break their fidelity to C by doing an act which would injure C’s
business; and, in view of the fact that C had a monopoly on this type of work,
and the staff held a monopoly over the relevant skill, an injunction restraining
the inducement of breach of contract should be granted.
On the other hand, if a contract is determinable by either party at will, it is not actionable
if the defendant induces a party to determine that contract,°' for there has been no
breach but merely a lawful termination of the contract. Similarly, giving notice to terminate
a contract lawfully cannot give rise to a tort action. On the other hand, in most cases,
giving notice of a forthcoming strike is not notice to terminate, but notice of forthcoming
breaches of contract. It thus follows that where there is a no-strike clause in the
contract, inducing a strike amounts to inducing breach of contract. Union officials
inducing strike action are thus prima facie open to tort liability. In realty, however, they
enjoy certain statutory immunities (which fall outside the scope of a book on torts).
Even if the defendant is not responsible for the initial breach of a contract, he will be
liable in tort if he is responsible for continuing the breach of a still subsisting contract.™
Thus, where the defendant engaged a servant in ignorance of an existing contract of
service between the servant and the claimant, he was held liable for having continued
to employ him after learning of the facts.“
But is it still necessary to prove a breach of an obligation under the contract? In
Torquay Hotel Co Ltd v Cousins, Lord Denning contended that even if an exclusion
clause meant that there was no breach of contract, the defendant remained liable for
‘interfering’ with the contract. He thought merely ‘preventing or hindering’ performance
was sufficient, but there is little support elsewhere for such a tort. By contrast,
preventing or hindering performance by unlawful means is actionable, as Dimbleby &
Sons Ltd v NUJ® illustrates.
59 [1969] 2 Ch 106, at 143, CA, per Russell LJ.
60 [1946] Ch 169, CA.
61 McManus v Bowes [1938] 1 KB 98, CA.
62 Rookes v Barnard [1964] AC 1129, HL.
63 Smithies v National Association of Operative Plasterers [1909] 1 KB 310, CA. Cf Denaby and
Cadeby Main Collieries Ltd v Yorkshire Miners’ Association [1906] AC 384, HL. There must
be a continuing obligation at the time of the breach — where, then, is the tort committed if A
agrees to sell his house to B, and C (knowing A has broken this agreement) buys it from A?.
64 Blake v Lanyon (1795) 6 Term Rep 221; Fred Wilkins & Bros Ltd v Weaver [1915] 2 Ch 322.
Cf Read v Friendly Society of Operative Stonemasons [1902] 2 KB 88, at 95, per Darling J; on
appeal [1902] 2 KB 732, CA. See also Jones Bros (Hunstanton) Ltd v Stevens [1955] 1 QB
275, CA.
65 Associated British Ports v Transport and General Workers’ Union, supra, at 806 and 812-13.
66 [1984] 1 All ER 117, CA. See also Shipping Co Uniform Inc v ITWF [1985] ICR 245.
Journalists employed by C refused, in breach of their contracts of employment,

to prepare copy. As a result, C faced severe difficulties in fulfilling his contract
with the publishing company. Nevertheless, C managed to procure alternative
copy.
Sir John Donaldson MR held the NUJ liable for unlawful interference with C’s contractual
obligations. Hindrance, where unlawful means were employed, was sufficient. Dimbleby
& Sons Ltd v NUJ can thus be seen as an example of the genus tort rather than an
extension of the distinct tort of directly inducing breach of contract.”
(3) Knowledge of the contract

The defendant must be shown to have had actual or constructive knowledge,® at
least of the existence,” of the contract which has been broken.” The courts have in
recent years been willing to impute to the defendant the knowledge that he was inducing
a breach.”!
(B) The wider tort: interference with an existing contract

The tort of directly inducing a breach of contract — established in Lumley v Gye” — has
developed into a much broader tort with the emphasis on interference with contractual
relations. In D C Thomson & Co Ltd v Deakin,” Jenkins LJ enumerated the various
forms of the tort as he saw it in 1952. These were:
1 direct procurement of a breach of a contract,
2 direct intervention in the contract (eg, disabling a contracting party),
3 indirect procurement or intervention (eg, secondary industrial action preventing
performance of the contract), and
4 inconsistent dealings.
Authority establishes that interference in all four circumstances may be tortious. We
shall see that direct intervention in the contract, and indirect procurement or
67 Or as some sort of ‘half-way’ tort of unlawful interference with contract: see Carty, An
Analysis of the Economic Torts (2000).
68 British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479, HL; Middlebrook Mushrooms
Ltd v TGWU [1993] ICR 612, CA. But in Lumley v Gye (1853) 2 E & B 216 Lord Campbell
directed the jury that ‘if the defendant bona fide believed that the agreement with the [claimant]
had ceased to be binding upon Miss Wagner the scienter was not proved and the defendant
would be entitled to the verdict’: the jury then found for D.
69 He need not know its terms: J T Stratford & Son Ltd v Lindley [1965] AC 269, HL; Greig v
Insole [1978] 3 All ER 449.
70 Long v Smithson (1918) 118 LT 678 Div Ct; British Homophone Ltd v Kunz and Crystallate
Gramophone Record Manufacturing Co Ltd [1935] All ER Rep 627. In D C Thomson & Co
Ltd v Deakin [1952] Ch 646 it is suggested (at 687, per Evershed MR) that “common knowledge
about the way business is conducted’ would be sufficient constructive knowledge; Cunard
Steamship Co Ltd v Stacey [1955] 2 Lloyd’s Rep 247, CA (official of seaman’s union deemed
to know seaman’s contract would conform with Merchant Shipping Act 1894). It is enough if
D deliberately disregards means of knowledge: Emerald Construction Co v Lowthian [1966] |
All ER 1013, CA.
71 JT Stratford & Son Ltd v Lindley [1965] AC 269, at 307, HL.
72) CSS8)\2eE SaaBeZU6:
73 [1952] Ch 646, CA.
Ss
intervention, both require proof of unlawful means. They might, therefore, be better
regarded as species of the genus tort of unlawful interferenee with trade?”
(1) Direct persuasion or procurement

Direct persuasion or procurement or inducement applied by the defendant to the
contract-breaker is sufficient.” If the contract-breaker is a limited company, an approach
to some person in the company with actual or ostensible authority to make contracts
is required.’”° The issue here seems a straightforward one of causation. There has been
much discussion of how to distinguish advice from persuasion, but the appropriate
test is simply whether the breach of the contract is ‘fairly attributable to any such
pressure, persuasion or procuration’”’ on the part of the defendant. It presents just
the same difficulties as other problems of causation in torts,’ and any distinction
between advice and persuasion is thus unimportant.” For example, a trade union
official who sent to managers of the claimants’ public houses a circular questionnaire
asking for details of the receipts and profits of their houses, was held to have caused
the managers to break their contractual obligation not to disclose confidential
information. The managers had disclosed the information believing that the defendant’s
union might ultimately secure them better wages and conditions.*°
It is important to decide whether the inducement is direct or indirect because if indirect

procurement is pleaded, the breach must be a necessary consequence, and unlawful
means must be used. An inducement may be direct even though a federation transmits
it through its members to a contracting party.*' Where the inducement is direct, it is the
other contracting party, not the one induced, who alone can sue for this tort. Yet
where the ‘inducement’ is couched in terms that might provoke either a lawful or an
unlawful response on the part of the contract breaker, there will be no liability if the
contract breaker elects to respond unlawfully.®
(2) Direct intervention

An action will lie if the defendant intervenes so as to prevent a contracting party from
performing his contract, for example by kidnapping or otherwise restraining him,” or
74 See Carty, An Analysis of the Economic Torts (2000); Elias and Ewing, ‘Economic Torts and
Labour Laws: Old Principles and New Feasibilities’ [1982] CLJ 321.
75 Thomson v Deakin [1952] Ch 646, at 681 and 694, CA, per Evershed MR and Jenkins LJ.
76 [1952] Ch 646, at 681, CA, per Evershed MR.
77 [1952] Ch 646, at 686, CA, per Evershed MR (ratio). On the difficulty of deciding whether
there is merely a transmission of information, and no inducement, see Camellia Tanker Ltd v
International Transport Workers’ Federation [1976] ICR 274, CA, and Bagshaw, ‘Inducing
Breach of Contract’ in Horder (ed), Oxford Essays in Jurisprudence, 4th Series (2000).
78 Eg, Jasperson v Dominion Tobacco Co [1923] AC 709, PC.
79 Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106, at 147, CA, per Winn LJ.
80 Bent’ Brewery Co Ltd v Hogan [1945] 2 All ER 570.
81 Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762, CA. In J T Stratford Ltd v Lindley
[1965] AC 269, at 307, HL, Lord Pearce alone thought the inducement direct.
82 Williams v Hursey (1959) 103 CLR 30 (H Ct Australia). And see Brekkes Ltd v Cattel [1972] Ch
105. The party induced has /ocus standi to obtain a declaration: Greig v Insole [1978] 3 All ER
449.
83 Sanders v Snell (1998) 157 ALR 491.
84 DC Thomson & Co Ltd v Deakin [1952] Ch 646, at 678 and 694-5, CA, per Evershed MR and
Jenkins LJ.
by removing essential tools from him.*° The wrongful act against the one contractor
creates a cause of action for interference with the contract in the hands of the other. In
GWK Ltd v Dunlop Rubber Co Ltd the facts were as follows.
A car manufacturer had contracted with C that, when he exhibited his car at a
motor show, it would have tyres made by C fitted to it. D unlawfully removed C’s
tyres and substituted them with tyres made by D. That trespass to the car
owner’s goods created liability to C.
In D C Thomson & Co Ltd v Deakin, Evershed MR*’ limited liability for direct
intervention resulting in a breach of contract to tortious acts (as in GWK Ltd v Dunlop
Rubber Co Lid). But there are dicta suggesting that a wrongful act by the defendant
which, had it been done by the contractor would have been a breach of contract, will
also ground an action in this tort.** But not every breach of a penal statute will suffice;*”
some form of unlawful means directed against the claimant must always also be
established. This, arguably, would allow the claim to be brought within the genus tort
of unlawful interference with trade. But the decided cases reveal a lingering commitment
on the part of the courts to deal with such cases as interferences with existing contracts.
(3) Indirect procurement

This version of the tort has typically been invoked to stop secondary industrial action.
It is committed when the defendant procures a third party to do a wrongful act —
normally to breach his contract of employment in order to prevent performance of the
main contract. For example, it covers the situation where union officials persuade men
working for a supplier of parts to a car manufacturer to strike, thus preventing their
employer from performing his contract with the manufacturers. This conduct, involving
an unlawful act on the part of the strikers, may allow the manufacturer to sue.
For liability to be established, more than general exhortations issued in the course of a
trade dispute — such as ‘stop supplies to A’ or ‘treat X as black’ — must be proved.
Rather, it must be clear that the defendant intends a specific contract to be broken. Yet
the defendants in J T Stratford & Sons Ltd v Lindley’ were found liable.
S Ltd let out barges on hire to customers. These customers were under a
contractual obligation to return the barges to S Ltd’s moorings. The defendant
union officials instructed their members to break their contracts of employment
with S Ltd’s customers by not returning the barges. The members obeyed those
instructions and did not work the barges back to S Ltd’s moorings. The House of
Lords held that this amounted to the tort of procuring a breach of the contract
between S Ltd and their customers: the breach of contract being a necessary
consequence of D’s conduct.
85 [1952] Ch 646, at 702, per Morris LJ.

86 (1926) 42 TLR 376; on appeal 42 TLR 593, CA.
87 [1952] Ch 646, at 678.
88 [1952] Ch 646, at 694, per Jenkins LJ; Statnigros v Storhaug & Partners [1953] CLY 3556
(landlord covenanted with C, a tenant, to leave open a particular door on Saturday mornings;
the landlord’s agent locked it and was held liable in damages on the principle of Lumley v Gye
(1853) 2 E & B 216).
89 Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173, HL.
90 [1965] AC 269, HL.
And in Falconer v ASLEF? ' the defendants were held liable to the claimant for the
hotel expenses he incurred when they called railwaymen outon strike, thus preventing
the claimant from travelling on the ticket he had purchased for a planned journey. The
interference with the performance of the contract between British Rail and the claimant
was found to be a necessary consequence of the defendants’ actions.
Indirect procurement is actionable only on proof of unlawful means. While this will
often consist of breaches of contract by a third party, other unlawful means may also
suffice.’ Thus, the tort of nuisance committed by demonstrators hindering distribution
of the claimants’ newspapers was held to constitute the necessary unlawful means in
News Group Newspapers Ltd v SOGAT ’82 (No 2).*°
(4) Inconsistent dealings®*

In D C Thomson & Co Ltd v Deakin, Jenkins LJ proclaimed no doubt that ‘if a third
party, with knowledge of a contract between the contract breaker and another, had
dealings with the contract breaker which the third party knows to be inconsistent with
the contract, he has committed an actionable interference’.”» This is correct.”° But it is
not always easy to decide whether the defendant, in making the inconsistent dealing,
has merely taken advantage of the voluntary decision already made by the third party
to discontinue his contract, or whether he has in fact been instrumental in bringing
about that discontinuation. British Motor Trade Association v Salvadori illustrates
the point.”
Third parties had entered into covenants with C not to resell cars except under
certain conditions. D had bought some cars from these third parties with a view
to resale at a profit in circumstances which amounted to a breach of the covenant
with C. Roxburgh J held that D had offered a price for a car high enough to cause
a man (who would not otherwise have broken his covenant) to sell it in breach of
covenant and that D was therefore liable.** He added that ‘any active step taken
by a defendant having knowledge of the covenant by which he facilitates a
breach of that covenant is enough’, and that ‘a defendant by agreeing to buy,
paying for and taking delivery of a motor car known by him to be on offer in
breach of covenant’ commits the tort.”
91 [1986] IRLR 331 (county court).

92 Merkur Island Shipping Corpn v Laughton [1983] 2 AC 570, HL.
93 [1987] ICR 181.
94 For critical analysis of this version of the tort see Bagshaw, ‘Inducing Breach of Contract’ in
Horder (ed), Oxford Essays in Jurisprudence, 4th Series (2000) 144-145.
95 [1952] Ch 646, at 694; not considered by the other judges.
96 At least if the word ‘dealings’ is limited to ‘the making of a contract’. Jenkins LJ may have
intended to include other dealings — eg, accepting benefits under a contract already made. In De
Francesco v Barnum (1890) 63 LT 438, an action succeeded against a theatrical manager who
continued to employ show girls after receiving notice of a prior inconsistent contract which
they had with C.
97 [1949] Ch 556.
98 [1949] Ch 556, at 565.
99 British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479, HL.
This case can be contrasted with Batts Combe Quarry Ltd v Ford.
On selling his quarry to C, a father contracted not to assist in setting up any rival
quarry in the neighbourhood. His son, D, decided to set up such a quarry and
the father financed him in this enterprise. It was held that the acceptance of this
gift by the son was not an actionable interference with C’s contract.
(5) Defendant's state of mind

A defendant is liable if he intends to bring about a breach of the contract. It is irrelevant
that he did not act with malice in the sense of spite or ill-will.!°! The decision of the
Court of Appeal in Exchange Telegraph Co Ltd v Gregory & Co' illustrates the
point.
C had a monopoly of information about Stock Exchange prices and circulated

this information to subscribers who had contracted not to communicate it to
others; they also published it in a newspaper, issued six times daily. D, a
stockbroker, induced a subscriber to give him information contained in C’s circular,
and posted it in his own office for the benefit of his clients. He was held liable for
interference with a contract.
If the defendant does an act, the substantially certain consequence of which is to

bring about a breach of a contract of which he is aware, then an intention to bring
about the breach will be imputed to him, and he will be liable unless the presumption is
rebutted.'®? A negligent interference with a contract does not however constitute this
tort,'“ as the current tendency of the courts in such cases is to insist upon a deliberate
and intentional act aimed at the claimant.’ That said, it remains to be established
clearly whether the defendant must merely intend the act that causes a breach, or
whether he must intend not simply the act, but also that it will cause a breach. The
leading case, Millar v Bassey,'*° is hopelessly confused on the matter. Two Court of
100 [1943] Ch 51, CA.

101 There are dicta in Lumley v Gye (1853) 2 E & B 216, and Bowen v Hall, supra, that malice is
essential, but later cases such as Quinn v Leathem [1901] AC 495, at 510, HL, per Lord
Macnaughton, South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239, HL,
The Kaliningrad and The Nadezhda Krupskaya [1997] 2 Lloyd’s Rep 35 and D C Thomson &
Co Ltd v Deakin, supra, at 676, CA, per Evershed MR have made it abundantly clear that spite
or ill-will is not required. Good faith is no defence: Greig v Insole [1978] 3 All ER 449.
102 [1896] 1 QB 147, CA; British Motor Trade Association v Salvadori [1949] Ch 556; Emerald
Construction Co v Lowthian [1966] 1 All ER 1013.
103 White v Riley [1921] 1 Ch 1, CA; Inshore Services (International) Ltd v NFFO Services Ltd
[2001] EWCA Civ 1722, at [21], per Brooke LJ; Emerald Construction Co v Lowthian [1966]
1 All ER 1013, at 1019, CA, per Diplock LJ. Dealing with a plea that the tort is not committed
when D has an honest doubt whether he was interfering with the contract, Browne-Wilkinson
J held in Swiss Bank Corpn v Lloyds Bank Ltd [1979] Ch 548, at 580, that, if D chooses to
adopt a course which to his knowledge will undoubtedly interfere with C’s contract, on one
view of the law, he must at least show that he was advised and honestly believed he was legally
entitled to take that course.
104 Cattle v Stockton Waterworks Co (1875) LR 10 QB 453; Société Anonyme de Remorquage a
‘Hélice v Bennetts [1911] | KB 243.
105 Bennett v Metropolitan Police Comr [1995] 2 All ER 1; Northern Territory v Mengel (1995) 69
ALJR 527, (H Ct Aus).
106 [1994] EMLR 44, CA.
Appeal judges adopted diametrically opposed views, while the third was unfathomably
\
equivocal.'°” “4
(6) Damage
It must be proved that the breach of the contract has caused damage (or, at least, that
damage can be inferred from the circumstances'™). An illustration of this need to
prove damage is furnished by Jones Bros (Hunstanton) Ltd v Stevens. 109
D continued to employ a servant after learning that the servant, in entering into
his employment, was breaking his contract with C. It was shown, however, that
in any event, the servant would not have returned to C’s employment. It was
held, therefore, that C’s action based on this tort failed: no damage had been
occasioned.
(7) Justification
It is established that, exceptionally, circumstances may justify interference with
contracts. As yet the courts have not laid down any detailed rules for this defence.
Ho wever, the dictum of Romer LJ is widely cited.''°
[R]egard might be had to the nature of the contract broken; the position of the
parties to the contract; the grounds for the breach; the means employed to
procure the breach; the relation of the person procuring the breach to the person
who breaks the contract; and to the object of the person in procuring the breach.
In that case it was held that the defendants were not justified in calling the miners out
on strike in order to keep up the price of coal by which the miners pay was regulated."
The breach by a claimant of his contract with the defendant will not justify the defendant
in inducing a third party to break his contract with the claimant.'!”
Brimelow v Casson is one of the rare cases where the defence succeeded.!!°
107 But see The Kalingrad and The Nadezhda Krupskaya [1997] 2 Lloyd’s Rep 35 where Rix J
emphasised (at 39) the need to intend a breach of contract. And see also the suggestion of
Laddie J in Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493 that intention in this
context (and equally among the other economic torts) should embrace recklessness.
108 Exchange Telegraph Co Ltd v Gregory & Co [1896] 1 QB 147, CA; Goldsoll v Goldman
[1914] 2 Ch 603; on appeal [1915] 1 Ch 292, CA; Bents Brewery Co Ltd v Hogan [1945] 2 All
ER 570.
109 [1955] 1 QB 275, CA.
110 Glamorgan Coal Co Ltd v South Wales Miners’ Federation [1903] 2 KB 545, at 574-5, CA;
approved by Lord Lindley in South Wales Miners’ Federation v Glamorgan Coal Co Ltd
[W905 "AG 239. 8at252 4H:
Cf Temperton v Russell [1893] 1 QB 715, CA where trade union officials were not justified in
interfering in order to enforce certain conditions of labour in a particular trade; Read v
Friendly Society of Operative Stonemasons of England, Ireland and Wales [1902] 2 KB 88.
112 Smithies v National Association of Operative Plasterers [1909] 1 KB 310, CA. Of course if a
contract which X has made with Y is so inconsistent with an earlier contract between X and Z
that the later contract interfered with the performance of the earlier one, the very act of X in
making the contract with Y constitutes a tort. See the analysis of this defence by Goff J in
Pritchard v Briggs [1980] 1 All ER 294, at 326 et seq.
113 [1924] 1 Ch 302. Yet Simonds J in Camden Nominees Ltd v Forcey [1940] Ch 352, at 366
treated that decision as being based on the separate ground of ex turpi causa.
D represented various theatrical unions, and C owned a touring theatrical

company. D induced a theatre manager to break his contract with C because C
was paying such low wages to his company that some chorus girls were compelled
to resort to prostitution. The interest that D had in maintaining professional
theatrical standards was held to justify D procuring the breach.
It may be that if the means whereby the breach is effected are wrongful in themselves,
the defence of justification will not be available.''* In any event, it is clear that the
defence is not very wide, and the facts which would absolve the defendants in the tort
of conspiracy on the ground that the acts were done for the purpose of protecting the
trade interests of the defendants will not constitute justification for the tort of procuring
a breach of contract. Similarly, an employer may subsequently ‘cure’ an ostensibly
wrongful dismissal of an employee when facts later come to light showing that the
dismissal was justified after all; but this kind of justification does not, except in
exceptional circumstances, apply in the tort of procuring a breach of contract.''5 In
both cases, the interest in maintaining the security of contracts outweighs that of
protecting free trade. On the other hand, lawfully to exercise one’s own contractual
rights (as against A) with the consequence that it will inevitably cause A to break his
contract with B probably is justified. As Rix J explained in The Kaliningrad and The
Nadezhda Krupskaya:
[If] a shipowner enters into a time-charter on terms (which are standard) which
entitles him to withdraw his vessel for late payment of hire, it seems to me that he
remains entitled as is justified in validly exercising that right even if he thereby
interferes knowingly and intentionally with another contract.''®
(C) Inducing breaches of other obligations

It is now established that it is tortious deliberately to procure the violation of any
enforceable obligation providing violation of that obligation is itself actionable.''” So,
by analogy with inducing breach of contract, it is a tort to induce a breach of statutory
duty (if performance of that duty would confer a benefit on the claimant),''* even ifthe
breach of statutory duty would not itself give rise to an action in tort.'!? It is also
tortious to induce the breach of an equitable obligation,'”’ (other than a breach of
trust'?!). And it has been held in principle that the tort may extend to inducing breach
114 Camden Nominees Ltd v Forcey [1940] Ch 352. Cf Green v Button (1835) 2 Cr M & R 707.
115 SOS Kinderdorf International v Bittaye [1996] 1 WLR 987, at 994, PC, per Lord Keith.
116 [1997] 2 Lloyd’s Rep 35, at 39.
117 As Bagshaw, ‘Inducing Breach of Contract’ in Horder (ed), Oxford Essays in Jurisprudence, 4th
Series (2000) has pointed out (at 149): the critical test appears to be ‘whether such obligations
should be recognized as having a dimension which should be protected against the rest of the
world’.
118 Meade v Haringey London Borough Council [1979] 2 All ER 1016, CA; Associated British
Ports v Transport and General Workers’ Union [1989] 3 All ER 796 CA; revsd on other grounds
[1989] 3 All ER 822, HL.
119 Wilson v Housing Corpn [1997] IRLR 346.
120 Prudential Assurance Co Ltd v Lorenz (1971) 11 KIR 78; Lonrho ple v Fayed (No 2) [1991]
‘4 All ER 961.
12 = Where D procures such a breach of trust, he himself (by operation of the rules of equity)
becomes liable as trustee, thus affording C adequate protection. See Metall und Rohstoff AG v
Donaldson Lufkin and Jenrette Inc [1990] 1 QB 391.
of copyright.'*? Like directly inducing breach of contract, proof that unlawful means
were used to procure the breach is unnecessary.'?? The unlawful act is the procurement
itself, the ‘unjustifiable interference with legal rights’.> 124
(D) Remedies
(1) Damages
Higher damages will often be recoverable in this tort than could be obtained in an
action for breach of contract against the contract-breaker. 125
a The damages will be assessed in the light of the facts as at the date of the breach,
not when the contract was made.
b Any damage which the defendant intended to cause is recoverable in tort, eg, if
the defendant intended to make the claimant bankrupt.'*°
The damages may be more extensive than those awarded in contract.'*’
Damages are at large in this tort. Thus in GWK Co Ltd v Dunlop Rubber Co Ltd,'”8
the court included compensation for loss of prestige in its award of general
damages. Furthermore, in British Motor Trade Association v Salvadori, Roxburgh
J held that the expenses incurred in unravelling and detecting the devices of the
defendants for evading the covenant system were recoverable. He noted that ‘the
maintenance of fixed prices and the covenant system as an integral feature of that
policy is a trade interest which the [claimants] are entitled to protect against
unlawful interference’ .!”°
Sometimes the action in tort will succeed where one in contract would fail — for example,
where, if physical restraint is used, frustration might be pleaded in contract. Equally,
the complications that arise from the claimant’s election to sue for breach of contract
can be avoided in this action; and the duty of the claimant to mitigate his damage may
be less strict when he is the victim of an intentional tort.'°°
122 CBS Songs v Amstrad Consumer Electronics plc [1988] AC 1013, HL (no liability on the facts
where D had only provided X with tape machines that were capable of being used to infringe C’s
copyright). By contrast, no independent tort lies in respect of inducing breach of tortious
obligations; but a separate tort is unnecessary here since such an act would engage the principles
of joint tortfeasance
23 Associated British Ports v Transport and General Workers’ Union, supra, at 812 and 816.
124 F vy Wirral Metropolitan Borough Council [1991] Fam 69, CA. But quaere whether this
approach withstands the arguments made by Laddie J in Michaels v Taylor Woodrow Developments
Ltd [2001] Ch 493 in favour of harmonising the notion of ‘unlawful means’ throughout the
economic torts.
125 Lumley v Gye (1853) 2 E & B 216, at 233-4, per Erle CJ.
126 Lumley v Gye (1853) 2 E & B 216.
127 Cf Gunter v Astor (1819) 4 Moore CP 12 (enticement of servants by a rival piano manufacturer;
although only in breach for one half day, the court rejected a claim that the damages in tort be
so restricted, and awarded two years’ loss of profits).
128 (1926) 42 TLR 376.
129 [1949] Ch 556, at 568-9.
130 See Carmen v Fox Film Corpn 204 App Div 776 (1923) (NY). Interesting problems about the
effect of satisfaction of a judgment in contract on the claim in tort remain unsolved: see, eg,
Bird v Randall (1762) 3 Burr 1345.
Interference with contract or trade \6|
(2) Injunction
The remedy often sought in this context is an injunction. As with other torts, an
injunction is not granted as of right and may be refused even though the tort is
established.'*' That said, an injunction may be awarded even if an action for damages
fails.'** Thus, Lumley failed to recover damages from Gye (because Gye did not believe
Lumley’s contract with Wagner was binding), but he did obtain an injunction. Equally,
an injunction may be granted to prevent conduct which would lead to a breach of
contract although there is insufficient ‘interference’ for the tort action in damages to
succeed. The basis for such an injunction is that the ‘proprietary interest’! may be
protected.'** By contrast, an injunction will be refused against a defendant who
persuades an employee of the claimant to leave his employment and work for the
defendant, where the effect of the injunction would be to tie a reluctant employee to
the claimant.'*
In practice, claimants often apply for an injunction ex parte and the courts will often
grant an interlocutory injunction based on the claimant’s affidavit. This happened in
JT Stratford & Son Ltd v Lindley'** and Torquay Hotel Co Ltd v Cousins.’ But the
court must be satisfied that the balance of convenience favours granting the
injunction.'°*
Section 3. Intimidation'*’
A Introduction
Although the torts based on interference with an existing contract and conspiracy do
not always fit squarely with Lord Diplock’s description of them as mere ‘species’ of his
‘genus tort’ of unlawful interference with trade, the same cannot be said of intimidation.
131 Eg, Rely-a-Bell Burglar and Fire Alarm Co Ltd v Eisler [1926] Ch 609, where the effect of
granting an injunction would have been to prevent the servant from working at all. An
injunction against the new employer who enticed him was refused.
132 In Esso Petroleum Co Ltd v Kingswood Motors (Addlestone) Ltd [1974] QB 142, a mandatory
injunction was ordered requiring the reconveyance of a garage sold in breach of a solus tie
agreement.
133 Cf A-G for New South Wales v Perpetual Trustee Co Ltd (1951) 85 CLR 237, at 297 H Ct of
Australia where Kitto J said: ‘a person has a right in rem in respect of the contractual rights,
the rights in personam, which he possesses as against the other party to his contract’.
134 Manchester Ship Canal Co v Manchester Racecourse Co [1901] 2 Ch 37, CA, applying
Lumley v Wagner where A agreed to sell land to B, and then contracted to sell to C; injunction
granted to B restraining C from performing his contract: Earl Sefton v Tophams Ltd and
Capital and Counties Property Co Ltd [1965] Ch 1140, CA; revsd on other grounds, [1967] |
AC 50, HL. Injunctions are freely given under this head when disclosure of trade secrets is
involved: Printers and Finishers Ltd v Holloway [1964] 3 All ER 731, at 738. See also Swiss
Bank Corpn v Lloyds Bank Ltd [1979] Ch 548 and Pritchard v Briggs [1980] Ch 338.
135 Lotus Cars Ltd v Jaguar Cars Ltd [1982] LS Gaz R 1214.
136 [1965] AC 269, at 307, HL.
137 [1969] 2 Ch 106, [CA.
138 NWL Ltd v Woods [1979] 3 All ER 614, HL. On the factors to be considered in deciding whether
a court in its discretion grants an interlocutory injunction, see Hadmor Productions Ltd v
Hamilton [1983] 1 AC 191, HL and American Cyanamid Co v Ethicon Ltd [1975] AC 396,
HL; Dimbleby & Sons Ltd v NUJ [1984] 1 All ER 751, HL; Associated British Ports v Transport
and General Workers’ Union [1989] 3 All ER 796, CA.
139 See Carty, An Analysis of the Economic Torts (2000) ch 4.
It involves the defendant using an unlawful threat successfully to compel another to

act (or refrain from acting) in a particular manner that will cause harm to the claimant.'*°
Normally, the person threatened will be a third party, but it is possible for the tort to be
committed where the coercive threat is issued directly to the claimant. In other words,
there are two forms of intimidation: two-party intimidation and three-party intimidation.
Both forms of the tort may be of less practical importance than formerly since the entry
into force of the Protection from Harassment Act 1997. Under section 3(2) of that Act,
damages are available not only for any anxiety caused by harassment of the victim, but
also in respect of any financial loss resulting from that harassment. However, if the
courts take the (probable) view that indirect financial losses are not covered,'*' recourse
to the common law tort will still remain important.
B Unlawful threats
Intimidation is committed whenever an unlawful threat is successfully used

deliberately’ to cause another to do something they would not otherwise do, or to
cause them to refrain from doing something that they would otherwise do with the
result (in either case) that harm is caused either to the subject of the threat or to a third
party. The requirement that the threat be coercive in this way is well established.'*
In terms of the unlawfulness of the conduct threatened, the early authorities on
intimidation involved threats of violence.'** However, the modern tort of intimidation
was defined in somewhat broader terms in Rookes v Barnard.'*
C was an employee of the airline BOAC who had resigned from his trade union.
Ds were union officials. They threatened BOAC that all union members employed
at BOAC would strike unless C was dismissed. BOAC consequently gave C
notice and (lawfully) dismissed him.
The House of Lords held that the breach of contract threatened by the union members
in that case was a sufficiently unlawful form of conduct to substantiate the tort. On the
other hand, if the act threatened by the defendant is something that the defendant is
entitled to do, there can be no tort, for it cannot be an unlawful threat when what is
threatened is something the defendant was perfectly entitled to do. As Lord Reid once
put it “so long as the defendant only threatens what he has a legal right to do he is on
safe ground’.'** While this is true, the converse is not. For while a threat of a breach of
contract will suffice in cases of three-party intimidation (where X threatens to break his
contract with Y thereby causing loss to Z),'*’ such threats will give rise to contractual
140 News Group Newspapers Ltd v SOGAT ’82 (No 2) [1987] ICR 181.
141 See Waters v Metropolitan Police Comr [2000] 1 WLR 1607, HL. But note that the action in
that case against an employer, D, that was brought by C in respect of the harassment of C by
fellow employees was founded on negligence, not the indirect harassment of the employer.
142 Cheticamp Fisheries Co-operative Ltd v Canada (1995) 123 DLR (4th) 121, at 127, per
Chipman JA.
143 See Hodges v Webb [1920] 2 Ch 70; J T Stratford & Sons Ltd v Lindley [1965] AC 269, HL.
144 For a modern example see Godwin v Uzoigwe [1993] Fam Law 65, CA.
145 [1964] AC 1129, HL.
146 Rookes v Baranard [1964] AC 1129, at 1168-9, HL. See also Hardie and Lane Ltd v Chilton
[1928] 2 KB 306 and Ware and De Freville Ltd v Motor Trade Association [1921] 3 KB 40, CA.
147 Rookes v Barnard, supra.
remedies only in the context of cases of two-party intimidation (where the threatened
breach is of the defendant’s contract with the claimant).'*® Such remedies may take the
form of an injunction, or avoidance of the ‘new’ contract in cases of economic duress. '”°
A threat to commit a criminal act of violence will always suffice, but breach of a penal
statute is not per se sufficient: the statute must also be intended to create private
rights.'°® On the other hand, breach of an equitable obligation may well be sufficient.'®!
Finally, in News Group Newspapers Ltd v SOGAT ’82 (No 2) Stuart-Smith J insisted
that the claimant ‘must be a person whom [the defendant] intended to injure’.'? Thus,
it seems beyond doubt that the defendant must intend his threat to cause harm to the
claimant.
Section 4: Unlawful interference with trade

While the precise boundaries of Lord Diplock’s genus tort of ‘interfering with the trade
or business of another person by doing unlawful acts’'® still need to be established,
the main ingredients of the tort are now reasonably clear (if not uncontroversial). It is
a tort committed against another’s business or trade interests, it is founded on the
infliction of intentional harm'™ and requires the use of unlawful means. So much is
clear from Barretts & Baird (Wholesale) Ltd v IPCS'* where the facts were as follows.
Cs were members of the Association of British Abattoir Owners and companies
in the meat trade. The defendant union (D) represented fatstock officers employed
by the Meat and Livestock Commission (MLC) in connection with the certification
of slaughtered meat. D was engaged in a dispute with the MLC over pay and
conditions. The officers voted to take strike action and a one-day strike had
already created considerable difficulties for Cs’ business. They alleged that D
was liable for interfering in their business by unlawful means either by inducing
breach of the officers’ contracts of employment or by breach of statutory duty
by the MLC.
Henry J, attempting to define the tort of unlawful interference, held that four ingredients
of the tort must be established, namely:
148 Pau On v Lau Yiu Long [1980] AC 614, PC.

149 In such cases, the courts insist upon coercion of the will of the threatened party (see, eg, Pao
On v Lau Yiu Long, supra, at 635, HL, per Lord Scarman), but whether coercion is the true basis
has been subjected to very powerful criticism: see Atiyah, ‘Economic Duress and the “Overborne
Will’ (1982) 98 LQR 197 and Birks, ‘The Travails of Duress’ [1990] LMCLQ 342. See also,
Bigwood, ‘Economic Duress by (Threatened) Breach of Contract’ (2001) 117 LQR 376.
151 Dixon v Dixon {1904] 1 Ch 161.
152 [1987] ICR 181, at 204.
153 Merkur Island Shipping Corpn v Laughton [1983] 2 AC 570, at 608, HL.
154 Associated British Ports vyTGWU [1989] ICR 557, CA. In this case Staurt-Smith LJ made it
clear (at 586) that ‘deliberate and intended damage’ is required. But it has since been said that
recklessness will suffice in this context, just as it does in the context of inducing breach of
contract: see Inshore Services (International) Ltd vyNFFO Services Ltd [2001] EWCA Civ
1722, at paras [21]-[22]. Cf the academic view that recklessness in the sense of foresight of
inevitable or highly probable harm should be insufficient: Carty An Analysis of the Economic
Torts (2000) pp105-108.
155 [1987] IRLR 3.
1 interference with the claimant’s trade or business;

2 unlawfulmeans; —~ v4
3 intent to injure the claimant; and
4 actual injury.
He refused the claimants’ application for an interlocutory injunction on two grounds.
The alleged breach of statutory duty by the MLC was not made out. Statute required
them to provide a system of inspection, not a strike-free system. Moreover, even if the
breach of their contracts of employment by the fatstock officers constituted unlawful
means, no intention to injure the claimants was proved.
The two main outstanding problems that arise in connection with the genus tort are (a)
whether it protects any economic interests not adequately protected by the three
species torts of conspiracy, intimidation and interference with an existing contract,
and (b) what constitutes unlawful means in this context?
(A) The interests protected

For some commentators, the notion that the genus tort must be confined to interferences
with the claimant’s business or trade interests seems inapposite. In confining the remit
of the genus tort in this way, it can appear narrower in scope than the so-called species
torts. It has even been argued that it has the potential to develop into an expansive,
general tort based on the intentional infliction of harm in much the same way that the
tort of negligence has developed in relation to non-intentional harm.'** Certainly there
are reported cases that suggest the clear possibility of such an expansion. In Dimbleby
& Sons Ltd v NUJ,'*’ for example, the claimant, though able to produce his newspaper,
found it a greater hardship (and thus less profitable) to do so in the face of the defendant’s
interference. He was able to invoke the tort. Similarly, in the (admittedly only county
court) case of Falconer v ASLEF,'** an award was made to a disappointed rail traveller
where a strike caused him to incur hotel expenses.
(B) Unlawful means

The proper understanding of unlawful means for the purposes of this tort is hotly
disputed.'*? Unlawful acts capable of giving rise to tortious liability constitute unlawful
means,'” even if those unlawful means are not actionable at the instance of the third
party through whom the defendant has harmed the claimant.'*' Breaches of contract
156 Sales and Stilitz, ‘Intentional Infliction of Harm by Unlawful Means’ (1999) 115 LQR 411.
The authors see the usual emphasis on unlawful means as misplaced and consider D’s intention
to harm C as the critical link between D and C in the paradigm case where D’s act against X is
done with a view (ultimately) to causing harm to C.
157 [1984] 1 WLR 67, CA.
158 [1986] IRLR 331.
159 For a useful account of the conflicting case law, see the review supplied by Laddie J in Michaels
v Taylor Woodrow Developments Ltd [2001] Ch 493.
160 See, eg, Plessey Co ple v Wilson [1982] IRLR 198.
161 Lonrho ple v Fayed [1990] 2 QB 479, at 489, CA, per Dillon LJ. See also National Phonographic
Co Ltd v Edison-Bell [1908] 1 Ch 335 (D lied to a third party in order to gain an economic
advantage over C and could be sued by C although the lies to the third party did not constitute
actionable deceit, there being no loss to the third party).
also suffice for the three-party version of this tort, since it would be most strange if a
threat of such a breach could ground an action (in intimidation), but an actual breach
could not. Other civil wrongs — such as a breach of an equitable obligation — may also
be enough in this context.' Less clear is the status of the defendant’s use of means
that constitute the use of an arrangement that is unlawful only in the sense that it is in
restraint of trade. In one House of Lords case'® it was held that an agreement made in
restraint of trade is void and therefore unenforceable without being unlawful as such.
In two subsequent Court of Appeal cases, however, it has been suggested that such
unenforceable agreements are sufficiently ‘unlawful means’ to ground this tort.!
Another problem centres on criminal acts. In certain cases, policy considerations may
militate against implementation of civil liability as in Chapman v Honig'® where, even
though the landlord who maliciously evicted a tenant subpoenaed to give evidence
against him acted in contempt of court, no action was found to lie in tort. Similarly,
simple commission of a statutory crime — eg, where a lone driver speeds on behalf of
his employer X in order to assist X in taking business from Y — cannot sensibly be
thought to incur tortuous liability towards Y on the part of the driver.'®
The House of Lords decision in Lonrho Ltd v Shell Petroleum Co Ltd (No 2)'°’ poses
difficulties of a far more general nature.
C complied with sanctions orders prohibiting the supply of oil to the illegal
regime in Southern Rhodesia. D, in breach of the orders, continued to supply oil
to that regime. C alleged that those unlawful acts resulted in losses to them
caused by the prolongation of the illegal regime increasing D’s business at C’s
expense.
The claimants sought to establish liability for their business losses on three grounds:
conspiracy, breach of statutory duty and interference with trade by unlawful means.
Conspiracy failed because no intent to injure the claimants was proved; there was
merely an endeavour to promote the interests of the defendants. Breach of statutory
duty failed because the statutory prohibition on supplying oil was not shown to be a
duty imposed for the benefit or protection of a class of which the claimants were
members. The claimants were thus forced, in pursuit of their third claim, to rely heavily
on the broad principle enunciated by Lord Denning in Ex p Island Records'* that
‘whenever a lawful business carried on by one individual in fact suffers damage as the
consequence of a contravention by another individual of any statutory prohibition
the former has a civil right of action against the latter for such damage’. Lord Diplock
162 Jarman & Platt Ltd v I Barget Ltd [1977] FSR 260, CA; Indata Equipment Supplies Ltd v ACL
Ltd [1998] FSR 248, at 264, CA, per Otton LJ.
163 Mogul Steamship Co v McGregor Gow & Co [1892] AC 25, HL. See also Newport Association
Football Club Ltd v Football Association of Wales Ltd (1995] 2 All ER 87.
164 Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762, CA; Associated British Ports v
TGWU [1989] ICR 557, CA.
165 [1963] 2 QB 502. See also Hargreaves v Bretherton [1959] 1 QB 45 (no cause of action arising
in respect of harm resulting from D’s perjury); but in Acrow (Automation) Ltd v Rex Chainbelt
Inc [1971] 3 All ER 1175, CA, Ds were held liable for business losses resulting from Ds’ aiding
and abetting breach of an injunction not to impede C’s manufacture of certain equipment.
166° Example and point drawn from Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493,
at 502, per Laddie J.
167 [1982] AC 173, HL.
168 [1978] Ch 122, CA.
in Lonrho expressly rejected such a wide principle of liability for economic loss. The
correct approach, he said, was one of construction of the statute. Was it intended to
create private rights? The decision in Lonrho received further support from the Court
of Appeal in RCA Corpn v Pollard.'® There, the defendants were selling bootlegged
Elvis Presley records, a ctiminal offence under the Dramatic and Musical Performers’
Protection Act 1958. The Court of Appeal refused an injunction to the claimants who
enjoyed exclusive recording contracts for Presley records. The loss of commercial
benefits caused by the defendants’ statutory crime did not per se found a cause of
action in tort or any right to an injunction.
It is difficult, then, to imagine any circumstances where, in future, a statutory crime
which is not independently a civil wrong will be sufficient to constitute unlawful
means for the purposes of this tort.'”” Lord Diplock’s rejection of the ‘wide principle’
of liability for business losses must however be seen in context. No intent to injure
Lonrho was proved. That intent was said, in Barretts & Baird v IPCS, to be an essential
ingredient of the tort of unlawful interference.'’! It remains open to a higher court
finally to establish that while liability for business losses resulting from statutory
crimes does not follow automatically, a statutory crime may nonetheless constitute the
required unlawful means where an intention to injure the claimant can be established.'”
(C) Two-party cases

There seems to be slender support for the notion that the genus tort can be committed
in a two-party scenario.'” If A breaks his contract with B intending not merely to cause
B’s disappointment on the contract, but also intending to bring about B’s complete
commercial ruin, there would be an undesirable multiplication of liability; one, indeed,
that would conceivably lead to exemplary damages.'’* And where the wrong in question
constituted some other, extant tort — eg, defamation designed to cause economic loss
to the claimant — there would be no need of the genus tort. As such, it is doubtful
whether the availability of the tort in two-party scenarios will be confirmed judicially.
(D) Justification
It has yet to be firmly settled whether justification may be invoked as a defence in
connection with the genus tort. There are arguments both ways. On the one hand, so
long as the commission of a legal wrong constitutes a threshold requirement for the
169 [1983] Ch 135, CA. The court was careful to state that it was not pronouncing on the
soundness of earlier cases such as Springhead Spinning Co v Riley (1868) LR 6 Eq 551 where
property rights were protected by injunction.
170 See Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493.
171 The centrality of intent has also been identified by two very able academic commentators:
Sales and Stilitz, ‘Intentional Infliction of Harm by Unlawful Means’ (1999) 115 LQR 411.
172 A question left open by Associated British Ports v Transport and General Workers’ Union
[1989] 3 All ER 796, CA; revsd on other grounds [1989] 3 All ER 822, HL. See also the
discussion in Carty, An Analysis of the Economic Torts (2000) pp113-116.
173 See Cornwall Gardens Pte Ltd vy R O Garrard & Co Ltd [2001] EWCA Civ 699, CA.
174 Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29, [2001] 2 WLR
1789, HL.
commission of the tort, it is difficult to perceive any role at all for such a defence. As
Webster J put it in Shearson Lehman Hutton Inc v Maclaine Watson & Co Ltd: ‘there
can be no justification for a civil wrong’.'”> On the other hand, if it is felt that the
requirement of unlawful means ought to be relaxed in favour of a test based on an
action contrary to public policy — which is not without support, as we have seen —
there is inevitably some scope for the invocation of the defence of Justification (based
on a competing public policy).'° It is submitted here that, at present, the meaning of
‘unlawful means’ seems too strict and legalistic a test to admit of any general defence
of justification.'”’
Section 5. Economic torts and trade unions!”

It is virtually impossible for a trade union to take effective action in the traditional
manner (that is, by invoking in the last resort industrial action by way of strikes or
threats of strikes) without risking liability arising from one of the economic torts
discussed earlier. Calling members out on strike may constitute inducing breach of
contract. Threatening a strike to preserve a closed shop or to protect a demarcation
agreement risks liability for intimidation. Thus, since 1906,'” the common law has
been modified by statutory immunities afforded to unions and their officials for acts
done in contemplation or furtherance of a trade dispute. But the details of trade union
immunities are beyond the scope of a work of this kind.'*® What need merely be
contemplated by tort students is whether a clear definition of trade union rights — ie,
rights which have the same status as employers’ rights to pursue their trade — would
be a preferable means of resolving the conflict?'*!
175 [1989] 2 Lloyd’s Rep 570, at 633.

176 See Heydon, ‘Justification in the Intentional Economic Torts’ (1970) 20 U of Toronto LR
NSD)
177 Cf Weir who believes their to be some scope for the defence where the unlawful means
constitute ‘white lies’ told to a third party, or a ‘trivial’ breach of contract with a third party:
see Weir, Economic Torts (1997), p 230.
178 For fuller treatment see Carty, An Analysis of the Economic Torts (2000) pp 11-14.
179° Trade Disputes Act 1906. a
But for a brief account see the 10th edition of this work. eee
180
181 See Elias and Ewing, ‘Economic Torts and Labour Laws: Old Principles and New Feasibilities
[1982] CLJ 321.
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Intellectual property interests
Section |. Copyright, patents and similar interests

Intellectual property can be roughly defined as the intangible products of a person’s
mind and skill. Tangible property, be it land or goods, is protected from intentional
interference by trespass and conversion, and from carelessly inflicted harm by the tort
of negligence. By contrast, contractual rights are, as we have seen, safeguarded to a
limited extent by the general economic torts, while goodwill (built up in the course of a
business) is protected by the tort of passing off. But what of a person’s interest in the
results of his intellectual efforts? To what extent are works of literature or art, or
scientific inventions afforded protection by the law of torts? Interests in such intellectual
property are predominantly defined and protected by statute. The Copyright, Designs
and Patents Act 1988 protects authors, artists and musicians from those who would
‘pirate’ their efforts. Equally, the Patents Act 1977 safeguards new scientific and
technological inventions, while the Trade Marks Act 1994 supplements the tort of
passing off by enabling traders to register their trade mark, rendering any infringement
of that mark actionable.' Designs are also protected by statute.’ Legislation to protect
intellectual property is thus far from novel, but problems arise when the law struggles
to keep pace with technological development. Recent legislation in this area has
endeavoured to take into account both technological innovations that rendered earlier
statutes redundant and several European directives and international treaties.°
The details of the relevant statutes are beyond the scope of this work. Suffice it to note
that legislation generally allows the ‘property owner’ to register a claim in order to
acquire protection. The inventor of a product, for example, needs to register a patent in
order to protect his intellectual property right. Yet difficult questions of principle need
to be tackled: for example, are there products on which the grant of a monopoly (which
1 In two difficult cases for the orthodox view of passing off — those involving claimants who
have no trading base in the jurisdiction but either (a) an international trading reputation or (b)
a pre-trading publicity campaign in their favour — the Trade Marks Act 1994, s 56(2) protects
reputation alone: see Carty, ‘Passing Off and the Concept of Goodwill’ [1995] JBL 139.
2 Registered designs by the Registered Designs Act 1949; unregistered designs by Part III of the
Copyright, Designs and Patents Act 1988.
3 See, eg, Intellectual Property and Innovation (Cmnd 9712) regarding the genesis of the
Copyright, Designs and Patents Act 1988.
is the effect of a patent), Should be refused?* For how long should a patent be allowed?
Should rights in a novel invention accrue to an employee orsto his employer?
Given that these questions of principle exist, it is appropriate that the framework for the
grant and regulation of intellectual property rights is largely statutory. Certain rights
are occasionally protected by the criminal law, while the equitable remedy of account
of profits can also sometimes be useful. Yet the actions for infringements of copyright,
patents or trade marks remain essentially tort actions. The remedies available include
damages, injunctions and Anton Piller orders. The potential in these areas for making
huge profits has resulted in a number of judicial statements, that, in respect of
infringement of patents at least, exemplary damages may be available.
Section 2. Breach of confidence
(A) The obligation of confidentiality

The grant of a patent protects research processes only once they have concluded in a
novel invention. At that stage, production ofa cheaper, ‘copycat’ version may constitute
an infringement of the patent. But where details are leaked to a competitor while the
idea has yet to be expressed in written or other form, how does the law of torts protect
such secrets?° And what of other confidential information: lists of clients, special
manufacturing processes and so on? The common law and equity now extend a degree
of protection to all victims of breaches of confidence. Where information of a
confidential nature is entrusted to another in circumstances where that other is relied
on to keep the confidence, an obligation of confidentiality will arise.’
In very many instances the confidential information is valuable as part of the claimant’s
business and economic interests. But this is not always so. Personal information is
equally protected by the obligation of confidentiality. In Duchess of Argyll v Duke of
Argyll,’ for example, the claimant was granted an injunction to prohibit her former
husband disclosing marital confidences. Equally, the relationship between a doctor
and her patients gives rise to an obligation on the doctor to keep her patient’s
confidences.’ The obligation of confidence often also arises in contract.'® The duty of
fidelity owed by an employee not to disclose his employer’s trade secrets derives from
4 Should, eg, patents ever be granted on genetically engineered life-forms? See Curry, Patentability
of Genetically Engineered Plants and Animals (1987).
5) See Morton-Norwich Products Inc v Intercen Ltd (No 2) [1981] FSR 337 doubted in Catnic
Components Ltd v Hill & Smith Ltd [1983] FSR 512.
6 When a competitor seeks to induce an employee to divulge trade secrets, an action for
inducing breach of contract may lie: Hivac Ltd v Park Royal Scientific Instruments Ltd [1946]
Ch 169, CA.
7 See Coco v AN Clark (Engineers) Ltd [1969] RPC 41; Dunford and Elliott Ltd v Johnston
[1978] FSR 143, CA; WB v H Bauer Publishing Ltd [2002] EMLR 145.
8 [1967] Ch 302; Stephens v Avery [1988] Ch 449.
X v Y [1988] 2 All ER 648; W v Egdell [1990] Ch 359, CA.
10 See, eg, Peter Pan Manufacturing Corpn v Corsets Silhouette Ltd [1964] 1 WLR 96. The duty
may even survive a repudiation of the contract: Campbell v Frisbee [200] EWHC 328 (Ch),
[2002] EMLR 656. But note that it is highly questionable whether such a term can ever be
implied into a contract: see Murphy, ‘Contractual Liability for Breach of Medical
Confidentiality?’ (1996) 2 Law and Medicine 1.
Intellectual property interests \7\
his contract of employment. But special relationships and contract are not prerequisites
of the obligation of confidence. Take, for example, Seager v Copydex Ltd:''
C had told D about a new type of carpet grip. Without conscious plagiarism D
developed this idea which had been divulged in confidence. C was awarded
damages to compensate him for the use of his idea without paying for it. It was
held that the information must not be in the public domain; it must not be public
knowledge.
An action for damages has been found to lie even in circumstances where neither
breach of contract nor harm to tangible or intangible property is established.
Nevertheless the precise nature of the action for breach of confidence remains unclear.
Criteria used to determine the measure of damages indicate a judicial perception of the
action as an emergent tort.'? The duty of confidentiality is discussed in terms reminiscent
of the more familiar duty of care in negligence. The development of a public interest
defence somewhat akin to qualified privilege in defamation again suggests a tort.'?
The Law Commission has proposed clarification of the issue by creating a statutory
tort of breach of confidence.'* For the present, however, the prevalent view remains
that whatever the circumstances are which created the confidential relationship, the
obligation to remain silent depends on a duty of good faith enforceable in equity.
Where breach of confidence protects personal information it certainly protects a
limited interest in privacy which has hitherto only received piecemeal protection under
English law (via, eg, the law on defamation, nuisance and trespass to land).'> Indeed,
recent judicial pronouncements seem to suggest a very close relationship between the
protection of privacy and the protection of confidentiality. In Douglas v Hello! Ltd,
where an injunction was sought to prevent the publication of unauthorised photographs
of two film stars, Sedley LJ declared that ‘a right of privacy ... [was] grounded in the
equitable doctrine of breach of confidence’.'® Since then, the Court of Appeal has
further endorsed this inter-relationship between privacy and confidentiality.
[i]n the great majority of situations where the protection of privacy was justified,
an action for breach of confidence would provide the necessary protection ... A
duty of confidence would arise whenever the party subject to the duty was in a
situation where he either knew or ought to know that the other party could
reasonably expect his privacy to be protected. The range of situations in which
protection can be provided is therefore extensive!’
Against this background, it is doubtful whether the traditional rule still stands that
where confidential information is obtained and disclosed without any abuse of a
11 [1967] 2 All ER 415, CA. See also WB v H Bauer Publishing Ltd [2002] EMLR 145.
12 See Seager v Copydex Ltd [1967] 2 All ER 415, CA.
13 Initial Services Ltd v Putterill [1968] 1 QB 396, at 405, CA; Fraser v Evans [1969] 1 QB 349,
at 362; Khashoggi v Smith (1980) 124 Sol Jo 149, CA.
14. Law Com No 110 Breach of Confidence (Cmnd 8388). To some extent, it could be argued that
one already exists in that the Data Protection Act 1998 makes damages available in respect of
unauthorised disclosures of personal data held in electronic form.
15 See, eg, Douglas v Hello! Ltd (No 6) [2003] EWHC 786.
16 [2001] QB 967, CA.
17 AvB ple (a company) [2002] EWCA Civ 337, [2002] EMLR 371, at 382, per Lord Woolf CJ,
CA. In similar vein, see Douglas v Hello! Ltd (No 6) [2003] EWHC 786, at [229], per
Lindsay J.
confidential relationship, no tort is committed.'* On the other hand, where such a

relationship does exist, the obligation binding the recipient oficonfidential information
also binds any third party to whom that information is transmitted.'? Should a disloyal
employee or spouse propose to sell trade secrets or marital confidences to the popular
press, an injunction can ‘also be obtained to restrain the newspaper.
(B) justifiable disclosures

Disclosure of confidential information may be justified in the public interest.”” The
competing public interests in maintaining the bond of confidence’! and access to
particular information must be weighed against each other.” A legitimate interest in
the subject matter of the information must be proved. Curiosity is insufficient; it must,
in its nature, be information that ought to be disclosed.” Prurient interest does not
equal public interest.* Disclosure of evidence of ‘iniquity’ will always be justifiable.”
In Lion Laboratories Ltd v Evans*® the claimants sought to prevent publication of
internal memoranda leaked by employees to the press. The memoranda cast doubt on
the reliability of the intoximeter manufactured by the claimants and used by the police
to test alcohol levels in drivers. The Court of Appeal refused to grant an injunction.
The public interest in the reliability of the product which could, if unreliable, result in
unfair prosecutions (and thus the disclosure of this information to the proper authorities)
outweighed any private rights of the claimant.
Competing interests — the patient’s nght to confidentiality versus the potential risk to
third parties — pose acute problems for doctors. May they, for example, breach a
confidence to warn a patient’s sexual partner that the patient has AIDS? Risk of physical
harm to a third party is almost certainly sufficient to release a person from the bond of
confidentiality. In the USA, doctors who failed to warn a young woman of her
ex-boyfriend’s (their patient’s) homicidal tendencies and threats against her were held
liable in negligence to her family after her ex-boyfriend murdered her.”’ The risk of harm
18 See, eg, Malone v Metropolitan Police Comr (No 2) [1979] Ch 344; H v N (a health authority)
[2002] EMLR 425. For a recent example of the courts being willing to restrain publication of
covertly taken photographs of a celebrity see Theakston v MGN Ltd [2002] EWHC 137 (QB)
[2002] EMLR 398; but cf Campbell v Mirror Group Newspapers plc [2003] QB 633, CA. Not
also R (on the application of Ford) v Press Complaints Commission [2002] EMLR 95 (Press
Complaints Commission given a broad latitude to decide the appropriate balance between an
individual’s right to privacy and the right of newspapers to publish).
19 Printers and Finishers Ltd v Holloway [1964] 3 All ER 731.
20 Campbell v MGN [2003] QB 633, CA (publication of photographs of a model attending
Narcotics Anonymous were justified in the public interest in setting the record straight where
C, a highly controversial figure, had lied about her indulgence in narcotics); Initial Services Ltd
v Putterill, supra. Decisions on confidentiality and the state suggesting that the public interest
in information is accorded a low priority compared with ‘state secrets’ should be treated with
caution and confined to their special facts: see A-G v Jonathan Cape Ltd [1976] QB 752,
(Crossman diaries), and A-G v Guardian Newspapers [1987] 3 All ER 316, HL (Spycatcher
affair).
21 Note that there is a public as well as a private interest in confidentiality in many contexts: X
v Y, supra; W v Egdel, supra.
22 Church of Scientology of California v Miller (1987) Times, 23 October.
23 Cambridge Nutrition Ltd v BBC [1990] 3 All ER 523.
24 Stephens v Avery [1988] Ch 449.
25 See, eg, Campbell v MGN [2003] QB 633, CA.
26 [1985] QB 526, CA.
27 Tarasoff vRegents of the University of California 551 P 2d 334 (1976).
Intellectual property interests 173
must, however, be proved to be a real risk. In X v Y,28 publication of the names of two
doctors found to be HIV positive was banned by Rose J. There was no significant risk
to their patients which outweighed the doctor’s right to confidentiality. By contrast,
the defendant psychiatrist in W v Egdell’’ had been engaged to prepare a report on W
who was seeking to be transferred from a special hospital to a lower security unit in
preparation for his ultimate discharge from hospital. W had been detained under the
Mental Health Act 1983 after being convicted of multiple manslaughter. Dr Egdell
concluded that far from being ‘cured’, W remained dangerously ill with a morbid
interest in explosives. The Court of Appeal held that Dr Egdell was justified in breaching
W’s confidence and sending a copy of his report to the hospital where W was detained,
and to the Home Secretary.
A further dimension in this context is that a right to disclose information may prima
facie be justified on the basis of the right to freedom of expression protected by Article
10 of the European Convention on Human Rights. This engagement of the Convention
was expressly recognized by the Court of Appeal in Doug/as v Hello! Ltd.*° And in the
later decision of the President of the Family Division in Venables v News Group
Newspapers Ltd,*' it was held that the right to freedom of expression in Article 10(1)
could only be overridden in accordance with the exceptions in Article 10(2) which were
to be construed narrowly. Furthermore, her Ladyship insisted that not only does the
burden of showing an Article 10(2) exception lie with the party seeking to restrain
publication, but that those exceptions should be construed narrowly, that any restriction
must be in accordance with the law, that any restriction must be necessary in a democratic
society and, in any event, be proportionate to the legitimate aim pursued.
(C) Remedies
The most common remedy in breach of confidence is the injunction. It is clearly
preferable to anticipate and prevent the disclosure to the public at large of the relevant
information. Damages may be awarded where loss resulting from an actual breach is
suffered. It is unclear whether damages for mental distress may be awarded.** Where
the confidential information is of commercial value, an account of profits is often
sought.
28 [1988] 2 All ER 648.

29 [1990] Ch 359, CA.
30 [2001] QB 967, CA.
31 [2001] 2 WLR 1038.
32 Stevens v Avery, supra.
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Part IV
Negligent invasions of interests in person

and property and economic interests
176 Negligent invasions of interests in person and property and economic interests
.
Contents -
CHAPTERS PAGE
11 Duty of care I: foundational principles 177

12 Duty of care I: recognised harm 215
13. Breach of duty 247
14 Causation 281
15 Defences to negligence 307
16 Liability for defective premises and structures 331
CHAPTER | |
Duty of care |: foundational principles
Far more people suffer damage from the careless acts of others than from intentional
ones. Accordingly, carelessly inflicted harm occupies a central position in the English
law of torts, and it has long been recognised that, in certain circumstances, persons
guilty of careless conduct should be liable to their victims. Indeed, the liability of those
engaged in certain common callings — such as, smiths and innkeepers — goes back to
the fourteenth century. Furthermore, many actions in nuisance and trespass were
based on negligent conduct. Gradually, a large variety of situations in which negligence
was the common element got subsumed under the action on the case. But not until
maybe 1825 onwards was there any emergence of negligence as a separate tort. There
existed merely a list of situations where the victims of careless conduct might recover
damages. Thereafter, actions on the case for negligence became common, no doubt
spurred on at first by the increase in negligently inflicted injuries through the use of
new mechanical inventions such as the railways, and later by the abolition of the forms
of action.' The concrete emergence of negligence as a separate tort with a distinct set
of principles became undeniable, and in practical terms it is now the most common (and
probably important) tort of all. It must be realised, however, that negligently inflicted
harm does not always sound in negligence alone; negligent conduct relating to the
use of land may well, for example, give rise to nuisance liability.’
It is essential to grasp from the start of any consideration of negligence law that it is
not the case that anyone who suffers harm as a result of another’s carelessness can
sue. The tort of negligence requires more than ‘heedless or careless conduct’.’ The
injured party must establish that the defendant owed him a duty to take care to protect
him from the kind of harm suffered, that he was in breach of that duty, and that it was
the defendant’s breach of duty that caused the claimant’s injury. Duty, breach and
I The main milestones were Vaughan v Menlove (1837) 3 Bing NC 468; Winterbottom v Wright
(1842) 10 M & W 109; Heaven v Pender (1883) 11 QBD 503, CA.
2 But see Gearty, ‘The Place of Nuisance in the Modern Law of Torts’ [1989] CLJ 214.
3. Lochgelly Iron and Coal Co v M’Mullan [1934] AC 1, at 25, HL, per Lord Wright.
x
causation must all be established in every successful claim in negligence.’ This chapter
seeks to identify the fundamental principles underpinning*the duty of care.
Section 2. The emergence of a general test

The concept of duty of care in negligence* emerged towards the end of the eighteenth
century, and is now so firmly rooted that there can be no doubt that actions in negligence
must fail where a duty is not established.° There are many strands to this requirement
of duty, as we shall see. But to begin with, there must be one of those general situations
which the law recognises as being capable of giving rise to a duty; for in a number of
situations it has been held that there can be no such duty.’ The first attempt to rationalise
the situations in which a duty may be imposed was made in Heaven v Pender, by Brett
MR. He said:
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 or injury to the person or property
of the other, a duty arises to use ordinary care and skill to avoid such danger.®
In 1932 came the famous dictum of Lord Atkin in Donoghue v Stevenson, in which he
enunciated his seminal ‘neighbour principle’.
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.’
This ‘neighbour principle’ is not the ratio decidendi of the case and it is probable that
Lord Atkin never intended it to be an exact comprehensive statement of law.'° However,
the importance of Donoghue v Stevenson was two-fold. (1) It firmly established a new
category of duty that of a manufacturer of goods to the eventual users of those goods
4 However, judges by no means always clearly distinguish between the three. In Roe v Minister of
Health [1954] 2 QB 66, at 85, CA, Lord Denning LJ opined that the three questions were in
many cases simply different ways of looking at one and the same question: ‘Is the consequence
fairly to be considered within the risk created by the negligence?’.
5 Duties similar to those discussed here under common law negligence may also arise under
statutes or contracts.
6 Heaven v Pender (1883) 11 QBD 503, at 507, CA, per Brett MR; Thomas v Quartermaine
(1887) 18 QBD 685, at 694, CA, per Bowden LJ; Le Lievre v Gould [1893] 1 QB 491, at 497,
CA, per Lord Esher MR; Grant v Australian Knitting Mills Ltd [1936] AC 85, at 101, PC; Hay
(or Bourhill) v Young [1943] AC 92, HL.
7 ~~ See, eg, Mulcahy v Ministry of Defence [1996] QB 732, CA (no duty owed by one serviceman
to another).
(1883) 11 QBD 503, at 509.
\Oo
0 [1932] AC 562, at 580, HL.
10 Cf Haseldine v CA Daw & Son Ltd [1941] 2 KB 343, at 362, CA, per Scott LJ.
Duty of care I: foundational principles \79
(a category that has since developed far beyond the limits of the facts of that case).!!
(2) It finally set at rest any possible doubts about whether the tort of negligence was
capable of further expansion or was to be rigidly tied down by existing precedents.
Although Lord Atkin’s neighbour principle was established as a broad guide to the
circumstances in which a duty of care may be imposed, it must not be forgotten that
the question of duty is one of law, not of fact. As such, the question of whether a duty
exists is often straightforward, for there are numerous and extensive categories of
situations which are already treated by the courts as imposing a duty of care. Examples
include makers or repairers of goods owing a duty to those who use those goods and
those carrying out activities on a highway owing a duty to other highway users.
Accordingly, before one falls back on any general test, one must ascertain whether on
similar facts the courts have already recognised a duty.
There are, of course, other cases where the law has unequivocally denied the existence
of a duty. A landowner, for example, may excavate his land in a careless manner in
circumstances where he can foresee that by abstracting percolating water from below
he will cause a settlement of a claimant’s adjoining buildings. He is not liable because
he owes no duty of care in respect of percolating water.'* Similarly, there is no duty in
respect of economic loss caused by damage to the property of an individual other than
a person with a current proprietary interest in the damaged property."
Section 3. The rise and fall of Anns

Were it to be the case that the courts would hold that no duty exists unless an earlier
precedent establishes such a duty, the law of torts would remain frozen and static for
all time. Yet Lord Macmillan stated in Donoghue v Stevenson that the ‘categories of
negligence are never closed’.'* This means at least, as Asquith LJ said in Candler v
Crane Christmas & Co,'> ‘that in accordance with changing social needs and standards
new classes of persons legally bound or entitled to the exercise of care may from time
to time emerge’. So, over several decades from Lord Atkin’s formulation of the
‘neighbour principle’, new duty-situations were readily recognised by the courts.
Thus, it was held that an education authority owes a duty to the driver of a vehicle to
exercise reasonable supervision over children in its nursery adjoining the highway so
as to prevent them from endangering his safety on the road, by, for example, running
unattended out of the nursery through an unlocked gate on to the roadway and
11 This was an instance of the courts taking account of the new conditions of mass production
and complex marketing of goods (wherein there are many intermediaries between manufacturer
and consumer), and imposing on manufacturers certain minimum standards of care in favour of
the consumer. The clearest exposition of this function of Donoghue v Stevenson is located in
the speech of Lord Devlin in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465,
He
12 Langbrook Properties Ltd v Surrey County Council [1969] 3 All ER 1424; Thomas v Gulf Oil
Refining Ltd (1979) 123 Sol Jo 787 (oil company had no duty to avoid fissuring its rock strata
and thereby depriving neighbour C of water in his ponds); Midland Bank v Bargrove Property
Services (1991) 24 Con LR 98.
13 Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785, HL.
14 [1932] AC 562, at 619, HL.
15 [1951] 2 KB 164, at 192, CA.
‘
causing him to swerve to avoid injuring them.'° Equally, an electricity authority that
had high-voltage wires near a climbable tree was liable to tlie personal representatives
of a child who trespassed off a nearby footpath, climbed the tree, and was killed."”
In each of the above examples, the defendant failed his ‘neighbour’. He could have
foreseen, and should have taken steps to prevent, the injury suffered by the claimant.
So was the ‘neighbour test’ the sole criterion determining whether or not a duty arose?
Ina series of judgments from 1970 to 1982 the courts came close to accepting as much.
First, in Home Office v Dorset Yacht Co Ltd, Lord Reid declared:
The time has come when we can and should say that it [Lord Atkins’s neighbour
principle] ought to apply unless there is some justification or valid explanation
for its exclusion."*®
Then in Anns v Merton London Borough Council, Lord Wilberforce proposed his
now discredited two-stage test:
...the position has now been reached that in order to establish that a duty of care
arises in a particular situation, it is not necessary to bring the facts of that
situation within those of previous situations in which a duty of care has been
held to exist. Rather the question has to be approached in two stages. First, one
has to ask whether, as between the alleged wrongdoer and the person who
suffered damage there is a sufficient relationship of proximity or neighbourhood
such that, in the reasonable contemplation of the former, carelessness on his
part may be likely to cause damage to the latter, in which case a prima facie duty
of care arises. Secondly, if the first question is answered affirmatively, it is
necessary to consider whether there are any considerations which ought to
negative, or to reduce or limit the scope of the duty of the class of person to
whom it is owed or the damages to which a breach of it may give rise.'®
The two-stage test looked deceptively simple. Applied fairly literally, a judge ruling on
a novel duty-situation might reason thus. (1) Was the harm to the claimant foreseeable
bringing him within the ‘neighbour principle’? (2) Was there any valid policy reason to
deny the existence of a duty to the claimant?” In effect, the claimant having established
foreseeability raised a presumption of the existence of a duty which the defendant
then had to rebut on policy grounds. Lord Wilberforce himself, however, recognised
that policy factors had a central role to play in determining the extent of duty-situations
in McLoughlin v O'Brian:
16 Carmarthenshire County Council v Lewis [1955] AC 549, HL (in that case the lorry struck a
telegraph pole, and the driver was killed); Barnes v Hampshire County Council [1969] 3 All ER
746, HL (a local education authority was liable when a traffic accident ensued after letting
children out of a school early before their parents or others came to fetch them).
17 Buckland v Guildford Gas Light and Coke Co [1949] 1 KB 410.
18 [1970] AC 1004, at 1027, HL.
19 [1978] AC 728, at 751-2, HL.
20 For example, to refuse a remedy to C, a criminal, who is injured by the negligence of his
drunken companion while driving their getaway car. Injury to C was readily foreseeable but as
a matter of policy no duty was recognised as owed by one participant in crime to another:
Ashton v Turner [1981] QB 137. And a claim by a child for ‘wrongful life’ — ie, a claim that the
doctors acted negligently in not aborting her — was rejected on policy grounds. The damage to
her of the failure to diagnose that her mother had rubella was foreseeable; but the Court of
Appeal held (inter alia) that such claims would undermine the sanctity of human life: McKay
v Essex Area Health Authority [1982] QB 1166, CA.
Duty of care I: foundational principles \8|
... at the margin, the boundaries of a man’s responsibilities for acts of negligence
have to be fixed as a matter of policy.”!
Lord Scarman, in that same case, fearful that judicial conservatism would lead to unjust
rigidity in the common law, came closer to declaring foreseeability to be the sole test of
the existence of a duty. Rejecting any policy-oriented limitations on liability for
psychiatric harm, he argued:
... if principle inexorably requires a decision which entails a degree of policy risk,
the court’s function is to adjudicate according to principle, leaving policy
curtailment to the judgment of Parliament.”
Over a period of 14 years from 1970 to 1984 the categories of negligence looked infinitely
expandable. The boundaries of liability expanded both in respect of psychiatric harm”?
and, more importantly, pure economic loss.” The tort of negligence even looked set to
undermine the very boundaries of contract and tort, and, more particularly, the doctrines
of consideration and privity of contract.” From 1984, however, judicial caution
resurfaced and the House of Lords in particular led a retreat from Anns, bringing the
tort of negligence back to a much more category-based approach. Their Lordships’
determination to restrict the unchecked expansion of the tort, to prevent the emergence
of any presumption that all kinds of harm were the responsibility of someone other
than the claimant, was summed up neatly by Lord Hoffmann in Stovin v Wise.
The trend of authorities has been to discourage the assumption that anyone
who suffers loss is prima facie entitled to compensation from a person (preferably
insured or a public authority) whose act or omission can be said to have caused
it. The default position is that he is not.*°
The retreat from Anns began in Governors of the Peabody Donation Fund v Sir
Lindsay Parkinson & Co Ltd.*’ There, the House of Lords denied a remedy to a
development company that sued a local authority for the financial loss occasioned to
them by an inadequate drainage system, which they alleged the authority had negligently
approved. Lord Keith said of the Anns test:
There has been a tendency in some recent cases to treat these passages as
being themselves of a definitive character. This is a temptation to be resisted in
determining whether or not a duty of care of a particular scope was incumbent
on the defendant. It is material to take into consideration whether it is just and
reasonable that it should be so.*
In effect Lord Keith demanded that the claimant identify policy grounds why a duty
should arise and why the defendant should be made responsible for his welfare. Judicial
21 [1983] 1 AC 410, at 421, HL.

22 McLoughlin v O'Brian [1983] 1 AC 410, at 430, HL.
23 See, eg, McLoughlin v O'Brian, supra. See also Attia v British Gas plc [1988] QB 304, CA.
24 See, eg, Ross v Caunters [1980] Ch 297; Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520,
HL (the high water mark of foreseeability sufficing to impose a duty).
25 See Beyleveld and Brownsword, ‘Privity, Transitivity and Rationality’ (1991) 54 MLR 48.
Since then, much of the doctrine of privity has been unpicked by the Contracts (Rights of
Third Parties) Act 1999.
26 [1996] AC 923, at 949, HL.
27 [1985] AC 210, HL.
28 [1985] AC 210, at 240, HL.
disapproval for the Anns test continued apace.*” What is now clear beyond doubt is
that foreseeability of harm alone is not enough to create a’duty of care.
It has been said almost too frequently to require repetition that foreseeability of
likely harm is not in itself a sufficient test of liability in negligence. Some further
ingredient is invariably needed to establish the requisite proximity of relationship
between the [claimant] and defendant, and all the circumstances of the case
must be carefully considered and analysed in order to ascertain whether such an
ingredient is present.*°
Exactly what constitutes the ‘necessary proximity’ to give rise to a duty-situation is
difficult to define precisely in most circumstances.*' Foreseeability of harm to the
claimant remains a necessary pre-condition of liability; and there can be no proximity
without foreseeability. On the other hand, it seems clear that the term ‘proximity’ is
intended to describe the nexus or relationship between the claimant and the defendant.
As Lord Atkin insisted, my neighbours are ‘persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as being so
affected’. As we shall see shortly, however, any distinctiveness of the proximity
requirement is best gleaned from cases dealing with negligent omissions or negligent
failures to control third parties.
In addition to the foreseeability and proximity requirements, it subsequently became
clear that the courts would require, also, that there be proper grounds on which to
impose on the defendant responsibility for the harm in question; reasons, in other
words, why it would be fair to expect the defendant to safeguard the claimant’s interests
rather than expecting the claimant to look after himself.
How difficult a task the claimant faces in this respect will vary depending on the kind
of harm he has suffered. The courts are more ready to impose responsibility to safeguard
others from physical injury and damage to their property, than from economic losses.
Lord Bridge said in Caparo Industries plc v Dickman:
One of the most important distinctions always to be observed lies in the law’s
essentially different approach to the different kinds of damage which one party
may have suffered in consequence of the acts or omissions of another. It is one
thing to owe a duty to avoid causing injury to the person or property of others.
It is quite another to avoid causing others to suffer purely economic loss.*?
Where physical harm is caused to a person (or his property) by another’s carelessness,
establishing that the claimant is proximate and that it is fair that the defendant ought to
be responsible for the harm thus inflicted is generally unproblematic. As Lord Oliver
put it in Caparo: ‘the nexus between the defendant and the injured claimant can rarely
give rise to any difficulty [in such cases]’.** And in Murphy v Brentwood District
29 Yuen Kun-yeu v A-G of Hong Kong [1988] AC 175, at 190-194, PC; Rowling v Takaro
Properties Ltd [1988] AC 473, at 501, PC.
30 Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, at 241, HL, per Lord Keith.
31 See Kidner, ‘Resiling from the Anns Principle: The Variable Nature of Proximity in Negligence’
[1987] Legal Studies 319.
32 [1990] 1 All ER 568, at 574, HL.
33 [1990] 1 All ER 568, at 585, HL.
Council™ he further implied the presumption of a duty in such cases stating that ‘[t]he
infliction of physical injury to the person or property of another universally requires to
be justified’.
Nonetheless, the House of Lords made it clear in Marc Rich & Co AG v Bishop Rock
Marine Co Ltd* that, even in claims in relation to physical damage, foreseeability
alone is insufficient to create a duty of care. Citing Saville LJ in the Court of Appeal,
Lord Steyn confirmed” that whatever the nature of the relevant harm the court must
consider, not only the foreseeability of such harm, but address the relationship between
the parties and in every case be “... satisfied that in all the circumstances it is fair, just
and reasonable to impose a duty of care’. The facts of the case were as follows.
C’s cargo had been loaded on D1’s vessel under contracts incorporating the
usual terms and conditions of international shipping contracts. Mid-voyage,
the ship put into port with a crack in her hull. A surveyor employed by D3, a
classification society (responsible for checking the safety of ships at sea),
inspected the vessel and certified that after some temporary repairs it should
proceed on its voyage. A few days later the ship sank and the cargo worth £6m
was lost. C recovered some of that sum from D1, but D1’s liability was limited by
statute. C then attempted to recover the balance of the loss from D3. C had
suffered readily foreseeable physical damage to property as a result of the
society’s negligent inspection of the ship and the ‘green light’ the society’s
surveyor had given to carry on with the voyage.
Giving the majority speech in the House of Lords and finding no duty to the cargo
owners, Lord Steyn acknowledged that where one person’s carelessness directly
causes physical damage to another, the law will more readily impose a duty. The
infliction of loss to the claimants in this case was, however, indirect. There was no
contract between the claimant and the society; no direct reliance by the claimants on
the expertise of the society. Imposing a duty would undermine the framework
established by the ‘Hague-Visby Rules’ (an international maritime Convention).°’
Equally, it was relevant that classification societies are independent non-profit-making
bodies that act in the public interest to promote the collective welfare of people and
property on the seas. Faced with litigation of this sort, such societies might act
defensively, refusing to carry out urgent or problematic inspections carrying high risk
of liability. Furthermore, limited resources would be diverted from the societies’
fundamental work to confront complex litigation. It would thus be unfair and unjust to
impose a duty in respect of the claimant’s lost cargo. The societies’ responsibility was
primarily towards the collective welfare of those at sea, and individual cargo owners
should be left to their contractual remedies.
Lord Lloyd dissented. He perceived the facts as little more than a straightforward
application of Donoghue v Stevenson. The surveyor certifying the ship as fit to sail de
facto controlled its fate. Had he refused a certificate, the shipowners would not have
continued the voyage. He argued, therefore, that in instances of physical damage ‘it
34 [1990] 2 All ER 908, at 935, HL.

35 [1996] AC 211, HL.
36 [1996] AC 211, at 235.
37 For analogous reasoning, see Raja v Austin Gray (2002] EWCA Civ 1965, [2003] 04 EG 151
(CS).
would require an exceptional case to refuse to impose a duty on the grounds that it
would not be fair, just and reasonable’. In other words, Lord‘Lloyd felt that in a case of
physical harm to people or property, once foreseeability of harm is proven there should
be a strong presumption of liability. He concluded that:
[o]therwise there is a risk that the law of negligence will disintegrate into a series
of isolated decisions without any coherent principles at all, and the retreat from
Anns will turn into a rout.**
One crucial question was left unanswered. Had lives been lost when the ship sank,
would the classification society have owed a duty to the dead sailors? Counsel for the
society appeared to concede a duty in relation to personal injury. Lord Steyn’s robust
speech, suggesting that it is unreasonable to attach legal consequences to the society’s
carelessness, makes it difficult to judge whether, if the personal injury issue had arisen,
a duty of care would have been held to exist.*
Notwithstanding the universal support in Caparo for the tripartite test (based on
foreseeability, proximity and it being just, fair and reasonable to impose a duty), it was
simultaneously recognised in that case that the component limbs of the test are
inherently vague. Concepts such as proximity and fairness, for instance, were thought
by Lord Bridge to be ‘not susceptible of any precise definition as would be necessary
to give them utility as practical tests.’*° And the need to introduce some element of
predictability into the development of duty-situations perhaps underscores the
comment he made immediately after this acknowledgment:
Whilst recognising, of course, the importance of the underlying general principles

common to the whole field of negligence, I think the law has now moved in the
direction of attaching greater significance to the more traditional categorisation
of distinct and recognisable situations as guides to the existence, the scope and
the limits of the varied duties of care which the law imposes. We must now, I
think, recognise the wisdom of the words of Brennan J in the High Court of
Australia in Sutherland Shire Council v Heyman,"' where he said:
It is preferable in my view that the law should develop novel categories of
negligence incrementally and by analogy with established categories, rather
than by a massive extension of a prima facie duty of care restrained only
by indefinable ‘considerations, which ought to negative, or to reduce or
limit the scope of the duty or the class of person to whom it is owed’.
Lord Bridge was not arguing for a return to a pre-Donoghue v Stevenson approach. A
claimant in an action for negligence will not fail simply because the duty-situation he
relies on has never previously been recognised. The House of Lords have not closed
the categories of negligence.*’ Rather, a claimant seeking recognition of a novel duty
38 [1996] AC 211, at 230, HL.

39 For some intimation that it might, see Perrett v Collins [1998] 2 Lloyd’s Rep 255, CA.
40 Caparo Industries ple v Dickman [1990] | All ER 568, at 574, HL, per Lord Bridge. See also
the speech of Lord Oliver (at 585): ‘... to search for any single formula which will serve as a
general test of liability is to pursue a will-o-the wisp’.
41 (1985) 60 ALR 1, at 43-44.
42 [1990] 1 All ER 568, at 574, HL. See also Murphy v Brentwood District Council [1990] 2 All
ER 908, at 915, HL.
43 See, eg, Spring v Guardian Assurance plc [1995] 2 AC 296, HL.
situation will now have to argue his case in the context of existing authority, to persuade
the court that to extend liability into this new situation accords with previous analyses
of policy and justice in analogous cases. Moreover, a finding of no duty in analogous
cases will tell against the claimant. So, in X v Bedfordshire County Council, it was
sought to establish that local authorities owe a duty of care in relation to their powers
to protect children from abuse and neglect. There was no precedent in relation to a
public authority’s administration of a social welfare scheme. However Lord Browne-
Wilkinson® looked at analogous powers vested in the police to protect society from
crime and in the financial regulatory bodies to protect investors from fraud. Finding no
duty in either of those contexts, he suggested that establishing a duty in relation to
child protection would be very incongruous.
Similar reasoning has also been applied in relation to economic loss arising out of
property damage. In Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd,** Lord
Brandon’ denied the existence of a duty of care in respect of economic loss to X
arising out damage to Y’s property. He noted a line of authority dating back to before
1980* insisting that a duty of care would only be owed to those with the requisite
proprietary or possessory interest in the property concerned. He was adamant that
well-established authority had settled the matter,” and thus, regardless of how
foreseeable consequential loss to others might be, that kind of loss was irrecoverable.
There could be no question, he thought, of ‘the existence of a duty of care in a factual
situation in which the existence of such a duty had been repeatedly held not to exist’.°°
Judicial refusal to review proposed categories of negligence previously ruled ‘out of
court’ does to some extent fossilise the tort of negligence. But consider some of the
reasons justifying such an approach. Principles in tort need to be reasonably predictable
otherwise litigation can proliferate fruitlessly. Tort defines those obligations imposed
on us. We know what our contractual obligations entail because we chose to enter into
them. Justice demands that we have some means of knowing what obligations to
others we must honour. And then there is the question of insurance. In a number of tort
claims the dispute is not really between the claimant and defendant but between their
insurers.°! The decision as to when a person should insure against loss to himself and
when he should insure against liability to others depends on an understanding of the
circumstances in which a duty of care will arise. If you know it is highly likely that a
certain kind of loss will be left to lie where it falls, you, as a prudent person, insure
yourself against that loss. If one knows it is very probable that a particular sort of
careless conduct will give rise to liability to another, one insures against that liability.
44 [1995] 2 AC 633, HL.

45 [1995] 2 AC 633, at 751, HL.
46 [1986] AC 785, HL.
47 [1986] AC 785, at 815, HL.
48 See Margarine Union v Cambay Prince Steamship Co Ltd [1969] | QB 219; The Mineral
Transporter [1986] AC 1, PC.
49 See also Stephens v Anglian Water Authority [1987] 1 WLR 1381, CA (refusal to reverse long
established rule regarding abstraction of water from land whatever the consequences).
50 [1986] AC 785, at 815, HL.
51 See Stapleton, ‘Tort, Insurance and Ideology’ (1995) 58 MLR 820.
»
A final factor to note in the context of the retreat from Amns is the parallel growth in the
willingness of the judges to address openly the issue of inSurance.* The fact that one
party might be insured was supposed to be irrelevant to liability.°* However, who,
given the economic and social realities of the parties’ relationship, ought sensibly to
have insured against the relevant loss is now a factor overtly used to determine whether
it is fair, just and reasonable to impose a duty on the defendant.* That said, Lord Lloyd
in his dissent in Marc Rich & Co AG v Bishop Rock Marine Co Ltd’ sounded a note
of caution. He remarked that judicial statements on insurance are not necessarily
based on empirical factual evidence and that too often they may be no more than
assumptions about common practice unsupported by conclusive evidence.
Section 4. Modern approaches to the duty of care

Although modern judicial conservatism and the adoption by the House of Lords of
Brennan J’s dictum in Sutherland Shire Council v Heyman have not resulted in a finite
set of duty categories, they do of course serve to restrain the future growth of the tort.
First, by suggesting that new duty-situations ought to develop only incrementally, it
is now much harder to establish a new category of negligence that is significantly
different from, or wider in scope than, any of its predecessors.*° Secondly, as we have
already seen, where a duty-situation is not entirely novel, but analogous to a category
in which earlier authorities have refused to recognise a duty, the door indeed seems
closed to imposing a new duty.°’ On the other hand, it must not be overlooked that it
is the tripartite Caparo test that now provides the primary mechanism according to
which new duties of care will be ascribed; so the frontiers of negligence are clearly
capable of moderate expansion.
(A) The Caparo Test

According to their Lordships in Caparo, a duty of care may now be imposed if three
requirements are satisfied. (1) The claimant must be foreseeable (bearing in mind the
kind of harm involved). (2) There must be a relationship of proximity between the
claimant and the defendant. (3) It must be fair, just and reasonable in the circumstances
for a duty of care to be imposed on the defendant. Each limb of this test requires closer
consideration.
52 An early example can be seen in the judgment of Lord Denning MR in Spartan Steel and Alloys
Ltd v Martin & Co (Contractors) Ltd [1973] QB 27, at 38, CA.
53 Capital and Counties plc v Hampshire County Council [1997] 2 All ER 865, at 891, CA.
54 See Murphy v Brentwood District Council [1990] 2 All ER 908, at 923, HL; Marc Rich & Co
AG v Bishop Rock Marine Co Ltd [1996] AC 211, at 241, HL; Stovin v Wise [1996] AC 923,
at 954, HL.
55 Supra, at 228.
56 Note the reliance placed by Lord Steyn in Marc Rich & Co AG v Bishop Rock Marine Co Ltd,
supra, on the absence of precedent for shipowners suing classification societies.
57 But see below for the impact of the Human Rights dimension on the negligence liability of
public bodies. See also, Murphy, ‘Children in Need: The Limits of Local Authority Accountability’
(!) The foreseeable claimant

Although foreseeability alone is insufficient to create a duty of care, it must not be
forgotten that the defendant can only be held subject to a duty of care if he should
have foreseen both the claimant as an individual (or member of a class) and injury of
the kind that actually occurred.
The first of these requirements is neatly illustrated by Haley v London Electricity
Board. There, the defendants dug a trench in the street with statutory authority.
They took some measures to help ensure the safety of passers by, but these precautions
were only adequate to the needs of passers by with decent eyesight. The claimant,
who was blind and alone, however, suffered serious injury when he tripped over a long
hammer left lying on the ground by the defendants. The House of Lords held that it
was incumbent on the defendants to take care for the safety of all persons using the
highway, including the blind and the infirm. Just because blind persons constitute
only a small percentage of the population does not make them unforeseeable. As Lord
Reid asserted:
We are all accustomed to meeting blind people walking alone with their white
sticks on city pavements... I find it quite impossible to say that it is not reasonably
foreseeable that a blind person may pass along a particular pavement on a
particular day.»
The second requirement of foreseeability — that harm of the relevant kind to the claimant
must be foreseeable — is equally important. Thus, a nurse who carelessly jolted ampoules
containing fluid for an injection was not liable to a patient who was paralysed because
phenol solution in which the ampoules were later placed had seeped into their contents
through almost invisible cracks caused by the jolt. She owed no duty to the patient in
respect of that particular kind of harm.” It was insufficient to show that the defendant
owed a general duty of care to the particular claimant. It follows from this that while a
defendant may be under a duty to protect the claimant from personal injury, he may not
be under a similar duty in respect of, say, economic loss. A general practitioner advising
his patient on treatment for her heart condition and high blood pressure owes a duty
to safeguard that patient’s health, but will not be liable for the financial loss caused to
the patient if he gives her an unsuccessful tip for the Grand National and the horse
comes in last!
Even where there is clearly a duty in respect of a certain kind of harm, there may not be
liability if the risk which materialises is not of a type envisaged by the law when
imposing the duty on the defendant. In the classic American case, Palsgraf v Long
Island Railroad Co,°' the facts were as follows:
An employee of D (a railway company), in helping a passenger on to a train,

negligently dislodged a parcel which the passenger was carrying. Unbeknown
to the employee, it contained fireworks. These exploded and the shock upset
some scales at the other end of the platform. The scales struck C, who was
58 [1965] AC 778, HL.

59 [1965] AC 778, at 791, HL.
60 Roe v Minister of Health [1954] 2 QB 66, CA.
61 284 NY 339 (1928).
standing on the platform. The majority held that the action failed because,
although the conduct was careless, no duty was owed to C to protect him
against this hazard.
This view of the majority, contained in the judgment of Cardozo CJ, that there was no
liability to a claimant towards whom harm could not be anticipated, was to have great
influence on English judicial thought. The decisive moment came in 1943, in the House
of Lords decision in Hay (or Bourhill) v Young.” A motor-cyclist carelessly collided
with another vehicle. The claimant who was outside the area of foreseeable danger
suffered nervous shock as a result of hearing the noise of the collision. The House of
Lords held that the fact that the claimant was outside the area of foreseeable danger in
itself prevented her from succeeding. The House explicitly rejected the argument that
because the defendant violated his duty of care to a third party he was responsible for
the damage which he inflicted on the claimant.
But suppose that the claimant is in breach of his duty of care to Z, and that Y has also
suffered damage as the result of the same careless act. In the early days of the
development of the tort of negligence, there was much support for the view that Y
could also recover. In one case, the Court of Exchequer Chamber stated that where the
defendant railway company could have foreseen that sparks from their engine would
set fire to an adjoining field, they were liable to the owner of a cottage 200 yards away
across a road when the fire, fanned by a strong wind, destroyed the cottage. This was
although they could not have foreseen harm to the claimant’s cottage.©
(2) Proximity
In many instances proximity and foreseeability may be thought of as coextensive and
even, perhaps, interdependent. In the case of road users, for example, the duty of care
that is owed is in part founded on the fact that one can readily foresee that careless
driving by X may result in adverse consequences for innocent driver Y, who was
unfortunate enough to be in X’s vicinity. But the thing that makes Y a foreseeable
claimant is the fact that he is on the same stretch of road as X at the time of X’s careless
driving. In other words, Y’s proximity (relational and spatial) is a determinant of his
foreseeability.™
There are instances however, where the requirement of proximity can be perceived as
a distinctive limb of the Caparo test. The Court of Appeal decision in Goodwill v
British Pregnancy Advisory Service® illustrates nicely this potential.
D performed a vasectomy on a man who three years later became C’s lover.
Knowing that he had had a vasectomy, the couple did not use contraception.
But C became pregnant and gave birth to a child. The vasectomy had, as a tiny
62 [1943] AC 92, HL.

63 Smith v London and South Western Rly Co (1870) LR 6 CP 14, Ex Ch.
64 It might also be thought that the fact that C was both foreseeable and proximate is what makes
it fair, just and reasonable to impose a duty of care on D. In other words, it could be argued that
the three elements are really only ‘three facets of the same thing’ and ‘not to be treated as
wholly separate and distinct requirements’: see Marc Rich & Co AG v Bishop Rock Marine Co
Ltd [1996] AC 211, at 235, HL, per Lord Steyn.
65 [1996] 1 WLR 1397, CA. See also Roe v Minister of Health [1954] 2 QB 66, CA.
number of such procedures do, spontaneously reversed. C claimed that D owed

her a duty and was negligent in failing to warn her lover of the possibility that he
might regain his fertility. Her claim was struck out.
Peter Gibson LJ suggested, obiter, that if the claimant’s lover had been her husband or
partner, and if the doctor had known that the vasectomy was intended to be as much
for her benefit as the patient’s, a duty might have been owed to the claimant. But
without such a connection between the doctor and the woman — who, after all, was
merely one of an indeterminate class of women with whom the man in question might
have sexual intercourse during his lifetime — the relationship with the defendant was
insufficiently proximate for a duty to be imposed on the doctor in her favour.
Further areas in which the requirement of proximity can quite clearly be distinguished
from the first and third limbs of the Caparo test are where the gist of the claimant’s
action is either that the defendant has caused him harm by virtue of a pure omission or
by virtue of a failure to control a third party.
(A) Omissions
Where there is no prior relationship between the parties, an omission to act will not
constitute actionable negligence, however readily foreseeable the harm to the claimant.
A passer-by who stands and watches a child drown in a shallow pool is not liable for
failing to intervene to save her, even though he could do so at minimal risk to himself.
A ‘Bad Samaritan’, who neglects even to summon aid to the victims of a road accident,
prioritising getting to work on time, is not liable for his omission. English law imposes
no duty to rescue. Lord Nicholls elegantly summed up the distinction between acts
and omissions declaring it to be:
... One matter to require a person to take care if he embarks on a course of

conduct which may harm others. It is another matter to require a person, who is
doing nothing to take positive action to protect others from harm for which he is
not responsible.*
The rule was justified by Lord Hoffmann in Stovin v Wise according to political, moral
and economic arguments.
In political terms it is less of an invasion of an individual’s freedom for the law to
require him to consider the safety of others in his actions than to impose upon
him a duty to rescue or protect. A moral version of this point may be called the
‘Why pick on me?’ argument. A duty to prevent harm to others or to render
assistance to a person in danger or distress may apply to a large and indeterminate
class of people who happen to be able to do something. Why should one be
held liable rather than another? In economic terms, the efficient allocation of
resources usually requires an activity should bear its own costs. If it benefits
from being able to impose some of its costs on other people (what economists
call ‘externalities’) the market is distorted because the activity appears cheaper
than it really is. So liability to pay compensation for loss caused by negligent
66 Such a duty is imposed in a number of civil law systems: see Smith v Littlewoods Organisation
Lid [1987] 1 All ER 710, at 729, HL, per Lord Goff.
67. Stovin v Wise [1996] AC 923, at 930, HL.
.
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.® »
This is the rule in cases of pure omissions — that is, the rule in cases in which the
defendant’s omission directly, and without more, causes loss to the claimant. But this
presumes a rather difficult issue: that it is easy to classify any given conduct as
nonfeasance (an omission) rather than misfeasance (requiring positive conduct). Is,
for example, failing to apply the brakes of car at a red traffic light an omission to act, or
is it simply active, careless driving?” It is almost certainly the latter. Yet a failure to
repair expeditiously a breached sea wall such that subsequent flooding to a claimant
occurred was not culpable misfeasance. The threat posed by the breach in the sea wall
had arisen naturally, and the defendants’ duty did not stretch to the prevention of
future damage for which they were not responsible. Nor were they under a duty to
shorten the period in which such damage could occur.”
One thing that does seem clear is that when the defendant’s earlier act creates a duty
to take care, the fact that an omission is the immediate cause of harm will not prevent
the defendant from being liable. Thus, if a hospital admits a patient, a duty to provide
care then arises. So, too, does a duty to supervise a drunken soldier arise where the
company commander organises the evening’s drinking and transportation home.”!
And similarly, as Kent v Griffiths” illustrates, if an ambulance service once accepts an
emergency call, a duty to provide an ambulance in good time then arises in favour of
the patient. By contrast, however, it has been suggested that if a doctor ‘happened to
witness a road accident ...[she] is not under any legal obligation to [provide
assistance]’.”
In other cases there may be an existing relationship from which there flows a positive
duty to act. Thus, for example, there may be liability on the part of an education
authority towards a pupil in respect of a negligent omission.” Similarly, a general
68 [1996] AC 923, at 943-944, HL. Cf Weinrib, ‘The Case for a Duty to Rescue’ (1981) 90 Yale
LJ and Honoré, ‘Are Omissions Less Culpable?’ in Cane and Stapleton (eds), Essays for Patrick
Atiyah (1991).
69 In Johnson v Rea Ltd [1962] 1 QB 373, CA, Ds (who were stevedores), without lack of care,
dropped soda ash on a surface over which they subsequently invited C to pass. It was held that
D had a duty to take care that the surface was safe, and the failure to remove the ash was
actionable. But was this an omission or merely negligence in a chain of positive conduct
beginning with the unloading of the bags of soda ash? See also Kane v New Forest District
Council [2001] EWCA Civ 878, [2001] 3 All ER 914.
70 East Suffolk Rivers Catchment Board v Kent [1941] AC 74, at 105, HL, per Lord Porter.
71. Jebson v Ministry of Defence [2000] | WLR 2055, CA. See also Reeves v Metropolitan Police
Comr [2000] 1 AC 360, HL (duty owed by police to sane person held in cells in respect of a
failure to prevent suicide).
72 Kent v Griffiths [2001] QB 36, CA. See also Reeves v Metropolitan Police Comr [2001] 1 AC
360, HL (duty owed to sane person in police custody to prevent that person committing
suicide).
73 Capital and Counties plc v Hampshire County Council [1997] QB 1004, at 1060, CA, per
Stuart-Smith LJ (obiter).
74 See X v Bedfordshire County Council [1995] 2 AC 633, at 735, HL, per Lord Browne-
Wilkinson. Another illustration is where D’s conduct lulls C into a false state of dependence on
D. A railway company which omitted to lock a crossing on the approach of a train was held
liable to a person injured because of its previous regular practice (on which C reasonably relied)
of locking the crossing at the train’s approach: Mercer v South Eastern and Chatham Rly Co's
Managing Committee [1922] 2 KB 549. This might be viewed as an early case of assumption
of responsibility.
Duty of care I: foundational principles \9\
practitioner who has accepted a patient onto his NHS list may be liable if he later
negligently omits to treat the patient, refusing to visit or turning him away from the
surgery. Accepting responsibility for the patient’s NHS care imposes a positive duty
to act.
Despite the fact that these exceptions to the general rule about omissions are not
easily explained according to any obvious general principle, it is submitted that they
each do have something in common: a sufficient relationship of proximity between
claimant and defendant that is absent in cases that would otherwise be caught by Lord
Hoffmann’s ‘Why me?’ principle.” In Kent v Griffiths, for example, it was the assumption
of responsibility upon receipt of the emergency telephone call that forged the proximate
link between the claimant and the defendant. For as Stuart-Smith LJ explained in Capital
and Counties plc v Hampshire County Council:
[a]s a general rule a sufficient relationship of proximity will exist when someone
possessed of a special skill undertakes to apply that skill for the assistance of
another person who relies upon such skill and there is direct and substantial
reliance by the plaintiff on the defendant’s skill.”
It is notable that assumptions of responsibility other than those associated with persons
of special skill seem now also to suffice. Consider Barrett v Ministry of Defence.”
A sailor drank himself insensible and later asphyxiated on his own vomit after
being put in his bunk at a remote base. The Court of Appeal held that the Navy
owed no general duty to prevent him abusing alcohol. But when colleagues put
him in his bunk the Navy (vicariously) assumed responsibility for his welfare
once he could no longer care for himself.
(B) FAILURE TO CONTROL OR GUARD AGAINST THE ACTS OF THIRD PARTIES”?

A related problem to the one just considered is that of harm caused to a claimant
because of a failure on the part of a defendant to control, or guard against, the acts of
one or more third parties. This problem is often dealt with alongside the supposed
liability to control dangerous things. But the leading authority for this putative category
is Goldman v Hargrave,” in which nuisance (not negligence) liability was imposed for
failure to avert the spread of a fire.*° And even if liability had been imposed in negligence
in that case — something Lord Goff perceived to be a distinct possibility in Smith v
75 For fuller accounts of this argument, see Murphy, ‘An Accident Waiting to Happen?’ [1994]
Tort Law Review 77 and ‘Expectation Losses, Negligent Omissions and the Tortious Duty of
Care’ [1996] CLJ 43.
76 Capital and Counties plc v Hampshire County Council [1997] QB 1004, at 1060, CA. See also
White v Jones [1995] 2 AC 207, HL.
Fide (1995]\3 All, ER|87, CA.
78 Note that in the human rights context certain positive duties are now imposed on certain
public bodies: see, eg, Keenan v United Kingdom (2001) 33 EHRR 913. For the general
common law position, see Markesinis, ‘Negligence, Nuisance and Affirmative Duties of Action’
(1989) 105 LQR 104.
79 [1967] 1 AC 645, PC.
80 Other cases such as Haynes v Harwood [1935] | KB 146 (involving horses that bolted causing
injury to a policeman when a boy threw a stone at them) and Topp v London Country Bus
(South West) Ltd [1993] 1 WLR 976, CA (involving an unlocked bus with the keys left in it) are
both cases in which the actions of a third party were crucial to the final decision. Indeed, in
Smith vy Littlewoods Organisation Ltd [1987] AC 241, HL, Lord Goff explained the former in
terms of a danger liable to be ‘sparked off’ by a third party.
Littlewoods Organisation Ltd*' — it could certainly be argued that the basis of the
duty was an implied assumption of responsibility by one landowner or occupier in
favour of his neighbour. As such, the duty would be attributable to the parties pre-
existing relationship not, per se, to the dangerous nature of the thing causing harm to
C. Furthermore, it is notable that the House of Lords have rejected the notion that mere
knowledge of a source of danger created by someone else could give rise to a duty to
remove that source of danger.*
As a general rule, individuals are not subjected to any general duty to protect their
‘neighbours’ from others’ tortious conduct outside the circumstances in which the
principles of vicarious liability operate.** And this is so even if the loss or injury in
question is readily foreseeable and preventable.* An omission to warn a next door
neighbour that she has left a door open, or a failure to telephone the police when you
see a suspicious person in her garden, results in no liability on your part for the
burglary committed by that person. Distilling the speeches in Smith v Littlewoods
(especially that of Lord Goff), it would seem that a positive duty to act to prevent third
parties causing harm to another might be grounded if two conditions are satisfied.
1 There must exist either between D and the third party, or between D and C, some
special relationship which properly demands of D that he safeguard C from the
wrongful conduct of the third party.
2 The damage done by the third party must be closely related to, and a very probable
result of, some failure in care by D.
Whether both these issues go to the existence of a duty, or the first to duty, and the
second to remoteness of damage, is a nice point. Oliver LJ put the question thus:
I think that the question of the existence of duty and that of whether the damage
brought about by the act of a third party is too remote are simply two facets of
the same problem: for if there be a duty to take reasonable care to prevent
damage being caused by a third party then I find it difficult to see how damage
caused by that third party consequent on the failure to take such care can be too
remote a consequence of the breach of duty. Essentially the answer to both
questions is to be found in answering the question: in what circumstances is a
defendant to be held responsible at common law for the independent act of a
third person whom he knows or ought to know may injure his neighbour?®
For convenience, the second condition will be dealt with in this book in the chapter on
causation and remoteness. In relation to the first condition, however, there appear to
be two factual bases that justify the imposition of a duty of care in respect of a failure
to control, or guard against, the injurious actions of third parties: either (i) the existence
of a special relationship between the defendant and the third party, or (ii) a special
relationship between the defendant and the claimant. At first sight, these appear to be
alternatives. But in fact — or at least so it is submitted — they are both reducible to, and
81 Supra.
82 See below. See also Lunney & Oliphant, Tort Law. Text and Materials (2000) p 387.
83 See Stovin v Wise [1996] AC 923, HL.
84 See ch 25.
85 Weld-Blundell v Stephens [1920] AC 956, at 986, HL, per Lord Sumner; Smith v Leurs (1945)
70 CLR 256, at 261-262, per Lord Dixon CJ.
86 Perl (P) (Exporters) Ltd v Camden London Borough Council [1983] 3 All ER 161, at 167, CA.
ought to be viewed as, the proximity requirement central to the operation of the Caparo
test.
(1) Where D has the right to control the conduct of the third party, a failure of control
resulting in the very kind of damage likely to result from lack of control may be
actionable by C. Thus, where parents or teachers fail to supervise young children
adequately, they may be in breach of a duty not only to the child if she injures
herself, but also to any other person injured by intentional or negligent wrongdoing
by that child.*’ In Home Office v Dorset Yacht Co Ltd,’* the Home Office’s
contention that no duty could arise in the case of a wrong committed by a person
of full age and capacity who was not the servant, or acting on behalf of, the
defendant, failed. The statutory duty to control the detainees in that case gave
rise to a duty of care to those who were at immediate risk of loss or damage from
any negligent failure to exercise carefully that control. The borstal officers’ ‘special
relationship’ with the trainees, and the existence of an identifiable and determinate
class of potential victims (the yacht owners) created the duty owed to the latter,
for in the words of Lord Pearson, ‘control imports responsibility’.*? And in this
context, the ‘responsibility’ was that of the officers towards those members of the
public whose property would be foreseeably adversely affected by borstal boys
attempting an escape.” In other words, ‘responsibility’ was synonymous with the
required relationship of proximity. Lord Diplock was similarly of the view that the
critical factor was the relationship of proximity between the officers and the yacht
owners. He said:
To give rise to a duty on the part of the custodian owed to a member of the
public to take reasonable care to prevent a borstal trainee from escaping
from his custody before completion of the trainee’s sentence there should
be some special relationship between the custodian and the person to whom
the duty is owed which exposes that person to a particular risk of damage in
consequence of that escape which is different in its incidence from the
general risk of damage from criminal acts of others which he shares with all
members of the public.”!
(2) Inthe second category of cases — where D has a special relationship with C — the
proximity requirement is simply being spelt out. As such, cases within this category
are uncontroversial. However, the fact that they are uncontroversial does not
necessarily mean it always easy to identify cases falling within this category: the
threshold test of a ‘special relationship’ is somewhat vague. Consider Perl (P)
(Exporters) Ltd v Camden London Borough Council.”
87 Eg, when lack of supervision allows a child to stray onto a road where a driver is injured
swerving to avoid him: Carmarthenshire County Council v Lewis [1955] AC 549, , HIG:
88 [1970] AC 1004, HL.
89 [1970] AC 1004, at 1055, HL. See also LaPlante v LaPlante (1995) 125 DLR (4th) 569 for
a case involving a D other than a public body having control over the relevant third party.
90 Note that such proximity was absent where the mother of a serial killer’s last victim sought on
behalf of her daughter’s estate to sue the police for negligence in failing to apprehend the killer
earlier: Hill v Chief Constable of West Yorkshire {1989} AC 53, HL. Unlike the Home Office in
Dorset Yacht, there was, before his arrest, no right vested in the West Yorkshire police to
control the killer’s conduct; nor was there anything to distinguish Miss Hill from any other
member of the public.
91 [1970] AC 1004, at 1070, HL.
92 [1984] QB 342, CA.
The local authority owned a block of flats the basement flat of which was
unoccupied. Cs were tenants of an adjoining flat. The empty flat was left
unsecured and there had been several burglaries in the area. Burglars entered
the empty flat, knocked a hole through the 18-inch common wall and burgled
C’s property.
The Court of Appeal found that the authority owed C no duty of care in respect of
the loss inflicted by the burglary. The relationship of neighbouring property owners
was, of itself, not sufficiently ‘special’ to justify the imposition of a duty of care to
guard C against the foreseeable risk of burglary by way of an unsecured property.
Similarly, in Smith v Littlewoods Organisation Ltd’ the House of Lords rejected
a claim for damage caused by a fire started by vandals in a disused cinema owned
by Ds that spread to the Cs’ property. Of crucial importance in both cases was the
issue of, if a duty were imposed, how could it be fulfilled? If the only effective
precaution was a 24-hour guard on the premises, this was not an obligation that
could be viewed as reasonably incidental to the fact that they were neighbours.
As Robert Goff LJ put it:
Is every occupier of a terraced house under a duty to his neighbours to shut
his windows or lock his door when he goes out, or to keep access to his
cellars secure, or even to remove his fire escape, at the risk of being held
liable in damages if thieves thereby obtain access to his own house and
thence to his neighbour’s house? I cannot think that the law imposes any
such duty.”
If, however, there is something more specific about the relationship between C
and D, the courts are more likely to treat that relationship as possessing sufficient
proximity to impose a duty of care. In Stansbie v Troman,*° for example, a decorator
engaged by C left the door of C’s house open while he went to get wallpaper. In his
absence, a thief entered the house and stole a diamond bracelet and some clothes.
The Court of Appeal held that a duty existed in this case, and that the decorator
was liable for C’s loss.
Two final points ought to be made. First, in relation to the duties of neighbouring
property owners, consideration must always also be given to potential duties created
by the torts of private nuisance and Rylands v Fletcher. But secondly, Lord Hoffmann’s
trenchant support in Stovin v Wise”® for rigorously limiting liability for omissions based
on political, moral and economic arguments, should not be overlooked, even in the
context of these torts.
(3) Fair, just and reasonable
While in Anns v Merton London Borough Council the House of Lords made explicit
reference to the role of ‘policy’, it appears that in the wake of Caparo the same kinds
of concerns as are embraced by the term ‘policy’ are now to be considered under the
93 [1987] 1 All ER 710, HL.

94 Perl (P) (Exporters) Ltd v Camden London Borough Council [1983] 3 All ER 161, at 172, CA.
95 [1948] 2 KB 48, CA.
96 [1996] AC 923, at 944, HL.
banner of what is ‘fair, just and reasonable’. Unlike the invocation of policy under
Anns, however, considerations of fairness, justice and reasonableness can be invoked
not just to restrict the imposition of a duty of care (although this is their most common
use), but also to supply a reason why a duty of care should be imposed.
Before considering instances of each, however, it is important to appreciate that most
of the problematic duty cases that have come before the appellate courts in the past 20
years or so have been dominated by two broad kinds of issue: (1) whether certain areas
of activity (eg, the work of public authorities, or certain professionals) warrant the
imposition of a duty of care, and (2) whether the risk of certain kinds of harm (eg,
economic loss and psychiatric harm) can rightly be ascribed by means of the imposition
of a duty. It is in such contexts that arguments about whether it is fair, just and reasonable
to impose a duty of care are most likely to surface. In relation to certain areas of
activity, itis economic and political arguments that come to the fore. Thus, for example,
it is often thought that the actions of public authorities should be non-justiciable in
many respects not only because their limited funding is better spent on discharging
their statutory functions but also because they are often involved in the formulation
and deployment of matters of public policy with which the courts should not interfere.
In relation to certain forms of harm, such as economic loss, the concerns tend to centre
on ensuring some measure of proportionality between the nature of the defendant’s
wrongdoing and the extent of his liability. Beyond this guidance, it is difficult to state
with any precision what the courts will consider in relation to the question of whether
it is fair, just and reasonable. Much will turn on the facts of each case.”’
In line with the general structure of this book, the level of protection afforded to
various interests protected by the law of negligence is dealt with in the next chapter.
But it should be borne in mind that the proportionality point just made is, of course, a
foundational principle that is equally pertinent to this chapter.
(A) Fair, JUST AND REASONABLE: NEGATIVE USAGE

In much the same way that policy was invoked under the test formulated in Anns to
deny the existence of a duty of care, so too, nowadays, are notions of fairness, justice
and reasonableness often used to limit the circumstances in which a duty will be
imposed. In Marc Rich & Co AG v Bishop Rock Marine Co Ltd,** the facts of which
case we have already seen, the House of Lords held that no duty was owed by the
defendant classification society to the cargo owner whose claim in damages had been
limited to an amount fixed according to an international maritime convention. Their
Lordships conceded that the requirements of foreseeability and proximity were satisfied
in the case, yet held that it was not ultimately fair, just and reasonable to impose a duty
of care. In particular, their Lordships noted that a fine balance of risks was established
by the convention in question, and that the recognition of a duty of care in this case
would subvert that balance of risks with severe potential consequences for both
marine insurance and freight costs. It was also pointed out that the imposition of a
97 See, eg, McLoughlin v Grovers [2001] EWCA Civ 1743, [2002] PIQR P222, CA (very novel
case of psychiatric harm).
98 [1996] AC 211, HL.
duty of care might lead to, classification societies refusing to survey high-risk vessels
in the future with potentially harmful consequences for public safety at sea.”
Other cases decided by the appellate courts also confirm this negative usage of the
‘fair, just and reasonable’ limb of the Caparo test. For example, in X v Bedfordshire
County Council'™ the risk of defensive practices to which liability may give rise,'°!
coupled with the fact that it would be improper for the courts to second-guess local
authority decisions were cited among the reasons for the non-imposition of a duty of
care. Equally, in E/guzouli-Daf v Metropolitan Police Comr' it was felt inapt, for
similar reasons, to impose a duty of care on the Crown Prosecution Service in respect
of those suspects they decide to prosecute.
(B) Air, JUST AND REASONABLE: POSITIVE USAGE

It was noted at the start of this section that, historically — and certainly in the immediate
wake of Anns — policy factors have tended to be invoked by the courts in order to
justify the non-imposition of a duty of care. However, in the post Caparo era, it has
since become clear that considerations of fairness, justice and reasonableness can
now also be employed to ground the imposition of a duty of care; either in circumstances
in which no such duty has previously existed, or in circumstances where a duty has
previously been denied.
In Stovin v Wise, Lord Hoffmann recognised this judicial about-turn on the Anns
approach and summarised what he perceived to be its replacement, thus:
[s]ubsequent decisions in this House and the Privy Council have preferred to
approach the question the other way round... asking whether there are
considerations of analogy, policy, fairness and justice for extending [the duty of
care] to cover a new situation.'®
While it is by no means the case that this positive approach has become the norm, as
Lord Hoffmann misleadingly intimated,'™ there is certainly ample evidence of policy
considerations being used in this way at the highest judicial level. In White v Jones,'*
for example, the facts were as follows.
99 Cf Perrett v Collins [1998] 2 Lloyd’s Rep 255, CA (D, an inspector of private light aircraft, was
held to owe a duty of care to a passenger in an aircraft in respect of which a certificate of
airworthiness was negligently issued). Arguably, the distinction between the two cases is that a
duty of care will more readily be extended in respect of harm to the person than damage to
property. See further Witting, ‘Negligent Inspectors and Flying Macjines’ [2000] CLJ 544.
100 [1995] 2. AC 633, HL.
101 For doubt about the soundness of this fear see Phelps v Hillingdon London Borough Council
[2000] 3 WLR 776, at 809, HL, per Lord Clyde: ‘I am not persuaded that the recognition of
a liability ... should inspire some peculiarly defensive attitude in the performance of ...
responsibilities. On the contrary it may have the healthy effect of securing that high standards
are sought and secured’. See also the academic criticism of this argument in Markesinis ef al,
Tortious Liability of Statutory Bodies: A Comparative and Economic Analysis of Five English
Cases (1999) ch3.
102 [1995] QB 335, CA.
103 [1996] AC 923, at 949, HL.
104 Both Marc Rich, supra, and Elguzouli-Daf, supra, supply ample evidence of policy factors
being invoked in the traditional way to negative the imposition of a duty.
105) [1995] ZAG 207,-HL;
Duty of care I: foundational principles \97
D, a solicitor, was instructed by a testator to draw up a new will to replace an

earlier one. Due to D’s negligence, the new will had not been drafted by the time
the testator died. Under the new will, unlike the old one, the testator’s daughters
would have been named as beneficiaries. The testator’s daughters therefore
mounted an action in negligence against D alleging that his negligence had cost
them their inheritance. By a majority of three to two, the House of Lords held that
the daughters were owed a duty of care.
The foreseeability of the daughters’ loss was not in question. Equally, in recognising
the solicitor’s assumption of a responsibility to draft a replacement will, their Lordships
were also satisfied that the requirement of a relationship of proximity between the
defendant and the claimants existed.'°° But their Lordships ran up against the problem
that the case involved an omission to act on the part of the solicitor. As we have
already seen, the courts are generally loathe to impose liability in cases of nonfeasance.
However, Lord Goff, in a section of his speech headed, ‘The Impulse to do Practical
Justice’ noted four reasons why a duty should be imposed; and each of those reasons
was Clearly rooted in considerations of fairness and justice. He said:
(1) In the forefront stands the extraordinary fact that, if such a duty is not
recognised, the only persons who might have a valid claim (ie, the testator and
his estate) have suffered no loss, and the only person who has suffered a loss
(ie, the disappointed beneficiary) has no claim...
(2) The injustice of denying such a remedy is reinforced if one considers the
importance of legacies in a society which recognises ... the right of citizens to
leave their assets to whom they please...
(3) There is a sense in which the solicitors’ profession cannot complain if such a
liability may be imposed upon their members. If one of them has been negligent
in such a way as to defeat his client’s testamentary intentions, he must regard
himself as very lucky indeed if the effect of the law is that he is not liable...
(4) That such a conclusion is required as a matter of justice is reinforced by
consideration of the role played by solicitors in society. The point was well made
by Cooke J in Gartside v Sheffield Young and Ellis'°’
To deny an effective remedy in a plain case would seem to imply a refusal

to acknowledge the solicitor’s professional role in the community. In
practice the public relies on solicitors ... to prepare effective wills....
I respectfully agree with Nicholls V-C [in the Court of Appeal]... that the court
will have to fashion ‘an effective remedy for the solicitor’s breach of his
professional duty to his client’ in such a way as to repair the injustice to the
disappointed beneficiary.'”
While White v Jones constitutes an example of the courts invoking the third Caparo
limb in order to justify the creation of a new duty situation,'” the decision of the
106 This is questionable: see Murphy, ‘Expectation Losses, Negligent Omissions and the Tortious
Duty of Care’ [1996] CLJ 43.
107 [1983] NZLR 37, at 43.
108 [1995] 2 AC 207, at 259-260, HL.
109 To like effect, see also Spring v Guardian Assurance ple [1995] 2 AC 296, HL.
Ss
House of Lords in Arthur JS Hall & Co v Simons arguably goes one step further by
employing it to justify the imposition of a duty of care on ad¥ocates who had formerly
enjoyed a well-established immunity in respect of their conduct of (at least civil)
litigation on a client’s behalf. In removing that immunity, Lord Hobhouse declared:
[i]n the civil justice system ... the legitimate interest of the client, the
appropriateness of the tort remedy and the absence of clear or sufficient
justification all militate against the recognition of an advocate immunity.''°
A final cautionary note should be entered here. Just because we can identify a clear
positive and negative usages of policy considerations does not make the task of
predicting the outcome of new cases any easier. Indeed, it is perhaps for the reason
that the Caparo test (especially the third limb) lends itself so well to individual judicial
impressions of where lines should be drawn that a great many of the cases concerning
the duty of care have been pursued at least to the Court of Appeal, with scores even
reaching the House of Lords.
(B) Incrementalism
We have already noted that, in Caparo, the House of Lords approved Brennan J’s
dictum in Sutherland Shire Council v Heyman suggesting that ‘[i]t is preferable ... that
the law should develop novel categories of negligence incrementally and by analogy
with established categories’.''' But we have yet to explore in depth the nature of this
incremental approach and its relationship with the tripartite test that also emerged from
the Caparo decision.
In Perrett v Collins, a case in which a certificate of airworthiness was negligently
issued in respect of a light aircraft, with the consequence that a passenger in it was
subsequently injured, Hobhouse LJ said:
[t]he over-arching formula [in Caparo] does not affect the outcome. Established
categories, with or without the assistance of “common sense and justice’, provide
the answer. The certainty provided by the previous authorities is not
undermined... It is a truism to say that any case must be decided taking into
account the circumstances of the case, but where those circumstances comply
with established categories of liability, a defendant should not be allowed to
seek to escape from liability by appealing to some vaguer concept of justice or
fairness; the law cannot be re-made for every case. Indeed, the previous
authorities have by necessary implication held that it is fair, just and reasonable
that the [claimant] should recover in the situations falling within the principles
they have applied. Accordingly, if the present case is covered by the decisions
in, or the principles recognised by, previous authorities — and it is ... we remain
bound to follow them.'!”
It is clear from this passage that his Lordship envisaged that the tripartite test could be
ousted in circumstances where an incremental step beyond existing authorities could
110 [2002] 1 AC 615, at 749-750, HL.

111 (1985) 60 ALR 1, at 43-44.
112 [1998] 2 Lloyds Rep 255, at 263, CA.
be taken. Certainly, such an approach seeks to guarantee a measure of consistency in

the ever-growing body of case law by adherence to the doctrine of precedent. But it is
questionable whether, as it may ostensibly appear, this approach is truly a rival to the
three-limbed Caparo test. For while it is consonant with the technique of analogical
reasoning so central to the common law, it does not tell us how far any given incremental
step may take us beyond the decided cases. Ultimately, therefore, the courts will have
recourse to concepts such as justice and reasonableness in order to set the limits to
what amounts to legitimate incrementalism. In doing so, they are effectively applying
the very Caparo test to which incrementalism is said to be an alternative. This is
because if the instant case is closely analogous to a previously decided case in which
a duty has been imposed, all the court is doing is assuming that the proximity and
foreseeability requirements are probably satisfied in the case before it and simply
asking whether it is just, fair and reasonable to extend the duty of care the marginal
amount required in order to cover the particular facts of the case.!!3
(C) Assumption of responsibility

In Hedley Byrne & Co Ltd v Heller & Partners Ltd''* the House of Lords recognised
the possibility of negligence liability in respect of negligent misstatements where a
defendant voluntarily assumes responsibility for the accuracy of a statement made to
a claimant in circumstances where a special relationship exists between the two of
them and the claimant places reasonable reliance on the accuracy of the statement. At
the heart of the decision was the insistence upon the defendant’s ‘assumption of
responsibility’.
Although originally Hedley Byrne was only concerned with the question of whether a
duty could be imposed in connection with economic loss caused by negligent
misstatements, its ‘assumption of responsibility’ criterion has since been suggested
to form a more general test according to which a duty may be ascribed, even beyond
the confines of economic loss and negligent misstatements. In White v Jones, Lord
Browne- Wilkinson said that:
a duty of care will arise if there is a special relationship between the parties.
[And] such special relationships can be held to exist ... where the defendant has
voluntarily answered a question or tenders skilled advice or services in
circumstances where he knows or ought to know that an identified [claimant]
will rely on his answers or advice. ... [T]he special relationship is created by the
defendant voluntarily assuming to act in the matter by involving himself in the
[claimant’s] affairs or by choosing to speak... [And] although the extent of the
duty will vary from category to category, some duty of care arises from the
special relationship.''
113 See, eg, White v Chief Constable of South Yorkshire [1999] 2 AC 455, at SlHbaper Lord
Hoffmann: ‘I agree with Jane Stapleton’s remark ... that “once the law has taken a wrong
turning... incrementalism cannot provide the answer”. Consequently, your Lordships are now
engaged ... to preserve the general perception of the law as fair between one citizen and
another’.
114 [1964] AC 465, HL.
115 [1995] 2 AC 207, at 273, HL.
+
In Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse

(No 2) Sir Brian Neill (with whom Brooke and Nourse LJJ“agreed) interpreted these
words as grounding a separate mechanism for the ascription of duty.''® However, by
its very nature, the assumption of responsibility test most easily lends itself to
circumstances involving negligent misstatements or the negligent provision of services
by professionals in which case the kind of loss most likely to result is economic loss.'"’
As such, it is doubtful whether it is appropriate to view the assumption of responsibility
as a discrete test of general application.''* It is considered in more depth in the next
chapter in the context of economic loss.
Section 5 Public authorities and the duty of care
(A) General principles

Public authorities, such as the emergency services and local authorities, require special
consideration. This is because the foundational principles governing negligence liability
in such cases may need to be formulated in the light of the statutory and public law
dimensions that are often present in this arena.''? These dimensions, as we shall see,
impact upon the assessment of whether it is just, fair and reasonable to impose liability
on a public authority. '”°
The starting point, however, is to note that there is no general rule granting public
authorities immunity from liability in negligence just because they are public, not
private, bodies.'*! A pedestrian knocked down by a council truck can sue the local
council. A schoolgirl injured by a dilapidated ceiling collapsing on her in the classroom
can sue the education authority. Difficulties tend to arise when the alleged negligence
of a public body derives from its exercise, or failure to exercise, statutory powers which
are designed to ensure the provision of some public function or other. The essence of
116 [1998] Lloyd’s Rep Bank 85, at [84]-[86], CA. For criticism of the test see Barker, ‘Unreliable
Assumptions in the Modern Law of Negligence’ (1993) 109 LQR 461, at 468-469.
117 But not always: see Watson v British Boxing Board of Control [2001] QB 1134, CA (provision
of inadequate medical services at a professional boxing match in which C suffered severe brain
damage); Phelps v Hillingdon London Borough Council [2000] 3 WLR 776, HL (negligent
failure by an educational psychologist to identify the educational needs of a child).
118 See the doubts about the independence of this test in Merrett v Babb [2001] 3 WLR 1, CA, and
the suggestion that the test is apt to be invoked in relation to very particular forms of harm:
Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530,
[2001] 3 All ER 97, CA (costs associated with raising a disabled child born following a negligently
performed sterilisation operation). Note, too, the insistence in White v Jones, supra, that the
duty ought to be imposed in that case primarily because it was fair, just and reasonable to
impose such a duty (suggesting at least a residual role for the tripartite test in cases in which an
‘assumed’ duty is said to arise).
119 Sometimes these public law and statutory features are irrelevant (eg, when an action is brought
against a public authority gua employer — in respect of, say, an unsafe workplace. The duty in
such a case would be the ordinary duty of care owed by any employer to an employee).
Sometimes, also, the question of negligence liability is irrelevant (eg, if the statute itself
creates a civil law action for breach of statutory duty: see ch 21).
120 For the weight that ought to be attached to these concerns (in the light of certain continental
experiences) see Markesinis et al, Tortious Liability of Statutory Bodies: A Comparative and
Economic Analysis of Five English Cases (1999) ch 3.
121 Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR 1 HL 93; Allen v Gulf Oil
Refining Ltd [1981] AC 1001, HL.
a typical claim is that the claimant has suffered damage because the public body has
provided an inadequate service. Many such claims are met with considerable obstacles
in establishing a duty of care. A number of factors explain the particular complexities
inherent in negligence claims against public authorities.
(1) Many statutory powers enabling public authorities to provide public services
confer on the authority a measure of discretion as to how, or even if, the relevant
power should be exercised.
(2) Very often, what C alleges is not that the authority itself negligently created the
danger which befell him, but that it failed to protect him from that danger. This
then takes us into the familiar, problematic realm of negligent omissions.
(3) The (presumed) effect of frequent litigation on limited public funds and the manner
in which statutory functions would be performed in the face of possible negligence
actions.
(4) The fact that it would be inapt for the courts to second-guess certain decisions of
public bodies made in accordance with the statutory powers of those bodies.
Just as the decision in Anns v Merton London Borough Council'” appeared to trigger
a radical expansion of the tort of negligence generally, so in its specific consideration
of the liability of public authorities, did it appear set to extend the liability of public
bodies. In the retreat from Ans, there was no better example of the courts’ hesitancy
to expand the frontiers of negligence liability than in relation to public bodies. The
decisions of the House of Lords in X v Bedfordshire County Council’? and Stovin v
Wise'** sought to place stringent limits on any such actions. And although these limits
have since been refined so as to make the automatic striking-out of an action against
a public body less likely,'*° it nonetheless remains a considerable task to mount a
successful negligence suit against one.
(B) Public functions and the duty of care

The point has already been made, but stands reiteration, that in instances in which the
public law/statutory dimension is immaterial, the principles governing liability are the
same as those applicable to any other action between two private individuals. Where,
however, the statutory powers of a public authority are called in question, the immediate
problem that arises is when it is appropriate for the courts to impose private law
liability in respect of the negligent (non-) performance of the authority’s public
functions.
Ordinarily, public bodies are held to account in respect of their statutory functions by
one or more of the following: judicial review, ombudsmen, complaints procedures set
out in the enabling legislation,'?° actions based on a breach of the Human Rights Act
122 [1978] AC 728, HL.

123 [1995] 2 AC 633, HL.
124 [1996] AC 923, HL.
125 See Barrett v Enfield London Borough Council [2001] 2 AC 550, HL; W v Essex County
Council [2001] 2 AC 592, HL; Phelps v Hillingdon London Borough Council [2000] 3 WLR
776, HL.
126 That is, the legislation that confers upon the public body the relevant powers and duties.
S
1998 and, occasionally, default powers afforded to the relevant secretary of state.'?” In
short, public law redress (in one form or another) is the normii in respect of public law
wrongs. Furthermore, private law actions that provide remedies where public law fails
to do so can be seen as undermining the public law. On the other hand, the dictates of
corrective justice suggest that a remedy in damages ought to be forthcoming where a
claimant suffers loss or injury by virtue of a public body’s negligence. Given the
delicate balance that therefore needs to be struck, the courts must be cautious before
they entertain a private law action in this context.
(1) Justiciability: historical précis

The facts and arguments rehearsed in the famous case of Home Office v Dorset Yacht
Co Ltd'** neatly illustrate the problems inherent in a claim for negligent exercise of
statutory powers.
A group of borstal trainees were working and staying overnight in a training
party on Brownsea Island in Poole Harbour, Dorset. They were in the custody of
three borstal officers, who were servants of the Home Office. One night, in
breach of their instructions, the officers simply went to bed failing altogether to
supervise the boys. Several trainees attempted to escape by boarding and
damaging C’s yacht which was moored offshore.
The House of Lords focused on the following matters:
(1) The likelihood of the damage in these circumstances was readily foreseeable. But
the Home Office had a wide statutory discretion as to how borstals should be
managed, whether open or closed institutions should be operated, and how much
freedom should be given to trainees. If the Home Office were held to owe a duty to
private individuals injured by escaping trainees it might be inhibited in exercising
that discretion properly for the benefit of the boys and the community generally.
The House of Lords said that the Home Office could owe a duty of care to the
yacht owners. An error of judgment in the exercise of the discretionary power to
care for and control the trainees would not of itself have enabled an aggrieved
member of the public to sue. But if the discretion should be exercised so carelessly
and unreasonably that ‘there has been no real exercise of the discretion which
Parliament has conferred’,'”” then the defendant would have acted quite beyond
the power conferred on him and Parliament could not ‘be supposed to have granted
immunity to persons who do that’.'*°
127 For examples of each of these in relation to local authorities’ duties towards children in need,
see Murphy, “Children in Need: The Limits of Local Authority Liability’ [2003] Legal Studies
103. Note, too, that an action based on a ‘euro-tort’ may also be available in this context: see
chigle
128 [1970] AC 1004, HL.
129 [1970] AC 1004, at 1031, HL, per Lord Reid.
130 [1970] AC 1004. Note, too, that in X v Bedfordshire County Council, supra, Lord Browne-
Wilkinson (at 735-6) relied heavily on the opinion of Lord Reid. He did not regard Lord
Diplock’s more complex analysis requiring any decision to be shown to be ultra vires in the
public law sense as either ‘helpful or necessary’. Lord Browne-Wilkinson also made it clear
that if C alleges that the conduct of the public authority was beyond the ambit of the statutory
discretion, private law (not public law) governs the authority’s potential liability.
(2) If, as was assumed for the purpose of establishing the preliminary point of law,
borstal officers did simply disregard instructions to supervise the trainees, their
conduct was clearly outside the discretion conferred on them. Had the facts been
different however — if, eg, the trainees as part of a pre-release plan had been quite
deliberately allowed to roam free around the island based on a judgment of their
need to be prepared for release — that decision would have been well within the
discretion granted to the Home Office.'*! Even if the exercise of discretion proved
with hindsight to be erroneous, no duty of care would be owed to the individuals
suffering damage when the trainees sought to flee the island.
Two key factors implicit in what their Lordships focused on could be identified following
this decision. First, the question of vires was clearly thought relevant. In looking to
whether the powers exercised fell outside those conferred by the statute, their Lordships
were addressing the question of whether the defendants had acted outside their
statutory powers (ie, u/tra vires). Secondly, there was a clear suggestion of the relevance
of the fact that the exercise of the power in question was governed by a statutory
discretion.
Things were taken a step further in Anns v Merton London Borough Council'** where
Lord Wilberforce sought to distinguish policy and operational decisions. He thought
if the exercise of a statutory function involved a high level of broad policy-making, it
would not generally be for the courts in a civil law action to question such an exercise
of statutory discretion. He suggested, however, that in instances following the
formulation of a policy, and involving the implementation of that policy — in the
‘operational’ sphere, in other words — the courts may impose a duty of care.
Subsequent decisions have revealed all the above tests to be insufficient guides as to
the circumstances in which a common law duty of care may be imposed on a public
body. To start with, the simple identification of an ultra vires act is inadequate because
a mere procedural error may render an act ultra vires but fail thereby to render the
subject matter of the decision in question one which warrants the availability of a
private law action. If, for example, a committee within a public body were to take a
decision concerning the allocation of certain limited resources without, say, proper
minutes of the committee meeting being kept contrary to requirements, this would
hardly provide a suitable basis upon which the civil courts should impose a common
law duty of care.
As regards the fact that certain decisions are taken by reference to a statutory discretion,
it was said by Lord Browne-Wilkinson in a case concerning a local authority that:
[i]t is clear both in principle and from the decided cases that the local authority
cannot be liable in damages for doing that which Parliament has authorised.
Therefore if the decisions complained of fall within the ambit of the statutory
discretion they cannot be actionable at common law. However, if the decision
complained of is so unreasonable that it falls outside the ambit of the discretion
conferred upon the local authority, there is no a priori reason for excluding all
common law liability.'**
131 [1970] AC 1004, at 1066-67, HL, per Lord Diplock.

132 [1978] AC 728, HL.
133 X v Bedfordshire County Council, [1995] 2 AC 633, at 736, HL
As such, the fact that a public body has exercised a discretionary power conferred by
statute does not necessarily preclude the courts from finding that there has been
actionable negligence.
Finally, the policy/operational dichotomy proposed in Anns has been subjected to
considerable attack both by judges'** and academic commentators.'** The trouble, in a
nutshell, is that it rests on the assumption that policy decisions are based on
discretionary powers that are beyond the scrutiny of the courts whereas the
implementation of policy is free from this kind of discretionary element. The fallacy of
this assumption was most succinctly summed up in an American case where it was
said that any act can involve some measure of discretion, even the hammering of a
nail.'°°
(2) The modern approach
(A) GENERAL PRINCIPLES

In X v Bedfordshire County Council'*’ Lord Browne-Wilkinson sought to rationalise
the principles that could be invoked in order to determine the justiciability of public
bodies’ acts and omissions.'** The case dealt with two groups of appeals relating to
failures in public services. The facts are complex.
The first group of cases, the “child care’ appeals comprised two rather different
allegations that local authorities had acted negligently in relation to statutory
powers to protect children from abuse. (1) Five children of the same parents,
alleged that Bedfordshire council acted negligently in failing to take them into
care after it had received reports of parental abuse and gross neglect. (2) A
mother and daughter alleged that their local council, Newham, acted negligently
when, on the basis of a mistaken identification of the mother as the child’s
abuser, the child was removed from home. Both claimed that their enforced
separation caused them psychiatric harm.
The second group of cases, the ‘education’ cases, involved three rather different
claims that education authorities had acted negligently in the exercise of their
powers in relation to the provision of education. (1) In two cases, the actions
rested upon the allegation that the children concerned had, because of Ds’
negligence, not been placed in special schools. (2) In the third case, C alleged
that the council had wrongly placed him in a special school, having negligently
failed to assess his real needs and potential, and provide appropriate mainstream
schooling for him.
134 See, eg, the speech of Lord Hoffmann in Stovin v Wise [1996] AC 923, at 951, HL.
135 See for example Bailey and Bowman, ‘The Policy/Operational Dictionary: A Cuckoo in the
Nest’ [1986] CLJ 430 and, id, ‘Public Authority Negligence Revisited’ [2000] CLJ 85.
136 Johnson v State of California 447 P 2d 352 (1968).
137 [1995] 2 AG 633, HL.
138 See Brodie, ‘Public Authorities - Negligence Actions - Control Devices’ (1998) 18 Legal
Studies 1.
Lord Browne- Wilkinson acknowledged the factual diversity of the several claims before
the court. Nonetheless, all the cases raised the fundamental question of the extent to
which public authorities charged with statutory duties are liable to individuals injured
by failure to perform such duties. Addressing this general question, and seeking to
outline cases that would be ‘justiciable’, he set out the following principles.
(1) A distinction can be made between (a) decision-making cases, where it is
contended that D owes a duty of care in respect of the manner in which D exercises
a statutory discretion and (b) implementation cases, where what is in issue is the
manner in which previously formulated policy is put into practice.'* In the latter
category, therefore, an ordinary duty of care is owed in relation to the way in
which, in practical terms, a pupil’s safety is ensured.'*° Here, the usual Caparo
test applies, but in this context it is ‘profoundly influenced by the statutory
framework within which [the relevant] acts were done’.'*!
(2) Wherever a claim relates to the exercise of a statutory discretion, ‘nothing which
an authority does within the ambit of that discretion can be actionable at common
law’,'*’ unless the decision complained of falls outside the statutory discretion in
which case ‘it can (but not necessarily will) give rise to common law liability.’!*°
(3) If, however, the exercise of discretion afforded by the Act relates to matters of
policy that are unfit for consideration by the courts, the courts have no jurisdiction
to determine whether there has been an excess of the discretion afforded so as to
take the decision beyond the scope of the statutory discretion. If ‘the factors
relevant to the exercise of the discretion include matters of policy the court cannot
adjudicate on such policy and therefore cannot reach the conclusion that the
decision was outside the ambit of the statutory discretion’.'** His Lordship offered
no comprehensive definition of what constitute policy matters in this context. He
did, however, give examples including decisions as to resource allocation and
matters involving the balancing of conflicting social aims.
An immediate point to make is that his Lordship preserved in point (1) the widely
discredited policy/operations dichotomy. Nonetheless, it is implicit from his next two
points that he intended to refine it somewhat. The refinement inheres in the fact that he
envisaged that certain policy decisions would never be justiciable, whereas Lord
Wilberforce (who originally suggested the policy/operations distinction) did envisage
a limited role for the law of negligence within the policy sphere.'* However, while this
refinement does enable us to identify certain matters that are absolutely non-justiciable,
his approach nonetheless remains susceptible to the objections that were voiced
against the original policy/operations test. The truth is that there is simply no hard and
fast line between ‘decision-making cases’ and ‘implementation cases’. The point made
earlier about all acts — like knocking a nail into wood — involving some measure of
discretion means that discretion, per se, ought to not be a basis on which to rule out
139 A decision to close a school clearly falls into the decision-making category and the day-to-day
,
running of a school falls into the implementation category.
140 The fact that the service is provided pursuant to statute is not necessarily incompatible with
a normal relationship of proximity between school and pupils: [1995] 2 AC 633, at 735, HL.
141 [1995] 2 AC 633, at 739, HL.
142 [1995] 2 AC 633, at 738, HL.
143 [1995] 2 AC 633, at 738, HL.
144 [1995] 2 AC 633, at 738, HL.
145 [1978] AC 728, at 755 and 760, HL.
.
the justiciability of a case. At the very least, a distinction must be made between a
. ° . . ods. ° 5
discretion that is spelt out in the words of the statute and a discretion (relating to the
performance of certain acts) that is merely implicit in the enabling provisions of the
Act.
It may also be observed that Lord Hutton’s suggestion in Barrett v Enfield London
Borough Council that ‘provided the decisions [in question] do not involve issues of
policy which the courts are ill-equipped to adjudicate upon, it is preferable for the
courts the decide the [case] ... by applying directly the common law concept of
negligence’'° fares no better than Lord Browne-Wilkinson’s approach. He, too, simply
assumes a sharp division between policy and operational matters rather than
recognising the sliding scale that really exists.'*’
These criticisms aside, we should note that Lord Browne-Wilkinson’s three principles
lead us to conclude that before any common law duty can be imposed on a public
body, a court must resolve three questions: '*®
(a) Is the negligence relied upon negligence in the exercise of a specific statutory
discretion involving policy considerations? If so, the claim will fail pro tanto as
being non-justiciable.
(b) Were the acts alleged to give rise to the cause of action within the ambit of the
discretion conferred on the local authority? If so, there can be no liability.
(c) Ifthe acts alleged to give rise to the cause of action were so irrational as to take
them beyond the scope of reasonable discretion afforded by the statute it may be
appropriate to impose on the local authority a duty of care.'*? But to determine
whether it would be appropriate, the court must satisfy itself as to the familiar
requirements of foreseeability, proximity and it being just, fair and reasonable in all
the circumstances to impose a duty.'°°
Applying these general principles in the child cases before him, Lord Browne- Wilkinson
struck out all the claims finding that no duty of care could lie. The claimants all fell at
the third hurdle since it was felt inappropriate to impose a duty of care in the
circumstances.'*' The courts, he thought, should not seek to superimpose a duty of
care on the remedies that had been created by Parliament and inserted in the statute
itself.'*? Equally, the statutory framework involved co-operation between many
individuals and agencies concerned in child welfare and to impose a duty of care on
the local authority could, he thought, disrupt that partnership. Finally, and most
importantly, his Lordship was troubled by the fact that no analogous case in relation to
146 [2001] 2 AC 550, at 586, HL.

147 See the recognition of this in Barrett v Enfield London Borough Council [2001] 2 AC 550, at
571, HL, per Lord Slynn.
148 [1995] 2 AC 633, at 740, HL.
149 See Larner v Solihull Metropolitan Borough Council [2001] RTR 32. Cf Kane v New Forest
DC [2002] EWCA Cic 878, CA (D created the highway danger then subsequently failed to
make it safer).
150 See, eg, K v Secretary of State for the Home Department [2002] EWCA Civ 775, CA: the
release by Home Office into the community of a repeat offender who later raped C did not
result in liability either under the Human Rights Act 1998, s 7, or the tort of negligence. So far
as the negligence action was concerned there was no relationship of proximity between the
Secretary of State and C.
151 The same policy issues were considered to be equally applicable to the education cases.
152 [1995] 2 AC 633, at 748-751, HL.
a statutory social welfare schemes had been identified where a common law duty had
been imposed.
One further issue that arose in X v Bedfordshire County Council concerned the
possibility of vicarious liability of public bodies for the acts of their employees.'*’ The
House of Lords said of the vicarious liability of public service employees generally'™
that the employee would only owe a duty of care to the individual member of the public
where (1) the existence of such a duty is ‘consistent with the proper performance of his
duties to the ... authority’ and (2) it is appropriate to impose such a duty on the
employee.
The perceived advantage of pursuing an action on the basis of vicarious liability is, of
course, that it becomes much easier to demonstrate the requisite elements of
foreseeability and proximity. For example, in the education cases in the X v Bedfordshire
County Council appeals, it was recognised that a duty of care was incumbent on the
individual professionals for which the council could be vicariously liable.'*> This has
since been confirmed by the House of Lords in Phelps v Hillingdon London Borough
Council.'*°
(B) FAILURE TO EXERCISE A STATUTORY POWER

The defendant authority in X v Bedfordshire County Council was exercising its
statutory power to protect children in need, but allegedly doing so incompetently. It,
like the other authorities in the cases heard alongside X, was providing a service that
was claimed to be inadequate. But what of the case where a public authority simply
does not exercise its powers at all? In Stovin v Wise,'*’ the facts were refreshingly
simple.
C suffered serious injuries when his motor cycle collided with a car driven by D1
who came out of a junction. The junction was dangerous because a bank on
adjoining land obscured road users’ views. Accidents had occurred at the
junction on at least three earlier occasions. The local council, the authority
responsible for the highway, was joined as a second defendant. It was alleged
that the council owed a common law duty of care to road users. The council was
aware of the danger posed by the junction. At a meeting prior to the accident in
which C was injured, the council had acknowledged the visibility problems and
recommended removal of at least part of the bank so long as the owners of the
land, British Rail, agreed. The owners simply did not respond to the council’s
proposal. They did, however, possess statutory powers to issue a notice
compelling British Rail to act to eliminate the danger to the highway.
One question that arose was whether the council could be liable for their failure to
exercise their statutory power to issue a notice to British Rail? Delivering the opinion
153 As to the distinction between direct and vicarious liability in this context see XY v Bedfordshire
County Council [1995] 2 AC 633, at 739-740, HL, per Lord Browne- Wilkinson.
154 [1995] 2 AC 633, at 739-740, HL.
155 [1995] 2 AC 633, at 763, 766 and 770, HL. re dlew-6
156 [2000] 3 WLR 776, HL (negligence of an educational psychologist in failing to diagnose Ges
dyslexia causing C’s future education to suffer could result in the employer-council being held
vicariously liable)
157 [1996] AC 923, HL.
Ss
of the majority in the House of Lords, Lord Hoffmann once again attacked Anns v
Merton London Borough Council. Foreseeability of harm to another generated by the
defendant’s acts or omissions, he said, does not create any presumption of a duty to
prevent that harm, particularly where to do so requires that the defendant engage in
positive action to prevent harm he did not create. With regard to Lord Wilberforce’s
suggestion in Anns that statutory powers generated a duty to act, Lord Hoffmann was
equally dismissive. Public law demands that councils exercise their power responsibly.
The public law order of mandamus, obtained by judicial review, is available to enforce
consideration of the proper exercise of statutory powers. But it does not follow, he
said, that an authority ‘necessarily owes a duty of care which may require that the
power should actually be exercised’.!°* While a public authority exercising its statutory
powers so as to cause independent or additional damage might be liable in negligence,
it would be rare indeed if the courts were to subvert a discretionary statutory ‘power’
by imposing a common law ‘duty’ to do so. Noting that Parliament had not intended to
create a right of action via an action for breach of statutory duty, he opined that where
no such intent was present ‘the same polioyisshould ordinarily exclude the existence of
a common law duty of care’.'*?
Notwithstanding the rejection of a common law action in that case, it should be

observed that Stovin v Wise did not entirely close the door to actions in negligence in
respect of failures to exercise statutory powers. The minimum preconditions for any
such duty were said to be (1) that it would be irrational not to have exercised the power
so that there would be a public law duty to act and (2) that there were ‘exceptional
grounds for holding that the policy of the statute requires compensation to be paid to
persons who suffer loss because the power was not exercised’. Such exceptional
grounds will normally have to be based either on evidence of general reliance within
the community on the provision of the service by the local authority, or on evidence of
a particular reliance on the service by the claimant. In the context of general reliance it
should be established that patterns of behaviour depend on a near universal and
reasonable expectation that the public authority will deliver protection from particular
kinds of harm almost as a matter of routine; that the service would be one which was
much the same whomsoever it was provided for. Thus, to offer it to one and not
another might easily be seen as irrational. Lord Hoffmann suggested that routine
building inspections by local authorities might fall within the test.
Applying his key principles of irrationality and reliance to the facts before him he
found,'® first, that given the multiplicity of other demands on the council’s resources,
the delay in getting on with the job to minimise the danger at this particular junction
did not establish irrationality. Furthermore, even if irrationality were proven, this was
not a case where the policy of the statute indicated that a duty of care to individuals at
special risk should lie. Imposing a duty of care and the consequent threat of litigation
could distort council priorities. Councils eager to avoid personal injury claims might
switch money from, say, schools to road maintenance. Also, the primary responsibility
for safety on the roads lies with road users.
158 [1996] AC 923, at 950, HL.

159 [1996] AC 923, at 953, HL.
160 [1996] AC 923, at 956-958, HL.
(C) IMMUNITIES AND STRIKING OUT ACTIONS?

The decisions of the House of Lords in_X v Bedfordshire County Council and Stovin
v Wise illustrate the reluctance of the judiciary to impose a duty in tort in respect of the
exercise of, or failure to exercise, statutory powers to deliver public services. A similar
reluctance to impose a duty of care was evident in relation to the police in Hill v Chief
Constable of West Yorkshire'*' where the estate of a young woman murdered by a
serial killer attempted to sue the local police force in respect of its alleged errors and
incompetence. Although the approach taken in all these cases fell short of granting
outright immunities, the House of Lords was in each case mindful of a number of wide-
ranging public policy reasons which were thought to justify a very defendant-friendly
tack.'® In particular, they noted:
(1) Fear that liability to particular individuals might promote defensive practices.
(2) A concern that defending court cases could lead to undesirable diversion of
public funds away from the statutory functions of the public body to which it is
primarily supposed that they will be applied. ;
The fact that such concerns are of more or less universal application to all public
bodies performing public functions explains why, until roughly the turn of the century,
public bodies faced with possible negligence suits enjoyed remarkable success in
having the actions struck out before a full trial.'*’ Thereafter, developments at a European
level spawned a difference in judicial attitude.
Unsatisfied with the outcome reached by the decision of the House of Lords in their
cases, the disgruntled claimants in the Bedfordshire and Newham cases took their
complaints to the European Court of Human Rights. The Strasbourg court found there
to have been a breach of Article 3'™ in relation to the Bedfordshire (child care) case
and a violation of Article 8'® in respect of the Newham (education) case.'*° More
importantly for present purposes, however, in neither case did the Strasbourg court
hold there to have been a breach of Article 6 of the Convention. In other words, the fact
that the civil actions in those cases had been struck out by the domestic courts did not
amount to a breach of the claimants’ right to a fair and public hearing in determination
of their civil rights.'®’ In both cases the House ofLords had said that the actions would
be groundless on the basis that it would not be just, fair and reasonable to impose a
duty of care in the claimants’ favour. But noting this, the Strasbourg court made it clear
that Article 6 is mainly a procedural safeguard: it ensures that court hearings be fair
and public. It does not, by contrast, seek to offer any substantive guarantees; so the
161 [1989] AC 53, HL. 2

162 For a rigorous critique of the cogency of these policy reasons, see Markesinis et al, Tortious
Liability of Statutory Bodies: A Comparative and Economic Analysis of Five English Cases
i989):
163 For details, see the 10th edition of this work.
164 This Article seeks to afford protection from inhuman or degrading treatment.
165 This Article imposes a positive obligation to seek to ensure respect for private and family life.
166 The fact that these breaches were found to have taken place has the clear potential to impact
on future courts’ willingness to find that it is fair, just and reasonable to impose a duty of care
in justiciable cases. ist
167 See Z v United Kingdom (2002) 34 EHRR 97 (the Bedfordshire application) and TP and KM
v United Kingdom (2002) 34 EHRR 42 (the Newham application).
‘
just, fair and reasonableness test — fundamental to establishing a duty of care — was
5 oT
untouched by Article 6.'%
Curiously, in its own earlier decision in Osman v United Kingdom,'® the Strasbourg
court had reached the opposite conclusion. But it has been argued that the reaction of
the English courts to the Osman decision — ie, the marked reduction in the use of the
striking out procedure, and the corresponding preparedness to hear arguments about
why a duty ought justly to be imposed'”’— was in large measure an explanation of the
European Court’s volte face in the cases involving the Bedfordshire and Newham
applicants.!7!
The detailed arguments concerning Article 6 in these cases do not warrant lengthy
consideration here. It suffices to note that, despite the fact that the striking out procedure
is not a violation of Article 6, its invocation in this context is now much less frequent.
But the new willingness of the courts to hear cases on their merits'” should not be
interpreted as a judicial abandonment of the particular policy concerns that arise in the
context of negligence actions brought against public bodies. A claimant who can show
the existence of a public duty to provide a particular service will undoubtedly fare
better than one whose case rests on a failure to exercise a statutory power;'” and the
absence of resource allocation issues will advance his chances of success still further.'”
On the other hand, it will still be vital to show a relationship of proximity between the
claimant and the public body in question.'”
Section 6. Duties in tort and contract

There are many circumstances when liability for negligence could arise concurrently in
tort and contract. In such cases, the implied duty of care derives from the contract
between the parties,'”° the relevant proximity stems from their contractual nexus.
Concurrent liability was always recognised where the defendant exercised a ‘common
calling’, for example a blacksmith, innkeeper or common carrier. In such cases, the
168 For detailed analysis see Gearty, ‘Unravelling Osman’ (2001) 64 MLR 159 and ‘Osman
Unravels’ (2002) 65 MLR 87.
169 (1998) 29 EHRR 245.
170 See, eg, W v Essex County Council [2000] 2 WLR 601, HL; S v Gloucesterhire County Council
[2001] 2 WLR 909, CA. But note in the latter case the suggestion that the Civil Procedure
Rules may allow weak claims to be dealt with without a full trial, yet in a manner that complies
with the requirements of Art 6.
171 See Wright, Tort Law and Human Rights (2001) pp xxxii-xxxili and ch 6.
172 Wy Essex County Council [2001] 2 AC 592, HL; Barrett v Enfield London Borough Council
(2001] 2 AC 550, HL; S v Gloucestershire County Council [2001] 2 WLR 909, CA.
173 But the fact that duties can contain significant elements of discretion, as we have seen, means
that the distinction can (but need not) be difficult to draw. Compare Barrett v Enfield London
Borough Council [2001] 2 AC 550, HL with Larner v Solihull Metropolitan Borough Council
[2001] PIQR P248, CA.
174 Kent v Griffiths [2001] QB 36, CA.
175 See, eg, Barrett v Enfield London Borough Council [2001] 2 AC 550, HL; Phelps v Hillingdon
London Borough Council [2000] 3 WLR 776, HL; Costello v Chief Constable of Northumbria
Police [1999] 1 All ER 550, CA; Palmer v Tees Health Authority [1999] Loyds Rep Med 351,
CA.
176 For an example of a duty of care implied by statute into a contract for services see the Supply
of Goods and Services Act 1982, s 13.
Duty of care I: foundational principles 2\\
‘calling’ in question imposed a duty to show the degree of skill normally expected of a
person exercising that particular ‘calling’, irrespective of any contract. But in the case
of many professionals, such as solicitors and architects, it was traditionally held that,
where there was a contract between the parties, the claimant was confined to a remedy
in contract alone.'”’
A number of Court of Appeal decisions sought to put an end to any such restrictive
rule.'* But subsequent to those decisions, Lord Scarman sought to resurrect the
traditional rule and exclude concurrent liability in contract and tort in Zai Hing Cotton
Mill Ltd v Liu Chong Hing Bank Ltd. He said:
[t]hough it is possible as a matter of legal semantics to conduct an analysis of
the rights and duties inherent in some contractual relationships either as a matter
of contract law when the question will be what, if any, terms are to be implied, or
as a matter of tort law when the task will be to identify a duty arising from the
proximity and character of the relationship between the parties, their Lordships
believe it to be correct on principle and necessary for the avoidance of confusion
in the law to adhere to the contractual analysis, on principle because it is a
relationship in which the parties have, subject to a few exceptions, the right to
determine their obligations to each other, and for avoidance of confusion because
different consequences do follow according to whether liability arises from
contract or tort, eg, in the limitation of action.'”
A series of conflicting decisions from the Court of Appeal followed Tai Hing.'*° At the
heart of these cases was an essentially practical question: ‘when a person enters into
a contract, in circumstances where, were there no contract, there would nonetheless
be a duty in tort, should he forfeit the potential advantages that suing in tort may have
over contract?’.'*' The House of Lords in Henderson v Merrett Syndicates Ltd'** has
finally resolved the issue. Concurrent liability in contract and tort is generally applicable.
Providing that a duty in tort is not contrary to the terms of the contract agreed between
them, a duty in tort arising out of the special relationship between the parties lies
concurrently with the obligations imposed by the contract. Lord Goff declared:
... the common law is not antipathetic to concurrent liability, and there is no
sound basis for a rule which automatically restricts the [claimant] to either a
tortious or contractual remedy. The result may be untidy; but given that the
177 Bagot v Stevens, Scanlan & Co Ltd [1966] 1 QB 197, CA.

178 Esso Petroleum Co Ltd v Mardon [1976] QB 801, CA; Midland Bank Trust Co Ltd v Hett,
Stubbs & Kemp [1979] Ch 384, CA; Batty v Metropolitan Property Realisations Ltd [1978]
QB 554, CA.
179 [1986] AC 80, at 107, HL.
180 Contrast, eg, Forsikringsaktieselskapet Vesta v Butcher [1988] 2 All ER 43, CA, with Lee v
Thompson (1989) 6 PN 91, CA. See also the disagreement within the Court of Appeal in
Johnstone v Bloomsbury Health Authority [1992] QB 333, CA. .
181 Such advantages most regularly relate to the rules of limitation of actions. That is, C will
normally have longer in which to bring his action if he sues in tort. In contract the limitation
period begins to run from the date of the breach of contract. In tort the start may be delayed
until the date when C could reasonably have become aware of the breach of the duty. But the
Latent Damage Act 1986 applies only to tort actions: Jron Trades Mutual Insurance Ltd v
Buckingham (JK) Ltd [1990] | All ER 808. See further ch 28 eT
182 [1995] 2 AC 145, HL. See Whitaker, ‘The application of the “broad principle” in Hedley-
Byrne as between parties to a contract’ [1997] Legal Studies 169.
%
tortious duty is imposed by the general law, and the contractual duty is attributable
to the will of the parties, I do not find it objectionable that the [claimant] may be
entitled to take advantage of the remedy which is most advantageous to him,
subject only to ascertaining whether the tortious duty is so inconsistent with
the applicable contract that, in accordance with ordinary principle the parties
must be taken to have agreed that the tortious remedy is to be limited or
excluded.'*
A claimant who has either expressly or implicitly agreed to give up any remedy in tort
cannot go back on his word. He cannot assert a duty in tort quite contrary to the
framework of agreed contractual terms. However, where a contract deals with only part
of the relationship between the parties, a duty of care wider than the contractual duty
may arise from the circumstances of the case. Such duties may be concurrent but not
co-extensive.'™ Thus, if we entrust our portfolio of shares in US companies to a paid
financial adviser, our contract will govern his professional liability to us. If that contract
excludes a duty in tort, we cannot elect to sue in tort in respect of those dealings
between us. If, however, that same defendant also gives us general advice on how to
reinvest our US profits elsewhere, no bar exists to a duty of care in respect of those
aspects of our relationship not governed by contract.
It must not be assumed that tort always offers advantages over contract. The limits of
a tort action in comparison with contract must also be noted in this context. A surgeon
treating an NHS patient can owe him no obligation higher or stricter than that of
reasonable care. He does not contract with his patient to ‘guarantee’ success. In
Thake v Maurice'* the claimant paid for a private vasectomy. The operation was
carefully and competently performed. Some time later the minute risk of natural reversal
of the surgery materialised. The claimant’s wife conceived again. In his action for
breach of contract the claimant’s counsel argued thus. The surgeon never mentioned
the possibility of the vasectomy ‘failing’. Therefore, he contracted to render Mr Thake
sterile. When he failed to do so he was in breach of contract. The Court of Appeal
finally dismissed that claim holding that in such a contract a term ‘guaranteeing’ success
could not reasonably be implied.'*® But the argument could never even have been
attempted in tort.
Consider also the famous American case of Hawkins v McGee.'*’ The claimant severely
burned his hand. The defendant, a plastic surgeon, undertook to treat the hand and
restore it to perfect condition. After treatment the hand was in fact much worse than
before. The measure of damages awarded in contract was the difference between the
hand after treatment and a perfect hand. In tort it would have been the difference
between the burned hand and the hand after surgery. In contract the claimant is awarded
damages for his expectation losses; that is, damages for not obtaining the result he
183 [1995] 2 AC 145, at 193-194 (emphasis added).

184 Holt v Payne Skillington [1996] PNLR 179, CA.
185 [1986] QB 644, CA.
186 C lost 2-1 in the Court of Appeal. See, however, the judgment at first instance [1984] 2 All ER
513. Peter Pain J held for C in contract and his judgment is instructive on the relationship
between tort and contract.
187 84 NH 114, 146 A 641 (1929).
contracted for. In tort he is generally'** awarded only compensation to return him to

the position he enjoyed prior to the tort.
The relationship between tort and contract continues to be relevant not only to
questions of concurrent liability, but also to cases where a third party seeks to establish
that A who owes a duty in contract to B also owes a duty in tort to him.'®? Donoghue
v Stevenson” dismissed the fallacy that privity of contract per se prevents such a
duty to the third party ever arising. If there is the necessary proximity between the
parties then a duty in tort may arise independently of any contract between A and B.
Nonetheless, the courts will be wary of extending liability in tort to third parties where
the defendant’s primary duty rests on a contractual obligation to someone else. They
will seek to ensure that a duty in tort to the third party does not conflict with the
primary contractual duty. The decision of the House of Lords in White v Jones'°!
(discussed fully in the next chapter) confirms, however, that liability in tort for breach
of an obligation owed in contract to another party can arise in appropriate circumstances.
Furthermore, in Williams v Natural Life Health Foods Ltd'*’ the House of Lords
acknowledged that tort may play an interstitial where contract law fails to deliver
Justice. Privity of contract withA is not a bar to liability to B; it is simply a consideration
which should not be overlooked.
188 For an example of expectation losses recovered in tort see White v Jones [1995] DING OUI, HL,
discussed in Murphy, ‘Expectation Losses, Negligent Omissions and the Tortious Duty of Care
[1996] CLJ 43.
189 For a third party to acquire the benefit of terms included in a contract between two others,
three conditions must be satisfied. First, it must be clear that the contract purports to confer
a benefit on that third party; secondly, there must be no contrary agreement 1n the contract;
thirdly, the third party must be expressly identified in the contract: Contracts (Rights of Third
Parties) Act 1999: ss 1(1)(b), 1(2) and 1(3)
190 [1932] AC 562, HL.
191 [1995] 1 All ER 691, HL.
192 [1998] 2 All ER 577, HL.
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CHAPTER |2
Duty of care Il: recognised harm
Lord Atkin’s famous phrase — ‘[t]he rule that you are to love your neighbour becomes
in law, you must not injure your neighbour’ — begs one vital question. What kinds of
injury must one take care to avoid inflicting on one’s neighbour? Failing to return his
affection may offend him, but no-one would suggest that he could sue on this basis.
Accordingly, whereas the previous chapter considered the broad framework within
which a duty of care will be imposed, this chapter focuses on the kinds of harm that are
protected by any such duty.
In the modern era, duties may be imposed to protect against injury to the person
(including psychiatric harm), damage to property, and economic losses. But such a
simple statement provides no hint as to the many intricacies in the law. As we shall see,
not always are the distinctions between these categories obvious, nor is each of these
interests afforded the same level of protection. As such, the following principles must
be borne in mind throughout this chapter.
1 There are kinds of harm which are currently irremediable in English law even if
intentionally and maliciously inflicted: privacy, per se, continues for the present
to be just such an interest.' Furthermore, when the harm of which C complains
does not give rise to a tort if committed intentionally, the courts are naturally
reluctant to say that such harm gives rise to a cause of action if inflicted carelessly.
2 Liability for careless acts and omissions has to be confined within manageable
proportions. The courts will strive to avoid liability that is wholly disproportionate
to the mere carelessness of which D is guilty. As Lord Steyn put it in White v Chief
Constable of South Yorkshire Police:
[W]e do not live in Utopia: we live in a practical world where the tort system
imposes limits to the classes of claims that rank for consideration as well as
to the heads of recoverable damages. This results, of course, in imperfect
justice but it is by and large the best that the common law can do.’
1 Over the years, via ad hoc applications of several existing torts and the Human Rights Act
1998, many privacy-related interests have received increased protection. But no common law
tort based solely on the invasion of privacy has yet emerged: see Douglas v Hello! Ltd (No 6)
[2003] EWHC 786.
2 [1999] 1 All ER 1, HL.
+
3 The proper functions of tort and contract and the borderline between them are in
issue. Where the substance of C’s action is that D failed to provide value for
money in terms of services rendered, and where no contract existed between the
parties, would imposing a duty of care in such circumstances trespass too greatly
on the privity of contract principle (or such of it as remains in the wake of the
Contract (Rights of Third Parties) Act 1999°)?
Since the Human Rights Act 1998 came into force, the courts have been forced to
re-think some of tort law’s foundational principles. In the previous chapter we
observed that the (potential) negligence liability of public authorities has had to
be reappraised quite significantly in the light of the decisions of the European
Court of Human Rights in Z v United Kingdom’ and TP and KM v United Kingdom.”
At the very least, the fact that the local authorities may now be held independently
liable in respect of breaches of the Human Rights Convention® must now surely
impact on the courts’ approach to deciding the justiciability of cases involving
such bodies (involving, as it does, a balance between public and private interests),
as well as their assessment of whether it is just, fair and reasonable to impose a
duty of care.
Section 2. Harm to persons
(A) Duty to the unborn

Whether a duty of care was owed to a child damaged by another’s negligence before
its birth remained unresolved at common law until 1992. In Burton v Islington Health
Authority’ the Court of Appeal finally held that a duty is owed to the unborn child, but
that the duty does not crystallise until the live birth of the child. Prior to that decision,
however, Parliament had intervened in the form of the Congenital Disabilities (Civil
Liability) Act 1976. There it is provided that a child who is born alive but disabled as a
result of an occurrence before its birth may in certain circumstances have a cause of
action against the person responsible for that occurrence.* Section 4(5) provides that
the 1976 Act supersedes the common law in respect of births occurring after its passing.
As such, the common law rule in Burton, so far as it is superseded by the 1976 Act,
applies only in relation to children born before 1976.
On the other hand, the Act only applies in respect of children born with a
‘disability’, and ‘disability’ is defined in terms of ‘any deformity, disease or
abnormality including predisposition (whether or not susceptible of immediate
prognosis) to physical or mental defect in the future’.? It is therefore arguable
that any injury which falls short of a disability remains governed by the common
See White v Jones [1995] 2 AC 207, at 262-265, HL, per Lord Goff.
(2002) 34 EHRR 97.
(2002) 34 EHRR 42.
Human Rights Act 1998, s 7.
W [1993] QB 204; and see De Martell v Merton and Sutton Health Authority [1992] 3 All ER 820,
ADAH
CA.
Congenital Disabilities (Civil Liability) Act 1976, s 1(1). Note that s 44 of the Human
Fertilisation and Embryology Act 1990 extends the 1976 Act to cover negligently inflicted
disability in the course of licensed fertility treatment.
Congenital Disabilities (Civil Liability) Act 1976, s 4(1).
Duty of care II; recognised harm 2\7
law rule established in Burton.'° There are also other limits to the scope of the
Act that thus leave untouched a still wider residual role for the common law. It is
therefore necessary to provide some account of the Act.
The duty imposed under the Act relates to any occurrence, whether it is one affecting
the reproductive capacity of either parent before conception, or one affecting the
mother during pregnancy. The peculiarity of the duty to the child is that it is derivative
only. The relevant occurrence must have been capable of giving rise to liability in tort
to the affected parent. But it is no answer that the parent suffered no actionable injury
so long as ‘there was a breach of legal duty which, [had it been] accompanied by
injury, would have given rise to the liability.’!'
Not surprisingly, mothers are expressly immune from general liability under the Act."
How could a mother damaging her baby by smoking or drinking too much be in breach
of a duty to herself? Would she be in breach of a duty to the father in damaging his
child? Section 2 does expressly provide for the only direct duty owed to the unborn
child under the 1976 Act. A woman may be liable for damage to her child inflicted by her
negligent driving of a motor vehicle when she knows or ought to know herself to be
pregnant. The reasoning behind such maternal liability is probably that, in such
circumstances, her insurers will meet the cost of the child’s claim.
One crucial question in the context of pre-natal injuries is the extent to which negligence
law recognises ‘wrongful life’ claims. In McKay v Essex Area Health Authority,"* it was
held that English common law recognises no such claims.
C was born before the 1976 Act with terrible disabilities resulting from her mother
having contracted rubella during pregnancy. The mother had undergone
pregnancy tests when she realised that she had been in contact with the disease
and had been negligently told that the tests were negative. She would have
opted for an abortion had tests proved positive. The child, through its parents,
sued in respect of the harm caused to her by being born disabled. The Court of
Appeal held that it was impossible to measure the harm resulting from entry into
a life afflicted by disability where the only alternative was no life at all. They were
therefore unprepared to impose on doctors a duty of care that was in essence a
duty to abort.
In relation to births subsequent to the 1976 Act, Ackner LJ said in McKay" that the Act
gave a cause of action only in respect of occurrences causing disabilities which would
otherwise not have afflicted the child. It did not afford a remedy to a child whose birth
was caused by the defendant’s alleged negligence (even though that birth was afflicted
by a disability). His Lordship’s finding that the Act was equally unsupportive of a
claim for ‘wrongful life’ was seen by him as preventing such claims arising in future.
But an alternative interpretation of his judgment is that ‘wrongful life’ suits are therefore
10 See Murphy, ‘The Civil Liability of Obstetricians for Injuries Sustained During Childbirth’
(1994) 10 Professional Negligence 94.
11 Congenital Disabilities (Civil Liability) Act 1976, s 1(3). ;
12 See Congenital Disabilities (Civil Liability) Act 1976, s 1. Fathers are not immune. But what
sorts of circumstance could create paternal liability — infecting mother and baby with AIDS?
13 [1982] QB 1166, CA.
14 [1982] QB 1166, at 1187.
x
potentially available under the common law.'* On the other hand it is difficult to believe
that an English court would accept the argument that the tlaimant would have been
better off having never been born at all.
(B) A duty to rescuers?

Recognition of a duty in respect of physical and emotional injury to rescuers raises
two important questions about the ambit of the duty to avoid harm to persons since
the rescuer is only indirectly at risk from the negligent conduct. Is he then a foreseeable
claimant? If he is, given that he ‘elects’ to undertake the rescue can he properly claim
that the originator of the danger owes him any obligation in respect of his safety since
he has ‘chosen’ to imperil himself?
In 1935 the Court of Appeal held for the first time that a defendant who owed a duty to
another also owed a duty to those who might foreseeably attempt to rescue him from
the acute peril in which the defendant’s negligence had placed him.'® Subsequent case
law has consistently confirmed the notion that rescuers are foreseeable claimants
since it is well understood that ‘[d]anger invites rescue ... [and] [t]he cry of distress is
a summons to relief’.'’ Whether the rescuer is a member of the emergency services,
whose public duty it is to embark on the rescue mission, or a well-meaning member of
the public,'* the courts will now hold that a duty is owed to him personally.'”
The duty to a rescuer is imposed not only on those who endanger other people or their
property so as to invite rescue, but also on anyone endangering himself or his own
property so as to make rescue likely. Thus, a householder who negligently set his own
roof alight was held liable to the fireman who was later burnt when fighting the blaze.”°
The controversial question of whether it is generally appropriate to compensate
professional servicemen in circumstances where ordinary citizens would recover nothing
for psychiatric harm in respect of witnessing 1s considered fully in the following section.
(C) Liability for psychiatric harm

Damages cannot be awarded at common law for ordinary grief and sorrow experienced
when a relative or friend is killed or injured,”' or when a person is distressed by the
sight of some dreadful incident or disaster. The courts have traditionally been cautious
about awarding damages for non-physical harm to the person, even if that harm goes
15 See Symmons, ‘Policy Factors in Actions for Wrongful Birth’ (1987) 50 MLR 269.
16 Haynes v Harwood [1935] 1 KB 146, CA.
17 Wagner v International Rly Co 232 NY Rep 176 (1921).
18 Baker v T E Hopkins & Son Ltd [1959] 3 All ER 225, CA (damages awarded to the widow of a
doctor rescuer); Chadwick v British Transport Commission [1967] 2 All ER 945 (nearby
resident coming to the aid of victims of a rail disaster and suffering nervous shock).
19 In Videan v British Transport Commission [1963] 2 QB 650, CA it was held that a duty was
owed to a stationmaster rescuing his small son who had been trespassing on the lines. At that
time, no duty was owed to the child trespasser. But the duty owed to the stationmaster was not
derived from, or dependant upon, any duty owed to the son. An emergency requiring a rescue
was foreseeable thus creating a direct, personal duty towards the stationmaster.
20 Ogwo v Taylor [1988] AC 431, HL.
21 But note that statute allows for the limited provision of bereavement damages for spouses and
parents of children under 18 in the Fatal Accidents Act 1976, s 1A.
Duty of care IT: recognised harm 219
well beyond normal distress resulting in some obvious physical symptoms. The reasons
for caution are easy to catalogue. They are the difficulties of putting a monetary value
on such harm, the risk of fictitious claims and excessive litigation, and the problems of
proving the link between the defendant’s negligence and the injury to the claimant.
Gradual, if belated, judicial recognition of the genuine nature of psychiatric harm led to
the abandonment of the nineteenth century attitude that non-physical harm to the
person was totally irrecoverable.”* The courts began to award damages for what was
for many years called ‘nervous shock’. A claimant who became mentally ill because
of the shock to his nervous system caused by an incident that either threatened his
own safety” or involved witnessing exceptionally distressing injuries to others?> could
in certain circumstances” recover compensation for psychiatric harm.2’
It will become apparent that what the law labels psychiatric harm, often but not
invariably, describes the condition known to psychiatrists and the media as post-
traumatic stress disorder (PTSD).”* Psychiatric illness can follow from an incident ina
number of ways. First, and most obviously, a claimant who suffers severe physical
injury, for example in a road accident, may well also succumb to mental illness triggered
by the terror of the accident and his or her consequent pain and suffering. Secondly,
an accident in which the claimant is involved but suffers no bodily injury may
nonetheless inflict sufficient shock and fear to cause psychiatric illness. Thirdly, the
claimant may not be directly involved in the original accident, and be at no personal
risk of physical injury. Such a claimant suffers psychiatric harm because of the effect
on him of witnessing injuries to others. The classic example would be a mother who
witnesses an horrific injury to her children.” In such cases, the claimant is classified as
a secondary victim of the defendant’s negligence. A series of decisions have set limits,
often referred to as ‘control mechanisms’, on who may claim as such a secondary
victim of psychiatric harm.*° These limits will be discussed fully later. Here it suffices to
note that they are primarily intended to keep litigation in this area within manageable
limits. In essence, and very briefly, to recover damages, a secondary victim must
generally establish (1) a close tie of love or affection with the primary victim (such a tie
being presumed to exist between certain persons such as spouses, or parents and their
children) and (2) proximity in time and place to the accident.
22 For the nineteenth century view see Victorian Railways Comrs v Coultas (1888) 13 App Cas
222, PC. For an analysis of how law has always ‘limped behind medicine’ see Sprince, “Negligently
Inflicted Psychiatric Damage: A Medical Diagnosis and Prognosis’ [1998] Legal Studies 55.
23 The phrase can be misleading and should be regarded as no more than a customary means of
grouping together cases where C becomes mentally ill as a consequence of an assault upon his
nervous system: see Alcock v Chief Constable of South Yorkshire [1991] 4 All ER 907, at 923,
HL, per Lord Oliver. See also McLoughlin v O'Brian [1982] 2 All ER 298, at 301, HL, per
Lord Wilberforce.
24 Dulieu vy White & Sons [1901] 2 KB 669 (C had a miscarriage after just missing being run over).
25 Hambrook v Stokes Bros [1925] 1 KB 141, CA (C saw a driverless lorry career down the road
in the direction of her children).
26 Note the refusal of damages in Hay (Bourhill) v Young [1943] AC 92, HL (C heard but did not
see the accident involving a cyclist unrelated to her).
27 The term now preferred to nervous shock: Attia v British Gas ple [1987] 3 All ER 455, at 462,
CA, per Bingham LJ.
28 See Vernon v Bosley (No 1) [1997] 1 All ER 577, CA; White v Chief Constable of South
Yorkshire Police [1999] 1 All ER 1, at 30-31, HL, per Lord Steyn.
29 Eg, Hambrook v Stokes Bros, supra.
30 Bourhill v Young, supra; McLoughlin v O'Brian, supra. The leading case is now in Alcock v
Chief Constable of South Yorkshire Police [1992] 1 AC 310, [1991] 4 All ER 907, HL.
Victims of psychiatric illness in the first two categories are regarded as primary victims
of the defendant’s negligence. A person who suffers psychiatric illness as well as
physical injury causes us no problems. Such psychiatric harm is part and parcel of his
claim for injury. Page v.Smith*' deals with claimants in the second category.
C was involved in a collision with a car negligently driven by D. He suffered no
physical injury. However, almost immediately, he succumbed to a revival in an
acute form of the chronic fatigue syndrome (ME) from which he had periodically
suffered in the past. He became so ill that he was unable to work. D argued that,
as C suffered no physical injury, he was not liable for injury through shock. A
normal person with no previous history of psychiatric illness would not be
expected to become ill as a result of a minor collision.
The House of Lords found for the claimant. In cases involving ‘nervous shock’, they
said, a clear distinction must be made between primary and secondary victims. In
claims by the latter, certain ‘control mechanisms’ limit the potential liability for psychiatric
harm. Shock in a person of normal fortitude must be foreseeable. But Mr Page, the
claimant, was a primary victim of the defendant’s negligence. It was readily foreseeable
that he would be exposed to personal injury, and physical and psychiatric harm were
not to be regarded as different kinds of damage. Once physical injury to a primary
victim is foreseeable, he can recover both for any actual physical harm that he suffers
and for any recognised psychiatric illness ensuing from the defendant’s breach of
duty. Even so, in the case of primary (just like secondary) victims, damages are available
only in relation to a recognised psychiatric illness. And until the decision in Vernon v
Bosley” the courts had insisted that a secondary victim of psychiatric harm must
show post-traumatic stress disorder (PTSD). In that case the facts were as follows.
C’s two young children were passengers in a car driven by D, their nanny, when
it veered off the road and crashed into a river. C did not witness the original
accident, but was called to the scene immediately afterwards and watched
unsuccessful attempts to salvage the car and rescue his children. These efforts
failed and the children drowned. C became mentally ill and his business and
marriage both failed. D accepted that C’s illness resulted from the tragic deaths
of his children but argued that his illness was caused not by the shock of what
he experienced at the riverside, but by pathological grief at his loss in an illness
distinct from PTSD called pathological grief disorder.
The Court of Appeal held that although damages for ordinary grief and bereavement
remain irrecoverable,*’ a secondary victim can recover damages for psychiatric illness
where he establishes the general pre-conditions for such a claim (set out above), and
that the negligence of the defendant caused or contributed to his mental illness. The
claimant could recover compensation regardless of the fact that his illness consisted
partly of an abnormal grief reaction. It need not be wholly post-traumatic stress disorder
that he suffers.** On the other hand, the decision in Vernon v Bosley does not imply
31” [1996] AC 155, HL:
32 [1997] 1 All ER 577,, CA.
33 See also Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907, at 917, HL.
34 Note that the courts are prepared to make a discount in the award of damages where C’s grief
merges with a recognisable psychiatric disorder: see, eg, Rahman v Arearose Ltd [2001] QB
351, CA. Furthermore, D will only be liable for that part of C’s psychiatric harm that he
actually caused: Hatton v Sutherland [2002] EWCA Civ 76, [2002] 2 All ER 1.
Duty of care II: recognised harm 221
that every person who loses a loved one and becomes ill through grief can sue the
negligent individual responsible for the death of the primary victim. Thus, the
grandmother in Newcastle who is told of the death in a car crash of her grandson has
no claim in negligence. She cannot establish the requisite conditions limiting any claim
by secondary victims.
The conditions for liability to a secondary victim established by analysis of the case
law up to 1982 generally required that the claimant should be present at the scene of
the accident, or very close by, so that he perceived what happened with his unaided
senses. Then in McLoughlin v O’Brian* the facts were as follows.
C’s husband and three children were involved in a car accident caused by D’s
negligence. All four of her family were injured, one so seriously that she died
almost immediately. An hour later, a friend told her of the accident at her home
two miles away. They went to the hospital where C was told of the death and
then saw the three remaining family members before they had been properly
cleaned up. Though a woman of reasonable fortitude, C suffered severe shock,
organic depression and a change of personality.
The House of Lords insisted that the claimant should demonstrate her proximity in
time and space to the traumatic events. But they held that in coming upon the ‘immediate
aftermath’ of the accident in which her family had been so grievously injured, she was
well within the scope of the duty to avoid nervous shock. Witnessing the aftermath,
they said, was equivalent to witnessing the incident itself since nothing in the horror
of the sight that met her had changed.
Beyond that there were distinct differences of approach among their Lordships, but
since the decision was made within the now discredited test for the imposition of a
duty laid down by Lord Wilberforce in Anns v Merton London Borough Council,
these divergent views need not concern us here.*® The leading case on liability for
psychiatric harm is now Alcock v Chief Constable of South Yorkshire Police.*’
In April 1989, 95 people died and over 400 were injured when South Yorkshire
police allowed an excessive number of spectators to crowd into Hillsborough
football ground. People were quite literally crushed to death. Cs’ actions were
for psychiatric illness ensuing from the horror of what had happened to their
relatives (or in one case fiancé). In the House of Lords two issues were pre-
eminent. Could relatives other than parents or spouses bring an action for
psychiatric harm? Could those who witnessed coverage of the disaster on
television recover?
(1) Their Lordships refused to prescribe rigid categories of potential claimants in nervous
shock claims. They held that there must generally be a close tie of love and affection
between the claimant and the primary victim of the sort generally enjoyed by spouses
and parents and children.** Siblings and other more remote relatives would normally
35 [1983] | AC 410, HL. For modern insistence on first hand experience of traumatic sights, see
Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351, CA.
36 Details can be found in the 10th edition of this work.
37 [1992] 1 AC 310, HL.
38 [1991] 4 All ER 907, at 914, 919-920, 930 and 935, HL, per Lords Keith, Ackner, Oliver and
Jauncey.
x
fall outside such a relationship in the absence of special factors. Consequently claims
by brothers, sisters and brothers-in-law failed in Alcock, while the claim on the part of
a fiancée was allowed. However, claims by more distant relatives were not totally
debarred. So, for instance, a grandmother who had brought up a grandchild since
infancy might qualify upon proof of the required affective bond.
(2) Lord Ackner suggested that in cases of exceptional horror, where a reasonably
strong-nerved individual would suffer shock-induced psychiatric injury, even a
bystander unrelated to the victim should be able to recover.”
(3) A degree of proximity in time and space between the claimant and the accident is
required. The claimant must normally either witness the accident himself or come upon
the aftermath in a very short period of time.“ Identifying a relation several hours after
death was not sufficient. Nor will witnessing the accident via the medium of television
generally be sufficient.*! Parents who watched the Hillsborough disaster unfold on
television had their claims rejected. Television pictures cannot normally be equated
with actual sight or hearing of the event or its aftermath since the broadcasting code of
ethics prohibits graphic coverage of individual suffering.** Once again there might be
exceptional cases where simultaneous broadcasts of a disaster that cannot be edited
will equate to personal presence at the accident.* In the Court of Appeal, Nolan LJ
gave the example ofa balloon aay ne children at some live broadcast event suddenly
bursting into flames.”
(4) The relevant psychiatric illness must be shown to result from the trauma of the
event or its immediate aftermath.* Psychiatric illness resulting from being informed of
a loved one’s death, however gruesome the circumstances, is not recoverable.” So if
a young child is crushed by falling masonry at school and, within an hour, her mother
comes to her deathbed at the hospital, the mother may recover from the trauma of
coming upon the immediate aftermath of the accident. But if the child’s father has a
heart attack when told of the girl’s fate, his loss remains irrecoverable.*’
Their Lordships in Alcock adopted an avowedly pragmatic approach to psychiatric
harm. They rejected a simplistic approach based on fixed categories of who can recover,
and in what circumstances. They also refused to extend liability for psychiatric harm
indefinitely. Lord Oliver expressly conceded that he could not ‘regard the present state
of the law as either satisfactory or logically defensible’.** He suggested further that
Parliamentary intervention may be timely.”” One nice point was left open. Could a
39 [1991] 4 All ER 907, at 919, HL. See also, at 930, per Lord Oliver.
40 [1991] 4 All ER 907, at 914-915, 920-921, 930-932 and 936, HL, per Lords Keith, Ackner,
Oliver and Jauncey. See also Hunter v British Coal [1998] 2 All ER 97, CA.
41 [1991] 4 All ER 907, at 937, HL.
42 [1991] 4 All ER 907, at 921, HL, per Lord Ackner.
43 [1991] 4 All ER 907, at 921 and 931, HL, per Lords Keith and Oliver.
44 [1991] 3 All ER 88, at 122, HL.
45 After Vernon v Bosley, supra, it is no longer necessary that it be exclusively shock that triggers
C’s illness.
46 [1991] 4 All ER 907, at 914-15, per Lord Keith disapproving, first instance judgments in
Hevican v Ruane [1991] 3 All ER 65; Ravenscroft v Rederiaktieblaget Transatlantic [1991] 3
All ER 73, CA.
47 As it would be if his illness were precipitated by identifying his daughter at the mortuary next
day.
48 [1991] 4 All ER 907, at 932, HL.
49 [1991] 4 All ER 907, at 931, HL.
primary victim be liable for harm caused by shock where he was the author of his own
injury? As we saw in Ogwo v Taylor,” a negligent householder was liable to a firefighter
injured in a fire caused by his carelessness. But in Greatorex v Greatorex*' it was held
that a drunk driver who caused an accident did not owe a duty of care to his father
(who happened to be the fireman called to the scene of the accident) in respect ofhis
father’s psychiatric harm. To impose such a duty would, the court said, amount to too
much of an imposition on the drunken man’s right to conduct himself broadly as he
pleased. Our self-determination, the court reasoned, involves the right to injure
ourselves without owing others a duty in respect of them witnessing our injury. Perhaps
one distinction between the two cases is that in Ogwo the claimant suffered physical
harm (burns) whereas the fireman in Greatorex suffered psychiatric harm. But as the
House of Lords, relying on the formulations contained in the Limitation Acts pointed
out in Page v Smith,” psychiatric harm is merely part of the broader species, ‘personal
injury’. A second possible distinction is that in Ogwo the fireman would have satisfied
the test of primary victim set out in White v Chief Constable of South Yorkshire Police,
whereas the claimant in Greatorex was in no personal danger (nor in a position to claim
reasonably that that he thought he was in personal danger). But this, too, is
unconvincing for the primary/secondary victim distinction operates to differentiate
between two types of claimant, both of whom are suing for psychiatric harm. A third
explanation might be that a person rescuing property (Ogwo) will be owed a duty more
readily than a person rescuing fellow human beings (Greatorex). But such a distinction
— if we accept that the law seeks to treat rescuers kindly — runs counter to the usual
hierarchy of protected interests in tort law. Perhaps the simplest explanation of the
decision in Greatorex is the one implicit in the fact that not a single mention of Ogwo
was made in that case.
Alcock might at first sight appear to have settled some firm principles delimiting liability
for psychiatric harm. But the decision provoked as many questions as it answered. Let
us look first at liability to bystanders. Lord Ackner, as we have noted, suggested that
a truly horrific disaster might entitle even unrelated bystanders to recover damages for
psychiatric illness. Yet consider McFarlane v E E Caledonia Ltd.”
C witnessed the destruction of an oil rig from aboard a support vessel involved
in attempts to rescue survivors of the explosion which tore apart the rig. He was
not himself involved in the rescue effort and was far enough away from the
burning rig to avoid any personal danger. However, a more horrifying spectacle
is difficult to imagine.
The Court of Appeal refused his claim. A rescuer personally at risk in such circumstances
would have been entitled to compensation as a participant in the terrifying event. But
the claimant was neither a rescuer nor otherwise a participant (ie, at no objective risk
nor in a position reasonably to believe himself to be risk).** As a bystander only, it was
not foreseeable that he would suffer such shock. Stuart-Smith LJ effectively sought to
50 [1988] AC 431, HL.

51 [2000] 1 WER 1970.
52 [1996] AC 155, HL. ate
53 [1994] 2 All ER 1, CA. For critique, see Murphy, ‘Negligentiy Inflicted Psychiatric Harm: A
Re-Appraisal’ [1995] Legal Studies 415. See also Hegarty v E E Caledonia Ltd [1996] |
Lloyd’s Rep 413.
54 [1994] 2 All ER 1, at 13.
-gligent invasions of interests in person and property and economic interests
.S
tose the door, left ajar in Alcock, on liability to bystanders. Practical and policy
reasons, he said, militated against such liability: reaction’ to horrific events were
‘entirely subjective’.
White v Chief Constable of South Yorkshire Police*® further explored the boundaries
of Alcock.
Cs were police officers who claimed damages for psychiatric illness resulting
from their professional involvement in events at the Hillsborough disaster in
which many died or were seriously injured in the crush at the football ground.
Five of the six claimants assisted the injured and sought to ensure that, subsequent
to the full height of the disaster, no further danger faced those leaving the
ground. The sixth claimant was on duty at the mortuary. None of the officers
were exposed to any personal risk of physical injury. The Court of Appeal held
by 2-1 that a duty of care was owed to the officers actually present at the ground
(but not the one at the mortuary).°’ The decision provoked outrage from the
many relatives of those killed and injured at Hillsborough who had been refused
compensation in the Alcock case. The House of Lords in White v Chief Constable
of South Yorkshire Police** reversed the findings of the Court of Appeal openly
acknowledging the argument that it would be perceived as unacceptable to
compensate police officers at the ground in the course of their job and yet deny
any remedy to brothers and sisters who saw their relatives die horrifically.”
First, by a majority of 4-1, their Lordships ruled that the claimants were not to be
classified as primary victims of the defendants’ negligence. The first point they made
was that an employer’s duty to safeguard his employees from personal injury is simply
part of the ordinary law of negligence. As such, the claimants’ first argument (resting
upon the assertion that their relationship with the chief constable was to akin to a
contract of employment) failed: they were in no better position than normal bystanders
to sue in respect of psychiatric harm simply by virtue of this relationship. Employers
undoubtedly owe a duty where an employee is subjected to such a burdensome
workload that stress-related illness is readily foreseeable. But where psychiatric harm
results, not from anything directly done to the employee by the employer but, rather,
from his traumatic experience of what is done to others, he is to be treated in exactly the
same way as any other secondary victim. The Hillsborough police officers witnessed
the disaster at close quarters, but lacked the requisite close ties of love or affection
with the victims in order to be able to sue.
The claimants’ alternative argument was that they were owed a duty of care in their
capacity as rescuers. Yet here, too, the House of Lords insisted that in relation to
psychiatric harm rescuers must meet the same conditions as any other witnesses of
55 [1994] 2 All ER 1, at 14.

56 [1999] 1 All ER 1, HL, overturning the decision of the Court of Appeal.
57 White v Chief Constable of South Yorkshire Police [1997] 1 All ER 540, CA.
58 [1999] 1 All BR: 1) EU:
59 [1999] 1 All ER 1, at 48, HL, per Lord Hoffmann.
60 See, eg, Walker v Northumberland County Council [1995] 1 All ER 737; Hatton v Sutherland
[2002] EWCA Civ 76, [2002] 2 All ER 1. Analogous principles apply in relation to the duty
owed by a school to a bullied pupil: Bradford-Smart v West Sussex County Council [2002]
EWCA Civ 7, [2002] 1 FCR 425.
Duty of care ITI: recognised harm 225
injury to third parties. They must either have objectively have exposed themselves to
danger or reasonably believed themselves to have done so.*! They must also meet the
other conditions limiting recovery by secondary victims outlined above.
It appears, then, that White has to some extent closed the door on further expansion of
liability for psychiatric harm. Caution has again become the judicial watchword.
Nonetheless, one important issue that has never much troubled the judiciary is that of
the application of the ‘egg-shell skull’ rule in this context. It may be invoked equally
with respect to psychiatric harm as it may in relation to physical injury. Thus, so long
as psychiatric harm would be foreseeable in respect of a reasonably mentally tough
individual, the extenuated degree to which the claimant actually suffers psychiatric
harm is irrelevant.”
As Lord Steyn admitted in White v Chief Constable of South Yorkshire® ‘the law on
the recovery of compensation for pure psychiatric harm is a patchwork quilt of
distinctions which are difficult to justify’. Even after judicial attempts to clarify the
principles governing liability for psychiatric harm and package claims neatly according
to primary and secondary victims, loose ends remain. Reflect on the following examples.
(1) A final year student arrives home to witness her hall of residence burning to
the ground. In her room are all her revision notes and the only copy of her
dissertation. Unsurprisingly she succumbs to clinical depression. Can she recover
damages? If the fire was caused by faulty wiring and the university can be
shown to have been negligent in its maintenance of the residence, could she
argue that she is a primary victim because her psychiatric illness is consequent
on the damage to her property? Might she assert, if a secondary victim, ‘a close
tie of love and affection to her work’. In Attia v British Gas plc, decided before
Alcock, a woman did win damages after suffering a nervous breakdown caused
by witnessing her home burn down.
(2) A second, equally unlucky, student is working in a university laboratory
when an explosion rocks the building. He feels the shockwaves and hears the
blast, but only minimal damage ensues in the laboratory where he is at the time.
Even so, it is immediately clear that the neighbouring laboratory has been
completely destroyed and his four closest friends were working there. His fears
are justified. All four were killed in the blast. The surviving student succumbs
to psychiatric illness. If he shows that his illness resulted from reasonable fear to
himself, does he recover as a primary victim? If he admits that it was the shock of
his friends’ fate which triggered his illness, does he fail because of the absence
of the requisite ‘close tie of love and affection’?
61 See also Cullin v London Fire and Civil Defence Authority [1999] PIQR P314, CA.
62 Brice v Brown [1984] 1 All ER 997. And note Vernon v Bosley supra.
63 Brice v Brown [1984] 1 All ER 997.
64 [1999] | All ER 1, at 38.
65 [1988] QB 304, CA.
66 Fora case on broadly analogous facts, where C succeeded, see Dooley v Cammell Laird & Co
Ltd [1951] 1 Lloyd’s Rep 271. In White, supra, Lord Hoffmann suggested that this case might
have to be treated as falling outside the general rules and control mechanisms for secondary
victims.
This area of the law is unquestionably very complex, and without an clear articulation
of background principles.*’ Reform is often called for. Thrée very different solutions
have been advanced. Stapleton® advocates the abolition of recovery in tort for pure
psychiatric harm. She argues the case for a return to the harsh, but clear and equitable
rules of the Victorian judges contending that ‘no reasonable boundaries for the cause
of action [can] be found and this [is] an embarrassment to the law’. Mullany and
Handford® contend that no special rules should limit claims for psychiatric illness.
Foreseeability of psychiatric injury should be the only condition of recovery of
compensation. Finally, the Law Commission recommends a ‘middle way’.” The condition
that secondary victims enjoy a close tie of love or affection with the individual who
suffers physical harm would stay. All other ‘control mechanisms’ would go.”!
Section 3. Policy issues and harm to the person

The ebb and flow of judicial readiness to limit liability for foreseeable harm by invoking
“public policy’ was dealt with in the previous chapter. But in relation to cases involving
harm to the person, some particular policy concerns arise that warrant consideration
here.
As we have already seen in connection with two cases raising genuinely moral
questions, the existence of a duty was refused on the bases that (1) one participant in
crime should not be able to sue his co-criminal in tort,” and (2) it would be morally
improper to impose a duty to terminate a child’s existence before its birth.” In a number
of other decisions, however, the courts have shown themselves unwilling to mount
the unruly horse of public policy in claims where the policy factors raised were
essentially matters of public morality and society’s values. The applicability of this
sort of public interest limitation on the scope of the tort of negligence has been tested
in a series of cases concerning the question of whether damages are recoverable in
respect of the birth of an unplanned baby subsequent to a negligently performed
sterilisation. In Udale v Bloomsbury Area Health Authority,”* Jupp J refused the mother
compensation towards the upkeep of the child despite the defendant’s admission of
negligence. Limiting her damages to compensation for the discomfort of her pregnancy,
he said that the child’s birth was a ‘blessing’ and that the financial cost associated with
such a ‘blessing’’’ was irrecoverable. It offended both society’s notion of what is right
67 For an attempt to fit the seemingly ad hoc requirements relating to secondary victims into a
framework that is consistent with the bulk of the remainder of negligence law, see Murphy,
‘Negligently Inflicted Psychiatric Harm: A Re-Appraisal’ [1995] Legal Studies 415.
68 ‘In Restraint of Tort’ in P Birks (ed), Frontiers of Liability (1994) 83.
69 Tort Liability for Psychiatric Damage: The Law of Nervous Shock (1993). See also Mullany,
‘Hillsborough Replayed’ (1998) 113 LQR 410 and Teff, ‘Liability for Negligently Inflicted
Psychiatric Harm: Justifications and Boundaries’ [1998] CLJ 91.
70 Liability for Psychiatric Illness Law Com No 249 (1998).
71 For the argument that most of the extant control mechanisms can be rationalised in terms of
the general test for the imposition of a duty of care see Murphy, ‘Negligently Inflicted
Psychiatric Harm: A Re-Appraisal’ [1995] Legal Studies 415.
72 Clunis v Camden and Islington Health Authority [1998] QB 978 (the Court of Appeal went as
far as to say that a remedy in tort can never arise from C’s own criminal act).
73 McKay v Essex Area Health Authority [1982] QB 1166, CA.
74 [1983] 2 All ER 522.
75 ‘... | would have to regard the financial disadvantages as offset by her gratitude for the gift of
a boy after four girls’! [1983] 2 All ER 522, at 531, per Jupp J.
and the value afforded to human life. He also thought that the knowledge that his
parents had claimed damages in respect of his birth might distress and damage the
child emotionally as he grew to maturity.
A year later, the Court of Appeal in Emeh v Kensington Area Health Authority”
overruled Jupp J on the policy issue. They were unconvinced that the policy objections
should prevent recovery of damages. Then in McFarlane v Tayside Health Board” —
another case involving an unplanned child — the House of Lords suggested that
damages could be made payable in respect of the pain and suffering associated with
an unwanted pregnancy and confinement, but that the costs of bringing up the child
were irrecoverable. Largely attempting to side-step the policy issues, their Lordships
took the view that child-rearing costs were a form of pure economic loss and thus
irrecoverable.” On the other hand, it has since been held that the special costs
associated with bringing up a disabled child following a negligently performed
sterilisation are recoverable.” Equally, if a woman undergoes a negligently performed
sterilisation operation because she herself is disabled, the costs of rearing any child
born subsequently are recoverable.*?
In Goodwill v British Pregnancy Advisory Service*' the claimant sued the clinic which
she alleged had failed to warn her lover of the potential failure rate of vasectomy. Their
relationship began some time after his surgery. Nonetheless she contended that, had
he been adequately advised by the defendant, he would have communicated the
relevant information to her so that she would then have taken appropriate contraceptive
precautions. She argued that the birth of her child was a consequence of the defendants’
negligence. Holding that the defendants owed no duty of care to the claimant, the
Court of Appeal treated her claim as a claim for economic loss (ie, the financial loss
occasioned to her by unplanned maternity). The defendants were not liable because
the claimant was not a person whom they could be expected to identify as immediately
affected by the services they rendered to her lover. The man’s future sexual partners
were not persons for whose benefit the vasectomy was performed.
Classifying failed sterilisation as economic loss to the parent(s) — whether or not that
claim succeeds — has a certain logic to it. The main purpose of compensation will be to
meet the costs of raising the child. Yet thus classifying the loss does not simplify the
question of recoverability. The special costs of raising a disabled child, or the special
costs of a disabled woman raising any child are equally forms of pure economic loss,
yet recoverable according to the Court of Appeal. It is submitted that these decisions
76 [1985] QB 1012.
77...(2000] 2,A€ 59> HE:
78 On the other hand, Lord Steyn ([2000] AC 59, at 82) did recognise the cogency of the policy
arguments against the imposition of liability based on the sanctity and value of human life, and
Lord Hope (at 97) acknowledged the benefits associated with having a child that (were they
calculable) would have to be set off against the costs of bringing up a child (were they recoverable,
which they were not).
79 Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530,
[2002] QB 266. This so regardless of whether it is a matter of pure bad luck that the child
comes to be born with a disability, or whether it manifests within a few weeks of birth: Groom
v Selby [2001] EWCA Civ 1522, (2001) 64 BMLR 47.
80 Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, [2002] 2 All ER WME
81 [1996] 2 All ER 161, CA. But for a distinction between the two see Witting, ‘Negligent
Inspectors and Flying Machines’ [2000] CLJ 544.
were reached only by clever judicial manipulation of ‘convenient aspects’ of the Caparo
tripartite test and the extended Hedley Byrne assumption‘of responsibility test. We
considered each of these tests briefly in the previous chapter and will return to their
respective applications in the context of pure economic loss in due course. But it is
worth setting out in full the compound reasoning of Brooke LJ in Parkinson v St James
and Seacroft University Hospital NHS Trust.
I would apply the battery of tests which the House of Lords has taught us to use
... My route would be as follows: (i) for the reasons given by Waller LJ in Emeh
v Kensington and Chelsea and Westminster Area Health Authority the birth of
a child with congenital abnormalities was a foreseeable consequence of the
surgeon’s careless failure to clip a fallopian tube effectively; (11) there was a very
limited group of people who might be affected by this negligence, viz Mrs
Parkinson and her husband (and, in theory, any other man with whom she had
sexual intercourse before she realised that she had not been effectively sterilised);
(ii1) there is no difficulty in principle in accepting the proposition that the surgeon
should be deemed to have assumed responsibility for the foreseeable and
disastrous economic consequences of performing his services negligently; (iv)
the purpose of the operation was to prevent Mrs Parkinson from conceiving any
more children, including children with congenital abnormalities, and the surgeon’s
duty of care is strictly related to the proper fulfilment of that purpose; (v) parents
in Mrs Parkinson’s position were entitled to recover damages in these
circumstances for 15 years between the decisions in Emeh 5 case and McFarlane s
case, so that this is not a radical step forward into the unknown; (vi) for the
reasons set out in (i) and (i1) above, Lord Bridge of Harwich’s tests of
foreseeability and proximity are satisfied, and for the reasons given by the
Supreme Court of Florida in Fassoulas v Ramey® an award of compensation
which is limited to the special upbringing costs associated with rearing a child
with a serious disability would be fair, just and reasonable; (vi1) if principles of
distributive justice are called in aid, I believe that ordinary people would consider
that it would be fair for the law to make an award in such a case, provided that it
is limited to the extra expenses associated with the child’s disability.*°
Section 3. Damage to property

Recognition of a duty to avoid physical damage to another’s property, as much as to
his person, raises no unique problem of principle.** Should a negligent driver manage
by the narrowest of margins to prevent his vehicle actually injuring me, but the impact
does ruin my new designer suit, | may recover the cost of the suit without problems.
Should the careless driver, swerving to avoid me, crash into my colleague’s front wall,
he may recover the cost of repairing the wall. Whether the damaged property is a
chattel or real property, a duty not to inflict that kind of harm arises.** Where, however,
the parties are neighbours, the action may lie in nuisance, not negligence.
82 450 So 2d 822 (1984).
83 [2002] EWCA Civ 530, [2002] QB 266, at [50].
84 But note that foreseeability alone is not enough: Marc Rich & Co AG v Bishop Rock Marine
Co Ltd [1996] AC 211, HL.
85 [1986] AC 785, HL. See also The Mineral Transporter [1986] AC 1, PC; Tate & Lyle Industries
Ltd v Greater London Council [1983] 2 AC 509, HL.
The class of persons to whom a duty in respect of damage to property is owed and the
manner in which harm is classified as physical damage to property as opposed to
‘pure’ economic loss do however call for careful consideration.** The House of Lords
in Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd confirmed the rule that a duty in
respect of loss or damage to property is owed only to a person having ‘legal ownership
of or a possessory title to the property concerned at the time when the loss or damage
occurred’.*’ Should an old house in the process of conversion to flats be destroyed by
a fire caused by negligence, only the owner of the house, or a tenant, may recover
compensation. The builders, the plumbers, the decorators all of whom lose out on
valuable contracts to convert the property are left remediless. Contractual rights in
relation to property may well be adversely affected by loss or damage to that property,
but they are insufficient to give rise to a duty of care.
Where the claimant has the necessary title to the damaged property the further question
arises of how harm is classified. All harm, be it personal injuries or physical damage to
property, is quantified in economic terms. What loss of earnings did the claimant’s
injuries occasion him? How much will it cost to repair or replace a damaged wall? As we
shall see, although the courts have attempted to draw lines of demarcation, they are
not wholly satisfactory in terms of providing a general account of distinguishing
physical harm from economic harm.**
It has always been clear that physical damage to, or defects in, property which simply
render it less than value for money, but not dangerous, will be classified as economic
loss. So if one buys a central heating boiler which heats the house inefficiently and at
vast expense, the loss you suffer is economic loss alone, readily recoverable in contract,
but not normally so in tort. Where the defective property is dangerous, however, a line
of authority relating to buildings suggests that if there is an imminent danger of damage
to person or other property, the cost of rectifying the defect and avoiding the danger
could be categorised as physical damage, albeit that no tangible physical damage has
yet materialised.* The decision of the House of Lords in Murphy v Brentwood District
Council” rejected that line of authority as being close to heresy. Physical damage
means just what it says: actual physical harm to persons or other property. Where no
such damage has materialised, the loss caused by the need to repair defective property,
to obviate the danger, constitutes an economic loss.
In Murphy itself C had purchased a house built on an in-filled site over a concrete
raft foundation. In 1981 he discovered cracks in the house threatening the whole
fabric of the property. Had he done nothing, the house might have collapsed on
top of him. He sued the local council for negligently approving the plans for the
foundations. The House of Lords held (inter alia) that the council could not be
86 See Witting, ‘Distinguishing Between Property Damage and Pure Economic Loss: a Personality
Thesis’ [2001] Legal Studies 481. a
87 [1986] 2 All ER 145, at 149, HL. See also Simaan General Contracting Co v Pilkington Glass
Ltd (No 2) [1988] QB 758, CA. ae
88 For an erudite suggestion as to a means of distinguishing between the two types of harm, see
Witting, ‘Distinguishing Between Property Damage and Pure Economic Loss: A Personality
Thesis’ [2001] Legal Studies 481.
89 Batty v Metropolitan Property Realisations Ltd [1978] QB 554, CA; Anns v Merton London
Borough Council [1978] AC 728, HL.
90 [1991] 1 AC 398, HL.
liable unless the builder would have been so liable.”' The first question to address
was what was the nature of C’s loss. Their Lordships conceded that a builder of
premises is subject to the same duty of care in tort as the manufacturers of
chattels to ‘avoid injury through defects in the premises to the person or property
of those whom he should have in contemplation as likely to suffer such injury if
care is not taken’.” So, to illustrate the points made, if the ceiling had actually
collapsed on Mr Murphy, injuring him or destroying his piano, he might have
had a claim for personal injuries or property damage against the builder. However,
unless and until such actual physical damage has occurred, the loss associated
with the cost of making the house safe (or any diminution in its value) is purely
economic.
One matter must be made clear. Mr Murphy’s house at the time of his action was
already suffering from serious cracks in the internal walls. Physical damage, you might
have thought. Not so. For that damage was damage to, and a defect in, the very
property in question. There was no question of the defective property causing damage
to quite separate property. In an earlier decision of the House of Lords it had been
suggested that where there was a ‘complex structure’, defects in one part of the structure
causing damage to some other part might be regarded as having damaged ‘other
property.”? In Murphy any such doctrine was questioned, but not rejected.” It has
since however received tacit judicial approval.” There are, however, limits to this
complex structure exception. It applies only if some distinct and separate item, which is
combined with, but distinct from the product in question causes damage to the latter.
For example, it might apply where C buys a house built by X with a central heating
system made and installed by Y, and some months after the purchase an explosion
damages the house (but injures no-one). In such a circumstance, an action would lie
against Y for his negligently manufactured item that has damaged separate property,
the house itself.”°
Another limit to the complex structure approach applies where distinct product X is
combined with distinct product Y to make product Z — eg, where two products (one a
gas, one a liquid) are combined to make a carbonated drink. In such circumstances it
has been held to be inappropriate to speak in terms of the first product damaging the
second because there is merely the production of a defective third product (product Z
in our example).”’
Where defective design causes another form of harm to occur — eg, fire damage that
would be avoided ifa fire wall had been properly designed and constructed — a duty of
care may be imposed on the architects responsible. But the scope of their duty to a
subsequent occupier of premises is determined by reference to the extent of their
91 For direct authority on the liability of builders see Department of the Environment v Thomas
Bates & Son Ltd [1991] 1 AC 499, HL.
92 [1991] 1 AC 398, at 461, per Lord Keith. Note that the question of the liability of the council
even for physical injury was left open.
93 InD & F Estates Ltd v Church Comrs for England [1988] 2 All ER 992, at 1006-7, HL, per
Lord Bridge.
94 [1990] 2 All ER 908, at 926-8, 932-933 and 942, HL, per Lords Bridge, Oliver and Jauncey.
95 Bacardi-Martini Beveridges Ltd v Thomas-Hardy Packaging Ltd [2002] 1 Lloyd’s Rep 62.
96 Murphy v Brentwood District Council, supra, at 928, HL, per Lord Bridge.
97 Bacardi-Martini Beveridges Ltd v Thomas-Hardy Packaging Ltd [2002] 1 Lloyd’s Rep 62. See
further, Tettenborn, ‘Components and Product Liability’ [2000] LMCLQ 338.
original contractual duty. Thus, if they were only contracted to provide the plans for
such a wall, but not to supervise its actual construction, no duty would be imposed in
respect of the negligent erection of the wall.”
There can be some strange consequences to applying the Murphy doctrine. Assume
an impecunious house-owner becomes aware of the worsening condition of her property,
but she does nothing about it because she cannot afford to pay for the necessary
repairs. Several months later the house collapses injuring her and damaging her
priceless furniture. It seems she may then sue to recover compensation for that physical
damage.” But the ‘imminent danger’ doctrine suffered from a similar anomaly as Lord
Bridge pointed out.'® It should be noted that for the most part Commonwealth
jurisdictions have declined to follow the Murphy ‘doctrine’ and preferred to allow
claimants in circumstances analogous to Mr Murphy’s to succeed.'”!
There are also some rather difficult borderline cases on what constitutes economic
loss. For example, the need to decontaminate a ship after it has been doused in acid
which causes no tangible damage to the ship has been characterised as physical
damage.'” A similar interpretation has been placed on the ingress of water into a gas
supply line such that householders become deprived of a gas supply for several
days.'°
Section 4. ‘Pure’ economic loss

Classifying the claimant’s loss as purely economic does not preclude recovery of that
loss altogether. But it does require the claimant to convince the court that the defendant
owed him a duty to safeguard him against just that sort of loss. As we noted earlier,'™
the courts are generally much less willing to find the existence of such a duty than a
duty to protect others from physical injury or damage. According to Lord Fraser in The
Mineral Transporter'® ‘some limit or control mechanism has to be imposed on the
liability of a wrongdoer towards those who have suffered economic damage as a
consequence of his negligence’. This restrictive approach to economic loss means
that, in practice, economic loss is recoverable only when the claimant can establish a
‘special relationship’ between himself and the defendant (the latter having undertaken
an assumption of responsibility of one form or another'®’), or where the loss is
consequential upon physical damage also suffered by the claimant. It is as well to note
at the outset that ‘special relationships’ characterised by assumptions of responsibility
98 Bellefield Computer Services v E Turner & Sons Ltd [2002] EWCA Civ 1823, [2002] All ER
(D) 272 (Dec), CA.
99 See Nitrigin Eireann Teoranta v Inco Alloys Ltd [1992] 1 All ER 854. Would D be able to plead
contributory negligence?
100 Supra, at 429.
101 See, eg, Invercargill City Council v Hamlin [1996] 1 All ER 756.
102 The Orjula [1995] 2 Lloyd’s Rep 395.
103 Anglian Water Services Ltd v Crawshaw Robbins Ltd [2001] BLR 173.
104 [2001] BLR 173, at 177-178. And see generally Stapleton, ‘Duty of Care and Economic Loss:
A Wider Agenda’ (1991) 107 LQR 249; Stapleton, ‘Duty of Care: Peripheral Parties and
Alternative Opportunities for Deterrence’ (1995) 111 LQR 301.
105 [1985] 2 All ER 935, at 945. See also White v Chief Constable of South Yorkshire Police [1999]
1 All ER 1, at 31, HL, per Lord Steyn.
106 Williams v Natural Life Health Foods Ltd [1998] 2 All ER 577, HL; Henderson v Merrett
Syndicates Ltd [1995] 2 AC 145, HL.
exist not just where the defendant has made a statement of proffered advice upon
which the claimant relies, but also where he has undertaken'to perform various forms
of service. However, historical development of the law in this area makes it simpler to
begin by examining economic loss resulting from inaccurate statements and advice.
(A) Statements and ‘special relationships’

Two difficulties beset the imposition of any duty to avoid making careless statements.
First, there is generally a difference in the potential effects of careless words and
careless acts. While negligent acts will generally have a limited range of impact, negligent
words may be widely broadcast without the consent or foresight of the speaker.
Careless statements are, in general, likely to inflict only economic loss. But it should
not be overlooked that careless words, whether written or spoken, do have the potential
to cause harm to the person.'”’ Thus, a doctor whose negligent certification of one
claimant as a person of unsound mind leading to his detention in a mental hospital was
held liable,'°* while a similar result was reached in a more recent case involving the
negligent certification of a light aircraft as suitable to fly.'®
The development of the duty to avoid statements causing pecuniary loss is inextricably
linked to the troubled history of liability for economic loss in general. The original
difficulty relating to economic loss resulting from careless statements was this. A
person suffering economic loss through relying on a fraudulent statement could sue in
the tort of deceit. In Derry v Peek'!® the House of Lords held that to establish deceit
the claimant must prove fraud — ie, that the defendant knew that his statement was
untrue, or was reckless as to its untruth. Mere negligence was insufficient.''' The
fallacy in this early case law was exposed by the House of Lords in the landmark
decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd.'"*
Cs asked their bankers to inquire into the financial stability of a company with
which they were having business dealings. Their bankers made inquiries of Ds,
the company’s bankers, who carelessly gave favourable references about the
company. Reliance on these references caused Cs to lose £17,000. Cs sued Ds
for the careless statements. The action failed only because Ds had expressly
disclaimed any responsibility.
All five Law Lords re-examined the authorities on liability for careless statements.
They rightly limited the rule in Derry v Peek to its proper function of defining the limits
of the tort of deceit and thus held it to be irrelevant to the issue of whether a duty of
care arose in negligence. The absence of a contract was also irrelevant. As Lord Devlin
said:
107 See, eg, Perrett v Collins [1998] 2 Lloyd’s Rep 255, CA; Sharp v Avery and Kerwood [1938]
4 All ER 85, CA; Bird v Pearce (1979) 77 LGR 753, CA; Clayton v Woodman & Son (Builders)
Ltd [1961] 3 All ER 249 (revsd on other grounds [1962] 2 All ER 33, CA).
108 De Freville v Dill (1927) 96 LIKB 1056.
109 Perrett v Collins, supra.
110 (1889) 14 App Cas 337, HL.
111 Candler v Crane, Christmas & Co [1951] 2 KB 164, CA.
112 [1964] AC 465, HL.
[a] promise given without consideration to perform a service cannot be enforced

as a contract by the promisee, but if the service is in fact performed and done
negligently the promisee can recover in an action in tort.!3
Their Lordships were not however prepared to recognise a duty of care in respect of
statements on the basis of the Donoghue v Stevenson neighbour principle alone. For
liability for statements resulting in economic loss to be imposed, some narrower test
than that of foreseeability of the loss had to be satisfied.''* The House was cautious
not to formulate rules that might expose a maker of careless statements to liability to a
large indeterminate class of claimants. For instance, newspapers were not to be
accountable to everybody who read their advice columns and suffered loss through
relying on their negligent advice.'' Instead, they said that the claimant seeking to
recover for negligent misstatements must establish that the statement was made within
a relationship where the claimant could reasonably rely on the skill and care of the
defendant in making the statement. He must show some ‘special relationship’ with the
defendant which properly resulted in the defendant undeftaking responsibility for the
accuracy of the statements made. These concerns were captured succinctly by Lord
Reid:
[q]uite 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.''®
Subsequent case law to some extent elucidated the crepuscular phrase ‘special
relationship’. In Mutual Life and Citizens’ Assurance Co Ltd v Evatt''’ Lord Diplock
suggested that liability for misstatements should arise only in the context of certain
professional relationships where giving advice was the primary purpose of the
relationship. So solicitors would be responsible for legal advice offered to clients, and
stockbrokers for financial guidance, but an insurance company volunteering financial
advice to a policy holder should not be liable. The Court of Appeal largely ignored
Evatt. Accordingly, in Chaudhry v Prabhakar'"* the defendant who considered himself
something of an expert on motor cars was held liable to his friend whom he agreed to
assist with the purchase of a car when his advice proved to be negligent. Indeed, the
trend up until 1989 appeared to be to allow a liberal interpretation of what constituted
a special relationship. But two subsequent decisions of the House of Lords — Caparo
Industries ple v Dickman''? and Smith v Bush'?? — outline more authoritatively the
parameters of liability for economic loss arising from negligent advice. Although Caparo
was decided subsequently to Smith v Bush, it helps to consider Caparo first.
Ds were auditors who acted for Fidelity plc. They had prepared annual accounts
on the strength of which Cs bought shares in Fidelity and then mounted a
113 [1964] AC 465, at 526, HL.

114 [1964] AC 465, at 483 and 537, HL, per Lords Reid and Pearce.
HS: [VOT ACW 933 PC:
116 [1964] AC 465, at 487, HL.
117 [1971] AC 793, PC.
118 [1988] 3 All ER 718, CA. See also Esso Petroleum Co Ltd v Mardon [1976] QB 801, CA.
119 [1990] 2 AC 605, HL.
120 [1990] 1 AC 831, HL.
successful takeover bid. Cs alleged that the accounts were inaccurate and
misleading showing a large pre-tax profit when they should have recorded a
sizeable loss. Had Cs been aware of this, they would never have bid for Fidelity.
The House of Lords found against the claimants on a preliminary point of law. The
auditors owed no duty of care in respect of the accuracy of the accounts either to
members of the public who relied on the accounts to invest in the company or to any
individual existing shareholder who similarly relied on those accounts to increase his
shareholding.'*! Auditors prepare accounts, not to promote the interests of potential
investors, but to assist the shareholders collectively to exercise their right to control
over the company.'” Four conditions must be met for a defendant to be liable for
economic loss resulting from negligent advice or information. (1) The defendant must
be fully aware of the nature of the transaction which the claimant had in contemplation
as a result of receipt of the information. (2) He must either have communicated that
information to the claimant directly, or know that it would be communicated to him (or
a restricted class of persons of which the claimant is an identifiable member). (3) He
must specifically anticipate that the claimant would properly and reasonably rely on
that information when deciding whether or not to engage in the transaction in question.
(4) The purpose for which the claimant does rely on that information must be a purpose
connected with interests that it is reasonable to require the defendants to protect.
No duty is owed to all potential investors for such a duty would in truth result in
unlimited liability. If auditors were liable to any investor who relied on the published
accounts to deal with the company simply because such conduct is foreseeable, they
would equally be liable to anyone else who dealt with the company to his detriment, for
example, banks lending the company money or tradesmen extending credit terms.!*
Caparo sought to argue that the vulnerability of Fidelity to takeover should have
alerted the auditors to the likelihood of a company, such as Caparo, mounting a takeover
bid, and that they were not just any potential investor, but existing shareholders. Their
Lordships held that the defendants were under no duty to safeguard the economic
interests of predators,'** and that the statutory duty imposed on them by Parliament
was to protect the interests, and existing holdings, of the shareholders in the client
company,'”* not to facilitate investment decisions whether by existing shareholders or
others.
A positive avalanche of cases on the limits of Hedley Byrne liability followed Caparo.
Just a few examples are given here to illustrate the application of the Caparo principles.
In one case it was held that directors of a company who issued a prospectus to invite
shareholders to take up a rights issue were not under a duty to those shareholders
121 The Court of Appeal had held that existing shareholders were owed such a duty distinguishing
the shareholder investors from other members of the public: [1989] 1 All ER 798, CA.
122 [1990] 1 All ER 568, at 580-1 and 600-601, HL, per Lords Bridge and Oliver.
123 See Al Saudi Banque v Clark Pixley [1990] Ch 313.
124 Why should auditors be responsible for the success of those actively seeking to destroy their
client?
125 As to whether an existing shareholder might sue if his existing proprietary interest was
damaged by negligence on the part of the auditors (ie, be sold at an undervalue) see Lord Bridge
[1990] 1 All ER 568, at 580-1, HL (probably yes) and Lord Oliver, at 601 (leaving the
question open).
who relied on the prospectus to make further investments.'° Nor were accountants
advising a creditor company on the appointment of a receiver liable to that company’s
debtors.'’’ In both cases the relationship between the parties lacked the necessary
proximity. The defendants had done nothing to make themselves responsible for the
financial welfare of the claimants. But what if some express representation has been
made directly to the claimant on the basis of which he argues that he then decided to
go ahead with a particular transaction? Much may turn on the facts of the case. In
James McNaughton Paper Groups v Hicks Anderson'* the defendant accountants
became aware that the claimants were considering a takeover of their clients. At a
meeting between the two companies, the defendants were asked to confirm the accuracy
of draft accounts, and they did this in very general terms. The Court of Appeal found
that no duty was owed to the claimants. The draft accounts were not prepared for their
benefit, and the defendants would reasonably expect a party to a takeover bid to take
independent advice and not rely exclusively on draft accounts. However, where it was
pleaded that the defendants had prepared profit forecasts expressly designed to induce
the claimants to increase their bid for a company at risk of takeover, the Court of
Appeal refused to strike out the claim and ordered a full trial on the facts.'°
Perhaps the key question in this sort of case is whether advice given by the defendant
has been given in a context in which the assumption that claimants should generally
look after their own financial interests can be displaced.'*° Have the defendants in
effect induced the claimants to place faith in their judgment?
In Henderson v Merrett Syndicates Ltd'*’' managing agents at Lloyds who placed
monies entrusted to them by Names at Lloyds in underwriting contracts owed a duty
of care to ‘their’ Names. The agents undertook responsibility for advising the claimants
and finding appropriate investments for their money. They in effect ‘took over’ the
claimants’ financial affairs. Williams v Natural Life Health Food Ltd'*’ is also instructive.
The second defendant set up a company to franchise health food business and run his
own shop. The claimants approached the company to obtain a franchise. Having
received a glowing brochure and prospectus which included testimonies to the second
defendant’s experience and success, the claimants went ahead and obtained a franchise.
At no stage in the pre-contractual negotiations did they have any contact with the
second defendant personally. The enterprise was a disaster and the claimants’ shop
failed to make money, resulting in severe financial loss to the claimants. They sued the
company and the second defendant. The company went into liquidation so the action
proceeded against the second defendant alone. The House of Lords found that there
was no special relationship between the second defendant and the claimants because
there were no personal dealings between them and neither directly nor indirectly did
the second defendant convey to the claimants that he assumed personal responsibility
126 Al-Nakib Investments (Jersey) Ltd v Longcroft [1990] 3 All ER 321.

127 Huxford v Stoy Hayward & Co (1989) 5 BCC 421.
128 [1991] 2 QB 113, CA.
129 Morgan Crucible v Hill Samuel Bank Ltd [1991] 1 All ER 148, CA.
130 For closer analysis see Witting, ‘Justifying Liability to Third Parties for Negligent Misstatements’
(2000) 20 OJLS 615.
131 [1995] 2 AC 145 HL. As to concurrent liability in tort and contract see ch 11. See also
Whittaker, ‘The Application of the “Broad Principle of Hedley Byrne” as Between Parties to
a Contract’ [1997] Legal Studies 169.
132 [1998] 2 All ER 577, HL.
‘
for their affairs. Nor-was.there evidence that the claimants relied on his personal
undertakings to safeguard their economic well-being as franchisers. The dealings
were all with the company. Unlike the Lloyds’ agents, the second defendant took no
role as an individual in ‘managing’ the claimants’ business interests.
We move now to look at Smith v Bush; but we do so noting that in Caparo'*’ Lord
Oliver described Smith v Bush" as the outer limit of Hedley Byrne liability.
Ds were surveyors acting for the mortgagees. They gave favourable reports on
properties to be purchased by C, the mortgagor. An express disclaimer denied
any liability to C.'*> Nonetheless the evidence was that 90% of house purchasers
do in fact rely on the mortgagees’ report'** and do not engage their own surveyor.
C paid the surveyor’s fee and Ds were well aware that C (whose identity they
knew) would rely on the report and would suffer loss if that report were negligently
prepared.
The House of Lords unanimously found that in such circumstances a duty of care is
owed to the mortgagor. Unlike in Caparo, the defendants were well aware of the
identity of the claimant, knew that their advice would be transmitted to the claimant
and appreciated exactly how the claimant would act in reliance on that advice. There
was no element of uncertainty relating to the transaction consequent on that advice.
There was no question of liability other than to one identifiable claimant.'’’ There was
no conflict between the interests of the surveyors’ client and the mortgagors. If the
surveyors had done the job properly and produced a proper valuation, they would
have discharged their duty to both mortgagee and mortgagor. The claimants who paid
their fees were properly entitled to rely on their professional skill and advice.'**
It is important, of course, to remember that proof of a duty to act carefully in giving

advice or information is only the first stage in the claim. Claims may, of course, fail for
other reasons. If, for example, it can be shown that the duty extended merely in respect
of the provision of information upon which the claimant could (but need not) base his
133 [1998] 2 All ER 577, at 598.

134 [1990] 1 AC 831, HL.
135 The disclaimer was invalid under the Unfair Contract Terms Act 1977.
136 Smith v Bush was a consolidated appeal concerning two separate Cs. In one case the mortgagee
showed the actual report to C. In the other, the report itself was not disclosed to C.
137 The likelihood that a purchaser may emerge in the future who will suffer loss if a survey is
carelessly conducted is insufficient. A particular individual who will almost inevitably place
faith in the report and act to his detriment must be within D’s contemplation: The Morning
Watch [1990] 1 Lloyd’s Rep 547. Contrast Smith v Bush with Goodwill v British Pregnancy
Advisory Service [1996] 2 All ER 161, CA (no liability to a subsequent partner of a man whose
vasectomy failed. C argued that had her lover been properly advised of the risk of failure she
would have been told and taken suitable precautions. Gibson LJ doubted that she could be
considered an identifiable C: ‘The defendants could know nothing about the likely course of
action of future sexual partners’).
138 Lord Griffiths and Lord Jauncey both made references to the reasonableness of purchasers at
the lower end of the market relying on the building society survey rather than facing the
additional expense of an independent report. Yet the Smith v Bush approach was applied to a
property worth £100,000 in Beaumont v Humberts [1990] 49 EG 46, CA. Is the value of the
property perhaps more relevant to the validity and reasonableness of any disclaimer than
whether a duty is owed at all?
financial decisions, the defendant will not be liable for he has not advised upon the
wisdom (or otherwise) of the financial decision finally taken.'° Equally, as with other
actions in negligence, want of care may not be proved;'° or the claimant may fail to
show that his loss resulted from the defendant’s carelessness.'“! Thus, if the claimant,
albeit he believed the information, would have acted as he did regardless of the
defendant’s negligence, his loss is not caused by that negligence.'”
(B) The extended Hedley Byrne principle

What then is the basis of Hedley Byrne liability? Lord Griffiths, in Smith v Bush,
dismissed as unhelpful the notion that liability rests on an assumption of responsibility
by the defendant.'*’ Indeed, the defendants in Smith v Bush manifested every intention
to the contrary, attempting expressly to disclaim liability. A duty, Lord Griffiths argued,
can arise, not only where the defendant either expressly or implicitly undertakes
responsibility to the claimant for advice or information, but also where the particular
relationship between the two is such that it is just that the defendant be subject to
such responsibility.'** Lord Griffiths’ criticism of any principle of assumption of
responsibility was strongly supported by a number of academic commentators.'*
However, subsequent decisions of the House of Lords have forcefully endorsed the
‘assumption of responsibility’ test as the basis of an extended Hedley Byrne principle
which embraces negligent performance of services as much as negligent statements
and advice.'*° In Henderson v Merrett Syndicates Ltd,'*’ for example, Lord Goff rested
his finding of liability on the part of the managing agents on their assumption of
responsibility towards those who relied on their special expertise in underwriting. In
White v Jones,'** Lord Browne-Wilkinson affirmed the centrality within Hedley Byrne
liability of discovering whether the defendant had assumed responsibility for the
advice or task undertaken. Notably, however, he stressed that what is crucial 1s a ‘a
conscious assumption of responsibility for the ¢ask rather than a conscious assumption
of legal responsibility to the claimant for its careful performance’. (This approach,
however, is difficult to square with the notion that an assumption of responsibility is
139 South Australia Asset Management Corp v York Montague Ltd [1997] AC 191, HL; Aneco
Reinsurance Underwriting Ltd v Johnson & Higgins Ltd [2002] 1 Lloyd’s Rep. 157, HL.
140 Stafford v Conti Commodity Services Ltd [1981] 1 All ER 691; Argy Trading Developments Co
Ltd v Lapid Developments Ltd [1977] 3 All ER 785.
141 Banque Financiere de la Cité v Westgate Insurance Ltd [1991] 2 AC 249, HL (note that their
Lordships also found no duty in that case).
142 J EB Fasteners Ltd v Marks, Bloom & Co [1983] 1 All ER 583, CA (C failed to prove that he
relied on negligently prepared accounts when making his investment). See also Williams v
Natural Life Health Foods Ltd [1998] 2 All ER 577, at 836, HL.
143 [1998] 2 All-ER 577, at 865, HL, confirming the decision of the Court of Appeal in Ministry
of Housing and Local Government v Sharp [1970] 2 QB 223, CA.
144 See Al Saudi Banque v Clark Pixley [1989] 3 All ER 361, at 367, per Millet J (there should
either be an assumption of responsibility or a relationship ‘equivalent to contract’).
145 See, eg, Barker ‘Unreliable Assumptions in the Modern Law of Negligence’ (1993) 109 LQR
461; Hepple ‘The Search for Coherence’ (1997) 50 Current Legal Problems 69.
146 Williams v Natural Life Health Foods Ltd [1998] 2 All ER 577, HL.
147 [1995] 2 AC 145, at 182, HL.
148 [1995] 2 AC 207, at 274, HL.
really only a way of characterising the relationship of proximity necessary for the
imposition of a duty of care.'*”)
More generally, the three decisions of the House of Lords in Henderson v Merrett
Syndicates Ltd, White v Jones and Williams v Natural Life Ltd, have confirmed that
Hedley Byrne opened the doors to much wider liability in respect of economic loss in
tort than had previously been available. In Hedley Byrne itself, Lord Devlin stated:
[c]ases may arise in the future in which a new and wider proposition, quite
independent of contract, will be needed. There may, for example, be cases in
which a statement is not supplied for the use of any particular individual.'*°
Seeking to extend yet further the boundaries of a duty to avoid inflicting financial loss
on others, a robust approach was taken by Megarry V-C in Ross v Caunters.
D, a solicitor, negligently drew up a will and thereby failed to fulfil his client-
testator’s instruction to benefit C. C then sued D in negligence.'*'
The claimant could in no sense be said to have relied on the solicitor yet his action
succeeded. The judge held that the law had by 1979 so developed that he should apply
the neighbour principle in Donoghue v Stevenson in the absence of any policy factors
negativing or limiting the scope of such a duty. There was close proximity between the
claimant and the defendant. His contemplation of her was ‘actual, nominate and direct’,
sO proximity arose out of the duty he undoubtedly owed to the testator. It was in no
way ‘casual, accidental or unforeseen’. The liability arising from the duty was to one
person alone.' Accordingly, the spectre of indeterminate liability did not arise.
In White v Jones,'*’ the House of Lords found for the claimant on facts reminiscent of
(but different to) those in Ross v Caunters.
After a family quarrel, the testator (aged 78) disinherited Cs (his two daughters).
A few months later the family was reconciled and on 17 July the testator instructed
Ds (his solicitors), to draw up a new will including legacies of £9,000 to each
daughter. Ds failed to act on those instructions before the testator died some
months later. As a result of Ds’ negligent delay in acting on the testator’s
instructions, Cs failed to be awarded their legacies.
The House of Lords held that the claimants’ economic loss was recoverable. Lord Goff
made it clear that their Lordships did not endorse Megarry V-C’s simplistic approach
basing liability on the neighbour principle alone.'** The claim by the claimants in White
v Jones, as in Ross v Caunters, posed a number of conceptual difficulties,' but
149 See Murphy, ‘Expectation Losses, Negligent Omissions and the Tortious Duty of Care’ [1996]
CLJ 43. Note, however, that White has been followed in this respect in an analogous case:
Gorham v British Telecommunications plc [2000] 1 WLR 2129 (an insurance- company owes
a duty to those it advises on insurance matters and, in the event of their death, to their
dependants).
150 [1964] AC 465, at 530, HL.
151 [1980] Ch 297. And see Al-Kandari v JR Brown & Co [1988] QB 665, CA.
152 See Caltex Oil (Australia) Pty Ltd v Dredge Willemstad (1976) 136 CLR 529 (High Court of
Australia) (note the importance in relation to economic loss of there being a single identifiable
C rather than a diffuse class of potential Cs).
1 S3a 99s AC 207, Hie
154 [1995] 2 AC 207, at 268, HL
155 Detailed in full in [1995] 2 AC 207, at 260-262, HL.
principally the following. (1) The defendants’ contractual duty was owed only to his
client, the now dead testator. Privity of contract rules excluded the extension of this
duty to the disappointed beneficiaries. (2) The claimants’ actions, being founded on
pure economic loss, could succeed only on the basis of some form of application of
Hedley Byrne; yet there was no obvious assumption of responsibility towards the
claimants and, still less obviously, any corresponding reliance on their part. (3) If
liability were to be imposed, establishing clear and manageable limits to such liability
would be near to impossible to achieve.
The majority in the House of Lords found these difficulties could be surmounted;'™
but the conceptual grounds on which their Lordships did in fact establish liability
must be read with some caution.'*’ Lord Goff was entirely frank in admitting that he
was strongly motivated by an impulse to do practical justice. He pointed out the
‘extraordinary fact’ that ifno duty in tort were owed to the claimants, the only persons
who might have a valid claim (the testator and his estate) had suffered no loss, and the
only persons who suffered a loss (the disappointed beneficiaries) would have no
claim.'** Lord Browne-Wilkinson warned that his analysis was only what was necessary
for the purposes of this case. He made clear that he was ‘not purporting to give any
comprehensive statement of this aspect of the law’.'*?
So what did White v Jones decide? (1) The existence of a contract between the
defendants and a third party (the testator) did not by virtue of the rules on privity of
contract exclude a duty in tort to the claimant. (2) Such a duty could arise if, quite apart
from the contract, the circumstances of the case gave rise to a special relationship
between the parties. (3) On the facts of Hedley Byrne itself, proof that the claimant
relied on the advice given, or statements made, by the defendants, and that the
defendants should have foreseen such reliance, was an ‘inevitable’ condition of liability.
However reliance is not a necessary condition for the creation of a special relationship
in every case giving rise to a duty to safeguard another from economic loss. (4) A
special relationship will arise when the defendant assumes responsibility for providing
services knowing and accepting that ‘the future economic welfare of the intended
beneficiary is dependent on his careful execution of the task’.'* (5) On the facts of
White v Jones, there were no reasons of policy why such a duty should not be imposed
on the defendants, and indeed very good reasons why it should be so imposed. The
actual outcome of the decision in Ross v Caunters imposing liability on solicitors for
negligently executed wills had worked well and had not given rise to unlimited claims.
In such cases there was no conflict of interest'®' between the duty owed to the testator
in contract, and the duty owed to the claimants in tort. Fulfilling the contractual
obligation to the defendant at one and the same time would have discharged the duty
of care owed to the claimants.
156 Note the powerful dissent of Lord Mustill.

157 See Murphy, ‘Expectation Losses, Negligent Omissions and the Tortious Duty of Care’ [1996]
CLI 43.
158 [1995] 2 AC 207, at 259-260, HL. ee
159 [1995] 2 AC 207, at 274, HL. But see the application of White v Jones in Gorham v British
_Telecommunications plc [2000] 1 WLR 2129. 5
160 [1995] 2 AC 207, at 275, HL, per Lord Browne- Wilkinson.
161 Compare White v Jones with Clarke v Bruce Lance & Co [1988] 1 All ER 364 (no duty to
beneficiary in advising the testator in another transaction which ultimately reduced the value
of C’s legacy under the will).
‘
White v Jones does, therefore, make clear at least three crucial principles. (1) A duty to
avoid causing economic loss is confined to special relationships within which the
defendant has assumed responsibility for protecting the claimant’s economic welfare.
(2) Such a relationship will arise only where the claimant is readily identifiable as an
individual or a member of a class of persons for whom the defendant undertakes
responsibility in the performance of a particular task. (3) Hedley Byrne relationships
are not confined to negligent misstatements and careless advice. Provision of services,
including services provided at the behest of a third party, may create a special
relationship in appropriate conditions.'* Reliance is not an essential ingredient of a
special relationship.'® Thus, a passenger in a light aircraft who has not personally
relied on the negligent certification of its airworthiness is entitled to sue in respect of
physical injury consequent upon that negligent certification.'“ In short, White v Jones
confirms the wider interpretation of Hedley Byrne prophesied by Lord Devlin, albeit
equally clearly rejecting any suggestion that liability for economic loss can simply be
equated with liability for physical harm.
A willingness to give a liberal, extended interpretation to Hedley Byrne liability married
to an apparent impetus to do justice to a hard done by claimant is once again apparent
in Spring v Guardian Assurance plc.'*
C sued his former employers for negligence (among other things). The reference
D provided for him when he sought to be appointed as an agent for another
insurance company was so unfavourable that the company refused to appoint
him. The reference suggested that C was dishonest. The trial judge found that
the reference had been carelessly (but not maliciously) prepared and found for C
in negligence. In the House of Lords, the majority held that there had been an
implied term in the contract of employment that any subsequent reference be
supplied with due care. The Law Lords also ruled in the claimant’s favour in tort.
In supplying a reference — at least in circumstances such as those in the instant
case where references were required as a matter of regulation'® — D assumed the
responsibility to prepare the reference with care.
That the defendants owed such a duty to the recipient of the reference was established
by Hedley Byrne. But in the instant case, the duty claimed was one owed to the person
about whom it was written, not the person to whom it was sent. It therefore represented
an extension of the Hedley Byrne principle that could be justified on the basis that an
employee relies on his employer to carry out this service with appropriate care. His
interests are ‘entrusted’ to the skill of the referee. His financial prospects are largely in
their hands.
162 See also Williams v Natural Life Health Foods Ltd [1998] 2 All ER 577, HL; Carr-Glynn v
Frearsons [1998] 4 All ER 225, CA.
163 C’s reliance is often the means by which causation can be established, but it has no normative
significance of its own; it tells us nothing about the nature of D’s conduct such that it is
appropriate for D to be made liable to C.
164 Perrett v Collins [1998] 2 Lloyd’s Rep 255, CA.
165 [1995] 2 AC 296, HL. See also the similar impetus to do justice in Parkinson v St James and
Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, [2002] QB 266 and Rees v
Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, [2002] 2 All ER 177.
166 The regulatory authority (LAUTRO) which governs the conduct of insurance companies
required both that the company seeking to appoint C must seek a reference and that Ds supply
such a reference.
Duty of care IT: recognised harm 24|
But we must not lose sight of the fact that in Spring there was a significant policy issue
present that arguably militated against the imposition of liability. Allegations of
dishonesty are clearly defamatory. Yet had the claimant sued in defamation, his claim
would have been met by a defence of qualified privilege (given the absence of malice).
Indeed, the giving of references prepared without malice is a classic example ofqualified
privilege. It was at least arguable, therefore, that to allow the claimant’s action in
negligence would be to undermine the principles of defamation law. This, conceivably,
might cause employers and others supplying references to be inhibited in what they
were prepared to say, and possibly even lead to them being unprepared to supply
references at all. Their Lordships nonetheless were dismissive of this line of argument.
Lord Woolf acknowledged that public policy required that references be full and frank
but countered that public policy also required that references ‘should not be based
upon careless investigations’. If a negligently written favourable reference could give
rise to liability, thought his Lordship, there could be no problem in imposing liability
for a negligently written adverse reference. The law should encourage referees to act
carefully with proper regard for the interests of both the recipient and the subject of
the reference.
A strong desire to offer the claimant redress for a perceived injustice can be seen in the
opinions of the Law Lords.'*’ Addressing the need to prove malice to succeed in
defamation, Lord Woolf declared that:
[t]he result of this requirement is that an action for defamation is a wholly

inadequate remedy for an employee who is caused damage by a reference which
due to negligence is inaccurate. This is because it places a wholly disproportionate
burden on the employee. Malice is extremely difficult to establish... Without an
action for negligence, the employee may, therefore, be left with no practical
prospect of redress even though the reference may have permanently prevented
him from obtaining employment in his chosen vocation.
The decision in Williams v Natural Life Health Foods Lta'®* attempted to consolidate
and confirm the present state of extended Hedley Byrne liability via the relatively brief
speech delivered by Lord Steyn. He made three crucial points. (1) Once it is established
that a case falls within the extended Hedley Byrne principle — ie, where there is a
special relationship between the parties'® — ‘there is no need to embark on any further
inquiry whether it is “fair, just and reasonable” to impose liability for economic loss’.'””
(2) He acknowledged, and commended, the ‘essential gap-filling role’ of the law of tort
so that, while contractual privity rules might prevent substantial justice being done in
that branch of law, this should not prevent torts from filling that gap. Spring, indeed,
illustrates that this interstitial role may operate between different torts as well. For,
there, negligence was utilised to correct what their Lordships regarded as a deficiency
in defamation law. (3) Outside any special relationships blessed by the extended Hedley
167 Cf Kapfunde v Abbey National ple [1999] ICR 1, CA.

168 [1998] 2 All ER 577, HL.
169 [1998] 2 All ER 577, at 581. 25
170 How this is to be reconciled with the clear emphasis on the endeavour to do practical justice in
both Spring and White v Jones is by no means clear. See also the approach of Brooke LJ in
Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530,
[2002] QB 266, at [17].
‘
Byrne principle, claimants suffering economic loss will not, it seems, recover that loss
in tort. Lord Steyn declared:
The extended Hedley Byrne principle is the rationalisation or technique adopted
by English law for the recovery of damages in respect of economic loss caused
by the negligent performance of services.'”'
It is to the claims by claimants unable to bring themselves within that principle that we
now turn.
(C) Beyond Hedley Byrne

Self-evidently, there are several other ways in which one person’s negligence can
cause another economic loss very different from the situations giving rise to Hedley
Byrne liability. In 1966, the difficult but instructive case of Weller & Co v Foot and
Mouth Disease Research Institute’ was decided. The defendants had carelessly
allowed cattle to become infected by foot and mouth disease. The claimants were
auctioneers whose business suffered badly when quarantine restrictions prevented
them holding auction sales of cattle. Widgery J said that no duty of care was owed to
the claimants for their loss of profits. The scope of any duty owed was limited to cattle
owners who suffered physical damage to their property when cattle had to be destroyed.
The loss occasioned to the auctioneer was readily foreseeable but so was economic
loss to countless other enterprises: the pubs, the cafes, the car parks, the shops who
would benefit from the influx into the town of crowds on market day. Policy required
that a cut-off point be set. Widgery J set it at those suffering physical harm and, on the
facts of Weller, it is easy to understand why.
A series of decisions on the damages recoverable when services such as water, gas or
electricity were negligently interrupted confirmed Widgery J’s finding that economic
loss unrelated to physical damage was irrecoverable. In British Celanese Ltd v Hunt'”
and § C M(UK) Ltd v W J Whittall & Son Ltd'” the cutting off of electricity supplies
damaged the claimant’s machines and materials resulting in a loss of production. The
claimants recovered both their additional expenditure in replacing and repairing
machinery and their loss of profits on the lost production run. The Court of Appeal in
the latter case held that the economic loss (ie, loss of profits), was recoverable as it was
immediately consequent on physical damage to the claimant’s property. In 1973 the
Court of Appeal again considered economic loss in Spartan Steel and Alloys Ltd v
Martin & Co (Contractors) Ltd.'’> The defendants’ negligence caused the cable
carrying electricity to the claimant’s factory to be cut through interrupting the supply
for 14'/2 hours. To avoid molten metal solidifying in the furnaces, the claimants used
oxygen to melt it and pour it out of the furnaces. This reduced the value of the metal
171 Williams v Natural Life Health Foods Ltd [1998] 2 All ER 577, at 581, HL.
172 [1966] 1 QB 569. And see Cattle v Stockton Waterworks Co (1875) LR 10 QB 453 (C could not
recover for loss on a contract to tunnel under land belonging to another after that land had
been flooded by D’s negligence).
173 [1969] 2 All ER 1252.
174 [1971] 1 QB 337, CA.
175 [1973] QB 27, CA and see Electrochrome Ltd v Welsh Plastics Ltd [1968] 2 All ER 205; The
Kapetan Georgis [1988] 1 Lloyd’s Rep 352.
and lost the claimants the £400 profit they would have expected to make on that melt.
The claimant also lost a further £1,767 on the other four melts which they would
normally have completed in the time that the electricity was cut off. The majority of the
Court of Appeal held that they could recover only the loss in value of the metal
actually in the furnaces and the loss of profit on that melt. The remaining loss was
pecuniary loss unrelated to any physical damage and thus irrecoverable. Edmund-
Davies LJ, dissenting, considered that such foreseeable and direct economic loss
should be recoverable. For him, the occurrence or non-occurrence of physical damage
was a fortuitous event with no relevance in legal principle. In language similar to that
later employed by Megarry V-C in Ross v Caunters, he argued that if that very kind of
economic loss to that claimant was a reasonably foreseeable and direct consequence
of want of care, a duty to avoid that kind of loss arose. Firm endorsement of the
majority opinion in Spartan Steel was nonetheless supplied by the Court of Appeal in
Muirhead v Industrial Tank Specialties Ltd.'"°
C, a fish merchant, devised a plan to buy lobsters in the summer when prices
were low and store them to sell at profit on the Christmas market. The lobsters
had to be stored in tanks through which seawater was constantly pumped,
filtered and recirculated. The pumps proved to be defective because the electric
motors were not suitable for use in the UK. C sued the manufacturers of the
electric motors for (1) the loss of several lobsters that died in the tanks, (2)
expenditure on attempts to correct the fault, and (3) loss of profits on the
enterprise.
The Court of Appeal affirmed Spartan Steel. The claimant could recover only for the
loss of his property (dead lobsters) and any loss of profit consequent on those dead
lobsters. Only that economic loss directly consequent on physical damage could be
recovered in tort. In the absence of any evidence of express reliance on, or close
proximity to, the defendants, the defendants owed no duty to protect the claimant
against financial loss whether that loss be wasted expenditure or loss of profit.
Manufacturers owe no duty in tort to ensure products are value for money.
Outside the extended Hedley Byrne principle, it seems that no duty to protect others
from pure economic loss will arise however predictable that loss may be,'’’ and however
just and reasonable it might appear that the defendant should bear the loss. The
judicial sympathy for the claimant abundantly evidenced in White v Jones was notably
absent in Murphy v Brentwood District Council.'"*
First, in Murphy v Brentwood District Council, as we have seen, their Lordships

classified the loss suffered by the claimant (a subsequent purchaser of a defective
dwelling), as pure economic loss. This was notwithstanding the fact that his home, if
not repaired, would ultimately have collapsed. Such pecuniary loss is irrecoverable in
tort whether the defendant is the builder or the local council approving the original
building plans. In the absence of a special relationship of proximity, neither
manufacturers of chattels nor builders of property are subject to a duty of care in
176 [1985] 3 All ER 705, CA.

177 See, eg, Simaan General Contracting Co v Pilkington Glass Ltd (No 2) [1988] 1 All ER 791,
CA.
178 [1991] 1 AC 398, HL. See also Department of the Environment v Bates [1991] 1 AC 499, HL;
D & F Estates Ltd v Church Comrs for England [1989] AC 177, HL.
‘
relation to the quality of their work. To impose any such general duty would introduce
into the law of tort transmissible warranties of quality.'”? Such guarantees are provided
only by contract. Thus, there was generally perceived to be no need for tort to fulfil an
interstitial role.'*° However, the simplicity of this statement is marred somewhat by a
dictum of Lord Bridge suggesting that, even in the absence of a special relationship
with the builder:
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 the highway, the building owner
ought, in principle, to be entitled to recover in tort ... the cost of obviating the
danger ... to protect himself from potential liability to third parties.'*'
The Lord Bridge exception, doubted by Lord Oliver,'” could theoretically drive a
coach and horses through the Murphy rule. Assume Mr Murphy had children. The
cracks in the walls of his house, if left unrepaired with the family remaining in the
house, posed a potential source of injury to them. Could Mr Murphy argue he should
recover the cost of protecting himself against liability to the children or his visitors?
On the one hand, beyond Hedley Byrne, the courts strive to provide predictability and
restrict claims for economic loss; yet on the other hand they want to retain the ability
to meet the really ‘hard case’.
A second category where the House of Lords have declared that economic loss is
never recoverable is more straightforward. A claimant who suffers economic loss
consequent on physical damage to another person, or consequent on damage to
property in which, at the time damage occurred, he had no proprietary interest, cannot
recover that loss in tort.'*°
In Leigh & Sillivan Ltd v Aliakmon Shipping Ltd'** C had contracted to buy a
cargo of steel coils to be shipped from Korea. The cargo was damaged at sea.
The contractual and credit arrangements between C and the sellers of the steel
coils were such that, although the risk in the cargo had passed to C, C did not
own the coils. Such arrangements where the party likely to suffer loss is not the
owner of a cargo is not uncommon. Loss to C was readily foreseeable.
Nonetheless, the loss was irrecoverable at common law.
Three reasons may explain the refusal to countenance recovery of economic loss in
such circumstances.
(1) The indeterminate liability which would otherwise arise requires a fixed cut-off
point in the interests of clarity: recall Weller v Foot & Mouth Institute where the list of
potential claimants — café owners, local shop owners, etc — was virtually endless.
179 D & F Estates Ltd v Church Comrs for England, supra, at 1010, HL, per Lord Oliver.
180 See Williams v Natural Life Health Foods Ltd, supra.
181 [1990] 2 All ER 908, at 926, HL (emphasis added).
182 [1990] 2 All ER 908, at 936, HL.
183 For a statutory exception in relation to C’s economic loss arising from harm to another, see
the Fatal Accidents Act 1976. Note also the Latent Damage Act 1986, s 3.
184 [1986] AC 785. Note that in this case as in others, an essential difficulty in imposing a duty in
tort derives from the relationship between D’s contractual duty to a third party and the
purported tortious duty to C. If D (the shippers) had excluded or limited their duty in contract
to the sellers, how would that exclusion or limitation affect their duty in tort? See the judgment
of Robert Goff LJ: [1985] QB 350, at 399, CA.
(2) The claimants in Leigh & Sillivan suffered damage to their business interests.
True, the defendants ‘caused’ that damage but on what grounds should they have
undertaken responsibility for protecting the claimants’ business? The risk was as
foreseeable to the claimants as it was to the defendants, so they could have protected
themselves against that risk via insurance. The defendants had done nothing to indicate
their willingness to shoulder the responsibility themselves.'*5
(3) An individual’s personality is to some extent constituted by the property he owns.
As such, that property can be seen as integral to that person’s self-definition.
Accordingly, damage to his property can be seen as a form of personality damage. It
follows, so the argument runs, that such a form of ‘consequential’ economic loss (as
distinct from pure economic loss) ‘can be viewed as little more than extra compensation
for those who have suffered property damage’.'** Any loss not thus associated with
the claimant’s property (and hence his personality) can be viewed as less deserving of
compensation in accordance with the general hierarchy of interests described in this
chapter.
Leaving theory to one side, however, it seems that, for the present, extended Hedley
Byrne \iability marks the limits of recovery for economic loss. But a final note of
caution must be entered. In White v Jones the notion of assumption of responsibility
was broadened beyond predictable limits, and the previous insistence on claimant
reliance was abandoned. The cynic may therefore conclude that if one looks hard
enough, and wants to find one, a Hedley Byrne relationship may nearly always be
discovered. And if this argument is accepted, the assumption of responsibility test
tends to collapse into little more than a means of illustrating the requisite degree of
proximity between the claimant and the defendant for the purposes of the more orthodox
tripartite Caparo test.
185 But what happens where there is dislocation in time between the time at which D is negligent
(C having no proprietary interest at that stage) and the time at which the negligence causes
harm (by which time C does have a proprietary interest)? For the suggestion that an interest
Civ 56, [2001] 1
‘at the time of harm occurring is enough see The Starsin [2001] EWCA
Lloyd’s Rep 437, CA. ;
186 Witting, ‘Distinguishing Between Property Damage and Pure Economic Loss in Negligence: A
Personality Thesis’ [2001] Legal Studies 481, 489.
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CHAPTER |3
Breach of duty
Section |. The standard of care

So far, only the range of persons to whom the defendant owes a duty of care and the
types of harm to which the duty of care extends have been considered. Although it is
not uncommon for the standard of care to be treated as part of the ‘duty’, it seems
preferable to confine ‘duty’ to the question of whether the defendant is under an
obligation to the claimant and to treat separately the question of the extent of the duty
owed. The conduct of the defendant, and especially the nature of the duty of care
imposed on him or her, must therefore next be looked at. The question of whether the
defendant has broken a duty of care is one of law, not of fact: the standard required of
the defendant is that of the reasonable person, a legal construct.
In Glasgow Corpn v Muir, Lord Thankerton explained (after deciding that the appellants
owed a duty to take reasonable care for the safety of children on the premises), that a
further question had to be settled, namely, ‘the test by which ... the standard of care is
to be judged’.' In Paris v Stepney Borough Council, where the House of Lords
considered a claim in negligence brought by a one-eyed workman whose good eye
was injured in the course of work which involved risk to the eyes while not wearing
goggles, Lord Oakley held that ‘the duty of an employer towards his servant is to take
reasonable care for the servant’s safety in all the circumstances of the case’.’ Similarly,
in Bolton v Stone, Lord Normand commenced his judgment as follows:
My Lords, it is not questioned that the occupier of a cricket ground owes a duty
of care to persons on an adjacent highway or on neighbouring property who
may be in the way of balls driven out of the ground by the batsman. But it is
necessary to consider the measure of the duty owed.’
It is a matter of law that if A owes B a duty of care. A must then attain the standard of
a ‘reasonable person’. The courts have recourse to a range of considerations in deciding
whether this standard has been met. Some of these concern matters extraneous to the
defendant — such as whether he acted in an emergency situation created by no fault of
1 [1943] AC 448, at 454, HL.

2 [1951] AC 367, at 384, HL.
3 [1951] AC 850, at 860, HL.
s
his own — while others refer to attributes of the defendant, not as an individual, but as
a member of a class, such as his standing as professional person possessing (or at
least professing to possess) certain skills. The factors considered here reflect those
commonly referred to by the courts, but they are not presented on the basis of the
suggestion that they constitute a comprehensive list.
Section 2: Factors relevant to establishing the required standard‘
(A) Factors extraneous to the defendant
(1) The likelihood of harm

Lord Wright in Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd
said:
The degree of care which that duty involves must be proportioned to the degree
of risk involved if the duty of care should'not be fulfilled.°
The amount of caution required tends to increase with the likelihood that the defendant’s
conduct will cause harm, and vice versa. Bolton v Stone’ provides a good illustration.
Miss Stone was hit by a cricket ball struck from a cricket ground surrounded by
a fence 17 feet above the level of the square. The batsman was 80 yards away.
The ball was only the 6th in about 30 years to be hit out of the ground. The
House of Lords held that there had been no breach of duty by the club in
allowing cricket to be played without taking further precautions.
Lord Radcliffe stressed two points: first, the fact that the ball had to clear the fence
which itself was a remote possibility and, secondly, that, having cleared the fence the
ball would then have to strike a passer-by (an even more remote possibility). Lord
Oaksey said:
an ordinarily careful man does not take precautions against every foreseeable
risk ... life would be almost impossible if he were to attempt to take precautions
against every risk.’
In Bolton v Stone, the chance of harm occurring was so small that a reasonable person
in the position of the cricket club could not be expected to take additional precautions
against such a remote possibility. By contrast, where the risk of injury to a road user
from a football being kicked from a patch of open land was much greater, the defendant
responsible for the land was held to be in breach of a duty of care.*
4 See Kidner, ‘The Variable Standard of Care, Contributory Negligence and Volenti’ [1991] Legal
Studies 1.
5 [1936] AC 108, at 126, PC (approved by Lord Normand in Paris v Stepney Borough Council
[1951] AC 367, at 381, HL). Cf Cardozo CJ, in Palsgraf v Long Island Railroad Co 284 NY
339 (1928): “The risk reasonably to be perceived defines the duty to be obeyed’, and Lord
Macmillan in Glasgow Corpn v Muir [1943] AC 448, at 456, HL: ‘the degree of care required
varies directly with the risk involved’.
6 [1951] AC 850, HL.
i [1951] AC 850, at 863, HL.
8 Hilder v Associated Portland Cement Manufacturers Ltd [1961] 1 WLR 1434. See also Miller
v Jackson [1977] QB 966, CA (breach of duty where cricket balls were struck out of a ground
about eight or nine times every season).
Breach of duty 249
Furthermore, it is important to appreciate that the test is not one, per se, of whether the
risk in question was foreseeable. Instead, the standard of care is set ata level which is
commensurate with the degree of risk. That said, the fact that contemplation of possible
risks does not reveal them to be present — in other words, the fact that they remain
unforeseen — does provide good evidence that the risk involved was sufficiently
slight so as not to require the taking of precautions.°
(2) The magnitude of harm

Just as the likelihood of harm affects the standard of care demanded, so too does the
magnitude of that harm. In Paris v Stepney Borough Council’ the House of Lords
held that the gravity of the consequences of an accident befalling an already disabled
man had to be taken into account in fixing the level of care required of the defendant."!
Thus, the risk to the one remaining good eye of the claimant in that case was a material
consideration in fixing the standard of care. For a normally sighted individual, there
would have been ‘merely’ the risk of being struck and blinded in one eye. For the
claimant, however, the risk of being struck in his only good eye meant a risk of total
blindness.
(3) The social utility of the defendant’s act

In setting the standard of care, the courts will also take into account any relevant
social utility associated with the defendant’s conduct. This involves determinations
of the general public interest so that matters other than merely those in dispute between
the claimant and defendant may be taken into account in assessing the standard of
care required of the defendant. A good illustration of such an approach can be found
in the case law concerning the standard of care demanded of doctors counselling
patients on the risks of proposed medical treatment. In Sidaway v Bethlem Royal
Hospital’? the House of Lords held by a majority of 4—1 that the test should be whether
the doctor conformed to a practice of disclosure sanctioned by responsible medical
opinion. In rejecting the contention that the standard of care ought to be what the
reasonable patient would want to know," rather than what the reasonable doctor was
prepared to tell, their Lordships made several references to what they saw as undesirable
social consequences of adopting a patient-centred standard. These included that
patients might irrationally reject necessary treatment, that, in general,'* lay people
would not understand further information if they were given it, and their Lordships’
9 Orange v Chief Constable of West Yorkshire [2001] EWCA Civ 611, [2002] QB 347 (drunken
prisoner committed suicide in a police cell; there was no evidence to suggest he was such a risk:
no breach of duty to prevent suicide by placing him in a cell without the kind of horizontal bar
from which he hanged himself).
10 [1950] 1 KB.320, CA.
11 [1951] AC 367. Cf Withers v Perry Chain Co Ltd [1961] 3 All ER 676, CA (the health risk to
C had to be balanced against her interest in keeping her job).
12 [1985] AC 871, HL.
13 The ‘prudent patient’ is the standard adopted in a number of American states: see, eg, Canterbury
v Spence 464 F 2d 772 (1972), at 780. This was the approach endorsed by Lord Scarman in his
dissenting opinion in Sidaway, supra. Note also the very different analysis of public interest by
the High Court of Australia in Rogers v Whittaker [1993] 4 Med LR 79.
14 But not where the lay-person happened to be a highly educated Law Lord: see Sidaway, supra,
at 659, HL, per Lord Diplock.
Ss
view that most people were in any case content to leave the decision on the risk/
. . od
benefit analysis to their doctors.
Daborn v Bath Tramways Motor Co Ltd, provides another useful illustration of this
factor.'° The relevant issue was whether, during wartime, the driver of a left-hand-drive
ambulance had been negligent in turning into a lane on the off-side of the road without
giving a signal. Holding that she had not broken her duty of care, Asquith LJ said:
In determining whether a party is negligent, the standard of reasonable care is
that which is reasonably to be demanded in the circumstances. A relevant
circumstance to take into account may be the importance of the end to be served
by behaving in this way or that. As has often been pointed out, 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 sufficiently important, justified the assumption of abnormal risk.
The relevance of this applied to the present case is this: during the war which
was, at the material time, in progress, it was necessary for many highly important
operations to be carried out by means of motor vehicles with left-hand drives, no
others being available. So far as this was the case, it was impossible for the
drivers of such cars to give the warning signals which could otherwise be properly
demanded of them. Meanwhile, it was essential that the ambulance service should
be maintained. It seems tome, in those circumstances, it would be demanding
too high and an unreasonable standard of care from the drivers of such cars to
say to them: ‘Either you must give signals which the structure of your vehicle
renders impossible or you must not drive at all’.'®
Similarly, what might be want of care towards an employee in a commercial enterprise

will not necessarily be want of care towards a fireman, for ‘one must balance the risk
against the end to be achieved’, and ‘the commercial end to make profit is very different
from the human end to save life or limb’.'’ And the extent of the duty owed by a police
officer to a suspect whom he is pursuing must similarly be judged in the light of the end
to be attained — that is the lawful arrest of the suspect.'®
Whether the utility of what the defendant has done may be implicit within legislation
is a moot point. Take first Budden v BP Oil Ltd.'°
An action was brought on behalf of a child alleging that the child had suffered
brain damage caused by excessive lead in his blood. The high level of lead was
assumed to result from lead particles emitted from vehicles using petrol supplied
by D. The lead had been deliberately added to the petrol. Parliament was
progressively phasing down the permitted lead content in petrol. At the time of
the child’s injury the level of lead in petrol complied with the permitted limits but
15 [1946] 2 All ER 333, CA.

16 [1946] 2 All ER 333, at 336. Cf Quinn v Scott [1965] 2 All ER 588, at 593, per Glyn Jones J:
‘the safety of the public must take precedence over the preservation of the amenities and [I]
cannot hold that the [National] Trust’s duty to care for the countryside diminishes to any
degree the duty not to subject users of this highway to unnecessary danger’.
17 Watt v Hertfordshire County Council [1954] 2 All ER 368, at 371, CA, per Denning LJ.
18 Marshall v Osmond [1983] QB 1034. See also Rigby v Chief Constable of Northamptonshire
[1985] 2 All ER 985 (police using CS gas on a shop to flush out a dangerous psychopath).
19 (1980) 124 Sol Jo 376, CA.
Breach of duty 25\
would not have done so later. The relevant legislation did not provide that it was
a defence to any action that the limit was not exceeded — it merely made it a crime
to exceed the limit.
The Court of Appeal held that, in setting the limit, Parliament must be regarded as
having conclusively determined what lay in the public interest. It must be regarded as
having taken into account all the relevant factors, of which health risk was only one.
As such, at the relevant time, it could be concluded that it was reasonable to add that
amount of lead to petrol. But should the courts have felt themselves precluded by
Parliament in that instance from making an independent judgment on the standard of
care in a negligence action? The legislation was silent on civil liability for lead-induced
injury. By contrast, in Froom v Butcher,” the key issue was whether the claimant was
contributorily negligent in not wearing a seatbelt. At the time of the accident, legislation
to make wearing seatbelts compulsory and not wearing them a crime had not yet been
passed. The Court of Appeal nonetheless felt able to conclude that not wearing a
seatbelt constituted contributory negligence.
(4) Emergencies
Closely related to the previous factor is that of acts undertaken in an emergency.

Frequently, a defendant may act in an emergency, with little time for reflective decision
making, in a manner that falls below the standard of care normally expected of him.”' It
is equally the case that he may act somewhat incautiously in an emergency with a view
to assisting another. In either case, the courts will fix the appropriate standard of care
mindful of the circumstances. Watt v Hertfordshire County Council” provides a good
illustration.
The fire service in this case was called upon to save a woman trapped under an
over-turned lorry. In order to do so, they needed to use a heavy jack that stood
on wheels. They could not transport the jack in the usual vehicle because it was
otherwise engaged. They instead tried to get the jack to the required destination
in a surrogate vehicle. While en route, the driver of the vehicle made an emergency
stop causing the jack to shoot forwards whereupon it injured C, one of the
firemen.
It was held that there was no breach of duty given the short time in which the fire
service had to act, and in view of the endeavour they were making to save the woman
trapped under a lorry. On the other hand, it is important to appreciate that an emergency
does not exonerate the defendant from displaying any level of care at all; it merely
reduces the standard demanded. Thus, if a fire engine goes recklessly through a red
light on the way to a fire, there may still be liability.”*
20 [1976] QB 286.
21 Many of the cases on the standard of care in emergencies deal with contributory negligence:
see, eg, Jones v Boyce (1816) 1 Stark 493. On primary liability and emergency, see Parkinson
yv Liverpool Corpn [1950] 1 All ER 367, CA; Ng Chun Pui v Lee Chuen Tat [1988] RTR 298,
PC; Marshall v Osmond [1983] QB 1034.
22 [1954] 2 All ER 368. See also S (A Child) v Keyse [2001] EWCA Civ 715, [2001] All ER (D)
236 (May).
23 Ward v London County Council [1938] 2 All ER 341.
‘
(5) The relative cost of avoiding the harm r@
It is relevant to consider how extensive and costly would be the measures necessary
to eliminate the risk. In essence there is a balancing of costs: the cost of averting a
danger measured against the cost of the danger transpiring.”* In Latimer v AEC Ltd’
an exceptional storm had caused a factory floor to become flooded. When the water
receded, the floor was found to be covered with a slimy mixture of oil and water so that
its surface was slippery. The issue was whether the factory owners were in breach of
their duty towards a workman who, some hours later, was injured through slipping on
the floor. In holding there to have been no breach, Lord Tucker said:
The only question was: Has it been proved the floor was so slippery that, remedial
steps not being possible, a reasonably prudent employer would have closed
down the factory rather than allow his employees to run the risks involved in
continuing work?”°
In The Wagon Mound (No 2) the Judicial Committee stated, in similar vein:
A reasonable man would only neglect ... a risk [of small magnitude] if he had
some valid reason for doing so, eg, that it would involve considerable expense
to eliminate the risk.”’
But just how far can this principle be stretched? In the case of a private individual or
enterprise there must come a point where, if the defendant lacks the resources to
minimise a significant risk of injury to others, he should cease to engage in the relevant
activity. If a sports club cannot afford to replace a wooden spectator stand constituting
a fire risk, for example, they should not allow spectators to use that stand.** Where the
defendant is a public enterprise, however, the position may be different. In Knight v
Home Office” the claimant’s husband committed suicide while detained in a prison
hospital wing. The judge accepted that the standard of care and supervision for suicidal
prisoners may well have fallen below that to be expected in an NHS psychiatric facility.
Yet he dismissed her claim saying:
In making the decision as to the standard demanded the court must ...bear in
mind as one factor that resources available for the public service are limited and
that the allocation of resources is a matter for Parliament.*°
24 The idea is that if great expense is required to reduce only slightly an existing risk, then it will
be acceptable to do nothing. The American judge, Learned Hand, in United States v Carroll
Towing Co 159 F 2d 169 (1947), at 173 expressed the matter in terms of a formula: ‘if the
probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less
than L multiplied by P; ie, whether B<PL’.
25 [1952] 2 QB 701, at 711, CA. Cf Watt v Hertfordshire County Council [1954] 2 All ER 368, CA
(duty of fire authority to firemen in respect of equipment) where the dictum of Asquith LJ, in
Daborn v Bath Tramways Motor Co Ltd, supra, was also approved.
26 [1953] AC 643, at 659, HL.
27 [1967] 1 AC 617, at 642. For the relevance of D’s financial resources, see Goldman v
Hargrave [1967] 1 AC 645, at 663, PC.
28 See Latimer v AEC [1953] AC 643, at 659.
29 [1990] 3 All ER 237.
30 [1990] 3 All ER 237, at 243. See the similar reasoning in Walker v Northumberland County
Council [1995] 1 All ER 737: ‘The practicability of remedial measures must clearly take into
account the resources and facilities at the disposal of the person or body owing the duty of care
and the purpose of the activity giving rise to the risk of injury’.
Breach of duty 253
(6) The ‘hurly burly of life’

The tort of negligence does not demand perfection.*' It does not require that those to
whom a duty of care is owed should be safeguarded against every conceivable risk.
The reasonable person test rests largely upon matters of common sense and the
exigencies of everyday life. A good example of the allowance made by the law for the
‘hurly burly of life’ can be seen in cases relating to parental and quasi-parental duties.
In Carmarthenshire County Council v Lewis® the defendant council were held liable
when a small boy wandered out of his nursery school and onto a nearby road causing
an accident in which the claimant’s husband died. The council were negligent because
premises where there are small children should be designed to ensure that children
cannot wander off endangering themselves or others. But Lord Reid said that the
teacher who had not noticed the boy leave her classroom while she attended to a child
with a cut knee was not negligent.** Those in charge of small children cannot have
eyes in the back of their heads.
In Surtees v Kingston-upon-Thames Borough Council* a child was scalded when her

foster mother left her for a moment or two by a wash-basin and she somehow managed
to turn on the hot tap and ran scalding water over her foot. The majority of the Court
of Appeal held that the foster mother’s arguable oversight was not negligence. Courts
should be slow to characterise incidents in family life as negligence ‘given the rough
and tumble of home life’. Beldam LJ dissented. He argued that it would have required
only momentary thought to remove the child from the vicinity of the tap. Was the
majority decision fair to the injured child or does it go further than simply acknowledging
the realities of life and its conflicting demands? Was the court in effect saying reasonable
mothers make mistakes and should not be penalised for them? In other contexts, such
as professional liability, no such allowance is made. Perhaps the concept of children
suing their parents is seen as unedifying? Or was the Court of Appeal simply
acknowledging that a risk-free existence is not feasible, nor in all circumstances desirable.
In Porter v Barking and Dagenham London Borough Council® a 14-year-old boy,
injured when he and a friend were allowed to practise shot-put unsupervised, failed in
his action for negligence against the school authorities. The standard of care in relation
to children should not be framed so as to stifle initiative.
(7) General practice of the community
Commonly, a defendant will support his claim to have shown due care by showing that
he conformed to the common practice of those engaged in the activity in question.
Such evidence is obviously relevant. Indeed, conforming to the practice of a trade or
31 See Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191, HL, where,
in considering whether there had been a negligent valuation, the court recognised as reasonable
a range of different valuations. See also Caldwell v Maguire and Fitzgerald [2001] EWCA Civ
1045, [2002] PIQR P45.
32 [1955] AC 549, HL. ,
33 [1955] AC 549, at 564, HL. See also Kearn-Price v Kent County Council [2003] PIQR P11 (no
liability in respect of injury to pupil sustained in school yard before school started).
34 [19912 FLR@559:
35 (1990) Times, 9 April.
.S
profession will often (but not always) be conclusive in claims against tradesmen”® or
professionals. So a specialist who failed to diagnose the complaint of the claimant was
held not to have been negligent when he used the normal methods of British medical
specialists, although the use of an instrument usually employed in the United States
might have resulted in a correct diagnosis.*’ By contrast, consider Cavanagh v Ulster
Weaving Co Ltd.
C slipped coming down a roof ladder. Despite unchallenged evidence that the
‘set-up’ was in perfect accord with established practice, the House of Lords
restored the jury’s verdict that D was negligent.*®
Commercial enterprises must take steps to keep abreast of scientific developments.
Growing understanding of the effects of industrial noise and its role as a causative
factor in deafness was not matched by action by employers. In Thompson v Smiths
Shiprepairers (North Shields) Ltd*° it was held that once there was general awareness
of the dangers of noise, and after protective equipment became available from about
1963 onwards, the defendants could be made liable for hearing impairment caused after
that date.
Failure to conform to a standard imposed by a statute, although of course it may
constitute a breach of statutory duty, is not in itself conclusive evidence of negligence.”
It may, however, constitute prima facie evidence."!
We now must proceed to examine how negligence may be proved.
(B) Factors pertaining to the defendant

Negligence is the omission to do something that 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.”
36 Gray v Stead [1999] 2 Lloyd’s Rep 559, CA (non-provision of buoyancy aids to trawlermen
was not the norm, and thus D, who had failed to provide such aids, was not held liable).
37 Whiteford v Hunter (1950) 94 Sol Jo 758, HL. Cf Vancouver General Hospital v McDaniel
(1934) 152 LT 56, PC; Wright v Cheshire County Council [1952] 2 All ER 789, CA.
38 [1960] AC 145, HL.
39 [1984] QB 405.
40 In Powell v Phillips [1972] 3 All ER 864, CA, it was held that breach of the Highway Code,
despite s 37(5) of the Road Traffic Act 1972, creates no presumption of negligence calling for
an explanation. It is just one relevant circumstance. In Trotman v British Railways Board
[1975] ICR 95, it was held that breach of a regulation in British Railways’ Rule Book created
a rebuttable inference of negligence. A breach of a navigational bye-law is particularly cogent
evidence of negligence: Cayzer, Irvine & Co v Cannon Co (1884) 9 App Cas 873, at 880-1,
HL, per Lord Blackburn.
41 Blamires v Lancashire and Yorkshire Rly Co (1873) LR 8 Exch 283; Phillips v Britannia
Hygienic Laundry Co [1923] 1 KB 539, at 548, per McCardie J (affd [1923] 2 KB 832, CA);
Anglo-Newfoundland Development Co Ltd v Pacific Steam Navigation Co [1924] AC 406, at
413, HL, per Lord Dunedin. See also Harrison v National Coal Board [1951] AC 639, HL;
National Coal Board v England [1954] AC 403, HL. And compliance with a statutory
requirement does not exclude liability in negligence: Bux v Slough Metals Ltd [1974] 1 All ER
262, CA. See also Budden v BP Oil Ltd (1980) 124 Sol Jo 376, CA.
42 Blyth v Birmingham Waterworks Co (1856) 11 Exch 781, at 784, per Alderson B.
Breach of duty 255
It follows from this definition that the standard of care is not the standard of the
defendant himself, but of ‘a man of ordinary prudence’, a man using ‘ordinary care
and skill’, a ‘hypothetical’ man.*° Lord Macmillan said:
The standard of foresight of the reasonable man ... eliminates the personal
equation and is independent of the idiosyncrasies of the particular person whose
conduct is in question.*°
Notwithstanding this comment, it is important to appreciate that while the standard is
objectively set, it is inaccurate to state that no reference may be made to the attributes
of the particular defendant. The definition of the reasonable person is not complete
unless the words ‘in the circumstances’ are embodied. And, plainly, these words import
the need to take account of the defendant. But the overwhelming majority of the cases
that explicitly recognise the relevance of who the defendant is, do so in terms that
eliminate considerations pertaining to the defendant’s idiosyncrasies. Instead, they
consider those of his attributes that are characteristic of a class to which the defendant
belongs.
(1) Child defendants

In Mullin v Richards’ the Court of Appeal confirmed that, in relation to a child, the
test is what degree of care and foresight can reasonably be expected of a child of the
defendant’s age. In that case, two 15-year-old girls were fooling about during a
mathematics lesson, fencing with plastic rulers. One of the rulers snapped and a fragment
of plastic entered the claimant’s eye ultimately causing her to lose any effective sight
in that eye. Adopting the approach of the High Court of Australia in McHale v Watson,"
the Court of Appeal held the claimant had failed to establish that her school-friend was
negligent. A 15-year-old, unlike an adult, might well not foresee the risk of her behaviour,
particularly as this kind of tomfoolery had never been banned at school, nor had any
similar accident occurred previously. Some degree of irresponsibility may be expected
of children playing together.”
An unresolved question, in relation to the standard of care demanded of children, is
whether the test is entirely objective or will it take into account the child’s actual
mental ability, maturity and experience.”
43 Vaughan v Menlove (1837) 3 Bing NC 468, at 475, per Tindal CJ.

44 Heaven v Pender (1883) 11 QBD 503, at 507, per Brett MR.
45 King v Phillips [1953] 1 QB 429, at 441, CA, per Denning LJ. ;
46 Glasgow Corpn v Muir [1943] AC 448, at 457, HL. Cf the earlier dictum of Holmes J in The
Germanic 196 US 589 (1904): ‘The standard of conduct ... is an external standard, and takes
no account of the personal equation of the man concerned’.
47 [1998] 1 All ER 920. See also, in relation to contributory negligence, Yachuk v Oliver Blais Co
Ltd [1949] AC 386, PC; Gough v Thorne [1966] 3 All ER 398, CA; Morales v Eccleston
[1991] RTR 151, CA.
48 (1964) 111 CLR 384.
49 Mullin v Richards, supra, at 928, per Butler-Sloss LJ.
50 Compare Yachuk v Oliver Blais Co Ltd, supra, at 396, PC, with McHale v Watson, supra, where
Owen J’s yardstick was a ‘child of the same age, intelligence and experience’.
‘
(2) Intelligence and knowledge oa
The defendant’s actions must conform to certain criteria expected of a person of normal
intelligence in a given situation. It is no defence that someone acted ‘to the best of his
own judgment’, if his ‘best’ is below that of the reasonable man.*' A man whose
intellect is lower than average is not thereby excused. And likewise, a woman whose
intelligence is superior is not liable for failing to use those above-average qualities,
unless she has professed to have some special skill or expertise in which case the law
demands that she must manifest that skill or expertise.*”
Two branches of knowledge must be considered separately. The first is that of memory
and experience. If X had been on a certain highway several times, and a reasonable
man who had been there as often would know that it was busy, then X also is expected
to know it to be busy, even though his memory is so poor that he does not actually
remember it. Similarly, people are deemed to know those things which adults from their
experience are expected to know: that some things easily explode, that others burn,
that there is a law of gravity etc. There is one refinement of this rule. Where, in the
circumstances, the status of the defendant is relevant, the standard is set according to
that status. Thus, in Caminer v Northern and London Investment Trust the knowledge
required of a landowner with regard to elm trees on his estate, their proneness to
disease, lack of wind resistance and the like, was of a standard between that of an
urban observer and a scientific arboriculturist.** Taking a similar approach, the Privy
Council in The Wagon Mound (No 2) said that the shipowner was liable for a fire
caused by discharging oil into Sydney harbour because the chief engineer should
have known that the discharge created a real risk of the oil on the water catching fire.*°
Finally, if someone elects to take on a particular task, albeit he is not an expert or
professional in the field, he will be expected to have the necessary degree of knowledge
to complete the task competently.”
Secondly, what knowledge of the facts and circumstances surrounding him must the
defendant have? He will not be excused for failing to observe what a reasonable man
would have observed. Thus, a dock authority that does not know, but ought to know,
that the dock is unsafe may be held negligent.°’ Furthermore, even if a reasonable
person could not be expected to know something, he or she may be required to get and
follow expert advice. Thus, the landlord of flats must consult a specialist engineer
about the safety of his lift if he lacks the relevant expertise himself.** In addition, actual
knowledge of the circumstances on the part of the defendant will increase the standard
of care imposed” (although it is less clear that the greater one’s memory or experience,
the greater the standard of care imposed).
51 Vaughan v Menlove (1837) 3 Bing NC 468, at 474, per Tindal CJ.
52 See Wooldridge v Sumner [1963] 2 QB 43, CA.
53 Caminer v Northern and London Investment Trust [1951] AC 88, HL carries the point. Cf
Haynes v Harwood [1935] | KB 146, at 153, CA, per Greer LJ.
54 [1951] AC 88, at 100, HL, per Lord Normand. See also Clarke v Holmes (1862) 7H & N 937,
Ex Ch (employer required to know more about the dangers of unfenced machinery than
workman); Quinn v Scott [1965] 2 All ER 588.
SS [L967] MPAGIEII APC:
56 See Chaudhry v Prabhakar [1989] 1 WLR 29, CA (friend agreeing to act as gratuitous agent
in connection with the purchase of a car).
57 Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR 1 HL 93.
58 Haseldine v Daw & Son Ltd [1941] 2 KB 343, at 356, CA, per Scott LJ.
59 Brooks v London and North Western Rly Co (1884) 33 WR 167, Div Ct.
Breach of duty 257
Knowledge — in particular expert knowledge — does not remain static over the years.
Scientific and technological advances lead to constant revision of, and improvements
in, safety standards. In an action in negligence, the defendant must always be judged
in the light of the state of scientific, technological or other expert knowledge which
should have been available to him at the time of the alleged breach. Concrete evidence
that a drug damages the foetus is not conclusive evidence that either the doctor
prescribing the drug, or that the pharmaceutical company marketing the drug, were
negligent.” The test in negligence must be, at the time when the drug was prescribed
or marketed, should the risk of injury to the foetus have been foreseen. As Lord
Denning put it, when a claimant sought damages in respect of a medical accident
which had never occurred before ‘We must not look at the 1947 accident with 1954
spectacles’.°!
(3) Skill
It has been seen that a person’s conduct must conform to the standard of a person of
normal intelligence. When a person holds himself out as being capable of attaining
standards of skill in relation to the public generally — eg, by driving a car — he is
required to display the skill normally possessed by persons doing that thing.” A
doctor failing to diagnose a disease cannot excuse himself by showing that he acted to
the best of his skill if a reasonable doctor would have diagnosed it.’ Nor can a young
hospital doctor escape liability simply by pleading that he is inexperienced or
overworked. He must still attain the level of competence to be expected from a person
holding his ‘post’ and entrusted with his responsibilities." The same principle
presumably applies to newly qualified solicitors.® But in such cases, one must be
careful to ascertain exactly what skill the defendant did hold himself out to possess.
It is also important to realise that where a skilled person conforms to practices accepted
as proper by some responsible members of his profession, he will not be held liable in
negligence merely because other members of his trade or profession would take a
different view. This principle is most frequently applied in the context of medical
negligence where there are often differences in opinion as to the best way to address
any given medical problem. In such circumstances, the courts will not choose between
60 The drug thalidomide undoubtedly caused serious deformities in babies whose mothers took the
drug in early pregnancy. One of the major obstacles confronting claims for compensation by
the damaged children was doubt whether, at the time the drug was first available, as opposed to
after the births of several deformed babies, doctors and embryologists appreciated that drugs
could cross the placental barrier and injure the foetus.
61 Roe v Minister of Health [1954] 2 QB 66, at 84.
62. It is immaterial if D does not in fact have that skill; if he engages in conduct usually associated
with persons having that skill, the standard demanded is that of those who actually do possess
that skill: Adams v Rhymney Valley District Council [2000] Lloyd’s Rep PN 777, CA. In
Nettleship v Weston [1971] 2 QB 691, CA, although the standard of a qualified driver was
expected of a learner driver, the point was made that if a uniform standard were not applied,
the courts would face insuperable difficulties in assessing the skills and competencies of every
D.
63 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.
64 Wilsher v Essex Area Health Authority [1987] QB 730 (revsd on a different point [1988] AC
1074, HL).
65 Nettleship v Weston [1971] 2 QB 691, at 709, per Megaw LJ.
‘
rival schools of professional thought. Nor, in other circumstances where two non-
negligent courses of action were possible, will the courts hold a defendant liable for
failing to take that course which has been revealed, with the assistance of hindsight, to
have been the preferable course.®’
In one case in which the claimant had her ears pierced by a jeweller and subsequently
contracted a disease that might have been avoided had the work been done with
normal medical skill, the jeweller was required only to show the skill of a jeweller doing
such work, not that of a doctor.® A similar approach was taken in Wells v Cooper where
a householder fitted a new door handle insecurely. When the claimant pulled on it, he
lost his balance and was injured. The defendant householder was only required to
show the standard of care of a normal DIY enthusiast, not that of a qualified carpenter.”
On the other hand, while someone who practises alternative medicine is only liable if
he fails to meet the standard applicable to his art, it will nonetheless be relevant to take
into account findings within conventional medicine which reveal dangers associated
with aspects of his practise.”
Where someone has not held himself out as having special skill, he is not liable when
he shows merely average skill in the circumstances although he does in fact have
special skill.’”' Skill, just like every other aspect of the standard of care, has to be
assessed in the light of all the circumstances surrounding the alleged breach of duty,
and the degree to which the defendant represents that he holds a particular skill is one
such circumstance.
Where negligence is alleged in the course of playing a sport, the fact that the object of
competitive sport is to win and that spectators attend sporting occasions to see
competitors exhibit their skill at the game will be relevant. So in Wooldridge v Sumner”
Diplock LJ held that where a showjumper was concentrating his attention and exerting
his skill to complete his round of the showjumping circuit, this must be taken into
account in determining whether a momentary misjudgment constituted negligence.”
By contrast, in Condon v Basi" a footballer sued in negligence when he suffered a
broken leg as a result of a tackle by the defendant found by the referee to be serious
foul play. The defendant was held liable. The Court of Appeal held that a clear breach
of the rules of the game would be a relevant (though not conclusive consideration) in
deciding whether there had been actionable negligence. The overall test was whether
the defendant showed that degree of reasonable regard for the safety of others to be
expected of a competent player of his class?
66 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.

67 Adams v Rhymney Valley District Council [2000] Lloyd’s Rep PN 777, CA. An example given
in the case is of a driver who on approaching an amber light notices a car very close behind:
should that driver pull up sharply and hope the car behind can avoid a collision, or should the
driver risk a collision with another vehicle by proceeding through the junction?
68 Philips v William Whiteley Ltd [1938] 1 All ER 566.
69 If the householder employed a professional carpenter no doubt the latter would be under a
contractual duty to him to use the skill of a professional, but what standard would the professional
owe to members of the public?
70 Shakoor v Situ [2001] 1 WLR 410.
71 Wooldridge v Sumner [1962] 2 All ER 978, at 989, per Diplock J.
72 [1963] 2 QB 43, CA.
73 See, in similar vein, Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054, [2002] PIQR
P45 (skill required of a jockey in a fast-moving sport).
74 [1985] 2 All ER 453.
Breach of duty 259
(4) Disability and infirmity?

It is unclear to what extent, if at all, the standard of the reasonable person will be
adjusted to allow for the incapacities and infirmities of individual adults. Consider
whether the standard of care is (or should be) affected if the defendant is elderly, or
deaf, or minus a limb. In Daly v Liverpool Corpn” it was held that in deciding whether
a 67-year-old woman was guilty of contributory negligence in crossing a road, one had
to consider a woman of her age, not a hypothetical pedestrian.
The matter of the defendant’s disability or infirmity will in practice seldom arise in
respect of the standard of care demanded for the following reason. If X causes an
injury to another because X suffers from some disability or infirmity, he will usually be
held negligent, not because of want of care at the time of the accident, but because,
being aware of his disability, he allowed himself to be in the situation in the first place.
Thus, a motorist with seriously impaired eyesight who collides with another car because
she fails to see it approaching is not negligent because she is partially sighted, but
because, given her defective vision, she was careless enough to drive at the outset.
On the other hand, not all defendants will know of their problem. In Roberts v
Ramsbottom,”° for example, the defendant suffered a slight stroke just before getting
into his car. He was completely unaware that he had had a stroke although he admitted
that he felt somewhat dizzy. A few minutes after starting his journey he was involved in
a collision injuring the claimant. It was held that even though his carelessness resulted
from impaired consciousness of which he was, at the time of the collision, unaware, he
was nonetheless liable in negligence. Neill J suggested two grounds to support the
finding of negligence. He said that the defendant was liable first, because he ‘continued
to drive when he was unfit to do so and when he should have been aware of his
unfitness’ and, secondly, because any disability affecting a defendant’s ability to
drive could only exempt him from the normal, objective standard of care where the
disability placed his actions ‘wholly beyond his control’. In Mansfield v Weetabix
Ltd,” however, the Court of Appeal rejected the second of these reasons on the basis
that it came close to equating liability in negligence with strict liability.”* There, a lorry
driver was involved in a collision when he partially lost consciousness as a result of a
hypoglycaemic state induced by a malignancy of which he was completely unaware.
Overruling the trial judge’s finding of negligence, the Court of Appeal held that where
a disability or infirmity prevented the defendant from meeting the objective standard
of care, and the defendant was not, and could not reasonably have been, aware of his
condition, that condition must be taken into account in determining whether or not the
defendant was negligent.
It is submitted that Mansfield appears out of kilter with the general approach which
overlooks the idiosyncrasies of the defendant unless it is interpreted as focusing on
the standard of care of al/ defendants who suddenly become unconscious, instead of
merely this defendant who suddenly became unconscious.
75 [1939] 2 All ER 142.

76 [1980] 1 All ER 7.
77 [1998] 1 WLR 1263. Rat. |
78 But surely the decision in Nettleship v Weston [1971] 2 QB 691, CA, is a form of strict liability!
Xx
(5) Special knowledge concerning the claimant

|
The defendant’s actual knowledge of the claimant’s frailties and susceptibilities will
affect the required standard of care. Thus, the level of care owed to a woman known to
be pregnant,” to a workman with one eye,*° or to employees especially susceptible to
stress*! will take account of these conditions so Jong as the defendant knows of them.
If the defendant neither knows, nor ought to know of these circumstances, however,
the standard of care will be unaffected by the claimant’s susceptibility. As Lord Sumner
explained:
... a measure of care appropriate to the inability or disability of those who are
immature or feeble in mind or body is due from others, who know of or ought to
anticipate the presence of such persons within the scope and hazard of their
own operations.”
In Haley v London Electricity Board® the House of Lords applied Lord Sumner’s
dictum when they held that a body conducting operations on a city highway should
foresee that blind persons would walk along the pavement, and that it owes a duty to
take those precautions reasonably necessary to protect them from harm. On the facts
it was held liable although a person with normal vision would not have been injured in
consequence of its operations. Similarly, in Johnstone v Bloomsbury Health Authority
in which the level of care owed by an employer to junior doctors required to work
excessive hours was in issue, Stuart Smith LJ said:
... 1t must be remembered that the duty of care is owed to an individual employee
and different employees may have a different stamina. If the authority in this
case knew or ought to have known that by requiring him to work the hours they
did, they exposed him to risk of injury to his health, then they should not have
required him to work in excess of the hours that he safely could have done.
It is no answer to a claim in negligence to respond that you did not appreciate the risk
that your conduct would injure the claimant, if the reasonable defendant with your
knowledge of the claimant and the circumstances would have perceived that risk.
Human frailty must be taken into account and defendants cannot shift their duty to
claimants by arguing that the claimant must always look out for himself. So, in Pape v
Cumbria County Council® it was found to be insufficient for employers to supply
their workers with rubber gloves. They had also to warn them of the risk of dermatitis
unless the gloves were worn since the prudent employer would take all reasonable
steps to ensure that safety equipment is properly understood and used by employees.
By contrast, in Eastman v South West Thames Regional Health Authority® the
79 Hay (or Bourhill) v Young [1943] AC 92, at 109, HL, per Lord Wright.
80 Paris v Stepney Borough Council [1951] AC 367, at 385 and 386, HL, per Lords Oakley and
Morton.
81 Sutherland v Hatton [2002] EWCA Civ 76, [2002] PIQR P241.
82 Glasgow Corpn v Taylor [1922] 1 AC 44, at 67, HL. Of course, there are numerous cases where
Ds have not been held in breach of duty to infants (eg, Donovan v Union Cartage Co Ltd
[1933] 2 KB 71, Div Ct) or to blind persons (eg, Pritchard v Post Office (1950) 114 JP 370,
CA).
83 [1965] AC 778, HL.
84 [1992] QB 333, CA.
Soe oD SSEAIEE REZ Ie
86 [1991] 2 Med LR 297, CA.
Breach of duty 26|
defendants were held not liable when the claimant was thrown out of her seat in an
ambulance and injured when the driver braked hard. She claimed that the driver had
been negligent in not expressly instructing her to wear her seat-belt. But a notice in the
ambulance carried just that instruction. The claimant was not herself a patient. She was
accompanying her mother-in-law to hospital. The court held that the ambulance staff
had done all that was reasonable in the circumstances. Had the claimant been herself
a sick and confused elderly lady the outcome might well have been different.
(6) Foreseeable acts of third parties

Even where the courts are prepared to find a duty in respect of the act of third parties,
it will often be difficult to decide, when there has been an intervening act of a third
party, whether the defendant’s act has caused the damage suffered by the claimant. It
is important to note that the issue of causation becomes material only after the failure
of the defendant to take due care has been proved. Whether the defendant has shown
that standard of care will frequently depend on what acts or omissions of another he
could reasonably have anticipated. If the claimant is injured because a third party has
done something that the defendant could not reasonably foresee he would do, the
defendant is not liable.*’ Yet, in London Passenger Transport Board v Upson,** Lord
Uthwatt said:
It is common experience that many do not [assume a fellow road user will act with
reasonable care]. A driver is not, of course, bound to anticipate folly in all its
forms, but he is not, in my opinion, entitled to put out of consideration the
teachings of experience as to the form those follies commonly take.”
Nor can one excuse oneself by relying on another to do an act unless that reliance was
reasonable. Manchester Corpn v Markland” illustrates the point.
The appellants were the statutory authority for the supply of water to the borough
of Eccles. One of the appellants’ service pipes in a road in Eccles burst. Three
days later, the resulting pool of water froze, and a car skidded on the ice knocking
down and killing a man. Ina negligence action brought by the dependants of the
deceased against the appellants, it was held to be no defence that the appellants
chose to rely on Eccles Corporation to notify them of bursts: they should
themselves have taken proper precautions.
Section 3. The connection between standard and duty of care

Accepting, then, that the standard of care is fixed as a matter of law in the light of the
factual considerations just outlined, one must ask the further question of whether the
standard of care has to be particularised in detail in terms of ‘duty’. A motorist fails to
sound his horn at a crossing and is held liable in negligence to another motorist with
87 Donaldson v McNiven [1952] 2 All ER 691, CA.

88 [1949] AC 155, HL.
89 [1949] AC 155, at 173. Cf Grant v Sun Shipping Co Ltd [1948] AC 549, at 567, HL, per Lord
Du Parcq.
90 [1936] AC 360, HL.
\
whom he collides. The court holds that he should have sounded his horn. Would such
a decision thenceforth be authority for the proposition that amotorist has a duty at law
to sound his horn when approaching an intersection? Although such a suggestion 1s
superficially attractive, we must be cautious of adopting this approach. In running
down cases, for example, it will usually be relevant to consider the speed of the vehicles,
the degree of visibility, the state of the road, the distance within which the vehicles
pulled up etc. But how often will the facts of this particular case be exactly replicated
in a subsequent case. Are not the circumstances of each case sufficiently different in
at least one material respect to make it inapt to formulate a catalogue of duties based on
each individual decision?
In terms of judicial practice, the higher courts have generally’! rejected forcefully
attempts to particularise duties. In Baker v E Longhurst & Sons Ltd,” for example,
Scrutton LJ appeared to lay down a principle that a person driving in the dark must be
able to pull up within the limits of his vision. Shortly afterwards, in another road traffic
case, Lord Wright said that:
no one case is exactly like another, and no principle of law can in my opinion be
extracted from those cases. It is unfortunate that questions which are questions
of fact alone should be confused by importing into them as principles of law a
course of reasoning which has no doubt properly been applied in deciding other
cases on other sets of facts.”
When counsel again relied on the dictum of Scrutton LJ, in Morris v Luton Corpn,
Lord Greene adopted the dictum of Lord Wright ‘in the hope that this suggested
principle [of Scrutton LJ] may rest peacefully in the grave in future’.**Most important
of all is the 1959 decision of the House of Lords in Qualcast (Wolverhampton) Ltd v
Haynes.’ There, the House went out of its way to stress that a judge’s reasons for
finding want of reasonable care are matters of fact, not law, for otherwise ‘the precedent
system will die from a surfeit of authorities’.*° That judges now give reasons for
conclusions formerly arrived at by juries without reasons must not be allowed to
elevate these decisions of fact into propositions of law.
Naturally, in certain common kinds of claim — notably those arising out of road traffic
accidents — factual situations do repeat themselves. Judges may properly refer to
earlier decisions for guidance as to what constitutes reasonableness in the
circumstances. The infinite variability of human conduct, however, makes it undesirable
to express such a standard in terms of inflexible legal duty. In Worsfold v Howe:”’
D, a car driver, edged blind from a side road across stationary tankers and collided
with a motorcyclist approaching on the main road past the tankers. Because the
91 Though, for the contrary approach see, eg,,Caminer v Northern and London Investment Trust
Ltd [1951] AC 88, HL. A
92 [1933] 2 KB 461, at 468, CA.
93 Tidy v Battman [1934] 1 KB 319, at 322, CA. Cf SS Heranger (Owners) v SS Diamond
(Owners) [1939] AC 94, at 101, HL.
94 [1946] KB 114, at 116, CA. See also Easson v London and North Eastern Rly Co [1944] KB
421, CA.
95 [1959] AC 743, HL.
96 [1959] 2 All ER 38, at 43-4, HL, per Lord Somervell.
97 [1980] 1 All ER 1028, CA.
Breach of duty 263
Court of Appeal had held in a previous case that a driver so edging out was not
negligent, the trial judge felt bound to absolve D from liability.
The Court of Appeal held that the previous decision laid down no legal principle, that
such decisions were to be treated as ones of fact, and that in the instant circumstances
held the defendant negligent. In Foskett v Mistry,” the Court of Appeal reinforced that
approach. They ruled that, in running down claims, the question of whether reasonable
care had been taken must be judged in the light of all the facts of the particular incident.
Section 4 Professional negligence”
(A) The background
There is, in terms of fundamental principle, no distinction between the guidelines

ascertaining the standard of care of professionals from those applicable to any other
person. Whether the defendant is a plumber or an architect or a consultant surgeon,
the primary question is whether in all the circumstances the defendant acted with the
skill and competence to be expected from a person undertaking his particular activity
and professing his specific skill. But particular problems do arise in actions against
professionals, and include these:
1 There may be disputes within the profession as to what constitutes proper practice.
2 The implications of professional negligence are likely to be more far reaching.
When a carpenter makes an error fixing a new door, the householder may suffer
personal injury if the door falls off, but the range of potential harm is limited.
Should an architect make a design error in his plans for a tower block of flats,
however, hundreds of people are at risk, and the financial cost of correcting the
error in several blocks of flats may be astronomic.
3 The potentially high cost of professional negligence has resulted in massive
increases in insurance premiums for architects, solicitors, accountants etc. Many
professions are now calling for statutory limits on damages awards made against
professionals.
4 Particularly acute difficulties affect doctors. Limited funding of the NHS can mean
that doctors may often be overworked and hospitals under-resourced, and patients
increasingly wish to play a greater part in decision-making these days.
5 Finally, and rather obviously, a professional defendant will be worth suing. The
rules of the profession are likely to oblige him to take out professional indemnity
cover. On the other hand, professional negligence actions are thus apt to be
defended vigorously by the professional backed by his insurers.
Some further guidelines are therefore given here on the current state of the law in
England relating to professional negligence.
98 [1984] RTR I. /
99 For full treatment of this important topic, see Dugdale and Stanton, Professional Negligence
and Jackson and Powell on Professional Negligence.
x
(B) Duty and breach : od
Very often the duty of care will arise concurrently in tort and within the contract
between the professional and his client. Save where an NHS professional is treating a
patient, most professional/client relationships are founded on a contract for services.
The client, for example, pays the solicitor or the accountant for her advice. A duty of
care will be implied into that contract,'” but will a duty in tort arise concurrently
allowing the client to opt whether to sue in contract or tort? After years of conflicting
decisions, the House of Lords in Henderson v Merrett Syndicates Ltd'®' ruled in
favour of concurrent liability providing that imposing a duty in tort does not conflict
with the contractual terms agreed between the parties.'” When duties of care do arise
concurrently, the question of whether there has been a breach of duty will generally be
determined on exactly the same principles whether the action is framed in tort or
contract. However, contract may impose duties beyond those covered by the tortious
duty of care.
In Thake v Maurice'® a surgeon failed to warn a private patient of the risk that
a vasectomy may be reversed by nature restoring the patient’s fertility. The
patient argued that the surgeon contracted to render him sterile. He was therefore
liable for that breach of contract regardless of whether or not he was negligent
when the patient’s wife conceived again. The Court of Appeal eventually held,
by a majority, that no reasonable man would infer from his contract with a doctor
that the doctor guaranteed success.'“
The case graphically illustrates the separate roles of tort and contract where the claimant
seeks to establish a liability independent of classic negligence. The argument pursued
by the claimant could not even have been attempted had he been an NHS patient.
In a number of professional relationships, the core of the professional’s duty is to offer

advice. Liability in negligence will depend largely on the principles governing liability
for negligent misstatements. In Caparo Industries plc v Dickman,'” auditors prepared
a report on a company on the basis of which the claimant mounted a successful
takeover bid of that company. The claimants alleged that the report negligently
suggested pre-tax profits of £1.2m when in fact there had been losses of £400,000. The
House of Lords held that no duty was owed to the claimants. Mere foreseeability of
financial loss to a third party was insufficient to create a duty on the part of the
professional. For a duty to arise to a third party: (1) the professional must be aware that
his advice will be transmitted to the claimant, or to an identifiable class of persons of
whom the claimant is one; (2) that advice must be transmitted in order to forward a
specific purpose of transaction of the claimants, and (3) it must be reasonable in all the
circumstances for the claimant to rely on that advice, rather than to seek independent
100 See s 13 of the Supply of Goods and Services Act 1982.

101 [1995] 2 AC 145, HL.
102 Note, also, Bellefield Computer Services Ltd v E Turner & Sons Ltd [2002] EWCA Civ 1823,
(2002] All ER (D) 272 (Dec), in which the limit of the contractual duty was relevant to
construing the limit of the tortious duty.
103 [1986] QB 644. See also Eyre v Measday [1986] 1 All ER 488.
104 But the Court of Appeal unanimously held the surgeon liable in negligence. The failure to warn
was held to be negligent and as a result the wife failed to recognise the symptoms of pregnancy
soon enough to be able to opt for an abortion.
105 [1990] 2 AC 605, HL.
Breach of duty 265
advice of his own, and the professional must be well aware that the claimant will
so rely
on his advice.'"* But note that no duty will be owed if the professionals contract with
his or her client conflicts with the alleged duty owed to a third party.!°7
(C) The reasonable ‘professional’

The basic test of whether the defendant conformed to the standard of the ‘reasonable
professional’, must be elaborated a little. The defendant must exhibit the degree of skill
which a member of the public would expect from a person in his or her position.
Pressures on him — even pressures for which he is in no way responsible — will not
excuse an error on his part. Negligence is not to be equated with moral culpability or
general incompetence. In Wilsher v Essex Area Health Authority,' for example, a
premature baby was admitted to a specialist neo-natal unit. An error was made in that
the medical staff failed to notice that the baby was receiving too much oxygen and the
baby suffered blindness. The Court of Appeal held that the doctors were negligent
and, by a majority, that they must be judged by reference to their ‘posts’ in the unit. It
would be irrelevant that they were inexperienced, or doing a job which should have
been done by a consultant, or just grossly overworked. The dissenting judge argued
that the doctors should be assessed individually. If a particular doctor was too junior
for his ‘post’ then it should be the health authority that was directly liable to the
claimant for providing inadequate staffing and resources.'”
In determining the standard demanded in a particular ‘post’, expert evidence of proper
practice must be called. Where practice is disputed, however, conformity with a
responsible body of opinion within the profession will generally suffice.''° Nonetheless,
the court remains the ultimate arbiter of what constitutes reasonable and responsible
professional practice. In Edward Wong Finance Co Ltd v Johnson''' the defendant
solicitors followed a uniform practice among the profession in Hong Kong. They
payed the purchase price to the vendors in return for the promise to ensure that the
property was free of encumbrances. The vendors fraudulently failed to do so, and the
claimant thus failed to obtain an unencumbered title to the property. The Privy Council
held that, while evidence of the practice of the profession went a long way towards
showing that the defendant was not negligent, it was not conclusive. The risk of fraud
should have been foreseen and precautions taken to avoid that risk.
Until recently, the judges in claims against doctors seemed more than unusually
unwilling to challenge expert professional opinion. Lord Scarman castigated a trial
judge for presuming to prefer one body of distinguished professional opinion to
another.!!? However, in Bolitho v City and Hackney Health Authority,''’ Lord Browne-
Wilkinson stressed that to constitute evidence of proper, non-negligent practice, expert
106 For examples of these criteria being fulfilled, see Smith v Bush [1990] 1 AC 831, HL and White
v Jones [1995] 2 AC 207, HL. For details of the cases, see ch 12.
107 See, eg, Clarke v Bruce Lance & Co [1988] 1 All ER 364.
108 [1987] QB 730 (reversed on the issue of causation [1988] AC 1074, HL).
109 On the direct liability of health authorities to patients see post.
110 Bolam y Friern Hospital Management Committee [1957] 2 All ER 118.
111 [1984] AC 296, PC.
112 Maynard v West Midlands Regional Health Authority [1984] | WLR 634, at 639.
113 [1998] AC 232, HL. See also Hucks v Cole [1993] 4 Med LR 393, CA.
.
opinion must be shown to be reasonable and responsible: ‘the court has to be satisfied
that the exponents of the body of epmiom relied on can demonstrate that such opinion
has a logical basis’.''* If ‘in a rare case’ it can be shown that professional opinion
cannot withstand logical analysis, then in a claim against a doctor, as much as in a
claim against any other professional, a judge is entitled to find that expert opinion is
not reasonable or responsible.
Errors of judgment are often the essence of professional negligence. An error of itself
is not negligence. The issue in all cases is whether the error in question evidenced a
failure of professional competence. The virtual immunity offered to doctors for errors
of clinical judgment was firmly condemned by the House of Lords in Whitehouse v
Jordan. As Lord Edmund Davies put it:
The test [of negligence] is the standard of the ordinary skilled man exercising or
professing to have that special skill. If a surgeon fails to measure up to that
standard in any respect (‘clinical judgment’) or otherwise he has been negligent.''°
In assessing that standard, care must be taken to relate what is expected of the
professional to the expertise he claims to hold, and not to demand unrealistic standards
of skill and knowledge. In Luxmoore-May v Messenger May-Baverstock''* the claimant
took a painting to a local auctioneer for valuation and sale. The defendants were held
not liable for failing to discover that it was a painting by a well-known artist of the 18th
century. Similarly, if a general practitioner is consulted by a patient complaining of
stomach trouble, she is not expected to have the same level of knowledge as the
consultant gastro-enterologist. She must, however, recognize her own limitations and
know when the patient needs to be referred to a specialist.
Section 5. Breach of an employer’s duty to his employees

The risk of personal injury either suffered in an accident at work, or by contracting an
industrial disease, is particularly acute in certain types of employment. The general
liability''’ of employers remains liability in negligence alone but it is one of the most
highly developed and thoroughly litigated areas of the law of negligence.''® The
circumstances in which an employer will be held to have been in breach of the duty he
owes his employees thus warrants separate consideration.
114 [1997] 3 WLR 1151, at 1159.

115 [1981] 1 WLR 246, at 258, HL.
116 [1990] 1 All ER 1067 (they met the ‘GP’ standard).
117 Of course in certain cases specific statutory duties in respect of safety are imposed on employers
and in such cases an action for breach of statutory duty may lie: see ch 21. Breach of the
general statutory code on safety provided for by the Health and Safety at Work Act 1974 is not
actionable as a breach of statutory duty. Section 17(1) expressly provides that breach of the
code of practice under the Act is not of itself tortious. But it may be that, in assessing
negligence, judges may tend to treat conformity with the code as evidence that reasonable care
has been taken (and vice versa).
118 Compensation for industrial injuries is provided for by way of the state scheme relating to
industrial injuries. Nonetheless, the higher level of common law damages ensures that many
employees continue to elect for the common law remedy in negligence. In order to ensure that
an employee awarded compensation for negligence against his employer receives the money
due to him, the Employers’ Liability (Compulsory Insurance) Act 1969 requires employers to
insure against liability for injury sustained by employees in the course of their employment.
Breach of duty 267
As will be seen, some of the language deployed to analyse employers’ responsibilities,

is the language of duty. But despite this language, at the core of the majority of cases
on employers’ liability is the issue of the standard of care. The central question
discussed here, therefore, is just what kinds of safeguards must employers put in place
to discharge their duty in tort for the health and safety of their workers?
(A) A personal, non-delegable duty

The employer’s duty is a personal one of a general nature. As will be seen later,'' there
is another form of tortious liability, known as vicarious liability, whereby an employer
is held liable not for a breach of his own personal duty, but for the tort of his employee.
Until the Law Reform (Personal Injuries) Act 1948, an employer sued by a workman on
account of the employer’s vicarious liability for the tort of a fellow-workman could
successfully raise the defence of common employment. As such, the personal duties
of employers have been kept strictly separate from those for which their responsibility
is vicarious. It is true that, since that Act abolishes the defence of common employment,
this strict marking off of personal duty has become less important in circumstances
where the claimant can in any event prove fault by a fellow-employee. But it would be
misleading to state that the distinction can now be ignored. There will still be many
cases where the employer is in breach of his personal duty without any employee
being at fault.'*° Furthermore, the distinction remains the basis of judicial thinking on
the subject, and the development and implications of the cases cannot be understood
if this is not grasped.
Employers’ responsibilities fall naturally into three divisions: (1) personnel (ie, the
provision of competent staff); (2) those concerned with place of work, machinery,
tools and raw materials (ie, the provision of a safe place of work with proper plant and
equipment); (3) the general management or system of work (including supervision).
An important feature of the employer’s duty is the fact that it is non-delegable.

In McDermid v Nash Dredging and Reclamation Co Ltd,'*! C was employed by
Ds as a deckhand. He was sent to work on a rig owned by a Dutch company
under the control of a Dutch captain employed by that Dutch company. C had no
idea that he was not continuing to work on one of Ds’ boats under one of Ds’
captains. C suffered serious injuries as a result of the Dutch captain’s
carelessness. Ds denied responsibility on the basis that they were not vicariously
liable for the conduct of someone else’s employee. The House of Lords held Ds
liable on very simple grounds. The evidence showed that C was injured because
no safe system of work was in operation. The duty incumbent on his employers
to devise and operate such a system had not been fulfilled.
The essential characteristic of the employer’s non-delegable duty ‘is that, if it is not
performed, it is no defence for the employer to show that he delegated its performance
EOC hes:
120 It may be that there is an inadequate system for when culpability can be attached to no one
person; or it may be that the individual at fault is not an employee of the employer sued as in
McDermid v Nash Dredging and Reclamation Co Ltd [1987] 3 WLR 212, HL
121 [1987] AC 906, HL. See also Kondis v State Transport Authority (1984) 154 CLR 672 (Aust
HC).
.
to a person, whether his servant or not his servant, whom he reasonably believed to be
competent to perform it. Despite such delegation the employer iis liable for the non-
performance of the duty’.!”
Although the duty is personal, and cannot be discharged by entrusting it to a competent
delegate, fault must still be proved for negligence liability to be imposed. Thus, Lord
Tucker has stressed the importance of not enlarging the employer’s duty until it is
barely distinguishable from his absolute statutory obligations.'*? On the other hand,
an employer may be liable for a mere omission:'** actual knowledge of a danger on his
part is not insisted on; it suffices if he ought to have known of it.'*° It is a question of
fact whether there has been a breach of the duty;'*° precedents relating to industrial
practice form guidance as to an employer’s breach of duty, but no more than that.'””
Compliance with common practice will constitute strong, but not conclusive, evidence
that the employer has discharged his duty. Nevertheless, once a substantial risk of
industrial disease, for example, is well known, failure to protect employees against that
disease will be actionable even if it is the ‘customary practice’ of the trade to go on
ignoring the risk.!**
The same defences are available here as in the general law of negligence. But it is worth
stressing that the courts are generally reluctant to find that a workman has voluntarily
encountered a danger with obvious consequences for the volenti defence.'*? On the
other hand, where employment necessarily involves particular risks — eg, working as a
stuntman — the employer is under no duty to remove these risks, and an employee
injured in consequence of undertaking them will not recover in negligence. There is,
however, a duty to warn prospective new employees of such risks before they accept
the job.'*°
In one respect a distinction has to be made between defective equipment and failure to
provide competent staff or a proper system of working. The Employers’ Liability
(Defective Equipment) Act 1969 applies only to defective equipment (including plant
and machinery, vehicles, aircraft and clothing provided by the employer for the purpose
of his business'*'). Here, even though the defect is attributable to the negligence of a
third party, the employer remains liable to his employee for those personal injuries
122 McDermid v Nash Dredging and Reclamation Co Ltd [1987] 3 WLR 212, at 223, HL, per
Lord Brandon.
123 Latimer v AEC Ltd [1953] AC 643, at 658, HL. See also Cook v Square D [1992] ICR 262 (sub
nom Square D v Cook [1992] IRLR 34, CA). In Richardson v Stephenson Clarke Ltd [1969]
3 All ER 705, the employers left it to C, an employee, to choose his equipment. He chose
carelessly and was hurt. It was held that the employers had discharged their duty by providing
safe equipment and leaving the selection of the equipment to C; C’s negligence alone caused
the accident.
124 Williams v Birmingham Battery and Metal Co [1899] 2 QB 338, CA.
125 Baker v James [1921] 2 KB 674, at 681, per McCardie J.
126 Latimer v AEC Ltd [1953] AC 643, at 655, per Lord Oaksey. Furthermore, the res ipsa loquitur
doctrine applies: Ballard v North British Rly Co 1923 SC (HL) 43, at 53, HL, per Lord
Dunedin.
127 King v Smith [1995] ICR 339, CA.
128 Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405.
129 Smith v Baker & Sons [1891] AC 325, HL.
130 See White v Holbrook Precision Castings [1985] IRLR 215, CA.
131 The Act will not apply, eg, where a domestic cleaner is injured because an electrician has
carelessly installed a plug in her employer’s home. Nor is the employer liable at common law
if he has carefully chosen the electrician: Cook v Broderip (1968) 206 Estates Gazette 128.
Breach of duty 269
suffered in consequence of using substandard equipment in the course of his

employment. The proclamation in McDermid v Nash Dredging & Reclamation Co Ltd
that the employer’s duty is ‘non-delegable’ means just what it says. And the principle
would seem to apply in respect of any of the components of the duty owed by the
employer.
Remembering always that the basic question is whether the employer has failed to take
reasonable care for the safety of his employee,'” and that the tripartite division is not
necessarily an exhaustive list of all possible aspects of an employer’s duty towards his
employees, it is nonetheless convenient to examine each of those three categories.
(B) The provision of competent staff

Prior to 1948, an employee injured by the incompetence of his fellow employee could
recover damages in negligence from his employer only by establishing that the employer
was himself negligent in employing the fellow employee in the circumstances. Although
the negligent engagement of incompetent staff will still today give rise to potential
liability, this aspect of an employer’s duty towards his employees is of much less
practical significance: the defence of common employment no longer absolves the
employer from vicarious liability. Indeed, modern-day cases in this category will now
only be relevant where the claimant cannot prove any fault on the part of the other
employee and yet can show that his injury results from negligent staffing provision.
The commonest case will be where the employer appoints an insufficiently qualified or
experienced person for a particular task.'*
(C) Adequate premises and plant

The employer must take care to provide safe premises'™ and plant for his workers.
Both the failure to provide some necessary equipment and the provision of defective
appliances will constitute breaches of this duty. So, the failure of ship-owners to
provide essential spare ropes for a voyage was actionable negligence.'’’ There is
probably also a duty not merely to provide the material, but also to maintain it.'°°
132 Emphasised again by the House of Lords in General Cleaning Contractors Ltd v Christmas
[1953] AC 180, HL. Cf Drummond v British Building Cleaners Ltd [1954] 3 All ER 507, CA.
133 Black v Fife Coal Co Ltd [1912] AC 149, HL (employment of a colliery manager without
experience of carbon monoxide in a pit where its presence was a possible danger); especially,
per Lord Shaw, at 170. In Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348, knowingly
to employ a workman continually indulging in horseplay was held to violate this duty.
134 ‘Whether the servant is working on the premises of the master or on those of a stranger, that
duty is still the same; but ... its performance and discharge will probably be vastly different in
the two cases. The master’s own premises are under his control: if they are dangerously in need
of repair he can and must rectify the fault at once if he is to escape the censure of negligence.
If, however, a master sends his plumber to mend a leak in a respectable private house, no one
could hold him negligent for not visiting the house himself to see if the carpet in the hall
creates a trap’: Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110, at 121, CA, per
Pearce LJ.
135 Vaughan v Roper & Co Ltd (1947) 80 LI LR 119, CA.
136 Dicta in Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, HL, and the much cited
judgment of Sir Arthur Channel in Toronto Power Co Ltd v Paskwan [1915] AC 734, at 738,
1X
(D) A proper system of working o@
The scope of this requirement was considerably increased by the decision of the Court
of Appeal in Speed v Thomas Swift & Co Ltd:'*’
C was engaged in loading a ship from a barge. Normally, the particular part of this
loading operation (requiring the port and starboard winches to be used together),
was carried out while the ship’s rails were left in position. Only when one winch
was being used was it ordinarily necessary to remove a section of the rails in
order to prevent their being caught by the hook. The following special
circumstances, however, made it dangerous on that occasion to load with two
winches without removing the section of the rail. Other sections of the rail had
been damaged by accident and had been removed out of necessity; timber was
lying against the rails so that it was likely easily to be dislodged; the port winch
was not in perfect order. A hook caught in the rail, and the rail and timber fell into
the barge injuring C. It was held that he could recover in negligence because D
had not, in these particular circumstances, provided a safe system of work.
Lord Greene MR, approved the following description of ‘system of work’.

What is system and what falls short of system may be difficult to define ... but,
broadly stated, the distinction is between the general and the particular, between
the practice and method adopted in carrying on the master’s business of which
the master is presumed to be aware and the insufficiency of which he can guard
against, and isolated or day to day acts of the servant of which the master is not
presumed to be aware and which he cannot guard against; in short, it is the
distinction between what is permanent or continuous on the one hand, and what
is merely casual and emerges in the day’s work on the other hand.'**
He added:
It ... may include ... the physical lay-out of the job — the setting of the stage, so
to speak — the sequence in which the work is to be carried out, the provision in
proper cases of warnings and notices, and the issue of special instructions. A
system may be adequate for the whole course of the job or it may have to be
modified or improved to meet circumstances which arise. Such modifications or
improvements appear to me equally to fall under the head of system.'°
On the other hand, in Winter v Cardiff RDC,'* the House of Lords held that a workman,
who was injured because a rope provided by the employer for that purpose had not in
fact been used to lash a regulator being carried on a lorry in which he was travelling,
could not complain of the system of work. Lord Porter said:
The difference ... is between a case where sufficient and adequate provisions
have been made, which will, if carried out, protect the workman unless one of his
137 [1943] KB 557 (approved by the House of Lords in Colfar v Coggins and Griffith (Liverpool)
Ltd [1945] AC 197, HL, where (at 202), however, Viscount Simon LC suggested that the
principles there laid down marked the limit of the duty).
138 [1943] KB 557, at 562, CA, citing English v Wilsons and Clyde Coal Co Ltd in the Court of
Session 1936 SC 883, at 904.
139 [1943] KB 557, at 563, CA.
140 [1950] 1 All ER 819, HL.
Breach of duty 27\
fellows does not use proper care in carrying out the system, and a case where
the system itself makes no such provision.'4!
Does this suggest that, provided a safe system is devised, any failure in operation
of
the system will not be actionable as a breach of the employer’s personal duty? This
proposition must be treated with caution after McDermid v Nash Dredging and
Reclamation Co Ltd. Lord Brandon asserted unequivocally that the duty extended to
the operation of the system,'” the crucial factor in that case being perhaps that the
relevant carelessness in operating the system was that of the man in control of the
operation and not just a fellow employee of the claimant.
The House of Lords has also emphasised that in considering whether the employers
are negligent, regard must be had to their knowledge of physical defects of particular
workmen, so that it was relevant, in deciding whether the employers had taken
reasonable care to protect a workman from flying metal by providing him with goggles,
that the employers knew him to be one-eyed.!*?
Many of the decided cases on employers’ liability focus on responsibility for physically
dangerous work environments. The risk to the employee is of crude injury whether by
a mechanical device or via industrial disease. Other sorts of risk also come within the
employers’ duty. Claims for stress-related illness are rapidly becoming commonplace.
In Johnstone v Bloomsbury Area Health Authority the Court of Appeal refused to
strike out a claim by a junior doctor that the excessive hours which he was required to
work had damaged his health. And in Walker v Northumberland County Council'* a
social worker recovered damages after his employers failed to reduce his workload on
his return from sick leave after suffering a nervous breakdown.'” The continued stress
triggered a second bout of illness. The court held that, given the obvious risk of
further mental injury to the claimant, the employer should have taken steps to reduce
the level of stress to which the claimant was exposed by his work.
However, it must not be forgotten that employers’ liability is not unlimited. He does not
have to ‘insure’ his personnel against all work-related risk. In Reid v Rush & Tompkins
Group plc,'*’ an employer was held not liable for failing to provide his employee
posted abroad with insurance against risks encountered in that posting.
Consider, too, the rights of workmen on premises. If the workman is merely employed
by an independent contractor of the occupier he will, of course, have the rights of a
visitor against the occupier. He will only have the greater rights of an employee against
an employer in respect of the defect on the premises if he shows that the defect was
tantamount to a failure on the employer’s part to take reasonable care to protect his
141 [1950] 1 All ER 819, at 822, HL.

142 [1987] 3 WLR 212, at 223, HL.
143 Paris v Stepney Borough Council [1951] AC 367, HL. On the other hand in Charlton v Forrest
Printing Ink Co Ltd [1980] IRLR 331, CA, it was held that an employee attacked by robbers
after collecting wages from the bank could not sue his employers on the ground that they
neglected his safety by not employing a security firm instead.
144 [1992] QB 333, CA.
145 [1995] 1 All ER 737.
D
146 See also Sutherland v Hatton [2002] EWCA Civ 76, [2002] PIQR P241 (stress at work:
must take into account C’s susceptibility, not the susceptibilities of those of ordinary fortitude).
147 [1989] 3 All ER 228.
272. Negligent invasions of interests in person and property and economic interests
Nas
148
safety as, for instance, in General Cleaning Contractors Ltd v Christmas,'** where
the employee of a firm of window cleaners was held to be entitled to recover from the
firm for failure to lay out a safe system on the premises of a customer whose windows
he was cleaning. Subject to that, he will be limited to the rights of a visitor contained in
the Occupiers’ Liability Act 1957 or any right of action for breach of statutory duty that
there may be. If he is the employee of the occupier, he will then not be limited to the
rights of a visitor, but will have those further rights considered here. For example, his
employer will be liable for defective equipment negligently provided by a third party in
circumstances where, under the Occupiers’ Liability Act 1957, an occupier would not
be liable for that independent contractor’s fault. Furthermore, his employer must insure
against this risk.'*”
Particular difficulty may arise where the employee is, at the time of the accident, actually
working on a site abroad. In Cook v Square D,'*° the claimant suffered injury while
working in Saudi Arabia. The Court of Appeal held that the employers did not have a
duty to guarantee the safety of premises occupied by third parties. The question must
be whether in the light of all the circumstances the employer had done enough to take
reasonable steps to protect his staff.
Finally it should be noted that an employer’s negligence can incur liability to the
employee’s family as well as the employee himself. If the employee is exposed to toxic
substances at work, or to a transmissible disease,'*' so that unwittingly he endangers
his wife who washes his workclothes or his family who contract the disease, the
employer may owe a duty of care to the family as well. But there must be adequate
proof that the level of toxicity, or the risk of infection, did endanger the employee so as
to create a real risk to the family.'*”
Section 6. Proving negligence
(A) Law and fact

Historically, negligence actions were tried by judge and jury; the judge deciding matters
of law and the jury matters of fact. Nowadays, however, they are heard by a judge
sitting without a jury: the judge trying issues of both law and fact. It should not,
therefore, be surprising that many modern judgments do not meticulously separate
matters of law from questions of fact. This then begs the question of where the boundary
lies between law and fact.
The following are matters of law:
1 All questions of duty — Was the duty owed to C? Was it within the hazard? etc.
148 [1953] AC 180, HL; Drummond v British Building Cleaners [1954] 3 All ER 507, CA; Smith
v Austin Lifts Ltd [1959] 1 All ER 81, HL.
149 The Employers’ Liability (Compulsory Insurance) Act 1969.
150 [1992] IRLR 34, CA (compare the outcome of this decision with McDermid v Nash Dredging
and Reclamation Ltd [1987] 3 WLR 212, HL).
151 Consider the potential liability if a health worker becomes infected with hepatitis B and passes
on the disease to her husband or any other sexual partner.
152 Hewett v Alf Brown’s Transport [1992] ICR 530, CA (no evidence that the levels of lead waste
to which the husband was exposed were sufficient to cause the wife’s lead poisoning).
Breach of duty 273
2 The standard of care — What was the standard required?

3 The principles to be applied in determining whether the damage was too remote,
and whether there was any evidence of such damage, and whether any recognised
heads of damage have not been taken into account.
By contrast, matters of fact include:

1 Resolving conflicts in the evidence and determining what the circumstances were
and what the parties did.
2 Evaluating the conduct of the parties in the light of the facts found and deciding
whether there was a failure to take care, having regard to the standard of care
required of D.
3 Deciding, in the light of the facts found, whether the damage was caused by the
defendant and the extent of the damage'* together with the assessment of
damages.'**
When appellate courts largely heard appeals from judges sitting with a jury, they were
concerned solely with those matters defined as matters of law. Today the appellate
jurisdiction from the judge sitting alone is much broader. ‘[He] has ... jurisdiction to
review the record of the evidence in order to determine whether the conclusion originally
reached upon that evidence should stand; but this jurisdiction has to be exercised
with caution.’'* The court should be ‘satisfied that any advantage enjoyed by the trial
judge by reason of having seen and heard the witnesses, could not be sufficient to
explain or justify the trial judge’s conclusion’,'*° before it disturbs his findings of fact.
On the other hand, where, as often happens, the facts are not in dispute, but the case
rests on the inference to be drawn from them, an appellate court is in as good a position
as the trial judge to decide the case.'’
(B) Onus of proof

Whether what is in issue is the veracity of primary facts alleged or the validity of the
inferences to be drawn from those facts, the claimant shoulders the burden of
establishing (1) that the defendant was negligent, and (2) that his negligence resulted
in the claimant’s loss or injury. Should the evidence be evenly balanced so that the
accident might have been the result of lack of care or competence, but might just as
easily have occurred without carelessness, the claimant fails for he will not have
established negligence to the required standard of proof.'* In Ashcroft v Mersey
Regional Health Authority,’ for example, the claimant suffered a partial paralysis in
153 These and (2) are matters of inference from (1).

154 See ch 29.
155 Watt v Thomas [1947] AC 484, at 486, HL, per Viscount Simon.
156 Watt v Thomas, supra, at 488, HL, per Lord Thankerton.
157 Powell v Streatham Manor Nursing Home [1935] AC 243, at 267, HL, per Lord Wright. See
also Benmax v’Austin Motor Co Ltd [1955] AC 370, HL. Appellate courts are now exercising
this power so freely that many appellate decisions now turn solely on matters of inference
from facts. Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552, HL, is a typical
example of the House of Lords substituting its own evaluation of the facts for that of the trial
judge: nothing else is in issue, yet the case appears in the Law Reports. See also Whitehouse v
Jordan [1981] 1 All ER 267, HL.
158 As to why, see Porat and Stein, Jort Liability Under Uncertainty (2001) ch 1.
159 [1983] 2 All ER 245 (affd [1985] 2 All ER 96n).
Ss
her face when in the course of surgery on her left ear the surgeon cut into a facial
nerve. Some expert evidence showed this to be an inherent risk of such surgery even
when performed with the greatest skill, while other experts acknowledged that it also
sometimes occurred because of a failure in skill. The claimant’s action failed.
At least Mrs Ashcroft knew what had happened even though her counsel failed to
establish negligence on the defendant’s part. In many cases of alleged negligence, the
claimant knows only that he has been injured. How he came to be hit on the head by a
falling object or a collapsing wall, why a swab remained in his abdomen after surgery,
is a closed book to him. In a number of such cases, however, the claimant may be able
to invoke the principle of res ipsa loquitur. In others, section 11 of the Civil Evidence
Act 1968 may be of use to him.
(1) Res ipsa loquitur

In Scott v London and St Katherine’ Docks Co'® the facts were as follows.
While near the door of D’s warehouse, C was injured by some sugar bags falling
on him. The judge directed the jury to find a verdict for D on the ground of lack
of evidence of negligence by D, who called no evidence. On appeal a new trial
was directed.
The court justified this direction
ofa new trial in the following terms, which have since
become known as res ipsa loquitur:'*'
There must be reasonable evidence of negligence. But where the thing is shown
to be under the management of the defendant or his servants, and the accident
is such as in the ordinary course of things does not happen if those who have
the management use proper care, it affords reasonable evidence, in the absence
of explanation by the defendant, that the accident arose from want of care.
In the past there has been a tendency to elevate res ipsa loquitur to the status of a
principle of substantive law or of at least a doctrine. In the 1970s, however, the Court
of Appeal decisively swung away from that approach. In Lloyde v West Midlands Gas
Board, Megaw LJ said:
I doubt whether it is right to describe res ipsa loquitur as a ‘doctrine’. | think
that it is no more than an exotic, although convenient, phrase to describe what is
in essence no more than a common-sense approach, not limited by technical
rules, to the assessment of the effect of evidence in certain circumstances. It
means that a [claimant] prima facie establishes negligence where: (i) it is not
possible for him to prove precisely what was the relevant act or omission which
set in train the events leading to the accident, but (ii) on the evidence as it stands
at the relevant time it is more likely than not that the effective cause of the
accident was some act or omission of the defendant or of someone for whom the
160 (1865) 3 H & C 596, Ex Ch.

161 (1865) 3 H & C 596, at 601, per Erle CJ. It is not necessary to plead the doctrine; it is enough
to prove facts which make it applicable: Bennett v Chemical Construction (GB) Ltd [1971] 3
All ER 822, CA.
Breach of duty 275
defendant is responsible, which act or omission constitutes a failure to take

proper care for the [claimant’s] safety.'
It is still necessary to examine the content of res ipsa loquitur, but always with that
warning in mind. Three separate requirements must be satisfied.
(A) THE ABSENCE OF EXPLANATION ©?

This limb merely means that if the court finds on the evidence adduced how and why
the occurrence took place, then there is no room for inference. So, in Barkway v South
Wales Transport Co Ltd'** — where the tyre of a bus burst and the bus mounted the
pavement and fell down an embankment — res ipsa loquitur did not apply because the
court had evidence of the circumstances of the accident and was satisfied that the
system of tyre inspection in the defendants’ garage was negligent.
The word ‘explanation’ must be qualified in this context by the adjective ‘exact’.'®
This is to make it clear that a claimant who is able to present a partial account of how
an accident happened is still not precluded from relying on res ipsa loquitur for further
inferences essential to the winning of his case. The partial explanation may make it
more obvious that an inference of negligence can be drawn. Of course, as in the
Barkway case, even if res ipsa loquitur is inapplicable because all the material facts
are proved, those facts may still be found to constitute negligence.'”
(B) THE HARM MUST BE OF SUCH A KIND THAT IT DOES NOT ORDINARILY HAPPEN IF PROPER CARE IS
BEING TAKEN
The courts have applied the doctrine to things falling from buildings,'®’ and to accidents
resulting from defective machines, apparatus or vehicles.'®* It applies where motor
cars mount the pavement,'®” or where aircraft crash on taking off.'”” On the other hand,
162 [1971] 2 All ER 1240, at 1246. The Court of Appeal in Turner v Mansfield Corpn (1975) 119
Sol Jo 629 unanimously affirmed that decision. See also Ng Chun Pui v Lee Chuen Tat [1988]
RTR 298, PC.
163 Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392, at 394, HL, per Lord Porter.
164 [1950] 1 All ER 392. And see Swan v Salisbury Construction Co Ltd [1966] 2 All ER 138, PC.
In Richley v Faull [1965] 3 All ER 109, D’s car hit C’s car when D’s car was on the wrong side
of the road. D proved that he skidded. Without mentioning res ipsa loquitur, the court reached
the solution supported by common sense that D was liable unless he showed that the skid
occurred through no fault of his. Similarly in Henderson v Henry E Jenkins & Sons [1970] AC
282, HL, the sudden failure of brakes on a lorry owing to a corroded pipe in the hydraulic
braking system was held to impute negligence to the owners.
165 Ballard v North British Rly Co 1923 SC (HL) 43, at 54, per Lord Dunedin.
166 Conversely, D is not liable for an unexplained accident, to which res ipsa loquitur might
otherwise apply, if he establishes that he himself was not negligent: Barkway v South Wales
Transport Co Ltd [1948] 2 All ER 460, at 463, per Bucknill LJ.
167 Byrne v Boadle (1863) 2 H & C 722 (flour barrel falling from upper window onto C walking on
the street below); Kearney v London and Brighton Rly Co (1870) LR 5 QB 411.
168 Ballard v North British Rly Co 1923 SC (HL) 43 (defective coupling on train); Kealey v Heard
[1983] 1 All ER 973, (collapsing scaffolding).
169 McGowan v Stott (1930) 143 LT 219n, CA; Ellor v Selfridge & Co Ltd (1930) 46 TLR 236;
Laurie v Raglan Building Co Ltd [1942] | KB 152, CA.
170 Fosbroke-Hobbes v Airwork Ltd and British-American Air Services Ltd [1937] | All ER 108.
‘
it was held inapplicable when neighbouring rooms were damaged by fire spreading
from a lodger’s room in which a fire had been left alight in the grate.'7!
It will be recalled that the classic definition of Erle CJ referred to accidents happening
‘in the ordinary course of things’. Mahon v Osborne!” raised the question of whether
this means that it must be a matter of common experience, so that the experience of the
expert is irrelevant. Goddard LJ held that the doctrine applied where swabs had been
left in the body of a patient after an abdominal operation,'” but Scott LJ thought the
doctrine did not apply where the judge could not, as he could with surgical operations,
have enough knowledge of the circumstances to draw an inference of negligence.'”
Since then, the Court of Appeal has held it to be prima facie evidence of negligence
that a man leaving hospital after a course of radiography treatment on his hand and
arm, should suffer four stiff fingers and a useless hand.'”> Equally, a court of first
instance has been influenced by expert evidence in rejecting the application of res ipsa
loquitur to a case where a patient sustained a fractured jaw as a result of a dental
extraction.'”°
It is suggested that where an unexplained «accident occurs from a thing under the
control of the defendant, and medical or other expert evidence shows that such accidents
would not happen if proper care were used, there is strong evidence of negligence.
(c) THE INSTRUMENTALITY CAUSING THE ACCIDENT MUST BE WITHIN THE EXCLUSIVE CONTROL OF
THE DEFENDANT
(i) The meaning of ‘control’

If the defendant is not in control, res ipsa loquitur does not apply. In Turner v Mansfield
Corpn:'"
C, a driver of D’s dust-cart was injured when its back raised itself up as C drove
it under a bridge. It was held that, since C was in control, it was for him to explain
the accident. As he was unable to furnish any evidence from which negligence
could be inferred, he failed.
McGowan vy Stott'” is an important case in that it called a halt to previous attempts to

insist on complete control of all the circumstances before the rule could apply.
171 Sochacki v Sas [1947] 1 All ER 344.

172 [1939] 2 KB 14, CA.
173 [1939] 2 KB 14, at 50, CA.
174 [1939] 2 KB 14, at 23, CA. It is impossible to be certain of the view of MacKinnon LJ, in view
of the conflicting reports perhaps the fullest of which is at (1939) 108 LJKB 567.
175 Cassidy v Ministry of Health [1951] 2 KB 343, CA. Saunders v Leeds Western Health Authority
[1993] 4 Med LR 355 (child suffering cardiac stoppage under anaesthetic).
176 Fish v Kapur [1948] 2 All ER 176. Cf if the patient swallows a throat pack: Garner v Morrell
(1953) Times, 31 October.
177 The case is briefly reported at (1975) 119 Sol Jo 629, CA, but the text here is based on a full
Court of Appeal transcript.
178 (1930) 143 LT 219n, CA. Where the apparatus is in C’s house — eg, gas apparatus — the the
onus is on C to show that it was improbable that persons other than D could have interfered
with it. Only then can he invoke res ipsa loquitur: Lloyde v West Midlands Gas Board [1971]
2 All ER 1240, CA. In Ward v Tesco Stores Ltd [1976] 1 All ER 219, CA, C slipped on yoghurt
spilled on the floor of D’s supermarket. Even though there was no evidence as to how long the
yoghurt had been on the floor it was held to be a case of prima facie negligence.
Breach of duty 277
Previously, Fletcher Moulton LJ had indicated!” that the scope of res ipsa loquitur
was severely limited in highway accidents because all the essential surrounding
circumstances were seldom under the defendant’s control. Yet, the court in McGowan
v Stott refused to follow this approach declaring the doctrine to be applicable to
accidents on the highway where the defendant was in control of the vehicle causing
the damage. Two actions brought against railway companies by claimants who had
fallen out of trains illustrate the degree of control essential for the doctrine to apply.
In Gee v Metropolitan Rly Co,'*° a few minutes after a local train had started its
journey, C leaned against the offside door, which flew open. This was held to be
evidence of negligence on the part of the railway company.
In Easson v London and North Eastern Rly Co,'*' C’s claim failed, Goddard LJ
holding that ‘it is impossible to say that the doors of an express corridor train
travelling from Edinburgh to London are continuously under the sole control of
the railway company’.
(ii) Where one of two or more persons is in control

If the instrumentality is in the control of one of several employees of the same employer,
and the claimant cannot point to the particular employee who is in control, the rule may
still be invoked so as to make the employer vicariously liable. Thus, a hospital authority
has been held answerable for negligent treatment where the claimant could not show
which of several members of the staff was responsible.'** Furthermore, if a surgeon is
shown to be in general control of an operation, and the patient cannot establish
whether it was the malpractice of the surgeon or one of the theatre staff which inflicted
damage on him in the course of that operation, it seems that res ipsa loquitur applies
in an action of negligence against the surgeon.'* If, on the other hand, the surgeon is
not in control of all the relevant stages of the treatment, and if the claimant cannot
prove that the act complained of took place at a time when the defendant surgeon was
in control, res ipsa loquitur cannot be invoked.'**
Walsh v Holst & Co Ltd'*° extends the principle further: when the defendant’s duty is
so extensive that he is answerable for the negligence of his independent contractor,
and an accident occurs while the independent contractor is performing the work
delegated to him, the claimant can invoke res ipsa loquitur against both the defendant
and his independent contractor.'*°
A related, though distinct, problem is the position of a claimant who establishes,
without invoking the rule of res ipsa loquitur, that the damage to him was caused
179 Wing v London General Omnibus Co [1909] 2 KB 652, at 663-4, CA.

180 (1873) LR 8 QB 161.
181 [1944] KB 421, at 424, CA.
182 Cassidy v Ministry of Health [1951] 2 KB 343, CA. i
183 Mahon v Osborne [1939] 2 KB 14, CA, per Goddard and Mackinnon LJJ (Scott LJ dissenting).
184 Morris v Winsbury-White [1937] 4 All ER 494. Perhaps Somervell LJ disagreed with this
statement of law in Roe v Minister of Health [1954] 2 QB 66, at 80, CA.
185 [1958] 3 All ER 33, CA; Kealey v Heard [1983] | All ER 973.
186 Apparently, the employer conceded that he was liable even though C had not established that
the act did not occur within that area of the independent contractor’s operations for which the
employer is not answerable: viz, acts of collateral negligence.
Y
either by the negligence of A or the negligence of B. If he is merely able to show that

only A or B but not both must have been negligent then he is not entitled to a judgment
against both unless the defendants have refused to give evidence, in which case
adverse inferences against them may be drawn.'*’ It is, however, the duty of the trial
court to come to a definite conclusion on the evidence. It must not dismiss the action
because of uncertainty as to which party was free from blame.'* If the inference is that
one or other or both have been negligent, the claimant has made out a prima facie case
against either A or B, or both.'*? Of course, if the circumstances do not warrant the
inference that one or other has been negligent, the claimant fails.'”°
Beyond setting out the above guidance, it is suggested here that one cannot define
the circumstances where the doctrine applies. As usual in negligence, some writers list
all the circumstances where res ipsa loquitur has been applied as if they were precedents
on points of law. But the Court of Appeal has held'”' that such cases do not lay down
any principles of law; they are merely guides to the kinds of circumstances in which
the res ipsa loquitur principle may successfully be invoked.
(D) THE EFFECT OF RES IPSA LOQUITUR!

In some cases the inference to be drawn by resorting to the rule is twofold: that the
defendant caused the accident, and that he was negligent. In others, the cause is
known, and only the inference of negligence arises.'”
As we have seen, on any given facts it may be just as likely that the event happened
without negligence as that it happened in consequence of negligence, in which case
there is no evidence of negligence. If, however, in such circumstances, res ipsa loquitur
applies, its effect is to make it ‘relevant to infer negligence’! from the fact of the
accident. This simply means that there is in law evidence on which the judge may
properly find for the claimant.'*° The distinctive function of the rule is to permit an
inference of negligence from proof of the injury and the physical instrumentality causing
it, even though there is no proof of the facts identifying the human agency responsible.
Looked at in this way, its affinity to the ordinary rule of evidence that circumstantial
evidence is admissible to prove negligence is clear. As Atkin LJ put it:
187 Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472, CA;
Cook v Lewis [1952] 1 DLR 1 decided that where either X or Y has committed a tort against
C and it is the careless act of both of them which prevents C from knowing which caused the
harm, both are liable (X and Y were hunters, one or other of whom fired the shot which hit C).
188 Bray v Palmer [1953] 2 All ER 1449, CA.
189 Roe v Minister of Health [1954] 2 QB 66, CA, per Denning LJ; France v Parkinson [1954] 1
All ER 739, CA. Where vehicles collide either at cross roads or on the brow of a hill, and both
drivers are dead, a passenger has a prima facie case, in the absence of other evidence, against
both drivers or either of them: Davison v Leggett (1969) 133 JP 552, CA, (head-on collision
in the centre lane, negligence by both drivers inferred and more fully reported in Knight v
Fellick [1977] RTR 316, CA.
190 Knight v Fellick [1977] RTR 316, CA.
191 Easson v London and North Eastern Rly Co [1944] KB 421, at 423, CA, per Goddard LJ.
192 For the clearest judicial statement, see the eight rules laid down by Evatt J in Davis v Bunn
(1936) 56 CLR 246, at 267-8.
193 Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392, at 399-400, HL, per Lord
Normand.
194 Ballard v North British Rly Co 1923 SC (HL) 43, at 54.
195 Cole v De Trafford (No 2) [1918] 2 KB 523, at 528, per Pickford LJ.
Breach of duty 279
all that one wants to know is whether the facts of the occurrence do as a matter
of fact make it more probable that a jury may reasonably infer that the damage
was caused by want of care on the part of the defendants than the contrary.!*°
It is clear, then, that the effect of res ipsa loquitur is to afford prima facie evidence of
negligence. It does not shift the burden of proof to the defendant!” in the sense that,
in the absence of rebutting evidence from him, the courts must find for the claimant. In
other words, once res ipsa loquitur has been successfully invoked to raise an inference
of negligence against the defendant, there is sufficient evidence (in the absence of
countervailing evidence) for the judge to find for the claimant. Historically, the judge
could not have withdrawn the case from the jury. It may be on certain facts that the
inference of negligence is so cogent that the judge must rule in favour of the claimant.
But this will by no means always be the case. As Du Parcq LJ said:
The words res ipsa loquitur ... are a figure of speech, by which sometimes is
meant that certain facts are so inconsistent with any view except that the defendant
has been negligent that any jury [or judge] which, on proof of these facts, found
that negligence was not proved would be giving a perverse verdict. Sometimes,
the proposition does not go as far as that, but is merely that on proof of certain
facts an inference of negligence may be drawn by a reasonable jury [or judge].'"
To sum up, the effect of res ipsa loquitur depends on the cogency of the inference to
be drawn, and will vary from case to case. If, for instance, a vehicle mounts the pavement,
this is evidence of negligence, but reasonable people may differ about the inference to
be drawn from it, so that a verdict of no negligence may not be upset. Yet something
may fall from the defendant’s window in such circumstances that only an inference of
negligence can be drawn, in which case a verdict of no negligence should be set aside.
The effect of res ipsa loquitur where the defendant gives evidence must also be
considered. Plainly, the effect of the doctrine is to shift the onus to the defendant in the
sense that the doctrine continues to operate unless the defendant calls credible evidence
which explains how the accident may have occurred without negligence, and it seems
that the operation of the rule is not displaced merely by expert evidence showing
theoretically possible ways in which the accident might have happened without the
defendant’s negligence. But beyond this the courts describe the effect in two different
ways. Sometimes they state that once the defendant has furnished evidence of the
cause of the accident consistent with his having exercised due care it becomes a
question whether, upon the whole of the evidence, the defendant was negligent or not
and the defendant will succeed unless the court is satisfied that he was negligent.'””
On other occasions they state that the defendant loses unless he proves that the
accident resulted from a specific cause which does not connote negligence on his part
but, on the contrary, points to its absence as more probable.” There is possibly no
196 McGowan v Stott (1923), in (1930) 143 LT 219n, CA. Cf Greer LJ in Langham v Governors
of Wellingborough School and Fryer (1932) 101 LJKB S1Bsavolls CAs
197 On burden of proof generally see Wilsher v Essex Area Health Authority [1988] AC 1074, HL.
198 Easson v London and North Eastern Rly Co [1944] KB 421, at 425.
199 Eg, Ballard v North British Rly Co 1923 SC (HL) 43, at 54, per Lord Dunedin; The Kite [1933]
P 154; Colvilles Ltd v Devine [1969] 2 All ER 53, HL.
200 Eg, Moore v R Fox & Sons Ltd [1956] 1 QB 596, CA.
‘
inconsistency in these judicial utterances; all may depend on the context of the cases
and the cogency of the rebutting evidence in the particular ‘tase.
A useful example of how a defendant can rebut an inference of res ipsa loquitur can be
seen in Ng Chun Pui v Lee Chuen Tat."
A coach veered across the road colliding with a bus coming in the opposite
direction. C called no evidence and the Privy Council held that the facts per se
raised an inference of negligence. But Ds testified that an unidentified car cut
across their coach causing the driver to brake suddenly and skid across the
road. Ds were found to have rebutted any inference of negligence since the
driver’s reaction to an emergency beyond his control did not constitute any
breach of duty.
(2) Civil Evidence Act 1968, s ||

Whereas res ipsa loquitur can be a seen as a partial exception to the general rule that
the claimant must prove the defendant’s negligence in that it raises a rebuttable
presumption of that negligence, section 11 of the Civil Evidence Act 1968 goes slightly
further. It in fact reverses the burden of proof in certain circumstances. Where a
defendant has previously been convicted of a criminal offence against the claimant,
and the claimant subsequently brings civil proceedings on the basis of the same facts
that led to the defendant’s conviction, section 11 makes that conviction prima facie
evidence of the defendant’s civil liability. It then falls to the defendant to convince the
judge in the civil proceedings that he should not be held liable in damages.”” This, he
is entitled to attempt to do,”” although the court must be mindful of a potential abuse
of process whereby the defendant is effectively attempting to re-litigate his criminal
conviction.°* Thus, in Grealis v Opuni*® the fact that the defendant had been in
breach of Road Traffic legislation (by driving at 38mph in a 30mph zone) did not detract
from his ability to show that the claimant was contributorily negligent (80% to blame,
in fact).
201 [1988] RTR 298, PC.

202 See Wauchope v Mordecai [1970] 1 WLR 317.
203 J v Oyston [1999] 1 WLR 694.
204 McCauley v Hope [1999] PIQR P185, CA.
205 [2003] EWCA Civ 177, [2003] 12 LS Gaz R 32.
CHAPTER |4
Causation!
Causation is relevant in all torts. Problems may arise in relation to proof that the
defendant’s wrongful conduct did in fact cause the claimant’s damage and the extent
to which the defendant ought to be held responsible for the full extent of such damage.
Causation will be dealt with in this chapter in three stages. First, we will consider
causation in fact — the matter of how (and to what standard of proof) the claimant can
establish that the harm of which he complains resulted from the defendant’s negligent
conduct. Next, we will consider cases in which a subsequent intervening cause — a
novus actus interveniens as it is commonly known — may be said to sever the chain of
causation such that the subsequent cause is treated in law as the only relevant cause
of the claimant’s injury. Finally, we shall consider the principles governing the
remoteness of damage in negligence.
A further introductory point that should be made here, however, is this: while causation
is relevant throughout tort law, it is dealt with in this part of the book for two reasons.
First, very many, though not all, of the more complex cases in causation arise in
negligence. Secondly, in negligence, unlike those torts actionable per se, causation of
actual damage must be proved before any liability will be imposed. Causation in relation
to a tort actionable per se (such as trespass) relates only to the extent of the defendant’s
liability. Beyond this, the only other matter that might usefully be mentioned at this
stage is that the principles governing remoteness of damage are individual to each
tort. They are therefore dealt with in the relevant analysis of each tort in the various
chapters of this book.
1 There is an excellent analysis of the general principles of causation in Hart and Honoré,
Causation in the Law (2nd ed, 1985) and Honoré, Responsibility and Fault (1999). See also
Wright, ‘Causation in Tort Law’ (1985) 75 Cal L Rev 1735 and Perry, ‘Risk, Harm and
Responsibility’ in Owen (ed), Philosophical Foundations of Tort Law (1995). For an account
of the hard cases centring on evidential uncertainty, and a novel thesis of how of they should
be dealt with, see Porat and Stein, Zort Liability Under Uncertainty (2001).
X
Section |. Causation in fact
(A) The ‘but-for’ test

Establishing cause and effect in law can be far from easy. Every occurrence 1s the result
of a combination of several different events. Thus an incident resulting in injury to a
claimant is the product not simply of the negligent acts and omissions of the defendant,
but also of the conditions in which those events took place. This series of events
includes both incidents both prior and subsequent to the allegedly tortious conduct
of the defendant. Consider the facts of Wright v Lodge.
D2 was driving her car at night along a dual carriageway in the fog. The road was
unlit. Her engine failed and the car came to a stop in the near side lane. A few
minutes later, as D2 was trying to restart her car, an articulated lorry being driven
at 60 mph by D1 crashed into her car virtually destroying it and seriously injuring
a passenger in the back seat. After hitting the car, the lorry careered across the
central reservation. The lorry fell onto its side blocking the road. Four vehicles
collided with it. One driver died of his injuries and another was seriously injured.
What or who caused those injuries? Had the second defendant not chosen to go out
that evening, or had it not been foggy, or had the road been lit, the accident might
never have happened. In one sense each of those factors is a cause without which the
accident would not have occurred. The law, of course, first looks to the human actors.
The unlit road and the fog are part of the complex of conditions which produced the
accident, but not causes of it in law. But not all human acts constitute the cause in law
of an event. No-one would suggest that by driving out that night, the driver of the car
(or lorry) were responsible for the three claimants’ injuries. What must be identified is
the operative legal cause or causes. And this, it must be recognised, involves
considerations of policy as much as it does any strict notion of factual cause and
effect. Lord Wright captured the point when he said, ‘[t]he choice of the real or efficient
cause from out of the whole complex of facts must be made by applying common sense
standards’. ‘Causation’, he insisted, is to be understood as the man in the street, and
not as either the scientist or the metaphysician would understand it’ In similar vein,
Laws LJ has said that ‘[t]he law has dug no deeper in the philosophical thickets of
causation than to distinguish between a causa sine qua non and a causa causans’.*
It is thus partly as a matter of convenience that the law settles upon a basic ‘but-for’
test of causation whereby the question that the court generally addresses is whether,
but for the defendant’s negligence, the accident would have occurred. If the question
receives a negative answer, and there is no evidential complication in the case, the
court will hold the defendant liable (subject to the harm in question being too remote
to permit recovery). Thus, where a man who later died of poisoning was sent home
from a casualty department without treatment after complaining of acute stomach
pains, his widow’s claim against the hospital failed even though the hospital admitted
2 [1993] 4 All ER 299, CA.

3 Yorkshire Dale Steamship Co Ltd v Minister of War Transport [1942] AC 691, at 706, HL. See
also Stapleton, ‘Law, Causation and Common Sense’ (1988) 8 OJLS 431 and Robertson, ‘The
Common Sense of Cause in Fact’ (1996-7) 75 Tex L Rev 1765.
4 Rahman v Arearose Ltd [2001] QB 351, at [32], CA.
Causation 283
negligence.° The court found that even if he had been given prompt and competent
medical treatment, he would still have died as a result of the arsenic that had poisoned
him. And in Wright v Lodge the question for the court was whether ‘but for’ the car
driver’s initial negligence the subsequent pile-up would have occurred. The Court of
Appeal held that while she could be held jointly liable with the lorry driver for the
injury that was caused to her passenger, for failing to move her car out of the way, she
was not however responsible for the injuries caused to the drivers of the other cars
involved in the second collision. Her initial negligence was not a legally operative
cause ofthose injuries. They were solely the responsibility ofthe lorry driver who had
driven so grossly carelessly that night. Not every cause ‘without which’ an accident
would not have occurred is therefore a relevant cause in law. We shall consider this
issue in more detail later in the chapter.
(B) Evidence of causation :

In Wright v Lodge there was at least no doubting what had been done (or not done), by
the two defendants. Other cases, however, are less straightforward. It is in those cases
that the standard of proof becomes a relevant consideration. In this connection, it is
well-established that it must be shown that it is more likely than not that the alleged
cause — ie, the wrongful conduct of the defendant — caused the claimant’s loss or
injury.°
Where there is some evidence that the defendant’s conduct may have contributed to
the claimant’s injury the burden remains with the claimant. It does not fall to the
defendant to rebut the possibility that his conduct may have caused the claimant’s
loss. It thus follows that when the harm in question is a disease, the claimant’s task
may be a very formidable one.’ Consider the example of a man claiming that he developed
dermatitis because of contact with substances at work caused by his employer’s failure
to supply proper protective clothing. The medical evidence may well reveal that contact
with the substances at work was just one possible cause. But it may also indicate that
several other possible causes can be identified. The issue of whether the claimant has
produced sufficient evidence of causation — ie, sufficient evidence that “but for’ the
defendant’s conduct he would not have suffered injury — is a question oflaw, not fact.
And the essence of the exercise in which the courts are engaged is once again that of
identifying the legally-operative cause, that of selecting from among the plethora of
possible causes the ‘responsible cause’.
(C) Cases of evidential uncertainty
(1) Cases involving the ‘loss of a chance’
A number of cases involving ‘the loss of a chance’ have come before the English
courts, and they have served to illustrate the importance of the standard of proof in
this context.
5 Barnett y Chelsea and Kensington Hospital Management Committee [1969] | QB 428.

as
6 Hotson v East Berkshire Area Health Authority [1987] AC 750, HL. For a range of reasons
to why this is the appropriate standard, see Porat and Stein, ch 1.
7 Though it is not only cases relating to disease which can be complex: see, eg, Allied Maples
Group Ltd v Simmons and Simmons [1995] 4 All ER 907, CA.
In Hotson v East Berkshire Area Health Authority® C fell several feet from a tree
injuring his hip. He was rushed to hospital but his injury Was not diagnosed until
five days later. The hospital admitted negligence and responsibility for the pain
C suffered during thefive days that treatment was negligently delayed. D denied
liability for the avascular necrosis C developed as a result of a failure in the
blood supply to his injured hip. The trial judge found’ that there was a 75%
chance that avascular necrosis would have developed as a result of the injury
even if promptly treated, and a 25% chance that the delay contributed to the
development of the condition. He held that the hospital were liable for loss of
that chance and awarded damages assessed at 25% of the compensation which
would have been payable had D been 100% liable for C’s condition. In the House
of Lords, it was held fatal to C’s case that the accident was more likely than not
to have caused the avascular necrosis.'°
According to the House of Lords, there was no basis for the judge’s decision to award
the claimant 25% damages to represent the lost ‘chance’ of complete recovery. If the
alleged cause could be proved or inferred to be more likely than not the actual cause of
the damage, the claimant would be entitled to full compensation. If it could not, the
claimant was entitled to nothing.'' Though a highly contentious decision,'* it has
since been followed by a majority of the Court of Appeal in Gregg v Scott'* where the
claimant attempted to sue in respect of the loss of chance of an increased life expectancy
attributable to his GP’s failure to refer him to a specialist for confirmation (or otherwise)
of his diagnosis of a non-malignant lipoma. In fact, the claimant had a malignant
lymphoma, but this was not discovered until nearly 14 years later. Medical evidence
showed that even had there been an immediate referral, the claimant would not, on the
balance of probabilities, have secured any greater life expectancy.
In a compelling dissenting speech, however, Latham LJ thought that not only could
the instant case be distinguished from Hotson, but also that the general reluctance to
award damages in medical negligence cases was to deal with matters too crudely. In his
view, damages for loss of a chance should not be ruled out in cases where the duty in
question was designed to avert precisely that: the loss of a chance. He said:
[D]ifferent considerations apply ... where injury has been occasioned which
includes as a necessary consequence the loss of a chance of some benefit. In
such a case the just answer to the question of whether or not that lost chance
should sound in damages is to consider the nature of the duty of care in
8 [1987] AC 750, HL. See also, Stapleton, ‘The Gist of Negligence, Part II’ (1988) 104 LQR
389. Cf Reece, ‘Losses of Chances in the Law’ (1996) 59 MLR 188 and Lunney, ‘What Price
a Chance?’ [1995] Legal Studies 1.
oe [1985] 3 All ER 167.
10 [1985] 3 All ER 167, at 240 and 248, HL, per Lords Mackay and Ackner.
11 See also Kay v Ayrshire and Arran Health Board (1987) 2 All ER 417, HL (C unable to prove
on the balance of probabilities that D who supplied C with an overdose of penicillin had caused
C’s deafness). Pickford v Imperial Chemical Industries plc [1998] 3 All ER 462, HL (C was
unable to prove, on the balance of probabilities, that her injury was due to an organic, not
psychogenic, cause).
12 See Stapleton, ‘The Gist of Negligence, Part II’ (1988) 104 LQR 389. Cf Reece, ‘Losses of
Chances in the Law’ (1996) 59 MLR 188 and Lunney, ‘What Price a Chance?’ [1995] Legal
Studies 1.
13 [2002] EWCA Civ 1471, [2002] 48 LS Gaz R 27.
Causation 285
question... For it is in the context of that duty that the limits to the recoverable
damages can most sensibly be defined. In the present case, the respondent’s
duty was to exercise such care as would reduce the risk of an undiagnosed
cancer spreading and becoming less amenable to treatment. The spread of the
cancer and the reduced chances of successful treatment were inextricably
intertwined, unlike the [cliamant’s] pain and the avascular necrosis in Hotson. It
follows that the appellant can only obtain a proper remedy for breach of the duty
in question if the law is prepared to recognise the lost chance as part of the
damages...'4
Notwithstanding these decisions, the Court of Appeal has held that loss of a chance is
recoverable in circumstances where the claimant’s loss depends on the hypothetical
action of a third party. In Allied Maples Group Ltd v Simmons and Simmons‘ the facts
were as follows.
Cs had been advised by Ds (solicitors) in negotiations to purchase certain

businesses from another company. At one stage, the proposed contract included
an undertaking by the vendor company that there were no outstanding liabilities
in respect of their properties. In the course of negotiations, that undertaking was
deleted. After purchasing the business, Cs found themselves liable for substantial
sums arising from leases previously held by the vendor. The original undertaking
would have protected them from such liabilities. Cs argued that Ds were negligent
in not advising them to approach the vendors and to seek to retain the original
clause in the contract. The issue was whether the vendors would have agreed to
do so.
The Court of Appeal held that the claimants must prove that it was more likely than not
that, properly advised, they would have approached the vendors. They held further
that the claimant need not prove that it was more probable than not that the latter
would have agreed. The claimants had only to establish that there was a ‘substantial
chance’ that the vendors would have provided them with the protection requested.
Evaluating the value of that lost chance was viewed as a matter of quantification of
damage. Similarly, in Spring v Guardian Assurance plc,'° an employer was found liable
for negligently giving the claimant a bad reference. The claimant recovered for his lost
chance of employment. He could not prove he would have got the job, but he could
prove that with a properly written reference he would have had a chance of getting the
job.
These cases can be distinguished from Hotson. In that case, it was argued that the boy
had lost a 25% chance of recovering had he been treated. But the probability in that
case was calculated according to expert evidence; evidence which was grounded on
statistical analysis of outcomes in previous cases. Yet the truth is that, when the boy
came to hospital, either he had enough blood vessels to save the hip, or he did not. He
could not have ‘possibly avoided the condition’ in the same way that the claimant
14. Gregg v Scott [2002] EWCA Civ 1471, at [40], CA, per Latham LJ (emphasis added). Is the
reason for the majority view, in the face of this powerful dissent, driven by the policy desire to
protect the NHS?
15 [1995] 1 WLR 1602, CA. For analysis, see Lunney, ‘What Price a Chance?’ [1995] Legal
Studies 1.
16 [1995] 2 AC 296, HL.
‘
might ‘possibly have got the job’ in Spring. Rather, after the necrosis had set in, it was
impossible to say whether he had ever had a chance of recovery (assuming the provision
of proper treatment). There was far greater uncertainty in that case.'”
In the cases just consideted, the courts did not perceive the need to depart from the
usual ‘but-for’ test that requires to be proved on the balance of probabilities. It is true
that they possessed a certain amount of evidential uncertainty, but there was enough
that was known for sure to stick to the usual rules. In Allied Maples, it was certain that
the claimant lost the chance to renegotiate the terms of the purchase agreement; in
Spring, it was certain that the claimant had lost the chance of employment. Furthermore,
in both cases there was only one possible cause of the loss of the respective chances:
the negligence of the defendant.
By contrast, other cases present far greater problems of evidential uncertainty that go
far beyond whether a chance has been lost. In such cases, as we shall see shortly, the
courts have rather unsystematically dealt with problems of evidential uncertainty.
These largely ad hoc decisions of the English courts arguably create as many problems
as they solve, for they are of uncertain scope, and they fail to supply any overarching
principle to deal with the various kinds of evidential uncertainty that have arisen (or
may arise in the future's). It is submitted that the absence of any general principle
means that future cases are likely to be dealt by a combination of recourse to ‘best-fit’
analogies and incremental extensions to the several principles that may arguably be
gleaned from the various decisions to date. With this in mind, let us consider the
responses so far developed in the English courts.'®
(2) The material contribution to harm principle

English law allows negligence claims to be brought by a claimant able to show (1) that
the defendant was in breach of a duty of care, and (2) that the breach of duty materially
contributed to his injury. The fact that the claimant cannot identify precisely the degree
to which the defendant’s wrongdoing caused his injury is not regarded as a sufficient
basis on which to refuse the claimant a remedy.
In Bonnington Castings Ltd v Wardlaw” C, who was D’s employee, contracted
pneumoconiosis after inhaling silicone dust at work. The dust came from two
sources — swing grinders and pneumatic hammers. Only the dust thrown out by
17 Cf Gregg v Scott [2002] EWCA Civ 1471, CA., where an earlier diagnosis of C’s cancer would
certainly have given him a better prospects vis-a-vis the future. See also the analysis of these
‘indeterministic’ and ‘quasi-indeterministic’ cases in Reece (1996) 59 MLR 188.
18 Porat and Stein have identified five (sometimes overlapping) kinds of evidential uncertainty:
(i) cases of wrongful damage where the wrongdoer is unidentifiable, (ii) cases of wrongful
damage where the precise injured party is unidentifiable (eg, cases in which, say, D has emitted
radiation affecting many citizens but it is not certain whether C was among their number), (iii)
cases of wrongful conduct that may or may not have resulted in damage, (iv) cases of damage
wrongfully inflicted by separate wrongdoers, and (v) cases of damage arising from both a
wrongful and a non-wrongful cause: Porat and Stein, ch 2.
19 For solutions in a range of other jurisdictions see Porat and Stein. And for a lawyer-economist’s
account of the market-share liability solution that is often recommended in relation to harm
caused by (defective) generic pharmaceutical products, see Rose-Ackerman, ‘Market-Share
Allocations in Tort Law: Strengths and Weaknesses’ [1990] Journal of Legal Studies 739.
20 [1956] AC 613, HL.
Causation 287
the swing grinders was avoidable by use of a proper extraction mechanism. In

the absence of such a mechanism, the exposure of C to this dust was regarded as
tortious. The dust generated by the hammers was not, however, tortious. The
question that arose, then, was whether it was the ‘innocent’ or the ‘tortious’
dust that had caused C’s condition. There was no evidence at all as to the
proportions of innocent and tortious dust that C had inhaled. It was therefore
impossible to apply the usual ‘but-for’ test since C could not show on the
balance of probabilities that had a proper extraction mechanism been used, he
would not have contracted the disease. The House of Lords nonetheless found
for C.
Lord Reid captured the essence of their Lordships approach when he said that ‘the
source of [the claimant’s] disease was the dust from both sources, and the real question
is whether the dust from the swing grinders materially contributed to the disease’?!
Notably, the claimant recovered damages in full despite the fact that the tortious dust
only contributed to his illness. By contrast, where succéssive employers expose the
claimant to the same harmful agent, each defendant will only be held liable for that part
of the claimant’s harm for which he is responsible.”*
(3) The material contribution to the risk of harm principle
The principle in Bonnington Castings v Wardlaw was later extended in McGhee v

National Coal Board.”
D failed to provide adequate after-work washing facilities so that employees
could not remove from themselves, at the end of the working day, the brick dust
to which they were innocently exposed during the working day. The brick dust
to which C’s skin was exposed caused him to contract dermatitis. But it was
unclear whether C would have contracted dermatitis if he had not been exposed
to the dust for the prolonged period attributable to D’s failure to provide proper
washing facilities. C, in other words, could not invoke the usual but-for test. The
House of Lords nonetheless found for C.
Crucial to the decision in McGhee was the tortious quality of the prolonged exposure
to the brick dust. The increased danger that the claimant would develop dermatitis
could be treated, according to their Lordships, as though it had made a material
contribution to the claimant’s injury. The claimant recovered full damages from the
defendant.
21 [1956] AC 613, at 621, HL. A similar approach was taken in Nicholson v Atlas Steel Foundry
and Engineering Co Ltd [1957] 1 All ER 776, HL where it was held on very similar facts that
liability could be imposed although it was impossible even to estimate in very general terms the
proportions of innocent and tortious dust. See also Hutchinson v Epsom & St Helier NHS Trust
[2002] EWHC 2362.
22 Holtby v Brigham & Cowan (Hull) Ltd [2000] PIQR Q293, CA (C was exposed to asbestos
over 40 years of employment. He suffered a cumulative disease in respect of which it was
possible to identify the contribution made by D. A reduced damages award was made to reflect
this fact. Stuart-Smith LJ (at Q298) was content that there had been no reduction of damages
in Bonnington simply because this had not been argued). See also Allen v British Rail Engineering
[2001] EWCA Civ 242, [2001] ICR 942, CA.
23 [1972] 3 All ER 1008, HL.
x
Because the claimant in Bonnington suffered the onset of pneumoconiosis — a

cumulative disease, the severity of which increases in proportién to the level of exposure
to the harmful agent — the House of Lords were at least able to say that the tortious
dust had made his illness worse, even if they could not specify the precise extent to
which this was the case. Furthermore, there was no doubt that it was silicone dust that
had caused the condition in the claimant. In McGhee, by contrast, there was no evidence
to the effect that the claimant’s disease had been caused by occupational exposure to
brick dust (whether negligent or not). The experts providing evidence in that case
would go no further than to say that unnecessary exposure to brick dust after work,
caused by the non-provision of showering facilities, materially increased the risk of
the claimant contracting dermatitis. There was, therefore, greater evidential uncertainty
in McGhee than in Bonnington. But the House of Lords, while acknowledging the
difference, was prepared to treat the two types of evidential uncertainty as if they were
the same. Lord Salmon said:
In the circumstances of the present case, the possibility of a distinction existing
between (a) having materially increased the risk of contracting the disease, and
(b) having materially contributed to causing the disease may no doubt be a
fruitful source of interesting academic discussions between students of
philosophy. Such a distinction is, however, far too unreal to be recognised by
the common law.”
(4) The material contribution to the risk of harm among several wrongdoers principle?
In McGhee, the medical evidence confirmed that the claimant’s dermatitis could have
begun with a single abrasion, either non-tortiously (while he was working), or tortiously
(after work, while he was cycling home with brick dust still on his body because of the
defendant’s failure to provide showering facilities). It was conceivable, too, that the
disease may have had a non-occupational origin. What at least was clear, however,
was that there was only one wrongdoer. In the case of Fairchild v Glenhaven Funeral
Services Ltd,” by contrast, there was even greater evidential uncertainty.
C contracted mesothelioma — an invariably fatal form of cancer — by exposure to
asbestos during his earlier working life. One complication in the case was the
fact that C had worked for several employers, all of whom had negligently exposed
him to asbestos. A second complication arose from the fact that medical science
does not fully understand the aetiology of mesothelioma so that it was impossible
to say when he had first contracted the condition, or at least its origins. This
meant that the responsible employer could not be identified. Thirdly, because
mesothelioma is not a cumulative disease, it was not a case in which the material
contribution to harm principle could be applied. Finally, some of C’s former
employers had ceased to trade so C was limited in the number of former employers
he could attempt to sue.
24 [1972] 3 All ER 1008, at 1018, HL.

25 [2002] UKHL 22, [2002] 3 All ER 305.
Causation 289
The House of Lords reasserted the principle espoused in McGhee and found for the
claimant.” But the case, it is suggested here, can be distinguished from McGhee in
that, if the condition had already been triggered by a period of prior employment, it is
entirely feasible that the defendants did not contribute even to the risk of harm. Further
exposure to asbestos would have been more like stabbing a corpse than stabbing the
merely wounded.”’ Similarly, if some of the relevant employers had not been in breach
of a duty in exposing the claimant to asbestos, but the condition had been triggered
while in the employment of one such employer, the defendant would again find himself
liable despite never having even contributed to the risk of the claimant suffering harm,
let alone contributing to the harm itself.
These two hypothetical scenarios hint at the absence of any general principle in
Fairchild, as well as the rather ad hoc, balance-of-justice flavour of the decision. Both
these factors combine to make the potential impact of the case of uncertain scope.
Itis clear from the speech of Lord Nicholls that their Lordships’ decision was ultimately
rooted in policy rather than established legal principle. In explicitly conceding a
departure from established principle, he said:
The unattractive consequence, that one of the [potential wrongdoers] will be
held liable for an injury he did not in fact inflict, is outweighed by the even less
attractive alternative, that the innocent [claimant] should receive no recompense
even though one of the [potential defendants] injured him. It is this balance
(‘outweighed by’) which justifies a relaxation in the standard of causation
required. Insistence on the normal standard of causation would work an
injustice.”®
While his Lordship was prepared to concede that, in cases such as Fairchild, ‘the
court is applying a different and less stringent test’, he did not explain precisely what
that test was. In fact, the only judges to offer any kind of rule-based explanation of the
decision were Lords Bingham, Hoffmann and Rodger. But their three explanations
differ significantly from each other.
For Lord Bingham, the claimant’s case succeeded because it satisfied the following
six-part test:
(1) C was employed at different times and for differing periods by both A and B,
and (2) Aand B were both subject to a duty to take reasonable care or to take all
practicable measures to prevent C inhaling asbestos dust because of the known
risk that asbestos dust (if inhaled) might cause a mesothelioma, and (3) both A
and B were in breach of that duty to C during the periods of C’s employment by
each of them with the result that during both periods C inhaled excessive quantities
of asbestos dust, and (4) C is found to be suffering from a mesothelioma, and (5)
26 Lords Hoffmann, Hutton and Rodger saw the case as an application of the principle in McGhee
notwithstanding the additional evidential uncertainty associated with the fact that there were
multiple wrongdoers in Fairchild: [2002] UKHL 22, [2002] 3 All ER 305, at [74], [116] and
53):
Pell en ener recognised the distinction: ‘In McGhee’s case ... unlike the present appeals, the
case was not complicated by the existence of additional or alternative wrongdoers’ [2002]
UKHL 22, [2002] 3 All ER 305, at [21].
28 [2002] UKHL 22, [2002] 3 All ER 305, at [39].
any cause of C’s mesothelioma other than the inhalation of asbestos dust at
work can be effectively discounted, but (6) C cannot (because of the current
limits of human science) prove, on the balance of probabilities, that his
mesothelioma was the result of his inhaling asbestos dust during his employment
by A or during his employment by B or during his employment by A and B taken
together.”
Lord Rodger offered a far more general test, albeit implicitly, in his slightly lengthy
explanation of the principle applied in McGhee (as he understood it). He said.
First, the principle is designed to resolve the difficulty that arises where it is
inherently impossible for the claimant to prove exactly how his injury was caused...
Secondly, part of the underlying rationale of the principle is that the defendant’s
wrongdoing has materially increased the risk that the claimant will suffer injury.
It is therefore essential not just that the defendant's conduct created a material
risk of injury to a class of persons but that it actually created a material risk of
injury to the claimant himself. Thirdly, it follows that the defendant’s conduct
must have been capable of causing the claimant’s injury. Fourthly, the claimant
must prove that his injury was caused by the eventuation of the kind of risk
created by the defendant’s wrongdoing... [As such] the principle does not apply
where the claimant has merely proved that his injury could have been caused by
a number of different events, only one of which is the eventuation of the risk
created by the defendant’s wrongful act. Wilsher’s case*° is an example. Fifthly,
this will usually mean that the claimant must prove that his injury was caused, if
not by exactly the same agency as was involved in the defendant’s wrongdoing,
at least by an agency that operated in substantially the same way... Sixthly, the
principle applies where the other possible source of the claimant’s injury is a
similar wrongful act or omission of another person, but it can also apply where,
as in McGhee’s case, the other possible source of the injury is a similar, but
lawful act or omission of the same defendant.*!
Different again was Lord Hoffmann’s reasoning. In his view, the critical factors justifying
the imposition of liability were as follows:
First, [there must be] ... a duty specifically intended to protect employees against
being unnecessarily exposed to the risk of (among other things) a particular
disease. Secondly, the duty is one intended to create a civil right to compensation
for injury relevantly connected with its breach. Thirdly, it is established that the
greater the exposure to asbestos, the greater the risk of contracting that disease.
Fourthly, except in the case in which there has been only one significant exposure
to asbestos, medical science cannot prove whose asbestos is more likely than
not to have produced the cell mutation which caused the disease. Fifthly, the
employee has contracted the disease against which he should have been
protected.*”
29 [2002] UKHL 22, [2002] 3 All ER 305, at [2].

30 See below.
31 [2002] UKHL 22, [2002] 3 All ER 305, at [170] (emphasis added).
32 [2002] UKHL 22, [2002] 3 All ER 305, at [61].
Causation 29\|
There are notable differences between each of these approaches.*? On the one hand,
Lord Bingham’s speech is couched in very narrow terms. It emphasises both the
necessity of the claimant having been employed by successive employers both of
whom exposed him to asbestos dust, and the requirement that the relevant form of
harm should be mesothelioma. In effect, his reasoning was designed to resolve the
dispute in Fairchild, but did not support any general principle of law. Lord Hoffmann’s
approach was almost as narrow, being applicable only to employees exposed to
asbestos. Only Lord Rodger seemed prepared to propound a relatively broad test. But,
if one adopts the usual ex post facto approach to causation in interpreting the italicised
sentence in the passage extracted above,™ it appears that there is a logical flaw in his
reasoning. If the defendant must have ‘created a material risk of injury to the claimant
himself’, how can this ever be shown definitively in a case involving anyone other
than the first employer in the chain? If we suppose that the claimant’s condition was
triggered at the first place of employment — which is entirely feasible — how can any
subsequent employer have exposed him to a material risk of mesothelioma. So far as
the condition is presently understood, all that would have been necessary to occur for
him to have contracted the disease, would have already occurred.
Notwithstanding these differences in approach, the Court of Appeal took the

opportunity to interpret the gist of the case not long after Fairchild was decided.
Favouring the more limited approaches of Lords Bingham and Hoffmann, Simon
Brown LJ said:
As Fairchild makes plain, however, this more relaxed approach to the proof of
causation — ‘treat[ing] a material increase in risk as sufficient to satisfy the
causal requirements for liability’ (per Lord Hoffman at paragraph 67) — will apply
only in the most narrowly defined circumstances (see Lord Bingham at paragraph
2 and Lord Hoffman at paragraph 61). There is nothing in the speeches to suggest
amore relaxed approach generally to proof of causation nor, to my mind, to invite
any fresh attempt to advance the Hotson argument.*°
A final difficulty in this context arises from the fact that damages were recoverable in
full in Fairchild whereas in Holtby (considered above) it was held that the damages
should be reduced in circumstances where a defendant was only partly responsible for
the claimant’s (cumulative) disease. In both Fairchild and Holtby harm arose out of
multiple employers exposing the claimant to asbestos, but in Fairchild, where the
evidential uncertainty was greater than that in Ho/tby, the House of Lords allowed for
full recovery from a single employer. Does this then mean that, arguably perversely,
the less the claimant can show in cases of industrial exposure to asbestos, the better
off he will be in terms of damages?
33 Curiously, Lord Nicholls agreed with all his brethren: [2002] UKHL 22, [2002] 3 All ER 305,
at [36].
34 ee er facto interpretation would also appear warranted given the past tense in which his
dictum is couched: ie, since the language is framed in terms of what D has done, rather than
what D may do, it is appropriate to question what may have taken place in fact, rather than
what might occur in theory). ah fests
35 Gregg v Scott [2002] EWCA Civ 1471, at [100], [2002] 48 LS Gaz R 27. But is this simply an
endeavour to protect the NHS given that cases of evidential uncertainty abound in the context
of medical negligence?
.
(5) The one among several causative agents principle

Whether Fairchild will be interpreted in the future as having given rise to any principle
of law, beyond (or even akin to) that suggested here, remains to be seen. What also
remains to be resolved ts where the principle in McGhee stops, and the rule in Wilsher
v Essex Area Health Authority* begins.
In Wilsher, junior doctors negligently administered excess oxygen to C, a
premature infant. C later developed retrolental fibroplasia (RLF) a condition that
ultimately left him completely blind. Medical practice required careful monitoring
of infants receiving oxygen because of evidence that excess oxygen might cause
RLF in premature babies. But there were said to be five other possible causes of
RLF in very sick, very premature babies. The trial judge ruled that C, having
proved a breach of duty arising from a failure to protect him from the risk of the
very sort of damage which in fact materialised, was able to shift the onus of
proof to the defendants to prove that some other cause actually resulted in that
damage.
The trial judge was severely rebuked by the House of Lords for his endeavour to shift
the onus of proof. Nor could their Lordships accept the argument of the majority in the
Court of Appeal*’ that the principle in McGhee could extend to the facts of Wilsher.
The claimants had not established that it was more probable than not that excess
oxygen rather than any of the other possible causes caused the claimant to succumb
to RLF.** Indeed, although the trial judge largely overlooked it, there was a good deal
of conflicting scientific evidence in the case. Their Lordships made it clear that in no
circumstances did the burden of proof shift to the defendant and ordered a retrial on
the issue of causation. Lord Bridge warned against the dangers of allowing sympathy
for the claimant to overrule the established principles of proof.
[ W Jhether 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.*”
The question that naturally arises, and in respect of which there remains no convincing
answer, is why a case like Fairchild (in which there is a single agent, but several
wrongdoers that may have caused the claimant’s harm) should be treated differently
from a case like Wilsher (in which there is a single wrongdoer, but several agents that
may have caused the claimant’s harm). In both cases, it is entirely conceivable that
there is a lower than 50% chance that an isolated defendant/agent caused harm to the
claimant.”
36 [1988] AC 1074, HL.

37 [1987] QB 730, CA. But see, too, the dissenting view of Sir Nicholas Browne-Wilkinson V-C.
38 Confirming the decision in Bonnington Castings Lid v Wardlaw [1956] AC 613, HL.
39 [1988] AC 1074, at 1092, HL.
40 This assumes roughly equal periods of employment at employers A, B and C in the multiple
wrongdoer scenario, and a roughly equal chance of causing the harm in the multiple agents
scenario.
Causation 293
(D) Concurrent tortious causes

Various types of act which may be described as ‘concurrent’ must be looked at
separately. If two tortious acts result in damage, and either one would have produced
the same damage — as, eg, when two fires are started and merge to burn out a building
— then the perpetrator of each act is responsible for the whole damage, because each
act is a substantial factor in producing the result. Similarly, if two independent acts
simultaneously bring about the same damage — as where two ships negligently collide,
injuring a third party*! it— those responsible for the respective negligent acts are each
fully liable.
If the defendant commits a tort (or an act which will become a tort if non-remote
damage ensues) and, before his act spends its force, some later tortious act combines
with it to produce a particular result which would not have been produced without the
operation of the second act, then the defendant will be liable if, and only if, it is found
by applying the rules already stated, that his act caused the damage.” In Hale v Hants
and Dorset Motor Services Ltd, the facts were as follows.”
A corporation, negligently allowed tree branches to overhang a highway. C was

a passenger in a bus negligently driven by a servant of D (a bus company) in
such a way that a branch struck the window of the bus with the result that he
was blinded by broken glass.
It was held that the corporation and the bus company were each liable in full to C. Each
was negligent in not foreseeing that this harm was likely to result in combination with
the negligence of the other.
Where an act takes place almost contemporaneously with the first negligent act, it
seems that the rules on concurrent causes rather than the rules on intervening
subsequent causes applies. In Fitzgerald v Lane, the claimant was crossing a pelican
crossing when he was hit by a car driven by D1. The collision threw him onto the
bonnet of the car and back onto the road where he was immediately struck by a car
driven by D2. He suffered severe injuries including damage to his neck resulting in
partial tetraplegia. Whether it was contact with the car driven by D1 or D2 which
caused the injury to the neck could not be established. Both were held jointly liable,
and the claimant was held contributorily negligent.
41 The Koursk [1924] P 140, CA. Should the first D remain liable if the other ‘cause’ is the non-
tortious act of another person, or a natural cause, or the act of C himself? Cf Cummings (or
McWilliams) v Sir William Arrol & Co Ltd [1962] 1 All ER 623.
42 Rouse v Squires [1973] QB 889, at 898, CA, per Cairns LJ: ‘If a driver so negligently manages
his vehicle as to cause it to obstruct the highway and constitute a danger to other road users,
including those who are driving too fast or not keeping a proper lookout, but not those who
deliberately or recklessly drive into the obstruction, then the first driver’s negligence may be
held to have contributed to the causation of an accident of which the immediate cause was the
negligent driving of the vehicle which because of the presence of the obstruction collides with
it or with some other vehicle or some other person’.
43 [1947] 2 All ER 628, CA; Robinson v Post Office [1974] 2 All ER 737.
44 [1989] AC 328, HL.
Section 2. Relationship between causation and breach of duty

In the overwhelming majority of cases, the evidential difficulties centre solely on the
question ‘what would have happened if?’. But occasionally, the question that needs
to be addressed is ‘what*should have happened?’. Bolitho v City and Hackney Health
Authority® offers an example.
A doctor negligently failed to respond to a nurse’s request to attend a sick child.
A little later the child stopped breathing and suffered a cardiac arrest. It was,
however, disputed among the expert witnesses at the trial whether, had the
doctor attended, good medical practice would have suggested that she intubate
the child (to assist him to breathe).
The House of Lords held that to establish that the negligent failure to attend the child
caused his cardiac arrest, C needed to prove, not just that the doctor did not intubate
the child, but that in not doing so she was negligent. They needed to establish, in
other words, that the negligent failure to attend the child resulted in his being deprived
of a treatment that he should have received and which would have prevented his
cardiac arrest. .
Section 3. New intervening causes: causation in law

In many instances, a contingency may arise subsequent to the defendant’s negligent
conduct, which results in further injury to the claimant. For example, the claimant may
initially suffer minor injuries at the hands of the defendant, but later die as a result of
bungled medical treatment. In such a case, the defendant is not liable for all the ulterior
harm. In marking off the limits of his liability it will not ordinarily matter whether we use
the language of risk or cause. The man run down by the defendant’s negligence
cannot recover for the extra damage sustained when a tile falls offa roof on to his head
while he is on his way to hospital. This is because the defendant’s conduct did not
create a special risk of harm from that kind of contingency, or because the falling tile
was a coincidence. The original negligent driving and the subsequent fall of the tile
were independent acts; the conjunction of the two events was abnormal and not
contrived by human agency. The falling of the tile broke the chain of /egal causation.
It constituted a what is called a novus actus interveniens — ie, a new intervening act
sufficient to relieve the defendant of further liability for the consequences of his own
conduct.
A novus actus interveniens may take one of three forms.
(1) The intervening event may be an act of nature* (or act of God, as it is sometimes
described).*” For example, imagine a child is injured while playing football at school,
and, as she is wheeled across the playground to the waiting ambulance she is
struck by lightning. The injury inflicted by the lightning is not in any sense a
consequence of her sports injury.
45 [1998] AC 232, HL.

46 Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292, HL.
47 Nichols v Marsland (1876) 2 Ex D 1.
Causation 295
It is important to note, however, that for an act of nature to constitute a novus

actus, it must be something overwhelming, and must be unpredictable and in no
sense linked to D’s negligence.
(2) C’s own conduct may constitute a novus actus.
(3) The act of a third party may break the chain of causation.*®
Before considering examples of each type of novus actus interveniens, two general
points may be made. First, it should be noted that the more foreseeable the intervening
cause, the more likely that the court will not treat it as breaking the chain of causation.
Reeves v Metropolitan Police Comr* illustrates the point.
C’s husband hanged himself in his prison cell. There was no evidence that he
had been diagnosed as suffering from any mental disorder but he had been
identified as a “suicide risk’. The Court of Appeal held that his suicide did not
constitute a novus actus interveniens. The evidence available to Ds of his
emotionally disturbed state and suicidal tendencies imposed on them a duty to
protect the deceased, effectively from himself. Suicide was a kind of harm which
they should have contemplated and guarded against, and they were thus liable
when it occurred.
Similarly, damage incurred in rescuing a person imperilled by the act of the defendant
does not break the chain of causation where such rescue could have been anticipated.’
And where the injuries negligently inflicted by the defendant on a claimant’s husband
induced a state of acute anxiety neurosis which persisted for 18 months and caused
him ultimately to take his own life, the defendant was held liable to the claimant.*! In
each of these cases the ulterior, harm was within the foreseeable risk.
Secondly, in respect of intervening causes in the second and third categories, it is

generally the case that the smaller the degree to which the conduct in question is a
voluntary act of folly, the less likely will be the courts to treat that conduct as a novus
actus. In Scott v Shepherd™ it was held to be no defence to the man who first threw a
firework into the crowd that the claimant would have suffered no loss had not a third
party picked it up and thrown it again after the defendant had thrown it, because the
third party, in throwing it, was acting for his self-preservation. In another case, the
claimant’s ship lost her compass and charts when the defendant’s ship negligently
collided with it. The claimant’s ship consequently ran aground while trying to make for
port. The defendant was liable for this further harm.” In both cases, the subsequent
48 There is an argument that a natural event should not be treated as a novus actus. Acts of C and
acts of third parties have in common the fact that they tend to involve reactions to (or
conduct conditioned by) tortious events. Often they involve acts which are designed in some
way to ‘deal with’ D’s initial tortious act. Such acts are therefore intimately related to that
initial tortuous conduct so that no question of factual causation arises. The only question is one
of whether the law is prepared to recognise in law the fact that D’s initial tort was also a cause
of the subsequent event. Natural intervening events cannot, of course, be characterised in this
way.
49 [1998] 2 All ER 381, CA.
50 Baker vy TE Hopkins & Sons Ltd [1959] 3 All ER 225, CA.
51 Pigney v Pointers Transport Services Lid [1957] 2 All ER 807. See also Kirkham v Chief
Constable of Greater Manchester Police [1990] 2 QB 283, CA.
52 (1773) 2 Wm BI 892.
53 The City of Lincoln (1889) 15 PD 15, CA.
.
events were not sufficiently abnormal responses to the situation created by the
defendant’s negligence. ts
With these two general points in mind, let us now consider examples of each type of
novus actus interveniens.
(A) Intervening natural causes

In Carslogie Steamship Co v Royal Norwegian Government™ D negligently
caused C’s ship to be damaged and require repairs. The ship was out of
commission for some time, but it later set sail again for the USA. En route, it
suffered storm damage that required further repairs. C argued that the storm
repairs would not have been necessary had the ship left for the USA on time and
that, since the delay was due to D’s initial negligence, D must be held liable in
respect of the cost of the further repairs.
It was held that the chain of causation was broken by the storm for the severity of the
storm was so unforeseeable that it would be improper to regard it as any way connected
to D’s negligence.
In Jobling v Associated Dairies Ltd’ C was partially incapacitated by an accident
at work. Later, but before the trial, he suffered the onset of a supervening illness
of a kind causing the same kind of incapacitation. The House of Lords held that
D was only responsible for C’s loss of earnings up until the time he succumbed
to illness.
The House of Lords stressed the fact that the object of damages in tort is to put the
claimant as far as possible in the position which he would have been in ‘but for’ the
tort. Claimants are not, they said, supposed to profit (hence the erstwhile principle of
common law that a widow’s damages for loss of her husband would be calculated
taking into account her prospects of remarriage). The claimant in Jobling would
eventually have been unable to work even if the tort had never happened. Disease,
according to the House of Lords, is a vicissitude of life and one in respect of which, on
policy grounds, their Lordships were unprepared to make the defendants responsible.
(B) Claimant’s own conduct
There is no doubt that the claimant’s own conduct can constitute a novus actus in
appropriate circumstances.
In McKew v Holland & Hannens & Cubitts (Scotland) Ltd’ D’s negligence
caused injury to C’s leg. C later broke his ankle attempting, while still suffering
from the effects of the first injury, to descend a steep staircase unaided. C’s
imprudent and unreasonable conduct constituted a fresh and separate cause of
the second injury. D was only liable for the initial injury.
SAS [MOS2PAC 2925 Ge:

55) [1982]/A€ 794, MIL.
516) [1969] 37AUER: 16215 HL.
Causation 297
Compare this with the case of Wieland v Cyril Lord Carpets Ltd*’ where the claimant
suffered neck injuries and had to wear a collar in consequence of the defendants’
negligence. She later fell downstairs because, as a result of the initial injury and the
neck collar, she could not use her bifocal lenses with her usual skill. Her further injury
was found to be attributable to the defendants’ original negligence. Unlike the rash Mr
McKew, Mrs Wieland suffered a further injury triggered by her original disability.
There was no unreasonable conduct on her part that could be taken to constitute a
novus actus interveniens breaking the chain of causation.
Defining unreasonable conduct will not always be easy or uncontentious as Emeh v
Kensington, Chelsea and Westminster Area Health Authority®’ amply illustrates.
C conceived a child after an operation to sterilise her carried out by D. D admitted
negligence but denied liability for the cost of the upkeep of the child. That loss
to C, he contended, resulted from her ‘unreasonable’ decision not to seek an
abortion, and the judge at first instance agreed with him. The Court of Appeal,
however, held that, since by the time C realised she was pregnant she was well
into the second trimester of pregnancy, it was not unreasonable for her to refuse
the trauma and risk of a late abortion.
Slade LJ made it clear that, save in exceptional circumstances, he would never regard it
as unreasonable to refuse abortion, even earlier in pregnancy when the procedure is
relatively simple and free of risk.°’ Waller LJ, however, was far less clear about this.
The divergence of views exemplify the fact that it will frequently be difficult to classify
acts or omissions on the part of the claimant as unreasonable where a moral dimension
is present.°!
A final point worth noting is that, in just the same we saw” that professional status will
cause the standard of care to be raised in relation to professional persons who cause
harm to others, so too will higher expectations be placed upon them in respect of the
protection of their own interests in this context. Thus, a former solicitor’s failure to take
heed of limitation periods of which he was fully aware constituted a novus actus in an
action he was attempting to bring against a firm of solicitors acting on his behalf.*°
(C) Acts of third parties

The relevant principles in this category are comparatively flexible and their application
is sometimes difficult. The central issue in any case is whether the defendant’s
negligence was responsible in law for the damage that occurred, even though that
damage required the combination of the defendant’s negligent act with a subsequent
act by a third party. The difficulties in this context stem from the different ways in
57 [1969] 3 All ER 1006.

58 [1985] QB 1012, CA.
59 [1985] QB 1012, at 1053. See also McFarlane v Tayside Health Board [1999] 3 WLR 1301,
HL
60 [1985] QB 1012, at 1048. ;
61. On the related issue of the duty to minimise damages by accepting medical treatment, see
Selvanayagam v University of the West Indies [1983] 1 All ER 824, PC.
62> Chale:
63 Kaberry v Freethcartwright (A Firm) [2002] EWCA Civ 1966, [2003] All ER (D) 104 (Jan).
x
which the two general principles outlined earlier can be combined. Thus, while it can
be asserted with some confidence that an unforeseeable and Unreasonable premeditated
act by a third party will almost certainly sever the chain of causation (and vice versa),
it is more difficult to, classify unforeseeable reasonable acts, and foreseeable
unreasonable acts, as new intervening causes. Furthermore, it is not necessarily a
straightforward matter to determine the reasonableness (or otherwise) of the third
party’s behaviour.
In The Oropesa,™ a collision at sea was caused by D’s negligence. In the ensuing
circumstances, the captain of the damaged vessel ordered a life-boat to be put to
sea so that salvage arrangements could be made with D. In traversing the waters
between the two ships, the lifeboat capsized and several crew members were
lost, including C’s son.
While the death of C’s son was caused by a combination of the defendant’s initial
negligence with the captain’s subsequent decision to board the life-boat in rough
seas, it was nonetheless held that his decision was reasonable in the circumstances.™
But even where conduct of the third party is necessitated by the initial negligence of
the defendant, it is still possible that the subsequent act will constitute a novus actus.
Issues of remoteness and policy may also complicate matters in this context. In Lamb
v Camden London Borough Council,” for example, the defendants carelessly broke a
water main outside the claimant’s Hampstead house. The escaping water undermined
the foundations and the house subsided so that until repaired it was uninhabitable.
Squatters moved into the unoccupied house, and by the time they were evicted they
had done damage totalling £30,000. The only issue was whether that damage was too
remote. Lord Denning MR held that it was a question of policy whether the damage
was too remote. Considering that the claimant could readily have insured against the
risk and could have taken more steps to guard against squatting, and that the defendants
had no right to enter the premises, policy dictated that the damage be held too remote
even though it was foreseeable.® Oliver LJ wrestled with the contention that the ratio
of Lord Reid’s speech in Home Office v Dorset Yacht Co Ltd® was that the subsequent
act was too remote unless that act was likely to happen. He found Lord Reid’s statement
to be obiter and that the subsequent act was neither likely, nor even reasonably
foreseeable. He added that he did not dissent from the view of Lord Denning that, on
grounds of policy, foreseeable acts could still be too remote. Watkins LJ held that
words such as ‘possibility’ or ‘unlikely’ did not assist him. Even though the act was
reasonably foreseeable it was too remote.’’ He reached this conclusion by taking ‘a
robust and sensible approach’. His conclusion was:
64 [1943] P 32.
65 See also Knightley v Johns [1982] 1 All ER 851, CA, where D negligently overturned his car in
a road tunnel and C, a police cyclist, riding the wrong way in the tunnel was then injured in a
collision with another car, a police inspector having carelessly failed to order the closure of the
tunnel. C’s injuries were held to be too remote because they were not reasonably foreseeable.
66 Rahman v Arearose Ltd [2001] QB 351, CA (D’s seriously negligent medical treatment caused
C’s blindness and his psychiatric response thereto, after an initial injury to C’s eye had been
caused by two violent youths). See also, Webb v Barclays Bank plc and Portsmouth Hospitals
NHS Trust [2001] EWCA Civ 1141, [2001] All ER (D) 202 (Jul).
67 [1981] QB 625, CA.
68 [1981] QB 625, at 637, CA.
69 [1970] AC 1004, at 1030, HL.
70 [1981] QB 625, at 644, CA. See Rahman v Arearose Ltd [2001] QB 351, CA.
Causation 299
I have the instinctive feeling that squatters’ damage is too remote. I could not
possibly come to any other conclusions, although on the primary facts I, too,
would regard the damage or something like it as reasonably foreseeable in these
times.”!
A final complication arises where the third party’s act is said to aggravate a form of
harm or loss occasioned by the defendant in circumstances where, but for that initial
harm or loss, the subsequent damage associated with the third party would never have
occurred. In Baker v Willoughby” the defendants admitted negligently injuring the
claimant in the leg. After that injury, the claimant was forced to take a new job. While
working at the new job, but before the action came to trial, burglars shot the claimant
in the same leg and it had to be amputated. The House of Lords held that the defendants
remained liable for the loss of amenity occasioned by the injury inflicted by them. The
fortuitous event of the second tort did not relieve them of liability. Lord Reid explained
that a claimant:
is not compensated for the physical injury: he is compensated for the loss which
he suffers as a result of the injury. His loss is not in having a stiff leg: it is his
inability to lead a full life, his inability to enjoy those amenities which depend on
freedom of movement... In this case the second injury did not diminish any of
these. So why should it be regarded as having obliterated or superseded them?”
Though the logic in this reasoning is easy to appreciate, what is less clear is how the
approach to the occurrence of subsequent harm in this case can be reconciled with
the approach taken in Jobling (considered earlier). Why the onset of a natural disease
should be regarded as having ‘obliterated or superseded’ the effects of the defendant’s
negligence in Jobling while the gun-shot in Baker v Willoughby should be treated as
having had no such effect is difficult to understand. The only explanation hinted at in
Jobling — the later of the two cases — is that the onset of natural disease can be
regarded as a ‘vicissitude of life’ severing the chain of causation, whereas a subsequent
tortious act is not such a vicissitude. But the Court of Appeal has since added to the
confusion by stating that subsequent tortious acts are immediately to be disregarded
in assessing the damage for which the first tortfeasor will be held responsible.”
Section 4. Remoteness of damage

Rules which make the wrongdoer liable for all the consequences of his wrongful conduct
are exceptional and need to be justified by some special policy. Normally the law limits
liability to those consequences which are attributable to that which made the act
wrongful.”
There are torts — deceit is one example — where imposing liability for all the damage
factually related to the relevant wrongdoing is considered justifiable. Such extensive
71 [1981] QB 625, at 647, CA.

72 [1970] AC 467, HL.
73 [1970] AC 467, at 492, HL.
74 Heil v Rankin [2001] PIQR Q16, CA.
75 Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191, at 213, HL, per
Lord Hoffman.
‘\
liability is exceptional. In negligence,”’ by contrast, certain consequences of the

defendant’s tortious conduct will be considered too remoté from his wrongdoing to
impose on him responsibility for those consequences. It is simply considered to be
unjust to make the defendant answerable for events far removed from his original
breach of duty. As such, we must now consider the content of such rules on remoteness
of damage.
(A) The Wagon Mound

The decision in The Wagon Mound (No 1)” is the leading modern authority on the
rules governing the remoteness of damage in negligence.
Ds carelessly discharged oil from their ship into Sydney Harbour. About six
hours later the ship set sail and left the harbour. The oil was carried by wind and
tide beneath Cs’ wharf, 200 yards away. After being advised that they could
safely do so, Cs continued welding operations on their wharf. Some 55 to 60
hours after the original discharge of the oil, molten metal from the welding
operations on the wharf, when fanned by the wind, set fire to some cotton waste
or rag floating in the oil beneath the wharf. The waste set fire to the o11 whereupon
the flames quickly developed into a conflagration which severely damaged the
wharf. The oil also congealed upon the slipways adjoining the wharf and interfered
with Cs’ use of the slips. Ds neither knew nor ought to have known that the oil
was capable of being set alight when spread on water.”
The Judicial Committee of the Privy Council held that the defendants were not liable in
negligence because they could not reasonably have foreseen that the claimants’ wharf
would be damaged by fire when they carelessly discharged the oil into the harbour. It
was, in short, harm of an unforeseeable kind.
(B) Foreseeable type of harm

The Wagon Mound established that if the damage which materialises is damage by fire,
then, for the defendant to be liable, he must have been able to anticipate damage by
fire. It was insufficient that he could anticipate damage by fouling the wharf’s slipways.
An unbroken succession of subsequent cases at all levels — House of Lords,” Privy
76 As is also the case in (inter alia) nuisance, Rylands v Fletcher, and breach of statutory duty.
77 Overseas Tankship (UK) Ltd v Morts and Dock & Engineering Co Ltd [1961] AC 388, PC.
78 Some of these facts can only be gleaned from the reports in the courts below: [1958] 1 Lloyd’s
Rep 575, [1959] 2 Lloyd’s Rep 697. In subsequent proceedings arising out of the same
discharge of oil the owners of other damaged ships recovered damages in negligence on the
ground that the damage was foreseeable: Overseas Tankship (UK) Ltd v Miller Steamship Co
Pty, The Wagon Mound (No 2) [1967] 1 AC 617, PC. Cs in The Wagon Mound dared not
advance the evidence suggesting it was foreseeable the oil would ignite on water for fear they
would be held contributorily negligent in continuing welding operations. At that time,
contributory negligence was a complete defence in New South Wales.
79 Hughes v Lord Advocate, [1963] AC 837, HL; Donaghey v Boulton and Paul Ltd [1968] AC
1, at 26, HL, per Lord Reid; Banque Financiére de la Cité SA v Westgate Insurance Co Ltd
[1991] 2 AC 249, HL.
Causation 301
Council,*° Court of Appeal*! and at first instance®? — has followed the principle that the
harm suffered must be of a kind, type or class that was foreseeable as a result of the
defendant’s negligence.
Bradford v Robinson Rentals Ltd is a typical illustration of the working of this principle.*
Ds carelessly exposed their employee, C, a van driver, to extreme cold in the
course of his duties. In consequence, C suffered frost-bite. The court held that
Ds had exposed C to severe cold and fatigue likely to cause a common cold,
pneumonia or chilblains. It held further that since frost-bite was of the same type
and kind as these forms of harm, Ds could be held liable.
Where a wife sustained foreseeable psychological damage, the fact that some of it
resulted from the effect of her husband’s changed behaviour (he also was injured in
the accident) did not prevent her from claiming: the damage was of a foreseeable type
and ‘the fact that it arises or is continued by reason of an unusual complex of events
does not avail the defendant’.** :
Notwithstanding the apparent simplicity of the test for the remoteness of damage,
there remain areas of uncertainty in defining ‘kind of damage’, as Tremain v Pike
illustrates.*°
C, a herdsman, while working for Ds contracted a rare condition, Weil’s disease.
The disease was caused by coming into contact with rats’ urine. Weil’s disease,
per se, was not foreseeable, even though other diseases associated with rats
were foreseeable. Ds were held not liable.
Payne J stated:
[Weil’s disease] was entirely different in kind from the effect of a rat bite, or food
poisoning by the consumption of food or drink contaminated by rats. I do not
accept that all illness or infection arising from an infestation of rats should be
regarded as of the same kind.*°
(C) The means by which the harm was caused

Since The Wagon Mound, the courts have frequently reiterated that the defendant may
be liable even though he could not envisage that precise set of circumstances which
caused harm of the foreseeable kind.
80 The Wagon Mound (No 2) [1967] 1 AC 617, PC. '

81 Stewart v West African Terminals Ltd [1964] 2 Lloyd’s Rep 371, at 375, CA, per Lord Denning
MR; Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518, at 529.
82 Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006, at 1009, per Eveleigh J; Tremain v Pike
[1969] 3 All ER 1303, at 1308, per Payne J.
83 [1967] 1 All ER 267.
84 Malcolm v Broadhurst [1970] 3 All ER 508, at 511, per Geoffrey Lane J. Brice v Brown
[1984] 1 All ER 997 (shock foreseeable: therefore D liable for C’s acute mental illness. No
need to foresee exact mental process leading to the ultimate result).
85 [1969] 3 All ER 1303.
86 [1969] 3 All ER 1303, at 1308.
In Hughes v Lord Advocate,*’ C, aged 8, and another boy aged 10, were playing
on an Edinburgh highway. Near the edge of the roadway was a manhole some
nine feet deep, over which a shelter tent had been erected. Post Office workmen
working on underground cables left the area after dark, placed red paraffin
warning lamps there and took the ladder from the manhole and laid it on the
ground. The boys came up and started meddling with this equipment and C,
while swinging one of the lamps by a rope over the hole, stumbled over the lamp,
and knocked it into the hole. An explosion followed. C was thrown into the
manhole and was severely burned. The explosion occurred because paraffin
from the lamp escaped, vaporised and was ignited by the flame. This particular
development of events was not foreseeable, but D was held liable for the
negligence of the workmen.
The defendant was liable because the claimant was injured as a result of the type or
kind of accident or occurrence that could reasonably have been foreseen, even though
the workmen could not have foreseen (1) the exact way in which he would play with the
alluring objects that had been left lying around, or (2) the exact way in which, in so
doing, he might get hurt. The workmen’s conduct created a risk of the relevant kind of
harm — personal injury by burning — and this in fact materialised.
If harm of a foreseeable kind occurs, it will normally be no defence that the precise
mechanics of the way in which the negligent act results in the harm could not be
foreseen.** Thus, since it was foreseeable that a defendant’s pack of terrier dogs would
bowl over and scratch children, he was liable when one of them bit the claimant child
without knocking him over.®? Equally, the fact that an explosion much greater in
magnitude than was foreseeable resulted in damage to the claimant will be no defence.”
In general, it is only when the accident is caused by the intrusion of some new and
unforeseen factor that the way in which the damage was caused is relevant. Lord Reid
in Hughes v Lord Advocate discussed Glasgow Corpn v Muir, where the facts were as
follows.”!
Two picnickers were allowed to carry a tea urn through a passage of D’s tea
house. For a reason never made explicit, one of the picnickers slipped, and
children buying sweets at a counter in the passage were scalded. An action by
the children in negligence against D failed.
Lord Reid said of this case that a person carelessly carrying a hot tea urn near children
would not be liable if it were upset and caused damage because the ceiling collapsed;
the fall of the ceiling would be an extraneous cause. Yet one case is particularly difficult
to reconcile with the principles set out in this subsection: Doughty v Turner
Manufacturing Co Ltd”
87 [1963] AC 837, HL.

88 Draper v Hodder [1972] 2 QB 556, CA.
89 Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006, per Eveleigh J.
90 Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] 1 QB 88 (on appeal [1971] 1 QB
111n).
91 [1943] AC 448, HL.
92 [1964] 1 QB 518, CA.
Causation 303
Ds placed an asbestos cement cover over a heat treatment bath containing

sodium cyanide as a very hot molten liquid. Ds’ employees carelessly dislodged
this cover so that it slid into the bath. The molten liquid exploded. It erupted from
the bath and injured C, a nearby workman. Although it was foreseeable that
damage by splashing would result from dislodging the cover, it was not
foreseeable that an explosion would ensue.
The defendants were held not liable, even though the relevant kind of harm — damage
by burning — was foreseeable. They would have been liable for damage by splashing;
the risk of damage by explosion was not foreseeable and this risk which materialised
differed from the one which was foreseeable so substantially that Hughes v Lord
Advocate was distinguished. Yet the distinction drawn between a burn caused by a
splash and a burn caused by an explosion is a fine one. However, if the current trend
towards caution in respect of the ascription of duty is borne in mind, such fine
distinctions might not be wholly unexpected.
(D) Extent of the damage

Where the very kind of harm which is foreseeable has occurred, it has always been the
case that the defendant cannot plead that the claimant was earning more than the
average victim, or that goods were exceptionally valuable. Damages are not restricted
to the average loss of earnings or average value of goods in the circumstances, even
supposing that such a sum is calculable. Similarly, if the facts can be proven, the shop
assistant who usually earns £200 per week will recover her full loss if she is knocked
down on her way to fulfil a once-only lucrative television contract. The extent and
limitations of this approach are illustrated by Liesbosch (Dredger) v Edison.”
Cs’ dredger, the Liesbosch, was sunk owing to the negligence of Ds. Cs’ poverty
prevented them from buying a replacement immediately, and so, to fulfil an existing
contract, they had to hire another dredger at an exorbitant rate. Cs recovered
compensation for: (1) the market price of a comparable vessel; (2) the cost of
adapting and insuring such a vessel; (3) expenses occasioned by their liability
to fulfil their contract for the period between the loss of the Liesbosch and when
a replacement could reasonably have been in service (expenses caused by certain
clauses in the contract).
The House of Lords refused to award the claimants compensation for the additional
cost to them of hiring a replacement dredger which was considerably greater than the
additional cost of buying a dredger. That additional loss was held to result from an
‘extraneous’ cause,” the claimant’s poverty. As such, it was too remote from the
defendant’s negligence. On the other hand, the Privy Council has since confined the
remit of the rule in the Liesbosch by holding that only those losses associated with the
claimant’s impecuniosity that can be treated as a discrete head of loss (such as the
independent act of hiring a dredger) will be irrecoverable. Thus, in Alcoa Minerals of
Jamaica Inc v Broderick®> it was held that the increased costs of repairing a roof were
93 [1933] AC 449, HL. Cf The Daressa [1971] 1 Lloyd’s Rep 60.

94 [1933] AC 449, at 460, HL, per Lord Wright.
95 [2000] 3 WLR 23, PC.
\
recoverable where the costs had increased because of a four-year delay in effecting
repairs attributable to the claimant’s impecuniosity. ?
The decision in the Liesbosch is difficult to reconcile with the line of authority discussed
in the next section requiring that normally one must ‘take the claimant as one finds
him’. It may be seen perhaps as a decision less truly related to remoteness than
concerning a failure to mitigate loss where it would be reasonable to do so.” Perhaps,
ultimately, all that can be said is that the Liesbosch represents yet another policy
decision motivated by judicial concern to limit the extent of liability for economic
loss.?’
(E) The ‘egg-shell skull’ rule

Before The Wagon Mound was decided, it was well established at common law that, in
relation to personal injury, the defendant had to ‘take the claimant as he found him’.
This meant that the victim could claim damages for the entire harm to his person, even
though, owing to some special bodily sensitivity, it was greater than would have been
suffered by the ordinary individual. Thus, a haemophiliac,”* or an extreme neurotic,”
who sustains greater damage than the ordinary person, may nonetheless recover the
full extent of their damage, even though the defendant could not have foreseen such
extensive harm.'” The courts have held that The Wagon Mound has not affected this
principle, commonly describedas the ‘egg-shell skull’ rule. In Smith v Leech Brain &
Co Ltd'°' the facts were as follows.
A negligently inflicted burn on C’s lip resulted in him dying of cancer. The
tissues in his lip in which the cancer developed were in a pre-malignant condition
at the time when the burn occurred. Ds were held liable for the damage resulting
from the death.
In similar vein, in Robinson v Post Office,'” the defendants carelessly lacerated the
claimant’s leg. A doctor’s subsequent anti-tetanus injection caused encephalitis because
the claimant was allergic to the injected serum. The defendants were held liable.
There is no authoritative ruling whether the same principle applies to property damage
in tort. In Parsons v Uttley Ingham,'” the defendants negligently failed to install
proper ventilation in a hopper used to feed the claimant’s pigs. The ground nuts fed to
96 See Dodds Properties (Kent) Ltd v Canterbury City Council [1980] | All ER 928.
97 For the same reason an injured wife cannot recover further damages because her husband,
incapacitated in the same accident, and so not requiring a secretary, is no longer able to employ
her as a part-time secretary: Malcolm v Broadhurst [1970] 3 All ER 508. Nor can injured
children recover more because the hysterical obsession of their mother aggravates their
symptoms: McLaren v Bradstreet (1969) 113 Sol Jo 471. See also Schneider v Eisovitch
[1960] 2 QB 430.
98 Bidwell v Briant (1956) Times, 9 May.
99 Love v Port of London Authority [1959] 2 Lloyd’s Rep 541; Malcolm v Broadhurst [1970] 3
All ER 508 (exacerbation of pre-existing nervous disturbance); Brice v Brown [1984] 1 All ER
O9F::
100 Whether this principle can be justified is considered in depth in Waldron, ‘Moments of
Carelessness and Massive Loss’ in Owen (ed), Philosophical Foundations of Tort Law (1995).
101 [1962] 2 QB 405.
102 [1974] 2 All ER 737, CA.
103 [1978] QB 791, CA.
Causation 305
the pigs went mouldy and the pigs died of a rare disease. Some mild ‘food poisoning’
might have been foreseen as a consequence of feeding pigs mouldy nuts, but death
was a highly unusual consequence. The Court of Appeal held that the defendants
must in effect ‘take the pigs as they found them’, and awarded full compensation for
the loss of the claimant’s pigs. The decision resulted from a claim for breach of contract
but the Court of Appeal acted on the interesting, and rather novel, basis that the rules
of remoteness in contract and tort were the same.'™
Presumably, the defendant takes as he finds them, not only the physical state of the
damaged person or property, but also the surrounding external physical circumstances.
This is the crux of Great Lakes Steamship Co v Maple Leaf Milling Co'™
Ds negligently failed to lighten Cs’ ship at the time stipulated. When the water
level fell, the ship grounded and was damaged. This damage was more extensive
because the ship settled on a large submerged anchor which Ds neither knew
nor could have expected to be there. Ds were liable for all the damage to the ship.
The decision is assuredly correct: the damage was of a foreseeable type; it was of a
greater extent than foreseeable, not because of internal characteristics of the property,
but because of special external circumstances. No doubt the same rule applies to
personal injuries. Accordingly, the defendant who negligently causes the claimant to
stumble, so that he slides off the edge of a precipice concealed from view, would be
liable for those consequences of the risk of stumbling, either before or after The Wagon
Mound. Once the ‘stage is set’, the defendant’s liability is adjudged accordingly.
and
104 On remoteness in contract and tort see Cartwright, ‘Remoteness of Damage in Contract
Tort’ [1996] CLJ 488.
the case was in
105 (1924) 41 TLR 21 — on the generally held view that it does not matter that
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CHapPTER 15
Defences to negligence
Section |. Contributory negligence

At common law, it was a complete defence if the defendant proved that the claimant
was guilty of contributory negligence. The Law Reform (Contributory Negligence) Act
1945 now provides that contributory negligence no longer affords a complete defence,
but merely reduces the damages to the extent to which the claimant has been
contributorily negligent. In the leading case of Butterfield v Forrester! the facts were
as follows.
D partially obstructed the highway by putting a pole across part of it. C, riding
very rapidly at dusk, did not observe the pole and ran into it, suffering injury.
Had he been using ordinary care, he would have seen and avoided the pole.
Holding that the claimant failed, despite the wrongful act of obstruction by the
defendant, Lord Ellenborough said:
One person being in fault will not dispense with another’s using ordinary care
for himself. Two things must concur to support this action, an obstruction in the
road by the fault of the defendant, and no want of ordinary care to avoid it on the
part of the [claimant].”
In order to establish contributory negligence the defendant must specifically plead’
and then prove that:
(a) the injury of which C complains resulted from the particular risk to which C exposed
himself by virtue of his own negligence;
(b) the negligence of C contributed to his injury;
(c) there was fault or negligence on the part of C.
We then have to consider the scope of the Law Reform (Contributory Negligence) Act
1945 and the principles governing the apportionment of damages.
te S809) i East.60:
2 (1809) 11 East 60, at 61.
3. Fookes v Slaytor [1979] 1 All ER 137, CA.
‘
(A) Risk
The rule relating to risk in the context of contributory negligence may be compared
with the rule that, in a negligence action, the claimant must prove that the risk that in
fact materialises is the one against which the defendant was under a duty to guard.*
For, here, the defendant must show that the harm sustained by the claimant belongs to
that general class of perils to which the claimant was exposed by his own negligent
conduct. The important, yet difficult, case of Jones v Livox Quarries Ltd illustrates the
point.°
C was riding down a slope leading to the bottom of a quarry on the back of Ds’
vehicle, contrary to their orders, when another vehicle belonging to Ds was
negligently driven into the back of the first vehicle. As a result, C was injured. By
so riding, C exposed himself not only to the risk of falling off the vehicle but also
to the risk of being injured in the particular way in which he was injured. The
court found that he was contributorily negligent.
It is plain from the judgments delivered in that case that, had the damage sustained by
the claimant been foreign to the risk to which his own negligent conduct had subjected
him, the defence would have failed.° So, for example, had the driver of the vehicle
negligently set fire to it thus causing the claimant injury by burns, the claimant would
have suffered just the same injury regardless of his own lack of care.
Interestingly, the risk to which the claimant subjects himself may be one of his own
creation, so long as the defendant’s negligence consists of a duty to care for the
claimant after the risk has materialised. In Barrett v Ministry of Defence,’ a naval
airman drank himself unconscious and subsequently died by choking on his own
vomit. His widow sued the defendants for negligence on the basis that, as his employer,
they owed him a duty of care to prevent him from becoming so drunk that he may cause
himself injury. The Court of Appeal held that once the deceased had collapsed, and the
defendants had taken steps to care for him, the defendants had thereby undertaken a
duty of care in respect of the claimant. Since the steps taken were inadequate, the
defendants were liable in negligence. But the damages payable were reduced because
the claimant’s preceding folly in subjecting himself to harm through drunkenness
amounted to contributory negligence.
(B) That the claimant’s ‘negligence’ was a contributory factor

This is undoubtedly the aspect of the defence of contributory negligence that calls for
the most careful examination. The key to the proper understanding of the development
of the case law on this subject is the full appreciation of the seriousness of the absolute
rule of common law which deprived the claimant of a remedy if he himself was guilty of
any fault, however slight, contributing to the damage which he suffered.
4 See ch 11.
5 [1952] 2 QB 608, CA.
6 [1952] 2 QB 608, CA. Singleton LJ took the view (at 612) that there would be no defence
where C negligently sat upon an unsafe wall, and a driver negligently ran into the wall and
injured C. By contrast, Denning LJ thought (at 616) that C would succeed, if, while riding on
the vehicle, he had been hit in the eye by a shot from a gun fired by a negligent sportsman.
7 ~~ [1995] 3 All ER 87, CA.
The essence of the matter is causation. As Lord Atkin put it:
... if the [claimant] were negligent but his negligence was not a cause operating
to produce the damage there would be no defence. I find it impossible to divorce
any theory of contributory negligence from the concept of causation.®
Not unnaturally, the courts sought to mitigate the harshness of this doctrine of
contributory negligence.’ In so doing, they evolved various tests to cover different
sets of circumstances. The best-known test was the so-called ‘last opportunity rule’
on which Davies v Mann"’ is the leading case.
C negligently left his ass, fettered by its forefeet, in a highway. D drove his
wagon and horses into it at a rapid pace, thereby killing it. Had he used proper
care, D could have avoided colliding with the ass, but he was driving too fast. It
is uncertain when he saw the ass, if indeed he saw it at all.
It was held that, notwithstanding his own negligence, the claimant could recover
damages because the defendant, had he been driving properly, could still have avoided
the consequences of that negligence.'' Subsequent attempts were made to apply this
rule of law to analogous cases. In each case, two things were crucial: first, the time of
both the claimant’s and the defendant’s acts and, secondly, the respective knowledge
of the parties.'”
In the maritime context, the Maritime Conventions Act 1911 had authorised the court,
in cases of collisions at sea, to apportion the loss according to the degree to which
each party was at fault, and this principle was made generally applicable by the Law
Reform (Contributory Negligence) Act 1945.'° Since the passing of these Acts, the
need for the courts to select some particular cause as the predominant one has
disappeared. A claimant whose own acts contributed to his injury or damage is no
longer completely defeated, he merely has his damages proportionately reduced to the
extent to which he was at fault. The courts are free to look for all the causes and
apportion accordingly. As Lord Porter said of the 1945 Act:
It enables the court (be it judge or jury) to seek less strenuously to find some
ground for holding the [claimant] free from blame, or for reaching the conclusion
that his negligence played no part in the ensuing accident, in as much as, owing
to the change in the law, the blame can now be apportioned equitably between
the two parties.'*
Plainly, the courts are no longer concerned with the subtleties and refinements of the
‘last opportunity’ rule and the like. In order to decide whether the claimant’s negligent
conduct is contributory, one applies exactly those rules of causation set out in chapter
14. The earliest important case, and, moreover, the one on which the courts still rely,
8 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, at 165, HL.
9 Stapley v Gypsum Mines Ltd [1953] AC 663, at 677, HL, per Lord Porter.
10 (1842) 10M & W 546.
11 Perhaps the most important of the cases following it is Radley v London and North Western
Rly Co (1876) 1 App Cas 754, HL.
ee, Especially British Columbia Electric Rly Co Ltd v Loach [1916] 1 AC 719, PC; The Eurymedon
[1938] P 41, at 49-50, CA, per Greer LJ.
13. Maritime Conventions Act 1911, s 1; Law Reform (Contributory Negligence) Act 1945, s 1.
14 Stapley v Gypsum Mines Ltd [1953] AC 663, at 677, HL.
9
was Admiralty Comrs v SS Volute.'> It was actually decided under the Maritime
Conventions Act, but the key principles are the same. i
The Volute, a convoy leader, changed her course without signalling. The Radstock,
on discovering that she was thereby endangered, negligently put on full steam
ahead. Although this negligence was subsequent to that of The Volute, both
vessels were held to blame for their ensuing collision, and apportionment under
the Act was directed.
In a speech warmly supported by the other Law Lords, Viscount Birkenhead pointed
out that, despite the fact that cases of ‘strictly synchronous negligence’ were rare, the
courts could, nevertheless, still find that the negligence of both parties contributed to
the resulting injury even though their acts were not ‘synchronous’. He added:
Upon the whole I think that the question of contributory negligence must be
dealt with somewhat broadly and upon commonsense principles as a jury would
probably deal with it. And while, no doubt, where a clear line can be drawn, the
subsequent negligence is the only one to look at, there are cases in which the
two acts come so closely together, and the second act of negligence is so much
mixed up with the state of things brought about by the first act, that the party
secondly negligent, while not held free from blame under the Bywell Castle rule,
might, on the other hand, invoke the prior negligence as being part of the cause
of the collision so as to make it a case of contribution. And the Maritime
Conventions Act with its provisions for nice qualifications as to the quantum of
blame and the proportions in which contribution is to be made may be taken as
to some extent declaratory of the Admiralty rule in this respect.!°
The test, he said, is whether the claimant ‘in the ordinary plain common sense of this
business ... contributed to the accident’. This does not mean, of course, that whenever
the negligence of the defendant is preceded by negligence on the part of the claimant,
there is always contributory negligence; the acts may be so severable that only that of
the defendant can be said to have caused the damage, but there is no need to retain a
separate rule of ‘last opportunity’ in order to reach this conclusion. Evershed LJ
explained this clearly in Davies v Swan Motor Co (Swansea) Ltd'’
As I understand the Davies v Mann principle ... it is this: in that case the
[claimant’s] negligence or fault consisted in placing the donkey upon the
highway; but it having been observed in due time by the defendant ... the
negligence of the [claimant] had really ceased to be an operating factor in the
collision ... the [claimant] ... as a negligent actor, was at the material time, functus
officio, one might say functus culpa.'®
The difficulties encountered in determining whether the claimant’s negligence is
contributory are usually not of law but of fact: there is room for difference of opinion
on whether, in any particular case, the negligence of the claimant has ceased to be an
O22 RAGS 1295 ELI.

[1922] 1 AC 129, at 144.
[1949] 2 KB 291, at 317, CA.
Cf Boy Andrew (Owners) v St Rognvald (Owners) [1948] AC 140, at 149, HL, where Viscount
Simon opined: ‘The negligence of the donkey-owner was therefore a fault not contributing to
the collision: it was merely a causa sine qua non’.
Defences to negligence 31|
operating factor. But only if this inference is made does the claimant’s conduct cease
to be contributory negligence.
Since The Volute, the House of Lords has frequently stressed this test of causation in
contributory negligence. Thus, in Swadling v Cooper'® (where the Court of Appeal
had attempted to frame elaborate classifications”), the House of Lords reversed the
decision and upheld the direction of the trial judge to the jury, which in substance was:
‘Whose negligence was it that substantially caused the injury?’.?! The Privy Council
has also followed The Volute and issued a forceful warning against the dangers of
‘attempts to classify acts in relation to one another with reference to time or with
regard to the knowledge of one party at a particular moment of the negligence of the
other party’.”
These principles may be clarified by an examination of some of the more important
cases decided since the passing of the Act of 1945. In Henley v Cameron} the facts
were as follows.
D chose to leave his car unlighted on the highway at night, and C’s husband,
riding a motorcycle, carelessly collided with it and was killed. An apportionment
under the 1945 Act was made.
Applying the rule laid down in The Volute, Tucker LJ pointed out that ‘it must always
remain a question of fact whether the negligence of B is ‘so mixed up’ with the state of
things brought about by A’s negligence as to make the negligence of both contributory
causes to the accident’. He also pointed out the illogicality of asserting that the rules
of contributory negligence differ from those of causation, saying:
I cannot understand how, when considering whether the negligence of A or B or
of both has been the effective cause of an accident, the answer can depend on
whether A or B happens to be the [claimant] in the action or whether they are
both defendants.’
In Boy Andrew (Owners) v St Rognvald (Owners), as one vessel negligently overtook
another, the latter negligently changed course, collided with the first vessel, and sank.
The House of Lords followed The Volute and found both parties blameworthy. Viscount
Simon said:
The suggested test of ‘last opportunity’ seems to me inaptly phrased and likely
in some cases to lead to error, as the Law Revision Committee said in their report
(Cmd 6032 of 1939, p 16):
19 [1931] AC 1, HL (collision at crossroads between D’s car and the motorcycle of C’s husband,
who was killed).
20 [1930] 1 KB 403. :
21 See Stapley v Gypsum Mines Ltd [1953] AC 663, HL (especially the speech of Lord Reid).
22 Marvin Sigurdson v British Columbia Electric Rly Co Ltd [1953] AC 291, at 299, PC.
23 [1949] LIR 989, CA. Cf Harvey v Road Haulage Executive [1952] 1 KB 120, CA; Rouse v
Squires [1973] QB 889, CA.
24 [1949] LIR 989, at 992-3, CA.
25 [1949] LJR 989, at 993, CA.
26 [1948] AC 140, HL.
x
‘In truth, there is no such rule — the question, as in all questions of liability for a
tortious act, is not who had the last opportunity of avoitling the mischief, but
whose act caused the wrong?’.’
In Davies v Swan Motor Co (Swansea) Ltd the facts were as follows.*®
Contrary to orders, C was standing on the steps on the off-side of a dust lorry.
The driver of the lorry turned to the right without warning just as a following
vehicle was overtaking him, and C was injured in the ensuing collision. Both
drivers were negligent, but it was also held that C was contributorily negligent.
Evershed LJ began by considering the Davies v Mann type of case. He saw this case
as distinct in that, in his opinion, the negligence of the defendant alone caused the
accident. He then turned to the ‘last opportunity’ rule and said:
Now that as a doctrine I venture to think has suffered a demise independently
altogether of the Act of 1945 ... No doubt, in practice, such a rule was found
useful by judges who were anxious in the interests of justice to avoid coming to
a conclusion wholly adverse to a [claimant] merely because, at the material time,
the [claimant] was still a negligent actor to some perhaps quite trivial extent.
Now the Law Reform (Contributory Negligence) Act 1945, has rendered it no
longer necessary to resort to devices of that kind.”
Denning LJ stressed that the matter is purely one of causation. Of the Davies v Mann
type of case where the claimant negligently leaves an obstruction in the highway and
the defendant negligently runs into it, he said that the fact that the defendant sees the
obstruction ‘may mean in some cases that the obstruction is not the cause of the
accident’. In short, one does not apply a mechanical rule of ‘last opportunity’, but one
asks whether ‘his conduct would be so powerful a factor in producing the damage that
the presence of the parked vehicle would not be itself'a cause of the damage’ .*° Similarly,
in Jones v Livox Quarries Ltd, Denning LJ said:
There is no clear guidance to be found in the books about causation. All that can
be said is that causes are different from the circumstances in which, or on which,
they operate. The line between the two depends on the facts of each case. It is
a matter of common sense more than anything else ... The man’s negligence here
was so much mixed up with his injury that it cannot be dismissed as mere history.
His dangerous position on the vehicle was one of the causes of his damage.*!
(C) The negligence of the claimant

There is an important difference between the defence of contributory negligence and
the tort of negligence. To establish the defence, the defendant need not prove that the
claimant owed the defendant a duty of care. As was said in Nance v British Columbia
Electric Rly Co Ltd:
27 [1948] AC 140, at 149, HL.

28 [1949] 2 KB 291, CA.
29 [1949] 2 KB 291, at 318, CA.
30 [1949] 2 KB 291, at 323, CA.
31 [1952] 2 QB 608, at 616, CA.
... all that is necessary to establish such a defence is to prove to the satisfaction
of the jury that the injured party did not in his own interest take reasonable care
of himself and contributed, by this want of care, to his own injury.*?
So far as proving this is concerned, it is well established that the lack of care on the part
of the claimant must be proved by the defendant according to the usual civil standard
of proof: the balance of probabilities.*?
It may therefore be assumed that decisions on the standard of care required of the
defendant in negligence apply equally to determine whether the claimant has taken
reasonable care for his own safety in the context of contributory negligence.’ Many
of the problems concerning ‘reasonableness’ discussed in connection with the tort of
negligence arise here also. This is especially the case in relation to children (where, it
will be recalled, the age of the child is considered material*>), and in relation to the rule
that ‘a prudent man will guard against the possible negligence of others when experience
shows such negligence to be common’.*® The warning issued when we discussed
breach of duty in negligence must be repeated in the present connection: viz, that
decisions on particular facts ought not too readily to be regarded as establishing legal
principles.*” The Court of Appeal is as free to infer contributory negligence — and
thereby reverse the trial judge — as it is to infer negligence.*®
A few examples of contributory negligence include the following: a moped driver who
does not wear a crash helmet,*® or simply fails to fasten it securely;*° a car passenger
who does not wear a seat belt,*’ or who knows that the car’s foot-brake does not
work; a passenger injured by negligent drunken driving (so long as he either travelled
knowing that his driver was so drunk that his capacity to drive carefully was impaired,
or that he was later going to be a passenger with a driver he accompanied on a drinking
bout which affected both the driver’s capacity to drive safely and his own capacity to
appreciate the danger);* a pedestrian who crosses a pelican crossing with the lights
32 [1951] AC 601, at 611, PC, per Viscount Simon. Cf Jones v Livox Quarries Ltd [1952] 2 QB
608, at 615, CA, per Denning LJ.
33 Owens v Brimmell [1977] QB 859; Limbrick v French [1993] PIQR P 121.
34 Whereas a workman suing for breach of statutory duty is not necessarily ‘contributorily
negligent’ because his conduct would have been sufficiently careless to make his employer
vicariously liable, the standard of care required of a workman who sues in negligence is apparently
the same as that required of him if he were D in a negligence action: Staveley Iron and
Chemical Co Ltd v Jones [1956] AC 627, HL.
35 See Gough v Thorne [1966] 3 All ER 398, CA; Mullin v Richards [1998] | All ER 920, CA;
Morales v Eccleston [1991] RTR 151, CA. Note, too, Baxter v Woolcombers Ltd (1963) 107
Sol Jo 553, CA, where C’s contributory negligence lay in not complying with instructions. The
court refused, with respect to contributory negligence, to take account of his known low
intelligence but agreed that it was relevant in measuring the standard of care required of D (the
employer).
36 Grant v Sun Shipping Co Ltd [1948] AC 549, at 567, HL, per Lord Du Parcq.
37 SS Heranger (Owners) v SS Diamond (Owners) [1939] AC 94, at 101, HL.
38 Hicks v British Transport Commission [1958] 2 All ER 39, CA.
39 O’Connell v Jackson [1972] 1 QB 270, CA.
40 Capps v Miller [1989] 2 All ER 333, CA.
41 Froom v Butcher [1976] QB 286, CA. Although in Mackay v Borthwick 1982 SLT 265
(Scotland) it was held that a woman with a hiatus hernia who did not wear a seatbelt on a short
journey was not contributorily negligent. Failure to wear a seatbelt is now a criminal offence:
Motor Vehicles (Wearing of Seat Belts) Regulations 1982 (SI 1982 No 176).
42 Gregory v Kelly [1978] RTR 426.
43 Owens v Brimmell [1977] QB 859.
.
on green.’ On the other hand, a house buyer who relies on the valuation of his
building society’s surveyor is not contributorily negligent’in not having his house
independently surveyed.** But if the survey undervalues the premises and a loan to
purchase is made on the strength of that valuation, the lender will be contributorily
negligent if the borrower defaults in repayment and the lender incurs losses by virtue
of the negligent undervaluation. In such circumstances the lender is expected
independently to verify the borrower’s ability to repay the loan.*®
If the negligence of the defendant puts the claimant in a position of imminent personal
danger, conduct by the claimant which in fact operates to produce harm to him (but
which is nevertheless reasonable in the agony of the moment) does not amount to
contributory negligence according to the decision in Jones v Boyce.”’
A passenger in a coach reasonably believed that the coach was about to overturn
through the negligent driving of D, the coach proprietor. He therefore jumped
off, breaking his leg. As things transpired, the coach did not overturn, but the
passenger was adjudged not to be contributorily negligent and he successfully
recovered in full from D.
The critical question in such cases is whether the claimant behaved reasonably in the
dilemma in which the defendant had placed him, due account being taken of the alarm
which such a situation would engender in the prudent person. The rule was subsequently
extended in Brandon v Osborne, Garrett & Co**
C and her husband were in Ds’ shop as customers. Owing to Ds’ negligence,
broken glass falling from the roof imperilled C’s husband. C instinctively clutched
her husband to try to pull him to a place of safety and was herself injured. Had
she remained in her original position she would not have been injured. Her injury
was held not to be the result of her own contributory negligence.
These cases mark the limits to which the courts have thus far taken the doctrine. But
whether it extends to instinctive acts to protect strangers, or interests other than
personal safety, is as yet undecided.
Where the claimant is exercising some right — such as passage along a highway, or
some common approach to his premises which the landlord has retained — his
deliberately encountering a risk of danger created by the defendant is not necessarily
contributory negligence. It will only amount to contributory negligence if, after making
due allowance for his right to be there, the claimant is showing an unreasonable
neglect of his own safety.”
44 Fitzgerald v Lane [1989] AC 328, HL. Cf Tremayne v Hill [1987] RTR 131, CA.
45 Yianni v Edwin Evans & Sons {1982] QB 438.
46 Legal & General Mortgage Services Ltd vy HPC Professional Services [1997] PNLR 567;
Platform Home Loans Ltd v Oyston Shipways Ltd [1998] Ch 466, CA; UCB Bank plc v David
J Pinder ple [1998] PNLR 398.
47 (1816) 1 Stark 493.
48 [1924] 1 KB 548.
49 Clayards v Dethick and Davis (1848) 12 QB 439 (C, a cabman, was prevented from taking his
horse out of a mews by the only access to the highway because Ds had dug and negligently
fenced a trench at the junction of the mews and highway. In trying to get his horse out, he
injured it. His action for damages succeeded despite D’s plea of contributory negligence). See
also Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1.
Just as the defendant employer may be answerable for the negligence of his employee,
so does the contributory negligence of an employee of the claimant afford the defendant
a good defence where that employee was acting in the course of his employment.
Thus, in one case, where A, driving B’s van for B was struck by C, but A’s careless
driving contributed to the damage to the van, B’s damages were reduced accordingly.
On the other hand, the contributory negligence of an independent contractor is not
imputed to the principal, and that of a driver is not imputed to a passenger,” nor is that
of a spouse imputed to his or her wife or husband.” And when a child is accompanied
by an adult, the contributory negligence of the adult is not imputed to the child.
Consider Oliver v Birmingham and Midland Motor Omnibus Co Ltd“
C, an infant in the care of his grandfather, was crossing a road when he was
injured by the negligent driving of Ds’ omnibus by their servant. Although his
grandfather was also negligent, the infant was held entitled to recover in full.
A fina] point that requires mention in this context is that contributory negligence is not
merely confined to cases in which the contributory element supplied by the claimant
can be characterised in terms on ‘negligence’ in the sense of carelessness of folly. It
also embraces circumstances in which the claimant has deliberately harmed himself.
Thus, in Reeves v Metropolitan Police Comr,° where a sane police prisoner committed
suicide, it was held that, notwithstanding the duty owed by the police to protect the
deceased from taking his own life, the act of suicide constituted contributory negligence
such that the damages could be reduced by 50%.”
(D) The scope of the Law Reform (Contributory Negligence) Act

1945°’
The primary object of the Law Reform (Contributory Negligence) Act 1945 is to provide
that, where the defence of contributory negligence was previously available, the courts
50 Kenfield Motors v Hayles and Rees [1998] CLY 3919.

51 Mills v Armstrong, The Bernina (1888) 13 App Cas 1, HL (the same principle was held to apply
in the case of ships).
52 Mallett vy Dunn [1949] 2 KB 180; Berrill v Road Haulage Executive [1952] 2 Lloyd’s Rep 490
(wife driving husband’s car not as his servant or agent; her contributory negligence did not
prevent the husband recovering in full for damage to the car). Both the case last cited and
France v Parkinson [1954] 1 All ER 739, CA, held that the contributory negligence of a bailee
is not to be imputed to a bailor. Lampert v Eastern National Omnibus Co Ltd [1954] 2 All ER
719n, decided that where a wife is injured in a collision between her car (driven by her husband)
and another car, in which the two drivers are equally to blame, the wife’s damages are to be
reduced to one half. Although the wife would be liable to the other driver for her husband’s
negligence (see ch 29) why should her liability to third parties be equated with failure to take
care for her own safety? Cf Dawrant v Nutt [1960] 3 All ER 681.
$3 Where a disabled child’s action rests on the Congenital Disabilities (Civil Liability) Act 1976
his damages are reduced if it is shown that the parent affected shared the responsibility for his
being born disabled: s 1(7). :
54 [1933] 1 KB 35, Div Ct. Cf Murray v Harringay Arena Lid [1951] 2 KB 529, CA. Note,
however, that if the parent is in breach of his duty to safeguard the child’s safety, D may seek
a contribution from the negligent parent under the Civil Liability (Contribution) Act 1978.
55 [2000] 1 AC 360, HL.
56 Cf the approach taken to the deliberate conduct in Standard Chartered Bank v Pakistan
;
National Shipping Corpn (No 4) [2001] QB 167.
57 See Spowart-Taylor, “Contributory Negligence — A Defence to Breach of Contract’ (1986) 49
MLR 102.
5
may now, instead of exonerating the defendant from liability, reduce the damages
awarded against him to the extent to which the claimant was contributorily negligent.
But the actual wordng of the Act is rather complex and requires closer consideration.
Section 1(1) reads as follows:
Where any person suffers damage as the result 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.
Section 4 defines ‘damage’ as including loss of life and personal injury, and thus
probably embraces any loss for which damages can at common law be awarded.** The
use of the word ‘result’ is a neutral term regarded by the courts as leaving them free to
continue to treat contributory negligence as a matter of causation.*’ What is clear,
then, is that, under the Act, contributory negligence which contributes to the injuries
suffered by the claimant is as relevant as contributory negligence contributing to the
incident in which the injuries are suffered. Thus, a passenger failing to wear a seat belt
cannot be said to be in any way responsible for the collision in which he is thrown
against the steering wheel. But he is nonetheless responsible for those injuries that
would have been avoided had. he worn a belt. The correct question is not “what was
the cause of the accident?’ but rather, ‘what was the cause of the damage?’.® In Capps
v Miller®' a young man suffered devastating brain injury when he was knocked off his
moped by a drunken driver. He had not fastened the chin-strap of his helmet and the
helmet came off before he hit the road. The trial judge held that the claimant’s failure to
secure his helmet increased his injuries by ‘some incalculable degree’ and that, the
defendant being 100% responsible for the accident, no reduction for any contributory
negligence should be made. The Court of Appeal reversed his ruling. The judge had
fallen into error in focusing on responsibility for the accident rather than the injury.
Failure to wear a securely fastened helmet is now a criminal offence. That failure did in
fact exacerbate the claimant’s injuries and thus constituted contributory negligence.
The definition of ‘fault’ in the 1945 Act has proved to be very problematic. ‘Fault’ is
defined in section 4 as ‘negligence, breach of statutory duty or other act or omission
which gives rise to liability in tort or would, apart from this Act, give rise to the defence
of contributory negligence’. The first limb of the definition of ‘fault’ appears to make
58 In Drinkwater v Kimber [1951] 2 All ER 713, the trial judge held that it excluded pecuniary
loss, but the Court of Appeal ([{1952] 2 QB 281, at 290, per Singleton LJ), although affirming
the decision, did so on other grounds and disagreed with this narrow interpretation of ‘damage’.
59 Thus, where C’s own negligence prior to his act of rescue contributed to his injuries, his
damages were reduced. C (a train guard) went to the rescue of D, who was negligently trying to
board a moving train, without first applying the emergency brake: Harrison v British Railways
Board [1981] 3 All ER 679.
60 Froom v Butcher [1976] QB 286, CA; O’Connell v Jackson [1972] 1 QB 270 (injured
motorcyclist not wearing helmet).
61 [1989] 2 All ER 333, CA.
62 In Reeves v Metropolitan Police Comr [2000] 1 AC 360, at 369, HL, Lord Hoffmann said that
the opening words — ‘negligence, breach of statutory duty or other act or omission which would
give rise to liability in tort’ — apply to D’s initial, liability creating act, whereas the closing
words of the provision refer to C’s fault. Cf Standard Chartered Bank v Pakistan National
Shipping Corpn (No 4) [2001] QB 167, CA.
Defences to negligence 3\7
the partial defence of contributory negligence applicable to all torts. Yet section 11 of
the Torts (Interferences with Goods) Act 1977 expressly excludes contributory
negligence as a defence to conversion or intentional trespass to goods. Equally, it is
now established, though not uncontroversially, that the Act does not apply to deceit
or other torts based on dishonesty.“ In the context of product lability, contributory
negligence is expressly included as a defence under the Consumer Protection Act
1987. It is not, however, a defence that is conceptually easy to apply in the context of
negligent misstatements (which presuppose that the claimant’s contribution to his
loss — his reliance — be reasonable, and therefore not negligent’).
A still more problematic question is whether the defence of contributory negligence
can be invoked in an action for breach of contract. Despite earlier dicta to the effect
that where the parties have defined their mutual obligations in a contract, a concurrent
duty in tort should not arise,°’ it is now clear that where a duty of care arises within a
contractual relationship, or where one party assumes responsibility to perform carefully
a professional service (and the other party relies upon that assumption of responsibility)
the claimant may opt to sue in contract or tort. It has even been held by the Court of
Appeal that the tortious duty can be wider than the contractual one.’ From this, it
follows that a private patient suing in respect of the negligent delivery of her baby has
a choice of contractual or tortious damages.” Furthermore, it has been held at first
instance that the client of a negligent solicitor may make a similar choice whether to
sue in contract or in tort.’’ On the other hand, an NHS patient has no such choice; nor
did a disappointed legatee suing a solicitor for negligence in respect of the preparation
of a will.” In relation to the hospital patient, it would scarcely accord with common
sense to say that the NHS patient who was contributorily negligent should suffer a
reduction in damages but that her wealthier sister, who paid for treatment, should
not.”
Since there may be concurrent duties in tort and contract, is it any more sensible to
assert that the defence of contributory negligence should, on a single set of facts, be
available only so long as the claimant frames his action in tort? Although it has no
63 Alliance and Leicester Building Society v Edgestop Ltd [1994] 2 All ER 38; Nationwide
Building Society v Thimbleby & Co [1999] Lloyd’s Rep PN 359.
64 Corporacion Nacional de Cobre de Chile v Sogemin Metals Ltd [1997] 1 WLR 1396.
65 JEB Fasteners Ltd v Marks, Bloom & Co [1981] 3 All ER 289, CA.
66 See, eg, De Meza and Stuart v Apple, Van Straten, Shena and Stone [1975] | Lloyd’s Rep 498,
CA.
67 Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80, at 107, PC; National Bank
of Greece SA v Pinios Shipping Co [1989] 1 All ER 213, CA; Lee v Thompson (1989) 6 PN 91,
CA; Johnstone v Bloomsbury Health Authority [1992] QB 333, CA.
68 Henderson v Merrett Syndicates Ltd [1994] 3 All ER 506, HL. Note also that if a concurrent
tortious duty is held not to exist, the Latent Damage Act 1986 cannot be applied to contractual
negligence for that Act has been held not to be relevant in respect of breach of contract: /ron
Trade Mutual Insurance Co Ltd v J K Buckenham Ltd {1990] | All ER 808.
69 Holt v Payne Skillington (a firm) [1996] PNLR 179, CA.
70 See Kralj v McGrath [1986] 1 All ER 54.
71. Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384 (doubted by Lloyd LJ in Lee
v Thompson (1989) 6 PN 91, CA).
72 See Ross v Caunters [1980] Ch 297; White v Jones [1995] 2 AC 207, HL. But see now the
possibility of such an action if the terms of the Contracts (Rights of Third Parties) Act 1999
Act are met.
73 Unless one contends that by providing consideration for the duty undertaken by D, C ‘buys’
protection from her own as well as his lack of care.
‘
place where the action may only be framed in contract,” the Court of Appeal has
nonetheless held that where the defendant’s liability in contract is concurrent with a
breach of duty in tort — ie, where he is negligently in breach of contract — the 1945 Act
can be applied.” On the other hand, where the defendant is in breach of a contractual
term that is framed in terms of exercising reasonable care,’° the Act cannot be applied
to reduce the award of damages, if he owes no concurrent duty of care in tort.” In
these cases, of course, the difficulty lies in answering the far from obvious questions
of where and why no concurrent common law duty exists.
Another complication concerns the operation of the Act in cases involving careless
third parties. Suppose a child is injured partly because his parents fail to be sufficiently
careful as to his well-being and partly because of the negligence of the defendant.
What, then, occurs in relation to the child’s action against the defendant? In fact, the
child may sue the defendant in respect of the whole amount;” and the defendant
cannot invoke the 1945 Act for the child himself was not contributorily negligent. On
the other hand, the defendant will have the option of joining the negligent parents in
the action so that they, too, will ultimately be held liable for their proportion of the
damages.”
A final problem in this context arises where the defendant is a professional who performs
a service for a third party, where the service is designed to benefit the claimant, but
both the professional and the third party are negligent. Just this problem arose in
Gorham v British Telecommunications plc.*° There, the claimants were the wife and
children of a deceased gentleman who had been the customer of an insurance company
that had given him negligent advice concerning pensions and life assurance. Prior to
his death, the deceased had also been negligent in failing to take steps to rectify the
situation created by the defendant’s negligence. The majority of the Court of Appeal
held that the deceased’s negligence constituted a novus actus interveniens.
Interestingly, however, Sir Murray Stuart-Smith suggested that broad considerations
of justice dictated (1) that the claimants should be able to claim, but (2) that the
damages should be reduced to take account of the deceased’s negligence.
(E) Apportionment of damages

The 1945 Act directs courts to reduce the award of damages as they think ‘just and
equitable having regard to the claimant’s share in responsibility for the damage’. If the
claimant’s lack of care is found to have contributed to his damage, some reduction
74 AB Marintrans v Comet Shipping Ltd (No 5) [1985] 3 All ER 442. See also Barclays Bank plc
v Fairclough Building Ltd [1995] 1 All ER 289, CA: C’s fault is an irrelevancy where D is
‘guilty’ of a breach of a strict contractual duty unless C’s conduct, rather than D’s breach, was
the true cause of C’s loss.
75 Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852, HL. See also Gran Gelato Ltd v
Richcliff (Group) Ltd [1992] Ch 560, CA, stating that contributory negligence can apply to a
claim under s 2(1) of the Misrepresentation Act 1967 where the claim lies concurrently with
a claim in negligence.
76 For example, Supply of Goods and Services Act 1982, s 13.
77 Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852, HL.
78 Jones v Wilkins (2001) Times, 6 February.
GS) Seen 28)
80 [2000] 1 WLR 2129, CA.
must be made. His carelessness cannot be totally disregarded on the ground that that
course of action would be ‘just and equitable’,*! nor may a judge evade apportionment
by pleading the difficulty of ascertaining the precise degree to which the claimant’s
own carelessness exacerbated his injury.” Decisions on apportionment will generally
be reached on a common sense basis; and the Court of Appeal will only interfere with
the trial judge’s conclusions on apportionment if he or she can be shown plainly to be
wrong.** Lord Reid summed up the basic guidelines for apportionment in Stapley v
Gypsum Mines Ltd:
A court must deal broadly with the problem of apportionment, and, in considering
what is just and equitable, must have regard to the blameworthiness of each
party, but the [claimant’s] share in the responsibility for the damage cannot, I
think, be assessed without considering the relative importance of the acts in
causing the damage apart from his blameworthiness.**
Two factors, therefore, have to be considered: the causative potency of the act,*> and
the extent to which the claimant deviates from the standard of the reasonable man who
shows care for his own safety.*° Where there are two or more defendants, the extent of
the claimant’s contributory negligence must be assessed before addressing the
respective responsibilities of the defendants.*’ So where a claimant walked across a
pelican crossing when the lights were on green and was hit first by D1 and then by D2,
the House of Lords ruled that the first stage of the apportionment exercise should be
to determine the extent to which his own folly contributed to his injuries, so as to
assess the totality of the damages due to him. Only after completion of this exercise
should the respective contributions to those damages of the two tortfeasors be settled.
But it is worth stressing that this exercise does not involve a precise arithmetical
calculation of the respective contributions: the Act, it must be remembered, speaks
only of apportionment in terms of what ‘the court thinks just and equitable’.*®
One common example of contributory negligence — failing to wear a seat belt — provides
a useful illustration of how apportionment ought to work in practice. Lord Denning, in
Froom v Butcher,” suggested the norm of a 25% reduction if wearing the seat belt
81 Boothman v British Northrop Ltd (1972) 13 KIR 112, CA.

82 Capps v Miller [1989] 2 All ER 333, CA.
83 Hannam v Mann [1984] RTR 252, CA.
84 [1953] AC 663, at 682, HL. The expression ‘blameworthiness’ used by Lord Reid suggests a
moral term. It is submitted that the High Court of Australia in Pennington v Norris (1956) 96
CLR 10, rightly rejected this standard in favour of the standard of the ‘unreasonable man’.
Further, Quintas v National Smelting Co Ltd [1961] 1 All ER 630, CA, could on one reading
suggest that if the trial judge finds D liable for breach of statutory duty, and the Court of Appeal
reverses that finding, but holds D liable for negligence, this is a ground for reducing the amount
deducted from C’s damages for his contributory negligence.
85 Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291, at 326; Pride Valley Foods Ltd v
Hall & Partners [2001] EWCA Civ 1001, (2001) 76 Con LR 1.
86 Sahib Foods Ltd, Co-operative Insurance Society Ltd v Paskin Kyriakides Sands (a firm)
[2003] EWHC 142 (TCC), [2003] All ER (D) 15 (Mar).
87 Fitzgerald v Lane [1989] AC 328, HL (reversing [1987] QB 781, CA).
88 See the overt rejection of any attempt to be precise in Reeves v Metropolitan Police Comr
[2000] 1 AC 360, at 372, HL, per Lord Hoffmann.
89 [1976] QB 286, CA. See also O’Connell v Jackson [1972] 1 QB 270, CA (motorcyclist; 15%
reduction for not wearing a crash helmet); Capps v Miller [1989] 2 All ER 333, CA (10% where
C was wearing his helmet but had not fastened it securely). Cf Owens v Brimmell [1977] QB
859 (where the passenger accepted a lift knowing the driver was drunk). See Symmons,
‘Contributory Negligence Defences for the Drunken Driver’ (1977) 40 MLR 350.
would have prevented the injury, and a 15% reduction where it would simply have
reduced the severity of the injuries. In Gregory v Kelly,°® however, where the claimant
not wearing his seat belt knew that the car also had a faulty foot-brake, a reduction of
40% was made. Of course, if the claimant had still suffered injuries of equal severity
(albeit of a different type), even if he had worn his seatbelt, no reduction at all would be
ordered.”' In each case, the judge must exercise his discretion to determine just what
share of responsibility for the-accident the claimant should, in fairness, bear. But it is
not an unlimited discretion. In Pitts v Hunt, Beldam LJ commented, obiter, that it was
not possible for a court to order a 100% contribution from the claimant under the 1945
Act.” The terms in which the Act is framed presuppose at least some element of fault
on the part of the defendant, and thus any notion of 100% contributory negligence,
necessarily falls outside its purview. To order a 100% reduction of damages (and thus
negate D’s liability) would be to render nonsensical an Act framed in terms of shared
responsibility.
Section 2. Voluntary assumption of risk
(A) Is assumption of risk properly regarded as a defence?

It has been explained previously that the consent of the claimant may take two forms:
(1) consent to the actual invasion of his interest — eg, where he invited someone to
walk on to his land — or (2) consent to the risk of a tort being committed. Only the latter
is discussed here, for although it is not solely concerned with negligence, the risk
assumed by the claimant is usually that of the defendant’s negligent conduct.
The Latin maxim volenti non fit injuria is commonly used instead of the phrase
‘assumption of risk’ and the two terms will be used interchangeably in this chapter for
its meaning has been described thus:”
If the defendants desire to succeed on the ground that the maxim volenti non fit
injuria is applicable, they must obtain a finding of fact that the [claimant] freely
and voluntarily, with full knowledge of the nature and extent of the risk he ran,
impliedly agreed to incur it.
The courts have looked at the assumption of risk in two different ways. On one view it
suggests that the defendant has not in the circumstances broken a duty of care. On the
other, there is a breach of duty, but a plea of assumption of risk removes the effect of
that negligence.** Whichever of these two judicial approaches is taken, the
consequences are likely to be the same, although a conceptual grasp of the application
of the volenti principle is somewhat easier under the first.
Examples illustrate the two different judicial stances. Suppose that X is walking along
a busy highway when he is hit by a golf ball struck from a tee placed dangerously near
90 [1978] RTR 426.

91 [1978] RTR 483.
92 [1990] 3 WLR 542, at 547, CA.
93 Letang v Ottawa Electric Rly Co [1926] AC 725, at 731, PC (citing Osborne v London and
North Western Rly Co (1888) 21 QBD 220).
94 See the discussion in Reeves v Metropolitan Police Comr [2000] 1 AC 360, HL.
to that highway. If X is an ordinary pedestrian, he may be able to sue the golf club in
negligence, but if, on the other hand, he is a golfer who is crossing the highway in
order to reach the next tee he would fail. One could say that the claimant fails if the
defendant shows that the claimant assumed the risk of the defendant’s negligence. On
the other hand, the fact that the claimant is a golfer is merely one of the circumstances
pertinent to the question of whether the defendant took reasonable care in respect of
this claimant. Sometimes, it will not emerge from the claimant’s evidence that the claimant
comprehended the risk, and then of course, the defendant will himself have to prove
that fact, if it is not obvious,” if he seeks to rebut the claimant’s claim. For example, a
claimant who has been injured while being driven in the defendant’s speed boat may
make out a prima facie case without revealing that the defendant was, to the claimant’s
knowledge, drunk. If the defendant wishes to rely on that further factor, he must prove
it. On one view he is merely adducing evidence of matters which are material in deciding
whether, in all the circumstances of the case, there has been a breach of the duty to
take care.” Alternatively, one could say that the claimant consented to the risk of
negligent driving.
By contrast, a case such as Murray v Harringay Arena Ltd’’ is more easily understood
by treating it as one where there was no breach of duty.
A six-year-old boy was injured when the puck at an ice hockey match was hit out
of the rink in the course of play and landed among the spectators. The Court of
Appeal held that his claim in negligence failed.
It would be straining logic to say that the child concerned had in fact assumed the risk.
Indeed, it may be regarded as a policy decision that organisers of sporting events owe
no duty to any spectators to guard against certain dangers incidental to the ordinary
conduct of the game.
Some judges clearly favour the ‘no duty’ approach. Thus Asquith J has said that:
As a matter of strict pleading it seems that the plea volenti is a denial of any duty
at all, and, therefore, of any breach of duty, and an admission of negligence
cannot strictly be combined with the plea.”
95 Darby v National Trust [2001] EWCA Civ 189, [2001] PIQR P372 (risks involved in swimming
in D’s murky ornamental pond were ‘perfectly obvious’, thus C could not claim ignorance of
the danger). Cf Tomlinson v Congleton Borough Council [2002] EWCA Civ 309, [2003] 2
WLR 1120 (a case decided under the Occupiers’ Liability Act 1984, but involving analogous
principles).
96 Insurance Comr v Joyce (1948) 77 CLR 39 (H Ct Australia). Nettleship v Weston [1971] 2 QB
691, CA shows both techniques in use: Salmon LJ applied the breach of duty approach to the
question of whether a learner driver was liable for injuring his car passenger whereas Lord
Denning MR adopted the standard volenti approach. See also Morris v Murray [1990] 3 All ER
801, at 806-7, CA, per Fox LJ and Watt v Hertfordshire County Council [1954] 2 All ER 368,
CA. (C was a fireman injured because a jack on the back of the lorry on which he was travelling
in the course of his duties slewed forward when the driver had to apply his brakes suddenly. Held
that volenti non fit injuria was irrelevant; the issue was whether, in the circumstances, the
employers were negligent in requiring C to travel on the back of a lorry together with an
unlashed heavy jack and found that there was no failure to take reasonable care.)
97 [1951] 2 KB 529, CA.
98 Dann v Hamilton [1939] 1 KB 509, at 512.
The 1962 decision of the Court of Appeal in Wooldridge v ses is also important.”
A non-paying spectator, a photographer, was injured by: anore competing at a
jumping show. It was held that the rider was not liable in negligence even though
he was guilty of an error of judgment.'°°
The court explained that volenti non fit injuria in English law ‘presupposes a tortious
act by the defendant’.'®' This does not mean, however, that there can never be actionable
negligence within a sporting context. Where, as in Smolden v Whitworth,'” for example,
the referee neglects to officiate a rugby game so as to keep it within the rules (which are
designed, in part, to ensure the players’ safety), it is quite possible for an injured
competitor to sue the referee for his negligence without being met by the defence of
volenti.'°
In an employment context, the courts appear to favour the assumption of risk approach.
In [CI Ltd v Shatwell,'™ the House of Lords eschewed the Wooldridge interpretation.
Instead, their Lordships held that an injured shot-firer could not sue his employer for
the conduct of a fellow shot-firer because he had, in the special circumstances of the
case,'°> assumed the risk of his fellow shot-firer’s negligence. It is suggested here that
the House of Lords found it more convenient to exempt the employer by finding a
defence of consent to negligence than it might have done had it asked whether there
was, in the circumstances, a breach of duty. That is why the survival of both approaches
to the assumption of risk defence are to be expected. And this perhaps explains why, in
Morris v Murray,' the Court of Appeal declined to enter into the niceties of which
theoretical argument was correct preferring simply to judge the merits of the case
before them.
(B) Illustrations of when the claimant is deemed to have assumed the

risk
(1) Suits by employees against employers
The defendant is not liable whenever the claimant is deemed to have absolved him
from liability for the consequences. The rule used to be especially important in actions
by workmen alleging negligence by their employers. Nineteenth-century cases in which
99 [1963] 2 QB 43. In Baker v T E Hopkins & Son Ltd [1959] 3 All ER 225, at 243, CA, Willmer
LJ provided another sound exposition of the principle, saying of a claim by an injured rescuer
that, ‘once it is determined that the act of the rescuer was the natural and probable consequence
of the defendant’s wrongdoing, there is no longer any room for the application of the maxim
volenti non fit injuria’.
100 He would be liable if he failed to take the care expected of a reasonable competitor in a sporting
event: Wilks v Cheltenham Home Guard Motor Cycle and Light Car Club [1971] 2 All ER 369,
CA.
101 [1962] 2 All ER 978, at 990, CA, per Diplock LJ.
102 [1997] PIQR P133.
103 Smoldon v Whitworth [1997] PIQR P133; Watson v British Boxing Board of Control Ltd
[2001] QB 1134, CA. See also Yeo, ‘Accepted Inherent Risks Among Sporting Participants’
(2001) 9 Tort L Rev 114.
104 [1965] AC 656, HL.
105 See post.
106 [1990] 3 All ER 801, at 806.
workmen sued employers for injuries sustained at work held, in effect, that if the
employee knew of the danger, this would be enough, regardless of whether in reality
the employee had any choice but to obey his ‘boss’. The House of Lords (no doubt
reflecting shifting social and economic attitudes) changed this approach by
disapproving one of these early cases, Thomas v Quartermaine,' in the later case of
Smith v Baker & Sons'* where the facts were as follows.
C, who was D’s employee, was employed in drilling holes in a rock cutting, and
was aware of the danger caused by a crane continually swinging crates of stones
above his head. A stone fell out of a crate and injured him. He brought an action
in negligence against D, who pleaded volenti.
The House of Lords held that, notwithstanding the claimant’s knowledge of the risk,
the evidence justified a finding by the jury that he had not voluntarily undertaken it.
Although the House of Lords accepted that ‘a particular consent may be inferred from
a general course of conduct’,'” it was held that knowledge alone is not enough: the
jury must affirm ‘that he consented to the particular thing being done which would
involve the risk, and consented to take the risk upon himself’. Lord Watson said:
The question which has most frequently to be considered is not whether he
voluntarily and rashly exposed himself to injury, but whether he agreed that, if
injury should befall him, the risk was to be his and not his master’s. [Whether
continuing at work knowing of the danger is an assumption of the risk] depends
... upon the nature of the risk, and the workman’s connection with it, as well as
upon other considerations which must vary according to the circumstances of
each case.!!°
Since then, there has been a series of employer-employee cases in which this defence
has been pleaded unsuccessfully on the ground of the employee’s want of consent.
Bowater v Rowley Regis Corpn is typical.'""
C, a carter, was ordered by his employers, Ds to take out a horse known by them
to be unsafe. C protested but eventually took out the horse. Later, C was thrown
off the cart when the horse bolted. C sued in negligence in respect of his injuries.
The Court of Appeal rejected the defence of volenti non fit injuria. Goddard LJ said:
... it can hardly ever be applicable where the act to which the servant is said to be
‘yolens’ arises out of his ordinary duty, unless the work for which he is engaged
is one in which danger is necessarily involved.'"”
Yet where the claimant was susceptible to dermatitis, and both she and her employer
knew this, and her employer found her work that entailed only a slight risk of the
disease, the employer was held not liable for her then contracting it. He was not
obliged either to dismiss her or to make the work safe for her with her particular
107 (1887) 18 QBD 685, CA.

108 [1891] AC 325, HL. Cf Yarmouth v France (1887) 19 QBD 647, CA.
109 [1891] AC 325, at 338, HL, per Lord Halsbury LC.
110 [1891] AC 325, at 355, HL.
111 [1944] KB 476, CA.
112 [1944] KB 476, at 480-1.
susceptibility. She took the risk and could not then complain.' In JCI Ltd v Shatwell,'*
the House of Lords expressly supported the general principle that assumption of risk
will not ordinarily defeat a claim by an employee against his employer. At the same
time, it recognised that where the claim rested on vicarious liability for joint and flagrant
disobedience of a safety'rule by the claimant and his wrongdoing fellow-servant, and
where the latter was not the superior of the claimant (or one whose orders he was
bound to obey), the employer would exceptionally be able to invoke the defence
against the employee.
(2) Drunken pilots/drunken drivers''*

In invoking the defence of volenti, it is important to show that the claimant was well
aware that he ran a risk of injury. In Nettleship v Weston''* the friend teaching the
claimant how to drive naturally knew that as a very inexperienced learner she was more
likely to cause an accident endangering him than an experienced driver. But he had
expressly asked for reassurance that she was properly insured. He did not, in other
words, accept full responsibility for whatever befell him. He neither undertook not to
sue her, nor to absolve her from any duty otherwise owed to him.
Where no pre-existing relationship exists between the parties, volenti can rarely apply.
In such cases, the defence will only be relevant in strictly defined and fairly exceptional
circumstances. Cases relating to drunken drivers/pilots and their passengers are
instructive. Consider first Dann v Hamilton.'"’
C voluntarily accompanied D as a passenger in a car driven by D, knowing that
D was under the influence of drink to such an extent that the chances of a
collision from negligent driving were substantially increased. She was injured
by his negligent driving and her action was held not to be barred by the defence
of volenti non fit injuria.
Asquith J held that the maxim applied ‘where a dangerous physical condition has been
brought about by the negligence of the defendant, and, after it has arisen, the [claimant],
fully appreciating its dangerous character, elects to assume the risk thereof’.''® Although
he doubted whether the defence could lie where the consent of the claimant preceded
the act of negligence complained of, the ratio of his judgment is probably no more
than a finding of fact that:
[T]he [claimant], by embarking in the car ... with knowledge that through drink
the driver had materially reduced his capacity for driving safely, did not impliedly
113 Withers v Perry Chain Co Ltd [1961] 3 All ER 676, CA. (But might this decision be better
explained in terms of no breach of duty in the circumstances?). Cf Paris v Stepney Borough
Council [1951] AC 367, HL.
114 [1965] AC 656, HL.
115 Cases of drunken drivers are useful to illustrate the underlying principles but must now be dealt
with subject to the Road Traffic Act 1988. See post.
116 [1971] 2 QB 691, CA.
117 [1939] 1 KB 509.
LES [1939] eBeS 09 Rat S17:
consent to, or absolve the driver from, liability for any subsequent negligence
on his part whereby she might suffer harm.!!
Indeed, it is suggested here that the preferable view is that volenti is crucially concerned
with consent to future risks. This notion of the defence is supported by a considerable
body of case law.'”? It has also received plenty of academic support.'2! But are the two
notions mutually exclusive? Only if they are is it necessary to select between one or
other of the interpretations just outlined. According to Diplock LJ, they would indeed
appear to be alternatives on the basis that volenti only applies where the claimant
consents to future risks. He stated forthrightly that it would make a nonsense to say
that the claimant ‘agreed to run the risk that the defendant might be negligent ...
[where] the claimant would only play his part after the defendant had already been
negligent’ .!”?
For several years in England, though not in other Commonwealth jurisdictions, !”3
Dann v Hamilton was accepted as authority for the proposition that accepting a lift
from an obviously inebriated driver would almost certainly constitute contributory
negligence'™ but would not give rise to a successful plea of volenti. Indeed, it might
almost be said that volenti went out of fashion. But half a century later, in Pitts v
Hunt,'*> the material facts were as follows.
C was a pillion passenger on a motorcycle ridden by D. He knew that D was

uninsured and had no licence. After four hours of drinking together, C ‘egged-
on’ D in ‘reckless, irresponsible and idiotic’ riding of the motorcycle culminating
in a disastrous accident. Section 148(3) of the Road Traffic Act 1972 [now section
149 of the Road Traffic Act 1988] prevented the defence of volenti from applying
in road traffic cases, but apart from that provision, the Court of Appeal judged
that, notwithstanding Dann v Hamilton, a plea of volenti would have defeated
C’s claim.
In the event, the court held that the claimant’s grossly irresponsible conduct and
participation in several road traffic offences gave rise to a successful defence of ex
turpi causa non oritur actio.'*° Then came Morris v Murray'’ in which the facts were
these:
C and the deceased spent the afternoon drinking together. The latter, C agreea,
had consumed about 17 whiskies! C then agreed to the deceased’s proposal that
119 [1939] 1 KB 509, at 518 (approved in Slater v Clay Cross Co Lid [1956] 2 QB 264, CA). But
note the partial defence of contributory negligence may be available to the drunken driver:
Owens v Brimmell [1977] QB 859.
120 See, eg, Wooldridge v Sumner [1962] 2 All ER 978, at 990, CA, per Diplock LJ; Baker v TE
Hopkins & Son Ltd [1959] 1 WLR 966, at 983, CA, per Willmer LJ and Morris v Murray
[1991] 2 QB 6, at 17, 28 and 32, CA, per Fox, Stocker and Waller LJJ.
121 See, eg, Jaffey, ‘Volenti Non Fit Injuria’ [1985] CLJ 87; Kidner, ‘The Variable Standard of
Care, Contributory Negligence and Volenti’ [1991] Legal Studies 1 and Murphy, ‘Negligently
Inflicted Psychiatric Harm — A Re-appraisal’ [1995] Legal Studies 415.
122 Wooldridge v Sumner [1962] 2 All ER 978, at 990, per Diplock LJ. See also Nettleship v Weston
[1971] 3 All BR 581, at 587, per Lord Denning MR and /C/ v Shatwell [1965] AC 656, HL.
123 See in particular Insurance Comr v Joyce (1948) 77 CLRBY
124 Owens v Brimmell, supra.
125 [1991] 1 QB 24.
126 See ch 6.
127 [1991] 2 QB 6, CA.
.S
he take him up for a flight in a light aircraft. At the aerodrome, C helped to prepare
the aeroplane. Soon after take-off, the plane crashed killing the pilot and severely
injuring C who brought an action against the deceased’s estate.
The Court of Appeal upheld the plea of volenti. They said that accepting a flight with
an obviously drunken pilot was to be held to be akin to confronting deliberately some
dangerous physical condition brought about by the defendant. Whether one says
that the claimant could not have supposed that the defendant was capable of discharging
any normal duty of care, or that the claimant, impliedly by his conduct, waived any
duty towards him, the result is the same. A person voluntarily co-operating in a flight
with an intoxicated pilot takes the risk upon himself. Flying is of a different order of
danger to driving on the roads.
Morris v Murray raises two further, wider questions about volenti. The first is whether
the test for volenti is an objective or a subjective one. Earlier (slight) authority suggested
an objective test,'** but Stocker LJ'”? later cast doubt on this approach. On the facts of
Morris v Murray, such an answer would require that a drunken claimant be excused
from the consequences of his own actions,.for no sober person would have done as
the claimant did. The question must be answered on the facts of the case: ‘did the
claimant appreciate the danger he faced, and was he capable of accepting responsibility
for what happened to him?’. The second question is one of policy. Might one argue
that, in some circumstances, to allow a defence of vo/enti runs counter to the public
interest because the defendant is allowed to escape the consequences of his own
gross irresponsibility. Fox LJ answered the point in this way:
It seems to me ... that the wild irresponsibility of the venture is such that the law
should not intervene to award damages and should leave the loss where it
falls.'°°
(3) Dangerous activities

A final context in which volenti may be applicable concerns participation in dangerous
activities, including sport. Before the defence can arise, of course, the defendant must
show that the claimant consented not only to some risk of harm intrinsic to the game,
but also to the particular risk which culminated in injury to him. Gillmore v LCC"!
illustrates this point.
C was a member of a physical training class run by Ds. During an exercise in
which the members of the class were lunging at each other, C was injured through
losing his balance on a floor which was slippery due to Ds’ negligence.
Du Parcq LJ held'*’ that the claimant had not consented to the risk incidental to doing
physical training on a slippery floor (although, of course, he had consented to the
128 Bennett v Tugwell [1971] 2 QB 267.

129 [1990] 3 All ER 801, at 817, CA.
130 [1990] 3 All ER 801, at 807, CA.
131 [1938] 4 All ER 331.
132 [1938] 4 All ER 331, at 336.
physical contacts which might occur in the course of the lunging exercise) and therefore
the defence of assumption of risk failed.!33
(C) Voluntary act

Not only must the claimant consent to the risk, he must also assume the risk freely and
voluntarily. The decisions on claims by employees constitute, in effect, Judicial
recognition that economic pressures negative voluntary conduct in the sense indicated
by Scott LJ in Bowater v Rowley Regis Corpn.'** There, his Lordship said:
For the purposes of the rule ... a man cannot be said to be truly ‘willing’ unless he
is in a position to choose freely, and freedom of choice predicates, not only full
knowledge of the circumstances on which the exercise of choice is conditioned,
so that he may be able to choose wisely, but the absence from his mind of any
feeling of constraint so that nothing shall interfere with the freedom of his will.'°5
Accordingly, the courts have, with one early exception,'** consistently refused to
allow the defence of volenti non fit injuria to lie against rescuers.'*’7 They are not
genuine volunteers. Nor do they, in responding to the call for rescue (even if their job
requires them to go to a citizen’s aid'*), take upon themselves the risk of injury and
impliedly waive any duty owed to them.!°?
An analogous case obtains with respect to suicides who are owed a protective duty
by either hospital or prison authorities. The question that arises is whether such
authorities may raise the defence of volenti non fit injuria when a patient/inmate
attempts or commits suicide. And the House of Lords in Reeves v Metropolitan Police
Comr,'* had to grapple with this very question. Their Lordships held that once it has
been established'*! that the defendant was under a duty to prevent the inmate
attempting suicide, the defendant could not later invoke the volenti defence to escape
liability in respect of the inmate’s suicide. Allowing the defence to be raised in this way,
they said, would effectively empty the initial duty of any real content. The state of the
inmate’s mind (and the related question of whether his act was truly voluntary) could
133 Cleghorn v Oldham (1927) 43 TLR 465 is also explicable on this ground. It involved C
recovering damages against her golf companion who had injured her with a golf club on the
course.
134 [1944] KB 476.
135 Cf Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141, at 151, CA, per Hodson
LJ (affd sub nom, General Cleaning Contractors Ltd v Christmas [1953] AC 180, HL).
136 Cutler v United Dairies (London) Ltd [1933] 2 KB 297, CA.
137 Haynes v Harwood [1935] 1 KB 146, CA.
138 Ogwo v Taylor [1988] AC 431, HL (a fireman).
139 D’Urso v Sanson [1939] 4 All ER 26 (night-watchman extinguishing fire on employers’
premises). Cf Merrington v Ironbridge Metal Works Ltd [1952] 2 All ER 1101; Baker v T E
Hopkins & Son Ltd [1959] 3 All ER 225, CA (doctor-rescuer); Sylvester v Chapman Ltd
(1935) 79 Sol Jo 777: C mauled by leopard at an animal show of D’s when he crossed the barrier
to extinguish a cigarette smouldering in the straw between the barrier and the cage ‘was not
rescuing anyone from imminent danger of death, nor even preventing damage to property,
since there were people who could easily have done with precautions what he did’ (per Lord
Wright MR); therefore he had no cause of action against D.
140 [2000] 1 AC 360, HL.
141 See Orange v Chief Constable of West Yorkshire Police [2001] EWCA Civ 611, [2002] QB 347.
be disregarded as irrelevant. The same approach would therefore apply to a mental

patient.'” ‘s
In rare instances, mere knowledge ofa risk will bar the claimant, for example, ifhe is the
gratuitous bailee of a defective chattel. The defendant can say to the claimant: “Take it
or leave it’. Conversely, since it is clear that one cannot speak of some constant
defence of assumption of risk, reasons of policy will sometimes dictate that a claimant
will not fail even though he has freely encountered a known risk (eg, where the claimant
has a right to face the risk, such as where he walks along a highway or exercises a right
of access'**). This last class of case illuminates the relationship between assumption
of risk and the defence of contributory negligence.'** Although the defendant cannot
maintain that the claimant has assumed the risk, he may show that, nonetheless, the
claimant’s conduct was so unreasonable in the light of the risk that it constituted
contributory negligence. Because the effect of establishing the defence of contributory
negligence used to be the same as volenti, the courts have sometimes, in the past, not
been careful to heed the distinctions between them. But, since the passing of the Law
Reform (Contributory Negligence) Act 1945 the distinction has become critical. Now, if
the defence of assumption of risk is made out, the claimant still recovers nothing.'*°
But if contributory negligence is relied on, the defendant will only have a partial
defence: the damages will be reduced only to the extent to which the claimant was
responsible for the damage.
Section 149 of the Road Traffic Act 1988 applies where vehicles are being used in
circumstances where third party insurance is compulsory. It provides:
... lf any other person is carried in or upon the vehicle while the user is so using
it, 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 to negative or restrict any such liability of the user ... [to passengers] ... and
the fact that a person so carried has willingly accepted as his the risk of negligence
on the part of the user shall not be treated as negativing any such liability of the
user.
This provision rules out the defence of volenti non fit injuria in any action brought by
a passenger against the driver of a vehicle on a public road.'*°
The theoretical basis for the defence of volenti non fit injuria has attracted considerable
academic interest and debate.'*’ Yet, current judicial attitudes are perhaps most clearly
expressed by Lord Herschell in Smith v Baker & Sons. He said:
142 The same approach was taken with respect to the argument that the inmate’s suicide constituted
a novus actus interveniens and the argument (in the Court of Appeal) that the ex turpi causa
defence could be raised.
143 Clayards v Dethick and Davis (1848) 12 QB 439. In Burnett v British Waterways [1973] 2 All
ER 631 (C, a lighterman, was injured in D’s dock having read a notice that he entered at his own
risk. Volenti did not apply: C had not agreed to be bound by its terms and had no choice in the
matter).
144 See further Kidner, ‘The Variable Standard of Care, Contributory Negligence and Volenti’
[1991] 11 Legal Studies 1.
145 As in Morris v Murray [1991] 2 QB 6, CA.
146 Pitts v Hunt [1990] 3 All ER 344, at 356-7, 359 and 366 (but note applicability of the defence
of ex turpi causa).
147 See Jaffey, ‘Volenti Non Fit Injuria’ [1985] CLJ 87; Kidner, ‘The Variable Standard of Care,
Contributory Negligence and Volenti’ [1991] Legal Studies 1 and Murphy ‘Negligently Inflicted
Psychiatric Harm — A Re-appraisal’ [1995] Legal Studies 415.
The maxim is founded on good sense and justice. One who has invited or assented
to an act being done towards him cannot, when he suffers from it, complain of it
as a wrong.'**
Section 3. Excluding liability

The already limited application of the defence of volenti is further restricted by the
operation of the Unfair Contract Terms Act 1977. That Act, misrepresents itself by its
title. In certain circumstances, it in fact applies to tort as well as contract where there is
a purported unilateral exclusion of liability by the defendant. To make matters worse,
on occasion, the Act must be read in tandem with the Unfair Terms in Consumer
Contracts Regulations 1994'” which impose even greater restrictions on the ability to
exclude liability than those discussed below where (i) the tortious duty co-exists beside
a contractual obligation in a consumer contract and (ii) the terms of that contract have
not been individually negotiated.
The Act applies'” to ‘business liability’ only. That term refers to liability arising from
‘things done or to be done by a person in the course of a business’ and the occupation
of premises used for ‘business purposes’. Section 2 prohibits altogether exclusion or
limitation of liability for death or personal injury resulting from negligence.'*' Any
contract term or notice purporting so to do is invalid. In the case of loss other than
death or personal injury, or death or personal injury resulting from a tort other than
negligence, an exclusion or limitation of liability is invalid ‘except in so far as the term
or notice satisfies the requirement of reasonableness’ .'* Finally, section 2(3) provides:
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.
Several questions must be asked about the operation of the 1977 Act. Business liability
is nowhere comprehensively defined. Professions'*’ and central and local government
are expressly included within the term. But what of the work of a charity? It is suggested
here that it probably is. The test does not appear to be whether the defendant is a
profit-making commercial enterprise. The distinction is one between the domestic and
the business sector of life. In view of section 2(3), can volenti ever now operate
against a business? There is as yet no conclusive authority on the point. Clearly,
knowledge of the unilateral exclusion of liability by notice will be insufficient, but so
would it be at common law. An agreement per se will not be binding.
In Johnstone v Bloomsbury Area Health Authority'™ a junior hospital doctor

brought an action against his employers alleging damage to his health caused
by the unreasonable hours he was required to work. Refusing to strike out the
148 [1891] AC 325, at 360, HL. Cited with approval by Fox LJ in Morris v Murray [1990] 3 All ER
801, at 807, CA.
149 SI 1994 No 3159.
150 Unfair Contract Terms Act 1977, s 1.
151 Unfair Contract Terms Act 1977, s 2(1). *
152 Unfair Contract Terms Act 1977, s 2(2). And for a definition of reasonableness see s 11 and
Governor and Company of the Bank of Scotland v Fuller Peiser [2002] PNLR 289.
153 See Smith v Eric S Bush [1990] 1 AC 831, HL.
154 [1992] QB 333, CA.
claim, the Court of Appeal took the view that a clause in his contract imposing
those hours of work could only constitute volenti or af attempt to limit the
employer’s duty of care. If it was the latter, it might well fall foul of the 1977 Act.
It remains to be seen whether there are residual circumstances — perhaps when the
claimant takes the initiative — where volenti might still operate.
The crux of the question in many cases where the operation of the 1977 Act is in issue
will often be bifurcated. (1) has a breach of duty been proved and purportedly excluded?
(2) In the case of loss other than death or personal injury, was the exclusion of liability
reasonable? The first question may be difficult to answer. Consider a lecturer asked by
a student to advise him on a lease for a flat saying to the student ‘This is only general
advice ... 1am nota practising solicitor ... |cannot accept liability for what I say’. Is the
lecturer excluding liability, or limiting the duty owed to the student (if any), or simply
indicating the standard of care to be expected from him?
What is now clear is that the effect of sections 11(3)'* and 13(1)'*¢ of the Act ensure
that where, ‘but for’ a purported disclaimer, a common law duty of care would have
arisen, the Act operates to strike down or limit the extent of that disclaimer. In Smith v
Eric S Bush,'*’ surveyors were instructed by the building society to inspect and report
on a house the claimant wished to buy. The surveyors expressly excluded any liability
to the claimant herself. The House of Lords found: that (1) in the absence of the
purported disclaimer, a duty of.care was owed to the claimant,'** and, (2) in the
circumstances, the disclaimer was unreasonable. In the vast majority of cases, house
purchasers, as surveyors well know, rely on the report commissioned by the building
society (a report for which they in fact pay).
Lord Griffiths’ suggested four factors by which to gauge reasonableness under the
Act: (1) whether the parties were of equal bargaining power; (2) whether it was
practicable to expect the claimant to obtain independent advice; (3) the complexity of
the task which formed the subject of the disclaimer; (4) the practical consequences of
striking down the disclaimer.'©
The operation of the 1977 Act and the 1994 Regulations both in practice still require
further elaboration and interpretation. What is clear, however, is that there can no
longer be any foolproof exclusion notice or agreement.
155 Section 11(3) provides: ‘... the requirement of reasonableness under the Act is that it should be
fair and reasonable to allow reliance [on the disclaimer], having regard to all the circumstances
obtaining when the liability arose or (but for this notice) would have arisen’.
156 Section 13(1) provides: ‘To the extent that this Part of this Act prevents the exclusion or
restriction of any liability it also prevents — (a) making liability or its enforcement subject to
restrictive or onerous conditions; (b) excluding or restricting any right or remedy in respect of
the liability, or in subjecting a person to any prejudice in consequence of his pursuing any such
right or remedy; (c) excluding or restricting rules of evidence or procedure; and (to that extent)
ss 2 and 5 to 7 also prevent excluding or restricting liability by reference to terms and notices
which exclude or restrict the relevant obligation or duty’.
S790 VA Cessienriiie
158 [1990] 1 AC 831, at 839-841.
159 Had the Unfair Contract Terms Act 1977 been in force at that time, would the disclaimer in
Hedley Byrne & Co v Heller & Partners [1964] AC 465, HL have survived judicial scrutiny?
160 Would such action increase the cost/availability of the service?
CHAPTER 16
Liability for defective premises and

SUGUGIULES
Liability for defective premises,' to those who suffer loss or damage on those premises,’
may in general rest with two main types of defendant. First, the person actually
occupying the premises may be held responsible. Here responsibility is generally for
personal injuries, such as a broken ankle sustained when a rotten floorboard gives
way. Secondly, someone other than the occupier may be liable for defects in the
premises. This latter category of potential defendants is broad in scope and includes
landlords, builders and professionals such as architects and consulting
engineers. While in some cases the relevant defect causes personal injury — perhaps
an employee’s broken ankle caused by a landlord’s failure to repair the premises rented
by his employer — in many cases the claimant may complain of economic loss (eg,
where he discovers that the house which one bought from a development company is
falling apart after the development company has gone into liquidation). An action
against the original builder or architect in such circumstances is designed to recover
the financial loss represented by the property’s diminished value and/or the cost of
repair. In line with the general trend, we shall see that the liability of non-occupiers for
economic loss associated with defective premises is now significantly restricted in
scope.
Section |. Occupiers’ liability

Occupiers’ liability is nowadays predominantly defined by statute, but there remains
(at least according to case law) a small, residual role for the common law in relation to
certain negligently performed activities taking place on the defendant’s premises.’ For
this reason, it is necessary to consider the liability of occupiers under three headings. We
1 For the purposes of this chapter, the term ‘premises’ shall be used for convenience to connote
not just any building owned by D, but also any land owned by him, regardless of whether there
are any buildings on it. An action is equally viable, under the Occupiers’ Liability Acts, in either
case.
2 IfC was elsewhere than on the D’s premises when he was injured, he must frame his action in
terms of negligence, nuisance (whether private or public) or the rule in Rylands v Fletcher.
3 See Revill v Newbery [1996] 1 All ER 291, at 298, CA (obiter); Fowles v Bedfordshire County
Council [1995] PIQR P389, CA.
deal first with the rules embodied in the Occupiers’ Liability Act 1957, which operates
with respect to visitors to the defendant’s premises. Setondly, we consider the
Occupiers’ Liability Act 1984, governing liability to non-visitors. Finally, we consider
the residual common law rules that apply both to visitors and non-visitors where they
are injured by particular activities on the defendant’s premises.
(A) Liability to visitors: the Occupiers’ Liability Act 1957
(1) Who is an occupier?

The first precondition of a defendant’s liability under the Occupiers’ Liability Act 1957
is that he be the occupier of the premises on which the claimant’s loss occurs. The
Occupiers’ Liability Act 1957 provides no statutory definition of occupier but instead
states that those who would be treated as occupiers at common law should be treated
likewise for the purposes of the Act.* The leading definition of ‘occupier’ stems from
Wheat v E Lacon & Co Ltd:°
The Ds owned a public house of which Mr R was their manager. Mr R and his
wife were allowed by agreement to live in the upper floor, access to which was by
a door separate from the licensed premises. Mrs R was allowed to take paying
guests on the upper floor. An accident was sustained by a paying guest on the
staircase leading to the upper floor. It was held that although C was injured in
the private area of the premises, the Ds (along with Mr and Mrs R) were still
liable. They had enough residuary control over that part of the premises to be
treated as occupiers.
The case thus clarifies that there may be two or more occupiers simultaneously and
that exclusive occupation is not required. The test is whether a person has some
degree of control associated with, and arising from, his presence in and use of, or his
activity in, the premises. A good example of the scope for multiple occupancy can be
seen in the case of AMF International Ltd v Magnet Bowling Ltd’ where a contractor,
together with the owner, was held to be an occupier of the premises in which the
claimant’s equipment was damaged by rainwater that entered the building via a leaking
doorway. Both the contractor and the owner of the premises had sufficient control
over the whole building to be regarded as its joint occupiers.’
4 Occupiers’ Liability Act 1957, s 1(2).

5) [1966] AC 552, HL.
6 [1968] 2 All ER 789. See also Fisher vyCHT Ltd (No 2) [1966] 2 QB 475, CA (both D, who ran
a restaurant in a club, and the owners of the club were held to be occupiers). Note, however,
that a highway authority that has a statutory obligation to maintain a footpath which lies on
land owned by another is not the occupier of that footpath: Whiting v Hillingdon London
Borough Council (1970) 68 LGR 437. Nor is it the occupier of a highway that has not been
adopted, even if the occupier owns the relevant land: Holmes v Norfolk County Council (1981)
131 NLJ 401. On the other hand, where the occupier has adopted the highway, there will be
liability for both negligent misfeasance and negligent nonfeasance under the Highways Act
1980, s 58 (save where the loss is pure economic loss: Wentworth v Wiltshire County Council
[1993] 2 All ER 256, CA).
7 In such cases, the degree of care that C may expect from each occupier is determined by the
degree of control held by each: Wheat v Lacon, [1966] AC 552, at 581 and 601, per Lords
Denning Pearson.
Liability for defective premises and structures 333
On the question of who may qualify as a sole occupier for the purposes of the Act, it
is clear that the following earlier decisions remain sound. A concessionaire without a
lease in a fairground is an occupier;' so too is a local authority that has requisitioned
a house” (even in respect of those parts of the house in which it allows homeless
persons to live);'° and a contractor converting a ship into a troopship in dry dock
occupies the ship.'' By contrast, a decorator undertaking to do no more than paint a
house does not have sufficient control to be regarded as its occupier."
(2) Scope of the Act
Prior to the enactment of the Occupiers’ Liability Act 1957, the duty owed by an
occupier to entrants upon his land varied according to their common law status. The
highest standard of care was owed to those, such as hotel guests, who were on his
land by virtue of contract. A lesser duty was owed to his invitees,'* and a lower duty
still was owed to mere licensees (ie, those permitted but aot requested to be there),
while in relation to trespassers the occupier’s obligation was merely to refrain from
deliberately or recklessly causing them injury.'* A further complexity lay in the fact that
the content of the duty varied according to the manner in which the claimant’s injury
was sustained: a distinction was drawn between injuries sustained by virtue of
something done on the defendant’s premises and injuries caused merely by the
dangerous state of the premises.'* The Occupiers’ Liability Act 1957 was enacted to
give effect to the recommendations contained in the Law Reform Committee’s Third
Report'® designed to eliminate the confusion that clouded the common law rules on
liability to entrants on premises. Thus, sections 2 and 3 of the Occupiers’ Liability Act
1957 ‘have effect, in place of the rules of the common law, to regulate the duty which an
occupier of premises owes to his visitors in respect of dangers due to the state of the
premises or to things done or omitted to be done on them’.'”
(A) Vistrors
The Occupiers’ Liability Act 1957 imposes a duty in respect only of ‘visitors’.'* And
‘visitors’, for the purposes of the Act, are those persons who were invitees or licensees
at common law: that is, anyone to whom an occupier gives any invitation or permission
Humphreys v Dreamland (Margate) Ltd [1930] All ER Rep 327, HL.

oO
\© Hawkins v Coulsdon and Purley UDC [1954] 1 QB 319, CA.
10 Greene v Chelsea Borough Council [1954] 2 QB 127, CA; Harris v Birkenhead Corpn [1976]
1 All ER 341, CA (a local authority, having acquired a house by compulsory purchase, occupies
it even before its staff enter it).
11 Hartwell v Grayson Rollo and Clover Docks Ltd [1947] KB 901, CA.
12 Page v Read (1984) 134 NLJ 723.
13 That is, those who had a mutual business interest with the occupier, such as customers in a
shop.
14 Hans Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358, HL.
15 These were termed, respectively, the ‘activity duty’ and the ‘occupancy duty’.
16 Cmd 9305.
17 Occupiers’ Liability Act 1957, s 1. vi
18 In doing so, it envisages not only personal injury suffered by a visitor, but also any property
damage he may suffer: Occupiers’ Liability Act 1957, s 1(3)(b).
19 Occupiers’ Liability Act 1957, s 1(2). It is also provided that contractual entrants, in so far as
they have not legitimately provided otherwise in their contract, shall also be afforded the
common duty of care.
»
to enter or use his premises. Accordingly, in terms of the level of duty owed, the
common law distinction between invitees and licensees ‘fs no longer of any real
importance.”’ It does, however, remain important to distinguish between visitors on
the one hand, and other entrants on the other, because the duties of an occupier to
those other entrants are governed not by the Occupiers’ Liability Act 1957 but by the
later Occupiers’ Liability Act 1984.*! This raises the question of whether, in the case of
multiple occupiers, a person may be a visitor in relation to Occupier A but a trespasser
in relation to Occupier B? Lord Goff answered this question in Ferguson v Welsh:
If it is the case that only one such occupier authorises a third person to come
onto the land, then plainly the third person is vis a vis that occupier, a lawful
visitor. But he may not be a lawful visitor vis a vis the other occupier. Whether
he is so or not must, in my opinion, depend on the question whether the occupier
who authorised him to enter had authority, actual (express or implied) or ostensible
authority, from the other occupier to allow the third party onto the land ... if he
had not, then the third party will be, vis a vis that other occupier, a trespasser.”
Those entrants covered by the Occupiers’ Liability Act 1984 are often called trespassers,
but the class is not confined only to persons whose presence constitutes a trespass to
premises. If they are on the premises of the defendant without his permission, then
even though they have not gone there voluntarily” — eg, if they have been thrown or
chased there — they fall within this group, just as much as if they have committed the
tort of trespass. Similarly, although he is not a trespasser:
... a person entering any premises in exercise of rights conferred by virtue of an
access agreement or order under the National Parks and Access to the Countryside
Act 1949, is not, for the purposes of [the Occupiers’ Liability Act 1957], a visitor
of the occupier of those premises.”
The same non-visitor status extends to those using a private right of way.”> But a more
complex situation exists with respect to persons who sustain injury on a public right of
way. At one time it was thought that no-one using a public right of way could be
classified as a visitor for the purposes of the Occupiers’ Liability Act 1957.7 However,
20 Campbell v Northern Ireland Housing Executive [1996] 1 BNIL 99. For an argument that it
ought, in a limited set of circumstances, to have importance see Murphy, ‘Public Rights of
Way and Private Law Wrongs’ (1997) Conv 362.
21 Stone v Taffe [1974] 3 All ER 1016, CA is one of the few cases since the Occupiers’ Liability
Act 1957 to turn on this distinction. (Pub manager in breach of contract allowed C and others
to have a party after hours. C, who was unaware of that restriction in the contract, was held to
be a visitor, not a trespasser, vis a vis the brewery employer.)
22 [1987] 3 All ER 777, at 785, HL.
23 If D’s negligence causes a licensee involuntarily and unpremeditatedly to encroach slightly on
land where he has no permission to go, he retains the rights of a licensee: Braithwaite v
Durham Steel Co Ltd [1958] 3 All ER 161.
24 Occupiers’ Liability Act 1957, s 1(4). (This subsection is due to be amended to include also a
reference to those exercising access rights under the Countryside and Rights of Way Act 2000,
when that Act comes into force.)
25 Vodden v Gayton [2001] PIQR P52.
26 Greenhalgh v British Railways Board [1969] 2 QB 286, at 292-3, CA, per Lord Denning MR.
On the other hand, although no action will lie for nonfeasance according to McGeown v
Northern Ireland Housing Executive [1995] 1 AC 233, HL, contrast Thomas v British Railways
Board [1976] QB 912, CA where it was said that an action can be brought in respect of any
injury caused by D’s misfeasance — eg, digging and leaving uncovered a hole in the right of way
into which C later falls).
following the House of Lords decision in McGeown v Northern Ireland Housing

Executive,”’ the matter appeared to be rather less straightforward.
C’s husband was the tenant of a house on Ds’ housing estate. The house was
accessed by a path over which the public had acquired a right of way. It was
upon this path that C tripped and sustained a broken leg. She argued that Ds
were liable to her as a visitor under the Occupiers’ Liability Act (Northern Ireland)
1957.°* The House of Lords held that she was not a visitor and therefore could
not sue under the statute.
The complexity in this case stems from the fact that their Lordships confined their
decision to persons using a public right of way qua member of the general public (eg,
a hiker who neither knows nor is interested in who owns the solum of the right of
way’). As Lord Keith put it: ‘[o]nce a public right of way is established, there is no
question of permission being granted by [sic] those who choose to use it’.2° The idea
of using a right of way by virtue of ‘permission’ is similar to that of using it gua
licensee. But what, wondered Lord Browne-Wilkinson, of those who are expressly
invited onto the land?
In the case of an invitee there is no logical inconsistency between the claimant’s
right to be on the premises in exercise of the right of way and his actual presence
there in response to the express or implied invitation of the occupier. It is the
invitation which gives rise to the occupier’s duty of care to an invitee.*!
This obiter proposition has since been dismissed by the Court of Appeal in Campbell
v Northern Ireland Housing Executive where a claimant who was injured on a public
right of way, on the way to the shops, was held to be outside the scope of the Occupiers’
Liability Act 1957. Despite this rejection of Lord Browne-Wilkinson’s distinction, there
is much to be said for the logic underscoring his view, even though it would mean
giving new life, in the limited context of persons using public rights of way, to the
significance of invitee/licensee dichotomy.”
Whether one accepts or rejects Lord Browne-Wilkinson’s proposition, the pre-Act
cases on implied invitations to be on the occupier’s premises remain in full force since,
as we have seen, the Act reconstitutes those who were invitees under the old law as
visitors under the 1957 Act. In Edwards v Railway Executive it was held that permission
should not be implied merely because the occupier knew of the claimant’s presence or
because he failed to take the necessary steps to prevent his entry. Rather, *[t]here must
be evidence either of express permission or that the land-owner has so conducted
himself that he cannot be heard to say that he did not give it’.> 34
27 [1995] 1 AC 233, HL.

28 The same, in all material respects, as the English Act of that name and year.
29 Cf hikers exercising access rights under the Countryside and Rights of Way Act 2000: such
persons will be specifically denied the status of visitor under the amended Occupiers’ Liability
Act 1957, s 1(4)(a) when the Countryside and Rights of Way Act 2000 comes into force.
30 [1995] 1 AC 233, at 246, HL. Presumably, his Lordship meant to say ‘granted fo those who
choose to use it’.
31 [1995] 1 AC 233, at 248, HL.
32 [1996] 1 BNIL 99.
33 See further, Murphy, ‘Public Rights of Way and Private Law Wrongs’ (1997) 61 Conv 362.
34 [1952] AC 737, at 747, HL, per Lord Goddard.
In each case, it is a question of fact whether permission to enter can be implied and the
burden of proving its existence rests with the claimant seeking to rely on it.** The rules
are the same for children, but must be applied with a degree of common sense. In
relation to children, for instance, permission might be implied on the basis of an
‘allurement’ that would present no temptation to an adult. In Glasgow Corpn v Taylor,*®
for example, shiny red berries growing in the open on the defendant’s land were held to
be an allurement to a child aged seven, to whom the berries looked like cherries or
blackcurrants. Similarly, an abandoned and rotting boat has been held to constitute an
allurement to children for present purposes.*’ On the other hand, the mere fact that the
occupier has on his premises a dangerous object which is alluring to children does not
make him liable to every child who comes onto his land, although the presence of the
object in a place which is accessible to children may aid the inference of permission to
enter.** If the child can be shown to be a trespasser — perhaps because he was aware
from a notice that the owner did not want him to be present there — then he shall be
afforded only the level of protection afforded to trespassers under the Occupiers’
Liability Act 1984. Moreover, in some circumstances occupiers are deemed only to
permit young children onto their land subject to the condition that they are accompanied
by a responsible adult.*?
Of course, in cases concerning adults, it is largely inapposite to talk of implied permission
based on allurements. Instead, permission will have to be implied from rather different
facts. But, as Lord Porter pointed out in the Edwards case:
... an open pathway, as in Cooke v Midland Great Western Rly of Ireland,* or a

knowledge that a track is and has long been constantly used, coupled with a
failure to take any steps to indicate that ingress is not permitted, as in Lowery v
Walker,*' may well amount to a tacit licence.”
Persons entering as of right, such as police with search warrants and the host of
officials empowered by statute to enter premises, are specifically deemed by the
Occupiers’ Liability Act 1957 to be present with the occupier’s permission.*
Boy [9S2 PAC 737. He.

36 [1922] 1 AC 44, HL.
37 Jolley v Sutton London Borough Council [2000] 1 WLR 1082, HL.
38 Hardy v Central London Rly Co [1920] 3 KB 459, CA; Latham v R Johnson and Nephew Ltd
[1913] 1 KB 398, CA.
39 Latham v R Johnson and Nephew Ltd [1913] 1 KB 398, CA; Bates v Stone Parish Council
[1954] 3 All ER 38, CA (no circumstances to qualify the permissions given by Ds to infant
children to enter their playground; three-year-old child held to be a licensee). In Phipps v
Rochester Corpn [1955] 1 QB 450, Devlin J criticised this rule on the ground that it was
lacking in precision: eg, what degree of incapacity on the part of the child and what qualifications
on the part of his companion are called for? Nevertheless, the rule stands on the authority of
the Court of Appeal.
40 [1909] AC 229, HL (D, a railway company, kept an unlocked turntable close to a public road;
children were in the habit of playing with it, having gained access through a gap in D’s fence —
D was held liable to such a child, a licensee, for injuries sustained while playing on the turntable).
41 [1911] AC 10, HL.
42 Supra, at 744, HL, per Lord Porter. See also Robert Addie & Sons (Collieries) Ltd v Dumbreck
[1929] AC 358, at 372-3, HL, per Viscount Dunedin and Darby v National Trust [2001]
EWCA Civ 189, [2001] PIQR P 372. Cf Gough v National Coal Board [1954] 1 QB 191, CA.
43 Occupiers’ Liability Act 1957, s 2(6). Police officers pursuing inquiries without a warrant may
take advantage of the generally implied licence to approach a front door via the garden path:
Robson v Hallett [1967] 2 QB 939. But like other visitors they will cease to have visitor status
if they fail to leave immediately the licence is expressly withdrawn: Snook v Mannion [1982]
RERS3 2.
(8) AGAINST WHAT RISKS DOES THE Occupiers’ Liasitity

AcT 1957 AFFORD PROTECTION?
The Occupiers’ Liability Act 1957 plainly regulates the duty of the occupier in relation
to structural defects or other dangers due to the state of the premises themselves, or
indeed ‘things’ on the premises such as vicious dogs roaming free in the garden.” That
this is not the limit of its scope is made clear by the fact that in addition to dangers
arising from the state of the premises the Act refers also to dangers due to ‘things done
or omitted to be done on them’. At the very least, then, the Act covers acts or omissions
which have created a dangerous condition of a continuing nature which later causes
harm. But a more difficult question is whether the Act also extends to acts (whether of
the occupier or others) which cause harm to the visitor. Section 1(2) 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’. At common law an occupier had a duty not to
permit others to use his premises in such a way that would foreseeably harm other
persons on those premises.* Regardless of whether such cases previously fell within
that sub-head of the law of negligence imposing special duties on occupiers towards
invitees or licensees, it is submitted that the joint effect of sub-ss (1) and (2) is to bring
those situations within the Act — the duty of care arises in consequence of the fact that
the defendant is an occupier.*° On the other hand, activities not directly associated
with occupation — such as firing arrows — which at the time of their commission caused
harm to the visitors, were governed by ordinary principles of negligence, and not by
the special rules relating to occupiers.’ It has been stated that the Act does not apply
to such activities (regardless of whether the act in question was the occupier’s, a
contractor’s or a visitor’s), for the duty of care is imposed on the actor because he
himself is performing an act foreseeably likely to cause harm to others present on the
premises, and not because the actor occupies the land.**
Before the Occupiers’ Liability Act 1957, some cases had held that a claimant might
sometimes have the choice of suing either in ordinary negligence or by virtue of the
special duty owed by occupiers.*”” Since the Act only displaces the common law rules
44 Hill v Lovett (OH) 1992 SLT 994. At common law, if the danger confronted the visitor while
on the premises, although he actually suffered the harm off the premises — eg, falling off an
unfenced cliff into the sea — the rules regulating the duties of occupiers towards visitors applied:
Perkowski v Wellington Corpn [1959] AC 53, PC. The wording of s 1(1) of the Act is also wide
enough to cover this situation.
45 Glasgow Corpn v Muir [1943] AC 448, HL.
46 All three judges in Videan v British Transport Commission [1963] 2 QB 650, CA were of this
same opinion (obiter).
47 See Ferguson v Welsh [1987] 3 All ER 777, HL; Fairchild v Glenhaven Funeral Services Ltd
[2001] EWCA Civ 1881, [2002] 1 WLR 1052.
48 Revill vy Newbery [1996] 1 All ER 291, CA. The rationale here is that the restrictive wording
of the Occupiers’ Liability Act 1957, s 1(2) — ‘The rules so enacted shall regulate the nature of
the duty imposed by law in consequence of a person’ occupation or control of premises’ -
excludes this class of acts. Thus, when premises were set alight by their occupier, this was
clearly a negligent act performed otherwise than in consequence of occupation or control. It
is unsurprising that damages in such a case should be awarded on the basis of the general law of
negligence rather than the Occupiers’ Liability Act 1957: Ogwo v Taylor [1988] AC 431, HL.
49 Eg Slade v Battersea and Putney Group Hospital Management Committee [1955] 1 All ER
429 where a relative visiting a patient in the state hospital was injured because polish had
recently been spread on the floor, and she had not been warned of it, she was able to sue in
ordinary negligence. Also, in Thompson v Bankstown Municipal Council (1953)),87,. CLR 619
(H Ct Australia) a boy was electrocuted as a result of the negligent maintenance by D of their
overhead electric wires. It was held that although he was a trespasser, he could nonetheless
invoke the separate duty in negligence of a statutory undertaker supplying electric power to
take care in the maintenance of that equipment.
\
imposed in consequence of occupation, it follows that if some other duty is imposed

by common law or an alternative statute (for some reason independent of occupation
of the premises) the claimant may rely on either the Occupiers’ Liability Act 1957 or the
other cause of action (or, both). For example, a workman injured on his employer’s
premises may rely either on the common duty of care set out in the Act, the duty of the
employer to provide a safe system of work, or even some statutory duty of the employer
to provide safe access or the like.*°
(3) The common duty of care
(A) GENERAL PRINCIPLES

The common duty of care is a duty to take such care as in all the circumstances of the
case is reasonable to see that the visitor will be reasonably safe in using the premises
for the purposes for which he is invited or permitted by the occupier to be there.*! It is
not an absolute duty. Thus, where a takeaway food outlet could not prevent the floor
of their premises becoming wet because customers were constantly coming in with
wet feet on a rainy evening, there was no liability when a customer slipped and injured
her ankle.” Equally, if the entrant does not use the premises for that purpose which
entitles him to be there, no duty is owed to him under the Occupiers’ Liability Act 1957
and any remedy that he might have would be afforded only by the Occupiers’ Liability
Act 1984. Scrutton LJ neatly encapsulated the principle when he said: ‘[w]hen you
invite a person into your house to use the stairs, you do not invite him to slide down
the banisters’.*? To the extent that the visitor exceeds the permission he has been
granted to be there, he is to be treated, in relation to any injury he then suffers, as a
trespasser.
Those entering as of right are not ‘invited or permitted’ by the occupier for any
purpose. Section 2(6) of the Occupiers’ Liability Act 1957 nonetheless extends the
common duty of care to them by providing that ‘persons who enter premises for any
purpose in the exercise of a right conferred by law are to be treated as permitted by the
occupier to be there for that purpose, whether they in fact have his permission or
not’. Section 2(6) does not extend the notion of ‘visitor’ beyond the common law
definition; it merely broadens the circumstances when an entrant will be owed the
common duty of care by providing that those who enter for any purpose in the exercise
of a right conferred by law are to be treated as permitted by the occupier to be there for
that purpose.™*
Whether the standard of care required under the common duty of care has been
attained is a question of fact; and the matters to which the court will pay regard will
50 Eg, Ward v Hertfordshire County Council [1970] 1 All ER 535, CA (duties of local authority
both as education authority and occupier considered when child hurt by playground flint wall,
though D held not liable under either head because the wall was not dangerous).
52 Laverton v Kiapasha (t/a Takeaway Supreme) [2002] EWCA Civ 1656, [2002] NPC 145.
53 The Carlgarth [1927] P 93, at 110, CA.
54 Greenhalgh v British Railways Board [1969] 2 QB 286, at 292-3, CA, per Lord Denning MR.
vary from case to case.** One important point, however, is that the defendant’s failure
to discharge the common duty of care need not amount to negligent misfeasance. Thus,
a football club that can anticipate crowd trouble from visiting supporters, yet fails to
make the game all-ticket or ban those visiting supporters, may still be liable in respect
of injuries sustained by a policeman when those supporters use loose pieces of concrete
as projectiles.*° Equally, liability will not depend on the failure to take preventive
measures otherwise amounting to actionable common law nonfeasance..’ If, on the
other hand, injury to the claimant is of a kind that is too unforeseeable, no liability will
attach for failure to take precautions. This is because, as was held in Jolley v Sutton
London Borough Council,* the same test for the remoteness of damage that applies
in negligence applies also under the Act.*? In determining what is foreseeable,
section 2(3) of the Occupiers’ Liability Act 1957 offers a measure of assistance. It
states:
The circumstances relevant for the present purpose include the degree of care,
and of want of care, which would ordinarily be looked for in such a visitor, so
that (for example) in proper cases:
(a) an occupier must be prepared for children to be less careful than adults; and
(b) an occupier may expect that a person, in the exercise of his calling, will
appreciate and guard against any special risks ordinarily incident to it, so
far as the occupier leaves him free to do so.
These two examples restate existing rules of common law, and therefore support the
view that in deciding the countless issues of fact which will arise in applying the
common duty of care it will be proper to consider cases decided before the Occupiers’
Liability Act 1957 as guides (but no more than that) in interpreting the duty where no
unambiguous rule exists in the Act itself. The following common law principles remain
important. In deciding whether there is a danger, regard must be had to the physical
and mental powers of a child visitor. For what is not a danger to an adult may well be a
danger to a child.” This may be so, for example, due to the alluring nature of something
55 Although its recommendations do not have the force of law, where minimum safety standards
have been recommended by the British Standards Institution, they will amount to strong
evidence on the question of whether an occupier has taken sufficient precautions: Ward v Ritz
Hotel (London) [1992] PIQR P315, CA.
56 Cunningham v Reading Football Club [1992] PIQR P141.
57 Sed quaere? It is difficult to see why the failure of the football club to take preventive steps
would not be actionable as common law negligence. The events had been pre-echoed at earlier
games (making the injury to the policeman foreseeable) and the contractual nexus between the
parties would presumably satisfy the proximity requirement.
58 [1998] 3 All ER 559, CA.
59 The decision on the facts (but not the ratio) in this case is highly questionable. A boy had jacked
up an old and rotten boat on D’s land with a view to repairing it. It later collapsed on him. The
Court of Appeal categorised the harm — injury caused by an ‘alluring’, dangerous old boat — as
too remote on the basis that the injury was caused in an unforeseeable fashion. This reasoning
is difficult to square with the Wagon Mound principle that it is the type of harm (not the
manner in which it is occasioned) that determines remoteness.
60 Cooke v Midland Great Western Rly of Ireland [1909] AC 229, at 238, HL, per Lord Atkinson.
Cf Gough v National Coal Board [1954] 1 QB 191, CA. The cases are legion but they all turn
on their particular facts — eg, Williams v Cardiff Corpn [1950] | KB 514, CA (a grassy slope
with broken glass at the foot is a trap for a four-year-old child). The principle stated in the text
also applied at common law in the case of adults suffering from mental or physical handicap,
and, it is submitted, will continue to apply to them under the Act.
\
on the land.°' In determining the standard of care owed to a child who is not
accompanied by a guardian, it will be material to inquire whether, in the circumstances,
the occupier could reasonably have expected the presence of the unaccompanied
infant.” If the unaccompanied child cannot be expected by the occupier, he will
inevitably be a trespasser. But since the passage of the Occupiers’ Liability Act 1984,
it is of much less significance that he cannot sue for his injuries qua visitor.®
The significance of section 2(3)(b) of the Occupiers’ Liability Act 1957 in so far as it
deals with the care to be shown to visitors possessed of a particular profession may be
illustrated by decisions at common law concerning window cleaners. A window cleaner
injured through the insecurity of some part of the exterior of the premises which he
uses as a foothold or handhold for the purpose of cleaning the outside of the windows
is expected by the occupier to have guarded against this special risk which is ordinarily
incident to the calling of a window cleaner.“ But there is no reason why the occupier
should not be liable if the window cleaner is injured through some defect in the staircase
which leads to his injury when he is going upstairs, in the ordinary way, to reach the
windows on an upper floor.® Similarly, an occupier is entitled to expect that a chimney
sweep will guard against dangers from flues.® But a self-employed plasterer injured
when scaffolding collapsed beneath him recovered damages from the occupier since
the risk was inherent in the defective state of the premises and not an expected risk of
his employment as a plasterer.®’ In short, the special skills of the entrant are relevant to
the determination of whether the occupier is in breach of the common duty of care, but
they will not automatically absolve the occupier from responsibility (especially where
the risk is not one ordinarily encountered by a person possessed of the particular
entrant’s skills®*).
(8) WARNING
At common law an occupier discharged his duty to a visitor by a warning sufficient to
convey to the visitor full knowledge of the nature and extent of the danger. That rule
was changed by section 2(4)(a) of the 1957 Act which now provides that:
61 Eg, Glasgow Corpn v Taylor [1922] 1 AC 44, HL (brightly coloured poisoned berries in a park
and within easy reach of the child). Cf D (a minor) v Department of Environment (NI) [1992]
4 BNIL 117 (no liability when a six-year-old climbed a tree and fell out).
62 See Phipps v Rochester Corpn [1955] | QB 450, containing a thoroughgoing review by Devlin
J of the rights of child visitors. Applied in Simkiss v Rhondda Borough Council (1982) 81 LGR
460, CA.
63 The Occupiers’ Liability Act 1984 replaced the harsh rules of common law that had traditionally
been applied to trespassers. The difference in the child’s protection is therefore the limited
discrepancy in the duties imposed by the 1957 and 1984 Acts.
64 Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141, CA (affd on other grounds
[1953] AC 180, HL). Similarly, a deliveryman injured when making deliveries cannot sue for
the inherent dangers in handling heavy goods; he may reasonably be expected by the occupier
to use his expertise in making those deliveries: Phillips v Perry (1997) unreported, CA.
65 See Bates v Parker [1953] 2 QB 231, CA.
66 Roles v Nathan [1963] 2 All ER 908, CA. A factory occupier owes a lesser standard of care to
a fireman trying to put out a fire than to his employees and has no duty to provide alternative
escape facilities: Bermingham v Sher Bros 1980 SLT 122, HL.
67 Kealey v Heard [1983] 1 All ER 973.
68 Eden v West & Co [2002] EWCA Civ 991; Simpson v A I Dairies Farms Ltd [2001] NPC 14,
CA.
Liability for defective premises and structures 34|
... where damage is caused to a visitor by a danger of which he had been warned
by the occupier, the warning is not to be treated without more as absolving the
occupier from liability, unless in all the circumstances it was enough to enable
the visitor to be reasonably safe.
So, for example, the farmer who warns the veterinary surgeon whom he has summoned
to the farm at night to attend a sick cow, ‘Be careful how you go down the yard or you
may fall into a tank’, or the railway company which warns of the dangerous roof over
what is the sole approach to the ticket office, no longer absolve themselves from
liability by such warnings alone. In Roles v Nathan® Lord Denning provided a helpful
example of where the mere fact of providing a warning would not discharge the duty of
care owed under the 1957 Act. He suggested that simply warning visitors of the danger
of a footbridge over a stream would be insufficient to ensure a visitor’s safety if there
was only one footbridge and it was essential to use that bridge to enter the defendant’s
land. But he added that if there were two bridges and one of them was safe, a warning
about the unsafe bridge would then exclude liability.”°
In line with the requirement that the warning be enough to enable the visitor to be safe,
a warning has been held ineffective where it was very small in size and posted in an
insufficiently prominent position.’! On the other hand, if a warning is given, but ignored
by the visitor—eg, where a customer fails to observe a shopkeeper’s warning not to go
to the far end of the shop because of a dangerous hole there — a court would probably
hold that, in all the circumstances, the common duty of care had been discharged. If
the defendant does not know of the danger it is obvious that he cannot rely on
section 2(4)(a) of the 1957 Act although he may still have a defence under section 2(1).”
(c) ASSUMPTION OF RISK

The common duty of care does not impose on an occupier any obligation to a visitor
in respect of risks willingly accepted as his by the visitor (the question whether a risk
is so accepted to be decided on the same principles as in other cases in which one
person owes a duty of care to another).” Section 2(5) of the Occupiers’ Liability Act
1957 makes it clear that an occupier is not in breach of his duty of care where the
claimant voluntarily assumed the risk.
At common law no duty of care was owed to a visitor who had full knowledge of the
nature and extent of the danger.” But case law confirms that knowledge of self-evident
dangers relieves the occupier of his duty under section 2(2) of the Occupiers’ Liability
Act 1957. In Cotton v Derbyshire Dales District Council,” for example, the Court of
Appeal held that the owner of a path which lay adjacent to cliffs and presented an
obvious danger was under no duty to visitors who were injured by falling from those
69 [1963] 2 All ER 908, CA.

70 [1963] 2 All ER 908, at 913, CA.
71 Dv AMF Bowling [2002] 12 CL 476.
72 White v Blackmore [1972] 2 QB 651, CA. ;
73 Occupiers’ Liability Act 1957, s 2(5). But where the occupier occupies the premises for
business purposes note the application of the Unfair Contract Terms Act LOTTE SIZ):
74 London Graving Dock Co Ltd v Horton {1951} AC 737, HL.
75 (1994) Times, 20 June, CA.
cliffs. Similarly, in Staples v West Dorset District Council,” damages were refused
where the claimant slipped and was injured on the defendant council’s algae-covered
rocks. He had full knowledge of the danger and it was proven that even if there had
been a warning, he would have ignored it. Finally, an action brought by a claimant
whose husband had drowned while swimming in a deep and murky ornamental pond
that was obviously unsafe also failed.”
(D) CONTRIBUTORY NEGLIGENCE

Section 2(3) of the Occupiers’ Liability Act 1957 states that in deciding whether the
occupier has discharged his common duty of care, the want of care which would
ordinarily be looked for in such a visitor is a relevant circumstance. In other words, the
claimant cannot by his own carelessness enlarge the duty of care owed to him by the
defendant. It is therefore implicit in section 2(3) that the apportionment provisions of
the Law Reform (Contributory Negligence) Act 1945 apply to an action for breach of
the common duty of care exactly as they do to any action for negligence simpliciter. And
indeed a number of cases under the Occupiers’ Liability Act 1957 have applied these
apportionment provisions.”
(E) LIABILITY FOR INDEPENDENT CONTRACTORS

Section 2(4)(b) of the Occupiers’ Liability Act 1957 provides that where damage is
caused to a visitor by a danger due to the faulty execution of any work of construction,
maintenance or repair” by an independent contractor employed by the occupier, the
occupier is not to be treated without more* as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting the work to an independent
contractor and had taken such steps (if any) as he reasonably ought in order to satisfy
himself that the contractor was competent and that the work had been properly done. It
is important to appreciate that section 2(4)(b) is merely illustrative of the kinds of
dangers that might be associated with independent contractors. Defective construction,
maintenance and repair are specifically stated to be mere examples of the kinds of
dangers that can be attributed to independent contractors; but the statutory list is not
exhaustive. Thus, where independent contractors run an amusement facility on the
occupier’s land, and that facility causes injury to a visitor, the occupier may still be
76 (1995) 93 LGR 536, CA.

77 Darby v National Trust [2001] EWCA Civ 189, [2001] PIQR P372. But compare Tomlinson
v Congleton Borough Council [2002] EWCA Civ 309, [2002] PIQR P 573.
78 Eg Bunker v Charles Brand & Son Ltd [1969] 2 QB 480. See also McMillan v Lord Advocate
1991 SLT 150n.
79 This expression covers work incidental to construction: AMF International Ltd v Magnet
Bowling Ltd [1968] 2 All ER 789. It also extends, curiously, to demolition work: Ferguson v
Welsh [1987] 3 All ER 777, at 783, HL.
80 In Coupland v Eagle Bros Ltd (1969) 210 Estates Gazette 581, C was electrocuted by a live
wire which the electrical contractor had not switched off while carrying out electrical work. D
knew that the wire was dangerous and had not warned anyone; the ‘without more’ provision did
not absolve him from liability, for he was concurrently careless with the contractor. Even
though the cause of harm falls outside these words — eg, the stowing of cargo by a stevedore —
D may still discharge his common duty of care by relying on the stevedore as his independent
contractor: Mullis v United States Lines Co [1969] 1 Lloyd’s Rep 109. This is because the
Occupiers’ Liability Act 1957, s 2(4)(b) is only an ‘example’ of the common duty of care.
liable if he does not check the contractor’s competence in the same way as he would
have to in respect of construction under section 2(4)(b) of the 1957 Act.*!
Given that section 2(4)(b) is important both per se and by extension, its terms warrant
further analysis. First, in applying this subsection, the courts must consider whether,
initially, it was reasonable for the occupier to engage an independent contractor to
undertake the construction, maintenance or repair work. It is not obvious what this
entails for it is difficult to envisage a situation in which the court would expect the
occupier to have performed construction work himself in preference to an independent
contractor.*’ Thus, it will presumptively be reasonable for an occupier to engage a
contractor wherever, as in Haseldine v C A Daw & Son Ltd,® the work to be done
necessitates special skill or equipment not possessed by the occupier.** Delegation
should also be reasonable where it is the normal commercial practice to employ
contractors, for example, for office cleaning.
Secondly, the Occupiers’ Liability Act 1957 stipulates that the occupier may have to
check the competence of the employee. Here, it would seem that if the work is of a fairly
routine nature the contractor may be trusted.*° Where, however, the work entrusted to
a contractor is of a kind that, after its completion, necessarily involves a risk to future
visitors if it has been carelessly executed,** the occupier will be under a duty to check
the competence of the contractor. Thirdly, the occupier may need ‘to take such steps
as he reasonably ought in order to satisfy himself that the work had been competently
done’. It is unclear from the statute whether this involves a subjective test or an
objective one. If the former were adopted, limited financial resources might provide a
sufficient reason for not engaging, say, an architect to assess the quality of the work. If
an objective test were used, the only relevant factor would be the degree of risk
inherent in the kind of work done.
Since the Occupiers’ Liability Act 1957 uses the past tense in relation to work done, it
is clear that section 2(4)(b) does not envisage the occupier employing a suitable
professional to supervise the ongoing work of an independent contractor. Instead,
section 2(4)(b) provides only an example of how the common duty of care might be
discharged. Thus, in some circumstances, it may be expected of the occupier that he
will have the contractor’s work supervised. In AMF International Ltd v Magnet Bowling
Ltd,®’ for instance, it was said that if the occupier was going to invite a third party, the
claimant, to bring valuable timber onto the site during construction, then to escape
81 Gwilliam v West Hertfordshire Hospitals NHS Trust [2002] EWCA Civ 1041, [2002] 3 WLR
1425.
82 On the other hand, where the contractor is permitted to run a fairground concession which
necessarily carries a risk of injury, the occupier will be required to check whether the contractor
is properly insured: Gwilliam v West Hertfordshire Hospitals NHS Trust [2002] EWCA Civ
1041, [2002] 3 WLR 1425.
83 [1941] 2 KB 343, CA.
84 See also Fairchild v Glenhaven Funeral Services Ltd [2001] EWCA Civ 1881, [2002] 1 WLR
LOS2ZHCAS
85 In Cook v Broderip (1968) 206 Estates Gazette 128, D was not liable to his domestic help
injured by a new switch fuse negligently installed by a contractor; D was entitled to trust the
contractor. de
86 Eg, the repair of a lift which, if carelessly done, clearly poses a risk to subsequent visitors. In
one such case, it was central to the court’s decision that D was under a duty ‘to obtain and
follow good technical advice’: Haseldine v Daw & Son Ltd [1941] 2 KB 343, at 356.
87 [1968] 2 All ER 789.
liability he may have to employ a supervising architect to ensure that the contractors
had made the premises sufficiently safe for that timber safely to be brought there. On
the other hand, it was said in Ferguson v Welsh* (and reiterated by the Court of Appeal
in Fairchild v Glenhaven Funeral Services Ltd®) that an occupier will not normally be
liable to the contractor’s employee for injuries sustained because the premises were
unsafe by virtue of the dangerous system of work adopted by the independent
contractors. Yet Lord Keith also stated that, in circumstances in which the occupier
knows or has reason to know that the contractor is using an unsafe system of work, he
might be liable for not ensuring that a safe system was employed.”
(4) Some special cases within the Occupiers’ Liability Act 1957
(A) FIXED OR MOVABLE STRUCTURES

Section 1(3) of the Occupiers’ Liability Act 1957 provides that:
The rules so enacted in relation to an occupier of premises and his visitors shall
also apply, in like manner and to the like extent as the principles applicable at
common law to an occupier of premises and his invitees or licensees would
apply, to regulate:
(a) the obligations of a person occupying or having control’! over any fixed or
movable structure, including any vessel, vehicle or aircraft.
The term ‘movable structures’ covers such appliances as gangways and ladders, as
well as vessels, vehicles and aircraft. The test is probably whether one might go into or
upon the structure. It is, however, much more difficult to interpret the expression ‘fixed
structure’, for this term (mentioned in section 1(3) of the Occupiers’ Liability Act 1957)
and ‘premises’ (mentioned in section 1(1)) must be mutually exclusive under the Act. It
is clear that the term “premises’ is not confined simply to land: it also includes permanent
buildings erected on the land. Thus, ‘fixed structures’ must be taken to connote some
non-movable chattels constructed on land. No doubt the draftsmen doubted whether
docks or erections on part of the land such as garden sheds, or swings in a playground,
or even scaffolding or lifts were ‘premises’ and yet thought that movable structures
might not cover them. All of these are doubtless within the Occupiers’ Liability Act
1957, but it is important whether a structure falls within section 1(1) or section 1(3)
because different approaches may need to be taken under these respective
subsections. If A provides a defective ladder for an independent contractor to repair
A’s premises, the Act does not apply for the benefit of the injured contractor, for A has
ceased to have enough control of the ladder to be an occupier of it.”? On the other
88 [1987] 3 All ER 777, at 783, HL.

89 [2001] EWCA Civ 1881, [2002] 1 WLR 1052.
90 [1987] 3 All ER 777, HL. Note, however, that any such liability would not arise gua occupier
but rather qua joint tortfeasor with the contractor: see [1987] 3 All ER 777, at 786, HL, per
Lord Goff.
91 Note that an engineering firm did not abandon control of a machine roller when they called in
a specialist contractor to modify it, so they retained the obligations of occupiers within
Occupiers’ Liability Act 1957, s 1(3)(a): Bunker v Charles Brand & Son Ltd [1969] 2 QB 480.
92 Wheeler v Copas [1981] 3 All ER 405.
hand, A may still be liable either as the bailor of goods or as an occupier of premises
who intends that the claimant should use A’s appliances on his land.”
(8) DAMAGE To PROPERTY™

Section 1(3) of the Occupiers’ Liability Act 1957 also covers:
(b) the obligations of a person occupying or having control over any premises
or structure in respect of damage to property, including the property of
persons who are not themselves his visitors.
This subsection will impose a duty on the occupier to prevent damage to goods on the
premises arising from the defective physical condition of the premises. The injured
visitor would, for example, be able to recover damages for her torn clothes and
presumably for damage to her property, even if she is herself uninjured.°> Where the
entrant is carrying the goods of a third party, it is doubtful whether the Act gives the
third party an action. Furthermore, the expression ‘damage to property’ is not apt to
cover loss of property so that the section will not cover the duty of boarding-house
keepers to keep safe custody of visitors’ goods. Still less will it reverse the common
law decision that a publican owes no duty of care to prevent a customer’s motorcycle
from being stolen from the yard of the public house.*’ On the other hand, it seems
consistent with what was said in the preceding section that, whenever the occupier
would have a duty at common law to prevent damage to goods on his land (whether
due to the state of the premises or acts or omissions thereon), the common duty of care
will apply.”®
(c) LIABILITY IN CONTRACT

At common law, contracts for the use of premises were deemed to contain various
implied terms relating to the safety of the premises.” /n lieu of those implied terms,'”°
section 5 of the Occupiers’ Liability Act 1957 provides that:
(1) Where persons enter or use, or bring or send goods to, any premises in
exercise of a right conferred by contract with a person occupying or having
control of the premises, the duty he owes them in respect of dangers due to
the state of the premises or to things done or omitted to be done on them, in
93 [1981] 3 All ER 405.

94 See North, ‘Damage to Property and the Occupiers’ Liability Act 1957’ (1966) 30 Conv 264.
95 AME International Ltd v Magnet Bowling Ltd [1968] 2 All ER 789. It would also seem that loss
consequential on damage to property is recoverable. Thus, C, a car-hire firm, could recover
loss of earnings when C’s car was damaged after having been driven onto D’s land by the car
owner.
96 Thus, if the visitor’s car is damaged he has a remedy, but the finance company, from whom he
has it on a credit agreement, does not.
97 Tinsley v Dudley [1951] 2 KB 18, CA. It would seem that, whatever the common law position,
the combined effect of s 1(3)(b) and s 1(1) is to deny the visitor a remedy for loss of property
if she is injured and, eg, her valuable necklace falls off her person to be carried away in an
adjoining stream.
98 Supported by AMF International Ltd v Magnet Bowling Ltd [1968] 2 All ER 789.
99 See especially Francis v Cockrell (1870) LR 5 QB 501; Gilmore v LCC [1938] 4 All ER 331.
100 The expression ‘the duty...shall be the common duty of care’ shows that the duty replaces, and
is not merely alternative to, the terms implied at common law.
so far as the duty depends on a term to be implied in the contract by reason

of its conferring that right, shall be the common duty of care.
(2) The foregoing subsection shall apply to fixed and movable structures as it
applies to premises.
The effect of this section is as follows. Where a person enters the occupier’s premises
under a contract between himself and the occupier, the occupier is obliged to extend
the common duty of care to that entrant, subject to a contrary term in their contract. It
is, of course, open to the occupier specifically to increase the level of care by express
provision in the contract. And any such protection bargained for in the main contract
may extend to certain third parties so long as the terms of the Contracts (Rights of
Third Parties) Act 1999 are met.'°! On the other hand, the extent to which he may
exclude or limit his responsibilities towards contractual entrants is governed by the
operation of the rules discussed in the next section.
Section 5 of the Occupiers’ Liability Act 1957 is not limited in its operation to personal
injury caused by the defective state of the occupier’s premises; it also covers damage
to goods. What is less clear is whether an action by a contractual entrant must be
based solely on contract — on the basis of the term implied into the agreement by virtue
of section 5 — or whether he has the alternative of suing in tort. In Sole v W J Hallt
Ltd'” a tradesman who had come onto the occupier’s premises to perform some plaster
work was injured when he fell down an unprotected stair-well. It was held by Swanick
J that contractual entrants had the option of suing in either contract — under section 5(1)
— or in tort under section 2(1).'™
Does section 5(1) of the 1957 Act operate where the contract is silent but of a kind that,
at common law, traditionally attracted a different implied term? An example would be a
passenger on a railway platform who, at common law, was historically protected by a
duty owed by the railway company to make the platform reasonably safe.' Others
present on the platform, such as relatives saying farewell, were afforded the usual duty
extended to licensees. But are fare-paying passengers now protected by the traditional
common law implied term which, apart from the statute, would form part of the contract
of carriage, or must they rely on the common duty of care by virtue of section 5(1). It is
submitted that the statutory implied term applies. The Act does not say that the term is
to be implied where, otherwise, the contract would be silent on the matter. Instead, the
statutory implied term is to be included in the contract wherever ‘the duty depends
upon a term to be implied in the contract’.
101 Under this legislation, there are three such conditions. First, it must be clear that the contract
purports to confer a benefit on a third party (eg, the employee or contractor who has agreed
to do work for the occupier); secondly there must be no contrary agreement in the contract;
thirdly, the third party must be expressly identified in the contract: Contracts (Rights of Third
Parties) Act 1999: s 1(1)(b), (2) and (3).
102 [1973] 1 All ER 1032. Quaere the effect of any contributory negligence.
103 This decision is almost certainly wrong since the Act specifically limits visitors (to whom the
Occupiers’ Liability Act 1957, s 2(1) refers) to those who were either invitees or licensees at
common law. The whole purpose of s 5 is to ensure some protection to contractual entrants
where no such protection is mentioned in the contract. It is a decision at first instance and
there is no obligation for any future court to follow it.
104 Protheroe v Railway Executive [1951] 1 KB 376.
(5) Exclusion of liability

Section 2(1) of the Occupiers’ Liability Act 1957 provides:
An occupier of premises owes the same duty, the ‘common duty of care’, to all
his visitors, except in so far as he is free to and does extend, restrict, modify or
exclude his duty to any visitor or visitors by agreement or otherwise.
The occupier thus has two options if he wishes to modify the common duty of care
owed to his visitors. First, where the visitor enters by virtue of a contract — eg, a
contractor who enters to carry out work on premises or a tenant granted access to the
common parts of a block of flats — an express term of the contract may be drafted to
govern the situation. Secondly, in respect of non-contractual entrants, a clear and
unequivocal notice,'” either affixed at the point of entry to the land,!” or included in a
programme or ticket giving access to the land,'”’ will suffice. These two broad options
must, however, be read subject to section 3 of the Occupiers’ Liability Act 1957 which
sets out some important limits on the occupier’s freedom to limit or exclude his liability.
Section 3(1) of the Occupiers’ Liability Act 1957 provides that the duty of care owed by
an occupier to those visitors he is bound to admit onto his premises by virtue of a
contract, who are nonetheless ‘strangers to the contract’,'°* cannot be excluded or
restricted.' On the other hand, the subsection also provides that any term of the
contract which obliges him to increase the level of care shown to such entrants will be
effective in determining the standard of care to be shown. Section 3(1) is designed to
ensure the protection of employees of the person with whom the occupier
contracts. Thus, if the occupier contracts with A for A’s employees to do work on his
premises, he may not restrict or exclude any liability to them.
Section 3(2) of the Occupiers’ Liability Act 1957 further provides:
A contract shall not by virtue of this section have the effect, unless it expressly
so provides, of making an occupier who has taken all reasonable care answerable
to strangers to the contract for dangers due to the faulty execution of any work
of construction, maintenance or repair or other like operation by persons other
than himself, his servants and persons acting under his direction and control.
On reflection, it is apparent that the burden on the defendant under section 3 of the
1957 Act appears to be greater than that imposed by the common duty of care because
he is unable to delegate to independent contractors any part of his duty to take
care.'!° Furthermore, while section 3 places some restrictions on the ability of an
105 Note the difference between a notice (excluding or restricting liability) and a warning (alerting
entrants to a danger present on the premises).
106 Ashdown v Samuel Williams & Sons Ltd [1957] 1 QB 409.
107 White v Blackmore [1972] 2 QB 651, CA.
108 Defined as ‘a person not for the time being entitled to the benefit of the contract as a party to
it or as the successor by assignment or otherwise of a party to it, and accordingly includes a
party to the contract who has ceased to be so entitled’: s 3(3).
109 A similar effect is achieved in relation to contractors who enter premises under a contract with
the landlord, where the tenant has agreed with the landlord (extra-contractually) to allow such
contractors to enter the premises.
110 The duty in respect of independent contractors now imposed by s 3(1) and (2) is not exactly
the same as the common duty of care imposed by s 2(4)(b). First, s 3(2) limits the liability not
only in respect of, as in s 2(4)(b), ‘the faulty execution of any work of construction, maintenance
or repair’ but also in respect of any ‘other like operation’. Secondly, whereas s 2(4)(b) specifies
occupier to limit or exclude his liability, further restrictions upon his freedom so to do
are also imposed under the Unfair Contract Terms Act 1977. This later Act drastically
reduces the scope for a person who occupies premises for “business purposes’ to
exclude or restrict his liability.'"!
The Unfair Contract Terms Act 1977 renders invalid any contract term or notice
purporting to exclude or restrict liability for death or personal injury''” resulting from
breach of the common duty of care under the Occupiers’ Liability Act 1957 where the
premises are occupied for the business purposes of the occupier.''’ In the case of
other loss or damage, any contract term or notice designed to restrict or exclude
liability is subject to the requirement of reasonableness.''* If the exclusion is in the
form of a contract term, its reasonableness is to be gauged by reference to ‘the
circumstances which were, or ought reasonably to have been, known to or in the
contemplation of the parties when the contract was made’.'!° If the exclusion of liability
is in the form of a notice, then its reasonableness is to be judged in the light of ‘all the
circumstances obtaining when the liability arose’.''® Of the two tests, the former is the
more claimant-friendly, for in respect of notices, ‘all the circumstances’ presumably
include those both within and beyond the actual or imputed contemplation of the
parties. The less claimant-friendly test applied to contract terms can be justified on the
basis that the claimant had a chance, at the time of contracting, to bargain against the
inclusion of any such term.
Agreement to, or knowledge of, the term or notice will not be evidence that the visitor
has assumed the risk of injury giving rise to the defence of volenti non fit
injuria.''’ Equally, oral stipulation of any such term or notice, made at the time of the
entrant’s visit will similarly fail to render the entrant necessarily volens; for under the
Unfair Contract Terms Act 1977, any such announcement itself constitutes a notice.''®
The Unfair Contract Terms Act 1977 quite clearly leaves an occupier free (via a notice
on a front gate) to exclude liability to most of his visitors since its operation is limited
to those entering in connection with business purposes!!? and the Act makes clear
that it is the purposes of the occupier alone which are relevant.'’”? Some cases are
clear. Consider, for example, Ashdown v Samuel Williams & Sons Ltd."*!
in detail what would be reasonable care by the occupier in relation to the conduct of the
independent contractor, s 3(2) states that he shall take ‘all reasonable care’ without further
particularising this standard — it cannot be assumed that the two standards are identical.
111 Note that the Unfair Contract Terms Act 1977 and Occupiers’ Liability Act 1957, s 3 will
often work in tandem since most, if not all, of s 3 cases are likely to involve an occupier for
“business purposes’.
112 Unfair Contract Terms Act 1977, s 2(1).
113 Unfair Contract Terms Act 1977, s 1(1)(c).
118 Unfair Contract Terms Act 1977, s 14.
119 Unfair Contract Terms Act 1977, s 14 defines ‘business’ so as to include ‘a profession and the
activities of any government department or public or local authority’. So if I invite a research
student to my home for supervision, do I then occupy my home for ‘business purposes’?
120 What happens, however, if I let a room of my house to a postgraduate student? Should the
premises as a whole be treated as business premises? Equally, what if the premises are under dual
control, and only one of the occupiers is a business occupier? On both these matters see
Mesher, ‘Occupiers, Trespassers and the Unfair Contract Terms Act 1977’ (1979) 43 Conv
58.
121 [1957] 1 QB 409.
By a licence granted by D, C crossed D’s land. A notice board purported to

curtail the liabilities of D to licensees. The Court of Appeal held that because D
had taken reasonable steps to bring the conditions of the notice to the attention
of C, these conditions (designed to exclude liability for damage sustained in the
way in which C’s injuries were caused) were effective in excluding D’s liability.
If the case had arisen after 1977 the defendant would not have been able to exclude his
liability under the Occupiers’ Liability Act 1957. But what if the facts of White v
Blackmore'” were to recur? There, notices at the entrance to the track and in the
programme handed to spectators and competitors excluded liability for injuries
occurring in ‘jalopy’ races. The races were being run to raise money for charity. In 1972
the notices sufficed to exclude the organisers’ and occupiers’ liability. Today, a
preliminary question would be whether the track was occupied for business
purposes. Similarly, is a Sunday school within the Unfair Contract Terms Act 1977
when a jumble sale is being held there, but not on a Sunday morning? And what of the
housewife who does some part-time hairdressing at home‘and whose customer is hurt
coming downstairs from the bathroom?
The only further attempt at clarification of the definition of ‘business purposes’ is to

be found in section 2 of the Occupiers’ Liability Act 1984. That section amends the
Unfair Contract Terms Act 1977 to provide:
...but liability of an occupier of premises for breach of an obligation or duty
toward a person obtaining access to the premises for recreational or educational
purposes, being liability for loss or damage suffered by reason of the dangerous
state of premises is not a business liability of the occupier unless granting that
person such access for the purposes concerned falls within the business
purposes of the occupier.'”
The purpose of this tortuously worded provision appears to be to allow farmers and
owners of countryside areas to exclude liability to day-trippers. The land is occupied
for ‘business purposes’: namely, farming or forestry. But any duty owed to entrants
coming to the land to picnic and so on can now, once again, be excluded by agreement
or notice. !”4
(B) Liability to non-visitors: the Occupiers’ Liability Act 1984
Liability to trespassers and all other uninvited entrants (such as those using a private
right of way’) is now governed by section | of the Occupiers’ Liability Act 1984'°° which
provides that the Act:
shall have effect in place of the rules of common law’”’ to determine:

(a) whether any duty is owed by a person as occupier of premises to persons
other than his visitors in respect of any risk of their suffering injury on the
122 [1972] 2 QB 651, CA.

123 Unfair Contract Terms Act 1977, s 1(3)(b). AED
124 See Bragg and Brazier, ‘Occupiers and Exclusion of Liability’ (1986) 130 Sol Jo 251 & 274.
125 Vodden v Gayton [2001] PIQR P52. op P's
126 The Act is based on proposals from the Law Commission Report No 75, Liability for Damage
or Injury to Trespassers and Related Questions of Occupiers’ Liability (Cmnd 6428).
127 As to which see British Railways Board v Herrington [1972] AC 877, HL.
9
premises by reason of any danger due to the state of the premises or to

things done or omitted to be done on them. te
(b) if so, what that duty is.
Although the Occupiers’*Liability Act 1984 avowedly replaces the rules of common
law in relation to occupiers’ liability towards uninvited entrants, three exceptional
instances fall outside the Act. because of the terms in which it is drafted. First,
section 1(8) expressly confines liability to personal injuries. It follows that common
law liability in respect of damage to a trespasser’s'”* (or other uninvited entrant’s)
personal property survives the Occupiers’ Liability Act 1984. Secondly, the Act’s remit
is further limited in that no duty is owed by the occupier of the solum of a public right
of way to persons using that right of way.'”’ (It is arguable, however, that since the Act
specifically provides that nothing in its provisions affects any duty otherwise owed to
such persons, that users of public rights of way are owed the duty of common humanity
formulated in British Railways Board v Herrington.'*°) Finally, it was held in Revill v
Newbery’! that acts of the occupier that are not done in connection with its occupation
fall outside the purview of the Act. Put otherwise, acts which do not, in themselves,
affect the safety of the premises fall under the common law.'*?
A duty to uninvited entrants in respect of any danger due to the state of the premises
arises only when three conditions are met:'*
(a) The occupier must be aware of the danger or have reasonable grounds to believe
it exists.
(b) He must have known, or had reasonable grounds to know, that the uninvited
entrant either was in, or might come into, the vicinity of the danger. (So, where
occupiers had no reason to expect that trespassers were taking shortcuts across
their land, no duty arose.'**)
(c) The risk of injury to an uninvited entrant resulting from that danger was one
against which, in all the circumstances of the case, the occupier might reasonably
be expected to offer the uninvited entrant some protection.
The test for the existence (as opposed to substance) of the duty of care imposed by
the Occupiers’ Liability Act 1984 appears, at first sight, to comprise a curious mixture of
objective and subjective elements. The first and second limbs seem ostensibly to
contain both in referring not only to the individual occupiers actual knowledge, but
also to that knowledge which he ought reasonably to have. However, it has been held
that even the second part of the test contains a subjective element. That is, the occupier
128 That such common law liability did arise on the principle in British Railways Board v Herrington,
supra, is clear from Tutton v A D Walter Ltd [1986] QB 61 where there was liability for
negligently spraying crops so as to kill a neighbour’s bees. The bees were probably not trespassers
but liability to their keeper would still arise even if the bees were trespassing.
130 [1972] AC 877, HL. See further Buckley, “The Occupiers’ Liability Act 1984 — Has Herrington
Survived?’ (1984) 48 Conv 413; Murphy, ‘Public Rights of Way and Private Law Wrongs’
(1997) 61 Conv 362.
131 [1996] 1 All ER 291, CA.
132 However, in Revill, it was said that, in applying the common law, the same principles as those
contained in the Occupiers’ Liability Act 1984 should be applied: [1996] 1 All ER 291, at 298,
CA, per Neill LJ.
134 White v St Albans City and District Council (1990) Times, 12 March, CA.
Liability for defective premises and structures 35\
must have either actual knowledge of the danger or presence of a non-visitor or he

must have actual knowledge of the relevant facts from which a reasonable man would
draw the relevant inference (even if he does not himself draw that inference).'** If he
neither knows of the danger, nor of the state of affairs, then he will not be liable just
because a reasonable occupier would have known of that state of affairs. Thus, a
landowner who very seldom looks round his grounds, and fails to notice the emergence
of a danger, could not be held liable whereas a landowner who regularly surveys his
premises and turns a blind eye to an obvious source of danger would be caught by the
subsection.'*° The third limb is more objective in focusing on all the circumstances of
the case. But, it is submitted that this is not entirely an objective test since it only
demands that protection be commensurate with what can reasonably be expected of
the individual occupier.'*”
By contrast, the test for the standard of care, once a duty has been shown to exist, is
purely objective. Section 1(4) of the Occupiers’ Liability Act 1984 states that duty is ‘to
take such care as is reasonable in all the circumstances of the case’. Such circumstances
will certainly include the age and capabilities of the entrant.'** Thus, greater protection
needs to be shown to a child rather than adult trespasser where the danger concerned
would be more apparent to the latter than the former.'*° Similarly, the entrant’s purpose
may be relevant, so that a burglar can expect far less by way of protection than, say, an
‘“imnocent’ child trespasser.'*° On the other hand, where a burglar is injured because of
a negligent act performed by the defendant, the common law will still afford him a
remedy. Revill v Newbery illustrates this point: a burglar whom the defendant negligently
shot was able to sue in negligence even though the case fell outside the Occupiers’
Liability Act 1984.'*!
Other relevant circumstances may include personal characteristics of the occupier and
the limits on his financial resources.
A significant difference between the Occupiers’ Liability Act 1984 and Occupiers’
Liability Act 1957 exists in section 1(5) of the later Act. There it is stipulated that any
duty arising under the Occupiers’ Liability Act 1984 can:
... In an appropriate case, be discharged by taking such steps as are reasonable
in all the circumstances of the case to give warning of the danger concerned or
to discourage a person from incurring the risk.
The warning does not have to be sufficient to enable the uninvited entrant to remain
safely on the land. If the occupier of a building site with dangerous concealed trenches
135 Swain v Natui Ram Puri [1996] PIQR P442, CA.

136 In Swain v Natui Puri [1996] PIQR P442, CA, the court added the gloss that an occupier
cannot be heard to say that he had deliberately shut his eyes to dangers on his land in order to
escape liability: knowledge of glaringly obvious dangers will be imputed to him.
137 This interpretation seems to be borne out by the decision in Ratcliff v McConnell [1999] 1
WLR 670, at 680, CA, per Stuart-Smith LJ.
138 See Ratcliff v-McConnell [1999] 1 WLR 670, CA. HT
139 [1999] 1 WLR 670, at 683, CA, per Stuart-Smith LJ; and see Jones, ‘The Occupiers’ Liability
Act 1984 — The Wheels of Law Reform Turn Slowly’ (1984) 47 MLR 713, 721.
140 See also Murphy v Culhane [1977] QB 94, at 98, CA, where Lord Denning MR suggested obiter
that the defence of ex turpi causa non oritur actio might be available in this context.
141 The court also refused to entertain D’s claim that the defence of ex turpi causa should apply.
puts up notices!” around the perimeter of the site saying ‘Danger: Keep Out! Concealed
Trench’, such a warning would be insufficient to discharge the occupier’s duty towards
his visitors. But since it makes specific mention, as the Act demands, of ‘the danger
concerned’, it would almost certainly suffice vis a vis an uninvited adult entrant. '** The
fact that a warning notice has been read by an uninvited entrant will not, of itself,
render that person volens,'“ but the Act does provide for the operation of a very
similar defence in this context. It states:
No duty is owed by virtue of this section to any person in respect of risks
willingly accepted as his by that person (the question of whether a risk was so
accepted to be decided on the same principles as in other cases in which one
person owes a duty of care to another).'**
In this context it has been held that there need be no warning of obvious dangers —
such as those associated with diving head first into the shallow end of a swimming
pool with hardly any water in it.'*°
Under section 1(8) of the Occupiers’ Liability Act 1984, non-visitors are not entitled to
sue in respect of property damage occasioned by breach of the section 1
duty. Accordingly, a trespasser who, due to the perilous state of the premises, trips
and falls on the occupier’s land while snooping there may sue under the Act in respect
of his personal injuries but not for the damage caused to his camera.'*”
Finally in this context, we must consider the amendments to the Occupiers’ Liability
Act 1984 due to take effect once the amending statute, the Countryside and Rights of
Way Act 2000, comes into force. Under the amendment to be made to section 1(4) of
the Occupiers’ Liability Act 1957,'** those exercising a right of access to open land for
recreational purposes'” are not to be treated as visitors.'*° As such, they are non-
visitors and are owed a limited duty under the Occupiers’ Liability Act 1984. More
specifically, it is provided that in determining the duty owed to those entering the
occupier’s land by virtue of a right conferred under the Countryside and Rights of
Way Act 2000, regard must be had to ‘the fact that the existence of that right ought not
to place an undue burden (whether financial or otherwise) on the occupier [and] ... the
142 The Unfair Contract Terms Act 1977 does not apply to the duty created by the 1984 Act.
143 In relation to an illiterate young child who 1s allured onto the premises, it is less likely that such
a notice would suffice. In any event, he might be classified as a visitor by implied licence.
144 Titchener v British Railways Board [1983] 3 All ER 770.
145 Occupiers’ Liability Act 1984, s 1(6). The difference between this statutory version of volenti
and its common law cousin lies in the fact that at common law C, to be volens, must accept
both the risk of injury and the fact that any resulting loss should be his own. Under the 1984
Act, D can raise the defence in s 1(6) on proof of the former alone. Furthermore, properly
understood, volenti is to be confined to the assumption of risk in relation to future rather than
extant dangers: Morris v Murray [1991] 2 QB 6, CA per Fox, Stocker and Waller LJJ, at 17, 28
and 32.
146 Ratcliff vMcConnell [1999] 1 WLR 670, CA. On the other hand, the fact that someone takes
such foolhardy action does not negate the existence of a duty to take reasonable steps to
prevent such persons from doing those things: see Zomlinson v Congleton Borough Council
[2002] EWCA Civ 309, [2002] PIQR P 573.
147 He may, however, have an action based on the common law which remains untouched by the
Act in respect of property damage.
148 See the Countryside and Rights of Way Act 2000, s 13(1).
149 As per the Countryside and Rights of Way Act 2000, s 2(1).
150 This is made clear in the Countryside and Rights of Way Act’s amendment to the Occupiers’
Liability Act 1957, s 1(4)(a).
importance of maintaining the character of the countryside’.'*! Furthermore, the

occupier’s duty will generally be excluded in the circumstances governed by the new
section 1(6A) of the Occupiers’ Liability Act 1984,'* that is, where there is:
(a) arisk resulting from the existence of any natural feature of the landscape, or
any river, stream, ditch or pond whether or not a natural feature, or
(b) arisk of [the claimant] suffering injury when passing over, under or through
any wall, fence or gate, except by proper use of the gate or of a stile.
Perhaps anomalously, these provisions could be interpreted as conferring greater
protection on a trespasser than on someone exercising their right to roam. In Jomlinson
v Congleton Borough Council'* a trespasser who was injured in a lake under the
control of the defendant council was held to be owed a duty under section | of the
1984 Act, as it presently stands. Yet the Countryside and Rights of Way Act 2000
makes it clear that had the claimant been exercising access rights under that Act, his
claim would have been barred by section 1(6A). But perhaps the comparison is
misleading: the lake in the Zomlinson case was an ornamental lake and the defendant’s
failure was said to exist in not constructing physical barriers to prevent swimming. Given
the criterion of ‘all the circumstances of the case’ relevant to assessing a breach under
section 1(4) of the 1984 Acct, it is at least arguable that a similar decision would not be
reached if the lake had not been an artificial one and it was located in an area of natural
beauty (such as those in respect of which the 2000 Act confers access rights). In other
words, trespassers in the heart of the countryside would be likely to fare no better, in
practice, than those enjoying the rights conferred under the Countryside and Rights
of Way Act 2000.
The only exceptions to the general exclusion of liability under section 1(6A) of the
Occupiers’ Liability Act 1984 are those set out in section 1(6C). These relate to dangers
either intentionally created by the occupier or dangers to whose creation the occupier
was reckless.
(C) Common law liability and activities on land

Naturally, an occupier who intentionally harms a person whom he has permitted to be
on his premises is answerable for so doing. Furthermore, regardless of whether the
claimant has an alternative remedy under the Occupiers’ Liability Act 1957, an occupier
also owes a common law duty of care not to conduct activities on his land that are
foreseeably likely to harm persons other than trespassers of whose presence he ought
to be aware.’
The following cases illustrate typical acts within ordinary negligence. In Gallagher v
Humphrey,'> because of the defendant occupier’s negligent maintenance of a crane,
151 Occupiers’ Liability Act 1984, s 1A(a), (b).

152 To be inserted by the Countryside and Rights of Way Act 2000, s 13(2).
153 [2002] EWCA Civ 309, [2002] PIQR P 573. ;
154 In Chettle v Denton (1951) 95 Sol Jo 802, CA (D, while shooting game on private land, hit C
who was a licensee on the land. D was held liable in negligence in that he would have seen C if
he had taken reasonable care).
155 (1862) 6 LT 684; Tolhausen v Davies (1888) 57 LIQB 392, at 394—5 (affd (1888) 58 LJQB
98, CA).
x
goods carried by it fell on the claimant, whom the defendant had permitted to be on the
land. The defendant was held liable in negligence. Also, in“1966, the Privy Council
held in Railways Comr v McDermott that a railway body was liable in negligence for
not taking reasonable care to make a level crossing safe.'°° And, in another case, a
claimant who, having seen off friends on a train, was injured by the open door of the
guard’s van as the train moved away from the platform was also able to sue the railway
company under the general law of negligence.'*’ A passenger on a ship also recovered
for the injuries she suffered when seamen failed to keep passengers clear of flailing
ropes while unmooring;'** and where where hospitals are negligently administered,’
or schools badly supervised,’ the liability is in the ordinary law of
negligence. Furthermore, it follows that the setting in motion of machinery may also be
within the ambit of these acts of misfeasance.'®!
Common law rules relating to the duties of occupiers of premises have also ordinarily
been held to extend to movable structures. Consequently, the question arises whether
a trespasser on a vehicle driven by the servant of the owner of the vehicle, and of
whose presence the driver is aware, can sue in ordinary negligence or whether he is
subject to the special rules about trespassers injured by defective premises. In Conway
v George Wimpey & Co Ltd'® the Court of Appeal held that the claimant was a trespasser
and therefore failed (counsel having conceded that, if he was a trespasser, he lost the
case). It is submitted that this decision is erroneous, however. The injury was sustained
not by reason of any defect in the lorry but because of the negligent way in which it
was driven.'® In that event, as Denning LJ rightly held in Young v Edward Box & Co
Ltd,'™ the liability of the defendant rests on whether the driver drove the vehicle
negligently within the scope and course of his employment — the ordinary rules of
negligence and no others apply, unless the injury is caused by the defective condition
of the vehicle.
It will be recalled that it is an open question as to what extent these rules remain
unaffected by the Occupiers’ Liability Act 1957. So far as the Occupiers’ Liability Act
1984 is concerned, however, there are no words equivalent to those located in the 1957
legislation, which might be construed to restrict statutory liability for activities performed
in consequence of the defendant’s occupation. Accordingly, as regards the physical
156 [1967] AC 169, PC; Thomas v British Railways Board [1976] QB 912, CA.
157 Thatcher v Great Western Rly Co (1893) 10 TLR 13, CA. In Dunster v Abbott [1953] 2 All ER
1572, CA, a canvasser when leaving D’s premises in the dark was injured, allegedly because D
turned off a light too soon. This, too, was held to be a problem in negligence, and not of
invitees/licensees.
158 Daly v General Steam Navigation Co Ltd, The Dragon [1980] 3 All ER 696, CA.
159 Eg, Collins v Hertfordshire County Council [1947] KB 598; and Cassidy v Ministry of Health
[1951] 2 KB 343, CA.
160 Eg, Rich v LCC [1953] 2 All ER 376, CA; Jauffir v Akhbar (1984) Times, 10 February
(negligent parental supervision); Slade v Battersea and Putney Group Hospital Management
Committee [1955] 1 All ER 429; Slater v Clay Cross Co Ltd [1956] 2 QB 264, CA (C hit by
train while walking in a tunnel through which Ds knew persons habitually passed). Cf Thompson
v Bankstown Municipal Council (1953) 87 CLR 619 (H Ct Australia).
161 Excelsior Wire Rope Co Ltd v Callan [1930] AC 404, HL; but not the continued running of a
moving staircase: Hardy v Central London Rly Co [1920] 3 KB 459, CA.
162 [1951] 2 KB 266, CA. Cf Twine v Bean's Express Ltd [1946] 1 All ER 202.
163 This vital fact is not stated in the Law Reports — see [1950] 2 All ER 331, at 332.
164 [1951] 1 TLR 789, CA. And see Rose v Plenty [1976] 1 All ER 97, CA.
injury of non-visitors, it is extremely doubtful that any of the pre-existing common law
has survived the passage of the Act.'®
(D) Liability to those outside the premises

The dangers caused by the defective state of premises is not confined to entrants to
those premises. Slates falling from roofs, crumbling walls and dangerous activities
carried out on premises are further examples of risks just as likely to endanger passers
by and on adjoining premises. The circumstances in which the occupier of premises
owes a duty to such persons ought therefore to be considered briefly. As will be
seen,'® an action in public nuisance often lies at the instance of those injured on a
highway as a result of harmful conditions on adjoining land. But a claimant may just as
well sue for personal injuries in negligence.’ Furthermore, occupiers are under a
general duty to take reasonable care to prevent dangers on their premises damaging
persons or property on adjoining premises.'®* This is so-whether the danger arises
from the disrepair of the premises, or some man-made or natural hazard such as fire
caused by lightning striking a tree.'® Also, where adjoining properties have mutual
rights of support, negligently allowing a property to fall into dereliction so as to
damage the adjoining premises is actionable in negligence as well as nuisance.!'”
There are two issues of particular difficulty affecting the duties of care owed by
occupiers of adjoining premises to each other. First, where a claimant tenant sues his
landlord for damage resulting from the defective state of repair of premises retained by
the landlord, the case law is confused. Take first Cunard v Antifyre Ltd.'”'
Some defective roofing and guttering, which formed part of the premises retained
by D, a landlord, fell into a part of the premises let by him to C. As a result, C’s
wife was injured and his goods were damaged. Damages in negligence were
awarded to both C and his wife.
Yet in Cheater v Cater!” the Court of Appeal held that a landlord, who had let a field
to a tenant at a time when there was a yew tree on the adjoining premises retained by
165 Certainly, there was no suggestion of any other applicable law in Scott v Associated British
Ports 2000 WL 1741511, CA (youths injured when ‘surfing’ a ride on a slow-moving goods
train).
166 Ch 18.
167 Eg, Hilder v Associated Portland Cement Manufacturers Ltd [1961] 3 All ER 709 (D, who
occupied a field and allowed children to play football there was liable to a motor-cyclist who,
when driving along the adjacent highway, was knocked off by a ball kicked by the children from
the field).
168 Hughes v Percival (1883) 8 App Cas 443, HL (the premises benefited by the present rule are
those in respect of which someone other than D has a vested interest in possession). Note also,
Murphy v Brentwood District Council [1990] 2 All ER 908, at 926, HL, per Lord Bridge, and
the fact that damage to C’s land/property may well sound in private nuisance.
169 Goldman v Hargrave [1967] 1 AC 645, PC. Water normally percolates from D’s land to C’s
land and D pumps out the water from his land, and by so stopping the subterranean flow causes
settlement damage to C’s land. C has no remedy because D has no duty to adjoining occupiers
in respect of percolating water: Langbrook Properties Ltd v Surrey County Council [1969] 3
All ER 1424.
170 Bradburn v Lindsay [1983] 2 All ER 408. ate"
171 [1933] 1 KB 551. The principle on which this case was based was approved, obiter, in Bishop
v Consolidated London Properties Ltd (1933) 102 LIKB 257, at 262, per du Parcq J.
172 [1918] 1 KB 247, CA (not cited in Cunard v Antifyre Ltd).
the landlord, was not liable in negligence when the tenant’s horse died through eating
leaves from the tree which was then in the same state as at th date of the lease. Then,
in Shirvell v Hackwood Estates Co Ltd,'” the court doubted Cunard v Antifyre Ltd
holding that the workman ofa tenant could not recover in negligence from the landlord
whose tree on adjoining land fell on him. Finally, Taylor v Liverpool Corpn is
instructive.'”
C, the daughter of a tenant of one of D’s flats, was injured by the fall of a chimney
stack belonging to these flats into the yard adjoining the premises. D had
negligently maintained this chimney, which formed part of the building retained
by D.
Stable J found for the claimant in negligence, following Cunard v Antifyre Ltd, and
distinguishing Cheater v Cater on the ground that the tenant had there impliedly
agreed to take the risk in respect of danger existing on the premises at that time. The
observations in Shirvell’s case were seen to be obiter on the ground that no negligence
had in any event occurred. The principle in Cunard v Antifyre Ltd seems preferable to
the one which affords landlords’ blanket immunity in respect of retained premises in
disrepair.'”
The second area of difficulty in delimiting the duty owed by an occupier to those on
adjoining premises relates to damage inflicted on those adjoining premises by third
parties. No duty will generally'”’ be found to lie where damage is inflicted on a
neighbour’s property by vandals or burglars even though the wrongdoers’ conduct
may have been facilitated by disrepair or lax security on the part of the occupier.'” This
is in line with the general reluctance on the part of the courts to impose on a person,
who has no special relationship with a third party, liability for the conduct of that party.
Section 2. Liability of non-occupiers

An occupier of premises may have immediate control over the state of those premises,
and the capacity to repair defects in them, but in a number of instances, particularly in
relation to structural defects, nothing he has done will have caused the relevant
defect. Cracks in a house resulting from inadequate foundations will often be the
result of the negligence of the builder and they may endanger the occupier as much as
any visitor to the property. Parliament passed the Defective Premises Act in 1972 to
impose on persons providing dwellings some limited responsibility to subsequent
purchasers and their families, and to clarify the responsibilities of landlords. As will be
seen, the Act is a far from perfect example of legislation. Shortly after it came into force,
however, the judiciary sought to extend the common law by, in effect, imposing a duty
of care on builders, local authorities and others involved in construction work wherever
173 [1938] 2 KB 577, at 594-5, CA, per Green LJ.

174 [1939] 3 All ER 329.
175 It is submitted that the Court of Appeal thought wrongly in Shirvell’s case that the decisions
where landlords with no control of defective premises had been held not liable applied in the
case before them.
176 In P Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342, CA the court
did not entirely rule out special circumstances which might give rise to such a duty to adjoining
occupiers.
177 Smith v Littlewoods Organisation Ltd [1987] AC 241, HL.
it was reasonably foreseeable that any negligence on their part would cause loss or
injury to subsequent purchasers or visitors to the property.'’® The courts virtually by-
passed the statute by invoking the Donoghue v Stevenson principle in order to remedy
what was then perceived to be a gap in the ‘consumer protection’ provided for property
owners. But this approach met a decisive end in Murphy v Brentwood District
Council,'” Lord Mackay stating that, as Parliament had made provision for imposing
statutory duties on those involved in providing dwellings, it was not ‘a proper exercise
of judicial power’ for the courts to create a large new area of responsibility at least in
relation to local authorities.'*°
(A) The Defective Premises Act 1972

One key feature of Murphy is the repeated insistence by their Lordships that the
courts should not seek to impose common law rules of liability where Parliament, via
the Defective Premises Act 1972, had already done so. Sirice Murphy, therefore, the
primacy of the 1972 Act has been put beyond question, especially since, under
section 6(3) its provisions are made non-derogable. Section 1 of the Defective Premises
Act 1972 imposes on any ‘person taking on work for or in connection with the provision
of a dwelling’ a strict liability to ensure that the work he takes on is ‘done in a
workmanlike, or, as the case may be professional manner, with proper materials and so
that as regards that work the dwelling will be fit for habitation when completed’.'*' Thus,
a builder who, reasonably believing that his materials were suitable, used asbestos in
roofing materials at a time before the dangers of asbestos were appreciated, would still
be in breach of his duty under section |. That provision covers all those involved in
building new homes from builders and contractors to architects and
developers.'** However, while fine in theory, section | is in practice more or less a dead
letter.'* First, houses built under the National House Building Council scheme, and
covered by a National House Building Registration Council Certificate, are exempted
from the strict liability regime created by section 1.'** Secondly, and much more
importantly, the limitation period under the 1972 Act begins to run as soon as the
dwelling is completed, which may be a very considerable time before a structural
defect finally manifests itself (and defects in timbers and foundations, for example,
178 Batty v Metropolitan Property Realisations Ltd [1978] QB 554, CA; Anns v Merton London
Borough Council [1978] AC 728, HL.
179 [1990] 2 All ER 908, HL; and see Department of the Environment v Thomas Bates & Son Ltd
[1991] 1 AC 499, HL.
180 [1990] 2 All ER 908, at 918, HL. See similar sentiments, at 923, 930 and 938, per Lords Keith,
Bridge and Oliver.
181 The section applies to omissions as much as to acts: Andrews v Schooling [1991] 3 All ER 723,
CA; but it is confined to defects rendering the dwelling (but, importantly, not commercial
properties) uninhabitable: Thompson v Clive Alexander and Partners (1992) 59 BLR 81.
182 See the Defective Premises Act 1972, s 1(3) (including local authorities). The fact that all such
persons may be liable creates the potential for difficulties in establishing causation. The test to
be applied is whether D’s breach of the section is a ‘significant cause’ of the unfitness of the
dwelling: Bayoumi v Protim Services Ltd [1996] EGCS 187.
183 See Spencer, ‘The Defective Premises Act 1972 — Defective Law and Defective Law Reform’
[1974] CLJ 307 and [1975] CLJ 48.
184 Defective Premises Act 1972, s 2. For a time most new houses built were erected within the
NHBC scheme, but no longer so: see Wallace, ‘Anns Beyond Repair’ (1991) 107 LQR 228.
usually take a long time to appear).'® By contrast, the limitation period in a negligence
action begins to run only when the claimant should reasofably have known of the
relevant damage (subject to a long-stop of 15 years after which any action in respect of
property damage is barred completely).'*°
Other provisions of the Defective Premises Act 1972 — in particular sections 3 and 4
concerning the survival of a duty of care after disposal of the premises, and landlords’
duties of care where there is an obligation to repair— are rather more useful, as we shall
see.
(B) Builders and contractors: physical damage

A builder or contractor actually engaged in construction or repair work on land and
premises affixed to that land owes a duty of care'*’ to the occupier of the premises, her
visitors, and, where their presence is foreseeable, probably to trespassers as well.'*8 Any
universal exemption from a duty of care in respect of real property did not survive the
decision in AC Billings & Sons Ltd v Riden'® where B Ltd, building contractors, were
employed to make an alteration to the front of part of a house. In the course of this
work B Ltd failed to take reasonable care to make access to the house safe and R, a
visitor, was injured when leaving the house in the hours of darkness. B Ltd were held
liable in negligence.
Subsequent decisions found the original builders of a property liable for personal
injury (or physical damage to other property) resulting from the negligent construction
or repair of buildings both to subsequent occupiers and to their visitors.'”° Thus, if the
defendant contractor negligently erects an unsafe roof which some time later collapses
injuring the occupier and her dinner party guests, the victims have a claim against the
contractor for those injuries. And if the collapse of the roof also smashes the windows
in the next door property, the neighbours may also sue the contractor.
The fact that the contractor at the time of the erection of the property was also the
landowner no longer affords him immunity from liability in negligence. Most of the
content of the maxim caveat emptor in relation to sale of land in this context has now
been eroded: ‘[a] landowner who designs or builds a house or flat is no more immune
from personal responsibility for faults of construction than a building contractor, or
from personal responsibility than an architect, simply because he has disposed of his
house or flat by selling or letting’.'”!
185 For an example of the theoretical scope of s 1 made futile by the limitation provisions, see
Rimmer v Liverpool City Council [1985] QB 1, CA.
186 Under the Latent Damage Act 1986.
187 Miller v South of Scotland Electricity Board 1958 SC (HL) 20, HL.
188 The contractor may of course also be the occupier in which case his liability to trespassers will
be governed by the Occupiers’ Liability Act 1984. In other circumstances ordinary principles
of negligence apply: Railway Comr v Quinlan [1964] AC 1054, PC; Miller v South of Scotland
Electricity Board, supra (D liable to a child trespasser after carelessly disconnecting electricity
in a condemned building so that C suffered a shock from a live cable).
189 [1958] AC 240.
190 Gallagher v N McDowell Ltd [1961] NI 26, CA; Sharpe v ET Sweeting & Sons Ltd [1963] 2 All
ER 455.
191 Rimmer v Liverpool City Council [1984] 1 All ER 930, at 938, CA.
But this principle covers only negligence in the original construction of the building,
not inadequate repairs or maintenance by the original owner and vendor. However,
section 3 of the Defective Premises Act 1972 provides that where:
work of construction, repair, maintenance or demolition or any other work is
done on or in relation to premises, any duty of care owed because of the doing
of the work to persons who might reasonably be expected to be affected by
defects in the state of the premises by the doing of the work shall not be abated
by the subsequent disposal of the premises by the person who owed the duty.
Thus, a botched job in repairing floorboards will create liability to visitors while the
owner remains the occupier; and that liability will survive for the benefit of subsequent
occupiers and their visitors when the owner sells or lets the house. But section 3 of the
1972 Act is not comprehensive. It does not cover all possible sources of danger on
premises, particularly those caused by omissions. Leaving dangerous refuse on
premises and failing to remedy or warn the subsequent occupier of a ruinous defect
existing before the vendor came into occupation are probably not covered by the
words used in section 3, ‘work of construction, repair, maintenance!” or demolition or
any other work’. Thus, the common law principle that there is no duty not to sell or let
a ruinous house probably survives albeit in attenuated form. Only the House of Lords
can finally take up Lord Denning’s invitation in Dutton v Bognor Regis UDC'® to
overrule the old cases.'™
It is suggested that today the crucial point is not whether the defendant contractor is
or was the landowner, but what kind of damage resulted from his negligence. If actual
physical injury to some person, or separate property, is inflicted as a consequence of
his incompetence, that injury is likely to be recoverable just as it would be if the ‘guilty’
cause of the injury were a negligently manufactured chattel.'”°
(C) Builders and contractors: other loss

No duty of care will be imposed on a builder or contractor in respect of economic loss
occasioned by negligent work of construction or repair, save where some special
relationship is found to exist between him and the claimant. Thus, contractors and
development companies owe no duty in tort in respect of financial losses occasioned
to subsequent occupiers of property with whom they have no contractual relationship.
In D & F Estates Ltd v Church Comrs for England,'” D built a block of flats later
occupied by C. Crumbling plasterwork caused by D’s negligence forced C to
expend some considerable sums of money on repairs. The House of Lords found
that D was not liable for C’s loss. By analogy with liability for chattels, D owed
a duty to safeguard C against physical damage to person or property caused by
negligent construction of the property, but not against loss caused by a defect
192 Could omissions to remove or repair pre-existing defects be caught by this word ‘maintenance’?
193 [1972] 1 QB 373, at 394.
194 Eg, Otto v Bolton and Norris [1936] 1 All ER 960.
195 See Murphy v Brentwood District Council [1990] 2 All ER 908, at 917 and 925-6, HL, per
Lords Keith and Bridge.
196 [1989] AC 177, HL.
8
in the quality of the property itself. Damage to the property itself was a mere
defect in quality — the property was simply not value fof*money.
Recoverable physical damage must be occasioned to separate property.'*’ On the
other hand, the House of ‘Lords left open the question of ‘complex structure’ buildings. If
a defect in the foundations threatens the structure of a particular flat in a block of flats,
or a dwelling house threatens damage to the garden wall, is there damage to separate
property?’
Some of the questions left open in D & F Estates were at least partially answered by
the House of Lords in Murphy v Brentwood District Council.'”? Murphy, strictly
speaking, relates to the liability of local authorities, but its applicability to builders and
contractors was expressly confirmed in the short judgment in Department of the
Environment v Thomas Bates & Son Ltd.*® The claimant in Murphy had purchased
from a construction company a semi-detached dwelling constructed on a concrete raft
foundation over an in-filled site. Eleven years later the claimant noticed cracks in the
house which proved to be caused by serious defects in the concrete raft. Repairs
which were essential to make the house safe and habitable would have cost £45,000. The
claimant could not afford that sum and had to sell the house for £35,000 less than he
would have received but for the damage caused by the defective foundations. He
sued the local council whom he alleged had negligently approved the plans for the
foundations.
The House of Lords rejected his claim, classifying the damage he suffered as
irrecoverable economic loss. The claimant argued that the nature of the damage to his
home posed an immediate and imminent danger to his and his family’s health and
safety, and so ought to be classified as physical damage. The Law Lords unanimously
rejected that contention.*”' Lord Bridge described the distinction between physical
damage and financial loss in this way:?
Ifa builder erects a structure containing a latent defect which renders it dangerous
to persons or property, he will be liable in tort for injury to persons or property
resulting from that dangerous defect. But, if the defect becomes apparent before
any injury or damage has been caused, the loss sustained by the building owner
is purely economic.
197 See Bellefield Computer Services Ltd v E Turner & Sons Ltd [2000] BLR 97, CA (damage
caused by a fire spreading across a poorly constructed wall from one part of a dairy to another
part of the dairy. This was merely ‘damage to the same property’) and Payne v Setchell Ltd
[2002] PNLR 146. Cf Baxall Securities Ltd v Sheard Walshaw Partnership [2001] PNLR 257.
198 See the analysis in Murphy v Brentwood District Council [1990] 2 All ER 908, at 1006-7, HL,
per Lord Bridge.
199 [1990] 2 All ER 908, HL.
200 [1990] 2 All ER 908, HL.
201 In the Commonwealth courts the slavish adherence to the irrecoverability of economic loss
caused by defective building work has been, to varying degrees, rejected. In Australia and New
Zealand, the negligent builder enjoys no such immunity: Bryan v Moloney (1995) 128 ALR
163; Invercargill City Council v Hamlin [1994] 3 NZLR 513, NZCA. In Canada, an intermediate
position, depending on a threat to health and safety, has been adopted: Winnipeg Condominium
No 36 v Bird Construction Co (1995) 121 DLR (4th) 193, Can SC. See also Fairgrove Pty Ltd
v Todd Group Holding Pty Ltd [1999] 2 Qd R 236.
202 [1990] 2 All ER 908, at 926, HL.
Liability for defective premises and structures 36|
The effect of Murphy would seem to be this. Outside a contractual relationship,

negligent construction (and presumably also repair and extension) of a building only
results in liability if actual physical damage is caused to a person, or to property that is
not part and parcel of the building. If defective foundations cause cracks in the walls
or threaten damage to any fixture in the building installed by the defendant, the cost of
remedying the damage is irrecoverable economic loss. By contrast, if A negligently
installs a defective central heating boiler in a building erected by B and later bought
and occupied by C, then that boiler explodes damaging the building, that loss is
recoverable by C against A. A’s negligence has caused actual damage to property
quite separate from the inherently defective structure he installed. Lord Bridge, in
Murphy, also suggested a new exception to refusal of recovery for economic loss. He
opined that where the defect in the building requiring repair threatens damage to
adjoining land or the highway:
... the building owner ought, in principle, to be entitled to recover in tort from the
negligent builder the cost of demolition, so far as that cost is necessarily incurred
in order to protect himself from potential liability to third parties.”
Consideration of the decision in Murphy prompts a number of questions.“
(1) Is it just to leave the occupier to bear the loss? Lord Keith maintained that in
reality it was not ordinary home-owners who suffered. Disputes such as the one
in Murphy were essentially quarrels between insurers.”°
(2) Just how far can Lord Bridge’s caveat concerning third party liability be
stretched? If one may recover that economic loss occasioned by the need to
ensure one’s crumbling house does not damage a neighbour’s house or crash
onto a passer-by on the highway, why is one not able to recover the loss
occasioned by the need to ensure that one does not incur similar liability to one’s
visitors?
(3) Finally, is this the logical result of Murphy? Imagine that X discovers that his
house has a latent defect which he has no funds to repair. Three months later the
ceiling falls in injuring X and his spouse, and it also smashes the grand piano. Does
X then recover for that loss and all its consequences or is he guilty of contributory
negligence for not minimising the loss he suffers, or for not rectifying the defect at
his own expense??”
Leaving aside economic loss, it has also been held, in Smith v Drumm,” that builders
are liable under section 1 of the Defective Premises Act 1972 if their work leaves the
premises in a state that is not fit for habitation. In this case, the converted flat was left
without either electricity or gas, and on that basis deemed to be unfit for habitation. Had
203 [1990] 2 All ER 908, HL.

204 See Howarth, ‘Negligence after Murphy — Time to Re-think’ (1991) 50 CLJ 58. om
205 [1990] 2 All ER 908, at 923, HL. No evidence is advanced to support the proposition. .
206 One difference is that I could of course ‘obviate’ that danger by having no visitors. Another is
that I could reasonably warn my visitors; but I could not, for example, practicably warn all
passers-by who walk beneath a dangerous overhanging gable.
207 For a partial answer see Nitrigin Eireann Teoranta v Inco Alloys Ltd [1992] 1 All ER 854. See
also Targett v Torfaen Borough Council [1992] 3 All ER 27: where D lets property, it may in
some circumstances be unreasonable to expect a tenant to do repairs that D is obliged to
perform.
208 [1996] EGCS 192.
®
the work simply been rectification work — instead of ‘construction, conversion or

enlargement’ (as per the Act) — no duty under section 1 wotld have been owed.”
(D) Professional advisers

The strict liability imposed by section | of the Defective Premises Act 1972 in respect
of the construction of buildings is equally incumbent on architects and other
professionals involved in the design of the building. Additionally those professionals
owe a duty of care to any person who may be injured on the site in the course of the
building work,”'° and to subsequent occupiers of the premises in respect of both their
personal safety and damage to property separate from the original property itself. The
reasoning in Murphy relating to builders applies equally to architects and
engineers. The professional will not be liable in tort for economic loss arising from the
defective nature of the building whether that cost is occasioned by the need to carry
out repairs to make the building safe or by diminution in the value of the property. On
subsequent disposal of the premises, surveyors engaged to inspect the property will
be liable for any failure to value the property competently or to discover and report on
relevant defects in the property. Where the surveyor has been engaged by the building
society contemplating financing the claimant’s house purchase he will generally be
liable, not only to his client (ie, the society), but also to the purchasers where they
have relied on his survey rather than commissioned an independent surveyor.”'' But
where a surveyor is expressly commissioned only to value property he is not under
any duty to report on defects generally or to advise on possible difficulties with resale
of the property.?””
(E) Local authorities

Local authorities owe duties to tenants and subsequent purchasers of local authority
dwellings as builders and contractors. In Rimmer v Liverpool City Council’ the
defendants were held liable to a council tenant injuring himself when he fell against a
negligently used, thin glass panel and the glass shattered.
The decision of the House of Lords in Murphy removes from local authorities the
greatest potential area of liability for defective premises. Local authorities are entrusted
with the function of inspecting and approving all building work. Negligent exercise of
these powers may result in local people purchasing and living in defective, even
209 Jacobs v Morton & Partners (1994) 72 BLR 92.
210 In Clay v A J Crump & Sons Ltd [1964] 1 QB 533, CA (D, an architect, was liable for directing
a wall to be left standing during demolition whereupon it collapsed on C who was working on
the site. The court rejected the argument that D’s only duty was his contractual one to his
employer. This decision was followed in Driver v William Willett (Contractors) Ltd [1969] 1 All
ER 665 (consulting engineer liable to workman for failing to advise builder about unsafe hoist
which caused C’s injuries). See also Baxall Securities Ltd v Sheard Walshaw Partnership [2001]
PNLR 257 (architect liable for sub-standard roof design causing subsequent water damage). But
note, also, that limited scope of an architect’s original instructions will define the extent of his
or her liability in tort by confining the extent of the duty of care: Bellefield Computer Services
Ltd v E Turner & Sons Ltd (No 2) [2002] EWCA Civ 1823.
211 Smith v Eric S Bush [1990] 1 AC 831, HL.
212 Sutcliffe v Sayer [1987] 1 EGLR 155, CA.
213 [1985] QB 1, CA.
dangerous, property. Murphy makes clear that the local authority will not be liable in
tort for any economic loss occasioned by the defects in the property. But would the
authority be liable if actual injury was caused to a resident or his property — property
not an integral part of the premises? The House of Lords contended that the builder
would be so liable — but what if the builder has gone into liquidation? That question
was left open by their Lordships.?"* In the current climate, where restrictions on the
duty of care owed by public authorities are prevalent, even actual injury may be
irrecoverable.*!° And while it is true that local authorities are granted inspection powers
for the purpose of protecting the health and welfare of local people,”"* it is nonetheless
difficult to characterise this as a duty owed to individuals as opposed to the public
more generally. Equally, why should the council be liable for what is, at bottom, the
negligence of a third party, the builder?
(F) Landlords
The liability of landlords for defects arising from disrepair on premises let by them was
originally largely limited to contractual liability. A person other than the tenant had no
remedy even if the landlord was in breach of a contractual duty to carry out maintenance
and repairs.*'’ And like vendors, he owed no duty in respect of defects arising before
the tenancy was granted. As we have seen, landlords are now liable just like anyone
else for their negligent installations or repairs in premises let by them.”'® That tortious
liability covers tenants, their families and others injured on the premises.
Section 4 of the Defective Premises Act 1972 established important duties in respect of
landlords under an obligation’"’ to carry out repairs or maintenance on the premises, or
who are empowered to carry out repairs.””° A 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 relevant
defects.”?! The landlord is liable although he did not know of the defect, if he ought to
214 [1990] 2 All ER 908, at 912 and 917, HL.

215 See Ephraim v Newham London Borough Council (1992) 25 HLR 207, CA.
216 See the powerful arguments to this effect in the speech of Lord Wilberforce in Anns v Merton
London Borough Council [1978] AC 728, HL. Note Anns was only overruled as far as
recovery for economic loss is in issue.
217 But in some circumstances, the Contracts (Rights of Third Parties) Act 1999 may now apply.
218 Rimmer v Liverpool City Council [1984] 1 All ER 930; Boldack v East Lindsey District Council
(1998) 31 HLR 41, CA (where a third party did the defective work, however, the landlord
remained immune at common law). Cf the position in Australia in respect of defects caused by
another that were capable of reasonable discovery by the landlord: Northern Sandblasting Pty
Ltd v Harris (1997) 71 ALJR 1428, HC of A.
219 This includes statutory obligations.
220 Defective Premises Act 1972, s 4(4). This extension to the case where the tenant cannot
legally insist on a repair but where the landlord has a power to repair is important in view of
cases like Mint v Good [1951] 1 KB 517, CA, deciding that landlords of small houses let on
periodic tenancies, have such a power. For application of this principle resulting in liability
under the Act see McAuley v Bristol City Council [1992] QB 134, CA; Sykes v Harry [2001]
EWCA Civ 167, [2001] 3 WLR 62.
221 In the case of children who are injured, however, the landlord is entitled to expect that the
parents of the child will take proper precautions to ensure the child’s safety: see B (a child) v
Camden London Borough Council [2001] PIQR P143 (landlord not liable to four-year old
burnt by hot pipes).
x
have known of it.”” A defect is relevant if it is one in the state of the premises arising
from, or continuing because of, an act or omission by the landlord which constitutes or
would, if he had had notice of the defect, have constituted a failure by him to carry out
his obligation to the tenant for the maintenance or repair of the premises.*** The duty
is wide; it extends to trespassers and those outside the premises. It also applies where
the landlord merely has a right to enter to carry out maintenance or repairs.
The liability of non-occupiers for actual physical damage is now fairly
extensive. Nonetheless, it is not yet by any means comprehensive. If an owner knows
of a defect in his premises (not created by him) before he sells or lets, but neither
repairs it nor gives warning of the defect, the Defective Premises Act 1972 imposes no
liability on him for harm which results after he has disposed of the premises by sale or
lease, and there is no liability at common law.” A landlord who fails to repair where he
has no obligation or power to do so has no liability either under the Act or at common
law.
222 Defective Premises Act 1972, s 4(2).

223 Defective Premises Act 1972, s 4(3). Failures to remedy such defects are actionable, alternatively,
on the basis of common law negligence: see Targett v Torfaen Borough Council [1992] 3 All
ER 27.
224 Cavalier v Pope [1906] AC 428, HL; Bromley v Mercer [1922] 2 KB 126; Davis v Foots
[1940] 1 KB 116, CA (although this case would now be decided differently because of housing
legislation; the principle is unaffected).
Part V
Invasions of interests in person and

property where intentional or negligent
conduct need not always be proved
366 Invasions of interest where intentional or negligent conduct need not always be proved
x
Contents
CHAPTERS PAGE
17 Product liability ~ 367

18 Nuisance 387
19 Rylands v Fletcher 431
20 Animals 451
21 Breach of statutory duty 457
The common element in the torts discussed in this Part is that a defendant who has not
committed the act complained of either intentionally or negligently, and who is not
merely being held accountable for the acts of an employee or an independent contractor,
may nevertheless sometimes be liable for the tort. These are often called torts of ‘strict
liability’. As Lord Macmillan once observed, ‘strict liability’ is an ambiguous term.'
Moreover, it suggests that there is some set of circumstances common to a series of
torts whereby liability arises for acts which are neither intentional nor negligent:? it
might even imply that, in this particular class of circumstances, the defendant is liable
for all his acts. In fact, the rules differ from tort to tort — therefore the strictness and
extent of liability in each of them must be considered separately. ‘Strict liability’ cannot
be assigned any consistent meaning.
1 Read v J Lyons & Co Ltd [1947] AC 156 at 171, HL.

2 Cf the view of Winfield [1931] CLJ 193-4 that it may be taken to mean liability for the torts
of independent contractors, or of anyone except a stranger.
3 Cf Lord Porter in Read v J Lyons, supra, at 178.
CHapTER |7
Product liability’
The complex history of liability for loss or injury caused by defective products illustrates
well the gradual development and changing perceptions of the role of the law of torts
and its inter-relationship with the law of contract. The classical common law stance
towards faulty or useless goods was that of caveat emptor (let the buyer beware). The
person buying goods was expected either to take steps to ensure that the goods were
safe for use and value for money, or to make contractual arrangements which would
provide him with a remedy should the goods prove to be defective. If he failed to
protect himself, he would bear any resulting loss. In 1893 Parliament gave some
protection to purchasers of goods via the first Sale of Goods Act. Then, in 1932, in
Donoghue v Stevenson,’ the House of Lords held that the ultimate user of a product
might also, in certain circumstances, sue in negligence the manufacturers of a product
causing injury to his person or his property. The extent of manufacturers’ negligence
liability has since been further developed and refined by the courts.
In the meantime, Parliament strengthened the contractual rights of purchasers of goods*®
and services’ with increasingly interventionist consumer protection laws.’ And in
respect of certain types of goods the criminal law was invoked to protect safety
standards, and an action for breach of statutory duty’ was expressly created to allow
individuals injured by goods in the specified categories to recover compensation from
the manufacturers. Thus, by 1987 little survived of the caveat emptor principle. The
social and legal climate had changed, but there was a confusing multiplicity of potential
remedies available under a range of limited causes of action. Furthermore, the difficulty
of proving negligence had become especially problematic in relation to products and
See generally Howells, Product Liability (2000).

[1932] AC 562, HL.
See the Sale of Goods Act 1979.
See the Supply of Goods and Services Act 1982. Note also the Unfair Contract Terms Act
NDNA
OTe
8 Domestic consumer protection legislation has been strengthened further by the European
Directive on Unfair Terms in Consumer Contracts 1993.
9 Consumer Protection Act 1961, s 3 and Consumer Safety Act 1978, s 6; both these provisions
are now repealed and replaced by the Consumer Protection Act 1987, s 41.
several official bodies” advocated that manufacturers should be made strictly liable
for defective products.'! The final victory for proponents of strict liability was won in
Europe. On 25 July 1985 the Council of the European Communities issued a Directive!”
requiring member states to implement a regime of strict liability for defective products.
The UK Government responded by enacting the Consumer Protection Act 1987. The
Act applies only to goods put on the market after March 1988, but both the Directive
and the Act leave existing actions in respect of defective products unaffected.
Contractual claims against the retailer, the action in negligence and, where appropriate,
actions for breach of statutory duty, remain available side by side with the new rules
on strict liability.
The Act is further limited in its effect in that it provides only for claims in relation to
personal injury and damage to private property. Damage to business property and
economic loss resulting from defective products are outside the remit of the Act.
Unhappily for advocates of strict liability, the UK Government exercised its option to
provide for a ‘development risks’ defence'? whereby manufacturers are exempt from
liability if they can prove that the state of scientific and technical knowledge at the time
the product was put on the market was not such that they could be expected to have
discovered the relevant defect.
Section 2. Consumer protection and the changing common law
(A) The limitations of contract law

The primary means invoked to protect consumers against faulty goods has traditionally
been the law of contract. The original Sale of Goods Act 1893 has now been replaced
by the Sale of Goods Act 1979 (itself amended by the Sale and Supply of Goods Act
1994). It is that 1979 Act which, among other things, incorporates into every contract
of sale terms of satisfactory quality'* and fitness for purpose.'* Identical terms are
implied by the Supply of Goods and Services Act 1982 into any contract for services in
the course of which goods are supplied.'® Thus, if in the course of private dental
treatment a dentist provides her patient with dentures which crumble within the week,
it matters not whether any contract of sale for the dentures exists. She clearly had a
contract for services under which unsuitable dentures were supplied. Terms implied
into contracts of sale or service by virtue of the 1979 and 1982 Acts cannot be excluded
against the consumer.'” Liability is strict, and it is not limited to protection against
injury to the person or property. Satisfactory quality is defined as meeting ‘the standard
10 See Law Commission Report on Liability for Defective Products (1977) Law Com No 82,
Cmnd 6381; Strasbourg Convention on Products Liability in regard to Personal Injury and
Death 1977 (reproduced as Annex A in Law Com No 82); Royal Commission on Civil Liability
and Compensation for Personal Injury (Pearson Report) (1978) Cmnd 7054, Vol 1.
11 For the history and reasons, see the 10th edition of this book.
12 1985/374/EEC. On the implementation of the Directive in the EC generally see Kelly and
Attree, Product Liability in Europe (1992).
13 Consumer Protection Act 1987, s 4(1)(e) (discussed post).
14 Consumer Protection Act 1987, s 14(2).
16 Consumer Protection Act 1987, s 4.
17 Unfair Contract Terms Act 1977, s 6; Supply of Goods and Services Act 1982, s 13.
that a reasonable person would regard as satisfactory taking into account any description
of the goods, the price (if relevant) and all the other relevant circumstances’. So, an
electric blanket that fails to heat a bed as expected would incur liability just as much as
one that casuses an electric shock or fire.
There are, however, limitations to the effectiveness of contract as a means of general
consumer protection against defective goods. These arise from the rules of privity of
contract.'* A person who is not a party to a contract cannot generally benefit from that
contract. So if one is bought the gift of an electric blanket by a friend, one has no
contractual right to sue the retailer if it proves to be faulty; and where one purchases
the faulty blanket oneself, and the retailer goes out of business, one has no contractual
claim against the wholesaler.'’ Furthermore, the Contracts (Rights of Third Parties) Act
1999 is unlikely to be of much use in this context, for that Act only confers rights on
third parties in respect of whom it is clear that the contract was designed to confer a
benefit and who are identified by name, class or description in the contract.”°
A number of devices have occasionally been used to evade the consequences of rules
of privity. In Lockett v Charles,”' for instance, a wife whose husband bought her a
restaurant meal was able to claim for her food poisoning on the basis that her husband
had acted as her agent. But the circumstances allowing for an inference of agency are
strictly limited. The same is true of the other devices that have been employed to avoid
the privity rule.” It is thus to tort that a claimant must generally look if she did not
purchase the product herself.
(B) The action for negligence

The early development of liability in negligence for defective goods began with Dixon
v Bel? where a master who entrusted a loaded gun to his young servant was found
liable to a third party injured by the servant firing the gun on the ground that the goods
‘were in a state capable of doing mischief’. However, the court in Langridge v Levy”
declined an invitation to deduce from Dixon v Bell a general principle of liability for
putting into circulation things ‘of a dangerous nature’. In Winterbottom v Wright,” the
driver of a coach was seriously injured as a result of a defect in the coach. His action
against the defendant who supplied his employers with coaches and horses failed
because of privity of contract: the claimant could not take advantage of express terms
in the contract as to the repair and maintenance of the coach. But what the court in
Winterbottom v Wright failed to analyse was the possibility of a separate and
independent obligation arising within the tort of negligence.
18 See Furmston, Cheshire, Fifoot and Furmston’s Law of Contract (2001) ch 14.
19 There may, however, be a collateral contract with the manufacturer to the effect that any
guarantee given is effective in the hands of the ultimate purchaser. But even if there is no such
collateral contract, Art 6 of Directive 1999/44/EC now requires that manufacturers’ guarantees
should be legally enforceable.
20 Contracts (Rights of Third Parties) Act 1999, ss 1(1)(b) and (3).
21 Lockett v A & M Charles Ltd [1938] 4 All ER 170.
22 Furmston, Cheshire, Fifoot and Furmston'’s Law of Contract (2001) pp502-507.
23 (1816)5M & S 198.
24 (1837) 2M & W 519. The court nevertheless found for C on the ground of fraud.
25 (1842) 10M & W 109.
‘
Case law between 1851 and 1932 continued to deny any general duty to take care in the
manufacture and distribution of goods although some exceptional cases did hold that
a duty existed. Liability was eventually recognised in relation to goods “dangerous in
themselves’,”® in respect of known defects of which no warning of the defect was
given by the supplier.” And occupiers were held liable to their invitees in respect of
appliances on their premises which proved to be defective.”* The boundaries of these
instances of liability for defects were unclear and the need to prove knowledge of the
defect in the second category was often fatal to the success of a claim. The decision of
the House of Lords in Donoghue v Stevenson” heralded a new age.
C drank a bottle of ginger beer, manufactured by D, which a friend bought from
a retailer and gave to C. The bottle allegedly contained the decomposed remains
of a snail which were not, and could not be, detected (as the bottle was opaque)
until most of the bottle had been consumed. C alleged that she was ill as a result,
and sued D. The House of Lords had to decide whether the facts disclosed a
cause of action. They found for C by a majority of 3 to 2.
Lord Atkin began by discussing the difficulties of finding an underlying thread in
English negligence law before setting out his famous neighbour principle (which we
have already examined*°). He then considered the cases which seemed to stand in the
way of the claimant winning. He held that they all could be distinguished, either
because the relationship of the parties was so much more distant that no duty arose, or
because the dicta went further than was necessary for the determination of the particular
issues. He then concluded, finding for the claimant, that:
a manufacturer of products, which he sells in such 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, and with the
knowledge that the absence of reasonable care in the preparation or putting up
of the products will result in an injury to the consumer’s life or property, owes a
duty to the consumer to take that reasonable care.*!
Lord Thankerton found for the claimant on the ground that the manufacturer in cases
like this brought himself into such a direct relationship with the consumer that a duty
of care was imported. Lord Macmillan also distinguished earlier cases, stressing that
the categories of negligence could be extended. He held that there was a duty of care
towards the intended consumer on the part of those who manufacture food and drink
intended for consumption by members of the public in the form in which he issued
them. Donoghue v Stevenson has since been extended in its range of application to
goods, and the principles in that decision remain important notwithstanding the passage
of the Consumer Protection Act 1987. Throughout the remainder of the chapter, therefore,
readers ought to bear in mind the following questions.
26 See Longmeid v Holliday (1851) 6 Exch 761.

27 Heaven v Pender (1883) 11 QBD 503, at 517, CA; Clarke v Army and Navy Co-operative
Society [1903] 1 KB 155, CA.
28 Heaven v Pender, supra.
29 [1932] AC 562, HL.
30 See ch 11.
31 [1932] AC 562, at 599, HL. This proposition will be called the ‘narrow rule’ in the case; and
the ‘neighbour principle’, the broad rule.
Product liability 37\
1 Are there any persons who may be liable in negligence in respect of defective
goods who would not be classified as ‘producers’ for the purposes of the
Consumer Protection Act 1987 (and thus not liable within the terms of that
legislation)?
2 Are there any kinds of loss remediable in negligence but not under the Act?
3 What is the nature of the special limitation rules under the Consumer Protection
Act 1987?
4 How radical a departure from common law negligence is the strict liability regime
introduced by the Consumer Protection Act 1987?
(1) The narrow rule in Donoghue v Stevenson — defective products
It will be recalled that Lord Atkin stated the ‘narrow rule’ as follows:
... a manufacturer ofproducts, 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 and with the knowledge
that the absence of reasonable care in the preparation or putting up of the
products will result in an injury to the consumer’s life or property, owes a duty
to the consumer to take that reasonable care.
Yet the courts have not been content to keep within this definition: subsequent
decisions have extended liability beyond the confines of the italicised words. To a
significant degree, however, the scope for liability in respect of defective products has
been increased, not by a liberal interpretation of these key phrases, but rather by
having recourse to the broad rule in Donoghue v Stevenson.
(2) Range of defendants

Lord Atkin imposed liability on manufacturers. Later case law extended liability to,
among others, assemblers,*” repairers*’ and suppliers of drinking water.** Mere suppliers
of goods have also been held liable where their function went beyond mere distribution.
For example, a car dealer selling vehicles reconditioned by him,” and a retail chemist®
failing to observe the manufacturers’ instructions to test the product before labelling
it, were both found liable to injured users. Indeed, wherever the circumstances are
such that a supplier would normally be expected to check a product, a duty to do so
has often been imposed. Second-hand car dealers will be expected to check the steering
on used cars.?”7 Wholesalers who fail to test a hair dye of dubious provenance will also
be held negligent.**
32 Malfroot v Noxal Ltd (1935) 51 TLR 551 (fitting a sidecar).

33 Haseldine v C A Daw & Son Lid [1941] 2 KB 343, CA (lift repairer).
34 Read v Croydon Corpn [1938] 4 All ER 631; Barnes v Irwell Valley Water Board [1939] | KB
21, CA.
35 Herschtal v Stewart and Ardern Ltd [1940] 1 KB 155.
36 Kubach v Hollands [1937] 3 All ER 907.
37 Andrews v Hopkinson [1957] 1 QB 229. See also Fisher v Harrods Ltd [1966] 1 Lloyd s Rep
500 (D, a retailer, was liable to the donee of a customer for an eye injury caused by a jewellery
cleaning fluid).
38 Watson v Buckley, Osborne Garrett & Co Ltd [1940] 1 All ER 174.
A number of categories of persons owing a common law duty of care will also shoulder
responsibility for compensating victims of defective products under the CPA 1987. But
this is not so of all those owing a common law duty of care. For example, suppliers
failing to carry out tests may avoid liability under the statute, as we shall see, by simply
naming the person who supplied the goods to them. Repairers are also beyond the
scope of the statute.
(3) Products
The term ‘products’ today includes not only food and drink*’ but quite clearly any
product in normal domestic use. Underwear,” hair dye,*' motor cars,** computer
software,* houses“ and installations in,* and staircases outside,** houses have all
been treated as proper subjects of a duty of care. Pre-Donoghue v Stevenson
distinctions*’ between products ‘dangerous in themselves’ and other goods can now
be largely disregarded.** The distinction remains relevant only in that the greater the
potential danger inherent in a product, the more stringent must be the precautions
needed to protect the user against injury or loss.”
(4) Ultimate ‘consumer’
It follows from what has been said about the courts’ willingness to expand negligence
liability since Donoghue v Stevenson that a wide range of claimants may now sue for
injuries caused by defective products. Thus, in Barnett v H and J Packer & Co,* the
proprietor of a sweet shop who was injured by a piece of metal protruding from a sweet
recovered damages from the sweet’s manufacturers. And in Stennett v Hancock and
Peters*' a bystander was able to sue after a defendant garage owner negligently
reassembled the flange on the wheel of X’s lorry so that the flange came off, mounted
the pavement and injured the claimant, a pedestrian. The defendant was held liable for
his negligent repair. In neither case was the claimant strictly a ‘consumer’.
39 Barnes v Irwell Water Board, supra (water).

40 Grant v Australian Knitting Mills Ltd [1936] AC 85, PC.
41 Watson v Buckley, Osborne, Garrett & Co Ltd, supra.
42 Herschtal v Stewart and Ardern Ltd, supra.
43 St Albans City and District Council v International Computers Ltd [1996] 4 All ER 481.
44 Anns v Merton London Borough Council [1978] AC 728, at 758-9, HL; Batty v Metropolitan
Property Realisations Ltd [1978] QB 554, CA (land and fixtures on land — ie, houses — are not
subjected to the new strict liability rules).
45 Haseldine v C A Daw & Son Ltd [1941] 2 KB 343, CA.
46 Targett v Torfaen Borough Council [1992] 3 All ER 27, CA.
47 See Dominion Natural Gas Co Ltd v Collins and Perkins [1909] AC 640, PC.
48 See Billings (AC) & Sons Ltd v Riden [1958] AC 240, HL.
49 But that must not be construed as a rule distinct from negligence that there is a separate class
of dangerous things which D must keep safe at his peril. See Read v J Lyons & Co Ltd [1947]
AC 156, at 172-3, HL, per Lord Macmillan.
50 [1940] 3 All ER 575. Cf Mason v Williams and Williams Ltd and Thomas Turton & Sons Ltd
[1955] 1 All ER 808 (manufacturers of chisel liable to C when a splinter flew off the negligently
made chisel supplied to C’s employers and injured C’s eye).
51 [1939] 2 All ER 578.
(5) Sale
There seems no reason why the rule should not apply even where there is no sale of
goods distributed in the course of a business, for example, where manufacturers supply
free samples.” The liability for goods supplied in a domestic or social context is more
disputable. Would a housewife who baked a fish pie for a charity fair be liable to the
person who bought it, ate it and succumbed to food poisoning? Would she be liable to
her own children who ate a second pie made by her for their dinner?
(6) Intermediate examination
Lord Atkin envisaged that a manufacturer should be liabile where:
he sells in such a form as to show that he intends [his products] ... to reach the
ultimate consumer in the form in which they left him with no reasonable possibility
of intermediate examination.
If the rule is to apply, ‘the customer must use the article exactly as it left the maker, that
is in all material features, and use it as it was intended to be used’.*4 The effect of
intermediate examination seems to be this: if someone in the place of the manufacturer
would reasonably contemplate that the defect in the goods would remain there at the
time of their use by the claimant despite their passing through the hands of
intermediaries, he is still liable. The test is not whether intermediate examination is
possible.°° But where an intermediary does specifically test and certify a product as
safe, he may himself incur negligence liability.*’
This test with respect to defective goods is stricter than that it might be for other forms
of negligence. Clay v A J Crump & Sons Lta®* illustrates the point.
Under the supervision of D, an architect, demolition contractors were demolishing
a building, and builders were to construct a new one. On D’s advice a wall was
left standing on the site. It subsequently collapsed onto C, an employee of the
builders. D pleaded that the demolition contractors and their employees had had
the opportunity of intermediate examination.
52 See Hawkins v Coulsdon and Purley UDC [1954] 1 QB 319, at 333, CA, per Denning LJ.
53 The narrow rule in Donoghue v Stevenson is probably inapplicable to gratuitous transfers.
There are cases where liability has been established in respect of dangers known to the transferor:
see Hodge & Sons v Anglo-American Oil Co (1922) 12 LI L Rep 183 and Hurley v Dyke
[1979] RTR 265, HL. Where the defect is not known to the transferor, however, there seems
no reason in principle why the broad rule should not apply to gratuitous transfers. What would
be the standard of care demanded of the housewife in the example in the text?
54 Grant v Australian Knitting Mills Ltd [1936] AC 85, at 104, PC.
55 [1936] AC 85 at 105, PC; Haseldine v C A Daw & Son Ltd {1941] 2 KB 343, at 376, CA. And
see Nitrigin Eireann Teoranta v Inco Alloys [1992] | All ER 854 (fractured pipe would not
have been discovered even by the use of reasonable care).
56 Dransfield v British Insulated Cables Ltd [1937] 4 All ER 382, which is to the contrary, is to
be regarded as wrongly decided. It would appear from Vacwell Engineering Co Ltd v BHD
Chemicals Ltd [1971] 1 QB 88 that in other respects the rules of remoteness for this tort are
the same as in the general law of negligence.
57. Perrett v Collins [1998] 2 Lloyd’s Rep 255, CA (negligent certification of safety of an
aircraft).
58 [1964] 1 QB 533, CA.
This was held to be a case not of the narrow products rule but of the broad principle,
‘ . .
so that the intermediate examination principle did not appby to defeat the claimant’s
claim against the architect.
®
(7) Preparation or putting up

There may be liability for a defect in the design of a product, in the container and,
probably also, in the labelling of the package.
(8) Continuing duty of care

What if the product when first put on the market was not manufactured with any lack
of care? At that time, on all the reasonably available evidence, the manufacturers could
have discovered no defect in their product, but evidence later transpires of risks to
person or property posed by a latent defect. Do the manufacturers then owe any duty
(a) to attempt to recall the goods, and/or (b) to warn consumers of the danger? It is
clear beyond doubt that, even though originally the design of a product may have
been made with all due care, once a design defect becomes patent, the manufacturer is
liable in negligence if he continues to produce and market the unsafe product.®! In
respect of unsafe products already in circulation, a continuing duty of care is owed to
do whatever is reasonable to recall the defective product and warn users of the risk the
defect may pose to their health and/or property.” As regards the duty to warn, it may
be sufficient, according to Canadian authority,” if the manufacturer passes the warning
on to the intermediary (in this case, a doctor) who supplied the consumer (a patient)
with the product rather than warning the consumer directly. So far as the duty to recall
goes, it is clear that the recall procedure must also be conducted non-negligently if
further liability is to be avoided.“
(9) Recoverable loss

The duty of care in respect of defective products remains, in general, limited to a duty
to avoid inflicting injury to the ultimate consumer’s life or property.® But in relation to
damage to property, no liability is imposed in respect of damage to the defective
product itself. Thus, if pistons in a car’s engine fail causing further damage to the
engine, there is no liability imposed in respect of the further engine damage.” This is
59 Hindustan Steam Shipping Co Ltd v Siemens Bros & Co Ltd [1955] 1 Lloyd’s Rep 167.
60 Kubach v Hollands [1937] 3 All ER 907.
61 Wright v Dunlop Rubber Co Ltd (1972) 13 KIR 255, CA.
62 Hobbs (Farms) v Baxenden Chemicals [1992] 1 Lloyd’s Rep 54; Walton v British Leyland UK
Ltd (1978) Times, 13 July; Rivtow Marine Ltd v Washington Ironworks (1974) 40 DLR (3d)
530.
63 Hollis v Dow Corning Corpn (1995) 129 DLR (4th) 609.
64 McCain Foods Ltd v Grand Falls Industries Ltd (1991) 80 DLR (4th) 252.
65 The property damage must arise from a use to which D might reasonably have expected the
property to be put. There was no liability where a waterproofing compound was lost when pails
manufactured by D melted in the intense heat of Kuwait: Aswan Engineering Establishment
Co v Lupdine Ltd [1987] 1 All ER 135, CA.
66 Analogy drawn from Hamble Fisheries Ltd vyGardner & Sons Ltd, The Rebecca Elaine [1999]
2 Lloyd’s Rep 1, CA.
pure economic loss and it is not generally recoverable in negligence.®’ It is only where
non-integral parts of a car malfunction and cause further damage — such as a CD player
that overheats and causes a fire — that an action may lie.® It would be inapt to conceive
of a car without tyres; therefore the tyres are merely parts of an overall defective
product. But where an accessory such as a CD player is added, it is possible to talk of
product A (the CD player) damaging product B (the car).
Where defective product A is combined with product B to make product C — eg where

two products (a gas and a liquid) are combined to make a carbonated drink — it is also
inappropriate to talk of product A damaging product B. Rather, in such circumstances,
there is merely the production of a defective product, product C.
(10) Proving negligence
The scope of liability for negligent manufacture, distribution and repair evolved from
the rule in Donoghue v Stevenson is very considerable. Yet it is in the formidable task
of proving negligence in the narrow sense that claimants confront the greatest difficulty.
In the classic application of the narrow rule in Donoghue v Stevenson — where the
ultimate consumer is suing the manufacturer — it is often verging on impossible to
prove absence of reasonable care, at least by direct evidence. The consumer’s difficulties
may be further compounded by problems of causation; especially, for example, in
claims relating to drug induced injury. Yet the burden of proof remains with the claimant.
Lord Macmillan said in Donoghue v Stevenson that the burden of proof:
must always be upon the injured party to establish that the defect which caused
the injury was present in the article when it left the hands of the party whom he
sues, that the defect was occasioned by the carelessness of that party ... There
is no presumption of negligence in such a case at present, nor is there any
justification for applying the maxim res ipsa loquitur.”°
The Privy Council modified this rigid approach in Grant v Australian Knitting Mills
Ltd.” There, the claimant was concerned to prove that the dermatitis he contracted
67 Murphy v Brentwood District Council [1991] 1 AC 398, HL; Simaan General Contracting Co
v Pilkington Glass Ltd (No 2) [1988] QB 758, CA; Muirhead v Industrial Tank Specialities Ltd
[1986] QB 507, CA; Aswan Engineering Establishment Co v Lupdine Ltd [1987] 1 All ER
135, CA. The only possible exception would be founded on the anomalous decision of the
House of Lords in Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520, HL. There, C recovered
damages for wasted expenditure on defective flooring laid by D as well as for loss of profits
during the time that C’s business was disrupted while a new floor was laid. D was a sub-contractor
expressly nominated to the head contractors by C. Their Lordships stressed the fact that the
relationship between C and D was virtually one of contract, as well as the fact that C had placed
a great deal of reliance on D. The case can now confidently be confined to its own facts: see,
eg, the comments of Mance J in The Orjula [1995] 2 Lloyd’s Rep 395 to the effect that Junior
Books was a unique case, and one which ought not to be invoked as a basis for future decisions.
68 For an analogous application of this so-called ‘complex structure’ approach, see Jacobs v
Moreton & Partner (1994) 72 BLR 92 (D constructed faulty foundations to remedy the
existing defects in the foundations of C’s property. There had always been problems with the
foundations but the further damage to C’s property was caused by the defects in D’s ‘remedial’
foundations.)
69 Bacardi-Martini Beveridges Ltd v Thomas-Hardy Packaging Ltd [2002] 1 Lloyd’s Rep 62. See
further, Tettenborn, ‘Components and Product Liability’ [2000] LMCLQ 338.
70 [1932] AC 562, at 622, HL.
71 [1936] AC 85, PC.
®
was caused by the presence of invisible excess sulphites in the underwear he purchased
and which was made by the defendants. It was explained that the test was whether, on
the balance of probabilities, it was a reasonable inference to be drawn from the evidence
that the harm was so caused.” On the issue of negligence, it was said:
if excess sulphites were left in the garment, that could only be because someone
was at fault. The appellant is not required to lay his finger on the exact person in
all the chain” who was responsible, or to specify what he did wrong. Negligence
is found as a matter of inference from the existence of the defects taken in
connection with all the known circumstances.”
This approach is eminently practical and good law,” and is to be preferred to the obiter
dicta of Lord Macmillan in so far as the two are in conflict.”° Where the presence of the
defect (in combination with the known circumstances) gives rise to an inference of
negligence against the manufacturers, the burden shifts to the defendant to rebut that
inference. This may be done either by pinpointing the exact cause giving rise to the
defect and establishing that it does not arise from any want of care, or by the
manufacturer producing evidence as to his system and establishing that the system
was consistent with all due care. In Daniels and Daniels v R White & Sons Lid and
Tarbard,” the claimant was seriously injured when he drank lemonade containing a
large quantity of carbolic acid. The acid presumably came from the washing process
used by the defendant manufacturer. The judge accepted evidence of the precautions
taken by the defendants to avoid such a contingency and found that the claimants had
failed to prove negligence.
The problems faced by the claimant are compounded where the relevant defect is not
a construction defect but a design defect.”* Design defects occur where the basic
design of the product proves to be inherently dangerous. Although a construction
defect — one where something goes wrong that does not normally go wrong — allows
the possibility of the court inferring negligence, a similar inference cannot be made
with respect to a design defect. In design cases, the claimant must prove (1) that the
manufacturer should have been aware of the risk of the defect, and (2) that he could
reasonably have avoided the defect. The issue all too often becomes one of whether,
at the time the product was put on the market, scientific and technical knowledge
available to the manufacturer should have enabled him to identify the danger.
72 [1936] AC 85 at 96-7, PC.

73 What if C does not know whether the negligence is that of the manufacturer, the bottler, the
wholesaler, the carrier or the retailer?
74 [1936] AC 85, at 101, PC. Thus, where there is no evidence of a defect at the time of
manufacture, and there exist several alternative explanations of why a malfunction may have
occurred, liability will not be imposed on a manufacturer: see Evans v Triplex Safety Glass Co
Ltd [1936] 1 All ER 283. Cf Carroll v Fearon [1998] PIQR P416 (evidence of fault in tyre
manufacture sufficient to incur liability even when tyre was seven years’ old).
75 For a lucid and similar explanation of the burden of proof see Mason v Williams and Williams
Ltd and Thomas Turton & Sons Ltd [1955] 1 All ER 808, at 810, CA, per Finnemore LJ.
76 This was exactly the approach of the House of Lords in the Scottish case of Lockhart v Barr
1943 SC 1 where the purchaser of aerated water contaminated with phenol recovered from the
manufacturer although he could not prove how the phenol came to be in the aerated water.
77 [1938] 4 All ER 258.
78 The construction/design dichotomy was rejected as an analytical device in A v National Blood
Authority [2001] 3 All ER 289. But why? In terms both of conceptual distinctiveness and
practical repercussions, the two are eminently distinguishable.
The classic example of the difficulties posed in this connection arise in the medical
context where a drug is first marketed without foresight of its possible repercussions,
but in the firm belief (based on the best available scientific knowledge), that the drug
is safe. In such cases, an action in negligence requires a claimant to prove that according
to the state of scientific knowledge at the time of marketing, the manufacturer should
recognise the risk.”
(11) Proving causation

The next problem faced by the claimant is that of proving causation. Normally, this is
done in accordance with the usual ‘but for’ test.*° But in relation to certain types of
product — especially pharmaceutical products — great difficulties can arise. In the case
of such products the claimant will frequently already be suffering from some form of
illness. Where the claimant’s condition deteriorates, or she suffers the onset of another,
related illness, the question is whether the drug caused the worsened condition or
whether her condition would have deteriorated in any event. Similarly, it is one thing to
allege that a drug has caused injurious side-effects, it is another to prove that it has
done so. Thus, in Loveday v Renton'' the action failed because it could not be proved,
on the balance of probabilities, that the claimant’s brain damage had been caused by
the administration of the pertussis vaccine. This was despite the fact that it was known
that the pertussis vaccine could cause brain damage in children.
This is not to say that causation can never be established in such cases. In Best v
Wellcome Foundation Ltd, for example, the Irish Supreme Court held that causation
could be inferred on the basis of common sense from the fact that the first sign of the
claimant’s brain damage followed closely on the heels of the administration of the
pertussis vaccine. In such an instance, it was held, there was no other plausible
explanation of its cause. It satisfied the balance of probabilities threshold.
(C) Action for breach of statutory duty

Before considering the strict liability regime contained in the Consumer Protection Act
1987, a brief mention must be made of the possibility of an action for breach of statutory
duty in respect of certain limited categories of goods. The Secretary of State has the
power to make safety regulations prescribing detailed rules as to, among other things,
the design, manufacture and packaging of specified classes of goods. Breach of
safety regulations is a criminal offence but section 4 of the Consumer Protection Act
1987 expressly provides that an individual injured by a breach of regulations also has
an action for breach of statutory duty.** The regulations cover only a limited class of
79 While very difficult to establish negligence in design defects it is not impossible: see Independent
Broadcasting Authority v EMI Electronics and BICC Construction Ltd (1980) 14 BLR 1, CA.
80 See ch 14.
81 [1990] 1 Med LR 117.
82 [1994] 5 Med LR 81.
83 Consumer Protection Act 1987, s 41. '
84 Note that it is only breach of specific safety regulations which gives rise to an action for breach
of statutory duty and not infringement of the general safety duty provided for by Consumer
Protection Act 1987, s 10.
goods and the action for damages lies only where the defect in the goods derives from
breach of the regulations and is subject to the defence of due*diligence provided for by
section 39.
*
Section 3. The strict liability regime
(A) The Consumer Protection Act 1987

Historically, where no contractual remedy was available to an English claimant injured
by a defective product, formidable difficulties could arise in establishing negligence;
and where no negligence could be proved, the loss continued to lie where it fell. The
inequity of leaving the person least well equipped to bear, or protect himself against
the loss, and the lack of any logical reason for discriminating between purchasers of
goods and other users convinced all those august bodies that reviewed liability for
products® that strict liability should extend to manufacturers as well as retailers and
that any user of the product should be able to invoke strict liability against the
manufacturer. ;
Industry was unsurprisingly generally less enthusiastic about calls for reform. It was
strenuously argued® that while individual consumers who suffered injury from defective
products might benefit from the introduction of strict liability, consumers as a whole
would be adversely affected by such a change. The cost of products would rise to
cover increased insurance premiums required by the need to insure against strict
liability. The variety of goods available would decrease, limiting consumer choice of
goods. Companies would protect themselves by sticking to well-known and well-tried
products and not take risks with minor variations. Finally, it was contended that research
and technological innovation in England would be seriously impeded. Risk is an
inextricable component of new developments on the frontiers of knowledge. If
companies had to bear the risk of some unknown defect themselves, rather than leaving
it with the unfortunate victims, it was argued, they would simply shut down on research
and development and British industry would suffer. Only with hindsight can we say
that these gloomy forecasts of sections of industry were largely misplaced.
Two further important matters must, however, be borne in mind. First, the regime
provided for in the Consumer Protection Act 1987 derives from the European Community
Directive of 12 July 1985.°’ And although the Directive allows for some variation in the
rules throughout member states, the basic regime throughout the Community is the
same. British industry is subjected to the same strict liability rules as its European
competitors.** Secondly, industry in the UK — particularly the pharmaceutical industry
— persuaded the government to adopt the ‘development risks’ defence despite every
official report on product lability advising against such a course of action.
85 Law Com No 82 (1977); Council of Europe, Strasbourg Convention on Products Liability in
regard to Personal Injury and Death (1977); the Pearson Commission on Civil Liability and
Compensation for Personal Injury (1978) Cmnd 7054, Vol 1.
86 See Law Com No 82 (1977).
87 1985/374/EEC.
88 Notably, the European Court of Justice has held that member states may not implement rules
more stringent than those contained in the Directive (European Commission v France, Case
C-52,/00, 25 April 2002), nor may they retain pre-existing rules that are more stringent than
those in the Directive (Sanchez v Medicina Asturiana SA, Case C-183/00, 25 April 2002).
The detailed provisions of the 1987 Act shall now be examined. And in the first instance
we must look to the Act, not the Directive, for although it was possible to give direct
statutory effect to the Directive, that was not done. Where the interpretation of the
Consumer Protection Act is doubtful, however, it should be construed in the light of
the Directive. Should there be any obvious conflict between the provisions of the Act
and the Directive, the dispute may ultimately have to be decided by the European
Court of Justice in Brussels.*” But there is, in any event, domestic judicial support for
the view that the wording of the Directive should prevail.”
(B) Who can sue under the Act?

Wherever a defect in a product wholly or partly causes personal injury or death, the
victim or his dependants may sue under the Act.*' The injured individual need not be
a purchaser or even a direct user of the faulty goods. If defective brakes in a new car
bought by A suddenly fail causing a road accident in whichA, his passenger B, and C,
a pedestrian, are seriously injured, all three can sue the car’s manufacturer. Where a
defective product causes damage to a baby before birth, the baby may later sue in
respect of its disabilities.’ Although the Act is primarily aimed at protection against
personal injuries and death, consumers can also invoke its provisions where a product
causes damage to private property (including land) providing the amount to be awarded
to compensate for that damage exceeds £275.’ Damage to the product itself is expressly
excluded;™ and other forms of pure economic loss are also clearly irrecoverable.”
(C) On whom is strict liability imposed?

Liability is not limited to manufacturers alone. Essentially, all those involved in the
primary production and marketing of goods are made liable. Repairers and distributors
who may owe the consumers a duty of care at common law are generally outside the
scope of the new strict liability regime.
The Act imposes liability on the following categories of persons.
1 Liability is imposed on ‘producers’ ;” and producers are defined as:
a manufacturers”
b inthe case of products which are not made, but won or abstracted (for example
coal and minerals) the person who won or abstracted the product,”* and
89 Interestingly, in EC Commission v United Kingdom, C-300/95 [1997] ECR 1-2649, the

Commission refused to accept that the UK’s adoption of the development risk defence is,
despite plausible arguments to the contrary, compatible with Art 7 of the Directive.
90 See A v National Blood Authority [2001] 3 All ER 289, at 297, per Burton J.
93 See the Consumer Protection Act 1987, s 5(4). By s 5(3) property used for business purposes
is excluded. See Bell, ‘Product Liability Damages in England and Wales’ (1992) 20 Anglo-
American Law Review 371.
94 Consumer Protéction Act 1987, s 5(2).
95 Economic loss consequent upon physical injury or damage to private property should in
principle, however, be recoverable.
96 Consumer Protection Act 1987, s 2(2)(a).
97 Consumer Protection Act 1987, s 1(2)(a).
98 Consumer Protection Act 1987, s 1(2)(b).
.
¢ in respect of products which are neither made, nor won or abstracted (for
example crops), but where essential charactétistics of the product are
attributable to an industrial or other process, the person carrying out that
process.”
Liability is imposed on any person who brand names a product or by other means
holds himself out as a producer.’ This does not necessarily mean, however, that
if you buy a food processor at Marks & Spencer which bears the brand name ‘St
Michael’, and a part of the machine flies off and injures you, that you may sue
Marks & Spencer. Simply placing the ‘St Michael’ stamp on the processor is
probably insufficient. The company needs thereby to hold itself out as having
actually produced the product.
Liability is imposed on any person importing a product into Europe from outside
Europe.'*' Had you bought a Japanese food processor you need not concern
yourself with the intricacies of suing in Japan; you can proceed against whichever
European imported it into Europe.
Liability is also, potentially, imposed on distributors. Section 2(3) provides that
any supplier of a product will be liable to the injured person unless he complies
with a request to name, within a reasonable time, the person supplying him with
the product. (Recall that a consumer may not know the identity of a manufacturer
in a long chain of supply.)
The Directive expressly defines manufacturers of component parts as ‘producers’
and so they, too, are subject to strict liability.'°? The Act achieves the same end by
more tortuous means defining ‘product’ so as to embrace component parts.'°? The
effect is simply illustrated. Should defective brakes in a new car fail causing
personal injuries, the injured person may sue both the ‘producer’ of the finished
product (ie, the car manufacturer) as well as the ‘producer’ of the defective
component (the manufacturer of the brakes). Section 1(3), however, provides that
a supplier of the finished product shall not be deemed to be liable for defects in all
component parts simply because he cannot name the actual manufacturer of each
and every component.
(D) Products
‘Products’ are defined in the Act'™ as ‘any goods or electricity’ and include component
parts, certain substances'” and agricultural crops.
DY Consumer Protection Act 1987, s 1(2)(c). The cumbersome definition of this category of
producer is explained by reference to the former exemption of primary agricultural produce
from the regime instituted by the 1987 Act. This exemption was removed by the Consumer
Protection Act 1987 (Product Liability) (Modification) Order 2000 (SI 2000, 2771) giving
effect to Directive 1999/34/EC.
101 Consumer Protection Act 1987, s 2(2)(c). Note that a person importing a product into the UK
from another member state is not made strictly liable under the Act. He may, however, be liable
in negligence.
102 Article 3(1).
103 See the Consumer Protection Act 1987, s 1(2).
105 Eg blood and blood products: see A v National Blood Authority [2001] 3 All ER 289.
Product liability 38|
In earlier drafts of the Directive, blood and human tissues were expressly excluded
from the Directive, but it has since been held that, given that the Directive and
Act
were ultimately silent on the matter, blood and blood products do fall within its
compass.'”° By contrast, the Act does not cover immovable property — ie, land and
fixtures on land.'°’ But products which become fixtures within immovable property —
eg, central heating boilers — are probably within the scope of the Act.'%
(E) Defining ‘defect’

Strict liability must not be confused with ‘no-fault’ liability. Proof that a product resulted
in injury is not sufficient to establish liability. Fault must still be proved by the claimant,
but the relevant fault is simply that a defect in the product caused injury, rather than
want of care. Ifa defect can be proved, carelessness per se is irrelevant. Thus, if a chef
is badly cut when the blade from his new food processor flies off the machine, he will
succeed in his claim simply on proof of the obvious: that the processor is unsafe and
defective.
Defect is defined in section 3 of the Act in terms that there is a defect in a product if the
safety of that product is not such as persons generally are entitled to expect.'” It is
important to note that the standard that a person may be entitled to expect — perfection
in some circumstances — may in fact transcend the standard they in fact do expect.!'°
In assessing what persons generally are entitled to expect, all the circumstances are to
be taken into account including:
(a) the manner in which, and purposes for which, the product has been marketed,
its get-up, the use of any mark in relation to the product and 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;
and nothing in this section shall require a defect to be inferred from the fact
alone that the safety of a product which is supplied after that time is greater than
the safety of the product in question.
It remains for the claimant to prove that, taking into account the criteria outlined in
section 3, the product is defective. Hardly any product is entirely safe and free of risk.
The test is whether the risk to person and property posed by the product in the context
of its common use or uses exceeds what is generally acceptable. Take the example of a
sharp knife marketed as a kitchen knife for chopping vegetables and packaged so as to
be reasonably child-proof on display. If the knife cuts off the tip of one’s finger, one
cannot claim that the injury resulted from a defect. A sharp cutting edge is a risk one
106 A v National Blood Authority [2001] 3 All ER 289.

107 Liability for defectively constructed buildings remains subject to the general rules of negligence
and the Defective Premises Act 1972.
108 See the Consumer Protection Act 1987, s 45(1) and Art 2 of the Directive.
109 See generally Stoppa, ‘The Concept of Defectiveness in the Consumer Protection Act 1987’
110 See A v National Blood Authority [2001] 3 All ER 289.
accepts as the price fora knife which does its job. But if the same knife were marketed
as a ‘Marvellous Magic Dagger’ and a child should cut himself, then the defect would
be easier to prove: a risk to children in such a product (clearly aimed at children) would
be generally unacceptable. Ultimately, the question is one of whether the manufacturer
ought to issue a warnittg as to dangers one would not expect the product to present.
If the danger is both obvious and inherent, and if it is part and parcel of what the
consumer would expect, then there is no defect. Thus, hot coffee which inevitably
carries the potential to scald is not a defective product."
The test for a defect is likely to involve the courts in risk/benefit analysis. This can
best be illustrated by examples of liability for drugs.'’” Imagine a new and effective
antibiotic is introduced. In 99.5% of cases it works well with fewer side-effects than
other antibiotics. But 0.5% of consumers develop serious kidney damage caused by
the drug. If an identifiable group of persons should or could have been foreseen as
susceptible to damage, the failure to warn doctors of the potential allergic reaction may
conclude the issue of defect.''
Failure to give adequate instructions is a presentational failure and relevant to defining
defect. If the allergic reaction is unforeseeable, so that no liability in negligence could
arise, then the issue is whether the general benefit conferred by the drug outweighs
the risk to the few. A new minor tranquilliser posing a risk of kidney damage to however
small a group would probably be found defective. The benefit of yet another mild
sedative would not in society’s evaluation justify any significant risk. By contrast, a
drug to combat AIDS to prolong victims’ lives would be likely to justify a very high
degree of risk to life and health. Where the consumer of the drug faces a prospect of
almost certain and painful death, any product offering realistic hopes of cure or palliation
is generally acceptable, albeit that the product itself may be inherently dangerous to
some of its users.
The application of the broad criteria laid down in the Consumer Protection Act 1987,
s 3 to guide the courts in interpreting ‘defect’ still need fully to be worked through by
the courts. The presentation of the product and the likely use or uses of the product
(which are specifically designated as relevant guidelines in defining ‘defect’ by section
3(2)(a) and (b)) are inextricably bound up with risk/benefit analysis. Section 3(2)(c)
demands further and separate consideration. It has two main implications.
First, the time when the product was put into circulation is obviously relevant to
determine whether the defect was inherent in the product or merely the result of ‘fair
wear and tear’. Thus, when a child-seat is eight years’ old and has been used by three
ebullient children, can it be expected to be as safe as when new? Will cost be relevant?
Should I expect a food processor which I buy very cheaply to become not just less
useful, but also less safe, over the years?''* Secondly, section 3(2)(c) provides that
safety standards must be judged by the generally acceptable standards at the time at
111 B v McDonald’S Restaurants Ltd [2002] EWHC 409.

112 See Newdick, ‘Liability for Defective Drugs’ (1985) 101 LQR 405.
113 By analogy with A v National Blood Authority [2001] 3 All ER 289, and the emphasis placed
on strict liability in that case, it is conceivable that even a 0.05% risk would not excuse the
manufacturer in the case of this hypothetical.
114 Consider the conceptual basis for product liability discussed by Clark at (1985) 48 MLR 325.
which the product was put on the market, and not with hindsi ght, according to standards
prevailing when the claim reaches court.
The likelihood is that in relation to construction and presentation defects, strict liability
will be easy to prove. Where the manufacturing process breaks down — eg, where
snails get into ginger beer bottles — the product will be patently defective. Equally,
where instructions on use are inadequate, or warnings as to use fail to make the
consumer safe, a defect will also be easy to establish.''5 The need to engage in a
rigorous examination of risks and benefits of a product will generally be reserved for
design defects''® where the implications for industry of design defects are potentially
much more profound.'"’ And the question of what the defendant could (reasonably or
otherwise) have done to eliminate or reduce the risks will be irrelevant under the 1987
Act.
(F) General defences
Section 4 of the Consumer Protection Act 1987 provides several defences to strict
liability. They include the following incidents:
1 The defect is attributable to compliance with any requirement imposed by
legislation (whether domestic or European).!'* On the other hand, the defence is
not available where there are no statutory rules on how the product is to be made,
but there are rules requiring licensing of the product by a public body before it can
be marketed.
2 IfD proves he never supplied the product to another''’ 119 — eg, if experimental drugs
are stolen from a drug company’s laboratory and sold by the thieves.
3. IfD did not supply the goods in the course of business.'”° Thus, D is not strictly
liable for defects in the food he serves to colleagues at a dinner party.
4 IfD proves that the defect did not exist in the product when it was supplied by D
to another.'*! Thus, a chocolate manufacturer would not be liable for chocolates
injected with poison on the supermarket shelves by some third party.
5 Where D makes components, he will not be liable where the defect arose in the
finished product and was caused by the faulty design of the finished product or
inadequate installation of D’s component into the finished product by the
manufacturers of that product.'”
In addition to the defences provided for by section 4 of the Act, section 6(4) provides
that the contributory negligence of the consumer is a defence under the Act. Two
115 If, however, a warning leaflet is lost, or a consumer chooses not to replace a lost leaflet, the
manufacturer cannot be held responsible: Worsley v Tambrands Ltd [2000] PIQR P95.
116 See, eg, Abouzaid v Mothercare (UK) Ltd 2000 WL 1918530, CA, where Pill LJ thought the
question for the court was one of whether the public could legitimately expect a higher degree
of safety from the product than that which was actually present.
117 Compensating 10 victims of a freak construction defect is a less daunting prospect than
compensating the thousands who may have suffered injury before a design defect became
atent.
118 ee Protection Act 1987, s 4(1)(a). For example drugs which must be licensed under the
Medicines Act 1968.
120 Consumer Protection Act 1987, s 4(1)(c).
121 Consumer Protection Act 1987, s 4(1)(d).
122 Consumer Protection Act 1987, s 4(1)(f).
difficult questions arise, however. The Law Reform (Contributory Negligence) Act
1945 provides that whena finding of contributory negligeace is made, apportionment
of responsibility between the claimant and defendant (and hence the level of damages)
is based on relative fault. But where the defendant is strictly liable, and the claimant
has been careless of his own safety, does this mean that the claimant will generally
have to bear the lion’s share of responsibility, or will the courts at this stage have to
revert to considering any evidence of want of care on the part of the defendant?
More problematic still is the matter of defining the circumstances in which a product
that is put to improper use is evidence of contributory negligence. Imagine a stepladder
is bought for cleaning windows. The 17-year-old son of the purchaser uses it to build
an assault course. After a 14-stone friend of his has thundered across it, the wood
cracks as the son himself is on the ladder. He falls and breaks a leg. Is he guilty of a
degree of contributory negligence, or was the ladder put to a use that it would not
generally be expected to withstand (in which case it may not even have been defective)?
(G) The ‘development risks’ defence!”

The incorporation of the development risks defence into the Act via section 4(1)(e) is
the most controversial part of the legislation. Permitting member states to incorporate
such a defence was a compromise by the European Community in order to end the long
drawn-out process of agreeing to implement strict liability at all. Section 4(1)(e) provides
that a defendant shall not be liable where he can show:
that 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.
The effect of the defence is this. Consider a drug-induced injury. A claimant establishes
that the product fails to comply with society’s legitimate expectations for the safety of
that type of product. This means he proves that the risks created by the drug outweigh
its potential benefits. The defendant may still escape liability by virtue of the
‘development risks’ defence if he can prove that the nature of the defect was such that
at the time he marketed the drug’ the very best available scientific and technical
knowledge'*> would not have revealed the defect.'”° Had the Consumer Protection Act
123 See generally Newdick, ‘The Development Risks Defence of the Consumer Protection Act
1987’ [1988] CLJ 455 and ‘Risk, Uncertainty and “Knowledge” in the Development Risk
Defence’ (1992) 20 Anglo-American Law Review 309.
124 It will not, once and for always, be enough simply to establish that at the time the design was
first put on the market the defect was not discoverable. Once the defect becomes apparent,
any further marketing of batches of the drug will engage liability both under the Act and in
negligence: see Wright v Dunlop Rubber Co Ltd (1972) 13 KIR 255, CA.
125 The development risks defence as defined in the Directive (Article 7(e)) is worded thus: ‘the
state of scientific and technical knowledge at the time when he put the product into circulation
was not such as to enable the existence of the defect to be discovered’. There is no reference
to whether a ‘producer of products of the same description might have been expected to have
discovered the defect’ as per the Consumer Protection Act 1987, s 4(1)(e). But notwithstanding
the seemingly more generous test under the Act, relevant case law points to what is unknown
to the world of science rather than merely what is unknown to the defendant: see Richardson
v LRC Products Ltd [2000] Lloyd’s Rep Med 280; A v National Blood Authority [2001] 3 All
ER 289.
126 It follows that if a risk is known, or ought to be known, in the light of accessible information,
the defence is not available: A v National Blood Authority [2001] 3 All ER 289.
1987 been in force at the time of the thalidomide tragedy of the 1970s, the crucial
question would have been this: given the limited understanding of embryology at that
time, and the lack of knowledge as to whether drugs cross the placental barrier, could
the manufacturers on the basis of the then current scientific knowledge have foreseen
the risk to foetuses? The answer might well have been ‘No’.
The development risks defence would have conferred one significant advantage on
the parents of the damaged babies. In negligence they would have had to prove that
the defendants should have foreseen the risk. By contrast, under the statute, the onus
is on the defendants to prove that they could not have anticipated the danger. As
such, self-interest impels manufacturers to disclose all reports of tests on a product as
well as the expert opinion made available to them.
In summary, the regime of strict liability introduced by the Consumer Protection Act
1987 purports to benefit claimants by implementing a regime of strict liability. Early
academic predictions were that the Act would not, in practice, differ very much from
the general law of negligence (beyond the obvious matter of the reversal of the burden
of proof).'*’ Yet the decision of Burton J in A v National Blood Authority'*’ displays a
firm commitment to the strictness of liability under the CPA 1987. There, the claimants
who had received blood transfusions were infected with the Hepatitis C virus. The risk
of infection had been known, but there was nothing that the defendants could have
done to identify which blood products were thus infected. The defendants were not at
fault in causing the claimants’ infection. They were nonetheless held liable. Since the
overwhelming majority of the blood was free from the virus, it was held that the claimants
were entitled to expect a transfusion that was free from the virus (notwithstanding the
known, and unavoidable risk). Of course, 4 v National Blood Authority 1s only a first
instance decision, and may well not be the final word on the matter.'”’
(H) Causation
The burden of proof rests with the claimant to show that there was a ‘defect’ in the
product, and that the relevant injury or damage was wholly or partly caused by that
defect.!*° This often presents a problem in establishing causation where an improper
or unexpected use of the product leads to the claimant’s injury: is it the improper use or
the defect which caused the injury? Consider the following difficult scenarios.
1 A new antibiotic is marketed. Information to doctors includes a warning not to
prescribe the drug to pregnant women. The drug is only available on prescription.
Dr X prescribes the drug for Y. Y feels better the next day. Y discontinues the
tablets and gives the remainder to his colleague Z who is 10 weeks’ pregnant. Z
takes the tablets and her baby is born seriously damaged.'*'
127 See the doubtful predictions of Stapleton, ‘Products Liability Reform - Real or Illusory?’
(1986) 6 OJLS 392. See also Newdick, ‘The Future of Negligence in Product Liability’ (1987)
104 LQR 288.
128 [2001] 3 All ER 289, esp at [69]. ;
129 For academic discussion of the case see Howells and Mildred, ‘Infected Blood: Defect and
Discoverability’ (2002) 65 MLR 95; Hodges, ‘Compensating Patients’ (2001) 117 LQR 528.
130 See the Consumer Protection Act 1987, s 2(1) and Art 4 of the Directive. .
131 Questions of causation can be seen from this example to be inextricably bound up with the
definition of a ‘defect’. D could argue that the manner in which the product was marketed as
a ‘prescription only’ drug with appropriate information supplied to GPs rendered it acceptably
safe.
2 A trendy student buys a lurid pink dye in a dressmaking shop. She uses it to dye
her hair and suffers acute dermatitis as a result.'°?
3 A wealthy businessman buys domestic gas convector heaters and installs them in
his swimming pool to heat the pool. One heater explodes destroying the pool.
o>
One causation issue is, however, somewhat clearer. Intermediate examination of the
product will no longer exculpate the manufacturer from liability for defects in the
product existing at the time that he put the product into circulation. That some third
party may share liability for the injury to the claimant is relevant only to the issue of
contribution between the tortfeasors.'** Equally, certain factual difficulties associated
with causation for the consumer seeking to identify and sue the manufacturer will
largely be alleviated by the obligation on each supplier to name his supplier or be
deemed strictly liable himself.'** Only where the last party identified is bankrupt will
problems arise.
In the US, claims have been litigated where the actual manufacturer of the product
injuring the claimant cannot be traced. Injury is proved to be the result of a drug now
identified as defective. The drug may have been prescribed several years ago and the
identical chemical compound marketed by several companies. There is no way of
determining which branch of the drug was prescribed to individual claimants. Courts
in the US have held that liability should be apportioned between all companies
manufacturing the drug in proportion to their share in the market for that drug.'*
(1) Limitation
Actions under Part I of the Consumer Protection Act 1987 introducing strict liability for
defective products are subject to two periods of limitation:
1 The action must be brought within three years of the date on which injury or
damage was suffered by the claimant, or, if later, the date on which the claimant
becomes aware of the injury or damage.'*° Only in the case of personal injuries
does the court have a discretion to override that three-year period.
2 Noaction may be brought in any circumstances more than ten years from the date
on which the defendant supplied the relevant product to another.
Claims such as those brought before the courts in the US by several young women
who had developed cervical cancer as a result of a drug (DES) taken by their mothers
in pregnancy could not, therefore, have been brought under the 1987 Act. In this
country, the young women would have had to fall back on the common law action for
negligence.
132 Should dye intended for use on materials be marked ‘Not to be used on the hair’?
133 See Art 8(1) of the Directive. Contribution is not limited to tortfeasors but is available between
all persons liable for the same damage: see the Civil Liability (Contribution) Act 1978 discussed
in ch 29. Retailers liable to purchasers for breach of the implied conditions of the contract of
sale may also seek a contribution from the manufacturers.
134 See the Consumer Protection Act 1987, s 2(3).
135 See Sindell v Abbott Laboratories 26 Cal 3d 588 (1980). See also Porat and Stein, Tort Liability
Under Uncertainty (2001); Newdick, ‘Liability for Defective Drugs’ (1985) 101 LQR 405.
136 For example, a person who took a particular drug in 2003 but only became aware of the kidney
damage caused by that drug in 2008.
CHAPTER 18
Nuisance
Section |. Nuisance as a separate tort
(A) Scope of the law of nuisance

This chapter deals with two torts: public nuisance and private nuisance. Though both
may be actionable under the civil law, the commission of a public nuisance, such as
obstructing a public highway, also amounts to a criminal offence.' We therefore consider
public nuisance separately, later in this chapter. To begin with, however, and for the
greater part of this chapter, we are concerned only with the more prevalent tort of
private nuisance.
A private nuisance is usually defined as any activity or state of affairs causing a

substantial and unreasonable interference with a claimant’s land or his use or enjoyment
of that land. From this definition we can discern three kinds of interests to which
nuisance law affords protection:* the protection of land per se; the protection of the
use of land; the protection of enjoyment of land.* But the damage must always be
] Whether there is, in truth, anything left of the common law offence of public nuisance is a
moot point. On the one hand, many of the established forms of public nuisance are now
proscribed as statutory nuisances. On the other hand, the flexibility of the common law
offence — which has historically outlawed a miscellany of public ‘mischiefs’ — may be the only
availabie means of punishing activities not yet outlawed by Parliament (albeit at the cost of
transgressing the nulla poena sine lege principle): see further Spencer, ‘Public Nuisance — a
Critical Examination’ [1989] CLJ 55.
2 Though the enjoyment of land and the use of land may, at one level, be seen as distinct
interests, it is important to recognise that they are inter-related and that it is not uncommon
for more than one to be violated at any one time. See, eg, Dodds Properties v Canterbury City
Council (Kent) Ltd [1980] 1 All ER 928, CA (interruption to use of, and damage to, a garage
used for business purposes, caused by D’s pile-driving operations). Furthermore, in the important
decision in Hunter v Canary Wharf Ltd [1997] 2 All ER 426, HL, it was held, obiter, by Lord
Lloyd (at 442) and Lord Hoffmann (at 451-2) that the enjoyment of land was only a
protected interest in so far as the destruction of that enjoyment represents a diminution in the
value of the property affected. Cf Lord Cooke, at 463 and Gearty, ‘The Place of Nuisance in
the Modern Law of Torts’ [1989] CLJ 214.
3 In Hunter [1997] 2 All ER 426, at 452, HL, Lord Hoffmann sought to equate ‘sensible
discomfort’ with an injury to the land rather than to the person. However, it should be noted
that (a) he was only speaking obiter and (b) the distinction, apart from being inherently vague,
is difficult to sustain: see Oliphant, ‘Unblurring the Boundaries of Nuisance’ (1998) 6 Tort Law
Review 21 and O’Sullivan, ‘Nuisance in the House of Lords — Normal Service Resumed’ [1997]
CLJ 483, 485.
referable to the land, not merely chattels which happen to be on the land.* It follows
from this that not every interference with B’s land caused by A will amount to an
actionable nuisance. Instead, the law calls for reasonable tolerance between neighbours
vis a vis the respective uses to which each puts his land.° Indeed, from time to time, it
is almost inevitable that each neighbour will put his land to a use that causes some
irritation to the other.° It would be absurd for the law to allow an action in nuisance for
every minor irritation so caused, for it would unjustifiably circumscribe the freedom to
enjoy one’s own land. It is for this reason that the law of nuisance insists not simply
that there be an interference with the claimant’s land (or any right or interest in that
land), but also that that interference be both substantial and unreasonable.
The range of activities that may give rise to an action in nuisance are manifold. They
commonly include the emission of noxious fumes, smoke, noise and heat, or the
generation of violent vibrations. But not every instance of smoke or noise emission
will sustain a nuisance action: it is impossible to characterise any of the activities just
listed as inevitably and incontrovertibly a nuisance. At most, all that can be said about
them is that they each have the potential to constitute a nuisance. Imagine, for example,
that a neighbour’s very young child manages to turn the volume ona CD player full on.
Naturally, the noise will create a disturbance until the neighbour turns it back down
again. In such an instance it would be a very unjust law that characterised such a
fleeting disturbance as an actionable nuisance. Instead, the law insists that any
interference be both substantial and unreasonable.’ In our example, it would be difficult
to say that the disturbance caused by a momentary increase in the volume of a CD was
either of these.
While the rigours of the law of nuisance are tempered in this way, it is important to
appreciate that there are no precise thresholds beyond which any given disturbance
becomes either substantial or unreasonable. The concepts of magnitude and
unreasonableness are context-dependent.* Gauging each depends upon a series of
factors that we explore in depth later in this chapter. One cautionary note that should
be entered here, however, is that, unlike the law of negligence, reasonableness in
nuisance refers not to the defendant’s conduct but to the outcome of his conduct. We
are not concerned, per se, with whether the defendant passes the ‘reasonable man
test’ (in the sense of taking reasonable care to avoid causing harm) that is central to the
tort of negligence. Rather, we are concerned to assess the reasonableness of the harm
occasioned to the claimant.’ Thus, as Lindley LJ observed in Rapier v London Tramways
4 In Anglian Water Services Ltd v Crawshaw Robbins & Co Ltd 2002 WL 31523191, at [142],
Stanley Burnton J opined (in relation to a disrupted gas supply) that ‘it is possible to regard the
interruption to the supply of gas as an interference with the use of gas appliances rather than
with a use of land [since replacement electrical appliances can be obtained]’. But this seems a
rather tenuous distinction.
5) In Bamford v Turnley (1862) 3 B & S 66, for example, Bramwell B described nuisance as ‘A rule
of give and take, live and let live’; and the give and take principle was echoed by Lord Goff in
Cambridge Water Co Ltd v Eastern Counties Leather ple [1994] 2 AC 264, HL.
6 Eg, a 21st birthday celebration that goes on until late at night.
7 The magnitude and unreasonableness of an interference should not be assumed to be mutually
exclusive: the existence of the former is often a precondition to the existence of the latter: see
post.
[o-e} Sturges v Bridgman (1879) 11 Ch D 852, CA.
9 Walter v Selfe (1851) 4 De G & Sm 315. See also, Gearty, ‘The Place of Nuisance in the Modern
Law of Torts’ [1989] CLJ 214, 231-3.
Nuisance 389
Co —where the nuisance emanated from too many horses crammed into the defendant’s
stable — ‘If 1 am sued for nuisance, and nuisance is proved, it is no defence to say and
to prove that I have taken all reasonable care to prevent it’.!°On the other hand, it
would be wrong to assume that the reasonableness of the defendant’s conduct is an
irrelevant consideration, for there exists an important inter-relationship between the
reasonableness of what the defendant does and the reasonableness of the interference
thereby caused to the claimant. Disturbances caused by malice!’ or reckless disregard
for one’s neighbour — such as persistently playing a musical instrument in the small
hours of the morning — as opposed to those caused innocently and unavoidably,'” are
manifestly less easy to justify.
As originally conceived, the law of nuisance was not designed to cover personal
injuries. It was exclusively concerned with acts or omissions" causing violations of
land or interests in or over land.'* For a time it was thought that such injuries were
actionable in nuisance. In Hunter v Canary Wharf Ltd, however, the House of Lords
stated (obiter) that such injuries are not recoverable in private nuisance but rather, if at
all, in negligence.’ The fact that the law has fluctuated on this point, serves to
demonstrate that the boundaries of the law of nuisance are by no means fixed or easy
to identify.'° This is in large part because the tort of negligence has, to a considerable
extent, eclipsed (or, at least, subsumed) important elements of nuisance law.!”
(B) Nuisance and environmental law

Nuisance law — whether private or public — plays only a limited role in the protection of
the environment.'* The fact that there has been a steady growth in popular concern for
the protection of the environment has resulted in the implementation of a number of
10 [1893] 2 Ch 588, at 600. Similarly, in Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145,
Veale J held D liable in nuisance for the noise generated by lorries driving in and out of D’s
depot at night, causing disturbance to C who lived opposite. And this was despite D’s endeavours
to do everything feasible to keep the noise to a minimum. See also Read v J Lyons & Co Ltd
[1947] AC 156, at 183, HL, per Lord Simmonds (obiter) and Cambridge Water Co Ltd v
Eastern Counties Leather plc [1994] 2 AC 264, at 298, HL, per Lord Goff (obiter).
11 Eg, Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468.
12 Eg, Moy v Stoop (1909) 25 TLR 262. In Hunter v Canary Wharf Ltd [1997] 2 All ER 426, at
465, HL, Lord Cooke expressed the view (obiter) that the ‘malicious erection of a structure for
the purpose of interfering with television reception should be actionable in nuisance’.
13 Nuisance is actionable not just on the basis of misfeasance, but also nonfeasance: see, eg,
Goldman v Hargrave [1967] 1 AC 645, PC. Note also that the positive duty to prevent harm
to others is more pronounced in nuisance than it is in negligence: see Markesinis, “Negligence,
Nuisance and Affirmative Duties of Action’ (1989) 105 LQR 104.
14 For a brief account of the genesis of private nuisance, see the 9th edition of this work, at p345.
See also Hunter [1997] 2 All ER 426, at 435ff, per Lord Goff and Gearty, ‘The Place of
Nuisance in the Modern Law of Torts’ [1989] CLJ 214.
15 [1997] 2 All ER 426, 438 and 442, HL, per Lords Goff and Lloyd.
16 In Sedleigh-Denfield v O'Callaghan [1940] AC 880, at 903, HL, Lord Wright commented
that ‘The forms which nuisance may take are protean ... many reported cases are no more
than illustrations of particular matters of fact which have been held to be nuisances’.
17 See Newark, ‘The Boundaries of Nuisance’ (1949) 65 LQR 480.
18 See Murphy, ‘Noxious Emissions and Common Law Liability — Tort in the Shadow of Regulation’
in’ Lowry and Edmunds (eds), Environmental Protection and the Common Law (1999); Steele,
‘Private Law and the Environment: Nuisance in Context’ (1995) 15 Legal Studies 236; Ogus
and Richardson ‘Economics and the Environment: A Study in Private Nuisance’ [1977] CLJ
284.
statutes imposing a system of regulation that renders the common law very much a
secondary means of protection.'? As Lord Goff put it:
[S]o much well-informed and carefully structured legislation is now being put in
place to effect envigonmental protection ... there is less need for the courts to
develop a common law principle to achieve the same end, and indeed it may be
undesirable that they should do so.”
The point is this. Many of the sorts of conduct that would formerly have sounded in
nuisance (and nuisance alone) are now also covered by statutes such as the Clean Air
Act 1993 and the Environmental Protection Act 1990.7! The implementation of such
legislation has meant that it is easier and more effective to pursue a grievance via the
local environmental health officers (who can prosecute such ‘statutory nuisances’)
than through the courts where the costs of funding, especially in the light of recent
restrictions on the availability of legal aid, may be prohibitively high.
A further, related cause of the diminution in the number of nuisance actions has been
the effect of planning legislation. Essentially, the requirement that planning permission
be obtained prior to a change in use of existing premises, or the construction of new
ones, has meant that some potential nuisances can be avoided prospectively. Thus,
where a person is denied the planning permission to turn his house into a small printing
works, the obvious potential for disturbance to a neighbour caused by vibrations is
avoided in advance. In such cases, nuisance law, which operates retrospectively — ie,
in response to an extant interference, or potentially injurious state of affairs — is clearly
denied any role. It would be wrong, however, to assume that nuisance is now a
completely redundant tort in the environmental context.” On the contrary, it retains the
potential to perform at least two useful functions. First, it can operate as an enforcement
procedure supplemental to those contained in the relevant statutes (yet where a
particular activity has been authorised by planning permission, the courts will naturally
be hesitant in finding that it has caused an actionable nuisance to the claimant’).
Secondly, whenever such a case is decided in favour of the claimant, the effect of the
judgment may be to establish standards in relation to, say, pollution control which are
additional to those contained in the relevant statute.”
19 See, also, the European White Paper on Environmental Liability which perhaps portends an
EU Directive: COM 66 Final (2000).
20 Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264, at 305, HL. Cf
Gearty, ‘The Place of Nuisance in the Modern law of Torts’ [1989] CLJ 214.
21 For a good account of these and other acts creating statutory nuisances see Buckley, The Law
of Nuisance (1996) chs 10-12.
22 See Murphy, ‘Noxious Emissions and Common Law Liability — Tort in the Shadow of Regulation’
in Lowry and Edmunds (eds), Environmental Protection and the Common Law (1999).
23 Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343. See also the
supportive comment in Hunter v Canary Wharf Ltd [1997] 2 All ER 426, at 433, HL, per Lord
Goff that ‘it will usually be open to local people to raise the possibility of [nuisance] ..., at the
stage of the application for planning permission’.
24 The extent to which nuisance can presently achieve these functions is discussed, at length in
Steele, ‘Private Law and the Environment: Nuisance in Context’ (1995) 15 Legal Studies 236.
Nuisance 39\|
(C) Nuisance and other torts

As Erle CJ once remarked, the law of nuisance is ‘immersed in undefined uncertainty’.
This uncertainty, Professor Newark forcefully argued, is mainly attributable to the fact
that “the boundaries of the tort of nuisance are blurred’.2° To begin with, there is a
considerable overlap and inter-relationship between nuisance and negligence. As Lord
Wilberforce remarked in Goldman v Hargrave, a nuisance ‘may comprise a wide variety
of situations, in some of which negligence plays no part, in others of which it is
decisive’.*” Not only does this dictum reveal that the overlap is ill-defined and partial,
it also forces us to ask one of the most vexed questions in the whole law of nuisance:
whether nuisance liability is strict or fault-based. Consideration of this matter is deferred
until later in the chapter. For now, we are concerned only to note that concurrent
liability in nuisance and negligence can arise out of a single set of facts. For example,
if I were to light a fire next to my neighbour’s fence and then leave it unattended, I
might be held liable in either negligence or nuisance if the fire were to spread to his
fence or shrubs. In such a case, not only would the factual basis of the liability be
shared, so too would be the /egal basis of liability. Thus, in one case where the action
was framed both in negligence and nuisance, the judge, in dismissing the negligence
claim, stated that he ‘need not discuss the alternative claim based on nuisance .. [since
the latter] cannot be established unless negligence is proved’.”* On a practical level,
therefore, there is often a choice in terms of the way in which a claimant may frame his
action. But on a jurisprudential level, the question that remains is why, when nuisance
protects interests in the enjoyment of land, it is necessary to extend the boundaries of
negligence to cover similar situations — especially at a time when the judicial trend is to
restrain the growth of negligence.”
While the interface between negligence and nuisance leads to some difficult questions
about the nature of nuisance liability, it should also be noted that there is a considerable
overlap between nuisance and the rule in Rylands v Fletcher*® (which latter, discussed
in the next chapter, imposes liability for the escape from land of things that will
foreseeably cause mischief if they escape).*' In juridical terms, the two torts can be
distinguished.*” Yet they share a number of common features which is in large part due
to the fact that the rule in Rylands v Fletcher was (avowedly) derived from the law of
nuisance.*?
Trespass to land concerns direct rather than consequential harm and may therefore be
distinguished from nuisance in both juridical and factual terms. Equally, being actionable
per se, trespass does not require the claimant to prove damage.” Thus, in Kelsen v
25 Brand v Hammersmith and City Rly Co (1867) LR 2 QB 223, at 247, Ex Ch.

26 Newark, ‘The Boundaries of Nuisance’ (1949) 65 LQR 480.
27 [1967] 1 AC 645, at 657, PC.
28 Bolton v Stone [1951] AC 850, at 860, HL, per Lord Porter. This point was later endorsed by
Lord Reid in The Wagon Mound (No 2) [1967] 1 AC 617, at 640, HL: ‘the similarities between
nuisance and [negligence] ... far outweigh any differences’.
29 See Gearty, ‘The Place of Nuisance in the Modern Law of Torts’ [1989] CLJ 214.
30 (1866) LR 1 Exch 265.
31 Cambridge Water Co Ltd v Eastern Counties Leather ple [1994] 2 AC 264, HL.
32 See Leakey v National Trust [1980] QB 485, CA.
33 See Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264, at 298, HL. See
also Newark, ‘The Boundaries of Nuisance’ (1949) 65 LQR 480.
34 Stoke-on-Trent Council v W & J Wass Ltd [1988] 3 All ER 394, CA.
Imperial Tobacco Co tof Great Britain and Ireland) Ltd where a sign erected by the
defendants projected into the air space above the claimant's shop, it was held that the
erection of the sign constituted a trespass but not a nuisance since ‘the presence of
this sign ... caused no inconvenience and no interference with the [claimant’s] use of
his air’.*° On the other*hand, where damage does occur as a result of a trespass, ‘it
makes no difference to the result’ whether the action is framed in trespass or in
nuisance.*°
The fact that there exists an overlap between nuisance and the other torts mentioned
in the preceding paragraph makes it difficult to classify any of them purely on the basis
of the interest protected. If, for example, a neighbour’s land is damaged because of an
overflow of water, much will depend upon the directness of the invasion (central to
trespass*’); the role of fault (crucial in ‘state of affairs’ nuisance cases**), and whether
the invasion was attributable to a foreseeably injurious escape (which lies at the heart
of Rylands v Fletcher liability*’).
A final characteristic of the tort of nuisance that should be noted is that the normal
remedy sought by the claimant is an injunction rather than damages. His main concern,
when subjected to the persistent late-night trumpet playing of his neighbour, for example,
is that his neighbour should desist. But, as we shall see, injunctions are granted on a
discretionary basis. They may therefore be refused even though an actionable nuisance
can be proven. The courts’ right to refuse an injunction despite the commission of an
actionable nuisance enables them to pursue economic” or social objectives. For example,
in one case concerning cricket balls being struck from a village green onto the claimants’
land, it was stated that:
it does not seem just that a long-established activity, in itself innocuous, should
be brought to an end because someone else chooses to build a house nearby
and so turn an innocent pastime into an actionable nuisance."
The extent to which the courts refuse injunctions where nuisance has been established
should not, however, be exaggerated. In the vast preponderance of cases where the
claimant can prove the commission of a nuisance, he will also succeed in obtaining an
injunction. Later in this chapter we shall see that the courts have developed a series of
factors to which they will have regard before denying injunctive relief to those who
can prove the commission of a nuisance.
35 [1957] 2 QB 334, at 343, CA, per McNair J. Cf Smith v Giddy [1904] 2 KB 448 where it was
held to be a nuisance when D allowed his trees to overhang C’s land and thus stymie the growth
of C’s fruit trees.
36 Home Brewery Co v William Davies & Co (Loughborough) Ltd [1987] QB 339, at 354, per
Piers Ashworth QC. See also Hudson, ‘Trespass or Nuisance’ (1960) 19 MLR 188.
37 Preston v Mercer (1656) Hard 60.
38 Sedleigh-Denfield v O’Callaghan [1940] AC 880, HL.
39 (1868) LR 3 HL 330.
40 Ogus and Richardson, ‘Economics and the Environment: A Study in Private Nuisance’ (1977)
36 CLJ 284; Campbell, ‘Of Coase and Corn: a (sort of) Defence of Private Nuisance’ (2000)
63 MLR 197.
41 Miller v Jackson [1977] QB 966, at 986, CA, per Geoffrey-Lane LJ. Cf Kennaway v Thompson
[1981] QB 88, CA.
Nuisance 393
Section 2. The basis of nuisance liability

According to the definition of nuisance offered here, it is apparent that the successful
claimant must show a substantial interference either with his land, or with the use or
the enjoyment of his land. He must also demonstrate that the interference was an
unreasonable one. Thus stated, the basis of nuisance liability is grossly over-simplified.
As we shall see, the factors taken into account by the courts in assessing both the
magnitude and reasonableness of an interference are manifold, inter-related and, at
times, notionally complex.
(A) Substantial interference

Before a claimant can succeed in a nuisance action, he must first be able to prove that
he has suffered damage, for as we noted when distinguishing nuisance from trespass,
nuisance is not a tort which is actionable per se.” Since the law of nuisance protects
not just against physical damage to land, but also against interferences with the use or
enjoyment of it, it is apparent that we require a definition of damage that embraces both
tangible and intangible interferences. In addition to physical harm to land, our concept
of damage must also embrace those cases in which the claimant’s complaint related to,
say, the emission of unpleasant smells, or the generation of loud noise; in short, with
things that represented ‘sensible discomfort’,* being interferences with the amenities
associated with land ownership.
Although, for the purposes of nuisance, both physical damage and disturbances to
the enjoyment of land are actionable, it does not follow that we need not distinguish
between the various kinds of interference. Indeed, as we shall see, the case law requires
us to treat material harm differently from interferences with amenities.
(1) Interference with the use or enjoyment of land

Where interference with the use or enjoyment of land (amenity nuisance) is concerned,
the law requires give and take on the part of neighbouring land owners. This principle
is neatly encapsulated in the words of Lord Wright in Sedleigh-Denfield v O'Callaghan
where he said that ‘[a] balance has to be maintained between the right of the occupier
to do what he likes with his own [land], and the right of his neighbour not to be
interfered with’.*4 From this it is implicit that, as between neighbours, some measure of
interference with the use and enjoyment of each other’s land is permissible. It is only
a substantial interference with a claimant’s amenities that the law will deem to be a
nuisance. Thus, in Gaunt v Fynney Lord Selbourne stated that “[a] nuisance by noise
... is emphatically a question of degree ... Such things to offend against the law, must be
done in a manner which, beyond fair controversy, are to be regarded as excessive’.”°
The same rule, that the nuisance must be substantial, applies equally in respect of
42 For a very few limited exceptions to this rule, see the 9th edition of this work.
43 Hunter v Canary Wharf Ltd [1997] 2 All ER 426, at 452, HL, per Lord Hoffmann.
44 [1940] AC 880, at 903, HL. The give and take principle also figured largely in Delaware
Mansions Ltd v Westminster City Council [2002] 1 AC 321, HL.
45 (1872) 8 Ch App 8, at 11-12.
other amenities. So, for example, an interference with the right to the free passage of
light — acquired by grant or prescription,*° and sometimes‘referred to as the right to
‘ancient lights’ — only amounts to a nuisance where it deprives the claimant of ‘sufficient
light, according to the ordinary notions of mankind, for the comfortable use and
enjoyment of his house’.‘”
The key issue, then, is determining when an interference with amenities amounts to a
substantial infringement of the claimant’s interests. It is certainly the case that the
claimant’s health need not be shown to have suffered.** Indeed, the loss of a single
night’s sleep has been held to be sufficiently substantial to constitute a nuisance.” So,
too, has using adjoining premises for the purposes of prostitution (despite the fact
that this fails to impinge directly upon the senses of the claimant in the way that, for
example, noxious fumes do°°). The question of whether an interference is sufficiently
substantial to amount to an actionable nuisance is one of fact and is to be determined
on a case-by-case basis. But not every interference will constitute a nuisance, and an
interference that comprises a nuisance in one context may not do so in another.*' The
most commonly cited formulation of the rule by which the interference is to be adjudged
substantial is that supplied by Knight Bruce VC in Walter v Selfe:°
ought this inconvenience to be considered in fact as more than fanciful, more
than one of mere delicacy or fastidiousness, as an inconvenience materially
interfering with the ordinary comfort physically of human existence, not merely
according to elegant or dainty modes and habits of living, but according to plain
and simple notions among the English people?
Over the years, the courts have tended to gauge the seriousness of an interference by
reference to two main considerations: the sensitivity of the claimant and the locality in
which the alleged nuisance occurs. Neither of these factors is conclusive of whether
an interference is sufficiently substantial to constitute a nuisance; they are merely
relevant considerations which ought to be taken into account in all amenity nuisance
cases.
(A) THE SENSITIVITY OF THE CLAIMANT

If the activity of which the claimant complains only disturbs the use or enjoyment of
his land because he carries on there a ‘delicate trade’, heightening his sensitivity to
interference, then the interference complained of will not amount to an actionable
nuisance. The disturbance must be such that it would substantially inconvenience a
claimant of ordinary sensitivities. The courts will not allow a claimant to turn an
ordinarily innocuous activity into a nuisance. For example:
46 The acquisition of this right is a technical matter of land law. English common law recognises
no automatic right to light, and such a right can only be acquired in connection with a building:
Harris v de Pinna (1886) 33 Ch D 238, CA.
47 Colls v Home and Colonial Stores [1904] AC 179, at 208, HL, per Lord Lindley.
48 Crump v Lambert (1867) LR 3 Eq 409, at 412, per Lord Romily MR.
49 Andreae v Selfridge & Co Ltd [1938] Ch 1, CA.
50 Thompson-Schwab v Costaki [1956] 1 All ER 652, CA. See also Laws v Florinplace Ltd [1981]
1 All ER 659 (sex shop established in a residential area).
51 Sturges v Bridgman (1879) 11 Ch D 852.
52 (1851)
4 De G & Sm 315, at 322.
Nuisance 395
In Robinson v Kilvert,®* a landlord who remained in occupation of the cellar let

the superjacent floor to C. Because of the landlord’s business it was necessary
for the cellar to be dry and hot. The heat of the cellar passed through the ceiling
to the floor above which was used by C as a paper warehouse and caused
damage to a stock of brown paper kept there. The court rejected C’s application
for an injunction to restrain the landlord from keeping his cellar so hot since the
heat transfer would not have caused a problem for anyone other than C.
It was only the fact that he was engaged in an ‘exceptionally delicate trade’ that caused
him to suffer loss. Similarly, in Bridlington Relay Ltd v Yorkshire Electricity Board the
defendants’ power line was interfering with the claimant’s business of providing a
radio and television relay service to subscribers. It was said, obiter, that because
interference with the recreational amenity of television viewing was not a substantial
interference, the claimants could not sue for the business interference complained of:
‘the claimants could not succeed in a claim for damages for nuisance if ... an ordinary
receiver of television by means of an aerial mounted on his house could not do so’.*4
It may be of importance that this case was decided in 1965 when television ownership
was rare, rendering viewers unusually sensitive claimants. In the new Millennium,
television viewing is far more common and less easily classified as a hypersensitive
activity. Indeed, if the same facts were to arise today, it is possible that the court would
hold there to be a nuisance.°°
Such a possibility was certainly not ruled out in Hunter v Canary Wharf Ltd where two
members of the House of Lords (Lords Goff and Cooke) suggested that, in certain
circumstances, an action for this kind of interference might lie. However, in refusing to
award damages to the claimants in Hunter, Lord Goff stated that while interferences
with television reception “might in appropriate circumstances be protected’, it was
also the case that ‘more is required than the mere presence of a neighbouring building
to give rise to an actionable private nuisance’.*° In the wake of Hunter, then, it is
unclear exactly if and when interferences with television viewing (and, by analogy,
other such ‘luxury’ amenities) might form the basis of a nuisance action. Would there,
for example, be an actionable nuisance where the interference is caused by the operation
of an existing power station rather than by the construction of a tall building?°’ And
bear in mind that the decision in Hunter is premised only on a long-standing concern
to allow landowners the freedom to build on their land (subject, of course, to planning
restrictions).°°
53 (1889) 41 Ch D 88, CA.

54 [1965] Ch 436, at 446, per Buckley J.
55 Such is the case in Canada: see Nor-Video Services Ltd v Ontario Hydro (1978) 84 DLR (3d)
221, at 231 where Robins J, in the Ontario High Court, stated that: ‘an inability to receive [a
television broadcast] ... would undoubtedly to my mind detract from the beneficial use and
ownership of property’.
56 [1997] 2 All ER 426, at 432, HL. Much was made in the case of the fact that D had obtained
planning permission to build the tower and the fact that the construction of buildings with such
permission was a normal use of land. Qualifying this, however, Lord Cooke observed (at 465),
that he could ‘see no reason why neighbours prejudicialiy affected should not be able to sue in
nuisance if a building does exceed height, bulk or location restrictions. For then the developer
is not making either a lawful or a reasonable use of his landowning rights’.
57 See, on this question, the view of the Court of Appeal in Hunter [1996] 1 All ER 482.
58 See A-G (Ex rel Gray’s Inn Society) v Doughty (1752) 2 Ves Sen 453, HL. One answer might
be to allow the construction of tall buildings, allow a nuisance action, but restrict the remedy
to one of damages: see O’Sullivan, ‘A Poor Reception for Television Nuisance’ [1996] CLJ
184.
396 =Invasions of interest where intentional or negligent conduct need not always be proved
Although it is well established that ‘[a] man cannot increase the liabilities of his
neighbour by applying his own property to special uses’,**it does not follow that he
will not be compensated in full for all the damage that he does suffer where a claimant
of ordinary sensitivity would also have been able to found a nuisance action in respect
of the interference complained of. So, in McKinnon Industries Ltd v Walker,® damage
to the claimant’s commercially grown orchids caused by the emission of sulphur dioxide
gas from the defendant’s factory was held to be actionable since it amounted to a non-
remote consequence of what had already been proved to be a nuisance. On the other
hand, the fact that the claimant has suffered appreciable financial loss should not be
taken, of itself, to amount to a substantial interference®! (although the infliction of such
business losses may be taken into account in deciding whether the interference as a
whole was substantial”).
(B) LOCATION OF THE CLAIMANT’S PREMISES

The locality in which the claimant’s premises are situated is a second factor which
assists the courts in determining whether the interference complained of is sufficiently
substantial to amount to a nuisance. The expectations of the claimant, in terms of
comfort, peace and quiet, will naturally vary according to the location of his house or
business. The point was succinctly made in Sturges v Bridgman,” in which case a
physician complained about the noise generated by a neighbouring confectioner who
was operating a pestle and mortar. There, Thesiger LJ held that the court should take
account of the fact that the area consisted largely of medical specialists’ consulting
rooms since:
[w]hether anything is a nuisance or not is a question to be determined, not

merely by an abstract consideration of the thing itself, but in reference to its
circumstances; what would be a nuisance in Belgrave Square would not
necessarily be so in Bermondsey; and where a locality is devoted to a particular
trade ... [the courts] would be justified in finding, and may be trusted to find, that
the trade ... is not an actionable wrong.™
Though locality is relevant in deciding amenity cases, it is not necessarily a conclusive
consideration. Thus, although locality provides a compelling reason for the decision
in Adams v Ursell®— where a fish and chip shop established in a fashionable street
was held to be a nuisance — it was not determinative in Rushmer v Polsue and Alfieri
Ltd®° where printing presses were used at night in a printing district. Equally, it should
59 Eastern and South African Telegraph Co Ltd vy Cape Town Tramways Companies Ltd [1902]
AC 381, at 393, PC, per Lord Robertson.
GO” [9S1] 3° DER S77, Re.
61 See, eg, the Australian decision in Victoria Park Racing and Recreation Grounds Ltd v Taylor
(1937) 58 CLR 479, HC of Australia.
62 Thompson-Schwab v Costaki [1956] 1 All ER 652, CA.
63 (1879) 11 Ch D 852. See also Murdoch v Glacier Metal Co Ltd [1998] LS Gaz R 31 (loud,
night-time factory noise held not to be actionable in all the circumstances of the case (including
C’s proximity to a busy bypass)).
64 (1879) 11 Ch D 852, at 865.
65 [1913] 1 Ch 269. See also Thompson-Schwab v Costaki [1956] 1 All ER 652, CA, in which a
brothel was set up in a high class street.
66 [1906] 1 Ch 234, CA; affd [1907] AC 121, HL. Equally, the smell of oil on the border of an
industrial area can constitute a nuisance: Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145.
Nuisance 397
be noted that the character of a locality is susceptible to change over time. Thus, the
fact that an area was at one time wholly residential does not mean that the residents
will always be entitled to a very high standard of peace and quiet. In Gillingham
Borough Council v Medway (Chatham) Dock Co Ltd,’ for example, it was held that
planning permission which had been granted to change the use of an old naval dockyard
into a commercial port (which turned out to be very noisy at night) should be taken to
have effected a change in the character of the neighbourhood. As Buckley J put it:
‘where planning permission is given ... the question of nuisance will thereafter fall to
be decided by reference to a neighbourhood with ... [the new] development or use and
not as it was previously’.®*
On the other hand, obiter dicta in a decision of the Court of Appeal appears to constrain
the effect of Buckley J’s judgment to cases in which the interference complained of
occurs after the character of the neighbourhood has already changed. The Court of
Appeal took the view, in Wheeler v JJ Saunders Ltd,” that the simple grant of planning
permission cannot be taken, ipso facto, to license what would otherwise be a nuisance.
In other words, the court was chary of allowing administrative decisions (not susceptible
to appeal) to be taken simply to extinguish existing private rights. But where planning
permission has been obtained, it plays a part in the court’s decision-making.”
(2) Material damage to land

So far we have only been concerned with what amounts to a substantial interference
with the use or enjoyment of land (otherwise known as ‘amenity nuisance’). In this
section we consider cases in which the activity complained of causes actual physical
damage to the claimant’s land. The kinds of nuisance that concern us here include
collapses of the defendant’s property onto the claimant’s land,”' drenching or flooding,”
vegetation damage caused by the emission of noxious fumes,” the encroachment of
roots” and vibration damage.” In such instances, the courts will approach the question
of substantial interference rather differently than where the claimant complains of
amenity nuisance.
To begin with, where physical damage to property is concerned, the character of the
district in which the claimant’s land lies is not a material factor in assessing the gravity
of the interference. In St Helen's Smelting Co v Tipping”—a case in which the claimant’s
67 [1993] QB 343.
68 [1993] QB 343, at 361.
69 [1995] 2 All ER 697, at 711, CA.
70 The rationale here was explained by Lord Goff in Hunter when he observed (at 433) that: ‘it
will usually be open to local people to [complain] ..., at the stage of the application for
planning permission’.
71 Wringe v Cohen [1940] 1 KB 229, CA. Cf Sack v Jones [1925] Ch 235 (not a nuisance where
C’s house caused D’s house to collapse).
72 Sedleigh-Denfield v O’Callaghan [1940] AC 880, HL; Hurdman v North Eastern Rly Co
(1878) 3 CPD 168; Broder v Saillard (1876) 2 Ch D 692.
73 St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642; Manchester Corpn v Farnworth
[1930] AC 171, HL.
74 Masters v Brent London Borough Council [1978] QB 841.
75 Grosvenor Hotel Co v Hamilton [1894] 2 QB 836, CA.
76 (1865) 11 HL Cas 642.
shrubs had been damaged by fumes emitted from the defendants’ copper-smelting
plant — Lord Westbury held that: “4
It is a very desirable thing to mark the difference between an action brought for
a nuisance upon the ground that the alleged nuisance produces material injury
to the property, and an action ... on the ground that the thing alleged ... is
productive of personal discomfort. With regard to the latter ... a nuisance must
undoubtedly depend greatly on the circumstances of the place where the thing
complained of actually occurs. But where [physical damage is caused] ... there
unquestionably arises a very different consideration.”
One difficulty that arises from the fact that the claimant’s location is irrelevant in
physical damage cases is that physical damage and interference with amenities can
often arise simultaneously, without there being any clear distinction between the two.
If, for example, vibrations cause plaster to break off my walls, those same vibrations
will probably also adversely affect the comfort and enjoyment of my home. Furthermore,
the fact that the defendant engages in such a disturbing enterprise is likely to cause a
diminution in the value of my house which is not easy to classify as either an amenity
nuisance or an instance of physical damage.” Notwithstanding these problems, some
attempts have been made by the courts to clarify the meaning of ‘material damage’. A
dictum of Lord Selbourne suggests that it is enough if science can trace a deleterious
physical change in the property.’”” However, in the light of the fact that it can be difficult
to distinguish between amenity nuisances and those involving physical damage,® it is
best not to ignore the locality issue in all but the most clear-cut cases.
Just as in the case of interferences with the use or enjoyment of land, it is important to
establish that the physical damage complained of is substantial in nature. Hence, in
Darley Main Colliery Co v Mitchell®' it was held that minor subsidence (though
identifiable and tangible) caused the claimant no appreciable harm and was therefore
not an actionable nuisance.
(3) Interference with servitudes

For the sake of completeness we ought to note (but no more than that) a final category
of damage that can, technically, form the basis of a nuisance action. It involves
interferences with servitudes such as the right to light and air, and the right to support
77 (1865) 11 HL Cas 642, at 650.

78 Although the drop in value of the property (absent the cost of repairs to the walls) is, in fact,
a purely economic loss, it is arguably implicit from Bone v Seale [1975] 1 All ER 787, CA, that
such loss should be treated as property damage insofar as, in that case, the court treated it
separately from the award for the amenity nuisance. Does this mean that diminution in value
is to be regarded, in nuisance, as physical damage? If so, since in Halsey v Esso Petroleum Co
Lid [1961] 2 All ER 145 it was presumed that the value of property will be affected wherever
a substantial interference with enjoyment occurs, it could be argued that a// amenity cases
involve, at least some element physical damage according to this conception. Problematic
though this conception is, it is the one favoured in Hunter v Canary Wharf Ltd [1997] 2 All ER
426. Cf Mayo v Seaton UDC (1903) 68 JP 7 (the erection of public lavatories which depreciated
the value of C’s premises held not to amount to a private nuisance).
79 Gaunt v Fynney (1872) 8 Ch App 8, at 11-12.
80 See Oliphant, ‘Unblurring the Boundaries of Nuisance’ (1998) 6 Tort Law Review 21.
81 (1886) 11 App Cas 127, CA.
Nuisance 399
of land and buildings. The rules in relation to these rights are complex and more
suitably the subject-matter of a textbook on property law than one on tort.
(B) Unreasonableness
There is perhaps no more confusing matter in the whole of the law of private nuisance
than the role played by unreasonableness in the ascription of liability. Conceivably,
unreasonableness could relate to one or both of two inter-related issues: the conduct
of the defendant and the nature of the interference with the claimant’s land. Properly
understood, it is the interference, rather than the defendant’s conduct, which must be
unreasonable.* This does not mean, however, that the nature of the defendant’s conduct
is irrelevant, since the unreasonableness of the defendant’s user will impact upon the
court’s characterisation of the nature of the interference. Imagine, for example, that I
regularly fire a gun on my land in order to control vermin posing a threat to my crops.
The noise made by the gun is precisely the same as if I were firing it out of wantonness.
In both cases, the sound level remains constant and so, therefore, does the degree of
disturbance that I cause my neighbour. In the latter case, however, a judge might
declare there to be a nuisance on the basis that the shooting was completely
unwarranted. In the former case, by contrast, where the shooting was reasonable in
order to effect pest control, she could easily reach the opposite conclusion.
The difference between the two cases lies in the way in which we characterise the
nature of the interference (albeit by reference, in part, to the nature of the defendant’s
conduct). Not in every case in which the defendant acts unreasonably will he be liable
in nuisance; for it is the unreasonableness of the interference (coupled, of course, with
its gravity) which matters. So, for example, if I play my CDs late at night and at full
volume, I will not be liable in nuisance to my neighbour if she is almost entirely deaf
and hears virtually nothing. The interference in such a case will be regarded as de
minimis. As McNeill J insisted in Tetley v Chitty, the claimant must be able to demonstrate
‘a real interference with his use and enjoyment of his premises’.*’ The italicised words
make it clear that there needs to be a subjective disturbance.
There are several factors that the courts will typically take into account in deciding
whether the interference is unreasonable.
(!) The seriousness of the interference

Generally, the more serious an interference with the claimant’s interests, the more likely
it is that the interference will be regarded by the court as unreasonable. And, in turn,
the seriousness of the interference is influenced by four factors: the duration of the
82 See, eg, Sampson v Hodson-Pressinger [1981] 3 All ER 710 where the ordinary use of
premises which, as a result of their being poorly constructed, caused intolerable noise to be
perceived in adjoining premises, was held to be a nuisance. See also Toff v McDowell (1993) 25
HLR 650.
83 [1986] 1 All ER 663, at 665. In Bradford Corpn v Pickles [1895] AC 587, at 601, HL, Lord
Macnaghten stated that no action would lie ‘[i]f the act ... gives rise merely to damage without
legal injury’. See also Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep
533:
harm, the extent (or degree) of the harm, the character of the harm and the social value
of the use interfered with. v4
(A) THE DURATION OF THE HARM

We have already seen that before a nuisance action will succeed, regardless of whether
the claimant complains of physical damage or simply a disturbance to the peaceful
enjoyment of his land, he must always show that he has suffered a substantial
interference.™ Apart from being a threshold requirement in its own right, the persistence
of an interference has a direct bearing on its reasonableness. In general terms, the more
persistent an interference, the more likely it is that the courts will deem it to be
unreasonable. Self-evidently, it is much less reasonable to expect one’s neighbours to
tolerate a nauseating smell that is more or less permanent than one that lasts for just a
few moments. It follows from this that nuisances normally involve ongoing interferences
rather than ones which are only transitory or isolated.** In some circumstances, however,
even isolated or transitory interferences are actionable. For example, if the interference
complained of is an isolated event but it causes physical damage, the courts appear
willing to tolerate claims in nuisance so long as the damage arose out of a dangerous
‘state of affairs’.*° In Spicer v Smee*’—a case in which defective electrical wiring in the
defendant’s premises resulted in the claimant’s bungalow being destroyed by fire —
Atkinson J put the matter thus: ‘[a] private nuisance arises out of a state of things on
one man’s property whereby his neighbour’s property is exposed to danger’. Similarly,
in Midwood & Co Ltd v Manchester Corpn,** where an accumulation of inflammable
gas caused an explosion to occur which set fire to the claimant’s premises, the court
again held there to be a nuisance by focusing upon the prevailing state of affairs,
Though it is a precondition of liability in respect of an isolated event that it arose from
a dangerous state of affairs on the defendant’s land, it is important to be clear that
damages are only awarded for the harm caused. Nothing can be recovered in connection
with the menacing state of affairs for this is merely a prerequisite for, and not the basis
of, the defendant’s liability. Nuisance law insists that the clarmant must demonstrate
that he has suffered actual damage — whether in the form of physical damage to land or
in the form of an interference with his amenities.
84 See Walter v Selfe (1851) 4 De G & Sm 315 in respect of amenity nuisance, and Darley Main
Colliery Co v Mitchell (1886) 11 App Cas 127 in relation to nuisances involving physical
damage.
85 Thus, in Cunard v Antifyre Ltd [1933] | KB 551 (where some of D’s roofing fell into C’s
premises) Talbot J stated (at 557) that: ‘nuisances, at least in the vast majority of cases, are
interferences for a substantial length of time’.
86 Midwood & Co Ltd v Manchester Corpn [1905] 2 KB 597, CA; Spicer v Smee [1946] 1 All ER
489. Note, also, that where there is a short-term interference the courts will allow claims for
amenity nuisance: Matania v National Provincial Bank Ltd and Elevenist Syndicate Ltd
[1936] 2 All ER 633, CA (C successfully sued on the basis of the excessive dust and noise
generated by D’s building work); Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2
Lloyd’s Rep 533 (C bothered by a 20-minute firework display). One possible explanation of
why isolated events causing interferences with the enjoyment of land are not actionable is that
there is no quantifiable loss to compensate.
87 [1946] 1 All ER 489, at 493.
88 [1905] 2 KB 597, CA. See also Stone v Bolton [1949] 2 All ER 851, CA (pedestrian struck by
a cricket ball hit out of the cricket ground); British Celanese Ltd v A H Hunt (Capacitors) Ltd
[1969] 2 All ER 1252 (isolated escape of metal foil causing a short-circuit, at a nearby
electricity sub-station).
Nuisance 401
(8) THE EXTENT OF THE HARM

Whether an interference is serious (and hence unreasonable) must be assessed in the
light of its impact on the defendant. Whenever I play my piano, I generate a level of
noise that may be moderately irksome to my neighbour; but he may easily drown it out
by turning on his television or radio. On the other hand, if I were to play my trombone,
it would generate much more noise and be likely to remain heard and cause disturbance
no matter what steps my neighbour might take. The relationship between the degree of
interference and its unreasonableness is therefore clear: the louder I play an instrument,
or the more odious the smell that my business generates, the more likely it is that the
court will find the interference thereby caused to be not only substantial, but also
unreasonable.
On the other hand, the gravity of the harm caused must not be gauged on a purely
objective basis (eg, by reference only to the loudness of my trumpet playing). There is
also an important role for a subjective element in the assessment of whether the
interference was unreasonable. Although there is usuallya correlation between the
magnitude of an interference and its unreasonableness, this is not always the case.
Where, for example, I play my trombone late at night generating, say, 20 decibels of
noise, this would, nine tines out of ten, be considered a very substantial (and hence
unreasonable) disturbance to my next-door neighbour. Where, however, my neighbour
is practically deaf, she may only faintly hear the trombone. Accordingly, despite the
objective loudness of my playing, it will not subjectively be perceived to be an
unreasonable interference. And, as we have already seen, the claimant must show that
he has suffered a substantial interference, for ‘the law does not regard trifling and
small inconveniences, but only regards sensible inconveniences which sensibly
diminish the comfort ... of the property which is affected’.* It is also discernible from
this that nuisance liability is not fault-based. I may wholly unreasonably play my CDs
very loudly and every night, but the fact that it does not diminish my deaf neighbour’s
enjoyment of her land negates any prospect of my being successfully sued by her in
nuisance.
(c) THE CHARACTER OF THE HARM

Harm, for the purposes of nuisance law, as we have already seen, may take the form
either of physical damage to land or an interference with the use or enjoyment of it.
Although all three forms are actionable, physical injury is generally regarded as being
inherently of a more serious kind than interferences with a claimant’s amenities. Indeed,
the distinction drawn in St Helen’s Smelting Co v Tipping between physical damage
and amenity nuisance” has been taken by some commentators to support the
proposition that physical injury is actionable regardless of whether the defendant’s
user of his land was objectively reasonable.*' This proposition probably goes too far
89 St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642, at 654, HL, per Lord Wensleydale
(emphasis added). See also Sturges v Bridgman (1879) 11 Ch D 852, at 863, CAY per Thesiger
LJ: ‘[where the interference is of] so trifling a character, that, upon the maxim de minimis non
curat lex, we arrive, at the conclusion that the defendant’s acts would not have given rise to
[liability]’.
90 (1865) 11 HL Cas 642, at 650, per Lord Westbury.
91 See, eg, Ogus and Richardson, ‘Economics and the Environment: A Study in Private Nuisance
(1977) 36 CLI 284, 297.
— especially in the light of what was said (obiter) in Ellison v Ministry of Defence” —
but it does draw to attention to the fact that, even in the context of nuisance, the
English courts remain chary of protecting personal discomforts falling short of physical
injury.” The central issue is whether the interference is unreasonable.” So, in clear
cases of physical injury — which can easily be proven and quantified in terms of
damages — it is simpler for the courts to find that the interference complained of was
unreasonable than in cases of personal discomfort or annoyance.” Consequently,
physical violations of the claimant’s land have become less readily tolerated than
disruptions to the peaceful enjoyment of it.
(2)) SOCIAL VALUE OF THE USE INTERFERED WITH
The final factor that can affect the seriousness of the harm is the nature of the use to
which the claimant puts his land. Where the claimant uses his land in such a way that
it can be classified as socially useful, it is more likely that the disruptive interference
complained of will be regarded by the court as serious. In Smith v Giddy,” for example,
branches on the defendant’s trees which overhung the claimant’s land and prevented
his commercially cultivated fruit trees from growing properly were held to be a nuisance
whereas it was stated obiter that, had the claimant not been growing such trees, the
mere blockage of light would not have been actionable.
(2) Reasonable user of the defendant’s land

Strictly, as we have noted at several points, nuisance liability depends upon there
being an unreasonable interference with the claimant’s interests rather than there
being unreasonable conduct per se on the part of the defendant. However, there is an
immutable and fundamental inter-relationship between the reasonableness of the
interference and the reasonableness of the user or activity. The fact that one is engaged
in an unreasonable user will, ipso facto, render any interference thereby caused equally
unreasonable: an interference that is caused by an unjustifiable activity cannot itself
be justified.*’ The converse, as Lord Goff noted in Cambridge Water Co Ltd v Eastern
92 (1996) 81 BLR 101 (D constructed large fuel containers on D’s land. These trapped a large
amount of rain-water which eventually flooded C’s land. It was said that there was a reasonable
use of land for the purposes of nuisance law and that the damage was not actionable in
nuisance). See also Steele, “Private Law and the Environment: Nuisance in Context’ (1995) 15
Legal Studies 236, 252.
93 See the observations of Lord Hoffmann in Hunter (noted, at the beginning of this chapter).
94 See, eg, Watt v Jamieson 1954 SC 56, at 58 where Lord President Cooper held that though D’s
vent pipe had caused plaster damage and dry-rot to occur in a neighbouring flat, the key
question was ‘whether what he [C] was exposed to was plus quam tolerabile’. In short, his
concern was with the unreasonableness of the harm rather than with its form.
95 As Lord Selborne put it in Gaunt v Fynney (1872) 8 Ch App 8, at 1-12: ‘[amenity nuisance]
is much more difficult to prove than when the injury complained of is the demonstrable effect
of a visible or tangible cause’. See also Hunter v Canary Wharf Ltd [1997] 2 All ER 426, at 442,
HL, per Lord Lloyd: ‘Damages for loss of amenity value cannot be assessed mathematically.
But this does not mean that such damages cannot be awarded’; and Ruxley Electronics and
Construction Ltd v Forsyth [1995] 3 All ER 268, HL.
96 [1904] 2 KB 448, at 451.
97 Though the unreasonableness of the user will confirm the unreasonableness of the interference,
it does not follow that all unreasonable users will result in liability. For example, an unreasonable
user that causes minimal interference will not be actionable: the interference needs to be
substantial as well as unreasonable. Cf Cross, ‘Does only the Careless Polluter Pay? A Fresh
Examination of the Nature of Private Nuisance’ (1995) 111 LQR 445, at fn 32.
Nuisance 403
Counties Leather plc, is also true: ‘if the user is reasonable the defendant will not be
liable for consequent harm to his neighbour’s enjoyment of his land’.”* It thus follows
that the question of negligent conduct is a relevant consideration, not in itself, but
because of its impact on the characterisation of the interference caused. Much may
turn on the burden of proof, for, as the Court of Appeal explained in Marcic v Thames
Water Utilities Ltd:
Once a claimant has proved that a nuisance has emanated from land in the
possession or control of the defendant, the onus shifts to the defendant to
show that he has a defence to the claim, whether this be absence of ‘negligence’
in a statutory authority case or that he took all reasonable steps to prevent the
nuisance, if it is a Leakey situation. °°
In assessing the reasonableness of the defendant’s user the courts have resort to a
wide range of factors. The following comprise the more important of these.
(A) THE DEFENDANT’S MOTIVE

In judging what constitutes a nuisance, the courts will take into account the main
object of the defendant’s activity. Thus, for example, in Harrison v Southwark and
Vauxhall Motor Co'™ the useful nature of the defendants’ construction work was part
of the reason why the claimant’s action was dismissed. Where, however, the defendant’s
primary aim is to injure his neighbour, there is considerable authority that his malicious
motives may render the interference unreasonable. In Christie v Davey,'"' the claimants’
action lay in respect of noises being made by their defendant neighbours. Central to
North J’s judgment that the noises were a nuisance was the fact that they were made
‘deliberately and maliciously for the purpose of annoying the claimants’ .'”’ Similarly, in
Hollywood Silver Fox Farm Ltd v Emmett'™ the court held the firing of guns to be
actionable where they were fired out of spite, with the object of interfering with the
breeding of silver foxes by the claimant. The defendant’s malicious purpose was again
emphasised. What needs to be appreciated here is that if nuisance is a strict liability
tort, as Lord Goff proclaimed it to be in the Cambridge Water case, then it is not the
unreasonableness of the defendant’s conduct, per se, that is of concern. Rather, it is
the fact that this has a direct impact on the reasonableness of the interference. This is
consistent with the definition of nuisance offered at the beginning of this chapter
which does not stipulate unreasonable conduct — for this would blur the distinction
between negligence and nuisance liability — but instead, an unreasonable interference.
An important, and aguably anomalous, case in this context is that of Bradford Corpn
v Pickles.'* There, the defendant was exercising his legal right to abstract water
98 [1994] 2 AC 264, at 299, HL. See also Sanders-Clark v Grosvenor Mansions Co Ltd [1900] 2
Ch 373, at 375—6, per Buckley J; Bamford v Turnley (1862) 3 B & S 66, at 83, per Bramwell
B. On the other hand, reasonable user causing physical damage rather than amenity nuisance
will almost certainly be actionable: Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145.
99 [2002] EWCA Civ 65, at [85], [2002] QB 929, at [85]. a
100 Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch 409, at 414, per Vaughan Williams
Le
101 [1893] 1 Ch 316.
102 [1893] 1 Ch 316, at 326.
103 [1936] 2 KB 468.
104 [1895] AC 587, HL.
percolating beneath his land thereby preventing it from reaching the claimant’s adjoining
‘ . . . . oy . . .
reservoir. In dismissing the claimant’s nuisance action, Lord Macnaghten held that:
it is the act, not the motive for the act, that must be regarded. If the act, apart from
motive gives rise merely to damages without legal injury, the motive, however
reprehensible it may be, will not supply that element.
At first sight, this short passage from his Lordship’s dictum would appear difficult to
square with Christie v Davey and the Hollywood Silver Fox Farm case. Indeed, a
number of commentators have been at pains to reconcile the cases on the basis that
Bradford Corpn v Pickles is a sui generis type of case concerning, as it does, rights in
respect of servitudes.'® But this argument, turning on the claimant’s absolute right to
extract water, is unconvincing, for there is a no less absolute right to use one’s land for
lawful purposes even where a substantial interference is caused to one’s neighbour.'”
What the argument fails to recognise is that Lord Macnaghten’s focus is not so much
on the reasonableness of the interference, but rather upon its gravity. His concern, it
is submitted, is primarily with whether the act complained of has occasioned a
substantial interference, since the notions of factual and legal interference are not in
truth coextensive. His point, then, is that, in the absence of substantial harm, any
action in nuisance based on the malicious conduct of the defendant must fail.'°’ This
accords with the principle de minimis non curat lex, long since deemed to be applicable
to nuisance cases.'°*In any event, in Hunter v Canary Wharf Ltd, Lord Cooke reasserted
the principle that the defendant actuated by malice may incur liability where the same
interference, innocently caused, would not lead to this result.'®
Wanton ill-conduct serves no socially useful function. Accordingly, it has the effect of
rendering unreasonable practically any interference which the defendant thereby
causes. Where, however, the defendant’s activity does possess some social utility,
and it is this social utility that motivates the defendant, the court will naturally be less
inclined to declare any resulting interference to be unreasonable. The country must
have power stations, factories and smelting works. By contrast, the need for motorcycle
speedway tracks or racecourses is much less pressing and, consequently, such activities
much more readily form the basis of successful nuisance actions.''°
(B) LOCATION OF THE DEFENDANT’S ENTERPRISE
Just as the location of the claimants premises is important in determining what

constitutes a ‘substantial interference’ in cases of amenity nuisance, so too is the
105 See, eg, the 9th edition of this work.

106 See, eg, Hunter v Canary Wharf Ltd [1997] 2 All ER 426, HL, where Lord Goff refused to
accept that the lawful construction of a tall building constituted nuisance when its construction
caused interference to Cs’ television reception. For an interesting account of various
(unnecessary) attempts, at reconciling these cases see Cross, ‘Does only the Careless Polluter
Pay? A Fresh Examination of the Nature of Private Nuisance’ (1995) 111 LQR 445, 453-5.
107 His dictum is nonetheless misleading in so far as it appears to suggest that D’s motive may
always be disregarded. This is manifestly not the case as the Christie and Silver Fox cases amply
demonstrate.
108 Sturges v Bridgman (1879) 11 Ch D 852, CA.
109 [1997] 2 All ER 426, at 465ff.
110 See, eg, A-G v Hastings Corpn (1950) 94 Sol Jo 225, CA and Dewar v City and Suburban
Racecourse Co [1899] 1 IR 345.
Nuisance 405
location of the defendant's premises important in assessing the reasonableness of the

defendant’s conduct (which, in turn, affects the reasonableness of the interference he
causes). Put simply, we are concerned with the question ‘what is it reasonable to do?’
and not with the question (relevant when considering the location of the claimant’s
premises), “what is it reasonable to put up with?’. Thus, in addition to considering the
usefulness of the defendant’s activity, we must also consider whether it is being
carried on in a suitable locality. In this connection, the courts have recognised the
national policy of segregating different uses of land and have furthered this policy by
taking into account whether the defendant is putting his land to a use which is compatible
with the main use to which land in that area is usually put. To take an example, the
operation of a chemicals works would not, in every conceivable instance, be considered
to be an unreasonable use of land. If it was operated in a residential area, it could be so
regarded; but if the factory was located in an industrial area, the activity would probably
be considered reasonable.'!!
(c) Fautt
The undoubted role that fault can play in determining nuisance liability raises one of
the most difficult questions in tort: is nuisance liability strict or fault based? To answer
this question, we must first identify the function served by identifying fault on the part
of the defendant and, secondly, the limits to the role it plays in the ascription of
nuisance liability. Much of the confusion that surrounds these issues stems from one
famous passage in Lord Reid’s Privy Council speech in The Wagon Mound (No 2)
where he said:
Nuisance is a term used to cover a wide variety of tortious acts or omissions and
in many negligence in the narrow sense is not essential. An occupier may incur
liability for the emission of noxious fumes or noise although he has used the
utmost care in building and using his premises ... [And yet] although negligence
may not be necessary, fault of some kind is almost always necessary and fault
generally involves foreseeability.'!
At first sight, this passage may appear either intractable or inherently self-contradictory.
Negligence is the archetypal fault-based tort. How then can it be asserted that while
negligence is not required, fault is almost invariably a precondition of liability? The
answer lies in Lord Reid’s qualification that it is only negligence in the narrow sense
that need not be shown. The first point to note is that ‘negligence in the narrow sense’
refers to no more than a breach of a duty of care (ie, failure to meet the standard of
conduct of the reasonable man). The second point is that, though one undertakes an
enterprise with all possible caution, one can seldom guarantee that certain, foreseeable,
adverse consequences will not arise. I may, for example, drive my car with all due care
but be unable to prevent a collision with another car caused by my skidding on a patch
of ‘black ice’. In such a case, though I could not be found negligent, it might still be
said that I was at fault in the rather different sense that I knowingly took the risk of
111 It was decided in Ball v Ray (1873) 8 Ch App 467 that converting part of a house in a
residential street into stables caused an unreasonable interference. But a similar degree of
interference caused by piano being played, or crying children, would not be a nuisance: see Moy
v Stoop (1909) 25 TLR 262.
112 [1967] 1 AC 617, at 639, PC.
such an occurrence by deciding to drive in the first place. The element of fault in this
second sense derives from the foreseeability of an accident even though I drive to an
exemplary standard. It is submitted that it is this notion of fault that Lord Reid considered
to be crucial to nuisance liability.
The question of whether nuisance involves strict or fault-based liability was revisited
by the House of Lords in Cambridge Water Co Ltd v Eastern Counties Leather plc.'"*
There, Lord Goff, with whom the other four Law Lords agreed, offered a similar
interpretation of the role of fault to the one suggested here. He said:
[T]he fact that the defendant has taken all reasonable care will not of itself
exonerate him ... But it by no means follows that the defendant should be held
liable for damage of a type which he could not reasonably foresee; and the
development of the law of negligence in the past 60 years points strongly towards
a requirement that such foreseeability be a prerequisite of liability in damages for
nuisance, as it is of liability in negligence.''*
This passage makes it clear that liability in nuisance is strict in the sense that a defendant
may be found liable regardless of the care he took to avoid causing harm. Nonetheless,
his Lordship reserved a residual role for fault in the second sense in that liability will
only attach to those users of land that involve a foreseeable risk of harm.''*
(D) THE KIND OF USER

A penultimate factor that can influence the court’s view of the reasonableness of the
defendant’s user is the kind of activity in which he is engaged. Here, the concern is
simply with the actual use to which the defendant puts his land. If my neighbour
disturbs me by operating a noisy printing press in order to produce illegal, pornographic
literature, his activity can never be justified, for the activity is illegal and thus
unreasonable. It follows that any substantial disturbance thereby caused can also
never be justified. Put bluntly, illegal and extremely dangerous enterprises'"® are, by
definition, unreasonable users of land and, apart from the criminal aspects of such
activities, any disturbances they cause will, ipso facto, be regarded as unreasonable,
regardless of motive.''’
The kinds of activity likely to be deemed unreasonable per se will commonly overlap
with those which, for the purposes of liability under the rule in Rylands v Fletcher,'"®
constitute ‘non-natural’ users of land. Though the two notions are related, it is also
113 [1994] 2 AC 264, HL.

114 [1994] 2 AC 264, at 300, HL.
115 This is borne out by the case law. See, eg, Leakey v National Trust [1980] QB 485, at 526, CA
(D had knowledge of danger of landslip, therefore liable); Savage v Fairclough [2000] Env LR
183, CA (farmer causing nitrate pollution had conformed with good farming practice and
taken expert advice: not liable); Delaware Mansions Ltd v Westminster City Council [2001]
UKHL 55, [2002] 1 AC 321 (foreseeable root encroachment: D liable). For a fuller account of
the role of foreseeability in nuisance and Rylands and Fletcher see Wilkinson, ‘Cambridge
Water Co Ltd v Eastern Counties Leather plc: Diluting Liability for Continuing Escapes’ (1994)
57 MLR 799.
116 Eg, the storing of large quantities of high explosives in a private, terraced house.
117 In Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264, at 298, HL, Lord
Goff identified that unreasonable land use is not necessarily to be equated with negligent land
use, though wherever there is evidence of a negligently conducted activity, the courts may
conclude that it amounts to an unreasonable user.
118 (1868) LR 3 HL 330; see also ch 19.
Nuisance 407
clear that they are not co-extensive. Accordingly, in Fay v Prentice,''? the defendant
was found liable in nuisance in respect of water dripping from the eaves of his building
although such a user would not be termed non-natural for the purposes of Rylands v
Fletcher liability. On the other hand, the fact that a given user could be regarded as
‘non-natural’ for Rylands purposes might be material in deciding whether it was also
an ‘unreasonable user’ for the purposes of nuisance.!”° We return to the question of
what constitutes a non-natural user in the next chapter.
(e) PRACTICABILITY OF PREVENTING OR AVOIDING THE INTERFERENCE
It will always be material whether the defendant, by taking reasonable, practicable

steps to prevent the interference, could still have achieved his purpose without
interfering with the claimant’s use of his land. If, without excessive expenditure, a
factory owner could install equipment that would prevent him causing a disturbance
to his neighbours, the courts might treat this as conclusive that the defendant’s user
was unreasonable. In Andreae v Selfridge & Co Ltd, for example, where building
operations that were generating noise and dust interfered with the comfortable
enjoyment of a neighbour’s hotel, it was held that the defendants who had undertaken
an ostensibly reasonable user of the land were nonetheless under a duty:
to take proper precautions, and to see that the nuisance is reduced to a minimum.
It is no answer for them to say: ‘But this would mean that we should have to do
the work more slowly than we would like to do it, or it would involve putting us
to some extra expense’ .'”!
Similarly, in Leeman v Montagu'” a poultry farmer who made no attempt to rearrange
his farm was held liable in nuisance in respect of 750 cockerels that crowed between
the hours of 2.00am and 7.00am. On the other hand, in one case involving young
children whose crying often caused a disturbance to the claimant, it was held that
there was no liability as there was no evidence that the children had been neglected or
suffered from a want of care.'”? What was crucial to this finding was the actual ability
of the defendant to eradicate or minimise the interference. This principle was endorsed
in Leakey v National Trust where, despite ultimately being found liable in respect of an
earth-slide from their land, the Court of Appeal expressly declared that ‘[t]he extent of
the defendant’s duty [to minimise any interference], and the question of whether he
has or has not fulfilled that duty, may ... depend on the defendant’s financial
resources’ .'*4 Similarly, in Holbeck Hall Hotel Ltd v Scarborough Borough Ceuncil,'”
119 (1845) 1 CB 828, CA.

120 On the relationship between the two notions, see Murphy, ‘Noxious Emissions and Common
Law Liability — Tort in the Shadow of Regulation’ in Lowry and Edmunds (eds), Environmental
Protection and the Common Law (1999).
121 [1938] Ch 1, at 9-10, CA. See also the obiter endorsement of this approach by the House of
Lords in Southwark London Borough Council v Tanner [2001] 1 AC 1, HL.
122 [1936] 2 All ER 1677.
123 Moy v Stoop (1909) 25 TLR 262. a0 ;
124 [1980] QB 485, at 526, CA. Cf the wholly objective standard that applies in cases of public
nuisance: Wandsworth London Borough Council v Railtrack ple [2001] EWCA Civ 1236,
[2002] QB 756 (council expected to take (objectively) reasonable steps to avoid pigeon
infestation). ;
125 [2000] 2 All ER 705, CA. The court emphasised that liability in cases of this type involved
nonfeasance and that, therefore, the duty to minimise or avoid an interference to C could be
restricted in this way. Their Lordships even considered, obiter, that issuing a warning to C of
a known natural danger may suffice in some circumstances: [2002] QB 836, at 863, CA.
the Court of Appeal stated:that in cases involving naturally occurring nuisances — in

this case landslips — the defendants’ duty would be in part restricted by their ability to
avert the nuisance. ‘
Section 3. Who can sue?
(A) Owners and resident occupiers

Reflecting the fact that nuisance law has traditionally protected interests in land, the
conventional approach adopted by the English courts was to allow only those who
own the land to bring an action in nuisance. As Lord Simmonds put it in Read v JLyons
& Co Ltd: ‘he alone has a lawful claim who has suffered an invasion of some proprietary
or other interest in land’.!*° It was this insistence on the existence of a proprietary
interest that underpinned the decision of the Court of Appeal in Malone v Laskey.'’*"In
that case, a wife was injured when vibrations created by the defendant caused a
lavatory cistern to fall off the wall and onto her head. Her claim failed because she had
no legal or equitable interest in the property.'** The same reasoning has been employed
by the courts in a string of subsequent cases,'”’ including, most notably, the decision
of the House of Lords in Hunter v Canary Wharf Ltd.'*° There, Lord Goff said:
an action in private nuisance will only lie at the suit of a person who has a right
to the land affected. Ordinarily such a person can only sue if he has the right to
exclusive possession of the land, such as a freeholder or tenant in possession,
or even a licensee with exclusive possession ... But a mere licensee on the land
has no right to sue.'*!
Notwithstanding the fact that Hunter is a decision of the highest court in the land, it is
now nonetheless highly questionable in the light of the Human Rights Act 1998 whether
this rule will survive for very long.'*? The English courts are now obliged to develop
the common law in a manner that is consistent with the rights embodied in the European
Human Rights Convention; and Article 8(1) of that Convention affords all citizens an
equal respect fro their private lives. Since this right is not contingent upon a proprietary
interest in the land affected by the disturbance complained of, it is at the very least
arguable'*’ that the common law’s insistence on such an interest is now inconsistent
126 [1946] 2 All ER 471, at 482, HL (obiter).
127 [1907] 2 KB 141, CA.
128 This reasoning would not apply today in respect of a spouse with no proprietary interest, for
under the Family Law Act 1996, s 30 a spouse with no such interest is afforded a statutory right
to occupy the matrimonial home (so long as the other spouse has a proprietary right to it).
Such ‘matrimonial home rights’, as they are known, were recognised as a sufficient interest in
the property to sue in Hunter v Canary Wharf Ltd [1997] 2 All ER 426, at 440, HL, per Lord
Goff.
129 See, eg, Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509, HL; Cunard v
Antifyre Ltd [1933] 1 KB 551 and Metropolitan Properties Ltd v Jones [1939] 2 All ER 202,
CA.
130 [1997] 2 All ER 426, HL.
131 [1997] 2 All ER 426, at 438, HL.
132 In McKenna v British Aluminium Ltd [2002] Env LR 30 there was obiter recognition of this
point by Neuberger J. See also Marcic v Thames Water Utilities Ltd [2002] 2 All ER 55, CA.
133 For recognition of the significance of this Article in the context of nuisance law see Marcic v
Thames Water Utilities Ltd [2002] EWCA Civ 65, [2002] 2 All ER 55 (an unreasonable failure
to avoid flooding of C’s land was held to be a breach on the part of D, a public authority, of the
Nuisance 409
with the right to respect for privacy afforded by the Article 8. As such, the House of
Lords may reject this proprietary /ocus standi rule in the future.'“4
Leaving speculation to one side, it should be noted that Lord Goff recognised one
exception to the general position set out in the short excerpt from his speech quoted
here. Considering the decision in Foster v Warblington UDC"* to be good law, he said
that a person in actual possession (with no right to be there) is also allowed a right of
action against a third party (ie, someone other than the true owner).'*° Apart from this
instance, however, and subject to the courts adopting a new approach based on the
right of all citizens to respect for their private lives, it is at present unlikely that anyone
else — such as a squatter — would be entitled to bring a nuisance action.'3’
(B) Reversioners
Where a landowner is not in occupation at the time of the interference complained of,
but where he retains a reversionary interest in the land, he may sue in respect of the
nuisance so long as he can prove that his (the reversionary) interest in the land has
been affected. If the damage is of a temporary nature, then he has no basis upon which
to sue, and this is so even if the reversioner can show that it is likely that a similar,
temporary interference will take place in the future.'** In this context, the related concept
of a ‘permanent interference’ has been described as one that:
will continue indefinitely unless something is done to remove it. Thus a building
which infringes ancient lights is permanent within the rule ... On the other hand,
a noisy trade and the exercise of an alleged right of way, are not in their nature
permanent within the rule, for they cease of themselves, unless there be someone
to continue them.'*
In accordance with this principle, a reversioner may sue where an adjoining landowner
constructs a house, the eaves of which project over his land and discharge rainwater
onto it.'*° Similarly, physical damage caused to the reversioner’s buildings will afford
the reversioner a cause of action.'*! Conversely, no such action will lie where the
nuisance complained of comprises merely temporary annoyance caused by emission
of smoke.'”
Human Rights Act 1998, s 6(1): both a failure to afford respect for private life, per Art 8 and
a breach of C’s right to the peaceful enjoyment of his possessions under Art | of the First
Protocol). See also, Hatton v United Kingdom [2002] 1 FCR 732, ECtHR and Wright, Tort
Law & Human Rights (2001) ch 8.
134 On the other hand, even if this development occurs, it is important to note that Art 8(1) does
not confer an absolute right: derogation would be permissible under Art 8(2) if the activity
causing disturbance were to be in the interests of the community in general: see Hatton v UK
(2002] 1 FCR 732.
135 [1906] 1 KB 648, CA.
136 [1906] 1 KB 648, at 659-60, CA, per Vaughan-Williams LJ.
137 Cf the speéch of Lord Hoffmann in Hunter v Canary Wharf Ltd [1997] 2 All ER 426, HL where
he suggested (at 449) that it is sufficient if C ‘was de facto in exclusive possession’,
138 Simpson v-Savage (1856) 1 CBNS 347 (smoke discharged from a fire).
139 Jones v Llanrwst UDC [1911] 1 Ch 393, at 404, per Parker J.
140 Tucker v Newman (1839) 11 Ad & El 40.
141 Meux’s Brewery Co v City of London Electric Lighting Co [1895] 1 Ch 287, CA.
142 Simpson v Savage (1856) 1 CBNS 347.
(C) Claimants suerte personal injuries, damage to chattels or

economic loss vd
It was held in Hunter v Canary Wharf Ltd'* that personal injuries are not, per se,
recoverable in an action for private nuisance. Nonetheless, an action will lie where ‘the
injury to the amenity of the land consists in the fact that persons on it are liable to
suffer inconvenience, annoyance or illness’.'* The point is one of emphasis. The
personal injury, to be recoverable, must be seen in terms of a diminution in the capacity
of the land to be enjoyed. As such, where defective wiring in a neighbouring house
causes a fire that spreads to the claimant’s house, the claimant should be allowed to
recover not only for the damage caused to his house but also for any burns he sustains
because it is not only the land, but also the amenity of the land (characterised in terms
of the ability to live there free from burns) that has been affected. The matter has
resonance at the stage of quantifying damages: ‘the reduction in amenity value is the
same whether the land is occupied by the family man or the bachelor ... the quantum of
damages in private nuisance does not depend on the number of those enjoying the
land in question’.'* In other words, there will be no multiplication of damages just
because more than one person is affected.'*° .
So far as damage to chattels is concerned, it is also reasonably well established that
private nuisance will afford a remedy. In Midwood & Co Ltd v Manchester Corpn,'”’
for example, damages were awarded by the Court of Appeal for loss of stock in trade;
while in Halsey v Esso Petroleum Co Ltd'** they were awarded for damage to washing
on a clothes line. Notwithstanding the fact that in Hunter their Lordships staunchly
reasserted the principle that nuisance was a tort to /and, it was also explicitly stated
that an action in respect of consequential damage to chattels was recoverable.'”
Finally, let us consider economic loss. In this context, it is clear, as Lord Hoffmann
recognised in Hunter, that consequential economic loss in the form of the claimant’s
inability to use the land for the purposes of his business is recoverable.'*° Beyond this,
matters are less clear. In two cases'*' decided according to the rule in Rylands v
Fletcher'* it has been suggested that, in principle, the recoverability of pure economic
loss is possible. Since Lord Goff’s view in the Cambridge Water case was that Rylands
was a tort derived from nuisance, it could be argued that there should be no objection
to pure economic losses being recovered in nuisance so Jong as they arise out of an
interference with land or its amenity value.'°?
143 [1997] 2 All ER 426, at 442, HL, per Lord Lloyd.

144 Hunter v Canary Wharf Ltd [1997] 2 All ER 426, at 452, HL, per Lord Hoffmann.
145 [1997] 2 All ER 426, at 442, HL, per Lord Lloyd.
146 But note that personal injuries are recoverable in the tort of public nuisance.
147 [1905] 2 KB 597, CA.
148 [1961] 2 All ER 145. Though an award in respect of damaged furniture was denied in Cunard
v Antifvre Ltd [1933] 1 KB 551, it should be noted that the case was ultimately decided in
negligence.
149 [1997] 2 All ER 426, at 452, HL, per Lord Hoffmann. For critique, see Oliphant, ‘Unblurring
the Boundaries of Nuisance’ (1998) 6 Tort Law Review 21.
150 [1997] 2 All ER 426.
151 British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 2 All ER 1252; Ryeford Homes Ltd
v Sevenoaks District Council [1989] 2 EGLR 281.
152 (1868) LR 3 HL 330.
153 But compare the (obiter) view that the cost of replacement cooking facilities necessitated by
a disturbed gas supply is irrecoverable: Anglian Water Services Ltd vyCrawshaw Robbins & Co
Ltd 2002 WL 31523191, at [124], per Stanley Burnton J.
Nuisance 4\\|
Section 4. Who can be sued?

A person is liable in nuisance only if he bears ‘some degree of personal responsibility’
.!*4
Such persons can conveniently be identified under three main heads.
(A) Creators
If the actual wrongdoer is invested with the management and control of the premises
from which the nuisance emanates, then he is liable irrespective of whether he is an
occupier of those premises in the normal sense of the word.'*’ Even though the person
who created the interference was neither at the time of the proceedings, nor at the time
when he created the interference, in occupation or control of the premises from which
it emanated, but merely created it with the authority of the occupier of the premises, he
may still be liable.'°° Nor will he be excused simply because he lacks the right to enter
onto the premises in order to abate it.'*’ In accordance with ordinary principles of
tortious liability, anyone who authorises another to commit a nuisance is himself also
liable. So, for example, a local authority is liable where it authorises the use of its land
as a go-kart circuit, where a nuisance is the known and inevitable consequence of go-
kart racing taking place there.'** If, however, land is let by a local authority to persons
who may or may not cause a nuisance, no such liability will attach as the eventuality of
a nuisance is not inevitable.'*? Nor will a local authority be liable if it lets premises to
tenants who, in poorly soundproofed buildings, cause annoyance to others simply by
using their premises in the normal way.'® It is only the authorisation of conduct that
will definitely cause a nuisance that enables the courts to treat the landowner as if he
had caused the interference himself. Thus, it was held in Hussain v Lancaster City
Council'*' that since the acts complained of — racial harassment committed by the
defendant council’s tenants against local shopkeepers — had no direct connection
with the tenants’ use of the premises they rented from the defendants, nuisance liability
could not be imposed on the defendants. The council could only be held liable in
154 Sedleigh-Denfield v O’Callaghan [1940] AC 880, at 897, HL, per Lord Atkin..
155 Hall v Beckenham Corpn [1949] 1 KB 716.
156 Southwark London Borough Council v Tanner [2001] 1 AC 1, HL.
157 Thompson v Gibson (1841) 7 M & W 456. In Southport Corpn v Esso Petroleum Co Ltd
[1953] 2 All ER 1204, at 1207, Devlin J said obiter: ‘I can see no reason why ... if the
defendant as a licensee or trespasser misuses someone else’s land, he should not be liable for a
nuisance in the same way as an adjoining occupier would be’. Despite this dictum, there has
been no English case in which liability was imposed upon a person who had never been in
occupation or control of the relevant premises in respect of conduct which was not authorised
by someone who was in occupation. In Australia, there is direct authority that a trespasser is
not liable in nuisance: Beaudesert Shire Council v Smith (1966) 40 ALJR 211 (H Ct Australia).
158 Tetley v Chitty [1986] 1 All ER 663.
159 Smith v Scott [1973] Ch 314. In this case, undesirable tenants were always likely to annoy their
neighbours by noise and vandalism, but that they would do so was not guaranteed. See also Rich
v Basterfield (1847) 4 CB 783. Cf Lippiatt v South Gloucestershire Council [1999] 4 All ER
149, CA (travelers on D’s land, and using D’s land as a base for forays onto C’s land, were
‘known to D to interfere repeatedly with Cs’ enjoyment of their land) and Winch v Mid
Bedfordshire District Council 2002 WL 1876048.
160 Southwark London Borough Council v Tanner [2001] 1 AC 1, HL.
161 [1999] 4 All ER 125, CA. Cf Lippiatt v South Gloucestershire Council [1999] 4 All ER 149,
Cx
respect of uses of the ténant’s council houses that they had authorised and that had
caused a nuisance. In this case, there was no such land use by the council tenants."
Where the interference complained of arises from a ‘state of affairs’ that was created
by the defendant,'® he will again be held liable (even though his initial conduct does
not, of itself, amount to a nuisance) so long as harm to the claimant is a foreseeable
consequence of that initial conduct. Thus, he who plants poplar trees — itself an
innocuous act — is liable in nuisance in respect of the indirect harm caused by their
roots spreading under neighbouring land.'“ Equally, maintaining defective electric
mains gives rise to liability for foreseeable damage that in fact ensues.'® Where, on the
other hand, the defendant creates a state of affairs that will not foreseeably result in a
nuisance, the courts will refuse to attach liability.
In I/ford UDC v Beal,'® D erected a retaining wall along the bank of a river.
Because the wall was not constructed in accordance with the best engineering
practice it was later completely undermined by the river. This undermining caused
the wall to move forward a foot or two where it came to press against, and cause
damage to, C’s sewer. C neither knew, nor ought to have known, about the
presence of the sewer. The damage to the sewer was therefore unforeseeable
and D was held not liable in nuisance.
Although the key to liability in such cases is undoubtedly the remoteness of the
injurious consequences of the defendant’s initial conduct, it is not always easy to
distinguish those cases in which the defendant genuinely created the dangerous state
of affairs from those in which he merely failed to remedy it. The point can be illustrated
by reference to Goldman v Hargrave:'®”’
A redgum tree that was growing on D’s land caught fire when it was struck by
lightning. D took measures to fell the tree but because of changes in the weather
conditions (including a strengthening in the wind) the tree which had not been
completely extinguished, rekindled. The fire then spread to C’s land. One of the
Privy Council’s findings of fact was that D’s method of dealing with the fire gave
rise to a foreseeable risk of the fire reviving and spreading.
It is not wholly clear whether the defendant’s wrongdoing amounted to misfeasance
(in that he dealt inappropriately with a burning tree thereby creating a risk to his
neighbour) or nonfeasance (in that he failed to avert an extant risk of fire spreading).
Had the tree not been felled in the manner adopted by the defendant, the fire may never
have rekindled and spread to the defendant’s land. On the other hand, had the tree not
162 But this decision skates rather too close for comfort to supporting the untenable proposition
that a nuisance requires an improper use of D’s land. For a rejection of this proposition, see L
E Jones (Insurance Brokers) Ltd v Portsmouth City Council [2002] EWCA Civ 1723, [2003]
1 WLR 427.
163 Contrast those circumstances in which D only inherits or continues a state of affairs produced
by a third party. In such cases, considered in the next section, D’s liability attaches because of
his failure to remedy the potentially injurious state of affairs: see Delaware Mansions Ltd v
Westminster City Council [2001] UKHL 55, [2002] 1 AC 321.
164 Butler v Standard Telephones and Cables Ltd [1940] 1 KB 399; followed in McCombe v Read
[1955] 2 QB 429.
165 Midwood & Co Ltd v Manchester Corpn [1905] 2 KB 597, CA.
166 [1925] | KB 671.
167 [1967] 1 AC 645, PC. See also Radstock Co-operative and Industrial Society Ltd v Norton-
Radstock UDC [1968] Ch 605, CA.
Nuisance 4\3
been struck by lightning in the first place, a hazardous state of affairs would never
have arisen on the defendant’s land. Whether cases such as this are better seen as
involving misfeasance or nonfeasance is by no means easy to decide.'®
(B) Occupiers
As we noted in the previous section, the occupier of premises will be liable in respect
of nuisances that he has himself created. But he may also be liable where he fails to
take reasonable steps to remedy a dangerous state of affairs on the land that he
occupies. In determining what amounts to the reasonable steps he might be expected
to take, the court, for reasons of justice, may have regard to his limited financial and
other resources; especially if the claimant has had the state of affairs involuntarily
thrust upon him.
So far as the liability of occupiers for misfeasance is concerned, there are four main
ways in which a problem scenario might arise.
(1) Acts of a trespasser

If the dangerous state of affairs on the defendant’s land is created by a trespasser, so
long as the occupier knows or ought to know about it, he is liable in nuisance in
respect of damage thereby caused to his neighbour. The leading case is Sedleigh-
Denfield v O’Callaghan.'* There, the drainage system on the defendant’s land became
blocked because of the negligent acts of a trespasser. The defendant’s servant who
had been responsible for periodically cleansing the drainage system over a period of
three years ought to have noticed the risk of flooding and for this reason the defendant
was held liable for the flood damage that the blockage had caused to the claimant. In
finding the defendant liable, the House of Lords stressed the importance of his
(constructive) knowledge of the risk:
An occupier is not prima facie responsible for a nuisance created without his
knowledge and consent. If he is to be liable a further condition is necessary,
namely, that he had knowledge or means of knowledge, that he knew or should
have known, of the nuisance in time to correct it.'”°
It is important to distinguish cases such as Sedleigh-Denfield, from two further kinds

of case. First, from those such as Smith v Littlewoods Organisation Ltd'’' where the
House of Lords held that there was no liability where the trespassers had, in the
absence of actual or constructive knowledge on the part of the defendants, caused a
fire in the defendants’ disused cinema which spread to the claimant’s property. Secondly,
from those where the third party merely uses the defendant’s land as a means of
gaining access to the claimant’s land rather than, as in Sedleigh-Denfield, where the
168 In the eventuality, the Privy Council treated Goldman as a nonfeasance case.
169 [1940] AC 880, HL.
170 [1940] AC 880, at 904 and 365. See also Lippiatt v South Gloucestershire Council [1999] 4 All
ER 149, CA.
171 [1987] AC 241, HL.
third party’s mischievous act or omission actually occurs on the defendant’s land. In
such cases the Court of Appeal has held that the defendant will be free of any general
liability in respect of the acts of such third parties.'”
A final point that ought to be noted is that, where the defendant’s failure to abate a
nuisance can be attributed to a pre-existing duty to consult the interested parties
before any remedial steps can permissibly be taken, the defendant’s inaction will not
be taken by the courts to be an unreasonable failure to erase the menacing state of
affairs.'”
(2) Acts of nature

If a dangerous state of affairs arises on the defendant’s land due to an act of nature of
which the occupier knows or ought to know, he is liable in nuisance 1f damage occurs
to a neighbouring landowner. In Goldman v Hargrave, the facts of which we noted
when considering the liability of the creator of a nuisance, the Privy Council extended
the rule in Sedleigh-Denfield v O’Callaghan— that an occupier must take reasonable
steps to remedy a potentially hazardous state of affairs — to cases in which the danger
arises by an act of God. However, Lord Wilberforce added the important qualification
that the unreasonableness of the defendant’s attempts to avert such a danger must be
judged in the light of his financial and other resources. He said:
[T]he 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 very modest character ... Arule 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.'”4
Although Goldman is, strictly, an Australian decision, its underlying rationale was
adopted in the English case of Leakey v National Trust for Places of Historic Interest
or Natural Beauty.'’> There, the defendants owned land on which there stood a large
mound of earth which the defendants knew to be prone to subsidence. When, following
a particularly dry summer which caused cracks in the earth to appear, the mound finally
gave way causing damage to the claimant’s houses, it was held by the Court of Appeal
that the defendants were liable in respect of the land-slip.'”° Although the defendants
had given permission to the claimant to abate the cause of the nuisance, they had
themselves done nothing to remove the danger.'””
172 P Perl Exporters Ltd v Camden London Borough Council [1984] QB 342.
173 Page Motors Ltd v Epsom and Ewell Borough Council (1981) 80 LGR 337, CA.
174 [1967] 1 AC 645, at 663, PC. This might be seen as undermining the supposed strictness of
nuisance liability. On the other hand, it might be seen as being a not unreasonable user of the
land (and, therefore, a not unreasonable ensuing interference).
175 [1980] QB 485, CA. See also Davey v Harrow Corpn [1958] 1 QB 60, CA (a landowner who
allows the branches or roots of trees to encroach on a neighbour’s land will be liable in
nuisance).
176 But note that where D’s nonfeasance is in issue, the court’s expectations of him will diminish,
especially where preventative action would require great expense on D’s part: see Holbeck Hall
Hotel Ltd v Scarborough Borough Council [2000] 2 All ER 705, CA.
177 But note that it is doubtful whether liability arises for the presence of animals ferae naturae or
failure to remove them: Farrer v Nelson (1885) 15 QBD 258; Seligman v Docker [1949] Ch
53.
Nuisance 415
(3) Nuisances created by independent contractors

An employer, naturally enough, is vicariously liable for nuisances created by an
employee in the course of his employment.'’* But as regards independent contractors,
the defendant is only liable in respect of their failure to take precautions if, as Slesser
LJ held in Matania v National Provincial Bank Ltd and Elevenist Syndicate Ltd,”
‘the act done is one which in its very nature involves a special danger of nuisance
being complained of’. In that case, the occupier of the first floor of a building was held
liable to the superjacent occupiers in respect of the dust and noise generated by the
alteration works carried out by the independent contractors he had employed.
The nature of an occupier’s liability for independent contractors was more widely
stated by Cockburn CJ in Bower v Peate,'*° when holding a principal liable for his
independent contractor’s withdrawing support from the buildings of the claimant:
a man who orders a work to be executed, from which, in the natural course of
things, injurious consequences to his neighbour must be expected to arise ... is
bound to see to the doing of that which is necessary to prevent the mischief, and
cannot relieve himself of his responsibility by employing someone else.
(4) Acts of a previous occupier

If the predecessor of the defendant occupier created a hazardous state of affairs and
the defendant knows or ought to know of its existence then, according to Scrutton LJ
in St Anne’s Well Brewery Co v Roberts,'®' the defendant is liable in respect of any
damage to which it gives rise. Even if the construction created by the occupier’s
predecessor in title did not pose a threat at the time of its creation, the occupier may
nonetheless be held liable in respect of any hazards it subsequently gives rise to so
long as he knew, or ought to have known, that such a threat was posed.'®
(C) Landlords
We have already seen that a landlord who authorises his tenant to commit a nuisance
is treated, in law, as the creator of the nuisance, and will himself be liable for that
nuisance.'®? But there are three further situations that call for discussion in which the
landlord may be held liable qua landlord (as opposed to qua creator).
178 Spicer v Smee [1946] 1 All ER 489, at 493, per Atkinson J (obiter).
179 [1936] 2 All ER 633, at 646, CA.
180 (1876) 1 QBD 321, at 326. Cf Atkinson J, following Bower v Peate in Spicer v Smee [1946]
1 All ER 489, at 495: ‘where danger is likely to arise unless work is properly done, there is a
duty to see that it is properly done’. For a fuller discussion of liability for the acts of independent
contractors, see ch 25.
18 — (1928) 140 LT 1, CA (part of an ancient wall collapsed damaging C’s inn but, on the facts, D
‘was found not liable because of the lack of (constructive) knowledge that the wall was likely to
collapse). Followed in Wilkins v Leighton [1932] 2 Ch 106.
182 Bybrook Barn Garden Centre Ltd v Kent County Council [2001] Env LR 30, CA; Marcie v
Thames Water Utilities Ltd [2002] EWCA Civ 65, [2002] QB 829.
183 See, eg, Lippiatt v South Gloucestershire Council [1999] 4 All ER 149, CA.
First, if at the date of létting the landlord knows or ought to know of the condition
giving rise to the actionable nuisance, he will be liable despite the tenancy if he has not
taken a covenant to repair the premises from the tenant.'** According to Goddard J in
Wilchick v Marks and Silverstone, a landlord ought to know not only of those defects
that are patently obvious*but also of those that are capable of being discovered by use
of reasonable care.'*° Secondly, a landlord will also be liable for dangerous conditions
that arise from want of repair during the currency of the tenancy if he has covenanted
to perform such repairs,'*° reserves the right to enter and repair,'*’ or has an implied
right to enter and repair.'** Furthermore, where the landlord’s premises are situated on
a highway, he will be liable to passers-by or neighbouring landowners regardless of
whether the want of repair is attributable to his (ie, the landlord’s) want of care.'®
Finally, where a landlord does something to the premises, that leads inevitably to a
nuisance if the premises are occupied, then he, rather than the tenants, will be liable. In
Toff v McDowell,'*° for example, the tenants had used the premises in a perfectly
normal fashion but, because the landlord had taken up the floor covering, anyone
occupying the premises would sound unbearably loud to the subjacent claimant. The
landlord was held liable and directed to replace the flooring."”!
As regards the liability of a tenant, it is well established that if he has covenanted to
repair the premises, he is liable in nuisance for damage arising from a failure to effect
those repairs.'”” On the other hand, the mere fact that the landlord has covenanted to
repair the premises, will not, ipso facto, exonerate the tenant from nuisance liability.'”’
As Lawrence LJ explained in St Anne's Well Brewery Co v Roberts:'"
Any bargain made by the person responsible [ie, the occupier] to his neighbour
or to the public that another person should perform that obligation may give rise
to rights as between the two contracting parties, but does not, in my judgment,
184 Todd v Flight (1860) 9 CBNS 377; Gandy v Jubber (1864) 5 B & S 78; revsd (1865)9B& S
15, Ex Ch (undelivered judgment); Bowen v Anderson [1894] 1 QB 164.
185 [1934] 2 KB 56, at 67-8.
186 Payne v Rogers (1794) 2 Hy BI 350.
187 Wilchick v Marks and Silverstone [1934] 2 KB 56; Heap v Ind Coope and Allsopp Ltd [1940]
2 KB 476, CA; Spicer v Smee [1946] 1 All ER 489.
188 Mint v Good [1951] 1 KB 517, CA.
189 Wringe v Cohen [1940] 1 KB 229, CA (followed in Mint v Good [1951] 1 KB 517, CA). The
importance of the rule in Wringe v Cohen has since been amplified by the imposition on
landlords of onerous obligations to maintain houses, let for fewer than seven years, in a state
of good repair (see Landlord and Tenant Act 1985, ss 11-16). On the other hand, the rule in
Wringe v Cohen does not apply to premises that do not lie on a highway, nor does it apply to
nuisances arising from acts of trespassers or processes of nature: Cushing v Peter Walker & Son
(Warrington and Burton) Ltd [1941] 2 All ER 693.
190 (1993) 25 HLR 650. To similar effect, see Stannard v Charles Pitcher Ltd [2002] BLR 441.
191 Cf Southwark London Borough Council v Tanner [2001] 1 AC 1, HL (D had not done
anything to the rented premises so as to render a disturbance to C inevitable: D not liable).
192 Brew Bros Ltd v Snax (Ross) Ltd [1970] 1 QB 612, CA. But note that the tenant’s covenant
to repair does not exonerate the landlord from liability for, as Sachs LJ observed (at 638): ‘the
test of an owner’s duty to his neighbour depends on the degree of control exercised by the
owner in law or in fact for the purpose of repairs’. And in this context it should be noted that
the repair obligations placed upon landlords under the Landlord and Tenant Act 1985, ss 11—
16 are made immutable.
193 Wilchick v Marks and Silverstone [1934] 2 KB 56. Cf the obiter view of Heath J in Payne v
Rogers (1794) 2 Hy Bl 350 that to hold the tenant liable would encourage circuity of action.
194 (1928) 140 LT 1, at 8, CA.
Nuisance 4\7
in any way affect any right of third parties, who are not parties or privy to such
contract.
Section 5. Must the interference emanate from the defendant’s

land?
The land from which the interference has its source will normally be in the ownership
or control of the defendant. Indeed, in so far as nuisance law is designed to provide a
means of regulating competing land uses, it might even be argued that land ownership
on the part of the defendant is as important as the classic requirement that the claimant
have a proprietary interest.'> Nonetheless, dicta abounds to the effect that the
defendant need not be the owner of the land from which the nuisance emanates. Thus,
in Sedleigh-Denfield v O Callaghan Lord Wright declared ‘the ground of responsibility’
to be merely ‘the possession and control of the land from which the nuisance
proceeds’.'*° And in Halsey v Esso Petroleum Co Ltd'®” the defendants were even held
liable in respect of the noise generated by their lorries driving along a public street late
at night.
Section 6. Defences
(A) Statutory authority

The fact that the activity giving rise to the interference complained of is authorised by
statute is the single most important defence in the law of private nuisance. Many
activities which interfere with the enjoyment of land are carried out by public or private
enterprises in pursuance of an Act of Parliament. But if the statute merely confers a
permissive power, then it has been held that the power must be exercised so as not to
interfere with private rights.'°* Whether the activity complained of is explicitly authorised
by statute, and whether any potential nuisance action is thereby defeated is a matter of
statutory interpretation.
In Allen v Gulf Oil Refining Ltd'”” D was authorised by statute compulsorily to
acquire land near Milford Haven for the purpose of constructing and operating
an oil refinery. C complained that the smell, noise and vibrations made by the
refinery constituted a nuisance. D pleaded the defence of statutory authority.
The House of Lords held that the claimants would first have to establish a nuisance,
and that the change in the local environment caused by authorising the operation of
195 In Miller v Jackson [1977] QB 966, at 980, CA, Lord Denning MR proclaimed that, ‘[iJt is the
very essence of a private nuisance that it is the unreasonable use by a man of his land to the
detriment of his neighbour’ (emphasis added).
196 [1940] AC 880, at 903, HL. See also J Lyons & Sons v Wilkins [1899] 1 Ch 255, CA; Hubbard
v Pitt [1976] QB 142, CA; Ward Lock & Co Ltd v Operative Printers’ Assistants’ Society (1906)
.22 TLR 327, CA; Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20.
197 [1961] 2 All ER 145.
198 Metropolitan Asylum District Managers v Hill (1881) 6 App Cas 193, HL.
199 [1981] AC 1001, HL.
the refinery was relevant to that issue.2” If a nuisance could be established, then the
company had to prove that it was an inevitable result of carrying on a refinery there.”°!
It follows from this that the defendant must use all due diligence in performing the
activity authorised by statute. If he fails so to do, he will be held to have exceeded the
level of damage for which he was granted immunity under the statute. So, in Tate &
Lyle Industries Ltd v Greater London Council,’ the defendants were held liable in
public nuisance where reasonable care in the design and erection of new ferry terminals,
which they had been authorised to build by statute, would have at least partially
avoided the siltation of the River Thames which damaged the claimants’ business.
One further matter that bedevils the defence of statutory authority occurs where the
defendant is a public authority. More particularly, the problem surfaces where the
public body is invested with a discretionary statutory power. Generally, that body will
not be liable in respect of its formulation of policy within the statutory power, but it
may be liable in respect of the negligent implementation of the policy finally settled
upon.”
(B) Prescription
The right to do something that would otherwise constitute private nuisance may be
acquired as an easement by prescription. In order to decide whether this defence
avails, one must look to the law of real property to identify whether the right claimed is
capable of constituting an easement. The most common way of acquiring an easement
is by 20 years’ overt and undisturbed user. One may, for example, acquire the right to
pour effluent into a stream, but not if it is done secretly.°™ Equally, one may acquire the
right do such things as discharge surface water,”” or rainwater from the eaves of one’s
house,”” onto a neighbour’s land. It is also well established that the user must be
continual. So, where there is a perpetual change in the amount of inconvenience
caused — as in the case of fumes or noise — it is doubtful whether an easement can be
obtained.”
200 This point was endorsed by Buckley J in Gillingham Borough Council v Medway (Chatham)
Dock Co Ltd [1993] QB 343, at 360 in relation to the (broadly) analogous defence of
authorisation by planning permission: ‘Prior to 1984 [these] roads had been relatively quiet
roads ... [but] I must judge the present claim in nuisance pursuant to the planning permission
for use of the dockyard as a commercial port’. But note that an injunction can exceptionally
be obtained to restrain D from engaging in a land use authorised by planning permission:
Wheeler v JJ Saunders Ltd [1995] 2 All ER 697. Cf the general position set out in Hunter and
discussed above.
201 In this respect, the House of Lords followed its earlier decision in Manchester Corpn v Farnworth
[1930] AC 171, HL, where a power station established under statute emitted poisonous fumes
that damaged C’s fields. This approach was again applied in Marcic v Thames Water Utilities Ltd
[2002] QB 929, CA.
202 [1983] 2 AC 509, HL. See also Department of Transport v North West Water Authority [1984]
AC 336, HL.
203 The distinction between policy making and operational errors was first adverted to in Anns v
Merton London Borough Council [1978] AC 728, HL. Whether such a distinction is juridically
tenable has since, however, been subjected to rigorous judicial challenge: see Rowling v Takaro
Properties Ltd [1988] AC 473, at 501, PC, per Lord Keith.
204 Liverpool Corpn v H Coghill & Son [1918] 1 Ch 307.
205 A-G v Copeland [1902] 1 KB 690, CA.
206 Thomas v Thomas (1835) 2 Cr M & R 34.
207 Hulley v Silversprings Bleaching and Dyeing Co Ltd [1922] 2 Ch 268.
Nuisance 419
One matter that is beyond doubt is that if the user is prohibited by statute, it cannot be
claimed as a prescriptive right.?°’ Furthermore, ‘acts which are neither preventable nor
actionable cannot be relied upon to found an easement’.2 Thus, where a defendant
confectioner had for more than 20 years made certain noises on his land, which then,
for the first time, interfered with the claimant doctor’s user of his land, the defendant
could not plead a prescriptive right.?'° It was held that as there had been no invasion of
a legal right before the consulting room was built, there were no steps that the claimant
could, or might, have taken to prevent the interference.
(C) The claimant’s conduct?'!

It is no defence that the claimant came to the nuisance by occupying the land adjoining
it?!’ Nor is it a defence that the nuisance has only arisen because the claimant has
chosen to use a particular part of his land: the law only protects the man in the reasonable
use of his land against those nuisances which the defendant has not acquired a
prescriptive right to commit.*!? Moreover, it may be assumed that the claimant has the
normal duty in tort to take reasonable steps to mitigate his loss. He should, for instance,
take reasonable steps to minimise the damage when his land is flooded in consequence
of his neighbour’s tortious conduct. The ordinary principles of causation apply in
nuisance law and, if the nuisance is caused by the claimant’s own acts, he cannot
recover.’'* The defences of consent and assumption of risk are also available and
Pwllbach Colliery Co Ltd v Woodman’"> illustrates the operation of the consent defence
in this context.
A lessor allowed his lessee to carry on the business of coal mining. The issue
was whether he could complain when the lessee’s non-negligent operations
caused coal dust to be deposited on other land owned by the lessor. The House
of Lords held that only if the terms of the lease could be construed as authorising
a nuisance was there any defence. Their lordships then pointed out that, since
the nuisance was not a necessary consequence of carrying on that trade, in the
absence of an express authorisation of the nuisance in the lease, the defence of
consent failed.
As regards the assumption of risk defence, Kiddle v City Business Properties Ltd”'°is
a case in point. There, the claimant complained of the damage caused to his shop when
flooding from the gutter carrying water from a part of the premises retained by the
defendant landlord occurred without negligence on the defendant’s part. It was held
that the tenant took the premises as he found them and must be deemed to have run
this risk. Accordingly, his action in nuisance failed.
208 Liverpool Corpn v H Coghill & Son Ltd [1918] 1 Ch 307.

209 Sturges v Bridgman (1879) 11 Ch D 852, at 863, CA, per Thesiger LJ (emphasis added).
210 (1879) 11 Ch D 852, at 863. ;
211 See also above for the inability of C to heighten his sensitivities in order to sue in nuisance.
212 Bliss v Hall (1838) 4 Bing NC 183; Miller v Jackson [1977] QB 966, CA (no defence to a
cricket club that the ground first became a nuisance when C built premises close to it).
213 Sturges v Bridgman (1879) 11 Ch D 852, CA; Elliotson v Feetham (1835) 2 Bing NC 134.
214 Cf the case in public nuisance: Almeroth v Chivers & Sons Ltd [1948] 1 All ER 53, CA.
215 [1915] AC 634, HL.
216 [1942] 1 KB 269.
Contributory negligencé on the part of the claimant might also, in principle, be raised
as a defence to an action in nuisance; at least where the nuisance arises out of negligent
conduct.?"’ There is certainly obiter dictum to this effect in the public nuisance case of
Trevett v Lee.?'*
(D) Other defences

The Fires Prevention (Metropolis) Act 1774 provides that, in an action brought in
respect of a fire, it is a defence to prove that the fire began accidentally.’'? But, as
Atkinson J decided in Spicer v Smee,” the defence has no application where the fire
was caused by the negligence of the defendant, or was intentionally created by him or
by those for whom he was responsible. Even when a fire starts accidentally, if the
defendant negligently allows it to grow into a raging fire, the Act will not afford him a
defence for the damage it later causes.””! Accordingly, the defence has no application
in nuisance law except, perhaps, where a person would be liable in nuisance even
though his conduct was neither intentional nor negligent.
As we saw earlier,” an occupier who unreasonably fails to avert a danger to his

neighbour arising out of an act of God will be liable in nuisance. Where, however, there
is an occurrence alleged by the claimant to be a nuisance, which in truth is an inevitable
accident, it is well established that no liability will attach.””’ But it is no defence that the
act of the defendant would not have been a nuisance but for the acts also of others,
provided that the defendant knew what the others were doing.”
Section 7. Remedies
(A) Damages
The measure of damages in nuisance is similar to that awarded for trespass to land.**
The claimant is entitled to full reparation for his loss. Where, for instance, a house (or
crops, or the like*”®) is destroyed or damaged, then the claimant will recover the difference
between the monetary value to him of his interest (whether he be landlord, tenant or
otherwise) before and after the event.””’ Where business loss is suffered in consequence
217 Query whether the courts would accept this defence where the nuisance was caused by D’s
deliberate and malicious conduct?
218 [1955] 1 All ER 406, at 412, CA, per Evershed MR.
219 Note that the Act applies generally, not merely to London: Filliter v Phippard (1847) 11 QB
347.
220 [1946] 1 All ER 489.
221 Goldman v Hargrave [1967] 1 AC 645, PC.
222 See section 4, above.
223 Tennent v Earl of Glasgow (1864) 2 M 22, HL.
224 Thorpe v Brumfitt (1873) 8 Ch App 650.
225 See ch 5, above. For an argument in favour of exemplary damages in private nuisance see
Murphy, ‘Noxious Emissions and Common Law Liability — Tort in the Shadow of Regulation’
in Lowry and Edmunds (eds), Environmental Protection and the Common Law (1999).
226 See Marquis of Granby v Bakewell UDC (1923) 87 JP 105 for a detailed calculation on this
basis of the value of fish destroyed by pollution of a stream.
227 Moss v Christchurch RDC [1925] 2 KB 750, Div Ct. And not the cost of restoring it to its
original state: Lodge Holes Colliery Co Ltd v Wednesbury Corpn [1908] AC 323, HL; C R
Taylor (Wholesale) Ltd v Hepworths Ltd [1977] 2 All ER 784 (C not entitled to recover the
cost of reinstating his destroyed billiard hall which he did not intend to use for that purpose
again — the basis of assessment was simply the reduced value of the premises).
Nuisance 42\
of the interference, whether by loss of custom?” or the cost of moving elsewhere,”

this is also recoverable in nuisance. Where, however, a hotel owner complained of loss
of custom caused by nearby building operations, the Court of Appeal reversed an
award of damages to the full extent of loss of custom, holding that a certain amount of
the interference was, in the circumstances, reasonable although likely to lead to some
loss of custom. The court therefore assessed what proportion of the business loss
was attributable to that excess of noise and dust which alone was actionable.2?? In
1966, in Overseas Tankship (UK) Ltd v Miiler Steamship Co Pty Ltd, The Wagon
Mound (No 2),”*' the Privy Council held that, in public nuisance, it is not enough that
the damage is a direct consequence of the wrongful act; it must be a foreseeable
consequence. Obiter dicta in the case stated this rule to be applicable also to private
nuisance.
The amount to be awarded by way of damages increases the longer the nuisance
continues. But curiously, the law does not treat this as the continuance of the original
nuisance complained of, but rather as a new and distinct nuisance. Thus, in one case
where a defendant imposed a strain on the claimant’s wall by piling earth against it and
was sued in nuisance, it was stated that ‘a fresh cause of action arises as each brick
topples down, and that there is a continuing cause of action until the root of the
trouble is eradicated’.**? Whether the continuance of the interference is characterised
as a fresh nuisance or as a prolongation of the original one is largely immaterial so far
as the claimant is concerned.*** He is much more interested in having the nuisance
abated and will, in most cases, seek an injunction. However, as we shall see in the next
section, an injunction is a discretionary remedy and the court has a statutory power’
to grant damages in /ieu of an injunction (thus enabling it to make an award that takes
account of future as well as past harm). The principles governing the exercise of the
court’s discretion were set out by Smith LJ in the leading case of Shelfer v City of
London Electric Lighting Co**> There it was stated that the court has jurisdiction to
grant damages in lieu where (i) the injury to the claimant is small, (ii) it is quantifiable
in money, (iii) it is capable of being adequately compensated in money, and (iv) it
would be oppressive to the defendant to grant an injunction.**° The insistence that the
harm complained of be small places an important restriction on the court’s ability to
228 Fritz v Hobson (1880) 14 Ch D 542.

229 Grosvenor Hotel Co v Hamilton [1894] 2 QB 836, at 840, CA, per Lindley LJ.
230 Andrae v Selfridge & Co Ltd [1938] Ch 1, CA.
PIS WTSI) WINES VC?
232 Maberley v Henry W Peabody & Co of London Ltd [1946] 2 All ER 192, at 194, per Stable J.
See also the acceptance of this approach by the House of Lords in Delaware Mansions Ltd v
Westminster City Council [2001] UKHL 55, [2002] 1 AC 321, per Lord Cooke.
233 It can, however, be a concern to D who merely continues a nuisance begun by his predecessor.
Yet where the nuisance has caused harm of a kind that now requires remedial work, the courts
will award damages that reflect the cost of that remedial work regardless of whether some of
the harm was occasioned prior to D ‘inheriting’ the nuisance: Delaware Mansions Ltd v
Westminster City Council [2001] UKHL 55, at [38], [2002] 1 AC 321, at [38], per Lord Cooke.
234 Supreme Court Act 1981, s 50. This power is discussed, at some length, in Buckley, The Law of
Nuisance (1996) pp 148-152. ;
235 [1895] 1 Ch 287, at 322-323, CA. In this case the court was dealing with the equivalent
provision to s 50 of the Supreme Court Act 1981 (Lord Cairns’ Act, s 2). The principles
enunciated have since been reiterated, however, in relation to the 1981 Act by Bingham MR
in Jaggard v Sawyer [1995] 2 All ER 189, at 203, CA.
236 This means, in effect, that D buys the right to commit the nuisance: see Tromans, “Nuisance
— Prevention or Payment’ [1982] CLJ 87 and O’Sullivan, ‘A Poor Reception for Television
Nuisance’ [1996] CLJ 184.
grant damages instead of an injunction.”” In addition, it seems from Elliott v London

Borough of Islington*** that a restrictive definition of what amounts to a small degree
of harm should be applied. In that case, the pressing of the defendant’s tree against the
claimant’s wall — causing it to move only a very few inches — was regarded as ‘very
considerable harm’. Furthermore, in relation to the fourth limb of the She/fer test, as
Bingham MR observed in Jaggard v Sawyer, ‘[i]t is important to bear in mind that the
test is one of oppression, and the court should not slide into application of a general
balance of convenience test’.”*”
(B) Injunction
An injunction is an order from the court directing the defendant to desist from the
future commission of any tortious act. It is the remedy most often sought in nuisance
cases and is granted on a discretionary basis. Thus, even where the claimant can
establish an actionable claim, he may nonetheless be refused an injunction. Broadly,
there are two factors which influence the courts in deciding whether or not to grant an
injunction: the gravity of the interference and the public interest.**’As regards the first
of these, the courts tend to view occasional interferences as insufficiently substantial
to warrant the grant of an injunction.
In Cooke v Forbes, for example, C used a certain bleaching chemical in making

cocoa-nut matting. Occasionally, emission of a noxious chemical from D’s plant
damaged C’s manufactures. Without prejudice to a claim in damages, the court
refused an injunction because the interference was only occasional."
An example of the role that can be played by the public interest is evident in the
judgment of Peter Gibson LJ in Wheeler v JJ Saunders Ltd.*** In that case, the nuisance
was caused by the defendant running a pig farm. In relation to the application for an
injunction, his Lordship said: ‘I can well see that in such a case the public interest must
be allowed to prevail and that it would be inappropriate to grant an injunction’ .**”
The fact that the claimant’s chief concern is with the future abatement of the nuisance
does not mean that he will not also seek damages (as we have seen) in respect of the
past harm that he has suffered. In consequence, the law of nuisance is complicated by
the fact that the claimant may often seek two remedies at once. Of particular note in this
context is the Canadian decision that, where both remedies are granted, any damages
must not include an element in respect of permanent depreciation in the claimant’s
237 Wood v Conway Corpn [1914] 2 Ch 47, CA.

238 [1991] 1 EGLR’ 167, CA:
239 [1995] 2 All ER 189, at 203, CA.
240 For a full account of the principles governing the exercise of this discretion see Buckley, The
Law of Nuisance (1996) ch 8.
241 (1867) LR 5 Eq 166. Once C has established that a substantial interference has occurred, and
is likely to recur, the burden is on D to adduce evidence of special circumstances why an
injunction should not be granted: McKinnon Industries Ltd v Walker (1951) 3 DLR 577, at 581,
PC, per Lord Simonds.
242 [1995] 2 All ER 697, at 711, CA. See also the similar view expressed by Buckley J in Gillingham
Borough Council v Medway (Chatham) Docks Co Ltd [1993] QB 343, at 364.
243 Cf the earlier Court of Appeal decision in Kennaway v Thompson [1981] QB 88, CA.
Nuisance 423
land: it is to be presumed that the injunction will be obeyed and the land will not
depreciate.7“4
Section 8. Public nuisance
(A) Nature of public nuisance

Public nuisance is not susceptible to any precise definition. The term covers a miscellany
of acts and omissions which ‘endanger the life, health, property, morals or comfort of
the public’ or, alternatively, ‘obstruct the public in the exercise or enjoyment of rights
common to all Her Majesty’s subjects’ .** Despite this definitional obscurity, two general
observations about the nature of public nuisance can be made. To begin with, it is clear
that, at least in principle, a public nuisance is first and foremost a criminal offence at
common law.**° Secondly, it is equally clear that a public nuisance may form the basis
of a civil action in three ways: by a relator action for an injunction (brought in the name
of the Attorney-General on behalf of a private citizen to suppress the criminal activity
of the defendant), by a local authority under section 222 of the Local Government Act
1972 or by an action in tort brought a by a private citizen who can show that he has
suffered ‘special damage’ beyond that suffered by the others of Her Majesty’s subjects
affected by the defendant’s interference.
The criminal law aspects of public nuisance are not relevant in a book on torts. Thus,
the focus here is upon the civil law actions which may be brought in this context.
(1) The relator action

If the defendant is responsible for a nuisance that affects a large number of citizens but
fails to occasion any of them special damage, then an individual citizen may seek to
persuade the Attorney-General to suppress the defendant’s activity on his behalf, by
way of a relator action for an injunction. To do so, the elements of the crime of public
nuisance must be established. In practice, this method of obtaining injunctive relief is
very seldom used.’ This is in large part explained by the fact that the Attorney-
General is unlikely to entertain an application for a relator action where the victim has
not experienced special harm; and where special harm has been suffered, the victim is
entitled to bring a civil action in his own name.
244 Macievich v Anderson [1952] 4 DLR 507 (Manitoba Court of Appeal).

245 Archbold’s Criminal Practice (1985) paras 27-44.
246 Most established public nuisances are now prohibited by statutes such as the various Public
Health Acts, the Food Act 1984 and the Highways Act 1980. See further Spencer, ‘Public
Nuisance — A Critical Examination’ [1989] CLJ 55, 76-80.
247 Spencer, in his thoroughgoing account of the modern usage of public nuisance, supplies evidence
that in a five-year span between 1978 and the end of 1982 only two applications for relator
actions were received by the Attorney-General: ‘Public Nuisance — A Critical Examination’
[1989] CLJ 55, fn 14.
(2) Local authority applications

Under section 222 of the Local Government Act 1972 a local’authority is empowered to
bring proceedings in its own name for injunctive relief where it considers it ‘expedient
to do so for the promotion and protection of the interests of the inhabitants’. This
provision extends to injunctive relief to prevent a public nuisance. Thus, in Nottingham
City Council v Zain (a minor),*** it was held that an injunction could be sought to
exclude a known drug-dealer from one of the city council’s housing estates.
(3) Civil actions for ‘special damage’

There are two situations in which a private citizen may mount a civil action for public
nuisance. The first concerns cases where the defendant is responsible for an
interference which bears the characteristics of a private nuisance except that it affects
a much greater number of people.” And here, just as in private nuisance, it is not a
prerequisite that the act itself be unlawful: the nuisance derives from the detrimental
effect of the act complained of. The second concerns cases where the interference
would not bear the key characteristics of a private nuisance in that it does not affect
the claimant’s land, or his use or enjoyment of it. Instead, the nuisance in such cases
amounts to an inconvenience occasioned to the public generally, but causes special
damage to the claimant (ie damage beyond that suffered by other members of the
public). Such nuisances typically involve obstructing, or creating a danger on the
highway.
Crucial to both kinds of public nuisance is the requirement that the claimant must
suffer, or be at risk of, ‘special damage’. Special damage — sometimes referred to as
‘particular damage’ — is a term almost as obscure in its meaning as public nuisance
itself.”°° Nonetheless, what is at least clear is that special damage must not be confused
with ‘special damages’, which latter term is used in personal injury negligence actions
to describe pecuniary losses incurred up to the date of the trial which must be specifically
pleaded and proved.
While it is difficult to supply a precise definition of special damage, it is possible to
advert to a number of established categories of such loss. Pecuniary loss stemming
from loss of business or custom, where the injury was of a ‘substantial character, not
248 [2001] EWCA Civ 1248, [2002] 1 WLR 607.

249 The required number of people will vary from case to case; but it is, at least clear that if it
affects a public right — such as a public navigation right — it is immaterial if the number of
persons suffering is quite small: Jan de Nul (UK) Ltd v NV Royal Belge [2000] 2 Lloyd’s Rep
700, affd [2002] EWCA Civ 209, [2002] 1 Lloyd’s Rep 583. Examples of such nuisances
include driving heavy lorries through residential streets: Gillingham Borough Council v Medway
(Chatham) Dock Co Ltd [1993] QB 343; blasting from a quarry causing vibrations, dust and
noise: A-G (on the relation of Glamorgan County Council and Pontardawe RDC) v PYA
Quarries Ltd [1957] 2 QB 169, CA; holding ‘acid-house parties’: R v Shorrock [1994] QB 279,
CA.
250 See Kodilinye, ‘Public Nuisance and Particular Damage in the Modern Law’ [1986] Legal
Studies 182. See also Scholl J’s earlier review of the authorities in Walsh v Ervin [1952] VLR
361; Jan de Nul (UK) Ltd v Axa Royale Belge SA (formerly NV Royale Belge) [2002] EWCA
Civ 209, [2002] 1 Lloyd’s Rep 583; Harper v G N Haden & Sons {1933] Ch 298; Benjamin
v Storr (1874) LR 9 CP 400; Wilkes v Hungerford Market Co (1835) 2 Bing NC 281 and Ricket
v Directors etc of the Metropolitan Rly Co (1867) LR 2 HL 175.
Nuisance 425
fleeting or evanescent’ has long been recognised as such a category.”*' But where
other members of the public have also suffered economic loss, it is more difficult for
the claimant to establish special damage, for he is able only to show the same kind of
damage as that suffered by the others. The claimant’s problem in such a case is that
the difference between his loss and that suffered by other citizens is merely one of
degree and not one of kind. Since the claimant's loss, albeit greater in degree than that
suffered by the generality of the public, is of the same kind, his action for public
nuisance will fail.** In addition to pecuniary loss, personal injury? and property
damage” have also been held to constitute special damage. So, too, have causing
inconvenience and delay, provided that the harm thereby caused to the claimant is
substantial and appreciably greater in degree than any suffered by the general public.?*°
Thus, a claimant could recover in public nuisance both for damage to his vehicle on
the highway and for interference with peaceful sleep in his adjoining house.”
The majority of public nuisance cases arise where the defendant either creates a danger
on, or obstructs,”** the highway.” As far as rendering the highway unsafe is concerned,
there is a long line of cases that establishes liability in public nuisance in respect of
walls,*® fences,”*' windows” etc that fall onto the highway from adjoining premises.
But other examples include leaving dangerous articles such as defective cellar flaps or
unlighted scaffolding there,’ or conducting operations off the highway which menace
the safety of those upon it.7
Cases involving a creation of danger on the highway help illustrate the rigid
categorisation of the law of torts. If someone falls over a projection on the forecourt
251 Benjamin v Storr (1874) LR 9 CP 400, at 407, per Brett J (C’s coffee shop lost custom when
D parked horse-drawn vans outside his premises); Lyons, Sons & Co v Gulliver [1914] 1 Ch
631, CA; Blundy Clark & Co Ltd v London and North Eastern Rly Co [1931] 2 KB 334, CA.
See also Caledonian Rly Co v Walker's Trustees (1882) 7 App Cas 259, HL (depreciation in the
value of land) and Tate and Lyle Industries Ltd v Greater London Council [1983] 2 AC 509, HL
(cost of dredging silted-up river in order to continue use of a ferry). In relation to economic
loss, a curious anomaly exists where the loss is caused by negligence on the part of D. Take, for
example, D whose lorry breaks down and blocks the highway because he has failed properly to
maintain it. If the action is framed in public nuisance it is likely to succeed, but if it is framed
in negligence, it will almost certainly fail for want of sufficient proximity to establish a duty
of care: Caparo Industries plc v Dickman [1990] 2 AC 605, HL. For criticism, see the
comments of Ambrose J in Ball v Consolidated Rutile [1991] Qd 524, at 546.
252 Martin v LCC (1899) 80 LT 866, CA.
253 Ricket v Directors etc of the Metropolitan Rly Co (1867) LR 2 HL 175, at 190 and 199, HL, per
Lords Chelmsford and Cranworth.
254 Castle v St Augustine’s Links Ltd (1922) 38 TLR 615.
255 Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145.
256 Walsh v Ervin [1952] VLR 361; Boyd v Great Northern Rly Co [1895] 2 IR 555.
257 Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145. But was Veale J correct in holding that
C should recover even though he was unlawfully using the road to park his car when it was
damaged?
258 Whether there is an obstruction is a question of fact: Harper v G N Haden & Sons [1933] Ch
2985 CA.
259 The same principles apply to navigable waterways: Tate & Lyle Industries Ltd v Greater
London Council [1983] 2 AC 509, HL; Rose v Miles (1815) 4M & S 101.
260 Mint v Good [1951] 1 KB 517, CA.
261 Harrold v Watney [1898] 2 QB 320, CA.
262 Leanse v Lord Egerton [1943] KB 323.
263 Penny v Wimbledon UDC and Iles [1899] 2 QB TPF ACIN
264 Castle v St Augustine's Links (1922) 38 TLR 615 (C lost an eye when a golf ball smashed the
window of his car). Cf Stone v Bolton [1950] | KB 201, CA (cricket ball escaping the cricket
ground not a public nuisance as it was an isolated event).
(not forming part of the public footpath) leading to a shop, then his rights are merely
those owed as an occupier to visitors to premises — heshas no action in public
nuisance.”® Should this happen on the footpath, however, it becomes a case derived
from public nuisance. And, if one deviates only slightly from the footpath in order to
pass an obstruction, and is injured while thus off the highway, this might be within the
area of public nuisance.”
As regards obstructing the highway, it is well established that temporary and reasonable
obstructions of the highway will not attract liability.
In Trevett v Lee,”**’ D, who had no mains connection, laid a hosepipe across the
highway ina time of drought in order to obtain a water supply from the other side
of the road. C, who tripped over it and suffered injury, failed in an action for
public nuisance since D’s user of the highway was reasonable ‘judged both
from their own point of view and from the point of view of the other members of
the public’.
Although an obstruction of the highway is only partial, it may nonetheless give rise to
liability in public nuisance. As Lord Evershed MR explained in Trevett v Lee, ‘[a]n
obstruction is something which permanently or temporarily removes the whole or part
of the highway from public use’.”®? Accordingly, where a vehicle is parked in such a
way as to narrow significantly the width of the road, its owner may be held liable in
public nuisance.?” The obstruction need not, of course, be caused by vehicles. A
crowd — such as men picketing an employer’s premises — may just as easily obstruct
the highway and form the basis of an action in public nuisance.’’' But where a
demonstration or picket takes place peacefully, the obstruction is nonetheless a
reasonable use of the highway??”
(B) The relationship between public nuisance and private nuisance

Though many of the decided cases on public nuisance — especially those involving
obstructions to, and dangers on, the highway — are clearly incapable of founding an
action in private nuisance, there are nonetheless, in certain respects, several important
points of connection between the two torts. First, where an interference is of a kind
capable of constituting a private nuisance — such as a disturbance caused by vibrations
265 Jacobs v LCC [1950] AC 361, HL; Bromley v Mercer [1922] 2 KB 126, CA (an unsafe wall
adjoining a highway which amounted to a public nuisance, collapsed, not onto the highway, but
onto a child playing on private land — the child was held to have no cause of action derived
from public nuisance); Creed v John McGeoch & Sons Ltd [1955] 3 All ER 123 (road merely
under construction, neither dedicated nor taken over by local authority; therefore not highway
nuisance).
266 Barnes v Ward (1850) 9 CB 392; Barker v Herbert [1911] 2 KB 633, CA.
267 [1955] 1 All ER 406, CA (applying the dictum of Romer LJ in Harper v G N Haden & Sons
[1933] Ch 298, at 320, CA). Whether it is a defence to say that the obstruction is reasonable
because it is for the public benefit is unsettled. In R v Russell (1827) 6 B & C 566 it was held
to be a defence, but the decision in this case was later doubted in R v Ward (1836) 4 Ad & El 384.
268 [1955] 1 All ER 406, at 412, CA, per Lord Evershed MR.
269 [1955] 1 All ER 406, at 409, CA (emphasis added).
270 A-G v Gastonia Coaches Ltd [1977] RTR 219; Dymond v Pearce [1972] 1 QB 496, CA.
271 News Group Newspapers Ltd vySOGAT ‘82 (No 2) [1987] ICR 181.
272 DPP v Jones [1999] 2 AC 240, HL.
Nuisance 427
or noise ~and it affects a sufficiently large class of HerMajesty’s subjects, the action
becomes curiously meaamorphosed from being one in private, to one in public nuisance.
The difference, as Denning LJ explained in A-G (on the relation of Glamorgan County
Council and Pontardawe RDC) v PYA Quarries Ltd” \ies in the fact that:
4 public nuisance is 4 nuisance which is so widespread in its range or so
indiscriminate in its effect that it would not be reasonable to expect one person
to take proceedings on his own responsibility to put a stop to it, but that it
should be taken on the responsibility of the community at large.
Unfortunately, dicta in the case was unhelpful in identifying what amounts to a
sufficiently large class of Her Majesty’s subjects: it was merely stated that it was a
question of fact whether the number of persons affected was sufficiently large.” This
Nass need not, however, be very large as much depends on the nature of the public
right interfered with. Ifthere is only a relatively smal) section of the public that take
advantage of such a right, the class affected need only be correspondingly small.7”
A sxeoond connection between private and public nuisance occurs where the invasion
of the claimant’s interest arises from the defendant adopting or continuing a nuisance
that was begun by a third party: the rules on who is deemed to be responsible for such
an interference are the same.” Thirdly, as we have seen, the courts will consider the
reasonableness of the defendant’s conduct in determining whether an action derived
from public nuisance may lie. Thus, whether one who has collided with a vehicle left
sanding without lights at night and obstructing a highway can sue will depend in part
on whether the vehicle has been there for a long time, and whether there was good
excuse for its being there.”
Despite these affinities,” public and private nuisance are quite separate torts: the
former is concerned with the protection of those who have a proprietary interest in the
land affected while the latter only exists where an inconvenience is caused to the
public generally. Equally, the distinction between the two torts is marked by the
unavailability of the defence of prescription in public nuisance’” and by the fact that
victims of private nuisances, able to dernonstrate a substantial interference, need not
prove more loss than their fellows. Finally, though it is well established that pure
economic loss is recoverable in public nuisance, there is, to date, no authoritative
statement on its recoverability in private nuisance. In Dunton v Dover District
273 {1957| 2 OB 169, at 190-191, CA.

274 [1957] 2 OB 169, at 144, CA, per Romer LJ.
275 Jan de Nul (UK) Lid v NV Royal Belge (2000 2 Lioyd’s Rep 700; affd [2002] EWCA Civ 209,
(2002] 1 Lioyd’s Rep 543, CA.
216 Sedleigh-Denfield vy O'Callaghan (1940\ AC 20, at 693 and 699, HL, per Lord Atkin (and
wee also at 907, per Lord Wright). Similarly, constructive (as opposed to actual) knowledge is
sufficient to secure 2 criminal conviction for public nuisance: R v Shorrock [1994] QB 279, CA
(applying Sedleigh-Denfield to convict a landowner who, before he went away for the weekend,
let his field to three people to hold a 15-hour ‘acid-house party’).
277 Trevett v Lee {1955] 1 All ER 406, CA; Ware v Garston Haulage Co Lid [1944] 1 KB 30, CA;
Maitland v Raisheck and RT and J Hewitt Ltd (1944) KB 689, CA. Similarly, in Stone v Bolton
[1950] 1 KB 201, CA, the isolated escape of a cricket ball was not sufficient to amount to a
public nuisance. ‘ ; ;
27% Interestingly, the Privy Council drew no distinction between public and private nuisance in
Overseas Tankship (UK) Lid v Miller Steamship Co Pty Ltd, The Wagon Mound (No 2) {1967}
J AC 617, PC.
279 Mott v Shoolbred (1875) LR 20 Eq 22.
Counci*® it was suggested by Griffiths J that economic loss consequent upon an

extant nuisance action — hotel bookings that were lost because of the nuisance — might
be recoverable. In relation to pure economic loss, however, there are only obiter
statements to the effect that it may be recovered in private nuisance.”*
.
One particular case in which it is necessary to distinguish private and public nuisance
concerns interferences with access to a highway or waterway. If the case is framed in
terms of the landowner’s inability to access the highway, the relevant tort will be
private nuisance. Where, however, the action is framed in terms of the loss of custom
— because access to the claimant’s premises has been obstructed — the action will lie in
public nuisance. The distinction is important, because in the former case, the private
nuisance preventing the claimant’s access, is treated as analogous to trespass and is
actionable per se.”*
(C) Remedies in public nuisance
(1) — Injunction
As we have already seen, where the victim of a public nuisance cannot establish
special damage, a relator action for an injunction may be brought by the Attorney-
General on his behalf. Alternatively, an injunction may (as we have also seen) be
sought by a local authority under-section 222 of the Local Government Act 1972 ‘the
promotion and protection of the interests of the inhabitants’. Finally, individual
applicants relying on their special damage are equally able to obtain injunctions in
public nuisance.’
(2) Damages
Most commonly, a claim in public nuisance will be for personal injuries or for pecuniary
losses sustained by people using a public highway. In addition, however, occupiers of
premises adjoining the highway may also recover in an action based on public nuisance
when they suffer special damage as a result of a nuisance on a highway. And this is the
case notwithstanding that the damage complained of is not suffered by them gua
users of the highway. For example, shopkeepers have succeeded in this tort where
access to their premises has been interfered with,’ or where their customers have
been subjected to noxious smells and darkened rooms as a result of the parking of
horses and carts outside their premises.”*°
280 (1977) 76 LGR 87.

281 See British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 2 All ER 1252; Ryeford Homes
Ltd v Sevenoaks District Council [1989] 2 EGLR 281.
282 Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343, CA (exclusive fishery rights alleged, but
not proven, to be interfered with by C depositing refuse in the river in which those fishery
rights existed).
283 Spencer v London and Birmingham Rly Co (1836) 8 Sim 193.
284 Fritz v Hobson (1880) 14 Ch D 542.
285 Benjamin v Storr (1874) LR 9 CP 400.
Nuisance 429
It is clear from the decision of the Privy Council in Overseas Tankship (UK) Ltd v
Miller Steamship Co Pty Ltd, The Wagon Mound (No 2)** that damages are available
subject to the same principle of remoteness of damage as applies in negligence. That
is, the claimant will only recover so far as the defendant ought to have foreseen the
type of loss suffered by the claimant.
There, C’s ship was damaged in a fire caused by D carelessly allowing oil to overflow
from D’s ship into the waters of Sydney Harbour. D was held liable in public nuisance,
but only because the fire on C’s ship was held to be a foreseeable consequence of D’s
wrongful act.
By contrast, in Savage v Fairclough,”*’ a pig farmer who had relied on the advice of an
expert agronomist was held not liable in respect of ensuing pollution of the claimant’s
water since such pollution had not in fact been foreseen, nor had it been reasonably
foreseeable.
Two further limitations exist with respect to the quantum of damages the claimant may
expect to receive. First, it was decided by the Court of Appeal in Gibbons v South West
Water Services Ltd—a case in which the a public water supply in Cornwall was seriously
polluted — that no matter how reprehensible the public nuisance, exemplary damages
will never be available. An important element in the court’s decision was the following
question (which it was unable to answer):
[I]n the case of a public nuisance affecting hundreds or even thousands of
[claimants] how can the court assess the sum of exemplary damages to be awarded
to any one of them to punish or deter the defendant without knowing at the
outset the number of successful [claimants] and the approximate size of the total
bill for exemplary damages?***
Equally, the claimant’s damages can be reduced by operation of the defences of
contributory negligence or volenti non fit injuria”*”
286 [1967] 1 AC 617, PC.

287 [2000] Env LR 183, CA. oy
288 [1993] QB 507, at 531, CA, per Sir Thomas Bingham MR. See also Law Commission Report,
Exemplary, Aggravated and Restitutionary Damages Law Com No 247 (1997).
289 Dymond v Pearce [1972] 1 QB 496, CA (motorcyclist collided with a lighted lorry parked on
a straight, wide section of highway but he was held to be the sole author of his injuries).
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CHAPTER |9
Rylands v Fletcher
The rule in Rylands v Fletcher' is probably the best known example of a strict liability
tort in English law and it derives from the 19th century case of that name.
D employed independent contractors to build a reservoir on his land. Through

the negligence of the independent contractors, disused shafts upon the site
which communicated with C’s mine beneath the reservoir were not blocked up.
On the filling of the reservoir, the water escaped down the shafts and flooded C’s
mine.
Although the defendants were neither themselves negligent nor vicariously liable for
the negligence of their independent contractors,’ they were nonetheless held liable
both by the Court of Exchequer Chamber and the House of Lords. Blackburn J, delivering
the judgment of the Court of Exchequer Chamber, said:*
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.
Lord Cairns in the House of Lords broadly agreed with this judgment, but he restricted
the scope of the rule to instances where the defendant made ‘a non-natural use’ of the
land.* Though seemingly innocuous at the time this addition to Blackburn J’s formulation
of the rule gave rise to one of the most vexed questions in relation to Rylands v
Fletcher liability: what is the essence of ‘a non-natural use’ of land? As we shall see in
section four of this chapter, there remains no clear answer to this question.
One instructive point is that Blackburn J did not consider himself to be making new
law. The following quotation encapsulates his thinking.
— (1866) LR 1 Exch 265; affd (1868) LR 3 HL 330.

2 For discussion of vicarious liability and liability in relation to independent contraectors, see ch
HS,
Ww (1866) LR 1 Exch 265, at 279-80.
4 (1866) LR 1 Exch 265, at 338-40.
The general rule, as above stated, seems on general principle just. The person whose
grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is
flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the
filth of his neighbour’s privy, or whose habitation is made unhealthy by the fumes and
noisome vapours of his feighbour’s alkali works, is damnified without any fault of his
own; and it seems but reasonable and just that the neighbour, who has brought
something on his own property which was not naturally there, harmless to others so
long as it is confined to his own property, but which he knows to be mischievous if it
gets on his neighbour’s, should be obliged to make good the damage which ensues if
he does not succeed in confining it to his own property.
Yet, close though the analogy with nuisance may appear,’ the fact remains that Rylands
v Fletcher was the starting point of a form of liability which, as developed by the
courts in subsequent decisions, was wider and quite different in kind to any that
preceded it.
This extension of liability gave rise to speculation whether or not some comprehensive
theory of strict liability for harm caused to persons by ultra-hazardous things was
being formulated. Such a theory, whatever attraction it may once have had, is certainly
no longer tenable after the interpretation put upon Rylands v Fletcher by the House of
Lords in Read v J Lyons & Co Ltd.’
The appellant, while working in the respondent’s factory, was injured by an
explosion there. No allegation of negligence was made by her against the
respondents, whom she sued in respect of her injuries. The basis of her claim
was that the respondents carried on the manufacture of high-explosive shells,
knowing that they were dangerous things.
The ground for the decision of the House of Lords in favour of the respondents was
that Rylands v Fletcher does not apply unless there has been an escape from a place
where the defendant has occupation or control over land to a place outside his control.®
But the importance of the case does not end there. The decision in Read v J Lyons &
Co Ltd constituted a denial of a general theory of strict liability for ultra-hazardous
activities: there is only liability for non-negligent escapes where the several
preconditions for Rylands v Fletcher liability (considered in the following sections)
are satisfied. Where these preconditions are not met, the claimant’s case can only be
predicated on the intentional or negligent conduct of the defendant.
Nn (1866) LR 1 Exch 265, at 280.

6 For an early account of the relationship between liability in nuisance and liability under the rule
in Rylands v Fletcher see Newark, ‘The Boundaries of Nuisance’ (1945) 65 LQR 480. See also
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264, at 298, HL, per
Lord Goff.
7 [1945] KB 216, CA; affd, [1947] AC 156, HL.
8 There are obiter dicta to the effect that the escape of a dangerous thing from D’s chattel,
located on a highway (Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, at
996) or from his vessel, situated on a navigable waterway (Crown River Cruises Ltd v Kimbolton
Fireworks Ltd [1996] 2 Lloyd’s Rep 533) is sufficient to give rise to Rylands liability. These
dicta are, however, difficult to sustain both in principle, and in the light of existing authority:
see Jones v Festiniog Rly Co (1868) LR 3 QB 733; Powell v Fall (1880) 5 QBD 597; West v
Bristol Tramways Co [1908] 2 KB 14, CA. Such actions, it is submitted, should sound in
negligence, not Rylands v Fletcher — which has always been a land based tort — unless, as in the
three cases cited, D has a statutory right to occupation of the public thoroughfare.
Perhaps the most remarkable characteristic of this rule has been its fluidity. Stated in
very broad terms by Blackburn J, it was at once modified in the case itself by the House
of Lords, who confined it to instances involving a ‘non-natural use’. But there
nonetheless followed its widespread application: often cases properly sounding in
nuisance alone were brought within the fold of Rylands v Fletcher. The rule was given
a greater measure of elasticity by the interpretation of ‘non-natural use’ by the Privy
Council in 1913, who defined it as ‘some special use bringing with it increased danger
to others, and [which] must not merely be the ordinary use of the land or such a use as
is proper for the general benefit of the community’.’ Although this concept may not be
quite so wide as that of ‘unreasonable user’ (applicable in private nuisance), it was
fluid enough to enable the House of Lords in Read v J Lyons & Co Ltd to doubt
whether the operating of a munitions works in wartime was a non-natural user, and
this, despite the fact that the House of Lords had held, 26 years earlier, that Rylands v
Fletcher did apply to an explosion from a munitions factory in wartime.'? Even after
1913, Rylands v Fletcher continued to be invoked freely; and often it was not sufficiently
sharply distinguished from nuisance.'' Then, in 1947 came the reaction in Read v J
Lyons & Co Ltd. It was made clear by this decision that those pre-1948 decisions of the
lower courts which had appeared to extend the original rule must now be closely
scrutinised before they could be accepted as good authorities.
Section 2. ‘Things’ within the rule

Blackburn J spoke of ‘anything likely to do mischief if it escapes’. These things must
not be summarily described as ‘dangerous’ and then equated (and, in turn, confused)
with those things which have been considered ‘dangerous’ in the context of negligence.
It would be wise to eschew the word ‘dangerous’ altogether since it is an inherently
protean concept. A simple example of the need for caution in this context can be
supplied by reference to the mischievous ‘thing’ in Rylands v Fletcher itself —1e water.
Water is, of course, not ‘dangerous’ per se, yet, as Du Parcq LJ observed in Read v J
Lyons & Co Ltd,'* what matters here is whether the thing is likely to do damage on
escaping to other land.'* Whether or not this involves personal danger is quite irrelevant.
Thus, filth and water are both ‘things’ within the rule.
It is equally true that the ultra-hazardous quality of the thing (in the sense that the
thing in question is inherently dangerous — like dynamite) is ofno moment. In Cambridge
Water Co Ltd v Eastern Counties Leather plc'* — the leading modern Rylands v Fletcher
authority — it was held by Lord Goff that:
9 Rickards v Lothian [1913] AC 263, at 280, PC.

10 Rainham Chemical Works Ltd v Belvedere Fish Guano Co [1921] 2 AC 465, HL. It has also
been held that the construction of (essential) large fuel installations on an airfield were a
natural use of the land because they, as integral to the airfield, were of benefit to the ‘national
community asa whole’: Ellison v Ministry of Defence (1996) 81 BLR 101, at 119, per Judge
Bowsher QC (emphasis added).
11. The most authoritative statement of the continuing affinity between the two torts is set out
by Lord Goff in Cambridge Water Co Ltd v Eastern Counties Leather ple [1994] 2 AC 264, at
298-9, HL. The remaining four Law Lords concurred in his speech.
12 [1945] KB 216, at 247, CA.
13. Cf Read v J Lyons & Co [1947] AC 156, at 176, HL, per Lord Porter.
14 [1994] 2 AC 264, HL.
[T]here is much to be said for the view that the courts should not be proceeding
down the path of developing such a theory [of liability for ultra-hazardous
activities] ... |incline to the view that, as a general rule, it is more appropriate for
strict liability in respect of operations of high risk to be imposed by Parliament,
than by the courts.'> *
In Read v J Lyons & Co Ltd,'* counsel argued that the thing must have the “capacity
for independent movement’ as well as being a potential cause of harm — so, eg, glass
would be outside the rule. Provided that an extension is made to include a thing likely
to give off something such as a gas, which itself has capacity for independent
movement, this contention has much to commend it, and there is some, though hardly
adequate, support for it in the cases."’
Things which have been held to be capable of giving rise to Rylands v Fletcher
liability include electricity,'* gas likely to pollute water supplies,'? explosives,” fire and
things likely to cause fires?! (including a motor vehicle whether the tank contains,” or
be empty of,” petrol), things likely to give off noxious gases or fumes,” water,”
sewage,” and slag heaps.’’ Cases holding planted yew trees”* and chair-o-planes” to
be within the rule are also probably sound so long as there is movement of the
mischievous thing beyond the boundary of the land under the defendant’s control.
Whether a decayed and rusty wire fence* and a flag-pole,*' have been rightly regarded
as being within the rule is doubtful.
A final, and interesting illustration of the kind of ‘things’ that may fall within the rule is
supplied by the case of A-G v Corke.* There it was held that the owner of land who
allowed caravan dwellers to live on that land was answerable on this principle for the
interferences which they perpetrated on adjoining land.*?
15 [1994] | All ER 53, at 76, HL, per Lord Goff.

16 [1947] AC 156, at 158, HL.
17 Eg, Wilson v Newberry (1871) LR 7 QB 31, at 33, per Mellor J: ‘things which have a tendency
to escape and to do mischief’.
18 National Telephone Co v Baker [1893] 2 Ch 186.
19 Batchellor v Tunbridge Wells Gas Co (1901) 84 LT 765.
20 Rainham Chemical Works Ltd v Belvedere Fish Guano Co [1921] 2 AC 465, HL; and CS gas
canisters: Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985.
21 Jones v Festiniog Rly Co (1868) LR 3 QB 733 (sparks from railway engine); Balfour v Barty-
King [1956] 2 All ER 555 (blowlamp), affd on other grounds [1957] 1 QB 496, CA.
22 Musgrove v Pandelis [1919] 2 KB 43, CA.
23 Perry v Kendricks Transport Ltd {1956] | All ER 154, CA.
24 West v Bristol Tramways Co [1908] 2 KB 14, CA; Halsey v Esso Petroleum Co Ltd [1961] 2 All
ER 145 (acid smuts).
25 Rylands v Fletcher (1868) LR 3 HL 330, HL; Western Engraving Co v Film Laboratories Ltd
[1936] 1 All ER 106, CA.
26 Humphries v Cousins (1877) 2 CPD 239.
27 Kennard v Cory Bros & Co Ltd [1921] AC 521, HL.
28 Crowhurst v Amersham Burial Board (1878) 4 Ex D 5.
29 Hale v Jennings Bros [1938] 1 All ER 579, CA.
30 Firth v Bowling Iron Co (1878) 3 CPD 254.
31 Shiffman v Grand Priory in British Realm of Venerable Order of the Hospital of St John of
Jerusalem [1936] 1 All ER 557.
32 [1933] Ch 89. In Smith v Scott [1973] Ch 314 undesirable tenants were held to be outside the
rule, because a landlord has no ‘control’ over the tenants.
33 On similar facts, liability has also been imposed under the principles of private nuisance: see
Lippiatt v South Gloucestershire Council [1999] 4 All ER 149, CA (travelers on D’s land were
using D’s land as a base for forays onto C’s land).
The last characteristic of those ‘things’ whose escape may give rise to liability under
the rule is that they must have been brought onto the land by the defendant. This final
characteristic applies only to ‘things artificially brought or kept upon the defendant’s
land’.4
Section 3. Parties
(A) Who may be sued?

Blackburn J said that the rule applies to a ‘person who for his own purposes brings on
his lands and collects and keeps there’ the thing in question. The thing may or may not
be something which in its nature is capable of being naturally there: what matters is
whether the particular thing has in fact been accumulated there. If, therefore, water
flows from A’s underground tunnels into B’s mines, whether by force of gravitation or
by percolation, A is not liable in Rylands v Fletcher for that escape if the water was
naturally on A’s land and he did nothing to accumulate it there.*° On the other hand,
there was liability in Rylands v Fletcher itself because steps had been taken by the
defendants to accumulate the water on their land by constructing the reservoir.*° The
cases where flooding of neighbouring land results from pumping or diverting water
from the land of the defendant to that of the claimant may be nuisance, or even perhaps
trespass. But they cannot be within Rylands v Fletcher if the defendant has not
artificially accumulated the water.*’ Similarly, the escape of rocks is outside the rule
since there has been no accumulation.** If, however, rocks are blasted in quarrying,
there may then be liability for accumulating the explosives.”
In the case of vegetation, assuming the other elements of the rule to be satisfied, it will
be important to consider whether that vegetation was planted there deliberately, for
the planting of it will constitute an accumulation.*° Giles v Walker,*' always assuming
that the case was decided on the basis of Rylands v Fletcher, which is not clear, may
be a relevant authority in this context.
D, in order to redeem some of his forest land, ploughed it up. Thereafter, thistles
grew all over the ploughed land. Thistle-down escaped from D’s land to C’s land,
where it seeded itself.
34 Bartlett v Tottenham [1932] 1 Ch 114, at 131, CA, per Lawrence LJ. It is probable that, by
analogy with nuisance, D who has not himself brought the thing on to the premises is within
the rule.
35 Wilson v Waddell (1876) 2 App Cas 95, HL.
36 And in Broder v Saillard (1876) 2 Ch D 692, where the water was brought onto the land in
connection with the stabling of the horses of D.
37 Eg, Palmer v Bowman [2000] 1 All ER 22, CA; Baird v Williamson (1863) 15 CBNS 376;
Whalley v Lancashire and Yorkshire Rly Co (1884) 13 QBD 131, CA. Cf Hurdman v North
Eastern Rly Co (1878) 3 CPD 168, CA.
38 Pontardawe RDC v Moore-Gwyn [1929] 1 Ch 656.
39 Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918) 34 TLR 500, CA. But why, if it is
not the explosives, but the rocks which have escaped?
40 Crowhurst v Amersham Burial Board (1878) 4 Ex D 5.
41 (1890) 62 LT 933. Cf Seligman v Docker [1949] Ch 53.
Finding that the thistles were ‘the natural growth of the soil’, the court held that this
was no tort.” Yet it seems, from an interjection of Lord Esher-MR, during the argument,
that the result would have been different had the court found that the defendant had
been responsible for the thistles having come onto his land. Had there been a finding
of fact that the ploughitig up of the land had caused the thistles to come onto, and
grow upon the defendant’s land, the requirement of artificial accumulation would have
been satisfied.*
Problems of responsibility for accumulation were also considered by the House of
Lords in Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd“
A and B contracted with the Ministry of Munitions to manufacture explosives
on their land. They formed a limited company, C Ltd, and arranged for C Ltd to
perform this contract for them on the land of A and B. C Ltd were thus the
licensees of A and B. Neighbouring landowners suffered damage to their land
caused by an explosion on the land of A and B while C Ltd were using it, and they
sued C Ltd as well as A and B.
It was decided that a licensee who himself accumulates something on the land of
another is liable for the consequences of that accumulation.* Further, the House of
Lords held that those who remain in occupation of land are also liable to landowners
injured by the escape of that which their licensee accumulates in discharge of a
contractual duty owed by the occupiers to a third party.
Lord Sumner further stated (obiter) that if ‘they [A and B] ... simply suffered others to
manufacture upon the site which they nevertheless continued to occupy’ they would
be liable for the consequences of an escape.*® On the other hand, Eve J in Whitmores
(Edenbridge) Ltd v Stanford" held that a landowner, upon whose land some other
person had a prescriptive right to accumulate water for his own purposes, would not
be liable under the rule. The extent to which an occupier is liable in respect of the
accumulations of his licensees cannot be regarded as settled, but it is relevant to
observe that in Rylands v Fletcher Blackburn J spoke only of a person who ‘for his
own purposes’ brings things on his land.** Thus, a local authority which is required by
42 But note the limited liability imposed in nuisance for damage resulting from the naturally
occurring dangerous condition of land: Leakey v National Trust [1980] QB 485, CA.
43 (1890) 62 LT 933 at 934. Observations by the Court of Appeal in Davey v Harrow Corpn
[1958] 1 QB 60, CA, support the view taken in the text.
44 [1921] 2 AC 465, HL.
45 Where, however, over 20 years had elapsed since the licensee had the right to enter and
accumulate water there, he was held not to be accountable for the escape of water, if he no
longer had control of the land: Westhoughton Coal and Cannel Co Ltd v Wigan Coal Corpn Ltd
[1939] Ch 800, CA.
46 [1921] 2 AC 465, at 480, HL.
47 [1909] 1 Ch 427.
48 (1866) LR 1 Exch 265, at 279. But see Humphries v Cousins (1877) 2 CPD 239 where an
occupier who was bound to receive sewage into drains on his land in circumstances where it was
presumably not collected for his own purposes was nonetheless held liable for an escape. On
the other hand, in Read v Lyons, Viscount Simon doubted ([1947] AC 156, at 170) whether D
making munitions in his factory, at the Government’s request in wartime brought things onto
his land ‘for his own purposes’. Gas, water and electricity boards, and inland waterways authorities
carrying out statutory duties, do not accumulate for their own purposes. Accordingly, Rylands
v Fletcher does not apply: Dunne v North Western Gas Board, [1964] 2 QB 806, CA; Boxes Ltd
v British Waterways Board [1971] 2 Lloyd’s Rep 183, CA.
statute to permit the discharge of sewage into its sewers is treated as responsible for
the accumulation of that sewage.’
A person who authorises another to commit a tort is normally also himself liable for
that tort. Thus, a lessor is liable in nuisance if he lets land for a particular purpose in
such circumstances that he is necessarily taken to have authorised the interference
which the lessee in consequence causes.” There were obiter dicta in Rainham
Chemical Works Ltd v Belvedere Fish Guano Co Ltd to the effect that the same rule
applies in Rylands v Fletcher — in short, that a defendant may be liable although he
does not occupy the land, if he has authorised another to accumulate something on it,
when the thing so accumulated later escapes.*!
What happens where the accumulation is not on the land owned or occupied by the
defendant? In Rigby v Chief Constable of Northamptonshire, Taylor J relying on a
passage in the then current edition of Clerk and Lindsell on Torts, suggested (obiter)
that there was, so far as he could see, ‘no difference in principle between allowing a
man-eating tiger to escape from your land onto that of another and allowing it to
escape from the back of your wagon parked on the highway’ .” It is submitted that this
view is wrong. How can the requirements that there be an artificial accumulation on,
and a non-natural use of, the defendant’s land be satisfied if both the accumulation
and escape take place elsewhere? The preferable view, it is submitted here, is that such
cases should be actionable, if at all, as negligent omissions.» The rule in Rylands v
Fletcher has long since been stated by the House of Lords to be no more than ‘a
principle applicable between occupiers in respect of their land’ .™
(B) Who may sue?

It is clear that this rule permits a landowning claimant, as in Rylands v Fletcher itself,
to sue in respect of damage to land. Similarly, in relation to damage to chattels,
Blackburn J later allowed a claim where sparks from a railway engine set fire to a
haystack;** and several other cases support the proposition that liability for damage to
chattels is recoverable. But what of those who suffer no such property damage, but
49 Smeaton v Ilford Corpn [1954] Ch 450.

50 See ch 18.
51 [1921] 2 AC 465, at 476 and 489, HL, per Lords Buckmaster and Parmoor. Cf A-G v Cory
Bros & Co (1918) 34 TLR 621, but not considered, at [1921] 1 AC 521, HL. Cf the obiter
dicta of Scrutton and Greer LJJ in St Anne’s Well Brewery Co v Roberts (1928) 140 LT 1, at 5
and 7, CA.
52 [1985] 2 All ER 985, at 996. There is a further obiter dictum to similar effect in Crown River
Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533, per Potter J.
53 Negligent omissions, however, are only infrequently actionable: see Murphy, ‘Expectation
Losses, Negligent Omissions and the Tortious Duty of Care’ [1996] CLJ 43. On the other
hand, creating an obvious source of danger, that is liable to be ‘sparked off? by a third party
may give rise to negligence liability: Haynes v Harwood [1935] 1 KB 146; Smith v Littlewoods
Organisation Ltd [1987] AC 241, at 272, HL, per Lord Goff (obiter); Topp v London Country
Bus (South West) Ltd [1993] 1 WLR 976, CA (noted in Murphy, ‘An Accident Waiting to
Happen?’ [1994] Tort Law Review 77). :
54 Read v Lyons [1947] AC 156, at 173, HL, per Lord Macmillan (emphasis added).
55 Jones v Festiniog Rly Co (1868) LR 3 QB 733. Cf Cattle v Stockton Waterworks Co (1875) LR
10 QB 453, at 457, per Blackburn J.
56 Eg, Midwood & Co Ltd v Manchester Corpn [1905] 2 KB 597, CA; Musgrove v Pandelis
[1919] 2 KB 43, CA; Collingwood v Home and Colonial Stores Ltd [1936] 3 All ER 200, CA.
Cf Read v J Lyons & Co [1947] AC 156, at 169, HL, per Viscount Simon.
merely personal injuries? It would appear that the question needs to be addressed in
two stages. ‘ vd
First, where the claimant is an occupier of land, Hale v Jennings Bros is a binding
Court of Appeal authority enabling occupiers to recover in respect of personal injuries.”
A tenant of a stall at a fair suffered personal injuries as the result of an escape of
D’s chair-o-plane. She was held to have a good cause of action based on Rylands
v Fletcher.
Secondly, what of the claimant who suffers personal injury but has no such proprietary
interest? Here, the law is less clear; both in relation to the general question of whether
such persons have a right to sue at all,°* and in relation to the narrower question of
whether they may sue in respect of personal injuries. In both Perry v Kendricks
Transport Ltd’ and British Celanese Ltd v AH Hunt (Capacitors) Ltd® it was
suggested, obiter, that even those with no proprietary interests are able to bring an
action for personal injuries on the basis of Rylands v Fletcher. Furthermore, there is
nothing in Blackburn J’s judgment in Rylands which appears to prohibit such a
possibility. Indeed, to the contrary, his lordship envisaged liability in respect of ‘all
the damage which is the natural consequence of its escape’.*' On this basis, it might
by argued that a proprietary interest in land is not (and never has been) a prerequisite
to recovery under this tort. On the other hand, however, it might be argued that,
following the Cambridge Water case — where Lord Goff was at pains to stress the fact
that Rylands liability was historically derived from private nuisance — the rule, like
nuisance,” should be available only to those who possess an interest in land affected
by the escape.™
Recognising the uncertainty surrounding this issue, and recognising that he was
likely to fuel further academic debate on the matter, Ward LJ, in Ribee v Norrie,®
57 [1938] 1 All ER 579, CA. See also Benning v Wong (1969) 43 ALJR 467 (Australia) to like
effect.
58 See McKenna v British Aluminium Ltd [2002] Env LR 30, at [20]-[28], where Neuberger J
questioned, in the context of a striking out action, (a) whether the increasingly close relationship
between nuisance and the rule in Rylands v Fletcher meant that the proprietary entitlement
rule in nuisance applied also to Rylands v Fletcher and (b), assuming it did, whether it was a
sustainable rule in the wake of the passage of the Human Rights Act 1998.
59 [1956] 1 All ER 154, CA.
60 [1969] 2 All ER 1252.
61 (1866) LR 1 Exch 265, at 279.
62 Contrast the position in nuisance where such an interest is a precondition of entitlement to
sue: Hunter v Canary Wharf Ltd [1997] 2 All ER 426, HL.
63 Though it was suggested in Khorasandjian v Bush [1993] QB 727, CA that a proprietary
interest was not required to bring an action in private nuisance, this view was authoritatively
rejected by the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655, HL; but it may
not withstand the passage of the Human Rights Act 1998 which, by giving direct effect to Art
8 of the European Convention on Human Rights, affords all citizens an equal right to respect
for their private lives. This point was recognised in McKenna v British Aluminium Ltd [2002]
Env LR 30, per Neuberger J.
64 The weakness in this argument is that it conflates nuisance law with the rule in Rylands v
Fletcher without any heed to the historical fact that, in nuisance, the emphasis is placed on C
having a proprietary interest, whereas under Rylands v Fletcher the emphasis rests upon D’s
property — it is there that an accumulation must occur, and from there that there must be an
escape.
65 [2001] PIQR P8, at [30], CA.
steadfastly refused to draw any firm conclusion on the recoverability of personal

injuries under the rule in Rylands v Fletcher. He contented himself by deciding the
case before him on the basis of negligence. The recovery of personal injuries thus
technically remains, at least where the claimant has no proprietary interest, an open
question.
In the absence of clear authority, it is submitted that the view that anyone suffering
personal injury may recover is to be preferred since the similarities between nuisance
and Rylands v Fletcher are, as we shall see later in this chapter, apt to be overstated.
Even so, it should be pointed out that several of their Lordships in Read v J Lyons &
Co Ltd expressed powerfully the obiter view that personal injuries were irrecoverable
under Rylands.°° To some extent, however, the distinction between personal injuries
and property damage is not always easy to sustain since, especially in the case of
personal injury to the occupier or holder of a proprietary interest, injury to the person
might be seen to merge into a general injury to the proprietary interest as a whole.”
A final question in this context is whether the claimant who suffers pure economic loss
is able to claim for his losses under the rule in Rylands v Fletcher. Here, too, the law is
somewhat uncertain. It was held in Weller & Co v Foot and Mouth Disease Research
Institute® that the escape of a virus was not actionable by the claimant, a cattle
auctioneer, when it caused a loss of profit to his business after making a third party’s
cattle unsaleable. But in the case of Ryeford Homes v Sevenoaks District Council,”
the possibility of recovery for pure economic loss was again mooted, as a preliminary
issue, and not ruled out. There, Judge Newey QC expressed the view that pure economic
loss was, in principle, recoverable under the rule in Rylands v Fletcher so long as it
was ‘a sufficiently direct result of an escape of water from sewers’.’”” This view is
thought to be correct, and it is entirely consistent both with Blackburn J’s judgment in
Rylands v Fletcher and the decision in the Weller case.”
Section 4. The non-natural use of land

Blackburn J said that the rule applied only to a thing ‘which was not naturally there’.”
In the House of Lords, Lord Cairns used more ambiguous words which have since
been construed as meaning” that the defendant is only answerable if, in bringing the
66 [1947] AC 156, at 173, 178 and 180-1, HL, per Lords Macmillan, Porter and Simonds.
67 See the analysis of Hunter v Canary Wharf in ch 18.
68 [1966] 1 QB 569. See also, in similar vein, Cattle v Stockton Waterworks Co (1875) LR 10 QB
453 (escape of water which made it more expensive for C to carry out his contract to construct
a tunnel; not actionable).
69 [1989] 2 EGLR 281.
70 On the facts, however, D was able to invoke the defence of statutory authority (see post). For
a contrary, obiter, suggestion: see the unconvincing, and slightly muddled, account provided at
first instance in Anglian Water Services Ltd v Crawshaw Robbins & Co Ltd 2002 WL 31523191,
at [149], per Stanley Burnton J.
71 The fact that the auctioneer’s loss in Weller was contingent upon the cattle owners loss
rendered the loss of profit from the would-be auctions an indirect, and hence irrecoverable,
economic loss. ’ ; ;
72 Viscount Simon in Read v Lyons [1947] AC 156, at 166, HL, described this as ‘a parenthetic
reference to’ the test of Lord Cairns.
73 (1868) LR 3 HL 330, at 337-40. See Williams, ‘Non-natural use of land’ [1973] CLJ 310.
thing onto his land,” he is making ‘a non-natural use’ of the land. The expression ‘non-
natural use’ is very flexible and the courts are afforded a great deal of latitude in
construing whether the defendant has engaged in a ‘non-natural use’. The form in
which Lord Moulton, on behalf of the Privy Council, expressed this rule in Rickards v
Lothian emphasised this flexibility.”* He said: *[i]t must be some special use bringing
with it increased danger to others, and must not merely be the ordinary use of the land
or such a use as is proper for the general benefit of the community’. Viscount Simon
in Read v J Lyons & Co Ltd thought this statement to be ‘of the first importance’”’ and
Lord Porter said:”*
each seems to be a question of fact subject to a ruling of the judge as to whether
... the particular use can be non-natural, and in deciding this question | think that
all the circumstances of the time and place and practice of mankind must be
taken into consideration so that what might be regarded as ... non-natural may
vary according to those circumstances.
The current tendency is to interpret ‘non-natural use’ narrowly, and many earlier cases
may no longer be followed. For instance, in Read v J Lyons & Co Ltd, despite the
contrary previous decision of the House of Lords in Rainham Chemical Works Ltd v
Belvedere Fish Guano Co,” it was doubted whether building and running a munitions
factory on land in wartime was a non-natural use.*’ Similarly, despite the words of Lord
Moulton in Rickards v Lothian concerning uses that bring a ‘general benefit to the
community’, Lord Goff emphatically denied the fact that the generation of employment
for a local community was sufficient to transform the storage of chemicals used in the
tanning industry into a natural use of the land. He said:
I myself, however, do not feel able to accept that the creation of employment as
such, even in a small industrial complex, is sufficient of itself to establish a
particular use as constituting a natural or ordinary use of land.*!
Beyond this, his Lordship offered little to clarify the meaning of the term ‘non-natural
use’. Instead of taking the opportunity to do so in Cambridge Water, he declined to
say more than that he did not consider it necessary to redefine the phrase in that
context since ‘the storage of chemicals on industrial premises should be regarded as
an almost classic case of non-natural use’.
Notwithstanding the crepuscular haze that continues to overhang the meaning of
non-natural use of land, the following instances can confidently be stated to be natural
uses of land: water-pipe installations in buildings;*’ growing trees, even though planted
by the defendant, so long as they are not poisonous;“* working mines and minerals on
74 What matters is whether the accumulation (as distinct from the escape) is a non-natural use:
Read v Lyons, supra, at 186, per Lord Uthwatt.
75 [1913] AC 263, at 280, PC.
76 [1913] AC 263, at 280, PC. It has since been qualified that this means the ‘national community
as a whole’: Ellison v Ministry of Defence (1996) 81 BLR 101, at 119, per Judge Bowsher QC.
77 [1947] AC 156, at 169, HL.
[1947] AC 156, at 176.
79 [1921] 2 AC 465, HL.
[1947] AC 156, at 169-70 and 173, HL, per Viscount Simon and Lord Macmillan.
[1994] 1 All ER 53, at 79, HL.
82 [1994] 1 All ER 53, HL (emphasis added).
83 Rickards v Lothian [1913] AC 263, PC; Tilley v Stevenson [1939] 4 All ER 207, CA.
84 Noble v Harrison [1926] 2 KB 332, Div Ct.
Rylands v Fletcher 44|
land;* building or pulling down walls;* lighting a fire in the fireplace of a house;*’
installing necessary wiring for electric lighting;** storing metal foil in a factory;*”
supplying gas to flats in a tower block.” The provision for sewage disposal by a local
authority,”' and the escape from a ship of generated steam are probably also natural
uses.”’ By contrast, it has been held that the storing of water, gas and electricity in bulk
in mains, and the like,” the use of a blowlamp to thaw pipes in a loft™ and the storage
of ignitable material in a barn” constitute non-natural uses of the land. It is difficult to
resist the conclusion that the notion of ‘non-natural use’ is presently a narrow one,
and that the current interpretation of the term is likely to restrict the scope of application
of the rule in Rylands v Fletcher.
Section 5. Escape
According to the orthodox view, an explosion which injures a claimant within the
factory where the explosion occurs is outside the rule since there must be an ‘escape
from a place where the defendant has occupation of, or control over, land to a place
which is outside his occupation or control’.*° Equally, a yew tree that poisons a horse
which eats its leaves by reaching its head over onto the land of the defendant is
outside the rule since the ‘dangerous’ leaves never go beyond the boundary of the
defendant’s land.”’ By contrast, where something escapes from one place of
entertainment in a fairground to a stall tenanted by another fairground operative (but
still within the fairground), there is, apparently, a sufficient escape.”
In Midwood & Co Ltd v Manchester Corpn” one of the two grounds of liability was
Rylands v Fletcher.
85 Rouse v Gravelworks Ltd [1940] 1 KB 489, CA.

86 Thomas and Evans Ltd vy Mid-Rhondda Co-operative Society Ltd [1941] 1 KB 381, CA; St
Anne's Well Brewery Co v Roberts (1928) 140 LT 1, CA.
87 Sochaski v Sas [1947] 1 All ER 344. Ditto holding a torch, at the top of the opening of a grate
in order to test chimney draught: J Doltis Ltd v Isaac Braithwaite & Sons (Engineers) Ltd
[1957] 1 Lloyd’s Rep 522.
88 Collingwood v Home and Colonial Stores Ltd [1936] 3 All ER 200, CA.
89 British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 2 All ER 1252; Mason v Levy Auto
Parts of England Ltd [1967] 2 QB 530 (storage of spare motor parts and engines; having
regard to quantities of combustible material, manner of storage and character of neighbourhood).
90 British Gas plc v Stockport Metropolitan Borough Council [2001] Envy LR 44, CA.
91 Pride of Derby and Derbyshire Angling Association v British Celanese Ltd [1953] Ch 149, at
189, CA, per Denning LJ. Cf Smeaton v Ilford Corpn [1954] Ch 450, at 470, per Upjohn J and
Ryeford Homes Ltd v Sevenoaks District Council [1989] 2 EGLR 281.
92 Howard v Furness Houlder Argentine Lines Ltd and A and R Brown Ltd [1936] 2 All ER 781.
93 Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108, PC;
Western Engraving Co v Film Laboratories Ltd [1936] 1 All ER 106, CA (water in unusual
quantities brought onto land for manufacturing purposes of D).
94 Balfour v Barty-King [1956] 2 All ER 555; affd on other grounds [1957] 1 QB 496, CA.
95 E Hobbs (Farms) Ltd v Baxenden Chemical Co Ltd [1992] 1 Lloyd’s Rep 54.
96 Read v J Lyons & Co [1947] AC 156, at 168, HL, per Viscount Simon.
97 Ponting v Noakes [1894] 2 QB 281.
98 This point was essential to the decision in Hale v Jennings Bros [1938] 1 All ER 579, CA,
although it may not have been argued. Similarly, an escape to the lower part of the same
building is sufficient: J Doltis v Isaac Braithwaite & Sons (Engineers) Ltd [1957] 1 Lloyd’s Rep
522. The key to these cases appears to be an escape onto land under another’s control,
regardless of property ownership.
99 [1905] 2 KB 597, CA.
After an explosion in a cable belonging to, and laid by, D in the highway,
inflammable gas escaped into C’s nearby house and set fire to its contents.
In Charing Cross Electric Supply Co v Hydraulic Power Co,' the Court of Appeal,
relying on this case, held,that there was a sufficient escape when water from a main,
laid by the defendants under the highway, escaped and damaged the claimant’s electric
cable which was near to it and under the same highway. The House of Lords in Read
v J Lyons & Co Ltd did not overrule these cases, and pointed out that there was in
each of them an escape onto property, over which the defendant had no control, from
a container which the defendant had a licence to put in the highway.'®' On the other
hand, the proposition that the rule also extends to cases where the defendant has no
such licence in respect of a public thoroughfare is thought to be wrong.'”
The actual harm wrought by the escape need not be immediately caused by the thing
accumulated. So, for example, it was held in Kennard v Cory Bros & Co that where
parts of a coal slag heap escaped and their pressure on a third party’s quarry spoil
caused that spoil to damage the claimant’s land, the escape requirement of Rylands v
Fletcher was satisfied.'”
Section 6. Foreseeability of harm

Since the important decision in the Cambridge Water case, it is clear that foreseeability
of harm is required if a claimant is to succeed in an action based on Rylands v Fletcher.
The facts in that case were as follows.
Solvents which had been used by D in their tannery for many years had a history
of being spilt onto the floor of D’s factory. From there, they seeped into a natural
groundwater source drawn upon by C in order to fulfil its statutory duty to
supply drinking water to the inhabitants of Cambridge. The seepage caused the
water to become contaminated to the extent that it was unwholesome according
to European Community standards. No-one had supposed that this contamination
would take place, mainly because of the volatility of the solvents which it had
been thought had simply evaporated from D’s factory floor.
A unanimous House of Lords held the defendants not to be liable on the basis of the
unforeseeability of the harm caused to the claimant’s water supply. Lord Goff, who
delivered the only full speech in the case, stated that: ‘foreseeability of damage of the
relevant type should be regarded as a prerequisite of liability in damages under the
rule’.'** What his Lordship failed to make clear, however, is whether damage had to be
foreseeable (a) in terms of the kind of harm alone or (b) in terms of both an escape
100 [1914] 3 KB 772, CA.

101 [1947] AC 156, at 177, HL, per Lord Porter. Cf Viscount Simon, at 168 and Lord Simonds, at
183. See also Hillier v Air Ministry (1962) Times, 8 December (cows electrocuted by underground
electric cable; liable within rule).
102 See the obiter suggestion of Taylor J in Rigby v Chief Constable of Northamptonshire [1985]
2 All ER 985, at 996 to this effect (police fired CS gas canisters into C’s shop in order to flush
out a psychopath who had entered those premises). See also Crown River Cruises Ltd v
Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533 (escape from a vessel on a navigable
waterway).
103 [1921] AC 521, at 538, HL, per Viscount Finlay.
104 [1994] 1 All ER 53, at 75, HL.
occurring and harm being thereby caused. In relation to the former notion of
foreseeability of harm, the test would be akin to the one used to determine the remoteness
of damage in negligence and nuisance.' If the second test were used — ie if the
foreseeability of harm were not simply gauged by reference to the potentially injurious
nature of the accumulated substance, but also by reference to the likelihood of its
escape — then foreseeability in this sense would undermine the strictness of Rylands
liability by introducing a fault requirement: to insist on the foreseeability of the escape
is to hinge liability upon the defendant’s failure to confine something the escape of
which he ought to have anticipated and exercised due diligence to contain.'°° Thus,
even though his Lordship failed to make absolutely clear which model of foreseeability
he favoured, it has since been suggested, obiter,'”’ that it was the former; especially in
the light of his Lordship pointing out, elsewhere in his speech, that the rule is one of
strict liability in that liability may attach ‘notwithstanding that [the defendant] ... has
exercised all reasonable care and skill to prevent the escape’.'°* Equally, in Hamilton v
Papakura District Council the Privy Council also emphasised the need to establish
the foreseeability of the relevant damage.!”
Section 7. Defences
(A) Statutory authority
Sometimes, public bodies storing water, gas, electricity and the like, are by statute
exempted from liability so long as they have taken reasonable care. It is a question of
statutory interpretation whether, and, if so, to what extent, liability under Rylands v
Fletcher has been excluded. Only if there is a statutory duty (as opposed to a mere
permission) to perform the hazardous activity will there be a defence. Thus, in Green
v Chelsea Waterworks Co,''® there was no liability when a water main burst because
the Waterworks Company was under an obligation to keep the main charged at high
pressure making a damaging escape an inevitable consequence of any non-negligent
burst. By contrast, the mere statutory permission to provide a water supply was not
enough to afford the defendants immunity.
Smeaton v Ilford Corpn provides a further example of the statutory authority defence
in operation.'"'
Sewage accumulated by D in their sewers overflowed onto the land of C in
circumstances which were held to constitute neither nuisance nor negligence.
According to section 31 of the Public Health Act 1936, under which D had acted
in receiving the sewage: ‘A local authority shall so discharge their functions ...
105 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd, The Wagon Mound [1961]
AC 388, PC. For an argument that it may be a broader test in Rylands see McIntyre, “Liability
for Asbestos Related Injury’ (1997) 4 Irish Planning and Environmental Law Journal 83.
106 See, eg, Bolton v Stone [1951] AC 850, HL.
107 Ellison v Ministry of Defence (1996) 81 BLR 101. See also Wilkinson, “Cambridge Water
Company v Eastern Counties Leather plc: Diluting Liability for Continuing Escapes’ (1994)
57 MLR 799.
108 [1994] 1 All ER 53, at 71, HL.
109 [2002] UKPC 9 (New Zealand).
110 Eg, Green v Chelsea Waterworks Co (1894) 70 LT 547, CA.
111 [1954] Ch 450.
as not to create a nuisance’. In interpreting this to mean that D were absolved

from liability provided they did not create a nuisance, the court held that D had
a defence under the statute to an action based on Rylands v Fletcher.
A final point in this context is that the defence only operates in respect of Rylands v
Fletcher liability. So, if the reason for the escape is the defendant’s negligence, the
presence of a statutory duty to perform the hazardous activity will not afford a defence.
This begs the question: who is to prove the absence of negligence, the claimant or the
defendant? There is no English authority on the point but a majority decision of the
High Court of Australia once held the onus to lie with the claimant.'!” It is submitted
that this decision has little to commend it, for, according to Blackburn J’s famous
dictum in Rylands v Fletcher, a defendant is ‘prima facie answerable for all the damage
which is the natural consequence of [the thing’s] ... escape’.'"
(B) Consent of the claimant

If the claimant has permitted the defendant to accumulate the thing the escape of
which is complained of, then he cannot sue if it escapes.''* For the purposes of this
defence, implied consent will clearly suffice. Thus, a person becoming the tenant of
business premises at a time when the condition or construction of adjoining premises
is such that an escape is likely to ensue is deemed to have consented to the risk of
such an event actually happening. This defence was the crux of Kiddle v City Business
Properties Ltd,''* where an overflow of rainwater from a blocked gutter at the bottom
of a sloping roof in the possession of the landlord, and above the tenant’s premises,
damaged the stock in the tenant’s premises.''°
If the accumulation benefits both claimant and defendant, this is an important element
in deciding whether the claimant is deemed to have consented.''’ Where, therefore, for
the benefit of the several occupants of a building, rainwater is collected on the roof,''®
or a water-closet is installed,''? or water pipes are fitted,'*° the several occupants are
presumed to have consented. On the other hand, the defence does not seem to be
available as between a commercial supplier of gas (in respect of gas mains under the
highway) and a consumer in premises adjoining the highway.'?' In any event, an
112 Benning v Wong (1969) 43 ALJR 467. Since then, Australian law has ceased to recognise
liability under the rule in Rylands v Fletcher.
113 (1866) LR 1 Exch 265, at 280.
114 Kennard v Cory Bros & Co Ltd [1921] AC 521, HL.
115 [1942] 1 KB 269.
116 The principle of implied consent does not apply, however, where C and D are not in a tenant-
landlord relationship: Humphries v Cousins (1877) 2 CPD 239.
117 Peters v Prince of Wales Theatre (Birmingham) Ltd [1943] KB 73, CA. Where C has, by
inference, consented to receiving the benefit of D’s watercourse, but contends he has not
consented to a negligent accumulation of water, C must prove negligence: Gilson v Kerrier
RDC [1976] 3 All ER 343, CA.
118 Carstairs v Taylor (1871) LR 6 Exch 217.
119 Ross v Fedden (1872) LR 7 QB 661.
120 Anderson v Oppenheimer (1880) 5 QBD 602, CA (the reasoning is muddled, but this is the
most likely basis of the decision).
12 — Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108, at 120,
IAC.
occupier will not be presumed to have consented to installations being left in a

dangerously unsafe state.!??
(C) Contributory negligence

Where the claimants worked a mine under the canal of the defendant, and had good
reason to know that they would thereby cause the water from the canal to escape into
this mine, it was held that the claimants could not sue in Rylands v Fletcher when the
water actually escaped and damaged their mine. Cockburn CJ described the matter
thus: ‘the plaintiffs saw the danger and may be said to have courted it’.'23 Where the
claimant is contributorily negligent, the apportionment provisions of the Law Reform
(Contributory Negligence) Act 1945 will now clearly apply. Further, as was said in
Eastern and Southern African Telegraph Co Ltd v Cape Town Tramways Co Ltd, ‘a
man cannot increase the liabilities of his neighbour by applying his own property to
special uses, whether for business or pleasure’.'*4 In that case, the claimant, who
complained that the tramways of the defendant caused electrical interference with the
receipt of messages through his submarine cable, failed in his action because no
damage to the cable itself was caused. The claimant suffered loss only because he
relied on the cable for the transmission of messages.'”°
(D) Act of third parties: Rylands v Fletcher or negligence?

What must next be considered is whether it is a defence that, although the defendant
brought the thing onto his land, it has only escaped through the act of a third party. It
is evident from Rylands v Fletcher itself that the defendant is liable for an escape
attributable to his independent contractors.'*° Further, there is weighty support for the
proposition that the defendant is liable for escapes caused by any other third party
where the defendant ought reasonably to have foreseen the act of that third party and
had enough control of the premises to be able to prevent it. The proprietor of a
chair-o-plane was accordingly held liable for the escape of a chair caused by a
passenger’s tampering with it;'?’ the owner of a flag-pole was also liable when small
children caused the pole to fall and injure the claimant.'** Similarly, a gas company
laying a main in a highway were liable for damage caused by an explosion of gas when
the surrounding earth subsided due to a third party’s subjacent mines.'”
122 A Prosser & Sons Ltd v Levy [1955] 3 All ER 577, CA.
123 Dunn v Birmingham Canal Navigation Co (1872) LR 7 QB 244, at 260; affd LR 8 QB 42, Ex
Ch. (Note that at the time of this decision contributory negligence was a complete defence.)
124 [1902] AC 381, at 393, PC. Cf Hoare & Co v McAlpine [1923] 1 Ch 167, which left open the
question whether C who complains that his buildings have been damaged could be met by the
plea that they were damaged only because they were dilapidated buildings having insecure
foundations.
125 This decision may, however, be better understood in terms of C’s loss not being a sufficiently
direct consequence of the escape.
126 See ch 25 for separate treatment of independent contractors.
127 Hale v Jennings Bros [1938] 1 All ER 579, CA.
128 Shiffman v Grand Priory in British Realm of Venerable Order of the Hospital of St John of
Jerusalem {1936] 1 All ER 557, at 561, per Atkinson J (obiter regarding Rylands v Fletcher).
129 Hanson v Wearmouth Coal Co Lid and Sunderland Gas Co [1939] 3 All ER 47, CA.
On the other hand, in Ritkards v Lothian, the defendant was not liable where flooding
of the claimant’s premises was caused by an unknown third party who had maliciously
turned on a water tap in the defendant’s premises and blocked the waste pipe of the
lavatory basin.'*? So, too, was there immunity in Box v Jubb where the defendant’s
reservoir overflowed wlten a third party, conducting operations higher up the stream
supplying it, discharged downstream an unusually large volume of water without any
warning.'*!
There has been a tendency for these two cases to be taken to support the view that
once the defendants have proved that the escape was the act of a stranger ‘they avoid
liability, unless the claimant can go on to show that the act which caused the escape
was an act of the kind which the owner could reasonably have contemplated and
guarded against’.'** It is the present submission, however, that although the case law
itself clearly supports such a proposition, it has nonetheless been erroneously decided.
It is not suggested that the actual decisions in the two cases are wrong. Rather, it is
contended that the legal doctrine according which they ought to have been decided is
mistaken: they are, by nature, more in line with negligence, not Rylands, principles.
The reasoning for this assertion is as follows.
Since Rylands v Fletcher is a strict liability tort, it follows that negligence in the narrow
sense (ie, the breach of a duty of care) plays no part in determining liability. This much
was made abundantly clear by Lord Goff in Cambridge Water v Eastern Counties
Leather pic when he said: ‘the defendant will be liable for harm caused to the claimant
by the escape, notwithstanding that he has exercised all reasonable care and skill to
prevent the escape from occurring’.'** In other words, and contrary to the view in
Perry v Kendricks,'** just quoted, it should not matter whether the defendant ‘could
reasonably have contemplated and guarded against’ the intervention of a third party.
The better approach is to say that such cases have nothing to do with Rylands v
Fletcher. In essence, they do not involve a failure to control (that is, keep in) a dangerous
thing (Rylands); they centre, instead, upon the question of whether there was a failure
to control the unforeseeable harmful acts of third parties (negligence). The distinction
between these two classes of negligent omission was staunchly made by the House of
Lords in Smith v Littlewoods Organisation Ltd'*
It is also quite clear that Rylands v Fletcher (which is concerned with escapes) is to be
contrasted with deliberate discharges of the dangerous thing onto another’s land.
130 Rickards v Lothian [1913] AC 263, PC.

131 (1879) 4 Ex D 76. Cf Black v Christchurch Finance Co Ltd [1894] AC 48, PC. Analogous cases
to those last cited are those suggesting that there is no liability where an unobservable defect
of nature causes the escape, or where there is flooding because a rat gnaws through a water
cistern: Carstairs v Taylor (1871) LR 6 Exch 217.
132 Perry v Kendricks Transport Ltd [1956] 1 All ER 154, at 161, CA, per Parker LJ. Likewise,
Jenkins LJ held (at 160) that once the act of a stranger is made out, ‘one reaches the point
where the claim based on Rylands v Fletcher merges into the claim in negligence’.
133 [1994] | All ER 53, at 71, HL. In Australia, this tort has been abandoned and replaced by a
‘non-delegable duty’ in negligence: Burnie Port Authority v General Jones Pty Ltd (1994) 120
ALR 42. By contrast, European jurisdictions provide considerably greater scope for strict
liability in this context: see Reid, ‘Liability for Dangerous Activities: A Comparative Analysis’
(1999) 48 ICLQ 731.
134 [1956] 1 All ER 154, at 161, CA.
135 [1987] 1 All ER 710. See also Topp v London Country Bus (South West) Ltd [1993] 1 WLR
976, CA.
Those cases — at least where the discharge is by the person who accumulated the
thing — should sound in trespass.'*° In short then, it is submitted that Rylands v
Fletcher should not accommodate the defence of the unforeseeable act of a stranger
since it is inconsistent with the juridical foundations of the tort: such a defence
necessarily runs counter to the unanimous decision of the House of Lords as to its
strict liability basis.
(E) Act of God

This defence has received a prominence out of all proportion to its practical importance.
It arises only where an escape is caused through natural causes and without human
intervention, in ‘circumstances which no human foresight can provide against, and of
which human prudence is not bound to recognise the possibility’ .'3”
In Nichols v Marsland'** the defence succeeded where a most violent thunderstorm
caused flooding. Yet the defence was put in its proper perspective by the House of
Lords in Greenock Corpn v Caledonian Rly Co'’ where an extraordinary and
unprecedented rainfall was held in similar circumstances not to be an Act of God: the
explanation of Nichols v Marsland was that there, the jury found that no reasonable
person could have anticipated the storm and the court would not disturb this finding
of fact.
The problem with the way in which the defence has been construed by the courts is
that they make its incidence referable to reasonable foresight of the cause of an escape.
This, on one construction, tends to undermine the strictness of Rylands liability because
it makes the defendant’s liability depend, in part, upon the existence of fault.'*° A
second (and preferable) construction of the defence is possible. This involves requiring
that an Act of God be beyond ail/, not just reasonable, human foresight. According to
this construction, we are not excusing the defendant because the natural event causing
the escape was beyond reasonable foresight; instead, we are concerned with identifying
the truly unique and freak occurrence (which should be distinguished from the highly
unusual — but not unknown — event'*').
On this basis, in this country at least, it might be argued that few phenomena beyond
earthquakes and tornadoes are likely to constitute this defence to Rylands v Fletcher.
136 Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, at 996, per Taylor J.
137 A definition of Lord Westbury in Tennent v Earl of Glasgow (1864) 2 M 22, at 26-7, HL
(followed by the House of Lords in Greenock Corpn v Caledonian Rly Co [1917] AC 556, HL).
138 (1876) 2 Ex D 1.
139 [1917] AC 556, HL.
140 If this construction is accepted, the failure to prevent the escape ought, instead, to sound in
negligence.
141 To allow reasonable foreseeability of the abnormal event to play a part in defining the defence
is also, and inescapably, to suggest that foresight of such events is a factor which determines
prima facie liability. And while, in the wake of the Cambridge Water case,it 1s clear that
foreseeability is a relevant factor in a Rylands action, it is important to appreciate that it only
operates to characterise a kind of harm, for which D would otherwise be prima facie liable, as
too remote. If foreseeability of the ‘freak’ event were to play a part in defining this defence,
however, it would operate, at the level of the definition (as opposed to limitation) of prima
facie liability. (For obiter judicial support for this view see Ellison v Ministry of Defence (1996)
81 BLR 101.)
Certainly, the paucity of occasions on which the defence has succeeded would tend to
vindicate this view. : “4
(F) Necessity *
It has been held'” that if an intentional release of a substance can ground liability in
Rylands v Fletcher — in one instance the firing of CS gas canisters by police officers
intent on flushing out a psychopath from the defendant’s shop — then the defence of
necessity ought to be available in this tort. However, an intentional invasion of the
claimant’s property in this fashion is actionable only in trespass.
Section 8. Nuisance and Ryiands v Fletcher

Apart from the fact that the Cambridge Water case continues the trend towards bringing
Rylands v Fletcher closer to nuisance, there still remain important differences between
the two torts.'*’ To begin with, the category of things coming under Rylands v Fletcher
is narrower than that in nuisance. In Rylands v Fletcher, a tangible thing must be
accumulated which, in its nature, is likely to cause mischief, either upon its own escape
or upon its giving off fumes, gas, electricity, or possibly odours, which themselves
escape. In nuisance, on the other hand, no physical object having that quality need be
on the defendant’s land.'* Thus,- in Christie v Davey,'* a defendant who beat a tray
against the wall of his house was held liable in nuisance to his neighbour for the
interference caused by the noise; but because a tray is likely neither in itself to escape
(nor to give off fumes, smells, or even noise), the defendant in that case could not have
been liable in Rylands v Fletcher. More doubtfully, the list of mischief-making things
giving rise to Rylands liability may be shorter than that for which liability in nuisance
may be imposed. Whereas trees likely to fall may give rise to actions in nuisance, it was
held in Noble v Harrison'* that tree branches, which actually broke off causing damage,
were not sufficiently likely to cause damage upon their ‘escape’ to fall within Rylands
v Fletcher.
The justification for such a distinction may very well be that since the scope of liability
in Rylands v Fletcher is wider, the propensity of the thing to cause harm on escaping
must be the more obvious. Likewise, although it is not in itself a defence to this tort
that the defendant was unaware that the thing was likely to do harm, proof that it was
not, according to the common experience of humanity, likely to cause harm on escaping
will absolve the defendant.'*”
142 Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, at 996.

143 The rule in Rylands v Fletcher, therefore, continues to be considered separately from nuisance:
see, eg, British Gas plc v Stockport Metropolitan Borough Council [2001] Env LR 44, CA.
144 The only case apparently inconsistent with this is Hoare & Co v McAlpine [1923] 1 Ch 167,
a decision, at first instance, treating vibrations caused by a pile-driver as being within the rule.
But note that the case might more appropriately have been decided in nuisance. It was
disapproved of in Barrette v Franki Compressed Pile Co of Canada Ltd [1955] 2 DLR 665
(pile-driving vibrations not within Rylands v Fletcher, but held to be nuisance).
145 [1893] 1 Ch 316.
146 [1926] 2 KB 332, at 342, per Wright J; there were other reasons why an action based on
Rylands v Fletcher failed.
147 West v Bristol Tramways Co [1908] 2 KB 14, at 20-1, CA, per Lord Alverstone.
In addition, Rylands v Fletcher must still be examined separately because it will afford
a remedy where nuisance will not in the following circumstances.
1 If D has accumulated ‘a thing’ which escapes, then, regardless of whether he was
negligent in allowing it to escape or of whether it was foreseeable that it would in
the particular circumstances escape, he will be liable: ‘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’.'“8 In nuisance, D
is liable for damage resulting from a state of affairs on his land where the negligent
management of that state of affairs makes it foreseeable that a substantial
interference with C’s use of his land will result.'*? Foresight of the escape, however,
is not necessary in Rylands v Fletcher. Indeed, to insist on foresight of the escape
is to introduce the requirement of fault into something that is a strict liability
tor
The occupier is liable in Rylands v Fletcher for the accumulation of, and the
escape caused by, independent contractors. In nuisance, the liability for
independent contractors is less extensive.'*!
In nuisance the claimant must possess a proprietary interest in the land affected;'
the same is apparently not true in Rylands v Fletcher.'* n the other hand, while
the escape must be from the defendant’s land in Rylands v Fletcher, there is no
requirement in nuisance that the defendant be an occupier of land.'*4
Damage by fire may sometimes be the subject ofa claim in trespass or negligence,
or the separate action on the case for fire.'°° It may also give rise to a claim in
nuisance or in Rylands v Fletcher. It will be recalled that the Fires Prevention
(Metropolis) Act 1774 provides that the person on whose land a fire ‘shall
accidentally begin’ has a defence.'*° This defence is not available to suits based
on Rylands v Fletcher'*’ although it is sometimes a defence in nuisance.'°§
Although the Rylands v Fletcher concept of ‘non-natural use’ is closely related
to the nuisance concept of ‘unreasonable user’, the two are not (yet) co-
extensive.'* Indeed, it has long been recognised that a use may be natural and yet
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264, at 306, HL, per
Lord Goff.
This explains why quia timet injunctions lie for a ‘state of affairs’ in nuisance but not necessarily
for an ‘accumulation’ in Rylands v Fletcher.
See further Wilkinson, ‘Cambridge Water Company v Eastern Counties Leather plc: Diluting
Liability for Continuing Escapes’ (1994) 57 MLR 799, 803-7. Cf Bolton v Stone [1951] AC
850, HL, on the role of foreseeability of an escape in determining the existence of negligence
(in the narrow sense).
See ch 18.
Hunter v Canary Wharf Ltd [1997] AC 655, HL.
Hale v Jennings Bros [1938] 1 All ER 579, CA. But if Rylands derives from nuisance, why not?
L E Jones (Insurance Brokers) v Portsmouth City Council [2003] 1 WLR 427, CA.
Balfour v Barty-King [1957] | QB 496, CA; Mason v Levy Auto Parts of England Ltd [1967]
2 QB 530. In H & N Emanuel Lid v Greater London Council [1971] 2 All ER 835, CA, it was
held than an occupier is liable for an escape of fire caused by the negligence of anyone other
than a stranger.
See ante.
Musgrove v Pandelis [1919] 2 KB 43, CA; Mulholland and Tedd Ltd v Baker [1939] 3 All ER
253; Perry v Kendricks Transport Ltd [1956] 1 All ER 154, CA; Balfour v Barty-King, supra.
158 See ante.
159 See Cambridge Water Co Ltd v Eastern Counties Leather ple [1994] 1 All ER 53, at 71, HL,
where Lord Goff indicated that they were different but closely related concepts with similar
functions. See also Ellison v Ministry of Defence (1996) 81 BLR 101 and Graham and Graham
vy Rechem International Lid [1996] Env LR 158 (suggesting that they are virtually
give rise to liability‘in nuisance.'® Equally, the reasonableness of the defendant’s

user is merely one factor that may be taken into accoynt in assessing nuisance
liability; but it is not, per se, a precondition of liability since it is only the
unreasonableness of the interference that counts.'°!
Beyond these five heads it is difficult to state with great confidence further
circumstances where the distinction between nuisance and Rylands v Fletcher exists.
It is sometimes said that, in Rylands v Fletcher, liability lies in respect of an isolated
escape, whereas the interference required in nuisance must have a certain degree of
permanence.'” But this distinction cannot be accepted as an accurate standard of
demarcation since it does not take account of the ‘state of affairs’ cases in nuisance.
Recall that provided there is a threatening state of affairs on the defendant’s land, an
action in nuisance may still lie even though only an isolated escape of something
causes the claimant’s loss.'°
interchangeable concepts). Cf Cross, “Does only the Careless Polluter Pay? A Fresh Examination
of the Nature of Private Nuisance’ (1995) 111 LQR 445 and Murphy, ‘Noxious Emissions and
Common Law Liability: Tort in the Shadow of Regulation’ in Lowry and Edmunds (eds),
Environmental Protection and the Common Law (1999). See also Layard, ‘Balancing
Environmental Considerations’ (1997) 113 LQR 254.
160 Eg, Leakey v National Trust [1980] QB 485, CA; Sedleigh-Denfield v O'Callaghan [1940] AC
880, at 888, HL, per Viscount Maugham; British Celanese Ltd v A H Hunt (Capacitors) Ltd
[1969] 2 All ER 1252.
See, eg, Sampson v Hodson-Pressinger [1981] 3 All ER 710, CA where the ordinary use of
premises which, as a result of their being poorly constructed, caused intolerable noise to be
perceived in adjoining premises was held to be a nuisance. See also Toff v McDowell (1993) 25
HLR 650.
162 Cf Newark, ‘The Boundaries of Nuisance’ (1949) 65 LQR 480, 488.
163 Midwood & Co Ltd v Manchester Corpn [1905] 2 KB 597, CA.
CHAPTER 20
Animals
Section |. Negligence and strict liability

Persons who own or control animals are subject to the same duty of care in respect of
the care and control of those animals as those responsible for any other chattels.’
Thus, in Aldham v United Dairies (London) Ltd@ the defendant was held liable when
his unattended pony became restive and jabbed at a passing pedestrian knocking her
down. And in Draper v Hodder’ the owner of a pack of terriers was found liable when
the dogs bit a neighbour’s child. He was negligent in failing to control and/or train the
pack adequately. An occupier of premises may be liable under the Occupiers’ Liability
Acts in respect of injuries inflicted by dogs on his premises.‘ But liability for damage
inflicted by animals extends beyond mere failure to control them properly.* The Animals
Act 1971 provides a strict liability regime that covers a range of circumstances in which
damage might be caused by both dangerous and non-dangerous animals.
Section 2. Damage done by dangerous animals
(A) Dangerous species

Section 2(1) of the Animals Act 1971 imposes strict liability where any damage is
caused by an animal which belongs to a dangerous species. A dangerous species, for
these purposes, is one which is not commonly domesticated in the British Isles, and
whose fully grown animals have such characteristics that (1) they are likely, unless
restrained, to cause severe damage or (2) they are of a kind that any damage they do
1 Fardon v Harcourt-Rivington [1932] All ER Rep 81, at 83, HL; Birch v Mills [1995] 9 CL 354.
[1940] 1 KB 507, CA. And see Brock v Richards [1951] 1 KB 529, CA.
3 [1972] 2 QB 556, CA (the court rejected D’s contention that while bowling over or scratching
by the excited dogs was foreseeable, biting was harm of a distinct and unforeseeable type).
4 Hill v Lovett (OH) 1992 SLT 994. But should an action for breach of statutory duty lie for
failing to muzzle a pit bull terrier as per the Dangerous Dogs Act 1991 (which is silent on civil
actions)?
5 Eg, liability may sound in nuisance for the smell emanating from animals kept by D (Wheeler
v JJ Saunders Ltd [1995] 2 All ER 697, CA), or in Rylands v Fletcher for an animal that
escapes (Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1.
cause is likely to be severe.° ‘Damage’ for the purposes of the Act embraces harm to
either persons or property. The list is thus not confined to animals likely to attack man,
such as bears, tigers, etc. An action lies under the Act even though the damage caused
is not of the kind in respect of which the species is known to be dangerous. Similarly,
liability arises even though the animal has not escaped from control: so a keeper would
be liable if his elephant slips or stumbles and thereby causes damage. ‘Damage’ also
includes the impairment of any mental condition.’ So if someone suffered nervous
shock with resulting physical illness at the sudden appearance of a cobra, there would
be liability.
(B) Non-dangerous species

Section 2(2) of the Animals Act 1971 imposes liability in certain (convoluted)
circumstances for an animal that does not belong to a dangerous species. It provides:
Where damage is caused by an animal which does not belong to a dangerous
species, a keeper of the animal is liable for the damage if:
(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.
According to the subsection, three conditions must be met before the keeper may be
held liable.* First, the damage must be of a kind which the animal, unless restrained,
was likely to cause’ or which, if caused by the animal, was likely to be severe. (There is
no need to show that the severity of the potential damage ensues from any abnormal
characteristics in the animal.'°) This formulation covers not only, say, a dog that attacks
a man, but also an animal with a dangerous disease, such as foot and mouth, that
spreads the infection to other animals.
The second requirement focuses on unusual characteristics in the animal'' or those
that are not normally so found except at particular times or in particular circumstances.
6 Animals Act 1971, s 6(2).
7 Animals Act 1971, s 11.
8 Note that one keeper may be liable to another keeper: Flack v Hudson [2001] QB 698, CA (C
and D were joint keepers of D’s horse).
9 In Smith v Ainger [1990] CLY 3297, CA it was held that it is enough to prove merely that the
injurious occurrence might happen. But why?
10 Curtis v Betts [1990] 1 All ER 769, at 772 and 778, CA.
11 The keeper in one case was liable where a horse of unpredictable and unreliable behaviour
crushed its groom against the bar of its trailer even though it had no previous tendency to
injure people, for that was a characteristic unusual in a horse: Wallace v Newton [1982] 2 All ER
106. Equally, in Cummings v Granger [1977] QB 397, CA, C was bitten by D’s Alsatian dog
which was used as a guard dog in his scrapyard. The dog barked and ran around when non-white
Animals 453
The Court of Appeal has rejected the contention that horses ushered onto a road bya
mischievous third party display an unusual characteristic when they gallop along that
road out of blind panic; the true cause of the injury being the deliberate release of the
horses onto the highway.'? On the other hand, if a horse bolts and breaks free from
reasonably a reasonably secure enclosure causing injury to a motorist, it is within the
Act, for horses bolting when frightened are displaying a characteristic not normally
found except in a particular circumstance.'? The same applies to a bull mastiff dog
defending his ‘territory’.'*
The third requirement of this subsection requires that the animal’s unusual
characteristics must have been known to the keeper, or to his servant, or to a member
of his household under the age of 16. It further requires that a causal link between the
‘abnormal’ characteristic and the injury must be established."
(C) Liability for either kind of dangerous animal

Liability under the Animals Act 1971 is imposed on the keeper regardless of whether
the animal in question belongs to a dangerous or a non-dangerous species. And a
keeper for the purposes of the Act is defined in terms of the person who owns the
animal or has it in his possession, or who is head of the household of which a member
under the age of 16 owns the animal or has it in his possession.'° This last provision
prevents evasion of liability by making a child in the family the nominal owner. If a
person ceases to keep, own or possess it, he continues to be liable until another
person owns or possesses it.'’ Liability is imposed regardless of fault. The defendant
is not liable, however, for any damage which is due wholly to the fault of the person
suffering it!’ and damages will be reduced under the Law Reform (Contributory
Negligence) Act 1945 where the claimant’s fault merely contributes to his damage." It
is a defence under the Act that the damage was suffered by a person who has voluntarily
accepted the risk.”° An employee who accepts a risk incidental to his employment shall
people, like C, approached. This is not a usual characteristic in Alsatian dogs (except when used
as guard dogs). This was held to be a particular circumstance within the Animals Act 1971 s
2(2)(b). ‘Species’ is defined in s 11 of the Animals Act 1971 to include sub-species. It seems
that different breeds of dogs are treated as sub-species: Curtis v Betts [1990] 1 All ER 769, CA.
12 Jaundrill v Gillett (1996) Times, 30 January.
13 Mirvahedy v Henley [2001] EWCA Civ 1749, [2003] 2 WLR 882. See also Flack v Hudson
[2001] QB 698, CA (horse frightened by farm machinery is also within s 2(2)).
14 Curtis v Betts [1990] 1 All ER 769, CA. A bitch protecting her pups would also be covered.
15 Jaundrill v Gillett (1996) Times, 30 January.
16 Animals Act 1971, s 6(3).
17. Animals Act 1971, s 6(3). But a person who takes possession only for the purpose of preventing
damage or restoring it to its owner is not thereby made liable: s 6(4).
18 Animals Act 1971, s 5(1). It has been applied where C ignored police warnings to come out and
subsequently was bitten by a police dog: Dhesi v Chief Constable of West Midlands 2000 WL
491455.
20 Animals Act 1971, s 5(2). In Cummings v Granger [1977] QB 397, CA, the court found that
when C knew of the dog she must be taken to have voluntarily accepted the risk. The court,
especially Ormrod LJ (at 408), treated this defence as being wider than the common law
defence of volenti.
not be treated as accepting it voluntarily.”' It is also a defence that the damage occurred
on property where the claimant was a trespasser if it is proyed either that the animal
was not kept there for the protection of persons or property or (if kept for those
purposes) that thus keeping it there was not unreasonable.”* Presumably it would be
difficult to maintain thts defence in respect of a dangerous species being kept for
protection only, because that might well be unreasonable. Trespassers will never have
a remedy when attacked by an animal of a dangerous species not kept for protection.
Section 3. Liability for straying livestock

Section 4 of the Animals Act 1971 imposes liability on a person in possession of
livestock which stray onto another’s land. Under the Act, ‘livestock’ means cattle,
horses, asses, mules, hinnies, sheep, pigs, goats, poultry and deer not in the wild
state.*? Liability is for damage done by the livestock to the land-or to any property on
it.*4 Presumably, ‘property’ includes other animals as well as goods, but the claimant
cannot recover under section 4 for his personal injuries. Either the person in possession
or the owner (even though not in possession) can recover for damage to his land or
property.
A claimant may incur expense in keeping livestock while it cannot be restored to its
owner or while it is detained in pursuance of the power conferred by the Animals Act
1971 to detain it.> He can recover any such expenses reasonably incurred.”° Liability is
strict under this section, but the defendant is not liable for any damage due wholly to
the fault of the claimant.”’ Thus, if the claimant could have prevented the damage by
fencing,** and the claimant was under a duty (owed to a person having an interest in
the land from which the livestock strayed), to fence, the defendant is not liable so long
as the straying would not have occurred but for that breach on the part of the claimant.”
The Law Reform (Contributory Negligence) Act 1945 applies in respect of damage in
part caused by the claimant’s own fault.*° It is also a defence that the livestock strayed
21 Animals Act 1971, s 6(5); Canterbury City Council v Howletts & Port Lympne Estates Ltd
[1997] ICR 925 (tiger keeper killed by one of the zoo’s tigers; the zoo especially encouraged
‘bonding’ between the tigers and their keepers (which necessitated entering the cage regularly:
keeper’s dependants entitled to sue)).
22 Animals Act 1971, s 5(3); Cummings v Granger [1977] QB 397, CA (reasonable to keep an
Alsatian dog, known to be ferocious, to protect old cars in a locked yard). Had the Guard Dogs
Act 1975 been in force, Lord Denning MR would have held that failure to comply with the
requirement of that Act that the dog had to be in the control of the handler would have made
the keeping of the dog unreasonable.
24 Cases involving loss (but no damage) would not be covered (eg, the Ministry of Agriculture
makes a foot and mouth order restricting movement of cattle, but none of C’s cattle are
destroyed).
25 Animals Act 1971, s 7. See Matthews v Wicks (1987) Times, 25 May, CA; Morris v Blaenau
Gwent District Council (1982) 80 LGR 793, CA.
26 Animals Act 1971, s 4(1)(b).
27 Animals Act 1971, s 5(1); Nelmes v Chief Constable of Avon and Somerset Constabulary (9
February 1993, unreported), CA (C kicked a police dog, before his arrest, provoking it into
biting him).
28 Fencing includes the construction of any obstacle designed to prevent animals from straying.
29 Animals Act 1971, s 5(6). In the absence of any such duty to fence, there is no defence under
the Act.
30 Animals Act 1971, ss 10 and 11.
Animals 455
from a highway and its presence there was a lawful use of the highway, for the owner
of property adjoining a highway is presumed to have accepted risks incidental to such
ownership.*!
Section 4. Liability for injury done by dogs to livestock

Section 3 of the Animals Act 1971, s 3 provides that where a dog kills or injures
livestock’ its keeper is liable for the damage, even though he was not negligent. But a
person is not liable if the livestock was killed or injured on land onto which it had
strayed and either the dog belonged to the occupier or its presence on the land was
authorised by the occupier.** It is a defence that the damage was due wholly to the
fault of the person suffering it.**
31 Animals Act 1971, s 5(4), (5). -

32 Livestock for this purpose is slightly wider than under s 4 in that it includes pheasant, partridges
and grouse while in captivity: s 11.
33 Animals Act 1971, s 5(4).
34 Animals Act 1971, s 5(1). If C by his fault has contributed to the damage, the Law Reform
(Contributory Negligence) Act 1945 applies to permit a reduction of the damages awarded.
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CHAPTER 2|
Breach of statutory duty
Section |. Introduction!
Exceptionally, a person suffering damage as a result of a violation of a statute may
have an action in tort in respect of that damage, commonly called an action for breach
of statutory duty. For the claimant, the great advantage of such an action is the fact
that in many cases, all he need prove is that the defendant failed to fulfil his statutory
obligation. There is no requirement to establish that the breach was either intentional
or negligent. The early cases on the tort rested on a broad principle that whenever a
violation of a statute caused damage to an individual’s interests, a right of action in
tort arose.” Leading nineteenth-century decisions’ markedly restricted the scope of
the tort, requiring that any person claiming for breach of a statutory duty must first
establish that the legislature intended that a violation of his right or interest should be
tortious.
Lord Denning MR attempted (ultimately unsuccessfully) to resurrect the broader
principle in Ex p Island Records Ltd’ arguing ‘[if] a private right is being interfered
with by a criminal act, thus causing or threatening to cause him special damage over
and above the generality of the public, then he can come to the court as a private
individual and ask that his private right be protected.’ Had this broad ‘Denning
principle’ taken root, it would have transformed the action for breach of statutory duty
and opened up the way for greater protection of individual interests by the law of torts
in two crucial respects. First, in respect of damage to economic and business interests,
claimants could have taken advantage of the extensive provision made by statute to
regulate the economy in order to obtain compensation for losses falling outside the
compass of the economic torts.° Secondly, citizens aggrieved by the failure of public
1 See generally Stanton, Breach of Statutory Duty in Tort (1986), Buckley, ‘Liability in Tort for
Breach of Statutory Duty’ (1984) 100 LQR 204.
2 Couch v Steel (1854) 3 E & B 402 was the last important case resting on the old broad
principle.
3 Atkinson v Newcastle and Gateshead Waterworks Co (1877) 2 Ex D 441, CA; Groves v Lord
Wimborne [1898] 2 QB 402, CA.
4 [1978] Ch 122, CA.
SHOTS )cChl22 wats 1139:
6 See Part III of this book.
authorities to fulfil obliSations designed to protect their welfare could have sought
extensive redress from central and local government. The dgcisions of the House of
Lords in Lonrho Ltd v Shell Petroleum Co Ltd (No 2)’ and X v Bedfordshire County
Council’ appear, however, to have stifled the further development of the action for
breach of statutory duty.’
The claimant in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) was an oil company which
had suffered heavy losses because it had complied with government sanctions orders
prohibiting trade with the illegal regime in Rhodesia while its competitors had flagrantly
violated those orders. Relying on Ex p Island Records, the claimants sought to sue
their competitors for breach of the orders. The House of Lords firmly rejected the
‘Denning principle’, reasserting that the general rule in a claim for breach of statutory
duty is that ‘where an Act creates an obligation and enforces performance in a specified
manner ... that performance cannot be enforced in any other manner’.’ Where the only
manner of enforcing performance for which the Act provides is the criminal process,
there are only two classes of exception to this general rule. The first is where ‘on the
true construction of the Act it is apparent that the obligation or prohibition was imposed
for the benefit of a particular class of individuals’.'° The second arises where the
statute creates a public right and an individual member of the public suffers ‘particular,
direct and substantial damage other and different from that which is common to the
rest of the public’.'' Lonrho’s claim fell outside both exceptions. Sanctions orders
prohibiting trade with Rhodesia were intended to end all trade and bring down the
illegal regime. They were not imposed for the benefit or protection of any class of
business, but to create public rights enjoyable by all citizens wishing to avail themselves
of such rights.!”
In_X v Bedfordshire County Council the House of Lords held that no action for breach
of statutory duty arose out of either legislation imposing duties on local authorities to
safeguard the welfare of children in their area and protect them from child abuse, or
legislation requiring local authorities to meet the educational needs of children in their
district. Lord Browne- Wilkinson acknowledged that legislation to protect children at
risk and to provide for education was undoubtedly designed to benefit those children,
but found that it was not Parliament’s intention to allow individual children harmed by
a local authority’s failure to meet its statutory obligations to recover compensation for
that harm from the public purse. His Lordship noted that no case had been cited before
the court where statutory provisions creating a general regulatory scheme to promote
social welfare had been held to give rise to a private law claim for damages. He went on
to say:
[a]lthough regulatory or welfare legislation affecting a particular area of activity

does in fact provide protection to those individuals particularly affected by that
7 [1982] AC 173, HL; and see RCA Corpn v Pollard [1983] Ch 135, CA.
8 [1995] 2 AC 633, HL.
9 Doe d Bishop of Rochester v Bridges (1831) 1 B & Ad 847, at 859.
10 [1982] AC 173, at 186, HL, per Lord Diplock.
11 Benjamin v Storr (1874) LR 9 CP 400, at 407.
12 As to this second exception to the general rule see below. Was Lord Diplock himself creating
a new category of action for breach of statutory duty?
activity, the legislation is not to be treated as being passed for the benefit of
those individuals but for the benefit of society in general.’
Subsequent to the House of Lords reaching their decision in the Bedfordshire case,
the claimants pursued their case to the European Court of Human Rights where it was
held that there had been a breach of both Articles 3 and 13 of the Human Rights
Convention." Respectively, these articles provide for protection from inhuman or
degrading treatment and the right to an adequate remedy under domestic law. The
Court’s finding, however, does not affect the action for breach of statutory duty.
Instead, its repercussions will be felt only in the context of common law negligence
actions'° and actions under section 7 of the Human Rights Act 1998 which provides a
cause of action where ‘a public authority has acted (or proposes to act) in a way which
is made unlawful by section 6(1)’ (ie, where the public authority fails to act consistently
with a citizen’s Convention rights).'°
To succeed in a claim for breach of statutory duty after the decisions in Lonrho and X
v Bedfordshire County Council, the claimant must now satisfy a two-part test. He
must establish that when'’ Parliament enacted the relevant statute (1) it was intended
to protect a class of persons to which he belongs and (2) Parliament envisaged that, in
providing that protection of his interests, he should be able to claim compensation for
any failure to protect those interests. The matter is in theory entirely one of construction
of the statute in question, but as Lord Browne-Wilkinson candidly admitted: while the
principles of breach of statutory duty may be clear in theory, ‘the application of those
principles in any particular case remains difficult’ .'*
Section 2. Elusive Parliamentary intent

The success or failure, then, of any attempt to frame an action for breach of statutory
duty will turn on identifying the elusive intention of Parliament. Yet in many instances,
it is probable that the legislature never even considered the issue of whether individuals
should be able to claim damages for breach of the obligations embodied in the relevant
statute. Only rarely does Parliament expressly declare that any breach of the statute
should,'® or should not,”? be actionable in tort. On the other hand, since the courts
may now refer to Hansard in interpreting statutes, Parliamentary intent may sometimes
be gleaned from a study of the Parliamentary debates.”! Nonetheless, in the majority of
instances, the judges will continue to struggle with principles and policy developed
over the years.
13 [1995] 2 AC 633, at 731-732 (emphasis added). And see Capital and Counties plc v Hampshire
County Council [1997] QB 1004, CA.
14 Zv UK (2001) 34 EHRR 97. See also ch 1.
15. See, eg, Barrett v Enfield London Borough Council [1999] 3 All ER 193, HL and Phelps v
Hillingdon London Borough Council [2001] 2 AC 619, HL.
16 For detailed analysis, see Murphy, ‘Children in Need — The Limits of Local Authority
Accountability’ [2003] Legal Studies 103.
17 See Issa v Hackney Borough Council [1997] 1 All ER 999, CA.
18 Xv Bedfordshire County Council, [1995] 2 AC 633, at 730, HL.
19 For two examples where Parliament expressly created a civil remedy for breach of statutory
duty see the Protection from Harassment Act 1997, s 3; the Consumer Protection Act 1987,
s 41.
20 See the Health and Safety at Work Act 1974, s 47(2).
21 See Richardson v Pitt-Stanley [1995] QB 123, CA.
It cannot be stressed too forcefully therefore that an action for breach of statutory
duty can only lie if the court finds that Parliament intended to confer a right to
compensation on an individual injured by breach of that duty.” It is not enough
simply to show that a statute was designed to protect the claimant in some general
sense: loss or injury of ‘a recognised type must be shown, as must the intention of
Parliament that victims should be entitled to monetary compensation. Thus, in one
case, unauthorised publication of information about the claimant in breach of Mental
Health Tribunal Rules was held to be insufficient since privacy was not a recognised
head of damage.”? And equally, in Hague v Deputy Governor of Parkhurst Prison,”
where prisoners alleged that they had suffered injury as a result of being held in
solitary confinement in breach of Prison Rules, it was held that mere evidence that the
Rules were in part designed to protect prisoners was insufficient to show the required
Parliamentary intention that they should be able to sue. Lord Jauncey put it this way:
The Prison Act 1952 is designed to deal with the administration of prisons and
the management and control of prisoners. It covers such wide-ranging matters
as central administration, prison officers, confinement and treatment of prisoners,
release of prisoners on licence. Its objects are far removed from those of legislation
such as the Factories and Coal Miners Acts whose prime concern is to protect
the health and safety of persons” who work therein. *°
The priority afforded to interests in bodily security by the law of torts (particularly
within an employment context) is reflected in the willingness of the courts to interpret
industrial safety legislation so as to confer a right of action on injured workmen.
Breaches of statutory rules to fence machinery in the Factories Act*’ and regulations
made for miners safety by the Mines and Quarries Acts” represent classic examples of
the statutory provisions traditionally supporting tort actions. In such cases, the courts
readily find that Parliament envisaged that an injured employee should be able to claim
compensation from any employer who failed to provide his workforce with the protection
Parliament demanded. Strict liability for injury to employees both offered an
overwhelming incentive to employers to ensure that safety rules were compiled with,
and meant that the cost of any injury which befell a worker fell on the employer, not the
luckless individual. Piecemeal legislation on industrial safety was originally intended
to be replaced by a new all-embracing statutory regime introduced by the Health and
Safety at Work Act 1974. Sections 2-9 of that Act imposed general safety duties on all
employers. Breach of those general duties are expressly stated not to be actionable in
tort.” But section 15 empowered the Secretary of State to make specific health and
22 Hague v Deputy Governor of Parkhurst Prison [1991] 3 All ER 733, at 750, HL, per Lord
Jauncey.
23 Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 1 All ER 622, HL. But
given the courts’ obligation (per the Human Rights Act 1998) to develop the common law in
line with the European Convention on Human Rights, would the same decision be reached
today given the Art 8 right to respect for private and family life?
24 [1991] 3 All ER 733, HL.
25 Note that Lord Bridge suggests (at 741) that an action might lie for breach of those of the
Prison Rules concerned with industrial safety in prison workshops.
26 [1991] 3 All ER 733, at 750-1.
27 Groves v Lord Wimborne [1898] 2 QB 402, CA.
28 Black v Fife Coal Co Ltd [1912] AC 149; National Coal Board v England [1954] AC 403, HL.
29 Health and Safety at Work Act 1974, s 47(1)(a).
Breach of statutory duty 46|
safety regulations for particular industries.*° These abound and breaches are actionable
unless the regulation in question provides otherwise.*!
The duties imposed by such regulations vary in form. Some are absolute requiring that
employees’ safety be guaranteed. Others demand only that the employer do what is
reasonably practicable. In the interpretation of these and modern EU Regulations,
case law on their predecessors (such as the Factories Act) may remain relevant. More
importantly, the general principle that employees injured at work should have generous
access to compensation for industrial injury remains intact.
There are also precedents for the protection of interests in land and goods against
violation of a statute.** Economic losses, too, have exceptionally been found
recoverable where protection from that kind of loss is within the ambit of the statute. In
Monk v Warbey,*’ for example, the claimant suffered bodily injuries in a road accident.
Alas, the driver of the car was uninsured and impecunious. The claimant recovered his
consequential financial loss by suing the owner of the car who, in breach of his
statutory duty, had allowed his friend to drive uninsured against third party risks.
Equally, in Rickless v United Artists Corpn,™ the claimants won a massive award of
damages for the defendants’ unauthorised use of clips from oid Peter Sellers films. The
Court of Appeal found that violation of section 2 of the Dramatic and Musical
Performers’ Protection Act 1958, prohibiting use of such material without the performer’s
consent, did create a civil right of action. The purpose of the Act was protection of
performers’ rights and correlative financial interests.
On the other hand, in Richardson v Pitt-Stanley** a claim against the claimant’s
employer-company and its directors for failure to comply with provisions of the
Employers’ Liability (Compulsory Insurance) Act 1969 requiring employers to insure
against liability for accidents at work failed. The Court of Appeal held that in respect of
the company, the employee already enjoyed a range of remedies at common law
enforceable against company assets. If there were no such assets (and there were not
because the company had gone into liquidation), and no insurance policy, no additional
claim for breach of statutory duty under the 1969 Act would avail the claimant. The
substantial criminal penalties under the Act militated against the existence of a civil
claim and some slight indication that Parliament did not intend to create such a private
right was to be found in Hansard. If no civil action for breach of statutory duty was
intended against the company, their lordships thought it unlikely that Parliament
intended a claim to lie against individual directors.
In the light of the current judicial trend towards restricting liability for economic loss,
very clear evidence that this was the very type of loss protected by the statute will be
required. In Richardson v Pitt-Stanley, Stuart-Smith LJ signaled that only exceptionally
would such losses be recoverable in an action in breach of statutory duty.
30 Replacing earlier legislation such as the Factories Acts.

31 Health and Safety at Work Act 1974, s 47(2). For examples of such regulations, see the 10th
edition of this work.
32 Ross v Rugge-Price (1876) 1 Ex D 269.
SBN 935 MAKBap GAr
34 [1988] QB 40, CA.
35 [1995] QB 123, CA.
In my opinion, the court will more readily construe a statutory provision so as to

provide a civil cause of action where the provision relates to the safety and
health of a class of persons rather than where they have thereby suffered
economic loss.*°
So, in Wentworth v Wiltshire County Council,” a claimant seeking to recover for
damage to his business caused by disrepair of the adjacent highway failed in his claim.
The duty to maintain the highway existed to protect users against personal injury not
to safeguard the profits of traders. Furthermore, a number of other factors will impact
on the courts’ readiness to find that Parliament intended that one of the class of
persons for whose benefit an Act was passed should have a private action for
compensation for its breach.
(1) There is a great reluctance to allow a claim for breach of statutory duty against
a public authority for failure to provide adequate public services. Claims have failed
against health*® and education ministers*’ for failure to meet their statutory obligations
to ensure adequate health care to patients and education for the nation’s children
respectively. In X v Bedfordshire County Council* Lord Browne-Wilkinson,
addressing claims in respect of the child care protection system, had no doubt that the
relevant statutes were intended to protect children from abuse, but that the language
and framework of the legislation was not designed to allow individual children or
families to sue.‘ Lord Bridge summed up the heart of the case against imposing
liability for breach of statutory duty on public bodies when he issued this ringing
warning against too great a readiness to do so:
.... the shoulders of a public authority are only broad enough to bear the loss
because they are financed by the public at large. It is pre-eminently for the
legislature to decide whether these policy reasons should be accepted as
sufficient for imposing on the public the burden of providing compensation for
financial losses. If they do so decide, it is not difficult for them to say so.”
Continuing in this vein, a seven-judge House of Lords ruled out an action based on
breaches of the Education Acts 1944 and 1981 in Phelps v Hillingdon London Borough
Council.* Their Lordships have also rejected a claim premised on a local authority’s
breach of statutory duty to house homeless persons.“
(2) If the alleged breach of duty derives not from a breach of a statute itself, but a
breach of a regulation made under a statute, this tricky question arises. Did the enabling
Act, as it must, empower the minister to make regulations conferring private rights of
action on individuals?* What is clear in this context is that where a statute (a) permits
36 [1995]-QB 123; at 132; CA:

37 [1993] QB 654, CA.
38 Rv Secretary of State for Social Services, ex p Hincks (1979) 123 Sol Jo 436.
39 Watt v Kesteven County Council [1955] 1 QB 408.
40 [1995] 2 AC 633, HL.
41 For a full review of the area, see further Murphy, ‘Children in Need — The Limits of Local
Authority Accountability’ [1993] Legal Studies 103.
42 Murphy v Brentwood District Council [1990] 2 All ER 908, at 931.
43 [2001] 2 AC 619, HL.
44 O’Rourke v Camden London Borough Council [1998] AC 188, HL.
45 Hague v Deputy Governor of Parkhurst Prison [1991] 3 All ER 733, HL. Note the rather
different answers to the question from Lords Bridge and Jauncey. See also Olotu v Home Office
[1997] 1 WLR 328, at 339, CA and Todd v Adam [2002] 2 Lloyd’s Rep 293, CA.
a minister to establish rules concerned with the safety of a particular class of persons,
and (b) the Act also empowers the minister to exempt certain potential defendants from
the rules, the inference will be that there was no legislative intention that those rules
would support an action for breach of statutory duty.*°
(3) The statutory duty itself must be precise in its terms so as to make enforcing it
by way of an action in tort fair to the defendant.*”
(4) _ Finally it must be shown that, to intend that a private right of action should lie
for violation of a statute, Parliament could have envisaged the circumstances in which
the claimant came to suffer harm. In Olotu v Home Office® the claimant was remanded
in custody for a period exceeding the 112-day limit set by Regulations. The court
found that the Regulations were designed to achieve expedition in the prosecution of
crime and to ensure that accused persons did ‘not languish in prison for excessive
periods awaiting trial’. Protecting accused persons, the class to which the claimant
belonged, was clearly an object of the Regulations. However, no claim for breach of
statutory duty lay because neither Parliament nor the secretary of state laying the
Regulation would have foreseen a scenario where both the Crown Prosecution Service
would fail to comply with its duty under the Regulations, and the accused person
would fail to apply for immediate bail.
Section 3. The nature of the action

Care must be taken to avoid confusion between this tort and negligence, albeit in
practice claimants will often make concurrent claims in breach of statutory duty and
negligence. Lord Browne- Wilkinson offered an instructive analysis in X v Bedfordshire
County Council.” Addressing the extent of the defendant local authority’s liabilities
in tort generally for failure in child care and educational provision, he distinguished
between three possible causes of action in tort.
(A) Breach of statutory duty simpliciter

Such a claim, in the tort which this chapter centrally addresses, ‘depends neither on
any breach of the [claimant’s] common law rights nor on any allegation of negligence
by the defendants’. Ifa private right of action lies for violation ofa statute, the claimant
has no need to prove negligence.
(B) The common law duty of care
It may be that the performance of a statutory duty gives rise to a common law duty of
care. The ordinary rules of the tort of negligence then apply.
46 Todd v Adam [2002] 2 Lloyd’s Rep 293, at [25], CA, per Neuberger J. .
47. Cutler vyWandsworth Stadium Ltd [1949] AC 398, HL; X v Bedfordshire County Council
[1995] 2 AC 633, HL. ;
48 [1997] 1 WLR 328, CA. See also Issa v Hackney London Borough Council [1997] 1 All ER
999 CA.
49 [1995] 2 AC 633, at 731-736, HL. See also London Passenger Transport Board v Upson
[1949] AC 155, at 168.
(C) The careless performance of a statutory duty

If it is not established that in respect of a particular statutory'duty, Parliament intended
to create a private right of action for breach of statutory duty, nor that the circumstances
of the claimant’s relationship with the defendant gave rise to a common law duty of
care, no claim in tort lies simply for the careless performance of a statutory duty.
A classic claim for breach of statutory duty, then — once a private right of action has
been found to lie — requires only that the claimant prove that the statutory obligation
was not fulfilled. In many cases, liability is truly strict. In others, the statute may
prescribe that some degree of negligence be proven, or even (on occasion) allow a
defence if the defendant shows that avoiding injury to the claimant was not ‘reasonably
practicable’. In all cases, the nature of the conduct constituting violation of the statute
is prescribed by the statute itself, not principles of common law negligence.
Section 4. What the claimant must prove
(A) An obligation on the defendant

A mandatory duty must be imposed on the defendant if the action is to lie. The
imposition of a criminal offence prohibiting members of the public from engaging in
certain conduct is insufficient.*° Similarly, the conferral of a mere power to act is not
enough. ;
(B) The statute must impose the burden on the defendant

This issue has been raised most frequently in actions by workers against their employers
where they have been injured by some act or omission of fellow workers. It is not
always easy to decide whether the duty is imposed on the employer or on the worker.
Thus, it was held by the House of Lords in Harrison v National Coal Board that
duties relating to mines, when expressed impersonally, are imposed on the mine owner,
but that the duties relating to shot-firing, since they are expressly imposed on the
shot-firer, are not duties of the mine owner.*'! Obviously, the present tort does not lie
against the employer unless the duty imposed on him has been broken.**
Once the statute has been interpreted to impose a duty on the employer, the general
principle is clear. The House of Lords has held:
... the owner cannot relieve himself of his obligation by saying that he has
appointed reasonably competent persons and that the breach is due to negligence
on their part.*
It would therefore be no defence to an employer of a workman injured by an unfenced
machine that the foreman has failed to carry out the instructions to fence which the
50 Lonrho Ltd v Shell Petroleum Co Ltd (No 2) {1981] 2 All ER 456, at 462, HL.
51 [1951] AC 639, HL.
52 See below for a discussion of whether the employer is vicariously liable for a breach by an
employee of a statutory duty imposed on the employee.
53 Lochgelly Iron and Coal Co v M’Mullan [1934] AC 1, at 13, HL, per Lord Warrington.
employer issued to him. The rule is the same where the duty of the employer has been
neglected by the independent contractor of the employer. Other problems, however
(which will be discussed later), are raised when the defendant has delegated the duty
to the claimant himself, and the claimant is injured as a result of his own failure to
perform the delegated duty.
(C) The statute protects the claimant’s interest by way of a cause of

action in tort
The fundamental issue is simply whether the Act was intended to create a right of
action in tort.°> Everything else is subordinate to that. The following considerations
are no more than guides to the principles which the courts utilise in identifying (usually
unexpressed) legislative intention. They must not be elevated to the status of inflexible
rules of law overriding the root question of the purpose of the statute. As Lord Simonds
said:
The only rule which in all circumstances is valid is that the answer must depend
on a consideration of the whole Act and the circumstances, including the pre-
existing law, in which it was enacted.*°
(!) The state of the pre-existing common law

Sometimes, the law of torts in force before the passing of the Act*’ is considered to
afford adequate compensation to victims in circumstances also covered by the
statute,°* the object of the statute being to regulate certain activities in order to prevent
the occurrence of that loss which the existing law of tort would redress.’ In such
circumstances, the statute will not usually confer an additional cause of action for
damages. For instance, the ordinary law of negligence affords adequate protection for
the victims of road accidents: yet the need to reduce these accidents is so urgent that
there is much legislation regulating road traffic (the construction and use of vehicles
and the carrying of lights during hours of darkness are illustrations). But the courts do
not generally allow persons injured by motorists in breach of such statutory duties to
sue in reliance on the relevant statute: they leave them to pursue their remedy in
54 Hosking v De Havilland Aircraft Co Ltd [1949] 1 All ER 540; Braham v J Lyons & Co Ltd
[1962] 3 All ER 281, CA. Cf Hole v Sittingbourne and Sheerness Rly Co (1861) 6 H & N 488.
55 Eg, Hague v Deputy Governor of Parkhurst Prison [1991] 3 All ER 733, at 705, HL, per Lord
Jauncey; Atkinson v Newcastle and Gateshead Waterworks Co (1877) 2 Ex D 441, at 448, CA,
per Lord Cairns LC; Pasmore v Oswaldtwistle UDC [1898] AC 387, at 397, HL, per Lord
Halsbury LC.
56 Cutler v Wandsworth Stadium Ltd [1949] AC 398, at 407, HL.
57 So in Issa v Hackney London Borough Council [1997] 1 WLR 956, no glaim lay in respect of
a statutory nuisance because in 1936, when the relevant Act was passed, virtually all victims of
such a nuisance would have been able to recover compensation from their landlords.
58 See Richardson v Pitt-Stanley [1995] QB 123, CA. If it is argued there should be a claim for
breach of statutory duty additional to common law remedies, it must be shown that the private
action for breach of the statute will actually be effective.
59 Sometimes, as in Square v Model Farm Dairies (Bournemouth) Ltd [1939] 2 KB 365, CA (sale
of infected milk), the court might decide that no tort was intended to be created because
existing contractual remedies were adequate.
negligence, and regard the sanctions of the statute as limited to the imposition of the
penalty there prescribed.© * g
If, however, the statute merely affirms an interest of the claimant which the common
law already recognises, and does not purport to be giving that interest statutory
protection for some quite different purpose, then the claimant may be free to sue for
breach of the statute.*’ Thus, in Ashby v White, where the right to vote —a common law
right — had been confirmed by statute, Holt CJ said:
And this statute ... is only an enforcement of the common law; and if the Parliament
thought the freedom of elections to be a matter of that consequence, as to give
their sanction to it, and to enact that they should be free; it is a violation of that
statute, to disturb the [claimant] in this case in giving his vote at an election, and
consequently actionable.
(2) Alternative remedies provided by statute

It has been suggested that where a statute fails to provide any alternative means of
enforcement in the event of breach of the relevant duty, the claimant’s task to establish
that an action in tort was intended by the statute may be eased.® But the absence of
an alternative remedy is not by any means irrefutable evidence that Parliament intends
to grant the claimant redress via an action for breach of statutory duty. Counsel for
prisoners claiming damages for breaches of the Prison Rules sought to argue that the
absence of any other remedy available to them necessarily meant that an action lay.
The House of Lords forcefully rejected that contention.“ Equally the availability of an
alternative remedy is not fatal to the case: ‘the mere existence of some other statutory
remedy is not necessarily decisive’. Administrative remedies and criminal penalties
must be considered separately.
Provision is made in many cases where public authorities fail to carry out their duties
for administrative machinery to secure compliance with those duties. Representations
60 Phillips v Britannia Hygienic Laundry Co [1923] 2 KB 832, CA (defective axle on lorry, in

breach of Motor Cars (Use and Construction) Order 1904; no action available to owner of
another vehicle damaged in consequence of breach); Clarke and Wife v Brims [1947] KB 497
(failure to carry a red rear light on a car gave no right of action under this head to C who
collided with the car); Balmer v Hayes 1950 SC 477 (failure of driver to disclose in an
application for a driving licence, that he was epileptic, gave no cause of action to a passenger
injured when an attack of epilepsy caused the driver to collide with another vehicle); Verney v
Wilkins [1962] 106 Sol Jo 879 (learner-driver not liable for passenger’s injuries merely because
in breach of the Act he was unaccompanied by qualified driver); Coote v Stone [1971] 1 All ER
657, CA (parking on clearway not actionable in itself).
61 Wolverhampton New Waterworks Co v Hawkesford (1859) 6 CBNS 336, at 356, per Willes J He
may then have the choice of the action for breach of statutory duty or the existing common-
law remedy, eg Simon v Islington Borough Council [1943] I KB 188, at 193, CA (neglect of
abandoned tramway).
62 (1703) 2 Ld Raym 938, at 954.
63 Thornton v Kirklees Metropolitan Borough Council [1979] QB 626, CA; but overruled on its
facts in O’Rourke v Camden London Borough Council [1998] AC 188, HL. And see Booth &
Co (International) Ltd v National Enterprise Board {1978] 3 All ER 624.
64 Hague v Deputy Governor of Parkhurst Prison [1991] 3 All ER 733, HL.
65 Xv Bedfordshire County Council [1995] 2 AC 633, at 731, HL.
66 See Murphy, ‘Children in Need — The Limits of Local Authority Accountability’ [2003] Legal
Studies 103.
may be made to the secretary of state who can order a recalcitrant local authority to
fulfil its responsibilities for public health or education. An aggrieved citizen may find
that the provision of such an administrative remedy is found to prevent any action in
tort arising.*’ But, importantly, the courts will need to be mindful of the extent to which
the relevant administrative ‘remedy’ will provide the claimant with a means of obtaining
financial redress.
Where the ‘alternative remedy’ is the imposition of a criminal penalty, the onus will be
on the claimant to establish that his claim falls within one of the two exceptions to the
general rule of non-actionability set out by Lord Diplock in Lonrho.® He must show
that the purpose of the statute was not just to regulate a particular activity in the
general public interest, but also to benefit a class of persons to which he belongs.” On
this footing, the existence of criminal penalties in the Factories Acts did not bar
concurrent remedies in tort. The duties imposed by those Acts were specifically
designed to protect workmen.”' But breach of statutory rules regulating the operation
of greyhound tracks and betting thereon did not enable an aggrieved bookmaker to
sue.” The statute was not passed to safeguard or enhance the business of bookmakers.
(3) Public and private rights

Although the case-law is not entirely clear on this, the emerging view seems to be that
the claimant, in order to sue, must establish that a right or interest of his, as a member
of an ascertainable class of persons, has been violated by the breach of duty. At one
time, it was suggested that a duty owed to the public generally could suffice.” But
some judicial fears about opening the floodgates, coupled with a wealth of contrary
dicta, suggest that this view is no longer tenable. Lord Browne- Wilkinson, in X v
Bedfordshire County Council, for example, saw actions for breach of statutory duty
simpliciter arising only in favour of ‘a limited class of the public’.”
Note, too, Lord Diplock’s second exception” to the general rule of non-actionability
where alternative criminal remedies are provided by the statute which refers to special
damage resulting to the claimant in his enjoyment of a public right (a right available to
all Her Majesty’s subjects). It is somewhat difficult to discern whether Lord Diplock
was simply endorsing Atkin LJ’s approach (that certain duties might be designed to
benefit every member of the public individually), or whether he was initiating a new
category of breach of statutory duty. Such a new category might on its face enable a
person suffering special damage to sue without establishing a specific intention to
67 See, eg, Watt v Hillingdon London Borough Council (1978) 76 LGR 727.
68 Phelps v Hillingdon London Borough Council [2001] 2 AC 619, HL
69 See, Atkinson v Newcastle and Gateshead Waterworks Co (1877) 2 Ex D 441, CA.
70 See, eg, Todd v Adam [2002] 2 Lloyd’s Rep 293, CA.
71 Groves v Lord Wimborne [1898] 2 QB 402. Breach of the duty to stop at a pedestrian crossing
is a rare example of a road safety regulation being interpreted so as to create a right of action
in tort: London Passenger Transport Board v Upson {1949] AC 155, [1949] 1 All ER 60, HL.
Is this perhaps because pedestrians, at zebra crossings constitute a defined class of persons?
72 Cutler v Wandsworth Stadium Ltd [1949] AC 398, CA.
73 Phillips v Britannia Hygenic Laundry Co [1923] 2 KB 832, at 841, CA, per Atkin LJ.
74 [1995] 2 AC 633, at 731, HL. See also, O'Rourke v Camden London Borough Council [1998]
AC 188, at 194, HL; Mid Kent Holdings plc v General Utilities ple [1997] 1 WLR 14.
protect his individual interest. The wording used by his Lordship is obscure and one
of the authorities relied oh is a leading judgment on public nuisance.’”° Thus any
extension of the tort seems unlikely.
>
(D) The harm suffered by him is within the scope of the general class
of risks at which the statute is directed
The leading case is Gorris v Scott.”
A statutory order required that those parts of a ship which were occupied by
animals were to be divided into pens of a specified size by substantial divisions.
D violated this order in respect of a ship on which he was transporting sheep
belonging to C. This violation caused C’s sheep to be washed overboard. The
statute was designed to prevent the spread of disease, not to prevent animals
from being drowned: an action for breach of statutory duty therefore failed.
In similar vein, the duty imposed on highway authorities to repair the roads in order to
protect users from injury was held not to embrace loss of profit to a local trader.”
The House of Lords has held that the statutory duty on an employer to fence every
dangerous part of a machine was confined to the prevention of a workman coming into
contact with moving parts of the machine and did not envisage protecting him from
injury caused by ejected or flying pieces of the machine itself, or of the material on
which the machine was working.” On the other hand, when a bogie was derailed by a
stone that had been allowed to fall from the roof of a mine in breach of the defendants’
statutory duty, and the claimant was thereby injured, the House of Lords held that
‘where the object of the enactment is to promote safety there can be no implication that
liability for a breach is limited to one which causes injury in a particular way’.8° And in
Gerrard v Staffordshire Potteries*' the defendant was found in breach of regulations
requiring eye protection against any ‘reasonably foreseeable risk engaged in the work
from particles or fragments thrown off’ where a foreign body flew out of a jar the
claimant was glazing. The statute was designed to safeguard the worker from any
object dangerous to the eye dislodged in the course of her work.
76 Benjamin v Storr (1874) LR 9 CP 400.

77 (1874) LR 9 Exch 125. But see also Tasci v Pekalp of London Ltd [2001] ICR 633, CA.
78 Wentworth v Wiltshire County Council [1993] 2 All ER 256, CA; and see Merlin v British
Nuclear Fuels ple [1990] 2 QB 557 (damage to property means actual damage not diminished
value through risk of contamination). Contrast the finding in Merlin with Blue Circle Industries
plc v Ministry of Defence [1996] EGCS 190 (contamination requiring an intensive cleansing
operation does constitute damage to land).
79 Close v Steel Co of Wales Ltd [1962] AC 367, HL. Cf Wearing v Pirelli Ltd [1977] 1 All ER 339,
HL (D, an employer, was liable when the unfenced dangerous part of the machine jerked his
employee’s hand against the materials being worked upon).
80 Grant v National Coal Board [1956] AC 649, at 664, HL, per Lord Tucker; Donaghey v
Boulton and Paul Ltd [1968] AC 1, HL; Millard v Serck Tubes Ltd [1969] 1 All ER 598, CA.
81 [1995] ICR 502.
(E) The claimant was one of the persons protected by the statute
Breach of a statute may give rise to an action in tort, but not necessarily at the instance
of the particular claimant, as Knapp v Railway Executive shows.”
The Brighton & Chichester Railway Act 1844 provided for the erection of gates
at level crossings, and the general supervision and maintenance thereof. K had
stopped his car slightly short of a level crossing governed by this Act because
it was closed against road traffic. Somehow, the brake of the car was released;
the car moved forward and struck the gate. The gate had not been maintained in
accordance with the Act, so that it swung back and injured the driver of an
oncoming train. It was held that the purpose of these provisions was to protect
road users against danger from the railway only, and that an engine driver on the
railway was thus not within the scope of the Act.
(F) When damage must be proved

In general the claimant must prove the relevant damage ensuing from the alleged
breach of duty. The question is: what is the nature of the right or interest protected by
the statute? If, for example, it is an interest in personal safety, then the courts will grant
a remedy in tort only if the claimant shows that he has sustained personal injury in
consequence of a breach of the statutory duty.*
There are judgments in which it has been held that where, from its context, it is clear
that the statute created a right in the claimant so absolute in its content that the
claimant was to be protected against a violation, even though it caused no damage,
then the tort is actionable per se. Thus, in Ashby v White,™ interference with the
statutory right to vote was held actionable per se, and in Ferguson v Earl Kinnoull®
the refusal on the part of the defendant, in the face of a statute, to determine the
suitability of the claimant for a living to which he had been presented, was held
actionable per se. Yet in Pickering v Liverpool Daily Post and Echo Newspapers plc*°
Lord Bridge declared that an action could lie only on proof of ‘loss or injury of a kind
for which the law awards damages’. Neither Ashby nor Ferguson were cited in that
judgment.
(G) The conduct of the defendant was of such a character as to

violate the statute
Whether a defendant is liable for a breach, even though his act is neither intentional
nor negligent, depends on the statute. Liability is strict in many cases. For instance,
non-negligent failure properly to maintain a lift in efficient working order has been held
82 [1949] 2 All ER 508, CA. Cf Lavender v Diamints Ltd [1949] 1 KB 585, [1949] 1 All ER 532,
CA.
83 Eg, Watts v Enfield Rolling Mills (Aluminium) Ltd [1952] 1 All ER 1013, CA.
84 (1703) 2 Ld Raym 938. Cf Simmonds v Newport Abercarn Black Vein Steam Coal Co [1921]
1 KB 616, CA.
85 (1842) 9 Cl & Fin 251, HL.
86 [1991] 1 All ER 622, at 632.
by the House of Lords td be an actionable breach of the Factories Act 1937.*’ On the
other hand, other statutes require the defendant only to,,do what is ‘reasonably
practicable’. So, regulation 11 of the Provision and Use of Work Equipment Regulations
1992** requires the use of fixed guards for dangerous machinery ifpracticable and, if
not, sets in place a graded hierarchy of safety measures employers must take. There is
a mass of case law on the interpretation of statutory provisions laying down standards
of conduct: the point to note here is that one must always turn to the statute imposing
the duty to discover against what types of conduct on the part of the defendant the
claimant will be protected by an action in tort.
(H) Causation
As with other torts, heads of damage are recoverable only when the breach of the
defendant ‘caused’ them: moreover, as we have seen in many actions — especially
those by workers for breach of safety requirements — success depends on proof that
injury to the claimant has been so ‘caused’. In this tort ‘the employee must in all cases
prove his case by the ordinary standard of:proof in civil actions: he must make it
appear at least that on a balance of probabilities the breach of duty caused or materially
contributed to his injury’.*’ Thus, where it was shown that a steel erector would not
have worn a safety belt had it been provided, the House of Lords held that his employers
were not liable to him for breach of their statutory duty to provide one.”° Similarly,
where a carpenter fell from a scaffold because the scaffold had been deliberately
pushed over by a workmate, it was not the employer’s breach of duty that had caused
his injury. The employer was required to provide safe equipment and a safe place of
work, but the duty incumbent upon him was to ensure that employees would be safe
from foreseeable risks. The deliberate, wanton act of the workmate did not constitute
such a risk:*' it was a novus actus interveniens that broke the chain of causation.
Section 5. European legislation: the analogous action

On the matter of European Community Law Rights, the English courts have for some
time accepted that directly applicable European Community law can create obligations
the breach of which entitle affected persons to sue for the harm thereby caused.” In
Francovich v Italy,” however, the European Court broadened the bases of liability by
holding that a failure by a member state to implement a directive from the Community
designed to create rights on the part of particular individuals would also give rise to a
claim in damages on the part of those individuals. Strikingly, in Francovich, the
87 Galashiels Gas Co Ltd v Millar [1949] AC 275, HL.

88 SI 1992 No 2932.
89 Bonnington Castings Ltd v Wardlaw [1956] AC 613, at 620, HL, per Lord Reid. Cf McGhee v
National Coal Board [1972] 3 All ER 1008, HL (a common law action in negligence). Even
though C has proved the employer’s breach of statutory duty with regard to a machine, and
even though he has sustained injury from the machine, the onus of proving causation remains
with C: Lineker v Raleigh Industries Ltd [1980] ICR 83, CA.
90 Cummings (or McWilliams) v Sir William Arrol & Co Ltd [1962] 1 All ER 623, HL.
91 Horton v Taplin Contracts Ltd [2002] EWCA Civ 1604 [2003] ICR 179.
92 Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130, HL.
93 [1993] 2 CMLR 66.
Breach of statutory duty 47\
Community legislation in question was not directly effective (which meant that, in the
absence of an action against the state, there would have been no-one against whom an
action could have been brought). But it has since been established by the European
court that the Francovich principle applies in even more circumstances: where the
legislation is of direct effect, where the breach of Community law entails a legislative
act (not merely an omission),”> and in respect of administrative decisions.”
The conditions that must be satisfied in order to sue according to this ‘eurotort’
principle were set out by Lord Slynn in R v Secretary of State for Transport, ex Pp
Factortame Ltd. He said:
Before a member state can be held liable, a national court must find that
(i) the relevant rule of Community law is one which is intended to confer rights
on individuals;
(ui) the breach must be sufficiently serious;
(iii) there must be a direct causal link between the breach and the loss complained
of.””
The similarity between the first requirement and the test adopted in relation to an
action for breach of statutory duty is immediately apparent; yet the similarity between
the two forms of action was arguably furthered in Three Rivers District Council v
Bank of England (No 3). where the House of Lords held that a failure to comply with
a banking directive concerning the regulation of credit institutions was fundamentally
concerned with harmonising banking practice, rather than protecting depositors. In
this way, the court was not simply looking at whether Community legislation in question
was intended to confer rights on individuals, but whether it was intended to be for the
benefit of a defined class: depositors. Since their Lordships answered this question in
the negative, the action failed.
It has since been explained further in relation to the second limb that the pivotal phrase
‘sufficiently serious’ does not necessarily require negligence or fault (although fault
may be a material consideration), and that the seriousness of the breach must be
judged in the context of the clarity of the community rule breached and, where
appropriate, the legislative discretion afforded to the member state.” Here, too, the
similarities with breach of statutory duty principles are striking.
Section 6. Defences
(A) The relation between criminal and tortious liability
Breaches of particular statutory duties may give rise both to criminal and tortious
proceedings. It must not, however, be assumed that the defences in each case are
94 Brasserie du Pécheur SA v Federal Republic of Germany (Case C-46/93) [1996] ECR 1-1029.
95 Rv Secretary of State for Transport, ex p Factortame Ltd (Case C-48/93).
96 Rv Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) (Case C5/94)
[1996] ECR 1-2553. ot :
97 [1999] 4 All ER 906, at 916, HL. These conditions derive directly from the decision of the
European Court of Justice in Brasserie du Pécheur SA v Federal Republic of Germany (Case
C-46/93) [1996] ECR I-1029, at [74].
98 [2000] 2 WLR 1220, HL.
99 Rv Secretary of State for Transport, ex p Factortame Ltd (No 5) [1999] 4 All ER 906, HL.
identical. For examplethe defences open to mine owners under the Coal Mines Act
1911 were held to be wider in criminal law than in actions for breach of statutory
duty.'°°
>
(B) Assumption of risk

Wheeler v New Merton Board Mills Ltd'°' decided that volenti non fit injuria is not a
defence to an action brought by a workman for breach by an employer of his statutory
duty — at least where the statute makes the employer liable whether or not his conduct
was intentional or negligent. In JCI Ltd v Shatwell,'” the House of Lords approved
the Wheeler case so far as employers’ statutory duties are concerned; but it added that
the defence of volenti ‘should be available where the employer was not himself in
breach of statutory duty and was not vicariously in breach of any statutory duty
through the neglect of some person who was of superior rank to the claimant and
whose commands the claimant was bound to obey’.'® The grounds for the Wheeler
decision are not obvious: this makes it all the harder, in the absence of any decision
outside the sphere of such duties of employers to workers, to know whether the
defence is generally inapplicable to actions for breach of statutory duty.'* It may well
be contrary to public policy for anybody (not merely employers) to contract out of a
duty imposed by Act of Parliament: if this is so, assumption of risk may never be a
defence to this action.
(C) Contributory negligence

At common law, contributory negligence on the part of the claimant was a complete
defence.'*> Apportionment of damages is now possible under the Law Reform
(Contributory Negligence) Act 1945.'°° The principles of the defence are the same as
those already discussed, subject to the following.'°’ Legislation and regulations
designed to protect health and safety are often expressly designed to protect workers
against acts of inattention; accordingly, a ‘risky act due to familiarity with the work or
some inattention resulting from noise or strain’ will not be contributory negligence,
although it might be sufficient negligence to make the employer vicariously liable to a
third party negligently injured thereby.'** Frequently, the employer will have delegated
100 [1933] 2 KB 669, CA.

101 [1965] AC 656, HL.
102 [1965] AC 656, HL.
103 [1965] AC 656, at 687, HL.
104 See Alford v National Coal Board [1952] | All ER 754, at 757, HL, per Lord Normand
(obiter).
105 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, HL (unanimous, but
obiter).
106 Cakebread v Hopping Bros (Whetstone) Ltd [1947] KB 641, CA; Tasci v Pekalp of London Ltd
[2001] ICR 633, CA.
107 It is difficult to accept the view of Denning J, in Lavender v Diamints Ltd [1948] 2 All ER 249
(not considered on appeal, [1949] 1 KB 585, CA), that C, if contributorily negligent in an
action for non-negligent violation of statutory duty, must be awarded no damages.
108 Staveley Iron and Chemical Co Ltd v Jones [1956] AC 627, at 648, HL, per Lord Tucker
(explaining the similar decision of the House of Lords in Caswell v Powell Duffryn Associated
Collieries Ltd [1939] 3 All ER 722). In Mullard v Ben Line Steamers Ltd [1971] 2 All ER 424,
CA, the deduction for contributory negligence was reduced because C’s conduct ‘was a monetary
to his employee responsibility for the performance of the statutory duty and that
employee will then have been negligent. The House of Lords held in Boyle v Kodak
Ltd'® that ‘once the [claimant] has established that there was a breach of enactment
which made the employer absolutely liable, and that that breach caused the accident,
he need do no more.’''® But ‘if the employer can prove that the only act or default of
anyone which caused or contributed to the non-compliance was the act or default of
the [claimant] himself, he establishes a good defence’.""!
In Boyle v Kodak Ltd the statutory duty to fix a ladder securely while a storage tank
was painted was imposed on both the employers and the employee who was injured
through its breach. The Court of Appeal dismissed the action on the ground that the
claimant was the sole cause of the accident, but the House of Lords allowed his appeal.
The employers had not proved that they had instructed the claimant on how to comply
with the regulations. As such, their breach of statutory duty was a cause of the damage.
The significance of the claimant also being in breach of his statutory duty was that it
constituted a ground for apportionment of the damages: he was awarded one half. Had
the statute imposed the duty on the employers alone, the claimant’s damages would
not have been reduced (although performance of the duty was delegated to him by his
employers) unless the employers proved that the claimant failed to take care for his
own safety and so was contributorily negligent.
(D) Act of a third party

This is no defence where the statute is deemed to impose liability so strict that the
defendant is responsible for such acts: everything depends on the interpretation of
the Act.'
(E) [Ex turpi causa

The Court of Appeal has held that the defence of ex turpi causa non oritur actio may
be invoked in cases where the claimant is relying on a breach of statutory duty.''’
error, not to be judged too harshly when balanced against the defendants’ flagrant and continuous
breach of statutory duty’, per Sachs LJ, at 428. On the difficulty of proving contributory
negligence in this tort (as distinct from that of negligence) see Westwood v Post Office [1974]
AC 1, HL, and especially the statement by Lord Kilbrandon (at 17), that a workman’s
disobedience is not the same as contributory negligence.
109 [1969] 2 All ER 439. This decision applied Ross v Associated Portland Cement Manufacturers
Ltd [1964] 2 All ER 452, HL and Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414.
110 [1969] 2 All ER 439, at 441, HL, per Lord Reid.
111 [1969] 2 All ER 439, at 446, HL, per Lord Diplock.
112 Cooper v Railway Executive (Southern Region) [1953] 1 All ER 477, at 478.
113 Hewison v Meridian Shipping Services pte Ltd (2003) 147 SJLB 24, CA (C’s fraudulent
concealment of his epilepsy led to the defeat of his claim).
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Part VI
Interests in reputation — defamation

476 Interests in reputation — defamation
X
Contents ’
CHAPTERS PAGE
22 Defamation: foundational principles 477

23 Defences and remedies in defamation 501
CHAPTER 22
Defamation: foundational principles
(A) Background issues

There are two types of defamation: libel which, in general, is written, and slander
which, in general, is oral.' In some respects, different rules are applicable to each.
Both, however, protect the interest in the reputation of the claimant. There is, therefore,
no tort unless there has been a communication of the defamatory matter to a third
party, for it is the opinion held of the person defamed by others that matters.> Insults
directed to the claimant himself do not in themselves constitute defamation; for the
tort is not primarily concerned with the claimant’s wounded feelings. Instead, the gist
of the action is that the defendant either lowers the claimant in the estimation of
reasonable, right-thinking members of society, or causes such citizens to shun or
avoid the claimant.
In many ways defamation is unique among torts, and it is best understood in the
context of its historical development. Until the sixteenth century, the ecclesiastical
courts exercised general jurisdiction over defamation. Thereafter, the common law
courts developed an action on the case for slander where ‘temporal’ (as distinct from
“spiritual’) damage could be established. This progress became too rapid for the judges,
who proceeded to restrict the scope of the action. During the Stuart period, the Court
of Star Chamber assumed criminal jurisdiction over all types of libels. The common law
courts succeeded to this jurisdiction on the abolition of that court in 1641. The upshot
of this was that the common law courts then established a distinction between libel
and slander on the basis that damage would be presumed in libel, but that the claimant
would have to prove ‘special damage”* before an action for slander would lie.
1 It is inaccurate, however, to say that slander is always oral and that libel is always visual. The
use of sign language as between two deaf persons, for example, is probably capable of constituting
slander. Equally, television broadcasts and public theatre performances of a defamatory nature
are, by statuté, libellous rather than slanderous: see below.
Z For a full account, see Section 5, below.
3 For a powerful argument that it is not reputation, per se, that matters, but rather the concern
that persons ought not wrongly to be judged by false information see Gibbons, ‘Defamation
Reconsidered’ (1996) 16 OJLS 587.
4 The phrase ‘special damage’ is to some extent misleading; ‘actual damage’ is a more accurate
term to capture the sense of what must be proved: see Jolowicz, ‘The Changing use of “Special
Damage” and its Effects on the Law’ [1960] CLJ 214.
‘
In the late nineteenth and early twentieth centuries, liability in defamation was extended
because of the menace to reputations occasioned by the mass circulation of the new,
popular press. The recent history of defamation is marked by continuing conflict
between the need to protect the character and privacy of individuals, on the one hand,
and the right to freedom of speech, on the other.* The intensity of this conflict has
naturally been heightened with the enactment of the Human Rights Act 1998, bringing
with it formal rights to both privacy (Art 8) and freedom of speech (Art 10). Of course,
the press maintains that the latter is often disregarded at the expense of open and
honest criticism of those in authority. But in Derbyshire County Council v Times
Newspapers Ltd’ the press scored a notable victory. The House of Lords ruled that
public authorities and governmental bodies were not entitled to sue in defamation. As
Lord Keith put it:
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.’
Since that case was decided, two further cases have confirmed the fundamentality of
the right to freedom of speech conferred by Article 10 of the European Rights
Convention. In the first, Zolstoy Miloslavsky v United Kingdom,* the European Court
of Human Rights issued a declaration that a libel damages award of £1.5m granted by
an English jury had been a violation of the defendant’s freedom of speech in that case
(but it also recognised that practice had changed since the mid-1990s). In the second,
Reynolds v Times Newspapers Ltd,’ the Court of Appeal was mindful of the fact that
the Convention was due to become part of English law and suggested that, English
common law ought therefore to allow the defence of qualified privilege to be raised by
the press when commenting on public figures.
On the other hand, there has been at least some judicial intimation that the time may be
nigh to recognise something very close to a right to privacy founded on Article 8 of the
Human Rights Convention. In Douglas v Hello! Ltd Sedley LJ took a bold step towards
the general recognition of privacy: the thrust of his argument being that, since the
courts are public authorities for the purposes of section 6 of the Human Rights Act
1998, they are now bound to develop the common law — including the law of defamation
— in accordance with the Article 8 right to respect for privacy."
His view, however, is far from the universally shared among his fellow Court of Appeal
judges, for others have been equally forthright in expressing doubts about whether
English law has reached the stage of recognising a distinct cause of action based on
5) See, eg, Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670, CA. See, also
Barendt, ‘Libel and Freedom of Speech in English Law’ [1993] PL 449. .
6 [1993] AC 534, HL. Note, too, their Lordship’s references to (but not reliance on) Art 10 of
the European Convention on Human Rights.
ai [1993] AC 534, at 547. The principle was extended to political parties in the course of an
election campaign in Goldsmith v Bhoyrul [1997] 4 All ER 268. But what if an individual party
member sues gua individual?
8 (1995) 20 EHRR 442.
[1998] 3 All ER 961, CA.
10 [2001] QB 967, CA, at [129].
privacy." It has also been suggested that it would be inapt for the courts (rather than
Parliament) to introduce such an innovation.'? Notably, in juridical terms, none of
these views so far expressed constitute binding authority.
The political import of the tort of defamation means that many changes in the law have
been effected by legislation, some of it ill-considered and badly drafted. The tort is
also notable for many detailed and complex rules — some substantive, others procedural.
Despite these statutory and common law complexities, defamation actions have proved
to be a popular recourse for wealthy public figures seeking, with the aid of expensive
lawyers, to vindicate their reputations publicly in the law courts.'? Indeed, the tort is to
some extent a wealthy person’s tort, for legal aid is available neither to pursue, nor to
defend, a defamation action. On the other hand, a number of libel actions in the past
have, on occasion, been supported by private funds set up by wealthy individuals
with an axe to grind who have themselves suffered at the hands of the popular press.
Another notable facet of defamation actions in relatively recent years is the very high
level of damages that have been awarded. These damages have not simply compensated
the claimants for their loss of reputation; they have also included very sizeable amounts
of exemplary (or punitive) damages. The amount of damages is normally set by a jury,"
and until recently the Court of Appeal had no power to reduce any award made by the
jury. It could only order a new trial if it found the damages to be excessive. However,
Rules of Court made under section 8 of the Courts and Legal Services Act 1990 now
empower the Court of Appeal to substitute for an excessive award ‘such sum as
appears to the court to be proper’. Such a substitution occurred in John v MGN Ltd’
where a famous pop singer’s libel action initially won him £350,000. The damages were
subsequently reduced by the Court of Appeal to £50,000. In addition, Sir Thomas
Bingham MR suggested that, in future, the courts could provide guidance to juries on
the level of awards either substituted or approved by the Court of Appeal in previous
cases, that awards in personal injury cases might be looked at by jurors by way of
comparison, and that the judge and the parties’ respective counsel could indicate to
the jury the award they consider to be appropriate.'®
11 For obiter doubts about whether English Law has reached the stage of recognising a distinct
cause of action based on privacy see Thompson and Venables v News Group Newspapers
[2001] Fam 430, per Butler-Sloss LJ (obiter) and Wainwright v Home Office [2002] QB 1334,
at [112], CA, per Buxton LJ (obiter), Campbell v MGN Ltd [2003] QB 633, CA, (no action in
respect of breach of privacy: publication of photographs was in th public interest on the facts
of the case).
12 See Douglas v Hello! Ltd (No 6) [2003] EWHC 786, at [229].
13 Note that some of the scope for litigation has been removed by s 5 of the Defamation Act
1996 which reduces the normal limitation period from three years to one year (but note that
this is extendable at the court’s discretion — on which, see Steedman v BBC [2002] EMLR 318.
Note also the summary procedure under the 1996 Act which confers considerable powers of
disposal upon the courts (under ss 8-10), helps to streamline procedure and avert the possibility
of protracted litigation, so long as adequate compensation can be achieved by an award not
exceeding £10,000. For use of the summary procedure see, eg, Bunstein v Times Newspapers
Ltd [2001] 1 WLR 579, CA; Loutchansky v Times Newspapers Ltd [2001] 3 WLR 404, CA.
14 Exceptionally, under the summary procedure introduced by s 8 of the Defamation Act 1996,
a judge may determine the level of damages that C is to receive.
15 [1996] 2 All ER 35. See also Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670,
CA and Jones v Pollard [1997] EMLR 233, CA (award of £100,000 reduced to one of
£40,000). On the other hand, the Court of Appeal will not reduce high (but not excessive)
levels of damages: see Kiam v MGN Ltd [2002] 2 All ER 219, CA.
16 John v MGN Lid [1996] 2 All ER 35, at 51-2. As a limit to such guidance, on the other hand,
D is not permitted to mention to the jury any of the amounts he may have offered to C in their
pre-trial correspondence: Kiam v Neil [1995] EMLR 1, CA.
Defamation has become a lucrative specialism for lawyers, tog. Even a brief trawl of the
decided cases reveals that a good many of the cases that reach the appeal courts turn
on complex arguments concerning pleading and particulars. In consequence, legal
costs consume large proportions of many claims. In the headline-grabbing McLibel
case,'’ some years ago, costs had soared to £10m while the award was for the
comparatively small sum of £60,000. Partly because of such cases, the Defamation Act
1996 simplified some aspects of defamation procedure’* and diverted a number of
cases away from the courts,'’ providing instead for a summary procedure to dispose of
claims under £10,000.7°
Since no cause of action survives the defamed person’s death,”' it is clear that reputation
is merely a transitory interest. Furthermore, the nature of the available defences identify
it also as being one which has to be balanced against the public interest. For example,
if one informs the police of one’s suspicion that a neighbour is abusing his child, one
may raise the defence of qualified privilege (even if one’s allegations prove to be
unfounded), so long as the suspicion was honestly held. Similarly, as long as the basic
facts are true, fair comment protects the press when expressing their views on the
actions of politicians, public servants and others in the public eye.
The debate on how to achieve the correct balance between (1) the individual’s interest
in his good name and (2) the freedom of speech is a vital attribute of a democratic
society.** But in the context of defamation, the courts are hindered by the elaborate
procedural ‘game’ which characterises many libel actions, the unpredictability of the
jury, and the absence of a developed tort of invasion of privacy.”
Defamation law certainly also has constitutional significance, but its restrictions on
freedom of speech are apt to be overestimated. First, there is an ancient rule that
protects would-be defamers from court actions in respect of their criticism of the
Parliamentary conduct of MPs.** Secondly, there is also a sense in which defamation
itself has become a side issue. Arguably, protection of privacy and prevention of press
harassment have a higher profile.*° But leaving these developments aside it should not
be forgotten that the tort of defamation has an ancient history and a remarkable capacity
for survival.
17 McDonald's Corpn v Steel (1997) Times, 20 June.

18 Defamation Act 1996, ss 8-10. In addition RSC Ord 82, r 3A introduced a procedure allowing
either party to apply to a judge in chambers for a ‘ruling on meaning’ to identify whether a
word or phrase is capable of (as opposed to, formerly, ‘arguably capable of’) bearing a defamatory
connotation. This rule is confirmed by DA 1996, s 7.
19 Eg, s 5 of the Defamation Act 1996 reduces the limitation period in defamation actions from
three years to one year.
20 Defamation Act 1996, ss 8(3), 9(1)(c). To use this summary procedure the court must primarily
be satisfied that ‘there is no defence to the claim which has a reliable prospect of success’ there
being no other reason why the case should be tried: s 8(3). If there is no such prospect of
success, and no other reason why the case should be tried, the court may dismiss the case: s
8(2): see Swain v Hillman [2001] 1 All ER 91, CA.
21 See Law Reform (Miscellaneous Provisions) Act 1934, s 1(1). However, defaming a dead
person may still constitute a criminal libel.
22 See Gibbons, ‘Defamation Reconsidered’ (1996) 16 OJLS 587.
23 See Douglas v Hello! Ltd (No 6) [2003] EWHC 786, at [229]; Thompson v News Group
Newspapers [2001] Fam 430; Wainwright v Home Office [2002] QB 1334, CA.
24 Bill of Rights 1689, Art 9.
25 See, eg, Douglas v Hello! Ltd [2001] QB 967, CA; Douglas v Hello! Ltd (No 6) [2003] EWHC
786.
Defamation: foundational principles 48|
Section 2. Elements of defamation

Regardless of whether a defamation action is framed in libel or slander, the claimant
must always prove that the words, pictures, gestures etc are defamatory. Secondly, the
claimant must show that they refer to him and, finally, that they were maliciously
published. These are the three essential elements in a defamation action.
(A) The meaning of defamatory
(1!) Injury to reputation

The classic definition of a defamatory statement is one ‘which is calculated to injure
the reputation of another, by exposing him to hatred, contempt or ridicule’. It is clear
that being made a laughing stock is not sufficient. In Blennerhasset v Novelty Sales
Services Ltd,”’ for example, a newspaper advertisement was headed ‘Beware of Yo Yo’
and went on to imply that Mr Blennerhassett, a worthy man, had now been placed
under supervision in a quiet place in the country by reason of his fascination at the
defendant’s toy, the Yo Yo. Although the claimant, a stockbroker, showed that his
arrival at the Stock Exchange on the day after the publication was greeted with ‘jeers,
ribaldry and laughter’, the statement was held not to be capable of a defamatory
meaning.”
The inadequacy of the classic definition is now generally recognised, especially in
that it does not embrace injury to trading reputation.”” Lord Atkin once proposed the
alternative test of whether: ‘the words tend to lower the claimant in the estimation of
right-thinking members of society generally?’*° But, while this test cures some of the
defects of the earlier one, the expression ‘right-thinking members of society’ is just as
problematic. For example, although it is established that it is defamatory to say that a
person is insane,*' or that she has been raped,” do right-thinking persons nowadays
think less well of those unfortunates? On the other hand, that one’s associates (being
themselves an ordinary cross-section of a respectable part of the community) think
less well of one in consequence of a statement does not necessarily make that statement
defamatory. Thus, in Byrne v Deane it was held that to impute that a member of a golf
26 Parmiter v Coupland (1840) 6 M & W 105, at 108, per Parke B; Emerson v Grimsby Times
and Telegraph Co Ltd (1926) 42 TLR 238, CA.
2 (1933), I SMED 0393;
28 On the other hand, so long as it inspires contempt or ridicule, even a caricature has been held
to constitute defamation: Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367, HL. Cf Dolby v
Newnes (1887) 3 TLR 393.
29 Eg, Capital and Counties Bank v George Henty & Sons (1882) 7 App Cas 741, at 771, HL, per
Lord Blackburn; Tournier v National Provincial and Union Bank of England [1924] 1 KB
461, at 477 and 486-7, CA, per Scrutton and Atkin LJJ.
30 Sim v Stretch [1936] 2 All ER 1237, at 1240, HL. In Rubber Improvement Ltd v Daily
Telegraph Ltd [1964] AC 234, at 285, HL, Lord Devlin said that the test was the effect on the
‘ordinary’ man, not the ‘logical’ man. See also Skuse v Granada Television Ltd [1996] EMLR
278 and Berkoff v Burchill [1996] 4 All ER 1008, CA (to describe someone as ‘hideously ugly’
was held by a majority of their Lordships to be capable of lowering C’s public standing). Cf
Norman v Future Publishing Ltd [1999] EMLR 325, CA (gentle humour short of ridicule is not
actionable).
31 Morgan v Lingen (1863) 8 LT 800.
32 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, CA.
‘
club had informed the police about an illegal fruit-machine kept in the club was not
defamatory even though it lowered him in the esteem of his fellow members.** A certain
class of society may think badly of police informers, but simply to impute this practice
to someone is nonetheless not defamatory.’ Similarly, ought it to be regarded as
defamatory to say of a worker who stayed at work during a strike that he was a ‘scab’
ora ‘blackleg’?** And, do allegations that X is homosexual lower X in the estimation of
anyone other than homophobes?*°
The truth is that English law has not defined ‘defamatory’ with satisfactory
precision.*’ With diffidence it is suggested that the ‘right-thinking’ person test
(which has yet to be subject to an appellate court’s close scrutiny) must be
understood in one of two ways. First, if most citizens would shun or avoid a
person in consequence of the statement, then it will be classed as defamatory.
Secondly, and alternatively, ifa substantial and respectable proportion of society
would think less well of a person then, again, the statement will be construed as
defamatory provided that their reaction is not plainly anti-social or irrational.**
Both these interpretations accord with Byrne v Deane and also support the view
that it is defamatory to say that someone is a ‘scab’ or a member of the National
Front.
(A) Wonrbs OF ABUSE

To say that abuse is not defamatory is misleading. The cases relied on for this erroneous
statement are cases of slander deciding that special damage must ordinarily be proved.”
The test to be applied to words of abuse is exactly the same as for other allegedly
defamatory statements. Thus, it may be defamatory to call a man a villain,*° a
black-sheep,*' an habitual drunkard® or a pansy.** What matters is the context and
33 [1937] 1 KB 818, CA.

34 Sim v Stretch [1936] 2 All ER 1237, HL. On the other hand, not merely the golfing fraternity,
but right-thinking persons will (it has been held) think worse of an amateur golfer who allows
his name to be used in the advertising of chocolates: Tolley v JS Fry & Sons Ltd [1931] AC 333,
HL. Yet, in Gibbings v O’Dea & Co Ltd (1948-9) Macgillivray & Le Quesne Copyright Cases
31 it was held not to be libel for D to use the name of C, who was an author, on an advertisement
for mattresses in the Jrish Times.
35 McCardie J thought not in Myroft v Sleight (1921) 90 LJKB 883.
36 Probably not: see Quilty v Windsor 1999 SLT 346. See also Arab News Network v Al Khazen
[2001] EWCA Civ 118 (a lowering of reputation within a particular racial group is insufficient).
37 Gibbons’ answer would be to change the basis of the action from damage to reputation to
awarding a remedy for unsubstantiated allegations that cause C to be falsely judged: ‘Defamation
Reconsidered’ (1996) 16 OJLS 587.
38 If the words would not in themselves convey to the ordinary person the meaning which a
special group of experts would give to them, then this interpretation would not apply (unless
an innuendo were pleaded: see below) because the basic rule that words must be defamatory in
their ordinary meaning would not be satisfied: Mollo v BBC (1963) Times, 2 February. Nor is
it defamatory, without more, for D to say that C is Mr X, even though others have published
defamatory articles about Mr X: the libel complained of must be in the statement published by
D: Astaire v Campling [1965] 3 All ER 666.
39 Eg, Thorley v Lord Kerry (1812) 4 Taunt 355. But in that case, it was explicitly stated (at 365)
that, ‘for mere general abuse spoken, no action lies’.
40 Bell v Stone (1798) 1 Bos & P 331.
41 MGregor v Gregory (1843) 11 M & W 287.
42 Alexander v Jenkins [1892] 1 QB 797, at 804, CA, per Kay LJ.
43 Thaarup v Hulton Press Ltd (1943) 169 LT 309, CA. For an example of a particularly abusive
alleged libel see Cornwell v Myskow [1987] 2 All ER 504, CA.
manner in which the words are uttered. Thus, even a word like ‘Mafia’ can be
understood to describe a close-knit group in a metaphorical, but not defamatory, sense.¥4
(8) |Worpbs OF OPINION

A statement may be defamatory, even though the maker states it, not as fact, but as
mere opinion.** One must take into account circumstances of time and place.*° Thus, in
Slazengers Ltd v C Gibbs & Co," it was defamatory to state during the war with
Germany that the claimants were a German firm that were likely to be closed down.
(Cc) OTHER EXAMPLES OF INJURED REPUTATION

Several further examples may help to illustrate what is, and what is not, defamatory.
To say that a motorist drove negligently is defamatory,** but not (in itself) that a
trader has been put on a stop-list. Nor is it defamatory to announce in a newspaper
that the claimant was married on the day before the date fixed for the wedding.® On
the other hand, it is defamatory to impute to a trader, businessman or professional
man a lack of qualification, knowledge, skill, capacity, judgment or efficiency in the
conduct of his trade or business or professional activity (such as a severe attack on
the special anaesthetising technique of a practising dental surgeon®'). Yet it is not
per se defamatory merely to criticise a trader’s goods; the trader himself must be
attacked for a defamation action to lie. If, however, one can read into a criticism of the
product a criticism of its maker, then the criticism may be defamatory.** To say that a
baker’s bread is always unwholesome is, for instance, defamatory.*’ But to say that
a product does not answer its purpose is not.** To say that a trader is bankrupt or
insolvent is defamatory;°° but to say that he has ceased to be in business is not, for
it does not reflect on his reputation.*°
44 Brooks v Lind 1997 Rep LR 83 (not defamation to suggest C was associated with a ‘Council
Mafia’).
45 Braddock v Bevins [1948] 1 KB 580, at 598, CA.
46 Dolby v Newnes (1887) 3 TLR 393 (a statement at a private dinner party, although not
defamatory, may become so if repeated in a magazine).
A AAONG SS) DIERSS:
48 Groom v Crocker [1939] 1 KB 194, CA.
49 Ware and De Freville Ltd v Motor Trade Association [1921] 3 KB 40, CA.
50 Emerson v Grimsby Times and Telegraph Co Ltd (1926) 42 TLR 238, CA.
51. Drummond-Jackson v British Medical Association [1970] 1 All ER 1094, CA.
52 Evans v Harlow (1844) 5 QB 624.
53 Linotype Co Ltd v British Empire Type-Setting Machine Co Ltd (1899) 81 LT 331, HL, per
Lord Halsbury LC.
54 Evans v Harlow (1844) 5 QB 624.
Shepheard v Whitaker (1875) LR 10 CP 502. , .
55
56 Ratcliffe v Evans [1892] 2 QB 524, CA. Nor is it defamatory to say that his business is suffering
as a result of competition: Stephenson v Donaldson & Sons (1981) 262 Estates Gazette 148.
In some circumstances it may be the separate tort of injurious falsehood.
‘
(2) Who may be defamed “
Either a living person*’ or the commercial reputation of a trading corporation may be

defamed.** Accordingly, it is defamation to claim that X Ltd indulges in black-market
activities.°” -
The fact that the law allows commercial enterprises to sue for defamation is seen by the
press as a powerful inhibition of vigorous criticism of such entities. The threat to sue
for libel has a ‘chilling effect’ on investigations by the media and may allow corrupt
practices to remain hidden from the public. The late Robert Maxwell used the libel laws
to good effect to protect his dubious empire. But can public authorities also invoke
defamation law to protect their ‘governing reputation’? The House of Lords unanimously
said ‘No’ to this in Derbyshire County Council v Times Newspapers Ltd®
Ds had published articles questioning the propriety of C’s management of pension

funds. The House of Lords struck out the claim holding that democratically
elected government bodies and public authorities should be open to uninhibited
public criticism. The ‘chilling effect’ of libel might prevent publication of matters
about which the public ought to be informed.
In effect, the right of free speech and freedom of the press (enshrined in Article 10 of
the European Convention on Human Rights) outweighed the Council’s claim to protect
its reputation.®! But much of what their Lordships said about libel and public authorities
could apply with equal force to other classes of claimant. Moreover, the limitation on
the authority suing in libel — be it a local council or government ministry — does not
apply to any individual who can show that he personally has been defamed. The Prime
Minister is just as much entitled to sue for defamation as anyone else, regardless of
whether the alleged defamatory statement concerns his personal or professional
conduct.
(3) The interpretation of defamatory statements

It has so far been assumed that the meaning of the statement complained of is readily
ascertainable. But this is not always so. There are, therefore, certain rules of
interpretation which must now be considered.
57 In the absence of any decision by English courts on the point, it may be presumed that they will
follow decisions in other common law jurisdictions to the effect that words defamatory of dead
persons will not sustain an action by relatives who cannot prove that their reputation is
besmirched. A trade union cannot be defamed: Electrical, Electronic, Telecommunication and
Plumbing Union v Times Newspapers Ltd [1980] QB 585, CA, because the Trade Union and
Labour Relations (Consolidation) Act 1992, ss 10-12 deprive trade unions of legal personality.
58 In relation to companies, the statement ‘must attack the corporation or company in the
method of conducting its affairs, must accuse it of fraud or mismanagement, or must attack its
financial position’: South Hetton Coal Co v North-Eastern News Association [1894] 1 QB 133,
at 141, CA, per Lopes LJ.
59 D&L Caterers Ltd and Jackson v D’Ajou [1945] KB 364, CA. Cf Holdsworth Ltd v Associated
Newspapers Ltd [1937] 3 All ER 872, CA (actionable to say that a limited company refused to
accept an interim wages award of the joint conciliation board for the industry). A company
may recover substantial damages even though it suffers no financial loss: Selby Bridge
(Proprietors) v Sunday Telegraph Ltd (1966) 197 EG 1077.
60 [1993] 1 All ER 1011 (overruling Bognor Regis UDC v Campion [1972] 2 QB 169).
61 For critique see Loveland, ‘Defamation and “Government”: Taking Lessons from America’
[1994] Legal Studies 206. Recall, also, that the Convention has all but been incorporated into
English law by virtue of the Human Rights Act 1998: see ch 1.
(A) INNUENDO
The initial question in any defamation action is whether the words complained of are
capable of bearing a defamatory meaning. In the absence of an allegation that those
words possess an extended meaning, words must be construed by the judge” in their
ordinary and natural sense. The whole of the statement must be looked at, not merely
that part which the claimant alleges to be defamatory (although, of course, it may be
relevant to take account of the greater importance of some part of a statement — eg, the
headlines of an article in a newspaper™). In Charleston v News Group Newspapers
Ltd,® for instance, two soap opera stars sued in respect of material published in the
defendants’ newspaper which depicted the claimants’ faces superimposed upon two
near-naked torsos. The article printed beneath the picture castigated the makers of a
pornographic computer game. It was held that, taken as a whole, the picture and the
article were not capable of being defamatory.
There may be circumstances, too, where the context in which the words were uttered
must be taken into account. In Bookbinder v Tebbit,’ for example, the alleged slander
was made at a political meeting. The court said that the meaning to be attached to the
defendant’s words could be affected, among other things, by the form of the question
to which the words were an answer or the general course of the speech in issue.
Similarly, there may be circumstances where the claimant alleges that the statement is
defamatory because specific facts known to the reader give to the statement a meaning
other than, or additional to, its ordinary meaning. This is known as a ‘true’ or ‘legal’
innuendo, and here the claimant must plead and prove such facts because the
defendant is entitled to know the meaning of the statement on which the claimant
seeks to rely so that he is able to argue either that, even thus construed, the statement
is not defamatory or that it is true of the claimant.
There is also a third possibility: that the words may have a meaning beyond their literal
meaning which is inherent in them and arises by inference or implication. This is
sometimes known as a ‘false innuendo’ and it is something that the claimant must
plead separately. A ‘false innuendo’ differs from a ‘true innuendo’ in that the pleader of
a ‘false innuendo’ does not generally need to set out any extrinsic facts in support of
62 Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, at 465, HL, per Lord
Greene.
63 Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741, at 772, HL, per
Lord Blackburn; Skuse v Granada Television Ltd [1996] EMLR 278, CA; Gillick v BBC [1996]
EMLR 267, CA. In Mitchell v Faber and Faber Ltd [1998] EMLR 807, CA, Hirst LJ stated
that, ‘[iJn deciding whether words are capable of carrying a defamatory meaning the court will
reject those meanings which can only emerge as the product of some strained or forced or
utterly unreasonable interpretation’. Similarly, in Edwards v Times Newspapers Ltd (1997)
(unreported) it was held that the ordinary meaning of the words used must be construed in the
light of the meaning that would be attached to them by ‘the ordinary reader’.
64 Shipley v Todhunter (1836) 7 C & P 680.
65) [L995 2AC 65, HL:
66 For criticism see Chakravarti v Advertisers Newspapers [1998] HCA 37, at [134], per Kirby J.
67 [1989] 1 WLR 640, at 647, CA.
68 Ord 82 r 3(1) provides that ‘where the [claimant] alleges that the words or matter complained
of were used in a defamatory sense other than their ordinary meaning, he shall give particulars
of the facts and matters on which he relies in support of such sense’. Case law adds that C must
prove that those facts were actually known to some people (Fullam v Newcastle Chronicle
and Journal Ltd [1977] 1 WLR 651, CA) and that these facts were in existence and known to
those people, at the time of the publication (Grappelli v Derek Block (Holdings) Ltd [1981]
2 All ER 272, CA).
*
his plea. But if there is no obvious ordinary or natural meaning to be ascribed to the
words complained of, then this obscures the sense in which the words bear a ‘false
innuendo’. It has therefore been held, in Allsop v Church of England Newspaper
Ltd,® that the claimant must plead the particular meaning upon which he relies in such
cases.
(i) True innuendoes

Here are some typical examples of ‘true’, or ‘legal’, innuendoes. In one case, the
defendant, having engaged the claimant, a well-known singer, to perform at a concert,
printed her name third in the order on the programme. The court accepted evidence
that in the world of musical performances the best singer is always placed at the head
of the programme with those holding a lesser reputation in the middle. As such, the
programme constituted a defamatory innuendo of the claimant.”° In another case, a
caption under a newspaper photograph of a man and a woman to the effect that it was
Mr C and his fiancée conveyed to those who knew that the claimant lived with Mr C as
his wife the defamatory meaning that she had done so without being married to him.”!
Finally, it has also been held that to include a cartoon of a well-known amateur golfer
in an advertisement for chocolate implied he was being paid for the advert and thus
prostituting his amateur status.”
In Hough v London Express Newspaper Ltd,” the question that arose was whether a
claimant relying on an innuendo has to prove that it was published to somebody who
interpreted the matter in the defamatory sense alleged.
D published an account and photograph of the ‘curly-headed wife’ of a named
boxer. C, the boxer’s wife, produced witnesses who gave evidence that they had
read the statement to mean that C was not the wife of the boxer. In the event, they
were not misled into thinking that she was not his wife, nor was any person
produced as a witness so misled. Nonetheless, it was held that the appropriate
test was an objective one. The court found in C’s favour: it was enough to prove
that there are people who might understand the words in a defamatory sense,
but no need for ‘evidence that some person did so understand them’.”
(ii) False innuendoes

Problems also arise with regard to false innuendoes. In Rubber Improvement Ltd v
Daily Telegraph Ltd,’° the defendants published an article which stated that the Fraud
Squad of the City of London Police were investigating the affairs of the claimants’
69 [1972] 2 OB 161, CA:

70 Russell v Notcutt (1896) 12 TLR 195, CA.
71 Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331, CA.
72 Tolley v JS Fry & Sons Ltd [1931] AC 333, HL.
73 [1940] 2 KB 507, CA.
74 [1940] 2 KB 507, at 515, CA, per Goddard LJ. See also Theaker v Richardson [1962] 1 All ER
229, CA (D liable for publishing a libel to C’s husband although no evidence that husband
believed the accusation made against his wife) and Shanson v Howard [1997] CLY 2037.
75 [1964] AC 234, HL; sub nom Lewis v Daily Telegraph Ltd [1963] 2 All ER 151, HL. But see
Hyams v Peterson [1991] 1 NZLR 711 where the New Zealand Court of Appeal found a
statement containing words of suspicion could impute guilt.
company. The article was found to be defamatory in its ordinary meaning because the
simple statement that the Fraud Squad are inquiring into his affairs may damage his
reputation even though it is consistent with his innocence. However, since what was
said was true — the Fraud Squad were conducting the investigations mentioned — no
action lay.’”° The claimants also alleged that the words were defamatory in a second
way: by imputing that there was ground for suspicion about the way in which their
business was conducted. The thrust of the plea was that imputation of reasonable
suspicion (while consistent with their innocence) was nonetheless capable of
diminishing the claimants’ trading reputation.
On the facts, the House of Lords held that the words were not defamatory in this
second sense. Their Lordships distinguished, on the one hand, imputing reasonable
grounds for suspicion and, on the other, simply reporting the fact of suspicion. As
Lord Devlin put it: ‘[l]oose talk about suspicion can very easily convey the impression
that it is a suspicion that is well-founded’.”’ This crucial distinction between a statement
and imputation of suspicion has since been reasserted by the Court of Appeal in Mapp
v News Group Newspapers Ltd.’”* However, the main point here is that the second plea
in Rubber Improvement Ltd v Daily Telegraph Ltd constituted the allegation of a false
innuendo and therefore did not require the claimants to adduce evidence of any extrinsic
facts which had to be particularised in the pleading — eg, details of particular readers
who would interpret the words in a particular way.
When a defendant newspaper described a well-known broadcaster as ‘bent’ the claimant
had to set out the meaning of the word on which he relied.” If a statement is capable of
many different meanings and the claimant does not specify those on which he relies
the defendant is entitled to justify the statement on any meaning which it reasonably
bears.* If, in a long article which contains many different meanings in relation to him,
the claimant fails to plead the meaning(s) on which he relies, the defendant is entitled
to have the claimant’s statement of claim struck out on the ground that it discloses no
reasonable cause of action.*!
(B) THE ROLES OF JUDGE AND JURY IN CONSTRUING WHAT IS DEFAMATORY

The judge decides whether a statement is capable of bearing a defamatory meaning,
whether in its normal meaning or by innuendo.” That being resolved in the affirmative,
the jury then decides whether it did bear a defamatory meaning on the occasion
76 There is an important difference between something being defamatory simpliciter and something
being defamatory and actionable. To be defamatory, the statement must merely diminish C’s
reputation; but to be actionable, the statement must also be untrue. In short, both true and false
statements may be defamatory, but only the latter may be actionable.
77 [1964] AC 234, at 285, HL.
78 [1998] QB 520, CA.
79 Allsop v Church of England Newspaper Ltd [1972] 2 QB 161, CA.
80 London Computer Operators Training Ltd v BBC [1973] 2 All ER 170, CA.
81 DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] QB 21, CA.
82 Adam v Ward [1917] AC 309, at 329, HL, per Lord Dunedin; Lloyd v David Syme & Co Ltd
[1986] AC 350, PC; Mapp v News Group Newspapers Ltd [1998] QB 520, CA. By virtue of s
7 of the Defamation Act 1996, the judge must consider whether the statement is capable (as
opposed to being merely ‘arguably capable’) of bearing a particular meaning.
complained of.** In order to fulfil his task, the judge must cogstrue the particular words
used to determine whether they are capable of bearing a defamatory meaning; only
once he decides that they may bear such a meaning does the jury then decide whether
in fact they were defamatory.** The claimant may contend that the statement has
different defamatory meanings. In such instances, the judge decides which of those
the statement is capable of conveying, and the jury then decides which particular
meaning within that category the words do in fact bear.*° In Aspro Travel Ltd v Owners
Abroad Group plc,** for example, the court was faced with the question of whether
allegations that the claimants’ family company was ‘going bust’ were capable of bearing
a defamatory meaning. Among other things, the court had to consider the alleged false
innuendo that it was defamatory in the sense that such allegations would lower the
directors of such a company in the estimation of the public by implicitly suggesting
that, notwithstanding the company’s insolvency, the directors were nonetheless
allowing it to continue trading.
Although jury trials are viewed as extremely important in libel cases,*’ it is nonetheless
the case that an appellate court may set aside a jury’s verdict and enter judgment for
the defendant where the jury in the court of first instance found for the claimant after
the first instance judge had entrusted the decision to them. Conversely, on the very
rare occasions when an appellate court holds that a jury could not reasonably have
found that the words were not defamatory, it will set aside the verdict and order a new
trial.’’ Where the judge has misdirected the jury on the law, its verdict will also be set
aside.*” The courts seek to ensure that the issues which come to trial are clean cut in
order to eschew the advantage one party might obtain by clever tactics. It is a
fundamental principle in an action for defamation that:
the trial of the action should concern itself with the essential issues and the
evidence relevant thereto and that public policy and the interests of the parties
require that the trial should be kept strictly to the issues necessary for a fair
determination of the dispute between the parties.”
Moreover, what holds for the claimant also holds for the defendant. Thus, defendants
pleading the defence of justification must do so in a manner which makes it quite clear
what meaning or meanings they seek to justify.”’ Time and again the Court of Appeal
has deplored attempts to take advantage of the rules of pleading in order to acquire an
unfair advantage at the actual trial.”
83 Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331, at 340, CA, per Scrutton LJ.
84 Jones v Skelton [1963] 3 All ER 952, PC.
85 Slim v Daily Telegraph Ltd [1968] 2 QB 157, CA.
86 [1995] 4 All ER 728, CA.
87 See, eg, Safeway Stores ple v Tate [2001] 2 WLR 1377, CA. Cf Alexander v Arts Council of
Wales [2001] 1 WLR 1840, CA (finding of no possible malice justified judge in withholding the
case from a jury).
88 The jurisdiction to do this exists under the Supreme Court Act 1981, s 69. However a decision
to overturn the verdict of a jury can only be taken in exceptional circumstances where the
jury’s decision can not be explained on any ground not indicative of perversity: see Grobbelaar
v News Group Newspapers [2003] EMLR 1, HL.
89 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, CA. Cf Dakhyl
v Labouchere [1908] 2 KB 325n, HL.
90 Polly Peck (Holdings) plc v Trelford [1986] 2 All ER 84, at 94, CA, per O’Connor LJ.
91 Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 177, CA; Morrell v International
Thomson Publishing Ltd [1989] 3 All ER 733, at 734-5, CA, per May LJ.
92 Morrell v International Thomson Publishing Ltd, supra, at 733-5.
(4) Immateriality of the defendant’s knowledge

The general common law position is that ‘[a] person charged with libel cannot defend
himself by showing that he intended in his breast not to defame’. Nor is it a defence
that a person has no actual knowledge that his statement is defamatory. It is usually
stated that liability at common law is absolute: it matters not whether the defendant
could have taken steps to discover that the statement was defamatory. The leading
case is Cassidy v Daily Mirror Newspapers Ltd”
With the authority of Mr C, Ds published a photograph, taken at a race meeting,
with the following words underneath: ‘Mr C, the racehorse owner, and Miss X,
whose engagement has been announced’. Ds published the photograph, not
knowing that C was already married to the man in question, and having taken no
steps whatever to find out whether he was already married. Ds were held liable to
C for implying she had been living with him without being married to him.
The case provides clear authority for the proposition that, at common law, one may be
liable for a statement which one does not actually know to be defamatory. To this
general rule about absolute common law liability, however, there are two exceptions —
one statutory, one rooted in the common law. These exceptions can be viewed in two
ways: either as ‘chinks’ in the general rule or as defences to the application of the rule.
The second approach is favoured here, and it is discussed in depth in the next chapter.
(B) Reference to the claimant

‘In order to be actionable the defamatory words must be understood to be published
of and concerning the [claimant].’”> The claimant need not be mentioned in the statement,
nor need everyone reading it know that he was referred to; it suffices if ordinary
sensible people, proved to have special knowledge of the facts, might reasonably
believe that the statement referred to the claimant.” Thus, where the defendant
publishes a biography about X, and the biography contains a picture of X together
with the claimant and a known prostitute, it is defamatory of the claimant to publish
that photograph where the claimant’s friends would see the picture and identify him
even though he is not actually named in the book.”
In cases such as this, the damages will be lower where only a small proportion of those
who read the book would know that it was defamatory of the claimant.
93 E Hulton & Co v Jones [1910] AC 20, at 23, HL, per Lord Loreburn LC.
94 [1929] 2 KB 331, CA.
95 Knupffer v London Express Newspaper Ltd [1944] AC 116, at 121, HL, per Lord Atkin. Cf
Farrington v Leigh (1987) Times, 10 December, CA.
96 Morgan v Odhams Press Ltd [1971] 2 All ER 1156, HL. Cassidy v Daily Mirror Newspapers
Ltd [1929] 2 KB 331, CA. If D publishes a statement defamatory on its face about someone
described but not named, and a later publication by D names C so as to identify the subject to
readers of the first article, for the first time, the second publication may be relied on to support
the allegation that the first one referred to C: Hayward v Thompson [1982] QB 47, CA.
97 Dwek v Macmillan Publishers Ltd [2000] EMLR 284, CA.
(1) Class libels “

Where a statement defamatory of a class of persons is made, the same test is applied
to determine whether individuals within the class may sue. If the class is so small that
persons would reasonably believe that every member of it is targeted, then each
individual member may sue. Thus, where proceedings were pending against 17 persons,
it was held that one of them could sue a third party who said of them all that ‘these
defendants helped to murder HF’.** A similar rule applies to directors of a small
company,” and presumably also to trustees of an institution. But a statement that “all
estate agents are rogues’ would not enable any one member of such a large class to
sue.
Even where the class is too large to permit every member to sue, an individual within
the class may still be able to sue if he can show that the statement was especially
referable to him. Often this will rest on an innuendo, which must then be specifically
pleaded, and the court will order the claimant to give full particulars of the facts on
which the claim rests.!°°
Two cases illustrate the position. First, Le Fanu v Malcomson."'
D published an article suggesting that in some of the Irish factories cruelties
were practised upon employees. There were circumstances in the article as a
whole, including a reference to Waterford, which enabled the jury to identify C’s
Waterford factory as the one at which the article was aimed. C’s action succeeded.
Secondly, Knupffer v London Express Newspaper Ltd‘

During the war, the D’s newspaper referred to the Quisling activities of the
Young Russian Party. Although the party was international, and had a British
branch of 24 members headed by C, the article referred only to the Party’s activities
in France and the US. Since the total membership was several thousands, each
member could not be said to be identified. No facts were proved in evidence that
could identify C as being singled out in the article, and therefore his action
failed.
(2) Unintentional references to the claimant

The claimant may be defamed although the defendant did not intend it. Where the
defamation is intentional, however, a greater level of damages may be awarded.'® In
98 Foxcroft v Lacy (1613) Hob 89. Cf Browne v D C Thomson & Co 1912 SC 359 (D’s newspaper
published an article stating that, in Queenstown, the Roman Catholic religious authorities had
instructed that all Protestant shop assistants were to be dismissed. The seven persons who
alone exercised religious authority on behalf of the Roman Catholic Church in Queenstown
were able to sue in libel).
99 Aspro Travel Ltd vyOwners Abroad Group plc [1995] 4 All ER 728, CA (defamation of
company was also defamation of the directors of a family company). The same may be true in
reverse: see Elite Model Management Corp v BBC [2001] All ER (D) 334 (ie, defamation of
company executives may also be defamatory of the company). Cf Chomley v Watson [1907]
VLR 502 where the true statement ‘Either you or Jones stole the money’ was held not to be
actionable by the innocent party, Jones.
100 Bruce v Odhams Press Ltd [1936] | KB 697, CA.
101 (1848) 1 HL Cas 637, HL.
102 [1944] AC 116, HL.
103 Bridgmont v Associated Newspapers Ltd [1951] 2 KB 578, CA.
Defamation: foundational principles 49\
several cases, newspaper proprietors who did not intend to defame the claimant have
been held liable. In Hulton v Jones,'™ for example, the defendants published a fictional
article about ‘Artemus Jones’. The writer of the article did not know of the claimant, of
that name, who was a former contributor to the newspaper. But the managing editor, on
reading the article in proof, had thought at first that the claimant was intended. The
defendants were held liable.
In Newstead v London Express Newspaper Ltd,'° D published an account of
the trial for bigamy of ‘Harold Newstead, thirty-year-old Camberwell man’. The
reporter had included the address and occupation of the Harold Newstead of
whom this was a correct report, but the sub-editor deleted it. This want of
particularity caused readers to think that the claimant — another Harold Newstead
of Camberwell, of about the same age — was meant. It was held to be no defence
that the words were true of, and intended to refer to, another: the jury found that
the words indeed referred to C.
Whether cases of this kind can now withstand the passage of the Human Rights Act
1998 — with its requirement that the courts must develop the common law in accordance
with the rights enshrined in the European Convention!” — is now highly questionable.
There is arguably an infringement of the Article 10 right to freedom of expression in
cases of this kind because, for example, the press would effectively be forced to check
whether a genuine photograph of person X resembles closely enough any other person
so as to amount to a defamation of that other person when a particular story accompanies
the photograph. Certainly, the view was taken in O’Shea v MGN Ltd that such a
requirement would place too onerous a burden on a publisher. As Morland J put it:
In conclusion my judgment is that the strict liability principle should not cover
the ‘look-alike’ situation. To allow it to do so would be an unjustifiable interference
with the vital right of freedom of expression disproportionate to the legitimate
aim of protecting the reputations of ‘look- alikes’ and contrary to Article 10 of
the Convention. !°
But whether this first instance decision can be confined to cases involving ‘look-alike’
photographs or whether it ought — logically, it is submitted — to be extended to cases
where articles alone are printed in newspapers with no accompanying photograph will
be for future courts to decide. Perhaps Morland J simply felt obliged to confine his
judgment to cases involving photographs because Hulton v Jones and Newstead v
London Express Newspaper Ltd were decisions of the House of Lords and Court of
Appeal respectively.
(C) ‘Malicious’ publication
Though always referred to as the need for ‘malicious publication’, in truth, the
requirement is for there to have been mere publication. The adjective ‘malicious’ is in
104 [1910] AC 20, HL.

105 [1940] | KB 377, CA. And see Grappelli v Derek Block (Holdings) Ltd [1981] 2 All ER 272,
the
CA and Hayward v Thompson [1982] QB 47 (effect of later publications identifying
person defamed).
106 See Douglas v Hello! Ltd [2001] QB 967, CA, at [129], per Sedley LJ.
107 [2001] EMLR 40, at [47].
108 Pullman v Walter Hill & Co [1891] 1 QB 524, at 527, CA, per Lord Esher MR.
practice otiose, save that the presence of malice serves to defeat the defences of fair
comment and qualified privilege (on both of which, see the next chapter).
Publication is ‘making Known the defamatory matter after it has been written to some
person other than the person of whom it is written’.'°’ This requirement of publication
to a third party merely underlines that the tort protects not an individual’s opinion of
himself but the estimation in which others hold him. Because of this rule, it 1s often
important to know when the defendant, who perhaps addressed his remarks to the
claimant alone, can be held responsible for the fact that third parties have learnt of the
defamatory statement. The rule is that if he intended that it should be published to
them, or ought to have foreseen such publication, he is liable, but not otherwise.'° A
defendant is not liable for an ‘unsuspected overhearing of the words’ spoken by him
to the claimant.''° He is not liable where a father opens his son’s letter,''' or the butler
opens even the unsealed letter of his employer.''? A correspondent should expect that
clerks of a businessman-claimant might, in the ordinary course of business, open
letters addressed to him at his place of business but not when they are marked ‘personal’,
‘private’, etc. He is therefore responsible for the publication to them where the
correspondence is not so marked.'!? It is also to be expected that a husband will open
an unstamped manila envelope lying on the door-mat looking like a circular, even
though it is sealed and addressed to his wife.''
In general, the original maker of a statement is not liable for its republication by another,
but that other will be responsible even though he expressly states that he is merely
reproducing what he has been told from a specified source.''’ So the writer, newspaper
proprietor and printer of a defamatory article in a newspaper are each liable for its
publication.''® In accordance with ordinary principles, however:
where a man who makes a request to another to publish defamatory matter, of
which, for the purpose, he gives him a statement, whether in full or in outline,
and the agent publishes the matter, adhering to the sense and substance of it,
although the language be to some extent his own, the man making the request is
liable to an action as the publisher.'"’
109 Auth v Huth [1915] 3 KB 32, at 38, CA, per Lord Reading CJ; Slipper v BBC [1991] 1 All ER
165. Note also McNichol v Grandy [1932] 1 DLR 225 (S Ct Canada): held that the burden of
proving that it would not be expected that a statement would be overheard lies with D.
110 White v J and F Stone (Lighting and Radio) Ltd [1939] 2 KB 827, CA.
111 Powell v Gelston [1916] 2 KB 615.
112 Auth v Huth [1915] 3 KB 32, CA. Cf the case if the sender knew that C was blind, and that the
butler often opened letters for her.
113 Pullman v Walter Hill & Co [1891] 1 QB 524, CA. But what if one sent a letter marked
‘private’ to, say, the Prime Minister, or even to any other busy public figure? Might there not
be publication to the secretary who opened it?
114 Theaker v Richardson [1962] 1 All ER 229, CA.
115 M’Pherson v Daniels (1829) 10 B & C 263. The republication principle extends to multiple
publications by D: see Green v Times Newspapers Ltd 2001 WL 98032 and Loutchansky v
Times Newspapers Ltd (No 2) [2002] QB 783, CA (publications both in a printed newspaper
and on the newspaper website).
116 And distributors. In Goldsmith v Sperrings Ltd [1977] 2 All ER 566, CA, it was held not to be
an abuse of process for Goldsmith to pursue a claim arising from an article in Private Eye
against 37 different distributors with a view to making them settle his claim on the basis of
their undertaking to cease distributing the magazine. Note, too, that distributors may require
the original publisher to indemnify them against liability. Thus, the original defamer may have
to pay out damages several times over.
117 Parkes v Prescott (1869) LR 4 Exch 169, at 179, per Montague Smith J.
A man who knows that reporters are present when he is making a speech is not thereby
responsible for its publication in the press, but he is answerable if he gives the
information to them with a view to publication.''’ On the other hand, when a television
broadcast foreseeably invites comment in the next day’s newspapers, the maker of the
original defamatory statement will be liable for its repetition by the press.!"
The requirement of publication to a third party is satisfied by dictating a letter to one’s
typist,'”° and probably also when office staff press-copy it.'*' A judge at first instance
in Northern Ireland has held that a printer does not, by the very act of handing back in
a parcel the printed handbills to the customer-author, publish those handbills.'2? The
defendant’s publication to his own wife is not enough!” but publication to the wife of
the claimant is.'**
Difficulties of proving publication are eased by certain rebuttable presumptions. Proof
of proper addressing and posting of a letter gives rise to a presumption of publication
to the addressee.'** And a postcard and a telegram!” (but not an unsealed letter!”’) are
presumed to have been published to Post Office officials. On the other hand, in one
case,'*® there was held to be no publication where the defendant handed to X a folded
unsealed letter which X, without reading or showing to others, handed to the claimant.
There is no publication to a person unless the defamatory meaning of the communication
would be understood by that third person — a postcard defamatory of, but not known
to be referable to, the claimant (by persons unaware of the special facts), has been held
not to be published to Post Office staff.'”’
On occasion, there may be publication by omission. Failure by a defendant who is
authorised and able to remove or amend defamatory matter which is the work of another
amounts to publication by him. Thus, those in charge of a club will be accountable for
defamatory matter placed by another on the noticeboard of the club if they do not
remove it within a reasonable time.'*°
118 Adams vy Kelly (1824) Ry & M 157; McWhirter v Manning (1954) Times, 30 October.
119 Slipper v BBC [1991] 1 All ER 165. In effect, this decision is no more than an application of
the general law of causation; the foreseeable repetition of the statement by the press is too
probable to be regarded as a novus actus interveniens.
120 Pullman v Walter Hill & Co [1891] 1 QB 524, CA. The circulation of inter-departmental
memoranda within a company is also sufficient publication: Riddick v Thames Board Mills Ltd
[1977] QB 881, CA.
121 The official report of Pullman v Walter Hill & Co [1891] 1 QB 524 does not expressly state
that the press-copying in that case was held to be a publication, but Lord Esher MR said in
Boxsius v Goblet Fréres [1894] 1 QB 842, at 849, CA that the case had so decided, and he was
a judge in both cases.
122 Eglantine Inn Ltd v Isaiah Smith [1948] NI 29 (the printer was nevertheless held jointly liable
for the subsequent distribution of the handbills by the author’s agents).
123 Wennhak v Morgan (1888) 20 QBD 635, Div Ct.
124 Wenman v Ash (1853) 13 CB 836.
125 Warren v Warren (1834) 1 Cr M & R 250.
126 Sadgrove v Hole [1901] 2 KB 1, CA.
127 Huth v Huth [1915] 3 KB 32, CA. (It was stated, obiter, that had Post Office officials in fact
read the letter to check whether it was properly stamped, that would have been publication.)
128 Clutterbuck v Chaffers (1816) 1 Stark 471.
129 Sadgrove v Hole [1901] 2 KB 1, CA. The same applies to cipher messages and messages in
foreign languages.
130 Byrne v Deane [1937] 1 KB 818, CA. Compare those cases where the matter is carved in
stone, or D is not in control of the place where the libel is exhibited. Here the impracticability/
impossibility of avoiding the publication negates any prospect of liability.
494 Interests in reputation.— defamation
Section 3. Distinguishing libel and slander ¢
(A) Criteria for distinguishing libel from slander

Any medium whereby thought and ideas can be expressed or conveyed may constitute
the publication of a defamation — words, pictures, gestures,'*' music and statues are all
examples.'*” It is, however, the choice of medium which determines whether the
defamation is libel or slander; and it is because the rules relating to the two torts differ
in some important particulars that it is necessary to distinguish between them.
There can be no doubt that anything communicated in the form of a permanent character
and visible to the eye is libel, and that anything temporary and merely audible is
slander. Thus, books, newspapers, letters and even effigies'*’ are libels, and spoken
words are slander. What is more difficult, however, is how to characterise things which
are in permanent form but only audible, and things which are visible but not in
permanent form (such as things available via the internet). In Youssoupoffv
Metro-Goldwyn-Mayer Pictures Ltd,'** the scenes depicted on the screen in a talking
film were held to constitute libel. Yet, at most, the case supports the view that
permanency is an important element in the test for libel. It does not establish that
permanency is the sole criterion. Slesser LJ put the ratio of the case thus:
There can be no doubt that, so far as the photographic part of the exhibition is
concerned, that is a permanent matter to be seen by the eye, and is the proper
subject of an action for libel, if defamatory. I regard the speech which is
synchronised with the photographic reproduction and forms part of one complex,
common exhibition as an ancillary circumstance, part of the surroundings
explaining that which is to be seen.'*
The case, however, does not settle authoritatively whether a defamatory anecdote ina
film is libel. Nor does it tell us whether defamatory remarks on a CD are slander. Although
there are obiter dicta in other cases suggesting that permanency is a sufficient
criterion,'*° technically, the point remains undecided. It follows, therefore, that it is not
possible to say into which category the following fall: tape recordings, talking parrots
that have learnt certain phrases from their owners and sky-writing. On the other hand,
dictation of a letter to a typist is only slander,'*’ while forwarding of the typed letter is
undoubtedly libel, and, it is thought, a libel for which the dictator is accountable
131 See Cook v Cox (1814) 3 M & S 110, at 114, per Lord Ellenborough.
132 Even the lighting of a lamp in the day-time in C’s garden, thereby inferring that he keeps a
brothel, is caught: Jefferies v Duncombe (1809) 2 Camp 3; and perhaps so is police shadowing
of C’s house.
133 Monson v Tussauds Lid [1894] 1 QB 671, CA (placing of a waxwork effigy of C holding a gun
in a room next to another room in which there was a representation of a murder scene for
which C was tried but acquitted).
134 (1934) 50 TLR 581, CA.
135 (1934) 50 TLR 581, at 587, CA (emphasis added).
136 Eg, in Monson v Tussauds Ltd [1894] 1 QB 671, at 692, CA Lopes LJ stated that: ‘Libels are
generally in writing or printing, but this is not necessary; the defamatory matter may be
conveyed in some other permanent form. For instance, a statue, a caricature, an effigy, chalk
marks on a wall, signs, or pictures may constitute a libel’.
137 In Osborn v Thomas Boulter & Son [1930] 2 KB 226, CA, this appeared to Scrutton and
Slesser LJJ to be slander only, but Greer LJ was inclined to think it libel. When the typist listens
to a dictaphone a libel is probably being published.
because he authorised his agent to forward it. The reading aloud of a letter written by
another, where those to whom it was read were aware that the speaker was reading
from the document, was held to be libel in Forrester v Tyrrell.'** The short report of
this case does not, however, mention whether the point was argued.'*’ In Osborn v
Boulter,” Scrutton and Slesser LJJ thought that the reading aloud of a document was
slander, yet it is submitted that the approach in Forrester v Tyrrell is to be preferred as
the defamatory material is both visible and in permanent form; the reading of it simply
constitutes the means of publication. This uncertainty at common law has prompted
statutory intervention to cover mass media communications. Section 166 of the
Broadcasting Act 1990 now provides that the publication of any words in the course of
any broadcast programme, on television or radio, shall be treated as publication in a
permanent form. It no longer matters whether the broadcast is for general public
reception or otherwise. Similarly, the Theatres Act 1968 provides that the publication
of words in the course of a performance of a play shall also be treated as publication in
a permanent form."*!
(B) Juridical differences between libel and slander

There are two major juridical differences between libel and slander. First, a libel of
sufficient seriousness may be punished as a crime whereas slander is always only
tortious.'*” Secondly, libel is actionable per se whereas slander, subject to the exceptions
discussed in the next section, is actionable only upon proof of actual damage.'*°
(C) Exceptional cases where slander is actionable per se
(1) Imputation of crime

The limits of this exception cannot precisely be defined because it is not settled whether
the reason for it is the social ostracism resulting from such a slander, or the putting of
the claimant in jeopardy, or even some other matter.
138 (1893) 57 JP 532, CA. MacDermott J followed this decision with obvious reluctance in
Robinson v Chambers (No 2) [1946] NI 148 where the audience was aware that D was reading
out a letter.
139 If the secretary simply hands or reads the letter back to the person who dictated it, then there
can be no defamation, for there has been no publication. 4 a6
140 [1930] 2 KB 226, CA. Slesser LJ left open (at 236) whether ‘the circumstance of dictation,
and the dictated matter being brought back and considered by the dictator, may constitute in
certain cases a libel’. png i
141 Section 4. But note that performances given ‘on a domestic occasion in a private dwelling’ are
exempted by s 7 of the Act. ;
142 Of course, spoken words may constitute a crime where the other elements of that crime are
present: eg, blasphemy or sedition. Earlier views that to constitute a crime a libel must be
calculated to provoke a breach of the peace were rejected in Gleaves v Deakin [1980] AC 477,
.
Although the term ‘special damage’ is used frequently, this is misleading, as noted earlier, since
. .
HL.
143
the phrase has other meanings in other contexts. In fact, the use of the term ‘special damage
in this context is to be attributed to the dictum of Lord Wensleydale in Lynch v Knight (1861)
9 ulet Cassi 7. HE:
5
At the very least, the following points are incontrovertible..The crime must be one for
which the claimant could be made to suffer corporally — that is, by punishment with at
least imprisonment in the first instance. The statement ‘I know enough to put you in
gaol’ is therefore actionable per se.'“ If the perpetrator, having been arrested, can only
be punished by a fine for the offence in question (and not by imprisonment) the
imputation of the commission of the crime remains outside the exception.'* And this is
the case even though there is a power to commit for non-payment of the fine.'*°
The words used must also be clear and unambiguous. If they convey a mere suspicion
—eg, of murder — they do not fall within the exception and the slander is not actionable
per se.'*’ In addition, in construing the meaning of the words, it is firmly established
that they must be looked at in context in order to discover what was imputed. This rule
is made clear by Thompson v Bernard.'**
The words ‘T is a damned thief, and so was his father before him; and I can prove
it? seem clear enough, but because they were followed in this case by the
statement, “T received the earnings of the ship, and ought to pay the wages’, the
court directed a non-suit, because only breach of contract was in fact imputed.
This case also illustrates the obvious point that difficult problems of criminal law may
have to be solved in order to determine whether the facts imputed constituted a crime
punishable by imprisonment or otherwise corporally. If the claimant has to rely on
some secondary meaning of the words spoken, he must, according to Gray v Jones,'”
prove that they were reasonably capable of being so interpreted. That case also lends
support to the view that social ostracism is at least one of the reasons for this exception.
Having found that the words ‘You are a convicted person’ might reasonably mean that
a crime punishable corporally was imputed, Atkinson J, in a closely reasoned judgment,
held them to be within the exception because, although they would not place the
claimant in jeopardy,'*° they would tend to make him ostracised socially. On the other
hand, there have been several cases where something criminal in character, but for
technical reasons not punishable in the requisite way, has been held to be outside the
rule — presumably because the claimant was not in jeopardy. In Lemon v Simmons,'*'
for instance, to say that a husband stole from his wife while the couple were living
together was held not to impute a crime, because husbands were not at that time
punishable for such thefts.
144 Webb v Beavan (1883) 11 QBD 609. This illustration also shows that a general imputation of
criminality without reference to a specific offence is sufficient.
145 Hellwig v Mitchell [1910] 1 KB 609; Ormiston v Great Western Rly Co [1917] 1 KB 598.
146 Michael v Spiers and Pond Ltd (1909) 101 LT 352.
147 Simmons v Mitchell (1880) 6 App Cas 156, PC.
148 (1807) 1 Camp 48.
149 [1939] 1 All ER 798.
150 On which see Jackson v Adams (1835) 2 Bing NC 402.
151 (1888) 57 LJQB 260. D & L Caterers Ltd and Jackson v D’Ajou [1945] KB 364, CA, raised,
but did not decide, the point whether trading, as well as social ostracism, will be deemed
sufficient, for there, a crime punishable by imprisonment was imputed to a limited company
engaged in trade.
(2) Imputation of certain types of disease

To impute that a person has a contagious venereal disease is also to commit a slander
actionable per se.'°? Whether the exception has any greater scope is doubtful. There is
weak authority that leprosy is within the exception;'? and it has sometimes
(unconvincingly) been asserted that scarlet fever and the plague are also covered. Yet,
even if it is defamatory to impute a communicable disease, such as scarlet fever or
tuberculosis, it is submitted that, unless suffering from the particular disease induces
moral condemnation or loathing, it is probably not now actionable per se. Even in the
case of venereal disease, it is not actionable per se to say that the claimant has suffered
from it in the past.'*4
The rationale for making the imputation of contagious venereal diseases actionable
per se was, historically, that it might dissuade people from associating with the victim.
Nowadays, when so many cures are easily available for many, if not most, infectious or
contagious diseases, it might be questioned whether this exception ought to survive.
Indeed, the last reported case within this exception was Bloodworth v Gray in 1844.'*°
(3) Slander in respect of office, profession, calling, trade or business

At common law, a slander in respect of an office, profession, trade or business was
actionable per se if, first, it was calculated to disparage the claimant in his office, and,
secondly, it was spoken in relation to his office. Section 2 of the Defamation Act 1952
now recasts this most important of circumstances in which slander is actionable per se.
It provides:
In an action for slander in respect of words calculated to disparage the [claimant]
in any office, profession, calling, trade or business held or carried on by him at
the time of the publication, it shall not be necessary to allege or prove special
damage, whether or not the words are spoken of the [claimant] in the way of his
office, profession, calling, trade or business.
The provision thus removes the second common law requirement. The words are
actionable even though they are not said of the claimant in the conduct of his profession
so long as the imputation they carry is designed to disparage him in his particular
calling. Section 2 also nullifies decisions such as Jones v Jones!” where the House of
Lords held that an allegation that a headmaster had committed adultery with a school
cleaner did not relate to his conduct in his profession. Today, such an allegation would
certainly be actionable simply because it had prejudicial effects on his employment.
Words are also actionable per se if they impute some want of integrity or some corrupt
or dishonest conduct in the office, whether of profit or honour.'°’ At common law, if
152 Bloodworth v Gray (1844) 7 Man & G 334. Even if AIDS is not strictly speaking a venereal
disease, an imputation that a person has that disease may conceivably be actionable per se.
be
153 Taylor v Perkins (1607) Cro Jac 144: the words ‘Thou art a leprous knave’ were held to
actionable per se.
154 Taylor v Hall (1742) 2 Stra 1189.
155 (1844) 7 Man & G 334.
156 [1916] 2 AC 481, HL.
157 Booth v Arnold [1895] 1 QB 571, CA.
allegations merely imputed incompetence, a distinction wasdrawn between offices of

profit and offices of honour. An imputation of incompetence in the discharge of an
office of profit was actionable per se at common law, and continues to be so under the
Act. In respect of an office of honour, however, a mere imputation of incompetence
was not actionable per se unless the charge, if true, would have been a ground for
removing the claimant from his office.'°* Following the Act, a slander relating to an
office of honour is actionable per se only if it imputes either dishonesty or want of
integrity, or such incompetence as would be a ground for removal from office.'°?
(4) Imputation of the unchastity of a woman

The loosely-worded Slander of Women Act 1891 provides that ‘words spoken and
published ... which impute unchastity or adultery to any woman or girl, shall not
require special damage to render them actionable’. Imputation of ‘unchastity’ has been
held to include the imputation of lesbianism.'® It is assumed, though the Act does not
say so expressly, that it confers the right to sue upon the woman alone, and not her
alleged male partner in the act of unchastity. Slang expressions of unchastity are
probably enough, but gestures and other media of communication, not being ‘words’,
fall outside the Act.'®!
(D) Special damage and remoteness of damage

The question of what “special damage’ must be proved in respect of those forms of
slander which are not actionable per se seems so intertwined with the problem of
remoteness of damage in defamation that both topics will be considered together.
Some material loss is required if an allegation of special damage is to be substantiated.
So, for instance, loss of employment,'® the refusal of persons to enter into contracts
with the claimant,'® the loss of hospitality from friends proved to have provided food
or drink on former occasions would all qualify.' A mere threat of material loss is
insufficient,'® but it is uncertain whether loss of consortium,'® either by husband or
wife, is special damage. Consider Lynch v Knight.'®’
D told C’s husband that C had almost been seduced before their marriage,
whereupon the husband made her leave their home. Her action in slander, claiming
loss of consortium as special damage, failed.
158 Alexander v Jenkins [1892] 1 QB 797, CA.

159 Robinson v Ward (1958) 108 L Jo 491.
160 Kerr v Kennedy [1942] 1 KB 409.
161 Sign language is a probable exception.
162 Coward v Wellington (1836) 7 C & P 531.
163 Storey v Challands (1837) 8 C & P 234.
164 Davies v Solomon (1871) LR 7 QB 112. The rationale is that the loss of food and drink
represents a loss of material value.
165 Michael v Spiers and Pond Ltd (1909) 101 LT 352.
166 Spousal support.
167 (1861) 9 HL Cas 577.
The ground of the decision was not that loss of consortium is not special damage, but
rather that the damage was too remote. It is submitted that Lord Campbell was correct
in his assertion in that case that loss of consortium may constitute special damage.'®
In Allsop v Allsop,’ a claimant suffered physical illness as a result of the mental
suffering she sustained following the slander. This was held not to be special damage.
Noting that mental distress and bodily harm may be taken account of by way of
aggravation in assessing damages in defamation,'” Allsop must be taken as deciding
that special damage in slander must be damage in respect of a primary interest — ie loss
of esteem or association — and that the primary purpose of the law of defamation is not
to protect against psychiatric harm resulting from the apprehension of the effects of
defamatory matter being published to third persons.
Despite the fact that historically the test for remoteness in defamation was one based
on ‘the natural and necessary consequences’ of the defamation,'”! it now seems that
the test is the same as in most other areas of tort law. Thus, the key question is now:
was the kind of damage suffered by the claimant a reasonably foreseeable consequence
of the defendant’s act? Accordingly, if a tabloid newspaper charges a distinguished
law professor with sexual harassment and the university suspends him, and his
publishers cancel his book contract, he may claim compensation for the whole of that
loss.
Particular problems arise in defamation where additional loss results from a repetition
of the libel. In Slipper v BBC,'” allegations in an original broadcast were given even
wider publicity in newspaper reviews of the programme. The Court of Appeal refused
to strike out the part of the claim dealing with that damage. While unauthorised repetition
might, on occasion, constitute a novus actus interveniens, breaking the chain of
causation, there has never been an absolute rule that the defamer cannot be liable for
the consequences of such a repetition. Thus, if I write to the Students’ Union claiming
a colleague is embezzling the Student Law Society’s funds, it is very much foreseeable
that this allegation will be repeated. If the letter had not been sent, but another colleague
took it from my desk and sent it to the Sun newspaper, there would be a break in the
chain of causation, in just the same way as in any other tort.'”
168 (1861) 9 HL Cas 577, at 589-91. His dictum was approved by Lord Goddard CJ in Best v
Samuel Fox & Co Ltd [1952] AC 716, at 732, HL. And see also Wright v Cedzich (1930) 43
Co
CLR 493, at 530, H Ct of Australia, per Rich J, and Lampert v Eastern National Omnibus
Ltd [1954] 2 All ER 719n.
169 (1860) 5H & N 534.
170 (1860) 5H & N 534, at 539, per Bramwell B.
171 Ward v Weeks (1830) 7 Bing 211.
172 [1991] 1 QB 283, CA. See also Sutcliffe v Pressdram Ltd [1991] 1 QB 153.
173 See Weld-Blundell v Stephens [1920] AC 956, HL.
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CHAPTER 23
Defences and remedies in defamation
Most of the defences already discussed in relation to other torts are equally available,
according to the same rules, in defamation.' But several other defences, peculiar to
defamation, warrant particular consideration here. To a large extent, these defences
reflect the fact that defamation law recognises the vital interest in freedom of speech.
The defence of absolute privilege, for example, allows comments to be made regardless
of whether they are true, and regardless of the defendant’s malicious motive.
Section |. Consent and assumption of risk

The better opinion is that consent is an independent defence in defamation.? Someone
who telephones a newspaper with false information about himself will not be able to
sue in defamation when the newspaper publishes it; but he does not consent to the
publication in a newspaper of a story about himself that he told at a parish vestry
meeting.* Consent may be implied or express, so even where consent is explicitly
supplied on a contractual basis, this too will defeat a defamation action.*
As regards implied consent, it is sometimes a difficult question of fact to decide whether
a claimant has consented to the repetition of a defamatory statement. If, for instance,
the claimant asked the defendant to repeat it, because he did not properly understand
on the first occasion, he would not be consenting.
The defence of assumption of risk was applied in Chapman v Lord Ellesmere.’ The
claimant maintained that even if he had consented to the publication of a report of an
inquiry by the Jockey Club, he had not consented to its publication in such a form as
to contain an innuendo against him. The Court of Appeal found for the defendant on
1 The exceptions are consent and assumption of risk, dealt with in Section | below.
U But see Russell v Duke of Norfolk [1949] 1 All ER 109, at 120, CA, per Denning LJ. This issue
‘may be crucial if, eg, A asks B for a reference and B is actuated by malice in providing one,
unless the consent is deemed to be to a non-malicious reference only.
Cook v Ward (1830) 6 Bing 409.
Cookson v Harewood [1932] 2 KB 478n, CA.
na
BW [1932] 2 KB 431, CA.
502 Interests in reputatign — defamation
the ground that the claimant had agreed to run the risk of the particular form that the
statement might take.°
y
Section 2. Justification
It is no part of the claimant’s case to establish that the defendant’s statement was
untrue: the claimant has merely to prove the publication of a statement defamatory of
him. If, however, the defendant can prove that his statement was true, he has a complete
defence even if he made the statement maliciously. The rationale is that ‘the law will
not permit a man to recover damages in respect of an injury to a character which he
does not... possess’.’ The defendant does not discharge this burden by proving that
he honestly believed it to be true. He must prove that it was true.* Nor will it help simply
to show that he repeated accurately to a third party what he had heard from another,
even though he told the third party it was a mere repetition.’ If the words impute the
commission of a specific offence, it is not enough to prove that the claimant was
suspected of that offence.'° In order to invoke the defence in these circumstances the
defendant must be able to identify specific conduct on the part of the claimant which
justifies such a suspicion.'! These restrictions on the defence are clearly necessary to
prevent its abuse.
Before deciding whether the defendant can successfully plead justification, one must
first discover what the statement complained of has been interpreted to mean." If the
statement contains an innuendo, that too must be justified.'* And even if the defendant
justifies the innuendo, he will still fail unless he also justifies the primary meaning of
the words used; for they form a separate head of claim.'* If the defendant enters a plea
of justification and a denial of the innuendo, success on the first plea but a failure to
deny the innuendo means that the defence fails. And just as the claimant must
specifically plead the meanings he relies on as defamatory, so must the defendant
pleading justification ‘make it clear to the [claimant] what is the case he is seeking to
set up’.'
lon [1932] 2 KB 431, at 464, per Slesser LJ.

7 M’Pherson v Daniels (1829) 10 B & C 263.
8 Peters v Bradlaugh (1888) 4 TLR 414, Div Ct. In this context it is arguable that, the
importation of the European Convention on Human Rights into English law might require a
relaxation of this rule where the publication relates to matters of public importance: see Art
8(2).
9 M’Pherson v Daniels (1829) 10 B & C 263. On the other hand, repetition of a prevalent
rumour may be justified following Aspro Travel v Owners Abroad Group plc [1995] 4 All ER
728 where the Court of Appeal refused to strike out Ds’ plea ofjustification on this basis.
10 Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234, at 274-5, HL, per Lord
Hodson.
11 Shah v Standard Chartered Bank [1999] QB 241, at 269-70, CA, per May LJ (it is not enough
merely to show that the suspicion emanates from a reliable source). The suggestion that this
‘conduct rule’ places an unjustifiable restriction on the Art 10 right to freedom of expression
has been rejected: Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772, 146 Sol Jo LB
DTK
ie sceich2 2%
13. Prior v Wilson (1856) 1 CBNS 95.
14 Watkin v Hall (1868) LR 3 QB 396, at 402, per Blackburn J; Rubber Improvement Ltd v Daily
Telegraph Ltd [1964] AC 234, HL.
15 Lucas-Box v Associated Newspapers Group [1986] 1 All ER 177, CA. And see Morrell v
International Thomson Publishing Ltd [1989] 3 All ER 733, CA.
Obviously, then, many problems with justification are merely points of interpretation
where the material question is: ‘Does that which is proved to be true tally with that
which the defendant’s statement is interpreted to mean?’ Wakley v Cooke is a typical
ease:!°
D called C a ‘libellous journalist’. He proved that a judgment against C for libel
had once been obtained. But because the defamatory statement complained of
implied that the journalist habitually libelled people, D had not justified it.
The opposite result prevailed in Bookbinder v Tebbit.'’ The defendant had alleged at
an electoral meeting that the claimant had squandered public money on a campaign to
print ‘Support Nuclear Free Zones’ on council stationery. He sought to justify his
claim by advancing evidence of general financial mismanagement on the part of the
claimant who was the leader of the local council. The Court of Appeal struck out those
particulars of justification. They did not pertain to the very specific ‘sting’ of the libel.
One cannot justify an express claim of misconduct by generalised evidence of the
claimant’s behaviour.
The defence will not fail if the statement is substantially true: inaccuracy on minor
points of detail are disregarded.'* Similarly, ‘it is unnecessary to repeat every word
which might have been the subject of the original comment. As much must be justified
as meets the sting of the charge, and if anything be contained in a charge which does
not add to the sting of it, that need not be justified’.'?Consider Clarke v Taylor.”
D accused C of taking part in a ‘grand swindling concern’ at Manchester, and
added that ‘C had been at Leeds for one or two days before his arrival in
[Manchester]... and is supposed to have made considerable purchases there. It
is hoped, however, that the detection of his plans in Manchester will be learnt in
time to prevent any serious losses from taking place’. D justified the statement
that C had swindled at Manchester, but not the remainder of the statement. It
was held that this was a sufficient plea of justification because the remaining
words did not allege any further act of criminality.
Many statements contain both statements of fact and opinion: for example, “X was
drunk again last night; his behaviour is disgusting’. If the defendant relies on a plea of
justification in respect of this, he must prove not only that X was drunk but also the
accuracy of his claim that X’s behaviour was disgusting (in so far as that comment
adds to the sting of the libel). If the further statement introduces new matter, or implies
the existence of further facts, he must prove those further facts which justify the terms
in which he has described the claimant.”
16 (1849) 4 Exch 511. On the question of whether it is more defamatory of a woman to allege
that she has had an extra-marital affair with one man rather than another see Khashoggi v IPC
Magazines Ltd [1986] 3 All ER 577, CA.
17 [1989] 1 All ER 1169, CA.
18 Alexander v North Eastern Rly Co (1865) 6 B & S 340 (Ds published notice that Cs had been
sentenced to a fine of £1 with the alternative of three weeks’ imprisonment: in fact, the
alternative was only two weeks’ imprisonment).
19 Edwards v Bell (1824) 1 Bing 403, at 409, per Burrough J.
20 (1836) 2 Bing NC 654.
21 Cooper v Lawson (1838) 8 Ad & El 746. There is sometimes another possible defence: fair
comment.
At common law, every material statement had to be justifted. Thus, if the defendant
could prove the truth of three charges but not a fourth charge, the defence failed
(although proof of three would be relevant in assessing damages). This rule was
modified by section 5 of the Defamation Act 1952 which stipulates:
In an action for libel or slander in respect of words containing two or more

distinct charges against the [claimant], a defence of justification shall not fail by
reason only that the truth of every charge is not proved if the words not proved
to be true do not materially injure the [claimant’s] reputation having regard to the
truth of the remaining charges.”
It is now therefore important to know when there are several charges. The section can
only apply when the defendant has proved first, that at least one charge is substantially
true, after having been separated from the remaining charges and secondly, that this
charge is itself incapable of further severance. At common law, the courts had also to
consider when charges were severable, because any severable charge could be
separately justified with a view to reducing damages or, perhaps, establishing some
other defence in respect of other charges. Presumably, the common law rules on what
is a severable charge apply also under the Act.”
The effect of the Act is illustrated by considering its application to the facts of the
pre-Act decision in Goodburne v Bowman.”*
C was alleged by D to have made, in each of his two periods of office as mayor,
a small secret profit from the corporation on selling coals to the poor. D justified
the statement by pleading that C did this in one of these terms of office only. The
plea failed because it did not establish the truth of all the material statements in
the libel.
Under the 1952 Act, it is open to the jury, on similar facts, to find that, in view of the
truth of one of the two charges, the other did not separately, materially injure his
reputation. The claimant cannot evade the section by basing his cause of action solely
on those residuary parts of the defendant’s statement which are not true if the different
parts of an article are not plainly severable; for the defendant can base a defence of
justification on the whole of the article.*° Where several defamatory allegations have a
common ‘sting’ they are not to be regarded as separate and distinct: the defendant
must justify the ‘sting’ and ‘it is fortuitous that what is in fact similar fact evidence is
found in the publication’.*° Where quite separate allegations are made, however, and
the claimant relies solely on the allegation that cannot be justified (with no mention of
the statement that can be justified) the defendant cannot rely on section 5.’
22 If D relies on s 5 he must plead it as a defence: Moore v News of the World Ltd [1972] 1 QB 441,
CA.
23 See Clarkson v Lawson (1830) 6 Bing 587; Davis v Billing (1891) 8 TLR 58, CA; Fleming v
Dollar (1889) 23 QBD 388, DC.
24 (1833) 9 Bing 667.
25 S and K Holdings v Throgmorton Publications Ltd [1972] 3 All ER 497, CA (distinguishing
Plato Films Ltd v Speidel [1961] AC 1090, HL).
26 Polly Peck (Holdings) plc v Trelford [1986] 2 All ER 84, at 102; Khashoggi v IPC Magazines
Ltd [1986] 3 All ER 577, CA.
27 In Cruise v Express Newspapers plc [1999] QB 931, at 954, CA, Brooke LJ said: ‘It is no
defence to a charge that “You called me A” to say “Yes, but I also called you B on the same
occasion and that was true”’.
If a defendant persists in a plea of justification and thereby prolongs the period in

which the damage from the publication continues to spread, a greater sum by way of
aggravated damages may be awarded against him.”
Before the enactment of the Human Rights Act 1998, the completeness of the defence
of justification required great emphasis. Even if the defendant was inspired by malice,
or even if, when he made the statements, he did not believe them to be true, his defence
was sound so long as they were true. Defamation law offers no protection against
even the most gross invasion of privacy per se. But since the 1998 Act something
approaching a tort based on the right to privacy seems to be emerging.”®
A further curb on the freedom of the press to dig up aspects of a person’s past is
contained in the Rehabilitation of Offenders Act 1974. In relation to ‘spent’ convictions
of ‘rehabilitated persons’, the Act specifies that after the expiry of certain defined
periods — the duration of which differs according to the length of sentence — most
convictions become spent, and the convicted person becomes rehabilitated. Section
8(3) provides an exception to the general tenor of the Act, that convictions become
totally spent. It entitles a defendant in a defamation action to adduce evidence of the
claimant’s conviction; but only so long as the defendant mentions this conviction
without malice.*° The onus of establishing the presence of malice — defined as ‘some
spiteful, irrelevant or unproper motive’ — lies with the claimant.*!
Section 3. Innocent disseminators
(A) Innocent publication: the common law

Although a person is normally deemed to have published defamatory matter even ifhe
did not know it to be defamatory, he will not be held liable if he can show that he did not
play a primary part in its publication. Such defendants typically include newsvendors,
booksellers and the like. They may be referred to by the generic term ‘innocent
disseminators’. The leading case is Vizetelly v Mudie’s Select Library Ltd where the
proprietors of a circulating library were held to be distributors to whom this special rule
would apply if they were proved to be ‘innocent’. The rule was clearly set out by
Romer LJ in that case. He stated that a defence would lie in respect of ‘a person who is
not the printer or the first or main publisher of a work which contains a libel, but [who]
has only taken ... a subordinate part in disseminating it’.** To determine whether the
defendant was such a person, he must succeed in showing:
28 Cassell & Co Ltd v Broome [1972] AC 1027, at 1125, HL, per Lord Diplock. As to late entry
of a plea ofjustification see Atkinson v Fitzwalter [1987] | All ER 483, CA.
29 For details, see ch 1. bisa
30 It is arguable that this qualification of the right to adduce evidence of a spent conviction is
antithetical to the right to freedom of speech enshrined in Art 10 of the European Convention
on Human Rights. It is therefore possible that an appellate court may, in the future, feel the
need to issue a declaration of incompatibility between the 1974 Act and the Convention (under
s 4 of the Human Rights Act 1998).
31 Herbage v Pressdram Ltd [1984] 2 All ER 769, CA:
32 [1900] 2 QB 170, at 180, CA. See also Emmens v Pottle (1885) 16 QBD 354, CA; Goldsmith
v Sperrings Ltd [1977] 2 All ER 566, CA (newsvendor).
(1) that he was innocent of any knowledge of the libel contained in the work disseminated
by him, (2) that there was nothing in the work or the circumstances under which it came
to him or was disseminated by him which ought to have led him to suppose that it
contained a libel® and (3) that, when the work was disseminated by him, it was not by
any negligence on his part that he did not know that it contained the libel.**
Whether he does so succeed is a question of fact for the jury.** In Vizetelly s case, the
jury found that the proprietors had not established their ‘innocence’: in a publication
taken by the defendants, the publishers had circulated a notice asking for the return of
copies of a certain book in order to withdraw a particular page containing defamatory
matter. The defendants ignored the circular and, moreover, failed to employ a reader to
peruse the novels in their library. On the other hand, libraries need not have scholarly
works read before circulating them.*° Nor, more surprisingly, it seems, need the importers
of publishers’ remainders of American detective stories read them.*’
Besides newsvendors, booksellers and circulating libraries, a porter delivering parcels
has been held to be within the exception.** No doubt persons lending books
gratuitously, persons making gifts of them, and record dealers are also protected. It is
irrelevant to determine whether the Post Office, when delivering mail, or British
Telecommunications operating its telephone services, are within the exception, because
legislation exempts them and their employees from any liability in tort in respect of
postal packets or the telephone service.”
(B) Defamation Act 1996,s |

The common law defence of innocent dissemination was largely subsumed within, but
not technically repealed by, section | of the 1996 Act. Nonetheless, it is unlikely that
the Vizetelly defence will be much relied upon in future; for the statutory defence is a
broader one that is (normally) no less onerous to invoke. Under section 1(1), a person
has a defence if he shows that he was not the ‘author, editor or publisher’*° of the
matter complained of; that he took reasonable care in relation to its publication, and
that he did not know (or have reason to believe) that what he did caused or contributed
to the publication of defamatory matter. As such, the defence is not available where the
defendant is an Internet service provider through whose service an unknown third
party posts defamatory material if, after notification of the defamatory nature of the
material, the defendant fails to verify its defamatory content and remove it from the
Web.*!
33 In Goldsmith v Sperrings, supra, attempts to strike out actions against several vendors of
Private Eye as an attempt to suppress that journal altogether failed. There was evidence that
the vendors ought to have been aware of alleged libels.
34 [1900] 2 QB 170, at 180, CA.
35 Cf Sun Life Assurance Co of Canada v W H Smith & Sons Ltd [1933] All ER Rep 432, CA.
36 Weldon v Times Book Co Ltd (1911) 28 TLR 143, CA.
37 Bottomley v F W Woolworth & Co Ltd (1932) 48 TLR 521, CA.
38 Day v Bream (1837) 2 Mood & R 54. And so presumably is the girl who delivers the morning
paper.
39 Post Office Act 1969 and British Telecommunications Act 1981.
40 The notion of publisher, for the purposes of the Act, is confined to that of ‘commercial
publisher’; ie ‘a person whose business is issuing material to the public’: s 1(2).
41 Godfrey v Demon Internet Ltd [2001] QB 201.
The defence is wider than the common law defence of innocent dissemination in that
a much wider class of persons may avail themselves of it.” Again, the defendant has a
burden and standard of proof that require him to show his innocence as regards
knowledge of the defamatory nature of the statement, and that he took reasonable
care in relation to his part in its publication. So far as the reasonable care test is
concerned, under section 1(5) of the Act, the court is directed to have regard to three
specific factors: (a) the degree of the defendant’s responsibility for the content of the
statement complained of, or for the decision to publish it; (b) the nature or circumstances
of the publication; and (c) the previous conduct or character of the author, editor or
publisher.*
(C) Offer of amends: Defamation Act 1996, ss 2-4

Section 4 of the Defamation Act 1952 formerly provided a little used and widely
criticised, technical defence in cases of innocent publication.** This section has now
been repealed by Schedule 2 to the 1996 Act. In its stead a more modern, revamped
defence of ‘offer to make amends’ has been introduced.*’ The new defence is available
only to those defendants who did not know, or had no reason to believe, that the
statement in question referred to the claimant and was untrue and defamatory of him.**
It has since been made clear that “having a reason to believe’ in this context requires
that the defendant had shut his mind to the matter, and not merely that he had had a
reason to suspect.”
The new defence may only be invoked where the offer to make amends is in writing and
states that it is such an offer under the 1996 Act.*° In addition, the offer must satisfy
three further prerequisites: it must contain a correction to, and apology for, the original
statement; it must state a willingness to publish that correction and apology; it must
make clear that the publisher consents to pay to the aggrieved party such sum as may
be agreed between them, or, as may be determined judicially.*' Ifthe offer of amends is
accepted, section 3(2) prohibits the aggrieved party from subsequently bringing or
42 Under s 1(3)(a) of the Act, those involved in the production process or printing of books,
newspapers and magazines are also covered. So, too, are those who distribute information by
way of electronic media such as Internet users (s 1(3)(c)), those, such as chat-show and phone-
in hosts, who broadcast information in live programmes (s 1(3)(d)) and those, such as Internet
service providers, who operate communications systems that are used to transmit defamatory
statements (s 1(3)(e)): see Godfrey v Demon Internet Ltd [2001] QB 201.
43 Strictly, Vizetelly required ignorance of a libel (a narrower concept than that of a defamatory
remark). To this extent, the defence is more restrictive than its common law equivalent in that
knowledge of a defamatory statement (eg, one known to be defamatory, but believed to be
true) will defeat the defence.
44 The Act is unclear on what is meant by ‘the circumstances of the publication’. Presumably,
however, remarks made about infamous or notorious persons would require greater concern
than remarks about less well-known people.
45 Presumably, here, the standard of care demanded is greater in relation to publishers with a
history of producing defamatory material.
46 The principal problem with s 4 of the 1952 Act was that it placed the onus on D to demonstrate
his innocence by proving the absence of negligence.
47 Defamation Act 1996, ss 2-4.
48 Defamation Act 1996, s 4(3).
49 Milne v Express Newspapers [2002] EWHC 2564 (QB), [2003] 1 All ER 482.
51 Defamation Act 1996, s 2(3), (4).
508 Jnterests in reputation — defamation
continuing defamation proceedings. If, on the other hand;*the offer is not accepted,
the offer may nonetheless be invoked as a defence in any subsequent defamation
proceedings brought by the claimant.” For this reason, it is suggested it would normally
be unwise for a claimant to reject an offer of amends. Should he instead pursue an
action in the courts, in order for the offer not to constitute a defence, the claimant
would have to show, first, that the defendant knew or had reason to believe that the
statement referred to the claimant and, secondly, that it was both false and defamatory.”
The offer of amends defence does not require the alleged defamer to prove his
innocence.™ Accordingly, it effects a significant change in the location of the burden
of proof. On the other hand, any defendant wishing to use this defence is debarred
from resorting to any other defence (such as justification).°° This means that he is
forced to choose between (1) definitely paying moderate damages (either agreed with
the claimant, or judicially determined) and (2) risking paying damages in full if another
defence — such as justification — should be held not to be available.
Section 4. Absolute privilege

Certain occasions are deemed to be so important that those making statements upon
them are not liable in defamation despite their statements being untrue and even
malicious. These occasions, where the public interest in freedom of communication is
paramount, are called cases of absolute privilege.
(A) Parliamentary proceedings

By the law of Parliament, the courts for centuries had no jurisdiction to hear evidence
of proceedings in Parliament.°° This immunity extended beyond all statements made in
the course of parliamentary proceedings to all reports, papers, votes, and proceedings
published by, or under the authority of, either House.*’ This assertion of ‘parliamentary
privilege’ meant not only that parliamentary proceedings could not found an action in
defamation but also that such proceedings could not be relied on in relation to a claim

53 C bears the burden of proof by virtue of the Defamation Act 1996, s 4(3) which introduced a
statutory presumption of the publisher’s innocence, thus giving him the right to invoke his
offer of amends as a defence. And where the offer is rejected, it may still be used to mitigate any
subsequent award of damages: s 4(5).
54 This is now presumed under s 4(3). Cf s 4 of the 1952 Act, which it replaces. Another
difference between the current provision and s 4 of the 1952 Act is as follows. If the offer is
refused, the case will proceed but D may still use the making of the offer as a defence where he
knew (a) that the publication was defamatory of C but (b) that D reasonably believed that what
was said was true.
56 Bill of Rights 1688, Art 9; Ex p Wason (1869) LR 4 QB 573, at 576, per Cockburn CJ. Hence,
the frequent challenge by the victim to the MP to repeat outside the House his attacks on the
victim’s reputation. Petitions addressed to Parliament are within the immunity: Lake v King
(1670) 1 Wms Saund (1845 edn) 131. But there is no general immunity for letters written to
MPs: Rivlin v Bilainkin [1953] 1 QB 485. Letters from MPs to the Speaker do fall within the
immunity: Rost v Edwards [1990] 2 QB 460.
57 Parliamentary Papers Act 1840, s 1, offsetting Stockdale v Hansard (1839) 9 Ad & El 1.
Significantly, the section does not confer absolute privilege; it orders the judge to ‘stay’,
whereby the suit ‘shall be deemed and taken to be finally put an end to’.
arising out of a non-parliamentary publication. Thus, in one case, the court would not
admit evidence of statements contained in Hansard that the claimant sought to
introduce in order to demonstrate malice.**
Section 13 of the Defamation Act 1996 introduced a significant change in the law.” It
permits an MP to waive the prohibition on adducing evidence of parliamentary
proceedings enshrined in Article 9 of the Bill of Rights 1688. But where an MP waives
that privilege in order to enter evidence of the proceedings of a parliamentary committee
(or its findings), the waiver will override the privilege of the House as a whole, and thus
entitle the defendant to challenge the parliamentary procedures in question, and even
the findings of a prior parliamentary inquiry into the conduct of the MP in question.°!
Section 13 is thus an extremely important (and not uncontroversial) provision.
Furthermore, it is clear from section 13(5) that it extends not just to parliamentary
proceedings per se, but also to evidence contained in such documents as reports
produced by parliamentary committees.”
(B) Executive matters

In the leading case of Chatterton v Secretary of State for India,” it was held that a
letter from the Secretary of State for India to his Parliamentary Under-Secretary providing
the material for the answer to a parliamentary question was absolutely privileged. It is
impossible to say how high in the hierarchy of civil servants a defendant must be
before he enjoys this privilege, but a message from the High Commissioner for Australia
to his Prime Minister about a matter of commerce which concerned the Government of
Australia has been held to be privileged.“ Complaints made to the European
Commission relating to enforcement of competition proceedings are similarly protected.®
It has been doubted whether those below the status of minister may claim the privilege.
If it were not for the cases below relating to military communications, one might
58 Church of Scientology of California v Johnson-Smith [1972] 1 QB 522. See also Hamilton v

Al Fayed [2001] 1 AC 395, HL. Cf Rost v Edwards [1990] 2 QB 460 where Popplewell J did
allow evidence drawn from the Register of Members’ Interests on the basis that this was a public
document.
59 Cf the common law: Prebble v Television New Zealand [1995] 1 AC 321, PC.
60 Section 13 operates in favour of MPs only. The waiver enables an MP to vindicate his
character in a defamation action by adducing evidence of parliamentary proceedings. It does
not, by contrast, allow the MP to adduce evidence from a similar source in order to substantiate
the argument.
61 Hamilton v Al-Fayed [2001] 1 AC 395, HL. Note, however, that the actual words used by the
MP remain privileged: Defamation Act 1996, s 13(4).
62 See Sharland and Loveland, ‘The Defamation Act 1996 and Political Libels’ [1997] PL 113.
63 [1895] 2 QB 189, CA. The Parliamentary Commissioner Act 1967, s 10(5) also gives an
absolute privilege to the Parliamentary Commissioner for his reports to Parliament and for
certain of his communications to MPs; the Local Commissioners have a similar absolute
privilege under the Local Government Act 1974, s 32; ditto the Legal Services Ombudsman
under s 23 of'the Courts and Legal Services Act 1990.
64 M Isaacs & Sons Ltd v Cook [1925] 2 KB 391.
65 Hasselblad (GB) Ltd v Orbinson [1985] QB 475, CA. But should this more properly be
regarded as ‘judicial privilege’, or even witness immunity: see Mahon v Rahn [1998] QB 424,
CA.
66 Szalatnay-Stacho v Fink [1946] 1 All ER 303, at 305, per Henn Collins J; not considered,
[1947] KB 1, CA; Richards v Naum [1967] 1 QB 620, CA. On grounds of public policy, arising
confidently submit that routine communications betweerf persons not in charge of

government departments are outside the privilege. Indeed, one might even doubt
whether the courts would extend it anywhere beyond the limits in the above cases.
In Dawkins v Lord Paulet®’ it was held that a report on the claimant from his superior
officer to his commander-in-chief could not form the basis of an action for libel. The
rationale of the case is not clear, however. Cockburn CJ dissented; Lush J based his
judgment on the principle that the army was outside the jurisdiction of the courts,® but
one of the three grounds of Mellor J’s judgment was that such letters were absolutely
privileged.® It is submitted that this is not strong enough authority for the proposition
that communications within the civil service generally, and relating to the character
and ability of personnel, are absolutely privileged. Nor does the case decide that civil
servants below ministerial rank enjoy this absolute privilege; but their communications,
as we Shall see, would be adequately protected by the qualified privilege which
doubtless attaches to them.
A final point in this context is that absolute privilege must not be confused with the
procedural rule that the Crown, whether or not it is a party, cannot be compelled in any
litigation, to produce or disclose the existence of any documents the production or
disclosure of which would be contrary to the public interest.’° In practice, because the
Crown can decide at its discretion whether to produce such documents, this rule has
prevented claimants from maintaining libel suits, even for communications within the
civil service, which were not absolutely privileged.”!
(C) Judicial proceedings

Statements made in proceedings before superior and inferior courts of record and
magistrates’ courts are privileged. The privilege extends to other tribunals recognised
by law,” provided they are ‘exercising functions equivalent to those of an established
court of justice’.”’ In cases of doubt, ‘the overriding factor is whether there will emerge
out of international comity, English courts will concede to foreign governments immunities
similar to those accorded by way of privilege to the UK government. Thus, no action for libel
lies in respect of an internal memorandum from a foreign embassy: Fayed v Al-Tajir [1988]
QB 712, CA.
67 (1868) LR 5 QB 94.
68 But see Dawkins v Lord Rokeby (1873) LR 8 QB 255, Ex Ch; affd (1875) LR 7 HL 744.
69 In Gibbons v Duffell (1932) 47 CLR 520, the High Court of Australia was confronted with the
argument that the police were to be equated with the army, so that communications within the
force were absolutely privileged. In Merricks v Nott-Bower [1965] 1 QB 57, CA, the report by
one high ranking police officer to another about a third police officer was held not to be so
clearly the subject of absolute privilege that a claim in libel should be struck out.
70 Crown Proceedings Act 1947, s 28. See also Schneider v Leigh [1955] 2 QB 195, CA.
71 Home v Bentinck (1820) 2 Brod & Bing 130, Ex Ch, Beatson v Skene (1860) 5 H & N 838 and
West v West (1911) 27 TLR 476, CA, are examples of cases where the rule was successfully used
for that purpose. The House of Lords in Conway v Rimmer [1968] AC 910 invested the courts
with a residual power to demand production when the public interest does not demand non-
disclosure. To this extent the Crown’s discretion to withhold documents is curtailed. The
House of Lords has suggested that only in very clear cases will that residual power be invoked:
see Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394, HL.
72 Either under statute or royal prerogative of justice: Lincoln v Daniels [1962] 1 QB 237, CA.
73. O’Connor v Waldron [1935] AC 76, at 81, PC. And see Trapp v Mackie [1979] 1 All ER 489,
HL (a Scottish case on the privilege of a witness at an inquiry, but not one on defamation).
Defences and remedies in defamation 5\\
from the proceedings a determination the truth and justice of which is a matter of
public concern’. Thus, an enquiry before an Inn of Court into the conduct of a
barrister was absolutely privileged,’> even though the body had no power to issue a
subpoena, or to take evidence on oath, and sat in private. The disciplinary committee
of the Law Society,” courts-martial,” and select committees of the House of Commons”
are also within the privilege. If the functions are merely administrative, or determine
neither the rights, nor the guilt, nor the innocence of anyone, there is no absolute
privilege, even though judicial procedures such as hearing evidence or summoning
witnesses are used.” Justices dealing with applications for liquor licensing,® a meeting
of the London County Council for the grant of music and dancing licences,*! official
industrial conciliation processes* and complaints to social security adjudication
officers,’ have all been held to be outside the scope of the privilege. Competition
proceedings before the European Commission, by contrast, have been held to attract
absolute privilege despite the essentially administrative nature of their procedures:
the public interest in the Commission’s duty to enforce European competition law was
held to outweigh the private interests of litigants seeking to vindicate their reputations.*
The privilege is enjoyed by judges, parties, witnesses,** counsel® and solicitors,®’ and
presumably also jurors. Judges are protected although their statements are malicious
or irrelevant.** Whether others than these who are engaged in the proceedings are
privileged is doubtful.*? They are certainly not protected where the statement is so
irrelevant that it is no longer made by a person qua participant in the proceedings.” It
is usually stated that the privilege is lost when the court has no jurisdiction.
74 Lincoln v Daniels [1962] 1 QB 237, at 255-6, CA, per Devlin LJ.
75 Lincoln v Daniels [1962] 1 QB 237, at 255-6, CA, per Devlin LJ.
76 Addis v Crocker [1961] 1 QB 11, CA.
77 Wilson v Westney [2001] EWCA Civ 839.
78 On principle, these would seem to have been more properly within the ‘legislative’ privilege,
but this is not the basis of Goffin v Donnelly (1881) 6 QBD 307. But see now Rost v Edwards
[1990] 2 QB 460.
79 O’Connor v Waldron [1935] AC 76, PC.
80 Attwood v Chapman [1914] 3 KB 275.
81 Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431, CA.
82 Tadd v Eastwood [1985] ICR 132, CA.
83 Purdew and Purdew v Seress Smith [1993] IRLR 77.
84 Hasselblad (GB) Ltd v Orbinson [1985] QB 475, CA.
85 Seaman v Netherclift (1876) 2 CPD 53, CA. The immunity extends beyond actual criminal
proceedings to statements made in the context of inquiries made in advance of any potential
proceedings, so long as the proceedings themselves would attract the privilege: Mahon v Rahn
(No 2) [2000] 4 All ER 41, CA (a bankers’ report sent in response to inquiries to both the
Trading Standards Authority and the Serious Fraud Office was covered by absolute privilege).
But note that the immunity does not operate in respect of all torts. Thus, no such privilege
could be clamed in relation to malicious prosecution, or in cases of conspiracy. As such, where
such allegations are made, it is improbable that the case would be struck out: see L v Borough
Council [2001] EWCA Civ 346, [2001] 1 WLR 1575.
86 Munster v Lamb (1883) 11 QBD 588, CA. i
87 Mackay v Ford (1860) 5 H & N 792. But in non-contentious matters, a qualified privilege may
be sufficient: see Waple v Surrey County Council [1998] 1 WLR 860, CA.
88 Scott v Stansfield (1868) LR 3 Exch 220. } row t
89 Doubt arises since judicial immunity may derive from the separate defence of judicial act, not
that of privilege: Hamilton v Anderson (1858) 3 Macq 363, at 375, HL. Cf Law v Llewellyn
[1906] 1 KB 487, CA.
90 In answer to the question: ‘Were you at York on a certain day?’ a statement by a witness: SCS.
and AB picked my pocket there’, would not be made qua witness if the proceedings were
entirely unconnected with AB: Seaman v Netherclift (1876) 2 CPD 53, at 57, CA, per
Cockburn CJ.
Finally, it should be noted that the privilege extends to documents initiating,’' or made
in the course of the proceedings (eg, pleadings and affidavits).’” However, documents
prepared prior to proceedings that do not have any necessary link with those
proceedings are not privileged in this way. Accordingly, in one case where a defamatory
letter was written by the defendant council to the claimant’s solicitor in the course of
pre-hearing negotiations, it was held that, since the letter’s contents did not have any
necessary import for any future legal proceedings, it was inappropriate to allow the
defendant to claim a privilege.”
(D) Solicitor-client communications

Closely related to the privilege just discussed is the question of how far statements to
solicitors by either clients or witnesses before trial, are protected. If the purpose of not
restricting the prosecution of judicial proceedings is to be attained, it would be unrealistic
to deny to a witness privilege in respect of a proof of his evidence made immediately
before trial. The House of Lords has therefore held in Watson v M’Ewan that a witness
making a proof after the issue of a writ, but before trial, is absolutely privileged.” This
extension by the House of Lords of the privilege surrounding judicial proceedings is
restricted to matters outside the proceedings which are necessary for the administration
of justice. It does not extend to.a complaint to the Bar Council, even though that is a
recognised channel for complaints by the public about members of the Bar.”
Whether all communications between solicitor and client should be so privileged is
clearly a different matter. Yet consider More v Weaver.”°
In a discussion between solicitor and client on whether a loan should be called
in, C was defamed. Importantly, the discussion bore no relation to any actual or
prospective litigation. The statement was held to be absolutely privileged.
Yet in Minter v Priest’’ the House of Lords expressly left open the question of whether
More v Weaver had been rightly decided. It is suggested here that More v Weaver was
wrongly decided. In the cases which it purported to follow,” solicitor-client
91 But not, if the initiating document is wrongly sent to the Bar Council, instead of to an Inn of
Court: Lincoln v Daniels [1962] 1 QB 237, CA.
92 See Lilley v Roney (1892) 61 LJQB 727; Revis v Smith (1856) 18 CB 126; Taylor v Director of
the Serious Fraud Office [1999] 2 AC 177, HL. Veal v Heard (1930) 46 TLR 448, DC (which
held that a notice of objection to the renewal by a judicial body of a licence is not privileged)
is wrongly decided on this point. For the pre-trial statements of witnesses, see below. What of
a false oath leading to a warrant of arrest? The privilege confers a general defence to all torts,
and not merely to defamation: Marrinan v Vibart [1963] 1 QB 528, CA.
93 Waple v Surrey County Council [1998] 1 All ER 624, CA. See also Daniels v Griffith [1998]
EMLR 489, CA (no privilege in respect of a defamatory statement (relating to C) given by D
to the police which was later used by a parole board considering C’s parole because the parole
board was not a court of law). Cf Mond v Hyde [1998] 3 All ER 833, CA (official receiver
covered by privilege in respect of statements made in bankruptcy proceedings in so far as those
statements were made for the purpose of court proceedings).
94 [1905] AC 480, HL.
95 Lincoln v Daniels [1962] 1 QB 237, CA.
96 [1928] 2 KB 520, CA.
97 [1930] AC 558, at 579, HL, per Lord Atkin.
98 Eg, Browne v Dunn (1893) 6 R 67, HL.
communications were only held to be absolutely privileged because they referred

to
judicial proceedings actually pending.
(E) Reports of judicial proceedings

A fair and accurate report of judicial proceedings heard in public and published
contemporaneously with those proceedings, is absolutely privileged under section 14
of the Defamation Act 1996. For the purposes of this section, ‘contemporaneous’
publications include those that appear ‘as soon as practicable after publication is
permitted’.” And the ‘judicial proceedings’ to which the Act refers are specified to
mean any proceedings in a UK court, the European Court of Justice or the European
Court of Human Rights.'°° Unlike the corresponding provision in the previous
legislation'”' — which confined privilege to newspaper, television and radio reports —
section 14 confers absolute privilege upon contemporaneous reports that appear by
virtue of any medium of publication.
Reports of such interruptions to judicial proceedings as may be regarded as taking

place in the course of the proceedings (although they may be applications with which
the judge has no power to deal) were protected under the old law.'” Presumably, they
remain so protected under the 1996 Act. Similarly, nothing in the new legislation changes
the common law rule that the jury should decide if the report is a fair and accurate
one”
Once any absolute privilege is established, it extends to consequential communications
in the ordinary course of things to clerks, typists and the like.'™
Section 5. Qualified privilege

In certain circumstances, it is thought desirable that reflections on the reputation of
another, although untrue, should not give rise to tortious liability, provided those
reflections were not published with ‘malice’. These are occasions of qualified privilege.
They are characterised by the fact that, in such circumstances, the interest in freedom
of speech is more important than the claimant’s interest in the protection of her
reputation. In practical terms, this is the most widely used detence. It is generally
underpinned by the notion that the defendant was under a duty — whether legal, social
or moral —to make the communication complained of.'® But again malice will defeat the
invocation of this defence. Since malice may be evidenced in number of ways in this
context, it is discussed as a preliminary matter.

101 Law of Libel Amendment Act 1888, s 3.
102 Farmer v Hyde [1937] 1 KB 728, at 743, CA, per Slesser LJ. :
103 Although legal precision is not required, a report of a conviction for stealing a car was held not
to be a fair report of a conviction for taking it without the owner’s consent: Mitchell v Hirst,
Kidd and Rennie Ltd [1936] 3 All ER 872.
104 M Isaacs & Sons Ltd v Cook [1925] 2 KB 391.
105 See Adam v Ward [1917] AC 309, at 334, HL, per Lord Atkinson.
(A) Malice _
(1) Establishing malice _

Qualified privilege is defeated if the claimant proves ‘malice’. Malice, for the purposes
of defeating this defence, means making use of the privileged occasion dishonestly or
for some evil or improper purpose. It may be established in any of the following
ways.|
(A) THE DEFENDANT DOES NOT BELIEVE IN THE TRUTH OF HIS STATEMENT
By far the most important way of establishing malice (and thereby rebutting the privilege)
is to show that the defendant did not believe in the truth of his statement or that he was
reckless as to whether the statement was true or false. Thus, ‘[i]f a man is proved to
have stated that which he knew to be false, no one need inquire further’.'°’ Accordingly,
a solicitor who writes that his client has admitted his negligence when he knows that
he has not admitted it has abused the privilege.'°* Similarly, in Fraser v Mirza,'” proof
that the defendant had quite blatantly and deliberately lied in parts of the statement
complained of was sufficient to establish malice and defeat his claim of privilege. On
the other hand, mere proof that the defendant had no reasonable grounds for believing
his statement to be true is not enough to rebut the qualified privilege.''® In the leading
case of Horrocks v Lowe,'"' it was held that if the defendant honestly believed his
statement to be true, his privilege is not lost merely because his conclusion that his
statement was true resulted from unreasoning prejudice, or was irrational with regard
to the subject matter.
There is probably one exception to the rule that a person who does not believe in the
truth of a statement forfeits the privilege. Lord Bramwell established this exception
thus:
A person may honestly make on a particular occasion a defamatory statement
without believing it to be true; because the statement may be of such a character
that on that occasion it may be proper to communicate it to a particular person
who ought to be informed of it.'!”
Although authority is scanty, this exception seems sound in law. There may well be
circumstances where the obligation to communicate the defamatory matter is so pressing
that the defendant should be free to do so: this is particularly true where such
106 By RSC Ord 82, r 3(3), C, who is seeking to defeat a plea of privilege or fair comment by proof
of malice, must give particulars in his reply of the facts and matters from which malice is to be
inferred.
<n-P107 Clark v Molyneux (1877) 3 QBD 237, at 247, CA, per Brett LJ.
108 Groom v Crocker [1939] 1 KB 194, CA. See also Royal Aquarium and Summer and Winter
Garden Society v Parkinson [1892] 1 QB 431, CA, where D had stated that a male and a female
had performed in an indecent manner at a place of entertainment.
109 1993 SLT 527, HL:
110 Clark v Molyneux (1877) 3 QBD 237, CA. Cf Pitt v Donovan (1813) 1 M & S 639. C may,
however, be able to circumvent a plea of qualified privilege by suing in negligence: Spring v
Guardian Assurance plc [1995] 2 AC 296, HL.
Lil [197s] AG 135, HE:
112 Clark v Molyneux (1877) 3 QBD 237, at 244, CA. Cf Botterill v Whytehead (1879) 41 LT 588,
at 590, per Kelly CB.
information as the defendant has, is properly requested by another, or where an

important interest is subjected to a serious risk of harm if the defendant does not
publish the information. A good example might be informing a school that the caretaker
is a paedophile. Even if the maker of the statement does not believe it of the caretaker,
although she heard it from another, she might nonetheless be excused from liability for
erring on the side of caution and informing the school authorities.
(8) ABUSE OF THE PURPOSE OF THE PRIVILEGE

If the defendant does not act for the purpose of protecting that interest for which the
privilege is given, he loses it.'!’ Even though the defendant did believe his statement
to be true, if the court is satisfied that his dominant motive was an improper purpose,
the privilege is lost.''* He must use the occasion in accordance with the purpose for
which the occasion arose.'!* Thus, it was held that a letter sent to the BBC by a film
company about a film critic would be ‘malicious’ if its purpose should be to stifle
criticism.'!®
The courts normally use, with reference to this class of malice, such expressions as
‘wrong motive’, “personal spite’ or ‘ill-will’. If the defendant is actuated by such a
motive, then he abuses the privilege. But where he honestly believed in the truth of his
statement, the court should be very slow to draw the inference that he was activated
by improper motives.''’ The language occasionally used by the courts, and more often
by writers, might seem to suggest that whenever, on a privileged occasion, the defendant
has exhibited an improper motive, the privilege is rebutted. This is not quite correct:
not only must there be an improper motive, that motive must have been a causative
factor in the publishing of the defamation. The courts usually express it as follows:
‘the defendant was actuated by motives of personal spite or ill-will’.''® Thus, in
Winstanley v Bampton, a creditor who wrote a defamatory letter to the commanding
officer of the claimant debtor, and believed what he wrote, forfeited his privilege because
his indignation and anger had led him to defame the claimant.''” If, however, the
defendant was using the occasion for its proper purpose, but incidentally happened to
have feelings of resentment or wrath towards the claimant, this would not deprive him
of the privilege: the privilege is not lost if the ill-will is not the defendant’s primary
purpose, but merely one purpose.'”’
In deciding whether there is the requisite ill-will, it is relevant to consider the violence
of the language of the communication. Yet judges have firmly laid down the rule that
the courts must be very reluctant to infer malice from such evidence alone. In Adam v
Ward Lord Atkinson said:
113 (1877) 3 QBD 237, at 246, per Brett LJ.
114 Horrocks v Lowe [1975] AC 135, at 149, HL, per Lord Diplock.
115 Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431, CA,
per Lopes LJ.
116 Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, at 457-8, HL, per Lord
Porter.
117 Horrocks v Lowe [1975] AC 135, at 149-50, HL, per Lord Diplock.
118 Wright v Woodgate (1835) 2 Cr M & R 573, approved in Adam v Ward [1917] AC 309 at 349,
HL, per Lord Shaw.
119 [1943] KB 319.
120 Horrocks v Lowe [1975] AC 135, at 149, HL, per Lord Diplock. See also Fraser v Mirza 1993
SLT 527, HL:
a person making a communication on a privileged occasion is not restricted to

the use of such language merely as is reasonably necessary to protect the
interest or discharge the duty which is the foundation of his privilege; but that,
on the contrary, he will be protected, even though his language should be violent
or excessively strong, if, having regard to all the circumstances of the case, he
might have honestly and on reasonable grounds believed that what he wrote or
said was true...'7!
(c) THE INCLUSION OF EXTRANEOUS MATTER

The introduction of irrelevant matter in a communication may afford evidence of malice
which will take away that privilege which would otherwise attach to the
communication.'”* On the other hand, in circumstances where the material is wholly
extraneous to the main statement being made, there will be no privilege in the first
place, and the question of whether a qualified privilege is defeated by malice will not
arise.'?°
(D) UNREASONABLE PUBLICATION TO PERSONS OUTSIDE THE SCOPE OF THE PRIVILEGE
Malice is present (and rebuts the privilege) if a defendant deliberately slanders another
in the presence of persons to whom he has no privilege to communicate the matter
(although he may have a privilege to inform some of those present), or if he publishes
in the press, when he could have protected his interest by a private communication.'*
(2) Judge and jury and the burden of proof in respect of malice
Lord Finlay summarised the functions of judge and jury in this context thus:
It is for the judge, and the judge alone, to determine as a matter of law whether
the occasion is privileged, unless the circumstances attending it are in dispute,
in which case the facts necessary to raise the question of law should be found
by the jury. It is further for the judge to decide whether there is any evidence of
express malice fit to be left to the jury — that is, whether there is any evidence on
which a reasonable man could find malice.!”°
The burden of proving to the jury that the defendant was ‘malicious’ rests with the
claimant. He discharges this burden if he proves the defendant malicious in any of the
senses discussed above. In pleas of express malice, as in every other aspect of
defamation law, questions may arise of exactly what meaning or meanings the defamatory
statement properly bore. In Fraser v Mirza,'*° for example, the respondent alleged, in
a complaint to the Chief Constable, that the appellant police officer had acted against
him on racist motives. He expressly claimed that when questioned about two television
121 [1917] AC 309, at 339, HL. Cf Spill v Maule (1869) LR 4 Exch 232 for a good illustration of
judicial refusal to deprive D of his privilege on the ground that he used extravagant language.
122 Adam v Ward [1917] AC 309, at 318, HL, per Lord Finlay LC.
123 Adam v Ward [1917] AC 309, HL. See also, Watts v Times Newspapers Ltd [1997] QB 650, CA.
124 Oddy v Lord Paulet (1865) 4 F & F 1009.
125 Adam v Ward [1917] AC 309, at 318, HL.
126 1993,SED 527, Hi:
Defences and remedies in defamation 5\7
sets he gave them up without hesitation and that a friend of his in the Pakistani
community had been threatened by the officer. The House of Lords held that the whole
substance of the complaint was intended to convey that the respondent had been
charged with offences relating to the television sets without any evidence. His
allegations were shown to be deliberate untruths and constituted sufficient evidence
of absence of belief in the overall sting of the libel: namely, that he had been charged
on solely racist grounds.
(3) Excess of privilege and malice

It might perhaps have been sufficient to consider, as we have already done, excess of
privilege in relation to ‘malice’. In Adam v Ward, however, the House of Lords held that
there are two separate questions to be answered: (1) whether the privilege has been
exceeded, and (2) whether there is evidence of malice.'”’ Proof of excess of privilege
has the same effect as proof of malice: it removes the defence. The importance of the
distinction lies in the fact that the judge decides whether the privilege is exceeded, but
the jury decides whether there is ‘malice’. And observations made by judges in directing
juries on what is evidence of malice are not necessarily applicable when they have to
rule as to excess of privilege.'** There may be such an excess where statements quite
unconnected with the main statement are introduced.!”? Take Tuson v Evans.'*°
In a letter to C’s agent setting out the basis of his claim against C for arrears of
rent, D added: ‘This attempt to defraud me of the produce of land is as mean as
it is dishonest’. This ‘wholly unnecessary’ addition deprived him of his qualified
privilege.
The privilege is also lost by publishing to more persons than is necessary. It was
exceeded, for example, when the minutes of a preliminary inquiry by a committee of a
local authority into alleged petrol thefts by employees were placed in the public library:
at that stage, the body of ratepayers had not the necessary common interest.'*' On the
other hand, an occasion does not cease to be privileged simply because the defendant
publishes to clerks or others in the reasonable and ordinary course of business
practice.'** The fact that persons are present other than those to whom there is a duty
to make the statement will not end the privilege if the ordinary ‘business of life could
not well be carried on’ were such restrictions to be imposed.'*’ So, for example, a
127 [1917] AC 309, at 318, 320-1, 327, HL, per Lord Finlay, Earl Loreburn and Lord Dunedin at
8272
128 [1917] AC 309, at 321, per Earl Loreburn.
129 If the statement, though not in strict logic relevant to the privileged occasion, is reasonably
germane to the subject matter, then it is material only as evidence of malice to take the case
out of the privilege: Horrocks v Lowe [1975] AC 135, at 151, HL, per Lord Diplock.
130 (1840) 12 Ad & El 733.
131 De Buse v McCarthy [1942] 1 KB 156, CA. Cf Williamson v Freer (1874) LR 9 CP 393
(privilege to publish by letter lost when sent by telegram).
132 Boxsius v Goblet Fréres [1894] 1 QB 842, CA; Edmondson v Birch & Co Ltd and Horner
[1907] 1 KB 371, CA; Bryanston Finance Co Ltd v De Vries [1975] QB 703, CA. The last cited
case, following Toogood v Spyring (1834) | CrM & R 181, established that where the
publication is made only to C, and not to third parties, there is then a qualified privilege for the
publication to clerks if it is fairly warranted by any reasonable occasion (not, as in that case,
for a threatening improper letter). See also White v J and F Stone (Lighting and Radio) Ltd
[1939] 2 KB 827, CA.
133 Toogood v Spyring (1834) 1 Cr M & R 181, at 194, per Parke B.
company does not forfeit its protection if, in order to have circulated a copy of the
auditor’s report, it sends it to printers, for that is ‘reasonable and necessary’
.'**
(4) Joint publishers and malice

Some difficult problems relating to the abuse of privilege are raised when there is a
publication by joint tortfeasors or the employees of the defendant. An agent through
whom a person publishes a privileged communication enjoys the same privilege as his
principal. Thus, a solicitor has the defence of qualified privilege when he publishes on
behalf of his client some matter which his client had a privilege to publish.'*°
Correspondingly, if a servant in the course of his employment publishes with malice,
the fact that his master was not personally malicious will not exempt the master from
vicarious liability since the servant who forfeits the privilege does so in the course of
his employment.'*° Where each party responsible for a joint publication has an individual
right to publish the statement — eg, trustees or members of a committee — each has an
independent privilege which is not affected by the malice of one or more of the other
joint publishers.'*’? Sometimes, one of the persons sued for the publication is a mere
ancillary (eg, a printer or typist). Such ancillary publishers may probably still plead
qualified privilege even if all his principals published maliciously, so long as he himself
was not actuated by malice.'**
(B) Instances of qualified privilege
(1) General principle

All the instances of qualified privilege now to be considered can be subsumed within
the one general principle: they exist where the defendant has an interest or duty
(whether legal, social or moral) to communicate intelligence about the claimant to a
third party who has a corresponding interest or duty to receive such information.'*”
The underlying rationale for the existence of a qualified privilege, in certain
circumstances (discussed below), has also been summarised thus: it exists for ‘the
common convenience and welfare of society’.'*° Thus, ‘originally and in principle
there are not many different kinds of privilege, but rather for all privilege there is the
same foundation of the public interest’.'*! The classic statement on the matter is that of
Parke B.'”
134 Lawless v Anglo-Egyptian Cotton and Oil Co (1869) LR 4 QB 262, per Mellor J.
135 Baker v Carrick [1894] 1 QB 838, CA.
136 Citizens’ Life Assurance Co v Brown [1904] AC 423, PC; Riddick v Thames Board Mills Ltd
[1977] QB 881, CA.
137 Egger v Viscount Chelmsford [1965] 1 QB 248, [1964] 3 All ER 406, following Longdon-
Griffiths v Smith [1951] 1 KB 295 and Meekins v Henson [1964] 1 QB 472.
138 This was the view of the majority in Egger v Viscount Chelmsford [1965] 1 QB 248, CA, who
took the bold step of disregarding statements to the contrary in Adam v Ward [1917] AC 309,
HL because their Lordships had not heard argument on the point.
139 Adam v Ward [1917] AC 309, HL.
140 Perera v Peiris [1949] AC 1, at 20, PC, per Lord Uthwatt.
141 Webb v Times Publishing Co Ltd [1960] 2 QB 535, at 563, per Pearson J.
142 Toogood v Spyring (1834) 1 Cr M & R 181, at 193, approved by Lord Shaw in Adam v Ward
[1917] AC 309, at 349, HL.
Defences and remedies in defamation 5\9
[The defendant is liable for a defamatory statement] unless it is fairly made by a

person in the discharge of some public or private duty, whether legal or moral, or
in the conduct of his own affairs, in matters where his interest is concerned. If
fairly warranted by any reasonable occasion or exigency, and honestly made,
such communications are protected for the common convenience and welfare of
society; and the law has not restricted the right to make them within any narrow
It is convenient to group the examples of statements afforded qualified privilege — and

they are examples only — as follows: privileged reports, statements which protect an
interest and those made under a legal, moral or social duty.
(2) Privileged reports
Fair and accurate reports of proceedings in Parliament or in committees thereof, or a

fair summary or sketch of that part of those proceedings which is of special interest,'3
are privileged at common law.'** These, and other such common law privileges, are
expressly preserved by the Defamation Act 1996,'* even though section 15 of that Act
— read in conjunction with Schedule 1 — endeavours to establish a comprehensive
range of reports that attract a statutory qualified privilege.'*° The printing or
broadcasting” of copies of, or extracts from, reports,'** papers, votes or proceedings
published by authority of either House of Parliament are also privileged independently
of the 1996 Act.!”
Judicial reports, too, remain privileged at common law, so long as they are both fair and
accurate.'°° The question of whether such reports meet the criteria of fairness and
accuracy falls to the jury. In view of the different rationale for this privilege, these
‘judicial proceedings’ (a report of which acquires a qualified privilege) are not the same
as those ‘judicial proceedings’, a report of which, attracts an absolute privilege.'*' The
former is a much broader class of reports. Yet in Stern v Piper'® it was held that
qualified privilege does not stretch to a report of proceedings that are merely ‘pending’.
On the other hand, although a tribunal for the purposes of qualified privilege need not
perform ‘judicial functions’ (in the narrow sense of the term), reports of its proceedings
may be privileged, provided the public are admitted and the tribunal is not a mere
143 Cook v Alexander [1974] QB 279, CA.

144 Wason v Walter (1868) LR 4 QB 73.
145 Defamation Act 1996, s 15(4)(b).
146 This list, contained in Sch 1 to the 1996 Act is reproduced as Appendix 2 to this book.
147 Defamation Act 1952, s 9(1) extends this privilege to those forms of broadcasting to which
the Act applies.
148 Parliamentary Papers Act 1840, s 2.
149 Including blue books and reports of Royal Commissions presented to Parliament: Mangena v
Edward Lloyd Ltd (1908) 98 LT 640; on appeal (1909) 99 LT 824, CA.
150 Furniss v Cambridge Daily News Ltd (1907) 23 TLR 705, at 706, CA, per Sir Gorell Barnes P.
In. Stern v Piper [1997] QB 123, CA it was said that blasphemous or obscene material would not
be privileged; nor would pre-trial reporting of allegations in court documents not yet in the
public domain.
151 For the judicial proceedings covered by absolute privilege see s 14(3) of the Defamation Act
1996.
152 [1997] QB 123, CA.
domestic one, such as the Jockey Club.'® The privilege stifl applies where the tribunal
is simply considering the case in order to discover whether it has jurisdiction, even
though in fact it has no such jurisdiction.'*
By far the most comprehensive list of those reports and statements which are afforded
a qualified privilege is contained in Schedule | to the Defamation Act 1996.'°° Importantly,
however, there are limits to this statutory privilege. The Act offers no protection in the
instance of a ‘publication to the public, of matter which is not of public concern and
the publication of which is not for the public benefit’.'°° Nor does it confer a qualified
privilege in respect of anything published with malice,” or illegally.'°*
So far as it relates to qualified privilege, the protection provided by section 15 of the
1996 Act is broadly similar to its now repealed predecessor, section 7 of the Defamation
Act 1952. That, in turn, was little more than a reiteration of section 3 of the Law of Libel
Amendment Act 1888 and, importantly, there is authority under that nineteenth century
statute that what has become section 15 is to be construed conjunctively — ie that both
public concern and public benefit must be shown. Furthermore, the burden of proving
this lies with the defendant.'*? Both the questions of what constitutes a matter of
public concern, and what constitutes a matter of public benefit, are for the jury to
decide.'®°
Reports protected by the Act fall into two distinct groups: (1) those privileged without
any explanation or contradiction'®' and (2) those privileged subject to explanation or
contradiction.'® In relation to the former category, protection is conferred, broadly, on
a world-wide basis. It lies in respect of reports of judicial, legislative and international
organisation proceedings conducted in public, and reports on official publications.
Unlike the absolute privilege that is conferred in relation to reports of judicial
proceedings, the protection conferred under section 15 of the 1996 Act applies without
requiring the report to be contemporaneous with the judicial proceedings.'®
153 Chapman v Lord Ellesmere [1932] 2 KB 431, CA. Cf Allbutt v General Council of Medical
Education and Registration (1889) 23 QBD 400, at 410, CA, per Lopes LJ. The privilege
applied to foreign courts where the subject-matter was of legitimate interest to the English
newspaper-reading public (eg, where it was closely connected with the administration of justice
in England — as in Webb v Times Publishing Co Ltd [1960] 2 QB 535 — but not otherwise).
154 Usill v Hales (1878) 3 CPD 319. This case is not an authority on absolute privilege for judicial
acts done without jurisdiction.
155 See Appendix 2.
156 Defamation Act 1996, s 15(3). In Kelly v O'Malley (1889) 6 TLR 62, for example, irrelevant,
defamatory comments made at a public meeting were afforded no privilege.
158 Defamation Act 1996, s 15(4)(a).
159 Kelly v O'Malley (1889) 6 TLR 62, at 64, per Huddleston B; Sharman v Merritt and Hatcher
Ltd (1916) 32 TLR 360.
160 Kingshott v Associated Kent Newspapers Ltd [1991] 1 QB 88, CA. But note that sufficient
sections of society may well constitute ‘the public’ for these purposes: see GKR Karate (UK)
Ltd v Yorkshire Post Newspapers Ltd (No 2) [2000] EMLR 410 (regional publication) and A/-
Fagih v HH Saudi Research and Marketing (UK) Ltd [2001] EWCA Civ 1634, [2002] EMLR
215, CA (publication aimed at Saudis only).
161 Defamation Act 1996, Sch 1, Part I.
162 Defamation Act 1996, Sch 1, Part II.
163 Tsikata v Newspaper Publishing plc [1997] 1 All ER 655, CA (case report appeared ten years
after the case had been heard, but it was held to be privileged). ‘Reports’ privileged in this way
under s 7 of the 1952 Act continue to be covered under the 1996 Act so the authority of the
case remains intact.
Defences and remedies in defamation 52\
In relation to the second class of reports covered by section 15 — those which are
privileged subject to explanation or contradiction —no protection will be afforded if the
claimant proves that the defendant, despite a request to publish a letter or statement of
explanation or contradiction in a suitable manner,'™ has refused or neglected so to
do.'® The kinds of reports and statements that fall into this second class include those
concerning official parliamentary or judicial notices to the public, meetings of public or
quasi-public bodies in this country and general meetings of UK public companies.
The essential difference between the first and second class of reports is that those in
the latter category tend to be based on notices issued, and meetings held, in the UK or
European Union. For this reason it is much more reasonable to expect, say, a newspaper
to print a correction or explanation relating to the initial report. By contrast, it is seen as
too much of an imposition to expect the newspaper to publish such explanations or
corrections when the initial report was on an item of World news.
(3) Statements to protect an interest
(A) THE PUBLIC INTEREST
(i) Statements by way of help in discovering criminals

Information given to the police'® in order to detect crime is privileged.'®’ Statements
made by policemen in the course of their inquiries into suspected crimes are presumably
also privileged. And statements made in the course of complaints about police conduct
have also been held to be privileged.'®
(ii) Statements about the misconduct of public officers

When a member of the public brings to the notice of the proper authority any misconduct
or neglect of duty on the part of public officers, his doing so is afforded qualified
privilege.’ However, when the defendant, acting in good faith, complains to the
wrong official, he is not privileged.'’° But a defendant who first addresses his complaint
about misconduct to his MP will almost certainly be privileged.'’' One unanswered
question, however, is whether the privilege in relation to the misconduct of public
officers includes those employed in one of the now privatised public services? Logically,
it should.
164 That is, in the same manner as the publication complained of or, alternatively, in a manner
that is both reasonable and adequate in the circumstances: Defamation Act 1996, s 15(2).
166 But not to the wife of the accused: Wenman v Ash (1853) 13 CB 836.
167 Padmore v Lawrence (1840) 11 Ad & El 380.
168 Fraser v Mirza 1993 SLT 527, HL.
169 Eg, Harrison v Bush (1855) 5 E & B 344 (statement to Home Secretary about county
magistrate). But see Blackshaw v Lord [1984] QB 1, CA: suspicions must be aired to the proper
authority and not the public at large unless public safety is at risk.
170 Hebditch v Macllwaine [1894] 2 QB 54, CA; Beach v Freeson [1972] 1 QB 14. Cf the dictum
of Lord Atkinson in London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC
15, at 34, HL (answers to an inquiry in the genuine mistaken belief that the inquirer had a
legitimate interest, held to be privileged).
171 Rv Rule [1937] 2 KB 375, CCA.
(8) THE INTEREST OF THE PUBLISHER )

Just as self-defence and protection of property are defences in torts affecting the
person and property, so also is a statement made to protect or advance the defendant’s
interests a matter of qualified privilege in defamation.'” For instance, a creditor may
write to an auctioneer to protect his security.'” Equally, a man who replied to a letter
demanding payment of fees for medical services to his wife (who died from scarlet
fever) saying, ‘I shall never pay him unless the law compels me, and that I do not fancy
it can, as I could more easily indict Dr S for manslaughter’, was held to be privileged.'”
Privilege will also extend to reasonable steps taken by the publisher to collect money
owing to him,'’> warnings issued to servants about the bad character of their
associates,'’° and replies to attacks on the publisher’s reputation.'””
(c) INSTANCES OF COMMON INTEREST

There are cases of privilege based on interest where neither the public nor the publisher
alone has a sufficiently defensible interest for the case to be brought within either of
the preceding headings. These cases concern instances in which both the publisher
and the recipient of the communication have a ‘common interest’ in the subject-matter
of the communication. A common interest of this kind exists between an employer and
his employees. Thus, in one case, the defendants had posted up a circular in such of
their premises as would be frequented by their employees, stating (among other things)
that the claimant, another former employee, had been dismissed for neglect of duty.
The privilege of common interest was held to extend to the defendants.!”°
The range of matters privileged because they are of common interest are manifold as
the following examples demonstrate: a bishop replying to an attack on him in the
legislature before an assembly of his clergy,'”? communications within a family on
matters affecting the welfare of a member of that family,'®° a letter by a parishioner to
the bishop about an incumbent,'*! a report of a member of a trade protection society to
its secretary about the trading conduct of another member,'*” speeches by a company
shareholder at a shareholders’ meeting'®’ or a trustee at a friendly society meeting,'™ a
172 Toogood v Spyring (1834) 1 Cr M & R 181, at 193, per Parke B; Aspro Travel Ltd v Owners
Abroad Group pic [1995] 4 All ER 728, CA.
173 Blackman v Pugh (1846) 2 CB 611.
174 Stevens v Kitchener (1887) 4 TLR 159.
175 Winstanley v Bampton [1943] KB 319.
176 Somerville v Hawkins (1851) 10 CB 583.
177 Laughton v Bishop of Sodor and Man (1872) LR 4 PC 495. But may a representative of the
press, theatre, or other section of the community create a privilege by replying to an attack
on that section as a whole by C? ‘No’, held Dixon J in Penton v Caldwell (1945) 70 CLR 219
(whose decision was reversed by the High Court of Australia on the ground that D, a newspaper,
had itself been attacked by C.
178 Hunt v Great Northern Rly Co [1891] 2 QB 189, CA. See also Bryanston Finance Ltd v De Vries
[1975] QB 703.
179 Laughton v Bishop of Sodor and Man (1872) LR 4 PC 495.
180 Todd v Hawkins (1837) 8 C & P 88.
181 James v Boston (1845) 5 LTOS 152.
182 White v Batey & Co Ltd (1892) 8 TLR 698.
183 Parsons v Surgey (1864) 4 F & F 247
184 Longdon-Griffiths v Smith [1951] 1 KB 295.
statement made by a creditor to another creditor about their debtor'® and an invigilator
informing the examinees of cheating by one of them.!*
In one respect the scope of this privilege has been curtailed by section 10 of the
Defamation Act 1952 which provides that publications, even to a qualified voter, by or
on behalf of a candidate at a parliamentary or local government election, are not
privileged on the ground that they are material to a question in issue in the election.'*”
(4) Statements in pursuance of a legal, social or moral duty

There is no general common law defence of publication of ‘fair information on a matter
of public interest’. General Interest in the subject-matter of a report made to the public
as a whole is, by itself, an insufficient basis upon which to grant the report a qualified
privilege.'** The correlative ‘duty and interest’ aspects that normally characterise
instances of qualified privilege are absent in such cases, for the public at large can but
rarely claim a genuine interest in the disclosure of information concerning a given
individual. Recall that what interests the public is not necessarily what is in the public
interest! However, in Reynolds v Times Newspapers Ltd,'* the Court of Appeal set out
a three-part test, satisfaction of which would confer a qualified privilege in respect of
certain publications via the media to the world at large. The test was held to be as
follows. (1) The newspaper must owe a legal, moral or social duty to the public to
publish the material concerned. (2) The public must have a corresponding interest to
receive that information. (3) The nature, status, source, and circumstances surrounding
acquisition of the material should be such as warrant a qualified privilege on the
statement maker’s behalf.
The third limb of this test added the crucial element (to what is otherwise the usual test
of reciprocal duty and interest'*°) in order to justify large-scale media publications.
The appropriateness of the Court of Appeal test was tacitly acknowledged when the
case reached House of Lords, although, in his leading speech, Lord Nicholls expatiated
on the criteria required to justify such publications to the world at large. He said:
Depending on the circumstances, the matters to be taken into account include
the following.
1. 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.
2. The nature of the information, and the extent to which the subject matter is
a matter of public concern.
185 Spill v Maule (1869) LR 4 Exch 232.

186 Bridgman v Stockdale [1953] 1 All ER 1166.
187 Braddock v Bevins [1948] 1 KB 580, CA, must now be read in the light of this section. See also
Plummer v Charman [1962] 3 All ER 823, CA. =
188 The ‘public interest’ of qualified privilege is narrower in scope than the ‘public interest of fair
comment (see below). Chapman v Lord Ellesmere [1932] 2 KB 431, CA illustrates its strictness,
which is explained by the fact that in qualified privilege, unlike fair comment, the defence will
succeed although the facts are untrue.
189 [1998] 3 All ER 961, CA.
190 Adam v Ward {1917] AC 309, at 334, HL.
3. The source of the information. Some informants have no direct knowledge

of the events. Some have their own axes to grind, or are being paid for their
stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the
subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the [claimant]. He may have information
others do not possess or have not disclosed. An approach to the [claimant]
will not always be necessary.
8. Whether the article contained the gist of the claimant’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an
investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant
factors will vary from case to case.'?!
It will be noticed, however, that the three elements set out by the Court of Appeal —
duty, interest and appropriate circumstances — still underpin this excerpt from his
Lordship’s dictum.'” The absence of any one of these elements is fatal. Thus, no
defence was available in respect.of a published story speculating that the claimant was
responsible for losses of public money on grants wrongly paid out to North Sea oil
companies.'” The information may be of interest to the public but that does not create
a duty to publish it. Indeed, a duty to publish matters of speculation and suspicion to
the public at large will arise only in exceptional cases such as those where public
safety is endangered.’
Notwithstanding a marked caution to make free and easy application of the Reynolds
principle,'*° a trend is nonetheless discernible according to which the courts are
increasingly tolerant of claims about what is in the public interest — particularly where
a public official is the person who is defamed. Lord Nicholls captured the general point
when he insisted that any ‘court should be slow to conclude that a publication was not
in the public interest and, therefore, the public had no right to know, especially when
the information is in the field of political discussion’.'*° Since then, the point has been
made that the benchmark may be ‘responsible journalism’. This tends to conflate the
questions of the existence of a privilege and the presence of malice; but while
responsible journalism might attract a privilege, it ought not to be seen as synonymous
with a duty to publish'’’.
191 At [2001] 2 AC 127, at 205, HL.
192 At [2001] 2 AC 127, at 224, HL, Lord Cooke viewed the Lords’ version of the test as being
mainly ‘a matter of arrangement’.
193 Blackshaw v Lord [1984] QB 1, CA.
194 Camporese v Parton (1983) 150 DLR (3d) 208.
195 For examples of its application to limited sections of society, see GKR Karate(UK) Ltd v
Yorkshire Post Newspapers Ltd (No 2) [2000] EMLR 410 (regional publication) and A/-Fagih
v HH Saudi Research & Marketing (UK) Ltd [2002] EMLR 215, CA.
196 [2001] 2 AC 127, at 205, HL. See, eg, Tsikata v Newspaper Publishing pic [1997] 1 All ER
Gpish (GANG
197 Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1805, [2002] 1 All ER 652.
See also Al-Fagih v HH Saudi Research and Marketing (UK) Ltd [2001] EWCA Civ 1634,
[2002] EMLR 215 (failure to verify allegations appearing in a newspaper does not necessarily
amount to malice).
It has never been directly decided whether the moral duty to publish an apology after
having published a defamatory statement attracts a qualified privilege. In Watts v
Times Newspapers Ltd,'** the Court of Appeal failed to supply an authoritative answer
to this question. In that case the defendant published a defamatory account of the
claimant and then subsequently apologised in terms that reiterated the initial libel.
Instead of stating generally that such apologies attract qualified privilege, it was merely
held that no such claim to privilege could be sustained in the instant case for want of
a reciprocal interest in publishing the apology on the part of the defendant.
As regards the social duty on Employer A to provide a reference on behalf of one of his
(former) employees to Employer B, it is clear that such a reference would be afforded
qualified privilege. On the other hand, in the light of the House of Lords decision in
Spring v Guardian Assurance pic,'” this immunity may be of little use, since it was
held in Spring that, subject to the usual requirements of the tort, the employee would
be entitled to frame an action in negligence rather than defamation.2°
The defendant’s duty to make a statement about the claimant is sometimes only a
moral or social one — eg, to supply a third party with a warning about the claimant.”°!
But this does not prohibit his statement attracting a qualified privilege. That said, in
the absence of a legal or contractual duty to make such a statement, the court may be
wary of granting a privilege unless the defendant can show a strong relationship — eg,
friendship — between himself and the third party to whom he feels obliged to make the
statement.*” Furthermore, in establishing the existence of such a duty, the defendant
is entitled only to rely on matters that were known to him at the time of publication.”
If the duty is imposed by statute, the general defence of statutory authority will apply.“
Otherwise, the list of moral and social duties is endless. The following is by no means
an exhaustive list of the situations of fact under this head. It is merely illustrative and
includes answers to confidential inquiries about servants; supplying information
about credit;”° protection by a solicitor of his client’s interests;””’ a host informing his
guest of suspicions about the latter’s servant.*°* A member of a woman’s family may
warn her about her fiancé’s character (or vice versa), but the privilege does not
cover idle gossip or officious intermeddling by strangers.’!° Consider Watt v Longsdon.”"'
198 [1997] QB 650, CA.

199 [1995] 2 AC 296, HL.
200 But note that the remedy in negligence would be assessed by the judge and might well be lower
than that awarded by a jury in a defamation action.
201 See, eg, Amann v Damm (1860) 8 CBNS 597; S v Newham London Borough Council (1998)
96 LGR 651 (Ds warned the DoH of the potential danger its employee, C, represented to
young children).
202 Todd v Hawkins (1837) 8 C & P 88.
203 Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 536, [2002] QB 321; GKR Karate
(UK) Ltd v Yorkshire Post Newspapers Ltd (No 2) [2000] EMLR 410.
204 Eg, Moore v Canadian Pacific Steamship Co [1945] 1 All ER 128 (duty of captain under
Merchant Shipping Act 1894 to record in the ship’s log details of all desertions from ship).
205 Kelly v Partington (1833) 4 B & Ad 700.
206 London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15, HL.
207 Cf, Baker v Carrick [1894] 1 QB 838, at 841, CA, per Lopes LJ.
208 Stuart v Bell [1891] 2 QB 341, CA.
209 Todd v Hawkins (1837) 8 C & P 88.
210 Coxhead v Richards (1846) 2 CB 569.
211 [1930] 1 KB 130, CA.
A company director was held to be privileged in passing on to the chairman a

report that an employee was associating with another woman and otherwise
misconducting himself during his employment overseas, but he was not protected
in informing the wife of the employee, although she had an interest in receiving
that information.
Section 6. Fair comment

This defence covers comments about the claimant or the claimant’s conduct!” in
connection with matters of public interest. Such comments must in the form of
reasonable remarks?" upon true or privileged statements of fact. They must be honestly
made by a person who did not believe the statements to be untrue and who was not
therefore actuated by malice.
(A) Matters of public interest

The first requirement of this defence is that the statement in question must be made
upon a matter of public interest. Here, the defence has been held to cover the public
conduct of people in public offices,”'* but not their private conduct (except in so far as
it throws light on whether they possess qualities such as integrity and honesty which
are thought to be essential to people in public life).”'* Matters of government and
public administration,?'* including local government,””’ are also within its scope. The
management of institutions of substantial public concern, such as the media itself,?"®
or religious institutions, is also a matter for fair comment.”””
Anything submitted to the public for its appraisal is of public interest. Books,’ articles
in periodicals and newspapers,”' plays*” and radio broadcasts (themselves being film
criticisms),””* are examples. The work of an architect“ and the performance of actors in
public entertainments”? are also within the defence.
212 The comment may not be directed towards another matter but incidentally contain an
unsubstantiated, defamatory allegation about C: Baldwin v Rusbridger [2001] EMLR 1062.
213 The comment must pass an objective test (see below), but beyond this it is difficult to justify
the use of the adjective ‘fair’ in this defence. It has even been said that the ‘epithet “fair” is
now meaningless and misleading’: Reynolds v Times Newspapers Ltd [2001] 2 AC 127, at 193,
HL, per Lord Nicholls.
214 Seymour v Butterworth (1862) 3 F & F 372 (Recorder and MP).
215 (1862) 3 F & F 372, at 382, per Cockburn CJ.
216 Eg, Henwood v Harrison (1872) LR 7 CP 606 (the method by which D converted a naval
vessel).
217 Purcell v Sowler (1877) 2 CPD 215, CA.
218 Telnikoff v Matusevitch [1992] 2 AC 343, HL (recruiting policy for the BBC Russian service).
219 Kelly v Tinling (1865) LR 1 QB 699.
220 Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627, CA.
221 Kemsley v Foot [1952] AC 345, HL.
222 Merivale v Carson (1887) 20 QBD 275, CA.
223 Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, HL.
224 Soane v Knight (1827) Mood & M 74.
225 Dibdin v Swan (1793) 1 Esp 27; Cooney v Edeveain (1897) 14 TLR 34, CA; London Artists
Ltd v Littler [1969] 2 QB 375, CA; Cornwell v Myskow [1987] 2 All ER 504, CA.
Any other circumstances which may fairly be said to invite comment are also within
its
scope. Traders who publish handbills,22° or those who issue public advertisements,
invite comment on them. Important though the question is, it remains undecided how
far the quality of goods offered for sale to the public is, ipso facto, the object of fair
comment. Yet, it would be artificially restrictive if the answer depended on the extent of
the manufacturer’s advertising campaign.
(B) Comment on true facts

A second part of the defence is that the comment, with one exception,””” must be made
upon true facts. The rules relating to this part of the defence are unnecessarily
complicated by many technical rules. It is important to distinguish this defence from
that of justification. Fair comment is available only in respect of expressions of opinion;
justification is available in respect of both statements of fact and opinion. In fair
comment, it is not necessary to prove the truth of the comment, merely that the opinion
was honestly held. If justification is pleaded in respect of matters of opinion, the
defendant must prove not merely that he honestly held the views expressed, but that
they were correct views. Thus, if the statement complained of was: ‘X’s speech last
night was inconsistent with his professions of Socialism’, then, on a plea of justification,
the defendant would have to prove that it was inconsistent. In fair comment, he would
need to show only that he honestly held this opinion on X’s speech.
Naturally, in many statements it will be very difficult to unravel fact from comment. Yet
they must be separated in due course by the court, for the defence of fair comment
only lies in relation to comments upon facts that are proved to be true or, exceptionally,
statements that are untrue, but made on a privileged occasion (eg, a witness statement
in court).”* If the statement is not privileged, and the statement is untrue, the defendant
will not be able to invoke the fair comment defence simply by proving that his comment
is honestly made. Thus, in one case, a defendant who implied that a play was adulterous
could not rely on fair comment where the court found as a fact that adultery was not
dealt with in the play.*”? The words ‘X is a disgrace’ led the hearer to believe that they
were based on unstated facts. Accordingly, the defendant could not plead fair comment
in respect of those words alone. If, however, he had added ‘he has deserted his wife
and family’, the original words would probably be regarded as a comment on the stated
facts.
The full details of the procedural complexities associated with a plea of fair comment
fall beyond the scope of this book. Suffice it to say that defendants will attempt,
whenever they can, to cloud the distinction between facts which they must prove, and
226 Paris v Levy (1860) 9 CBNS 342. is.
227 Comments on statements of fact, not proved to be true, but themselves privileged, also attract
the defence.
228 Mangena v Wright [1909] 2 KB 958; Grech v Odhams Press Ltd [1958] 1 QB 310; on appeal,
[1958] 2 QB 275, CA. It is not necessary for D to justify the facts contained in a privileged
statement or report but he must establish that he has given a fair and accurate report of the
proceedings in question: Brent Walker Group ple v Time Out Ltd [1991] 2 QB 33, CA. The facts
must exist at the time of the comment: Cohen v Daily Telegraph Ltd [1968] 2 All ER 407, CA.
229 Merivale v Carson (1887) 20 QBD 275, CA.
230 See Cooper v Lawson (1838) 8 Ad & El 746. For a more modern reassertion of the importance
of taking the offending words in context, see Branson v Bower [2001] EWCA Civ 791, at
[12]-[13], [2001] EMLR 800, at [12]-[13], per Latham LJ.
comment which may be permissible if fair.25' Accordingly, the Court of Appeal has
insisted that a plea of fair comment must be made ‘with sufficient precision to enable
the claimant to know what case he has to meet’.”*? Claimants can require details of the
facts said to constitute the fair comment.””? In Kemsley v Foot, the House of Lords
held that if the facts on which the comment is based, though not mentioned in the
alleged defamatory statement, are adequately pointed to the defendant, he may set out
those facts in his pleadings and base a defence of fair comment on them. The facts of
that case were as follows.
D attacked a newspaper by publishing an article headed ‘Lower than Kemsley’.
Kemsley, a newspaper proprietor not connected with the newspaper which had
been attacked, sued D. It was held that the fact that Kemsley was responsible for
the Kemsley Press was sufficiently clear, and that a defence of fair comment
would succeed if an honest man would have complained that the Kemsley Press
was low.
The case also established that ‘where the facts relied on to justify the comment are
contained only in the particulars it is not incumbent on the defendant to prove the
truth of every fact so stated in order to establish his plea of fair comment, but... he must
establish sufficient facts to support the comment to the satisfaction of the jury’.’*®
A rather different question arose in Telnikoff v Matusevitch.”* There, the defendant
had written an angry and critical letter to the Daily Telegraph in response to an article
written by the claimant. The key issue was whether in determining which parts of the
letter constituted allegations of fact, and which were merely comment, the letter could
be read alongside the offending article. The House of Lords held that only the contents
of the letter itself could be considered: there were likely to be several readers who saw
the letter but not the article and the publication in question must be judged on its own
merits. Lord Keith advised both those writing to newspapers and the editors thereof to
take care to use language distinguishing sufficiently clearly between fact and
comment.’
Difficulties can arise where the defendant can prove some but not all of his factual
allegations. It is thus provided in section 6 of the Defamation Act 1952 that:
a defence of fair comment shall not fail by reason only that the truth of every
allegation of fact is not proved if the expression of opinion is fair comment
having regard to such of the facts alleged or referred to in the words complained
of as are proved.”**®
231 For the demise of the old ‘rolled-up’ plea see now RSC Ord 82, r 3(2).
232 See Control Risks Ltd v New English Library Ltd [1989] 3 All ER 577, CA.
233 Cunningham-Howie v F W Dimbleby & Sons Ltd [1951] 1 KB 360, [1950] 2 All ER 882, CA.
234 [1952] AC 345, HL.
235 [1952] AC 345, at 362, HL, per Lord Tucker.
236 [1991] 4 All ER 817, HL.
237 [1991] 4 All ER 817, at 823, HL. Note, however, the spirited dissent of Lord Ackner at 826-
832.
238 The Faulks Report, para 172, takes the view that where C relies only on part of D’s statement,
D cannot support his defence of fair comment by justifying other facts in his statement. It is
possible, however, that the courts could pray in aid Kemsley v Foot, supra, to avoid that
undesirable conclusion. Where separate allegations have a common ‘sting’, O’Connor LJ has
suggested that it is permissible in fair comment, as it is in justification, to rely on other
uncomplained of parts of the relevant statement: Polly Peck (Holding) plc v Trelford [1986]
2 All ER 84, at 102, CA.
This provision has been held not to afford a defence where the facts on which the
comment is based materially add to the harm to reputation. In such cases, the defendant
must also prove those facts; the defence of fair comment will not assume their
existence.”°?
An imputation of corrupt or dishonourable motives will render the comment unfair,
unless such an imputation is an inference which a fair-minded person mi ght reasonably
draw from such facts and it also represents the honest opinion of the writer.2“°
(C) Comment must be honest and not actuated by malice

There is only a prima facie case of fair comment if the comment in question is shown
to be one which the defendant made honestly.**' Lord Esher summarised the matter
thus:
Every latitude must be given to opinion and to prejudice, and then an ordinary
set of men with ordinary judgment must say whether any fair man”? would have
made such a comment on the work... Mere exaggeration, or even gross
exaggeration, would not make the comment unfair. However wrong the opinion
expressed may be in point of truth, or however prejudiced the writer, it may still
be within the prescribed limit. The question which the jury must consider is this
—would any fair man, however prejudiced he may be, however exaggerated or
obstinate his views, have said that which this criticism has said of the work
which is criticised?***
What is clear from this passage — and, in particular, those references to what ‘ordinary
men’ and ‘any fair man’ might say — is that an objective test is to be applied in order to
determine whether the comment in question is fair.°** The court’s task is to assess
whether the comment in question fell within reasonable bounds.
When assessing whether the comment could honestly have been made by a fair-minded
man, evidence of the claimant’s standing and reputation among his fellows at the time
of publication is relevant but evidence of enhanced reputation by the time of the trial
is not. The vital issue is whether at the time of publication the comment could be
thought fair.7*°
239 So held in Truth (NZ) Ltd v Avery [1959] NZLR 274, on an identical New Zealand statute; and
approved obiter in Broadway Approvals Ltd v Odhams Press Ltd [1965] 2 All ER 523, CA.
240 Campbell v Spottiswoode (1863) 3 B & S 769 (where Cockburn CJ variously uses the expressions
‘well-founded’, ‘not without cause’, and ‘not without foundation’); Peter Walker & Sons Ltd v
Hodgson [1909] 1 KB 239, at 253, CA, per Buckley LJ; approved in Harris v Lubbock (1971)
Times, 21 October, CA.
241 Plymouth Mutual Co-operative and Industrial Society Lid v Traders’ Publishing Association
Ltd [1906] 1 KB 403, at 418, CA, per Fletcher Moulton LJ. ,
242 This dictum was approved by Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd
[1950] 1 All ER 449 (except for the substitution of ‘honest’ for ‘fair’). '
243 Merivale v Carson (1887) 20 QBD 275, at 280-1, CA. Note also that a comment may be unfair
because a medical fact was omitted from the defamatory statement: Dowling v Time Inc
(1954) Times, 25 June, CA.
244 For modern support of this objective test, see Branson v Bower (No 2) [2001] EMLR 809, per
Eady J.
245 Cornwell v Myskow [1987] 2 All ER 504, CA.
Surprisingly, perhaps, if the comment is objectively fair the'defendant does not have to
prove that he actually believes it to be fair.” It is for the claimant to establish that the
relevant criticism was not an opinion honestly held by the defendant; that, in other
words, the defendant was actuated by malice. If, for example, a newspaper publishes a
defamatory letter from a reader expressing opinions which could reasonably be justified,
the publishers and editor are not required to prove they concurred in the comment.”
It is a lack of belief in what was published that goes to the question of malice in
connection with this defence.” It is therefore not malicious in this context to make a
comment one believes to be true even if, one’s reason for making that comment is
associated with the pursuit of one’s own private ends.” Conversely, even if the
defendant survives this objective test of ‘fair comment’, his defence will still fail if he
can be shown by the claimant to have been actuated by malice in making the comment.?”
If the purpose of the maker of the fair comment is not to give the public the benefit of
his comment but to injure the claimant, then the defence does not lie.*' The defendant
‘is the person in whose motives the [claimant] in the libel action is concerned, and if he,
the person sued, is proved to have allowed his view to be distorted by malice, it is quite
immaterial that somebody else might without malice have written an equally damnatory
criticism’.** Yet ‘[i]t is of course, possible for a person to have a spite against another
and yet to bring a perfectly dispassionate judgment to bear upon his literary merits,
but, given the existence of malice, it must be for the jury to say whether it has warped
his judgment’.
If an employee is malicious so as to lose his defence of fair comment, then in accordance
with the ordinary principles of vicarious liability, his employer will also be deprived of
the defence. Vicarious liability in defamation may also extend to a principal-agent
relationship. Thus, the publisher of a periodical could not establish fair comment when
the writer of a book review was malicious: the writer was an agent.?** On the other
hand, the publisher’s defence of fair comment is not affected when the writer of a letter
in the correspondence column of his newspaper is malicious.” A joint publisher
probably does not lose his defence of fair comment because of the malice of another
joint publisher unless he is vicariously liable for that other.**°
246 Telnikoff v Matusevitch [1991] 1 QB 102, CA; affd on this point [1992] 2 AC 343, HL.
247 For a contrary judgment from Canada see Cherneskey v Armadale Publishers Ltd [1979] 1 SCR
1067.
248 Branson v Bower (No 2) [2001] EMLR 809; RSC Ord 82, r 6 prohibits interrogatories as to D’s
source of information or grounds of belief where qualified privilege or fair comment is pleaded.
249 Eg, Grobbelaar v News Group Newspapers Ltd [2001] EWCA Civ 33, [2001] 2 All ER 437
(reversed on other grounds [2002] UKHL 40, [2003] EMLR 1, HL). On the other hand, if the
statement is made as part of a conspiracy, an action may lie in that tort, so long as a damage
beyond mere damage to reputation can be shown.
250 The separateness of these two matters was emphasised in McQuire v Western Morning News Co
[1903] 2 KB 100, CA.
251 Merivale v Carson (1887) 20 QBD 275, at 281-2, CA, per Lord Esher MR.
252 Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627, at 638, CA, per Collins MR.
253 [1906] 2 KB 627, at 642.
254 Gros v Crook (1969) 113 Sol Jo 408; doubted by Faulks Reports, para 272(a).
255 Lyon and Lyon v Daily Telegraph Ltd [1943] KB 746, CA.
256 In Gros v Crook, supra, the court held that it would not have found D liable for the writer’s
malice had he not been vicariously liable. To the same effect, see Egger v Viscount Chelmsford
[1965] 1 QB 248, at 265, CA, per Lord Denning; but cf Davies LJ at 269.
(D) Burden of proof and the functions of judge and jury

The defendant has the onus of proving that the matter is of public concern, that the
facts on which the comment is based are true, and that the comment is such as an
honest man might make. The claimant must then prove the defendant was actuated by
malice. It is for the judge to decide whether the matter is one of public interest.2°” Lord
Porter said:
It is for the jury in a proper case to determine what is comment and what is fact;
but a prerequisite to their right is that the words are capable of being a statement
of a fact or facts. It is for the judge alone to decide whether they are so capable,
and whether his ruling is right or wrong is a matter of law for the decision of an
appellate tribunal.”**
(E) Similarity between fair comment and qualified privilege

The fair comment defence resembles that of qualified privilege in that the defendant, in
order to raise a prima facie defence, must establish certain facts. And both defences
fail if the defendant was ‘actuated by malice’ in publishing the statement.
Section 7. Apology
The offer or the making of an apology is not a defence at common law, although it may
be given in evidence in mitigation of damages. Under statute, however, it is a defence.
In an action for a libel contained in any public newspaper or other periodical
publication, it shall be competent to the defendant to plead that such libel was
inserted in such newspaper or other periodical publication without actual malice,
and without gross negligence, and that before the commencement of the action,
or at the earliest opportunity afterwards, he inserted in such newspaper or other
periodical publication a full apology for the said libel, or, if the newspaper or
periodical publication ... should be ordinarily published at intervals exceeding
one week, had offered to publish the said apology in any newspaper or periodical
publication to be selected by the [claimant] in such action.*”
Every such defence must be accompanied by a payment of money into court by way of
amends.” The issues of malice, gross negligence, and the adequacy of the apology
are to be decided separately by the jury.
This defence is very little used, and for three reasons. If the defendant fails in his plea,
the jury must assess the damages without regard to the payment into court, and the
claimant is entitled to a judgment for the sum awarded by the jury plus costs, even
though the sum awarded does not exceed the sum paid into court. Secondly, since an
257 South Hetton Coal Co v North-Eastern News Association [1894] 1 QB 133, at 141, CA, per
Lopes LJ.
258 Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, at 461, BML.
259 Libel Act 1843, s 2.
260 Libel Act 1845, s 2.
extended defence of offer of amends was introduced for utlintentional defamation,”

this ancient statutory defence has been rendered all but otiose. Finally, even where the
1996 Act does not apply — ie, where the defamatory statement was made negligently"
—it is still better for a defendant to pay into court under the general provisions of RSC
Ord 22, for, by virtue of that rule, if the award of the jury does not exceed the amount
paid into court, judgment will be given for the defendant together with his costs since
the date of the payment into court (unless the judge in the exercise of his discretion
orders otherwise).
Section 8. Remedies
(A) Damages
The main function of the tort of defamation is to compensate the claimant for his loss
of reputation: that is, the extent to which he is held in less esteem and respect and
suffers loss of goodwill and association.”
Damages for this loss of reputation are at large in respect both of libel and slander
actionable per se. The principles ordinarily applicable to damages at large,” apply
here equally. Accordingly, by. way of parasitic damages, compensation may be given
for insult or injury to feelings.*® Likewise, circumstances of aggravation and mitigation
are important. Damages may be aggravated by such matters as the mode, circumstances
and extent of publication and the conduct of the defendant from publication to verdict.?
By contrast, the defendant’s belief in the truth of his statements,’ the fairness of his
reports” and his being provoked by the claimant” may all mitigate the damages
award.
Where partial justification is proved, although the defendant may be unable to prove
sufficient facts to establish justification at common law or to bring himself within
section 5 of the Defamation Act 1952, he may nonetheless be able to rely on the facts
proved to reduce damages.” Indeed, in an exceptional case, he may do so to reduce
the damages almost to vanishing point.?”! Persistence in an unsubstantiated plea of
justification, however, will lead to a higher award of damages.
261 Defamation Act 1996, ss 2-4; see above.

262 Section 4 of the 1996 Act prohibits the use of the offer of amends defence in cases where D
‘knew or had reason to believe that the statement complained of referred to the aggrieved
party ... and was both false and defamatory’.
263 The best judicial survey is in the judgment of Devlin LJ in Dingle v Associated Newspapers Ltd
[1961] 2 QB 162, CA.
264 See ch 27.
265 Goslin v Corry (1844) 7 Man & G 342; Ley v Hamilton (1935) 153 LT 384, at 386, HL, per
Lord Atkin. Query: are damages recoverable for injuries to C’s feelings caused by publishing the
libel to him? See Hayward v Thompson [1982] QB 47, CA.
266 Praed v Graham (1889) 24 QBD 53, CA. For a thorough review of the punitive versus
compensatory function of aggravated damages see Law Commission Consultation Paper No
132, Aggravated, Exemplary and Restitutionary Damages (1993) para 2.7.
267 Bryce v Rusden (1886) 2 TLR 435; Forsdike v Stone (1868) LR 3 CP 607 (bona fide mistake
of identity).
268 Smith v Scott (1847) 2 Car & Kir 580; East v Chapman (1827) Mood & M 46.
269 Moore v Oastler (1836) 1 Mood & R 45In.
270 Atkinson v Fitzwalter [1987] 1 All ER 483, CA; Bunstein v Times Newspapers Ltd [2001] 1
WLR 579, CA.
271 Pamplin v Express Newspapers Ltd (No 2) [1988] 1 All ER 282, CA.
Exemplary damages may also be awarded where the defendant calculated that the
money to be made out of his wrongdoing would probably exceed the compensation
payable for the defamation, and where he defamed the claimant either knowing his
conduct to be illegal, or was reckless as to its illegality.2” Where several claimants are
libelled, the amount of exemplary damages may properly take account of the fact that
the defendant has libelled more than one person, but the total should not exceed the
total representing a proper sum by way of punishment for the defendant.2”
A spate of exceptionally high awards in libel claims led to concern about excessive
levels of damages. Comparisons were drawn between huge awards for damaged
reputations and the relatively low sums awarded to victims of personal injury.2” The
turning point came in Sutcliffe v Pressdram Ltd’’> when the Court of Appeal set aside
a £600,000 award. Their Lordships warned that in assessing any element of aggravated
damages, misconduct by the defendant is relevant only in so far as it increases the
injury to the claimant: the jury’s own indignation at that-conduct was irrelevant in
assessing a proper quantum of compensatory damages. In addition, section 8 of the
Courts and Legal Services Act 1990 empowers the Court of Appeal to substitute ‘such
sum as appears to be proper’ for the award of a jury where that award is quashed as
excessive.””° In relation to the meaning of ‘excessive’, the Court of Appeal has held the
test to be whether a reasonable jury would have thought the award proposed necessary
to compensate the claimant and re-establish his reputation.*”’ And finally, even beyond
section 8 of the 1990 Act, it was held in John v MGN Ltd’’* that damages might
permissibly be controlled in two further ways. First, by the court drawing the jury’s
attention to the levels of awards made in personal injuries cases (while recognising
that no direct analogy can be drawn because of the different nature of the ‘injury’
involved) and, secondly, by allowing the court and counsel to mention to the jury what
they consider to be an appropriate award and its appropriate bracket. This last
development helps particularly to curtail the huge awards made by juries in the past.
Occasionally the claimant’s loss of reputation will cause him a knock-on pecuniary
loss — eg, loss of business. That loss is recoverable in addition to general damages.
In the case of slanders not actionable per se, actual damage must be proved. It is
doubtful, therefore, whether any other damages than those for actual damage are
recoverable for such slanders.*” If this is correct, the rules in relation to aggravated
and exemplary damages, do not apply.
272 Cassell & Co Ltd v Broome [1972] AC 1027, HL.
273 Riches v News Group Newspapers Ltd [1986] QB 256, CA.
274 See Law Commission Report No 225, Personal Injury Compensation: How Much is Enough?
(1994).
275 [1991] 1 QB 153, CA.
276 In Rantzen v Mirror Group Newspapers (1986) Ltd [1993] 4 All ER 975, CA, the Court of
Appeal made use of this section and reduced a jury award of £250,000 to one of £1 10,000. Ch
Kiam v Mirror. Group Newspapers [2002] EWCA Civ 43, [2002] 2 All ER 219 (the jury
awarded damages of £105,000 despite the trial judge’s direction that an award up to £80,000
would be acceptable; yet the Court of Appeal refused to overrule the award under s 8 of the
1990 Act).
277 Rantzen v Mirror Group Newspapers Ltd [1993] 4 All ER 975, CA.
278 [1997] QB 586, CA.
279 There is an obiter dictum of Williams J in Brown v Smith (1853) 13 CB 596 to the effect that
no other damages are available. In Dixon v Smith (1860) 5 H & N 450, C, a doctor, claimed a
guinea, being the loss of a particular patient in consequence of the slander, together with
damages for general decline in business, and deterioration of goodwill. After denying, on the
grounds of remoteness, such general damages resulting from repetition of the slander, the court
Evidence of the bad reputation of the claimant will be a ground for mitigating the level
of damages since a reputation already largely lost is necessarily of less value. The
rules governing evidence of reputation are complex and, in practice, a trial often resolves
itself into a tactical battle over this issue. The governing principle is that general
evidence alone is permitted (and then, only after prior notice and particulars have been
given).”*° Evidence of specific facts to show the disposition of the claimant is not
currently admissible.”*! The court is concerned with the esteem in which the claimant
is in fact held — with his established reputation, in other words” — and not with his
actual character, or with the reputation which he deserves. Thus, where, ona privileged
occasion, a newspaper published extracts from a parliamentary report, and then
embellished this report with details not found in the report, it could not mitigate its
damage by asserting that the claimant’s reputation was already tarnished by the
privileged publication of the parliamentary report.”*? Where the defendant has persisted
in a plea of justification, it is the claimant’s reputation at the time of the trial which
counts in assessing damage to reputation.*** The ordinary rule of evidence applies: if
the claimant gives evidence, he may be cross-examined as to credit, although evidence
to rebut his answers is forbidden. The jury should be directed to disregard this
cross-examination when fixing damages.”*°
(B) Injunctions
Claimants in defamation actions often seek interlocutory injunctions as soon as they
have served the writ so as to prevent further publication. The courts, concerned not to
interfere unduly with press freedom, normally do not grant such interim injunctions
when the case is contested and the claimant is unable to show that a defence of
justification, fair comment or privilege is likely to fail at the eventual trial.**° But where
the Attorney-General sought an injunction to prevent further publication of an alleged
contempt, it was said that, in that instance, the interest in the protection of justice (as
perceived by the Attorney-General) prevailed over the interest in free speech.**’ The
courts readily grant injunctions to successful claimants if further publication is likely.7**
held the damages not to be limited to the guinea. Whether the further damages were at large,
or for some non-remote business loss besides loss of the patient, is not clear, but an observation
by Martin B (at 452), supports the latter interpretation.
280 RSC Ord 82, r 7.
281 Scott v Sampson (1882) 8 QBD 491, Div Ct; Hobbs v C T Tinling & Co Ltd [1929] 2 KB 1, CA.
The Neill Committee recommended abolition of this rule which it regarded as offering comfort
to ‘gold-diggers’.
282 Plato Films Ltd v Speidel [1961] AC 1090, HL (approving Scott v Sampson (1882) 8 QBD
491 and Hobbs v C T Tinling & Co Ltd [1929] 2 KB 1, CA).
283 Associated Newspapers Ltd v Dingle [1964] AC 371, HL.
284 Cornwell v Myskow [1987] 2 All ER 504, at 508, CA.
285 Hobbs v C T Tinling & Co Ltd [1929] 2 KB 1, CA.
286 Bonnard v Perryman [1891] 2 Ch 269, CA. For recent illustrations see Crest Homes Ltd v
Ascott [1980] FSR 396, CA; Harakas v Baltic Mercantile and Shipping Exchange Ltd [1982]
2 All ER 701, CA and Al-Fayed v Observer Ltd (1986) Times, 14 July.
287 A-G v News Group Newspapers Ltd [1986] 2 All ER 833, CA (rule in Bonnard v Perryman,
supra, does not apply to an action for conspiracy).
288 Monson v Tussauds Ltd [1894] 1 QB 671, CA.
According to the Court of Appeal in British Data Management plc v Boxer Commercial
Removals plc,” if publication of a libel is threatened but has not yet occurred, a quia
timet injunction may be awarded if the claimant is able to set out with reasonable
certainty the gist of the libel.”
289 [1996] 3 All ER 707, CA.

libel.
290 ne a C need not prove verbatim the wording of the threatened
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Part VII
Misuse of process
538 Misuse of process %
Contents “4
CHAPTERS PAGE
24 Misuse of process 539

CHAPTER 24
Misuse of process
The nature of the motive with which an act is done does not in general make that act
tortious.' As we shall see in this chapter there are certain limited exceptions to that
general rule. The essence of the wrongful conduct in these torts is the misuse of rights
conferred on individuals for the public good. It is the abuse of those rights for private
benefit or other improper ends that gives rise to tortious liability. The tort of malicious
prosecution is long established and in recent years seems to have revived from the
degree of torpor which affected its development in the middle of the last century. At
the same time, the evolution of the tort of misfeasance in public office continues to
expand the role tort law in controlling the conduct of public officials.
Section |. Malicious prosecution and related claims

The torts considered in this section are concerned with protecting the interest in
freedom from unjustifiable litigation. Their function comes very close to that of
defamation: namely, the protection of reputation. The difference, however, is that the
wrongful institution of proceedings will sometimes cause pecuniary loss or loss of
personal liberty without damaging reputation.
It is also necessary to distinguish this branch of the law of torts from false imprisonment.
In false imprisonment the initial act is wrongful in itself: for example, the wrongful use
of a form of judicial process when an arrest is made upon an invalid warrant. Malicious
prosecution, by contrast, presupposes that the proper procedural formalities have
been carried out. It is concerned, then, with the purposes for which they were used.
However, a point of connection between the two torts is that, in both instances, the
claimant has a prima facie right to trial by jury.’
The delicate balance of public interests involved in malicious prosecution must
not be underestimated. On the one hand, there is the freedom that everyone
should enjoy to engage the legal process in order to prosecute crime, while on
1 Bradford Corpn v Pickles (1895] AC 587, HL; Allen v Flood [1898] AC 1, HL.
2 Cropper v Chief Constable of South Yorkshire Police [1990] 2 All ER 1005, CA.
540 Misuse of process.
the other there is the need to discourage untruthful atcusations made about
innocent individuals.°
»
(A) Institution of proceedings

The rule is that the defendant must have been ‘actively instrumental’ in instigating the
proceedings.* In Martin v Watson,’ the House of Lords addressed just what that
requirement involved. Their Lordships confirmed the ancient rule that if X merely
gives information to a police officer® or a magistrate,’ upon which the police officer or
magistrate then independently decides to launch a prosecution, that does not render
X a prosecutor for the purposes of this tort. The decision to prosecute — ie the
responsibility for launching proceedings against the claimant — rests with the public
officials who determine that a prosecution should go ahead.* However, in Martin v
Watson the defendant, who had a history of ill-feeling towards the claimant, deliberately
set out to deceive police officers, making an entirely false allegation that the claimant
had exposed himself to her. The trial judge found that she had acted maliciously,
intending the police to act on her lies and prosecute the claimant. The Court of Appeal
held that the defendant was not responsible for the prosecution of the claimant.’ The
Law Lords unanimously reversed that judgment.'° The defendant was liable because
(1) the facts relating to the alleged offence were known only to her and, because of that
(2) the police had virtually no discretion in the matter such that it was proper to
consider the defendant as having procured the subsequent prosecution.
In the wake of Martin v Watson, it is clear that a defendant who complains to police or
magistrates will be regarded as the ‘prosecutor’ if:
(1) D falsely and maliciously gave information to the police, making it clear that he or
she is prepared to be a witness for the prosecution in circumstances where it can
be inferred that D desires and intends that C be prosecuted; and
(2) the facts of the alleged offence are such that they are exclusively within D’s
knowledge, so that it is practically impossible for police officers to make any
independent judgement whether or not to proceed with the prosecution."'
3 Noted in Martin v Watson [1994] 2 All ER 606, at 614 and 616, CA and Gregory v Portsmouth
City Council [2000] 1 AC 419, at 426, HL.
4 Danby v Beardsley (1880) 43 LT 603, at 604, per Lopes J. In Evans v London Hospital
Medical College [1981] 1 All ER 715, it was held that a hospital which provided pathology
reports for the police did not institute proceedings.
5 [1996] AC 74, HL.
6 Danby v Beardsley (1880) 43 LT 603. Nor will supplying information to police, on the basis
of which officers decide to make an arrest, engage liability for false imprisonment: Davidson
v Chief Constable of North Wales [1994] 2 All ER 597, CA.
ii Cohen v Morgan (1825) 6 Dow & Ry KB 8.
8 In direct contrast to circumstances where D initiates a private prosecution. However, note
there may be cases where a public prosecution is brought, but on the facts of the case, D has
effectively required that the prosecution go ahead formally accepting responsibility for the
initiation of the relevant proceedings: see, eg, Mohamed Amin v Jogendra Kumar Bannerjee
[1947] AC 322, PC; Malz v Rosen [1966] 2 All ER 10.
9 [1994] 2 All ER 606.
10 [1996] AC 74, HL.
11 Martin v Watson [1995] 3 All ER 559, at 568, HL, per Lord Keith. As to liability where D
continues proceedings after learning of facts which negate the basis of the prosecution, see
Tims v John Lewis & Co Ltd [1951] 2 KB 459, at 472, CA (reversed on another point: sub nom
John Lewis & Co Ltd v Tims [1952] AC 676, HL). A lawyer who does more than advise his
Misuse of process 54\|
It follows from this test that if the authorities act upon, and are influenced by, information
stemming from a variety of sources, it is more difficult to sustain the argument that the
malicious defendant was a ‘prosecutor’ in the sense that he procured the prosecution.”
But actions against the authorities founded on negligence or misfeasance in public
office need not necessarily be ruled out in such circumstances.'3
(B) Nature of proceedings

Where the claimant has been subjected to a criminal prosecution's as a consequence
of which he lost, or risked losing,'° his liberty and/or his reputation, a remedy in the tort
of malicious prosecution is clearly available. What is less clear is whether maliciously
instituting civil proceedings may incur liability. In 1698 Holt CJ delivered a judgment in
Savile v Roberts which required that the proceedings must be such as to inflict one of
the following:
1. ... [D]amage to a man’s fame, as if the matter whereof he is accused be

scandalous ... 2. ... such [damages] as are done to the person; as where a man is
put in danger to lose his life, or limb, or liberty ... 3. Damage to a man’s property,
as where he is forced to expend his money in necessary charges, to acquit
himself of the crime of which he is accused."°
Since then the courts have (at least obiter) resiled somewhat from this judgment!’
Logically, the institution of a civil action should only exceptionally result in liability
under this tort; for when the claimant loses that suit, the defendant’s reputation is
restored and he recovers his costs in defending the action.'* Malicious proceedings in
bankruptcy and winding up could however generate a remedy.'’ The very institution
of such proceedings may wreck the claimant’s business, destroying confidence in his
competence, integrity and his company’s goodwill.
An action will lie for maliciously procuring a warrant of arrest.” Maliciously procuring
a search warrant is an actionable wrong although seldom successfully prosecuted.”!
Generally, the damage to the claimant ensues from the execution of the warrant, the
client in good faith may be deemed responsible for the prosecution: Johnson v Emerson and
Sparrow (1871) LR 6 Exch 329.
12 Mahon v Rahn (No 2) [2000] 4 All ER 41, CA (D a banker, supplied information about C, but
there had also been an investigation by the Serious Fraud Office therefore D was not liable).
13. See L v Reading Borough Council [2001] 1 WLR 1575.
14 It has never been decided formally whether maliciously instituting civil proceedings can incur
liability; though the suggestions in the cases are against such a step: see Quartz Hill Consolidated
Gold Mining Co v Eyre (1883) 11 QBD 674, CA; Gregory v Portsmouth City Council [2000]
1 AC 419, HL.
15 Berry v British Transport Commission [1962] 1 QB 306, CA.
16 (1698) 1 Ld Raym 374.
17 See, eg, Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674, CA; Gregory v
Portsmouth City Council [2000] 1 AC 419, HL.
18 Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674, at 689-690, CA, per
Bowen LJ.
19 Chapman v Pickersgill (1762) 2 Wils 145; Gregory v Portsmouth City Council [2000] AC
419, HL.
20 Roy v Prior [1971] AC 470, HL.
21 See Gibbs v Rea [1998] 3 WLR 72, at 80, PC and Reynolds v Metropolitan Police Comr
[1985] QB 881, CA.
542 Misuse of process
entry into his premises, or the seizure of property. Excepttenally the issue of a warrant
may cover actionable harm.”
In Gregory v Portsmouth City Council® the claimant sued the defendant for maliciously
instituting disciplinary proceedings against him. He argued that the disciplinary process
was analogous to the criminal process. The charges against him hurt his reputation
and put him to expense in defending himself. The House of Lords stated that there
were no grounds to extend the scope of a tort of maliciously instituting proceedings
beyond criminal prosecutions and exceptional cases such as bankruptcy and winding
up.*4 Equally, in Gizzonio v Chief Constable of Derbyshire” the Court of Appeal also
rejected an attempt to construct a tort of malicious refusal of bail.
(C) Termination in favour of claimant

In order to sue, the proceedings upon which the claim is based must have terminated
in the claimant’s favour.*° Even though the claimant has been convicted of a lesser
offence,”’ or has had his conviction quashed on appeal,”* or has been acquitted on a
technicality (eg, a defect in the indictment),” this requirement is satisfied. If, however,
the conviction of the claimant stands, there is no cause of action in this tort.*°
As regards demonstrating a favourable termination of proceedings, the claimant seems

to satisfy the test if he proves that the defendant has discontinued the proceedings;*!
(but he cannot sue while the proceedings are still pending*’).
(D) Absence of reasonable and probable cause

Malicious prosecution is treated with some caution by the courts, fearful of discouraging
the enforcement of the law against suspected offenders and anxious to protect the
interest in bringing litigation to a close.** This judicial attitude is reflected in the
development of the requirement that there must be an absence of reasonable and
probable cause on the part of the prosecutor.
22 Gibbs v Rea [1998] AC 786, PC.

23 [2000] 1 AC 419, HL.
24 This is highly questionable, because even civil proceedings may damage one’s reputation, and
the immunity granted to those supplying evidence would defeat any action founded on
defamation, conspiracy or malicious falsehood. As such, C stands to suffer damage in respect
of which no cause of action currently lies.
26 This requirement is not imposed where, eg, an arrest or search warrant is procured. But it was
considered applicable in an action based on an attempt to construct a tort of malicious refusal
of bail: Gizzonio v Chief Constable of Derbyshire, supra.
27 Boaler v Holder (1887) 51 JP 277, DC.
28 Reynolds v Kennedy (1748) 1 Wils 232.
29 Wicks v Fentham (1791) 4 Term Rep 247.
30 Basébé v Matthews (1867) LR 2 CP 684. Nor can C sue if merely bound over to keep the peace:
Everett v Ribbands [1952] 2 QB 198, CA.
31 Watkins v Lee (1839) 5M & W 270.
32 Gilding v Eyre (1861) 10 CBNS 592, at 604, per Willes J (obiter).
33 See, eg, Martin v Watson [1994] 2 All ER 606, CA; revsd [1995] 3 All ER 559, HL.
The claimant has the difficult task of proving a negative — a burden which he does not
discharge merely by proving malice on the part of the defendant.>* Furthermore, the
court will not order the defendant to give particulars of the grounds on which he
prosecuted.*>
The House of Lords approved the following definition of reasonable and probable
cause:
an honest belief in the guilt of the accused based upon a full conviction, founded
upon reasonable grounds, of the existence of a state of circumstances, which,
assuming them to be true, would reasonably lead any ordinary prudent and
cautious man, placed in the position of the accuser, to the conclusion that the
person charged was probably guilty of the crime imputed.**
The House of Lords has held that, in order that the claimant may succeed on the issue
of reasonable and probable cause, he must prove one or other of the following.*”
1 Ddid not believe that C was probably guilty of the offence. Evidence should be
given by C of some fact or facts which, either inherently or coupled with other
matters proved in evidence, would permit the inference that D did not believe in
C’s guilt. The Privy Council held (Lords Goff and Hope trenchantly dissenting)
that where there is powerful circumstantial evidence, D’s silence in the face of
allegations made against him might afford some evidence of absence of reasonable
and probable cause.** If such evidence is given, the question must be left to the
jury, whether it has been proved to their satisfaction that D did not believe in C’s
guilt. But unless such evidence is given it is not proper to put a question to the
jury as to D’s belief.*’ This question to the jury must be formulated precisely and
should not refer to reasonable cause. It should be either: ‘Did D honestly believe
in C’s guilt?’ or ‘Did D honestly believe in the charges he was preferring?’. It must
not be: ‘Did he honestly believe that there were reasonable grounds for the
prosecution?’, for that would cause the jury to reflect upon the whole issue of
reasonable and probable cause.*° Merely to prove that D had before him information
which might or might not have led a reasonable man to form an opinion that C was
guilty is not evidence that D did not believe him to be guilty. If this ground is relied
on, the older cases suggest that C must give some evidence from which an
inference may be drawn as to what D’s belief actually was: it is not sufficient to
give evidence from which a guess may be made as to what it was. Nor is it sufficient
merely to supply evidence of reasons for non-belief. If such evidence is relied on
there must also be evidence that those reasons were in fact operative; but if
silence affords some inference of absence of belief in cause, the heavy burden of
proof on C may now be somewhat eased.*!
34 Johnstone v Sutton (1786) 1 Term Rep 510, Ex Ch.

35 Stapley v Annetts [1969] 3 All ER 1541, CA.
36 Hicks v Faulkner (1881) 8 QBD 167, at 171, per Hawkins J; affd (1882) 46 LT 130, CA
(approved in Herniman v Smith [1938] AC 305, HL).
37. Glinski v Mclver [1962] AC 726, HL; Reynolds v Metropolitan Police Comr, supra.
38 Gibbs v Rea [1998] AC 786, PC. :
39 Herniman v Smith [1938] AC 305, at 317, HL, per Lord Atkin; Ward v Chief Constable of West
Midlands Police (1997) Times, 13 December, CA
40 Tempest v Snowden [1952] 1 KB 130, CA.
41 See Gibbs v Rea [1998] AC 786, PC.
Or— oD
2 That a person of ordinary prudence and caution would not conclude, in the light
of the facts in which he honestly believed, that C was probably guilty. It is for the
judge and not the jury to determine whether a man of ordinary prudence would
have so concluded. It is for the judge alone to determine whether there is reasonable
and probable cause.” The trouble experienced in splitting the functions of judge
and jury in consequence of this rule accounts for most of the complexities of this
tort. There is the ever-present danger that the questions addressed to the jury will
be so general that the ultimate question left to the judge of reasonable cause is
instead improperly decided by the jury. In conducting the trial the judge has two
alternatives: he may direct the jury that, if they find certain facts, or arrive at
certain answers to specific questions which he puts to them, there is reasonable
and probable cause, leaving it to the jury to find a general verdict on this
hypothetical direction; his alternative — and this is the better course — is to direct
the jury to settle the facts in dispute, whereupon he decides, upon the whole case,
whether there is reasonable and probable cause.”
It is impossible to enumerate all the factors which may be relevant in deciding whether
there was reasonable and probable cause. Particularly important points would be that
the defendant acted in good faith on the advice of counsel* (although this would not
be conclusive’), or on the advice of the police,*° where the defendant, however honest
his act, had taken reasonable care to inform himself of the facts,*’ and regardless of
whether the defendant’s mistake was one of fact or law.*®
(E) Malice: improper purpose
In addition, the claimant must prove malice on the part of the defendant.” That is, in
this context, he must show ‘any motive other than that of simply instituting a prosecution
for the purpose of bringing a person to justice’.*°
The judge decides whether there is any evidence of malice and the jury decides whether
there is malice in fact.°! There was, for instance, evidence of malice where the defendant
landlord made the charge in order to evict the claimant tenant from his house,” and
where the defendant accused the claimant of exposing himself to her as part of a long-
42. Lister v Perryman (1870) LR 4, HL 521.

43 Abrath v North Eastern Rly Co (1883) 11 QBD 440, at 458, CA, per Bowden LJ; affd (1886)
11 App Cas 247, HL. See also Green v De Havilland (1968) 112 Sol Jo 766.
44 Ravenga v Mackintosh (1824) 2 B & C 693. Cf Bradshaw v Waterlow & Sons Ltd [{1915] 3 KB
S27 CAG
45 Abbott v Refuge Assurance Co Ltd [1962] 1 QB 432, CA.
46 Malz v Rosen (1966] 2 All ER 10.
47 Abrath v North Eastern Rly Co (1833) 11 QBD 440, at 451, CA, per Brett MR.
48 Philips v Naylor (1859) 4 H & N 565. In Riches v DPP [1973] 2 All ER 935, CA, it was held
that allegations of malice and want of reasonable cause in an action against the DPP stood no
chance of success when the committing magistrate, the trial judge and the jury all shared the
same view of the evidence held by the DPP.
49 Brown v Hawkes [1891] 2 QB 725, CA. In Wershof v Metropolitan Police Comr [1978] 3 All
ER 540, C proved absence of reasonable cause, but failed because he could not prove malice.
50 Stevens v Midland Counties Rly Co (1854) 10 Exch 352, per Alderson B.
51 Brown v Hawkes [1891] 2 QB 718.
52 Turner v Ambler (1847) 10 QB 252.
running vendetta between neighbours.*? The question is not whether the defendant is
angry or inspired by hatred, but whether the defendant has a purpose other than
bringing an offender to justice. There is malice, for instance, if he uses the prosecution
as a means of blackmail or any other form of coercion. Where the motives of the
defendant are mixed, the claimant will fail unless he establishes that the dominant
purpose is something other than the vindication of the law.*5 However, it is crucial to
note that a claimant who proves malice but not want of reasonable and probable cause
still fails.°° Should a tenant, therefore, establish that his landlord has instituted
proceedings against him for stealing the landlord’s fixtures, with the object of
determining his tenancy, the tenant’s action in this tort will still fail if he fails to prove
absence of reasonable cause.*’
(F) The Crown Prosecution Service
As will be obvious, the vast majority of precedents establishing this tort predate the
Prosecution of Offences Act 1985, albeit that many cases have been decided since its
enactment. Under the 1985 Act, the Crown Prosecution Service, headed by the Director
of Public Prosecutions, took over responsibility for prosecutions initiated by the police.
Several questions relating to the potential liability of the CPS and the police remain
unanswered as yet. Assume the claimant is originally charged and remanded in custody
at the instigation of the police. The CPS reviews the evidence and decides to discontinue
proceedings. He cannot sue for false imprisonment in respect of the period when he
was detained by judicial order. But he may sue under the present tort since
discontinuance of the proceedings amounts to a termination of proceedings in his
favour.°* If the CPS continue proceedings, thus endorsing the judgment of police
officers, proving absence of reasonable and probable cause will be a mammoth task.
The CPS and its officers enjoy no general immunity in tort, in particular against claims
for malicious prosecution or misfeasance in public office.*” However, the CPS owes no
general™ duty of care in relation to the conduct of prosecutions. The Court of Appeal
has held that such liability in negligence might have an ‘inhibiting effect on the
discharge by the CPS of its central function of prosecuting crime’.*' Furthermore, the
courts will be vigilant to ensure that any action in malicious prosecution brought
against the CPS is not in reality a disguised claim for negligence. Incompetence is not
evidence of malice.”
53 Martin v Watson [1995] 3 All ER 559, HL.

54 Brown v Hawkes [1891] 2 QB 718, at 722, per Cave J.
55 Not malice when Ds’ motive was to recoup themselves in a civil action, so that they first
prosecuted in order to conform to the rule that prosecution for felony must precede civil
actions relating thereto: Abbott v Refuge Assurance Co Ltd [1962] 1 QB 432, CA.
56 Silcott v Metropolitan Police Comr (1996) 8 Admin LR 633, CA; Gizzonio v Chief Constable
of Derbyshire (1998) Times, 29 April, CA.
57 Turner v Ambler, supra.
58 Watkins v Lee (1839) 5M & W 270.
59) Elguzouli-Daf v Metropolitan Police Comr (1995] QB 335, CA.
60 But where prosecutors undertook to provide information to magistrates, a duty of care was
owed to C: Welsh v Chief Constable of Merseyside Police [1993] 1 All ER 692.
61 Elguzouli-Dafv Metropolitan Police Comr [1995] QB 335, CA.
62. Thacker v Crown Prosecution Service (1997) Times, 29 December, CA.
546 Misuse of process.
(G) Defences “4
No questions on defences call for special comment other than that of whether it is a
defence to establish that the claimant was guilty of the offence for which he was
prosecuted. Obviously, in the rare case where a defendant had no reasonable cause
and was malicious, and the proceedings terminated in the claimant’s favour, and yet, at
the trial for malicious prosecution the defendant is able to establish the guilt of the
claimant, the claimant would recover at best a very small sum of damages. There is,
indeed, some authority for the view that in such a case the action fails altogether.®
Section 2. Abuse of process

For the purposes of this tort, the leading case is Grainger v Hill.
D was liable when he had C arrested, ostensibly for non-payment of a debt, but
in fact in order illegally to compel him to surrender the register of a vessel,
without which C could not put to sea. °
The case established that in this tort the claimant need not prove want of reasonable
and probable cause; nor need the proceedings have terminated in his favour.° The
claimant must show simply that the predominant purpose of the other party in using
the legal process has been other than that for which it was designed.” Thus, a defendant
who issued by mistake a plaint note for a debt which had already been paid was held
not liable.°’ In contrast with malicious prosecution, damage to fame, person or property
need not be proved. Any special damage suffices.
On the other hand, in Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc® the
Court of Appeal, somewhat grudgingly recognised the existence of a tort of abuse of
process in Grainger v Hill. And it doubted the existence of a more general tort of
maliciously instituting civil proceedings.
Section 3. Witness immunity

It is a fundamental principle of the common law that no-one can be civilly liable for
evidence given in court;” thus no action lies in defamation for words spoken as a
63 Heslop v Chapman (1853) 23 LJQB 49, at 52, per Jervis CJ and Pollock CB. Cf Shrosbery v
Osmaston (1877) 37 LT 792, at 794, per Lindley J. Cf Williams v Banks (1859) 1 F & F 557,
at 559, per Wightman J.
64 (1838) 4 Bing NC 212; Gibbs v Pike and Wells (1842) 9 M & W 351 (maliciously registering
a court order); Speed Seal Products Ltd v Paddington [1986] 1 All ER 91, CA. See also Wells,
‘The Abuse of Process’ (1985) 102 LQR 9.
65 Speed Seal Products Ltd v Paddington, supra.
66 Metall und RohstoffAG v Donaldson Lufkin & Jenrette Inc [1989] 3 All ER 14, at 50, CA;
Clissold v Cratchley [1910] 2 KB 244, CA.
67 Corbett v Burge, Warren and Ridgley Ltd (1932) 48 TLR 626. It was also said in this case that
loss of business profits is not a recoverable head of damage. But why?
68 Eg, if a suit in deceit was instituted for the purpose of damaging C’s credit. In Smith v East Elloe
RDC [1956] AC 736, HL, their Lordships held there to be jurisdiction to hear a claim that a
clerk to a council knowingly and in bad faith wrongfully procured a compulsory purchase order
to be made and confirmed by a minister, even though a statute precluded the courts from
challenging the validity of the order itself on the grounds of bad faith.
69 [1989] 3 All ER 14, at 51.
70 Roy v Prior [1971] AC 470, HL.
witness in court,”' nor will conspiracy lie against policemen who conspire to defame
the claimant at a criminal trial.”* A claimant who is imprisoned in consequence of the
defendant giving false evidence on oath at the claimant’s trial has no cause of action,”
for perjury is a crime, not a tort. Furthermore, witness immunity extends beyond the
actual presentation of evidence to cover also the preparation of evidence that will (or
would) be given in court.
On the other hand, a distinction must be drawn between evidence that a witness gives
(or has stated he would give) in court, and evidence that had been fabricated (such as
a fabricated interview). The House of Lords has made clear that immunity does not
extend to the latter.” It has also been held that in proceedings for malicious arrest, the
claimant can rely on statements made by the defendant in court when seeking the
warrant: the wrong is the arrest with malice, of which the statement in court provides
evidential support.”
Section 4. Misfeasance in public office

A successful application for judicial review of administrative action which results in an
administrative process being quashed as invalid or unlawful does not,” of itself, create
any liability in tort for loss or damage suffered by the applicant. The tort of misfeasance
in public office may, however, offer a remedy for misuse of administrative process.”
Where an individual suffers loss or damage consequent upon improper administrative
action which the relevant officer knows to be unlawful, that loss or damage is recoverable
in tort.”* The underlying rationale is that public power is conferred to be exercised only
for the public good, and not for improper purposes.”
In Three Rivers District Council v Bank of England (No 3),*° the House of Lords laid
down the test for liability in the tort of misfeasance in public office. According to their
Lordships, liability arises where the wrongful actions of a public officer are carried out
either in the knowledge of, or with reckless indifference to, the probability of injury
being caused to the claimant as an individual, or as a member of an identifiable class.
Their Lordships further explained that the tort could be committed in two ways: either
(1) by the exercise of public power for an improper or ulterior motive or (2) by the ultra
vires conduct of a public officer in the knowledge that his or her actions would probably
result in injury to the claimant. In relation to second of these, it was made clear that
(lee Chie2s:
72. Marrinan v Vibart [1963] 1 QB 528, CA.
73 Hargreaves v Bretherton [1959] 1 QB 45, approved obiter in Roy v Prior, supra, at 477, per
Lord Morris of Borth-y-Gest. In Evans v London Hospital Medical College [1981] 1 All ER
715, it was held that this immunity extends to statements made before the issue of a writ or the
institution of a prosecution, distinguishing Saif Ali v Sydney Mitchell & Co [1980] AC 198,
HL. But note Palmer v Durnford Ford (a firm) [1992] QB 483 (restricting immunities of
expert witnesses). .
74 Darker v Chief Constable of West Midlands Police [2001] 1 AC 435, HL. See also L (A Child)
v Reading Borough Council [2001] EWCA Civ 346, [2001] 1 WLR 1575.
75 Roy v Prior, supra.
76 Dunlop v Woollahra Municipal Council [1982] AC 158, PC.
77. Jones v Swansea City Council [1990] 3 All ER 737, HL.
78 David v Abdul Cader [1963] 3 All ER 579, PC; Davis v Bromley Corpn [1908] 1 KB 170, CA.
79 Three Rivers District Council v Bank of England (No 3) [2000] 2 WLR 1220, HL; Jones v
Swansea City Council [1990] 1 WLR 54, CA.
80 Three Rivers District Council v Bank of England (No 3) [2000] 2 WLR 1220, HL.
reckless indifference was a sufficient way of acting in a manner that would probably
result in damage to the claimant. In so saying, their Lordships embraced the possibility
of the tort being caused by an omission, by the turning of a blind eye. But they
emphasised that a conscious decision not to act would be required to meet the
recklessness requirement.*!
By definition, the tort can only be committed by those in public office. But this, of
course, begs the question of how widely the term ‘public office’ is to be interpreted.
Roncarelli v Duplessis* provides a good example of the tort being applied to a politician.
The Three Rivers case clearly shows its applicability to an institution such as the Bank
of England. (The case turned upon allegations that the Bank of England should never
have granted a banking licence to the Bank of Credit and Commerce International or
that it should have revoked the licence that was granted when it later became obvious
that such action was necessary.) An action for misfeasance in public office may also lie
against a local authority, or a government department.**
It must be noted that unauthorised, unlawful conduct by an employee does not
necessarily take him outside the scope of his employment. In order to do so, and thus
to relieve the employer of his vicarious liability for the employee’s tortious conduct,
the unlawful conduct must be so far beyond the authorised duties of the employee as
to amount to a ‘frolic of his own’. Thus, it was necessary in one case to have a full trial
to identify the precise nature of the actions of prison officers towards a prisoner.®
What was crucial was whether the action complained of fell within the scope of the
officers’ employment.
Fabrication of evidence by police officers and malicious refusal of bail are further
examples of possible misfeasance in office. However, the usual rules on witness
immunity apply to this tort.*° As such, misfeasance in public office cannot be used to
circumvent the requirements in malicious prosecution of proof of absence of reasonable
and probable cause.
81 Three Rivers District Council v Bank of England (No 3) {2000] 2 WLR 1220, at 1267 and
1269, HL, per Lords Hutton and Hobhouse.
82 (1959) 16 DLR (2d) 689: C lost his liquor licence after D, the then Prime Minister of Quebec,
ordered the Quebec Licensing Commission to revoke the licence. D acted against C as part of
his campaign against Jehovah’s Witnesses. C recovered damages for this malicious abuse of the
licensing process.
83 Jones v Swansea City Council [1990] 3 All ER 737, HL (where the action lies against a local
council, C must show that the majority of those supporting the relevant resolution did so with
intent to harm him).
84 Racz v Home Office [1994] 2 WLR 23, HL.
85 Racz v Home Office [1994] 2 WLR 23, HL.
86 Silcott v Metropolitan Police Comr (1996) 8 Admin LR 633, CA; Gizzonio v Chief Constable
of Derbyshire (1998) Times, 29 April, CA.
Part VIII
Remedies and parties

550 Remedies and parties
Contents “
CHAPTERS PAGE
25 Vicarious liability 551

26 Remedies 577
27 Compensation for personal injuries and associated losses 593
28 Extinction of remedies 621
29 Capacity and parties 637
CHAPTER 25
Vicarious liability
Section |. Importance of the distinction between employees and

independent contractors
For present purposes, the law divides employed persons into two groups:
1 Those employed to perform services in connection with the affairs of the employer
and over whom the employer has control in the performance of those services. In
tort, these persons have traditionally been termed ‘servants’. That word, in modern
parlance, tends to be taken to refer to domestic help alone. Hence, the term
‘employee’ will generally be used in this chapter.
2 Those who do work for another, but who are not controlled by that other in the
performance of that work. Normally, such work will be carried out in pursuance of
a contract for services, and the persons doing it are therefore called ‘independent
contractors’.
The distinction is important for the following reason. If an employee commits a tort in
the course of his employment, then the employer is liable regardless of whether he
himself has committed a tort: ‘every act which is done by a servant in the course of his
duty is regarded as done by his master’s orders, and consequently is the same as if it
were the master’s own act.’' This is the clearest case of strict tortious liability, and it
may be regarded as a judicial decision of policy that the employer can be made to bear
the financial responsibility for those torts committed by his employees in the furtherance
of his enterprise.” This is both because he is better able to stand the loss (being more
able to insure against it and being in a position often to pass on the cost to the public
in the form of increased prices) and because he will thereby be encouraged to maintain
higher standards of conduct in the running of his business. There is also the argument
that because the employer stands to make a profit from his employee working for him,
1 Bartonshill Coal*Co v McGuire (1858) 3 Macq 300, at 306, HL, per Lord Chelmsford LC.
2 The employee, too, may be sued; but it is usually the employer that has the deeper pockets and
thus makes the more attractive D. But see Merrett v Babb [2001] 3 WLR 1, CA (action brought
against an individual negligent surveyor after the firm for which he had worked had ceased to
trade); Shapland v Palmer [1999] 1 WLR 2068, CA (employee and employer sued as co-
defendants). Where just the employer is sued, he may later seek an indemnity from the
employee under the Civil Liability (Contribution) Act 1978: see ch 29.
it is right that he should also bear the risk of potential liability arising from the work
done.
If the act complained,of is not that of an employee, then the employer is not, without
more, liable. He can be sued only if he himself has, in the circumstances, committed a
tort (or if he was in breach of a non-delegable duty).’ An employer may be vicariously
liable for the torts of his employees, but he is not liable for the torts of those who are
his independent contractors. For this reason, it is vital to distinguish the two classes
of person.
Section 2. Distinguishing an employee from an independent

contractor‘
(A) Control
The formula most often used by the courts in the past to mark the distinction between
an employee and an independent contractor is that of ‘control’.- According to this
test, a person is an employee where the employer ‘retains the control of the actual
performance’ of the work.®° This was a meaningful test in bygone years when this
country was predominantly an agricultural and industrial nation in which work was
largely done by labourers or ctaftsmen under the directions of employers who had the
same or even greater technical skill than their workmen. It would ordinarily be enough
to say that the employer could tell the worker not merely what task was to be performed,
but also how it should be performed. If the employer could do both these things, the
man was a servant. However, nowadays, a new class of managers, as distinct from
owners, has emerged in industry. And when so many employees work at home, or
possess some technical skill which is often not possessed by any of their employers,
the relationship has become more subtle and less susceptible to exact definition. In
consequence, the control test does not by itself prove adequate on every occasion.’
In addition, for policy reasons the courts may hold someone to be an employee although
aspects of his work suggest more that he is an independent contractor. In Lane v Shire
Roofing Co (Oxford) Ltd,® for example, the Court of Appeal drew attention to the
policy reasons that exist within the field of health and safety at work to decide a
borderline case in favour of classifying the worker as an employee.
Notwithstanding its limitations, the control test does remain helpful in many instances,
and in deciding whether enough ‘control’ is exercised over another to make him an
employee one must take into account several factors, no single one of which is
WwW Bull v Devon Area Health Authority [1993] 4 Med LR 117, CA.
4 See Kidner, ‘Vicarious Liability: For Whom Should the Employers be Liable?’ [1995] Legal
Studies 47.
3) ‘The final test ... lies in the nature and degree of detailed control over the person alleged to be
a servant’: Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd [1924]
1 KB 762, at 767, per McCardie J.
6 Honeywill and Stein Ltd v Larkin Bros (London's Commercial Photographers) Ltd [1934] 1
KB 191, at 196, CA, per Slesser LJ.
7 Short v J & W Henderson Ltd (1946) 62 TLR 427, at 429, HL, per Lord Thankerton. The
inadequacy of this test was expressly stated in Cassidy v Ministry of Health [1951] 2 KB 343,
at 352, CA, per Somerville LJ.
8 [1995] IRLR 493, CA.
conclusive. The criteria include the extent to which the employer can control the
details of the work, whether the method of payment is on a time ora job basis,’ whose
tools, equipment and premises are to be used," the skill called for in the work, the
freedom of selection of labour by the employer,!! and the power to dismiss Ail these
matters, and possibly more besides, but especially and increasingly the one mentioned
in the quotation below from Denning LJ, must be considered in order to decide whether
a power to control can be inferred. His Lordship said:
It is often easy to recognise a contract of service when you see it, but difficult to
say wherein the difference [between a contract of service and a contract for
services] lies.'* A ship’s master, a chauffeur, and a reporter on the staff of a
newspaper are all employed under a contract of service; but a ship’s pilot, a
taxi-man, and a newspaper contributor are employed under a contract for services.
One feature which seems to run through the instances is that, under a contract
of service, a man is employed as part of the business, and his work is done as an
integral part of the business; whereas, under a contract for services, his work,
although done for the business, is not integrated into it but is only accessory to
ig?
(B) Personal investment in the enterprise

Another approach to the question is to ask, ‘Is the worker in business on his own
account?’.'* In answering this question the courts will look at who owns the tools
used, who paid for the materials and whether the worker stands to make anything from
a profit to a loss on completion of the enterprise. Thus, where a building worker is
simply paid, and neither hires his own help nor provides his own equipment and has
no say in the control of the site, his position will be that of an employee rather than an
independent contractor.’
There is, however, another sense in which the phrase ‘personal investment in the
enterprise’ may be used and may also be pertinent to the question in hand. If the
person engaged need not personally invest his own endeavour into the enterprise, but
9 Employees are generally paid by the hour whereas independent contractors are normally paid
for the complete job.
10 Quarman v Burnett (1840) 6 M & W 499.
11 At common law the owner of a ship was not liable for the negligence of a compulsory pilot:
The Halley (1868) LR 2 PC 193 (see now Pilotage Act 1987; Oceangas (Gibraltar) Ltd v Port
of London Authority [1993] 2 Lloyd’s Rep 292). The statutory obligation that watermen on
Thames barges shall be licensed does not prevent a waterman from being a servant since there
are many from which to choose, and the barge owner can dismiss: Martin v Temperley (1843)
4 QB 298.
12 Contract of service/contract for services are here merely synonymous with employee/
independent contractor.
13. Stevenson, Jordan & Harrison Ltd v MacDonald and Evans [1952] 1 TLR 101, at 111, CA
(emphasis added). Cf somewhat similar observations by Lord Wright in Montreal v Montreal
Locomotive Works Ltd [1947] 1 DLR 161, at 169, PC; Bank Voor Handel en Scheepvaart NV
v Slatford [1953] 1 QB 248, at 295, CA, per Denning LJ: ‘It depends on whether the person
is part and parcel of the organisation’; reversed on other grounds [1954] AC 584, HL (sub nom
Bank Voor Handel en Scheepvaart v Administrator of Hungarian Property).
14 Lee Tin Sang v Chung Chi-Keung [1990] 2 AC 374, HL. See also Lane v Shire Roofing Co
(Oxford) Ltd [1995] IRLR 493, CA.
15 Montreal v Montreal Locomotive Works [1947] 1 DLR 161, PC.
has the option of delegating the task to some other person, this is likely to be indicative
of a contract for services rather than a contract of service.'®
&
(C) Intention of the parties

The intention of the parties, recorded in the terms of their agreement, can also provide
a useful guide to whether there is a contract of service or a contract for services.'’ On
the other hand, their express intentions will not necessarily be conclusive of the matter.
Thus, in one case where the parties agreed that the worker should be treated as self
employed for reasons of tax and national insurance payments, the court nonetheless
held there to be a contract of employment.'® The intention of the parties was simply
one factor to which the court had regard.
Interestingly, it has been said that the question of the interpretation of documents
governing the nature of the parties’ relationship is one of law;' yet the appellate
courts will be loath to reverse the findings of lower courts or tribunals unless there has
been a clear misdirection or a conclusion reached that is wholly unsupportable.”°
(D) Some particular cases examined

In the majority of cases, there is no difficulty in determining the status of the worker.”'
Factory hands, office clerical staff, agricultural workers and the like are clearly employees;
whereas garage proprietors, house builders, and dry-cleaners are the independent
contractors of the members of the public who employ them. Similarly, a chauffeur is an
employee, but a taxi driver is not. There will, however, arise borderline or hybrid cases
from time to time. Sales representatives, for example, might conceivably fall into either
category, depending on the circumstances.”
Those who work ad hoc on temporary contracts acquired through an employment
agency, may, on occasion, be treated as employees of the agency for the purposes of
each separate engagement.” Whether the general arrangement — ie, the worker being
registered on the agency’s books — could amount to a contract of employment would
appear to turn on the question whether there is a mutuality of obligation between the
16 MacFarlane v Glasgow City Council [2001] IRLR 7, EAT.

17 Johnson v Coventry Churchill International Ltd [1992] 3 All ER 14.
18 Young & Woods Ltd v West [1980] IRLR 201, CA. See also Ferguson v Dawson Partners
(Contractors) Ltd [1976] 1 WLR 1213, CA.
19 Davies v Presbyterian Church of Wales [1986] 1 WLR 323, HL.
20 See, eg, Lee Ting Sang v Cheung Chi-Keung [1990] 2 AC 374, PC; Kapfunde v Abbey National
ple [1999] ICR 1, CA.
21 For the special statutory provisions defining when a trade union is vicariously liable for various
torts involving industrial action, see the Trade Union and Labour Relations (Consolidation)
Act 1992, s 15.
22 Or the holder of a university research fellowship who is required also to act as a part-time
demonstrator.
23 McMeechan v Secretary of State for Employment [1997] IRLR 353, CA. Cf Montgomery v
Johnson Underwood Ltd [2001] EWCA Civ 318, [2001] IRLR 269 (worker not an employee
because, unlike in McMeechan, there was no review or grievance between the agency and the
worker that could be taken to be indicative of the formality of their relationship).
worker and agency — ie, a duty to provide work on the part of the agency and a duty
to
accept it on the part of the worker.”4
(1) Hospital staff

The courts were once much concerned to decide which members of hospital staff are
employees. This issue exposed the problems of the ‘control’ test. How could lay
members of a hospital board be said to ‘control’ a Nobel prize-winning neurosurgeon?
After much uncertainty, it is now settled that nurses, radiographers,” house surgeons,”°
and assistant medical officers” in the full-time service of hospitals are employees.
Part-time anaesthetists have also been held to be employees on the basis that they are
members of the organisation of the hospital.** Surgeons and consultants working
under the National Health Service, even though only engaged part-time, will for the
same reason be employees. They are all operating as part and parcel of the NHS
enterprise. It is only when the surgeon or consultant treats the patient under a private
contract between himself and the patient that the hospital is not answerable for his
torts.
(2) Borrowed employees

It is often difficult to decide whose employee a person is when he is lent by his
employer to another. The authoritative decision here is Mersey Docks and Harbour
Board v Coggins and Griffiths (Liverpool) Ltda”
The board owned many mobile cranes, each handled by skilled workmen engaged
and paid by it. In the ordinary course of its business, it hired out a crane to the
respondents, a stevedoring company, for use in unloading a ship. The power to
dismiss remained with the board, but the contract provided that the driver was to
be the servant of the hirers. While loading the cargo, the driver was under the
immediate control of the hirers in the sense that the hirers could tell him which
boxes to load and where to place them, but they could not tell him how to
manipulate the controls of the crane. Through the negligent handling of the
crane by the driver while loading, a third party was injured. The House of Lords
was called upon to decide from which of the two — the board or the hirers — the
appellant was to recover his damages. In other words, the question posed was,
‘whose servant was he at the time of the accident?’.
24 Clark v Oxfordshire Health Authority [1998] IRLR 125, CA. See also Carmichael v National
Power plc [1998] IRLR 301, CA and Stevedoring and Haulage Services Ltd v Fuller [2001]
EWCA Civ 651, [2001] IRLR 627.
25 Gold v Essex County Council [1942] 2 KB 293, CA.
26 Collins v Hertfordshire County Council [1947] KB 598; Cassidy v Ministry of Health [1951] 2
KB 343, CA.
27 Cassidy v Ministry of Health, [1951] 2 KB 343, CA.
28 Roe v Minister of Health [1954] 2 QB 66, CA.
29 [1947] AC 1, HL; Karuppan Bhoomidas v Port of Singapore Authority [1978] 1 All ER 956,
PC (even though a byelaw provided that those loading and discharging vessels shall be under the
superintendence of the ship’s officers, stevedores were held to remain employees of the port
authority, which was vicariously liable for their torts).
It was held that the board was solely liable. There is a very strong presumption indeed?
that someone remains the employee of the general or permanent employer although
another employer borrows his services. Where cranes or vehicles were let out on hire
with a driver, the owner was responsible for his employee’s negligence unless he had
divested himself of all possession and control.*' But if the system of work that is used
is unsafe, then according to Morris v Breaveglen Ltd** the general employer is liable;
for he has a non-delegable duty to this effect.
(3) Police officers

Under the Police Act 1996, s 88 the chief officer of police for any police area is vicariously
liable for those torts committed by constables exercising or purporting to exercise their
functions. Thus, vicarious liability may be imposed even if the tort in question is
committed by an off-duty officer who makes it clear that he is by profession a police
officer.*
Section 3. Is there a separate category of agents?

We have seen that a person who does work for another may be either an employee or
an independent contractor. But such a person may also, at the same time, be an agent.
This is because the category of ‘agent’ partially overlaps with the categories of both
‘servant’ and ‘independent contractor’. However, although this category of agents
has great importance in other branches of the law, such as contract, it has only a little
relevance (detailed below) in the present context.
An agent may or may not be subject to that degree of control which will make him an
employee: the law of torts is here concerned only to know in any particular case
whether or not he is an employee. A person employed on a weekly wage to sell vacuum
cleaners and under orders as to his times and place of employment will be at once an
agent (in contracting to sell cleaners) and an employee. On the other hand, no one
would suggest that, if the defendant employed a chartered accountant to settle his
liability for income tax, the defendant would be liable if the accountant negligently
knocked down a pedestrian while driving to the tax office in order to discuss the matter.
The accountant would be an agent and an independent contractor of the defendant,
but not his employee.**
30 For an example where the company ‘borrowing’ employees did become vicariously liable for
their acts, see Sime v Sutcliffe Catering Scotland Ltd [1990] IRLR 228 (Court of Session).
31 And the original employer will of course be primarily liable if he hires out an incompetent
driver: McConkey v Amec plc (1990) 27 Con LR 88, CA.
32 [1993] PIQR P294, CA.
33 Weir v Bettison [2003] EWCA Civ 111, [2003] All ER (D) 273 (Jan).
34 The obiter dicta of the House of Lords in Heatons Transport (St Helens) Ltd v Transport and
General Workers’ Union [1973] AC 15, at 99, HL, that the test to be applied in determining the
responsibility of a master or principal for the act of a servant or an agent ‘is the same: was the
servant or agent acting on behalf, and within the scope, of the authority conferred by the
master or principal?’ must not (it is submitted) be taken to apply in tort so as to refute the
propositions advanced in this section. See also Watkins v Birmingham City Council (1975) 126
NLJ 442, CA (a schoolboy distributing milk to classrooms in his school was not a servant of the
local education authority, although he might well have been an agent).
The tort of deceit provides an important exception to the rule that the law of torts is not
concerned with the separate category of agents. Where a principal delegates authority
to another person to negotiate a contract on his behalf, he may be liable for the fraud
of his ‘agent’. So, for example, if an estate agent, in the course of negotiating the sale
of a house of his principal, knowingly makes untrue statements about that house to a
third party who acts on them to his detriment the principal wili be liable in deceit. And
yet the estate agent is not the principal’s employee. This liability exists only where the
principal can be said to have held out the estate agent as someone authorised to make
such representations in the course of making the contract.*° This provides a valuable
clue to the key issue here — such misrepresentations, though capable of giving rise to
tortious liability, are so intimately associated with, and inseparable from, the contractual
relation to which end the agency is directed that they assume the quality of contract,
where agency, of course, is important per se.*°
The concept of agency is applicable also to merely negligent statements made by an
estate agent.*” But it is an essential prerequisite of liability of the principal that the
agent acted within the scope of the authority which the principal’s acts led the claimant
to believe the agent enjoyed. Where the agent is at the same time an employee of the
principal, the agent cannot act beyond the scope of his authority and still remain
within the general course of his employment.**
The other area which demands special attention is the liability of the owner of a vehicle
when it is driven by someone else. Of course, the owner is liable if his employee drives
it negligently in the course of his employment. The courts have not stopped there,
however, and the House of Lords in Morgans v Launchbury* affirmed that if the
vehicle is driven by the owner’s agent, and the user is driving as the owner’s agent for
the owner’s purposes, the owner is again liable. The facts in Morgans v Launchbury
were as follows.
D owned the car. With her permission, her husband took it on a pub-crawl. When
he was too drunk to drive, he asked his drinking companion to drive. D was held
not liable for the damage caused by the companion’s negligent driving.
The House of Lords held that the driver was not the agent of the owner, and that a car
owner is liable only if the driver is his employee acting in the course of his employment
35 Cf Uxbridge Permanent Benefit Building Society v Pickard [1939] 2 KB 248, at 254-5, CA,
per Lord Greene MR.
36 Whether this exception will be restricted to deceit because of the need for a contractual
element, or whether the parallel concept of ‘holding out’ will permit its extension to any tort
where D has held out a person to represent him in performing a transaction with others, is
doubtful. The High Court of Australia has held an insurance company liable when its agent (not
a servant) defamed a rival company while soliciting business: Colonial Mutual Life Assurance
Society Ltd v Producers and Citizens Assurance Co of Australia Ltd (1931) 46 CLR 41. Dicta
in Houldsworth v City of Glasgow Bank (1880) 5 App Cas 317, at 326, HL, per Lord Selbourne
and Lloyd v Grace, Smith & Co [1912] AC 716, at 734-5, HL, per Lord Macnaghten lean
towards the Australian position. But was Blain J right in Gros v Crook (1969) 113 Sol Jo 408
in holding, in a libel action, that a book reviewer in The Times Literary Supplement was an
agent, and not an independent contractor?
37 Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1982] AC 462, PC. In that case,
therefore, the principal was held not liable for the agent’s negligent statement because the
agent was not authorised to make the valuations, the subject of the negligent statements.
38 Armagas Ltd v Mundogas SA, The Ocean Frost [1986] AC 717, HL.
39 [1973] AC 127, HL; approving Hewitt v Bonvin [1940] 1 KB 188, CA.
\
or is his authorised agent driving for, and on behalf of, the owner. Lord Wilberforce
added that ‘agency’ in such a context was merely a concept the meaning and purpose
of which is that the owner ought to pay.*° The House rejected the argument that it was
so desirable to find someone liable who was covered by compulsory third-party
insurance, that it should hold the owner liable for anyone who drove with his permission:
only Parliament, not the courts, could make that extension of liability.*! Morgans v
Launchbury does not, therefore, upset the general rule in vicarious liability that a
principal is not liable merely because his agent commits a tort while acting as agent.”
Section 4. Liability in respect of an independent contractor

The employer is not normally liable merely because an independent contractor commits
a tort in the course of his employment. He is liable only if he himself is deemed to have
committed a tort. This may happen in one of three ways.
(A) Authorising him to commit a tort

In many circumstances the law will attribute to a man the conduct of another being,
whether human or animal, if he has instigated that conduct. If X sets his dog upon Y it
is as much a battery as if X had struck Y with his fist. He who instigates or procures
another to commit a tort is deemed to have committed the tort himself.* It matters not
whether that other was an employee, an independent contractor or an agent (human or
otherwise). In Ellis v Sheffield Gas Consumers Co the facts were as follows.4
Having no legal power to do so, Ds’ gas undertaking employed an independent

contractor to dig up a part of a street. C fell over a heap of earth and stones made
by the contractor in the course of digging, and Ds were held liable on the ground
that they had authorised this nuisance.
It is not always easy, however, to decide whether the defendant can be said to have
authorised the tortious act. Where a lessee was empowered to erect certain structures,
but the lease reserved to the lessor the night to approve the plans for such structures
(which right the lessor is not reported to have exercised), this was not enough to make
the lessor answerable for the lessee’s negligence in the course of building the
structure.* On the other hand, although a taxi driver is certainly not an employee, if his
40 [1973] AC 127, at 135, HL.

41 In Norwood v Navan [1981] RTR 457, CA, a husband was held not liable for the negligence of
his wife when driving his car for family shopping. In Nelson v Raphael [1979] RTR 437, the
seller of a car asked a friend to hand over the car to the buyer and collect his cheque. When the
friend demonstrated the controls to the buyer, the seller was held vicariously liable for the
friend’s negligence while doing so.
42 Nottingham v Aldridge [1971] 2 QB 739.
43 Even if that other had a defence, the principal may still be liable: Barker v Braham (1773) 3
Wils 368 (D authorised sheriff to arrest C on an illegal warrant; although the sheriff was
protected from liability by reason of acting under the warrant, D was still liable in false
imprisonment).
44 (1853) 2 E & B 767.
45 Alurlstone v London Electric Rly Co (1914) 30 TLR 398, CA.
fare orders him to drive fast or to take other risks, he is jointly responsible for any
ensuing tort.*°
If a person commits a tort while purporting to act on behalf of another, but in fact
without his authority, and that other later ratifies the act which amounted to a tort, he
thereby becomes answerable for the tort in the same way as if he had given authority
prior to commission. The principal must know, at the time of ratification,’” of the
commission of the act which constitutes a tort. Yet he is not excused because he was
unaware that the ratified act was a tort if he would have been liable in tort had he done
the act himself with such ignorance. Thus, if he ratifies the purchase of goods which
the vendor had no right to sell, he is liable in conversion, although he is unaware that
the sale was unlawful.**
(B) Torts where intentional or negligent conduct need not always be

proved
The torts of ‘strict liability’ discussed in previous chapters revealed that, in some
instances, liability may be imposed even in the absence of an intentional or negligent
act by the defendant’s independent contractors. In nuisance,*” Rylands v Fletcher°®
and breach of statutory duty,*! for example, we saw that the employer may in some
circumstances be liable for the conduct of his independent contractor.
(C) Negligence
An employer may be liable in negligence for damage caused by the acts of his
independent contractors in the following circumstances.*
(1) Personal negligence on the part of the employer

First, there may be such an element of personal negligence on the part of the employer
as to make him liable for the acts of his independent contractor, and this may be so
even though the duty of care owed by the employer in a particular case is not so
extensive as to make the employer liable merely because his independent contractor
has been negligent. For example, the employer is liable where he carelessly appoints an
incompetent contractor. Equally, where the risk of harm is foreseeable in the absence of
precautions, a failure by the employer to provide in the contract for those precautions,
46 Cf M’Laughlin v Pryor (1842) 4 Man & G 48. Mere failure to object or other acquiescence
would not be enough.
47 .Freeman v Rosher (1849) 13 QB 780.
48 Hilbery v Hatton (1864) 2 H & C 822.
49 Eg, Matania v National Provincial Bank Ltd [1936] 2 All ER 633, CA. Cf Hole v Sittingbourne
and Sheerness Rly Co (1861) 6 H & N 488; Dalton v Angus & Co (1881) 6 App Cas 740, HL
(the right of support); Bower v Peate (1876) 1 QBD 321; Alcock v Wraith (1991) 58 BLR 20,
CA.
50 (1868) LR 3 HL 330.
51 Hosking v De Havilland Aircraft Co Ltd [1949] 1 All ER 540.
52 But for these purposes, a sub-contractor who himself engages a sub-sub-contractor will not be
treated in law as an employer: M7M Construction Ltd v William Reid Engineering Ltd 1998
SLT 2 Lins Or:
is actionable negligence.** Robinson v Beaconsfield RDC* furnishes another example

of personal negligence on the part of the employer.
Ds employed contractors to clean out cesspools in their district. No arrangements
were made for the removal of the deposits of sewage upon their being taken from
the cesspools by the contractors. The contractors deposited sewage on C’s
land. Ds were held liable for their failure to take proper precautions to dispose of
the sewage.
It probably follows from the decision in Robinson that a failure to inspect after a job
has been completed would constitute negligence.
(2) Non-delegable duties

In some categories of negligence, the duty to take care has been so widely drawn that
it is not discharged by properly instructing and supervising a competent contractor:
there is a positive duty, even incumbent upon a contractor, not to act without taking
due care. Such duties are often termed non-delegable duties. It must be emphasised
that this is not true of all duty situations, and it is, of course, a question of law
whether such a wide duty is owed.
Where the activity is particularly hazardous — eg, where open fires on bush land are
lit,°° where re-roofing takes place on a row of terraced houses where difficulties with
the ‘joins’ between the properties is well known,”’ or flash-light photographs in a
cinema are taken** — the duty of care has been held to be non-delegable. Where
employers are carrying out inherently dangerous operations on or near a highway, and
those operations may foreseeably harm highway users, and the negligence of their
independent contractors does cause such harm, the employers are again liable. Consider
Holliday v National Telephone Co”
Ds, in laying telephone wires along a street, employed an independent contractor
to solder the tubes in which these wires were carried. In negligently using a
benzolene lamp, the contractor injured a passer-by. Ds were held liable.
Structural operations damaging neighbouring premises are also within the rule. And
a railway company owes a duty to passengers to see that bridges along its lines are
53 Cf Hughes v Percival (1883) 8 App Cas 443, HL.
54 [1911] 2 Ch 188.
55 For the liability of occupiers of land to their visitors for the acts of independent contractors
under the Occupiers’ Liability Act 1957, see ch 16.
56 Black v Christchurch Finance Co [1894] AC 48, PC. And see Balfour v Barty-King [1957] 1
QB 496, CA (owner liable for fire when independent contractor plumber used blowlamp in loft
to thaw D’s frozen pipes).
57 Alcock v Wraith (1991) 58 BLR 20, CA.
58 Honeywill and Stein Ltd v Larkin Bros (Londons Commercial Photographer) Ltd [1934] |
KB 191, CA.
59 [1899] 2 QB 392, CA. Cf Hardaker v Idle District Council [1896] 1 QB 335, CA (damaging gas
pipe while laying sewer under highway); Penny v Wimbledon UDC and Iles [1899] 2 QB 72, CA
(heap of soil left unlighted on highway); Walsh v Holst & Co Ltd [1958] 3 All ER 33, CA. In
Pickard v Smith (1861) 10 CBNS 470, the same principle was applied to hold a railway
refreshment room proprietor liable to a passenger who fell down a hole which the servant of
D’s independent contractor negligently left on the platform.
60 Hughes v Percival (1883) 8 App Cas 443, HL (party wall negligently cut into while contractor
was rebuilding part of adjoining premises); Alcock v Wraith (1991) 58 BLR 20, CA.
Vicarious liability 56|\
carefully built by independent contractors engaged for this purpose.°! By‘contrast,

removing a hawthorn tree from a garden adjoining a highway is not an inherently
dangerous activity. Accordingly, its owner is not liable for harm caused to the claimant
by his contractor removing it negligently.”
The categories of non-delegable duties are not closed. NHS authorities may well owe
such a duty. With the setting up of a nationalised health service, hospital treatment
often assumes an impersonalised and institutional form. A patient whose success in an
action for negligence depends on his establishing negligence on the part of a particular
employee of a hospital often has a nigh on impossible burden of proof to discharge. He
may, for example, while anaesthetised, be the victim of negligence in the operating
theatre and not be able to show whether the senior surgeon, the surgeon’s assistant or
the theatre sister, was responsible. And with shortages of permanent staff within the
NHS it may be that one or more of these is not an employee of the hospital, but rather
an agency doctor or nurse brought in on an ad hoc basis. One obvious solution to
these problems is to hold that hospital authorities have a duty to provide proper
treatment at all stages; a duty which they do not throw off by entrusting it to competent
staff. Lindsey County Council v Marshall,® Gold v Essex County Council® and
Collins v Hertfordshire County Council® all suggested that such a non-delegable
duty formed the basis of Denning LJ’s judgment in Cassidy v Ministry of Health.
In Cassidy, it was held that a hospital authority that ran a casualty department had a
duty to provide proper medical and nursing attention for all those who presented
themselves there complaining of illness or injury.’ A direct, non-delegable duty to
patients would have several consequences in today’s health service. Perhaps until
about 1980 it did not matter too much whether Denning LJ was right in Cassidy. If all
the professionals caring for a patient were employees, and it could be proved that
someone was negligent, the hospital authority was necessarily vicariously liable for
the tort of one of their employees. With increasing use of agency staff, however, the
hospital, if its liability is solely vicarious, may be able to turn round to the patient and
contend that she cannot prove a person for whom the hospital is vicariously
responsible is at fault. On the other hand, the hospital may be liable for failure to
implement a reliable system of work, such as one to deal with emergencies.” Consider,
too, the following scenarios.
1 Achild falls ill in the night and a doctor from the deputising service engaged by
the family GP fails to diagnose meningitis.
OL [1937] 2-ACGOT) HE:

[1942] 2 KB 293 at 301, CA , per Lord Greene MR
[1947] KB 598; Grote v Chester and Holyhead Rly Co (1848) 2 Exch 251.
62 Salsbury v Woodland [1970] 1 QB 324, CA.
63) [19377 AG 97, HE:
64 [1942] 2 KB 293, at 301, CA, per Lord Greene MR.
65 [1947] KB 598. ;
66 [1951] 2 KB 343, at 362-3, CA (but probably not of the other two judges). And see Wilsher v
Essex Area Health Authority [1987] QB 730, CA. Cf Jones v Manchester Corpn [1952] 2 QB
852, at 869, CA, per Denning LJ; Razzel v Snowball [1954] 3 All ER 429, CA; MacDonald v
Glasgow Western Hospitals Board of Management 1954 S22 6:
67 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.
68 Fora view that he was wrong see Yepremian v Scarborough General Hospital (1980) 110 DLR
(3d) 513 (Ontario CA).
69 Bull v Devon Area Health Authority [1993] 4 Med LR 117.
2 An elderly lady finally gets a date for a hip replacement. The health authority
contracts her operation out to a private clinic.
If the GP and health authority are subject to Cassidy-type, non-delegable duties, they
are responsible for any negligence on the part of their independent contractors, the
deputising services and the private clinic.”
The Employer’s Liability (Defective Equipment) Act 1969 must also be noted at this
juncture. It applies when, for the purposes of his business, an employer provides
equipment (which includes any plant and machinery, vehicle, aircraft and clothing) for
his employee and the employee suffers personal injury in the course of his employment
in consequence of a defect in that equipment. The injury is then deemed also to be
attributable to the negligence of the employer if the defect is attributable wholly or
partly to the negligence, or other tort, of an independent contractor or other third
party. This Act therefore imposes an extensive statutory duty on employers. It leaves
unchanged the common law duty of the employer to provide a safe system in respects
other than the provision of equipment.’!
In McDermid v Nash Dredging and Reclamation Co Ltd,’ C was employed as
a deck hand by Ds. He was instructed to go and work on another tug owned by
a different company within the same group as Ds. As a result of the negligence
of that tug master, who was not an employee of Ds, C suffered severe injuries. Ds
were held liable for failing to provide a safe system of work.
The breach of their non-delegable duty in respect of the safety of their employee, the
claimant, was not discharged by delegating that duty to the master of the tug. The
duty to devise and operate a safe system of work was finally held to be non-delegable.
But it must be stressed that that duty remains a duty to take reasonable care, not an
absolute duty to ensure the employee’s safety. In Cook v Square D Ltd,” for example,
an employee working in Saudi Arabia was injured falling over an unguarded raised tile.
The Court of Appeal held that the employers, who were 8,000 miles away, could not be
responsible for every day-to-day event in the workplace. The real question was whether
they had done what a reasonable employer should do in order to set up, operate and
monitor a safe system of work.
The grounds of social policy for imposing non-delegable duties on employers and
health authorities may explain the development of such duties in those areas. But in
one or two other instances the courts have also been prepared to extend the categories
of non-delegable duties. In Rogers v Night Riders,” for example, the claimant’s mother
telephoned the defendants for a taxi to take her daughter to the station and the mother
paid for the cab. During the journey, a door flew open and the claimant was injured.
The taxi driver was not an employee but an independent contractor for the defendants.
70 See M v Calderdale and Kirklees Health Authority [1998] Lloyd’s Rep Med 157.
71 Note the obligation to insure under the Employers’ Liability (Compulsory Insurance) Act
1969.
72 [1987] AC 906, HL. See also Davie v New Merton Board Mills Ltd [1959] AC 604, at 646, HL,
per Lord Reid.
73 [1992] ICR 262, CA; but note that the incident in McDermid also took place abroad. Are the
distinctions made between the two cases convincing: see [1992] ICR 262 at 270-1, per
Farquharson LJ.
74 [1983] RTR 324, CA. See also Cynat Products Ltd v Landbuild (Investment and Property) Ltd
[1984] 3 All ER 513.
Nevertheless the defendants were held to be in breach of their primary duty to the
claimant. As far as she knew, it was the defendants who undertook to convey her
safely and carefully to her destination.
What has to be considered now is whether the courts are moving towards the
development ofa principle that, where one person or organisation undertakes to provide
a service for another, albeit independently of any contract, he has a duty not only to
exercise care personally, but also to ensure that, whoever actually carries out the
service, the service is performed carefully. There is certainly strong support for this
view implicit in Lister v Hesley Hall Ltd.”°
Section 5. Where the employer is not liable for the acts of an

independent contractor
(A) No breach by employer of any duty imposed on him by the law of

torts
An employer is liable for damage caused by tortious acts of his independent contractor
only where there is a breach by the employer of a duty owed by him: the question is
always what is the extent of the risk against which the employer has the duty to
guard.”° In the case of all other duty situations — and they are numerous — the employer
discharges his duty by taking care in the appointment of an independent contractor.
No catalogue of instances falling within this last-mentioned group will be attempted: a
single example is given. In Phillips v Britannia Hygienic Laundry Co,” the owner of
a lorry was held not liable when a third party’s vehicle was damaged in consequence of
the negligent repair of his lorry by a garage proprietor.
(B) Collateral negligence

Employers of independent contractors are never liable for, as it is commonly stated, the
‘collateral negligence’ of their contractors. Padbury v Holiday and Greenwood Ltd"
at once furnishes facts which illustrate the principle and contains what seems to be the
soundest statement of the principle.
A employed B to fit casement windows into certain premises. B’s employee
negligently put a tool on the sill of the window on which he was working at the
time. The wind blew the casement open and the tool was knocked off the sill
onto a passer-by.
WS) o(ZO00U |PUNHES354(2002]elAG 215-

76 Dalton v Angus & Co (1881) 6 App Cas 740, at 831, HL, per Lord Watson.
77 [1923] 1 KB 539 (affd [1923] 2 KB 832, CA); followed in Stennett v Hancock and Peters
[1939] 2 All ER 578. But would the garage be liable for the negligent repair by its independent
contractor? See Taylor v Rover Co Ltd [1966] 2 All ER 181; Rivers v Cutting [1982] 3 All ER
69, CA (a policeman arranged, under powers given by the Removal and Disposal of Vehicles
Regulations 1968, for a garage to tow away a Car broken down on the MI motorway; he was
not liable for the garage’s negligent towing).
78 (1912) 28 TLR 494, CA.
Holding the employer not liable, Fletcher Moulton LJ said

[B]efore a superior employer could be held liable for the negligent act of a servant
of a sub-contractorsit must be shown that the work which the sub-contractor
was employed to do was work the nature of which, and not merely the
performance of which, cast on the superior employer the duty of taking
precautions.”
In short, the employer is liable for those risks of harm created by the work itself which
the employer is having done. ‘Collateral’ means collateral to the risk which marks the
limit of the duty of the employer. If the employer is to be liable, the danger must be
inherent in the work; it is not enough that the contractor chooses a negligent way of
performing it where the normal manner of performance would create no reasonably
foreseeable peril to the claimant.*°
The negligence must be ‘in the employer’s department of duty’.*' A householder who
employs a contractor to repair his lamp over the highway is liable if the contractor
repairs it in such a way that it falls onto a passer-by, for that is the very risk in respect
of which the duty of the householder is imposed on him, but he is not liable if the
contractor, while repairing it, allows a hammer to drop on to the passer-by, for that act
would be outside the employer’s range of duty. If a hospital owes a non-delegable
duty to patients in respect of their treatment, it does not follow that the hospital is
liable when an agency doctor negligently backs his car into yours when driving from
one part of the hospital site to another. That act is not within the non-delegable duty
to patients. Wilson v Hodgson s Kingston Brewery Co® also demonstrates how liability
for the acts of independent contractors falls short of vicarious liability for the torts of
an employee.
Ds employed X, an independent contractor, to deliver beer at a public house. X

delivered it through a cellar flap on the highway, and he negligently left the flap
open, causing C, who was passing along the pavement, to be injured. Pointing
out that X could have delivered it through the front door, the court held that the
incident was not within the scope of any duty on the part of Ds to take care.
79 (1912) 28 TLR 494, at 495, CA. Cf Hardaker v Idle District Council [1896] 1 QB 335, at 342,
CA, per Lindley LJ; Thompson v Anglo-Saxon Petroleum Co Ltd [1955] 2 Lloyd’s Rep 363.
80 Many of the old cases state the rule rather differently by saying that the employer is not liable
where the contractor does something collateral to the contract, eg, Hole v Sittingbourne and
Sheerness Rly Co (1861) 6 H & N 488, at 497, per Pollock CB; Penny v Wimbledon UDC and
Iles [1899] 2 QB 72, CA. The formulation used in this text is preferred because the contract
cannot affect the scope of the duty of the employer — the contractor may do an act within the
area of his duty in tort. Conversely, the employer may be liable for acts or omissions collateral
to the contract if they are within the scope of his duty. Cf Robinson v Beaconsfield RDC
(UST P2F Chasss
81 Cassidy v Ministry of Health [1951] 2 KB 343, at 365, CA, per Denning LJ. This judgment
contains a lucid statement of the nature of collateral negligence. For the difficulty in ascertaining
exactly D’s duty for the purpose of this rule: see Salsbury v Woodland [1970] 1 QB 324, at
349, CA, per Sachs LJ.
82 (1915) 85 LJKB 270, Div Ct.
Section 6. Liability in respect of employees
(A) The commission of a tort or other wrong by the employee

An employer is liable whenever his employee commits a tort in the course of his
employment. All the elements of the particular tort®? must subsist during the
employer-employee relationship, except that the employer may be answerable even
though the relationship has ceased when the damage occurs.*4
Where a duty of care imposed on the employer has been broken, but the claimant
cannot prove which employee of the employer is responsible for the breach, the
employer is liable as one might expect.*° Thus in Roe v Minister of Health all three
judges in the Court of Appeal stated (obiter) that where a claimant established
negligence on the part of one or more of several employees of the defendant hospital
authority, the defendant authority was vicariously liable although the claimant could
not prove which of those employees committed the negligent act.*° Further, the ratio
decidendi of Cassidy v Ministry of Health is that where the claimant has been injured
as a result of some operation in the control of one or more employees of a hospital
authority (and he cannot identify the particular employee who was in control), and in
all other respects the requirements of the res ipsa loquitur rule in respect of the act are
satisfied, the hospital authority is vicariously liable unless it ousts the operation of
that rule.*’ These two decisions were arrived at on the basis of vicarious liability,** not
on the basis of a breach of duty of the employer.
(B) In the course of the employee’s employment

Everything depends on whether the employee did the act ‘in the course of his
employment’.® This is an issue of law to the extent that judges have devised certain
principles which must be applied, even when a court has a power of appellate review
only on matters of law and not of fact.°° The applicability of these rules of law to a
particular case is, of course, a matter of fact, and the diversity of employment
relationships is so great that it will not be surprising to discover that these issues of
fact are frequently of exceptional difficulty. The legal element of what constitutes a
‘course of employment’ must now be examined.
83 A procedural bar against suing the servant will not prevent the master from being vicariously
liable: Staveley Iron and Chemicals Co Ltd v Jones [1956] 1 All ER 403, HL; Broom v Morgan
[1953] 1 QB 597, CA.
84 Briess v Woolley [1954] AC 333, HL.
85 Grant v Australian Knitting Mills Ltd [1936] AC 85, at 101, PC; Olley v Marlborough Court
Ltd [1949] 1 KB 532, CA (guest left bedroom key at hotel office; upon the key being taken and
the bedroom burgled, the onus was cast on the hotel to prove that they and their staff took
reasonable care of the key).
86 [1954] 2 QB 66, CA.
87 [1951] 2 KB 343, CA.
88 Although Denning LJ would have founded liability in Cassidy’s case on breach of duty, he
agreed with Somervell and Singleton LJJ, in respect of the statement in the text.
89 Even though the act is outside the scope of employment the employer may still be liable for
breach of his own duty to provide a safe system of work. In Hudson v Ridge Manufacturing Co
Ltd [1957] 2 QB 348, an employer was held liable to an employee for failure to prevent
horseplay by one workman known to be likely to harm other workmen. It seems that a claim
based on vicarious liability would have failed.
90 Eg, LCC v Cattermoles (Garages) Ltd [1953} 2 All ER 582, CA.
(1) The course of employment: general principles vd

At one time, it was generally accepted that the crucial distinction to be made lay
between an employee’s wrongful mode of doing authorised work (for which the employer
is liable), and his performance of some unauthorised act (for which the employer is not
liable).*! Such a simplistic distinction was never entirely satisfactory,” especially from
a compensation point of view, for some cases involving deliberate misconduct could
best be viewed as having been ‘massaged’ in order to fit the somewhat rigid
‘unauthorised mode’ (as opposed to ‘unauthorised act’) category.” Of course, it is
quite properly uncontentious to regard negligence in the performance of a job as a
wrongful mode of doing an authorised act. But deliberate, heinous acts by an employee
are far more difficult to classify in such terms. That said, the decided cases have on
occasion regarded such egregious (even criminal) conduct in terms of wrongful modes
of performing authorised acts. Examples will be considered below. But it is useful to
begin this section by making the general observation that the possible variations of
fact in this context bedevil the exposition of any clear, uncontroversial and universally
applicable formula. Here, as in many areas Of tort law, some of the decisions are based
more on policy than principle. That said, a few examples can help to illustrate not just
the breadth of factual variations that may occur, but also the general principles at play.
In Century Insurance Co Ltd v Northern Ireland Road Transport Board,” the
driver of a petrol lorry, while transferring petrol from the lorry to an underground
tank at a petrol station, struck a match in order to light a cigarette and then threw
it, still alight, on the floor. An explosion and a fire ensued.
His employers were held liable for the damage caused: he did the act in the course of
carrying out his task of delivering petrol. It was an unauthorised way of doing what he
was actually employed to do. Similarly, in Bayley v Manchester, Sheffield and
Lincolnshire Rly Co,° erroneously thinking that the claimant was in the wrong train,
a porter of the defendants forcibly removed him. The defendants were held liable.
Consider, too, Harrison v Michelin Tyre Co Lta®®

C was injured when an employee of Ds deliberately steered the truck which he
was driving a few inches off the designated passageway and knocked C over as
he stood at his machine. Ds were held liable. The momentary horseplay engaged
in by Ds’ servant did not take him outside the course of his employment.
Cases of the class now being examined illustrate how much wider is the employer’s
vicarious liability for the torts of his employee than his personal liability for those of
his independent contractor. The facts in very many instances — eg, those in the case
last cited — would constitute mere ‘collateral negligence’ in the case of independent
contractors, and yet are ‘in the course of employment’ for the purposes of the doctrine
of vicarious liability. But where the line lies between the employee within and outside
91 Goh Choon Seng v Lee Kim Soo [1925] AC 550, PC.

92 See Cane, ‘Vicarious Liability for Sexual Abuse’ (2000) 116 LQR 21.
93 For details, see the 10th edition of this work.
94 [1942] AC 509, HL.
95 (1873) LR 8 CP 148.
96 [1985] i All ER 918. See also Duffy v Thanet District Council (1984) 134 NLJ 680.
her course of employment can be difficult to determine. Compare this case with Aldred
v Nacanco.”’ An employee knowing a basin in the washroom to be unsteady shoved
it against a colleague causing her injury. The Court of Appeal held her act to be quite
unrelated to her work and so outside her course of employment.
Consider, too, the following three cases. A transport company is not liable when the
conductor, instead of the driver, on his own initiative turns a bus round at the terminus
and negligently injures a third party.** On the other hand, a bus company is liable for
the negligence of a driver who allows a conductor to drive the bus.” And an employer
is liable for the racist taunts of, and assaults upon, employee A by employees B, C and
D. 10
But these are mere illustrations. So far as any guiding principles can be evinced, they
might usefully be categorised under the following headings.
(2) Authorised conduct within limits of time and space

The conduct of an employee is normally only within the scope of his employment
during his authorised period of work. However, he will still be treated as being within
the scope of his employment during a period which is not unreasonably disconnected
from the authorised period. Thus, someone paid for working until 6 pm who stays on
for a few minutes in order to finish a job will still be within the scope of his employment.
But an employee who comes into his employer’s premises without permission during
his holiday is not within the scope of his job.'°' In Ruddiman & Co v Smith,'” the facts
were as follows.
Ds provided a washroom for their clerks. After office hours had ended, and
preparatory to going home, a clerk used the washroom, and left a tap running.
His act was held to be within the scope of his employment so as to make Ds liable
for the ensuing flooding of adjoining premises.
By contrast, a nightclub doorman is not treated as acting within the course of his
employment when he pursues visitors hundreds of metres into the street in order to
assault them having ejected them from a nightclub.'”
It follows from the foregoing that, ordinarily, employees travelling to and from their
place of work are not within the course of their employment. But there are instances
where travel is so closely connected with a person’s work that the ordinary principle
97 [1987] IRLR 292, CA. Their Lordships expressed some disapproval of Harrison v Michelin
Tyre Co Ltd. Yet perhaps the decisions can be reconciled. The driver in Harrison was still doing
what he was employed to do, driving. In A/dred, nothing relating to the employee’s act was
concerned with the job she was engaged to do.
98 Beard v London General Omnibus Co [1900] 2 QB 530, CA. Cf Kay v ITW Ltd [1968] 1 QB
140, CA; Iqbal v London Transport Executive (1973) 16 KIR 329, CA.
99 Ricketts v Thos Tilling Ltd [1915] 1 KB 644, CA. And see Ikiw v Samuels [1963] 2 All ER 879,
CA.
100 Tower Boot Co Ltd v Jones [1997] 2 All ER 406, CA (the importance of the Race Relations Act
1976 demanded that the provisions governing vicarious liability be given a broad interpretation).
101 Compton v McClure [1975] ICR 378.
102 (1889) 60 LT 708, Div Ct.
103 Mattis v Pollock [2002] EWHC 2177.
cannot apply. In Smith v Stages,'” for example, an employee had been working away
from his home and his usual workplace. He was involved in a road accident driving
home in his own car so that he could resume work at his usual place of employment the
next day. He was paid for the day he needed to drive back as a normal working day. The
House of Lords held that he remained within the course of his employment. His journey
from A to B was part and parcel of his job in those circumstances, and his employers,
in effect, directed that he make the journey.
There are of course many jobs where travel is itself the essence of the employment.
The work of sales representatives and employed mini-cab drivers are obvious examples.
But what if such employees make a detour from their set pattern of work for their own
purposes, say, to visit a friend or do some shopping? The courts have often been
called upon to decide whether a detour by an employee is within the scope of his
employment. The classical ruling is that of Parke B in Joel v Morison.
If he was going out of his way, against his master’s implied commands when
driving on his master’s business, he will make his master liable; but if he was
going on a frolic of his own, without being at all on his master’s business, the
master will not be liable.'”
Whether the detour by the employee is a ‘frolic of his own’ is clearly a matter of degree.
Here are two cases, one on each side of the line.
A carter was in charge of a horse and cart during the day. Without permission he
drove them home, a '/s-mile out of his way, for his midday meal, and left the horse
unattended outside his home. His employer was held liable for damage done by
the horse when it ran away.'°
A carman, having delivered wine, was to bring back some empties directly to the
shop of his employers. On the return journey, before reaching the shop, he
deviated from his route in order to pick up a cask at the home of the clerk
accompanying him and take it somewhere else for that clerk’s private purposes.
While on the way to the clerk’s home he drove the cart negligently and injured C.
His employers were held not liable.!°”
Consider carefully, in each case, exactly what job the employee was engaged to do. If
an employee is found to have gone on a ‘frolic of his own’, can he be deemed to have
re-entered his employer’s service? An attempt to establish such a resumption failed in
Rayner v Mitchell.'°*
X was employed to deliver beer and pick up empties. He took out the cart on an
unauthorised trip and on his return picked up some empties. This was held not
enough to constitute a resumption of his employment, and his employer was
held not liable for his negligent driving while returning to the employer’s premises
with the empties on board.
104 [1989] AC 928, HL. See also Vandyke v Fender [1970] 2 QB 292, CA; Elleanor v Cavendish
Woodhouse Ltd and Comerford [1973] 1 Lloyd’s Rep 313, CA.
105 (1834) 6 C & P 501, at 503.
106 Whatman v Pearson (1868) LR 3 CP 422.
107 Storey v Ashton (1869) LR 4 QB 476.
108 (1877) 2 CPD 357.
(3) Express prohibitions

Often, of course, an employer expressly forbids certain acts. But it does not follow
from this that an act done in defiance of the prohibition is thereby placed outside the
scope of employment. If it were so, the employer would only have to issue specific
orders not to be negligent in order to escape liability for his employee’s negligence.
The House of Lords has laid down the rule as follows:
[T]here are prohibitions which limit the sphere of employment, and prohibitions
which only deal with conduct within the sphere of employment. A transgression
of a prohibition of the latter class leaves the sphere of employment where it was,
and consequently will not prevent recovery of compensation. A transgression
of the former class carries with it the result that the man has gone outside the
sphere.
Again, a few illustrative examples are helpful. First, consider Canadian Pacific Rly Co
v Lockhart.'"°
Ds prohibited their staff from driving uninsured cars on the company’s business.
In breach of this instruction, S drove an uninsured car negligently, while engaged
on the company’s business, and injured C.
Holding the defendants liable, the Judicial Committee stated:
[I]t was not the acting as driver that was prohibited, but that non-insurance of
the motor car, if used as a means incidental to the execution of the work which he
was employed to do. It follows that the prohibition merely limited the way in
which, or by means of which, the servant was to execute the work which he was
employed to do, and that breach of the prohibition did not exclude the liability of
the master to third parties.'!'
Likewise, a garage hand employed to move vehicles in a garage, but forbidden to drive
them, was acting in the course of his employment when he drove a van out of the
garage on to the highway (in order to make room in the garage for another vehicle), and
collided on the highway with the claimant’s van.''? These cases may be contrasted
with Rand v Craig.'"°
D employed his servants to carry rubbish from X to Y. Instead they deposited
some of this rubbish on C’s land.
The defendant was held not liable for this trespass because they were employed, not
to carry rubbish generally but only to carry it from X to Y. The act was therefore of a
kind that the defendant was impliedly forbidden to do.
109 Plumb v Cobden Flour Mills Co Ltd [1914] AC 62, at 67, HL, per Lord Dunedin (a workmen’s
compensation case, but the principles are the same).
110 [1942] AC 591, PC.
111 [1942] AC 591, at 601, PC.
112 LCC v Cattermoles (Garages) Ltd [1953] 2 All ER 582, CA. Cf Limpus v London General
Omnibus Co Ltd (1862) 1 H & C 526, Ex Ch (bus driver, contrary to instructions, raced a rival
bus in order to get custom — a direction to the jury that these instructions defined the scope of
employment were held wrong in law). Cf /gbal v London Transport Executive (1973) 16 KIR
3299CA.
113 [1919] 1 Ch 1, CA.
If a driver gives a lift to a third party in breach of his employer’s instructions and
tortiously injures that passenger through careless driving, the courts approach the
question of the employer’s liability as follows. The issue does not turn on the fact that
the passenger is a trespasser.''* The employer is not liable if his prohibition has marked
the limits of the scope of employment, so that giving the lift was outside that scope. On
the other hand, if the prohibition affected only the mode in which the employee was to
perform his duties, the employer may be vicariously liable. Two cases show the
distinction.
In Twine v Bean’s Express Ltd," the facts were as follows.
The employer had a contract to employ his vans on Post Office business. Contrary
to his express instruction his driver gave a lift to a third party.
It was held that giving the lift was outside the scope of employment. Operating what
was in effect a ‘free taxi service’ was not the job the driver was employed to do.
Contrast this with the case of Rose v Plenty.''®
A milkman employed a 13-year-old boy to deliver and collect milk bottles on his
milk round contrary to his employer’s order that children were not to be employed
by roundsmen in the performance of their duties. The driver negligently injured
the boy.
The employer was held vicariously liable because the prohibition affected only the
manner in which the roundsman was to perform his duties of delivering milk and did
not limit the scope of those duties. He was still delivering milk, and the boy he had
wrongly recruited to assist him was part of that enterprise.
(4) Connection of the wrongful act the with employer's work

Frequently, employees do acts which they have no express authority to do, but which
are nevertheless calculated to further some proper objective of their employer. Unless
the method of accomplishing this objective is so outrageous that no employer could
reasonably be taken to have contemplated such an act as being within the scope of
employment, the employer will be liable for torts thus committed, as the following
cases show.
Poland v John Parr & Sons is the leading case."
H, an employee of Ds, while going home to dinner, reasonably believed that a
boy was stealing sugar from a bag on a passing lorry of his employers. He struck
the boy, who fell and, in consequence, had to have a leg amputated. Although
his act in defence of his employer’s property was so unreasonable as to be
tortious, it was not sufficiently excessive to be outside the scope of his
employment.
114 Young v Box & Co [1951] 1 TLR 798, CA; Rose v Plenty [1976] 1 All ER 97, CA.
115 (1946) 175 LT 131, CA.
116 [1976] 1 All ER 97, CA. As to principles applicable when a prohibition is statutory, see Alford
v National Coal Board [1952] 1 All ER 754, HL.
LL7 [1927] ISB 2365 CA:
Vicarious liability 57\
Holding that ‘a servant has an implied authority upon an emergency to endeavour to

protect his employer’s property if he sees it in danger or has reasonable ground for
thinking that he sees it in danger’,!'* the Court of Appeal found the defendants liable.
Atkin LJ did, however, point out that:
where the servant does more than the emergency requires, the excess may be so
great as to take the act out of the class. For example, if H had fired a shot at the
boy, the act might have been in the interest of his employers, but that is not the
testi”?
With this may be contrasted Warren v Henlys Ltd.'?°
A garage attendant employed by Ds accused C, in violent language, of leaving
the garage without paying for his petrol. After paying, C called the police and
said that he would report him to his employers. The attendant on hearing this
assaulted C.
It was held that there was no evidence to go to the jury that ‘this assault ... was so
connected with the acts which the servant was expressly or impliedly authorised to do
as to be a mode of doing those acts’.'*! A very obvious example of conduct unconnected
with the employer’s work is seen in Makanjuola v Metropolitan Police Comr.'” There,
a police officer extracted sexual favours from the claimant in return for a promise not to
report her to the immigration authorities. It was held that his act was entirely for his
own purposes and not an act his employer in any sense authorised. Of course, were
the officer’s proclivities known to senior officers, it might have been possible to argue
that there was a breach of a primary duty of care to the public. Finally, where the acts
of prison officers are broadly in furtherance of the interests of the Home Office, the
Home Office remains liable even though the officers’ acts amount to misfeasance in a
public office.'”
(A) Overt CriMINAL CONDUCT

Evidence that the employee’s conduct was a criminal or otherwise wilful wrongdoing
will not necessarily take that conduct outside the scope of the employee’s
employment.' So, an employer may be liable where an over-enthusiastic defence of
his interests results in an assault which is in the circumstances a crime as well as a
tort.'25 Similarly, in Vasey v Surrey Free Inns,'*® an employer was held liable in respect
of an assault upon the claimant committed by two doormen in his employ. The doormen’s
acts were, crucially, in response to the claimant having caused damage to the employer’s
118 [1927] 1 KB 236, at 240, CA, per Bankes LJ.

119 [1927] 1 KB 236, at 245, CA.
120 [1948] 2 All ER 935. In Keppel Bus Co Ltd v Sa’ad bin Ahmad [1974] 2 All ER 700, PC, a bus
conductor struck a passenger after a quarrel. Although the conductor’s duties extended to
keeping order, his employer was not vicariously liable because there was no evidence of
disorder.
121 [1948] 2 All ER 935, at 938, per Hilbery J.
122 [1992] 3 All ER 617, CA.
123 Racz v Home Office [1994] 2 AC 45, HL.
124 Barwick v English Joint Stock Bank (1867) LR 2 Exch 259; Lloyd v Grace, Smith & Co [1912]
AC 716 HL.
125 Poland v Parr, supra.
126 [1996] PIQR P373, CA.
premises by kicking them. Accordingly, the doormen’s ‘actions were construed as

being in furtherance of the employer’s interests.
'”’
There may be cases, however, where albeit the wrongful conduct is in no sense in the
employers’ interests, it is so much part and parcel of the job that the employee is
engaged to do that the employers remain liable for that conduct. In Bracebridge
Engineering Ltd v Darby,’ in a sex discrimination claim under the Sex Discrimination
Act 1975, supervisors sexually harassed a woman employee in the context of warnings
about poor time-keeping. The employers were found vicariously liable for that
harassment which constituted a wrongful mode of doing just what they were employed
to do. Even where the act is not so much part and parcel of what the employee is
employed to do, it is tolerably clear that a generous approach to the notion of vicarious
liability will be taken where the acts of the employee are contrary to anti-discrimination
legislation.'” Finally, in Morris v C W Martin & Sons Ltd, a firm of cleaners to whom a
furrier had entrusted the cleaning of the claimant’s mink stole were liable for the theft
of the stole by the very employee whose job it was to clean it.!°°
Thus, a dishonest or criminal act is no bar, per se, to the employer’s vicarious liability.'°!
The crucial question is whether that act was committed either directly in the course of
the employee’s employment,'** or whether it was sufficiently intricately connected to
it to warrant the imposition of vicarious liability. Thus, the theft of the mink stole in
Morris by the man entrusted with the job of cleaning it constituted an unlawful mode
of doing his job.'** The theft of the stole by a cook in the canteen at the firm’s factory
would, however, be an act unrelated to his employment there. Accordingly, the employer
would not in such circumstances be held vicariously liable in the absence of his
personal negligence — eg, in employing persons known to be dishonest. He cannot be
liable simply for supplying the opportunity to commit a crime. Instead, the criminal act
must be much more intricately bound up with the contract of employment. The leading
case is Lister v Hesley Hall Ltd.'*4
A warden living in a boarding house attached to a school owned and managed
by Ds had systematically sexually abused Cs, who were boys with emotional
and behavioural difficulties at the school, for a period of about three years. Ds
127 Cf Mattis v Pollock [2002] EWHC 2177. See also Fennelly v Connex South Eastern Ltd [2001]
IRLR 390, CA (ticket inspector on a train assaulting a customer pursuant to an argument with
a customer in furtherance of employer’s interests).
128 [1990] IRLR 3, EAT. Cf Makanjuola v Metropolitan Police Comr, supra.
129 Tower Boot Co Ltd v Jones [1997] ICR 254, CA (racist taunts and physical assaults of some
employees upon another were considered to be inside the scope of their contracts of
employment).
130 [1966] 1 QB 716, CA. Even a gratuitous bailee has the burden of proving that he was not
negligent if the bailed goods are lost: Port Swettenham Authority v TW Wu & Co Sdn Bhd
[1979] AC 580, PC. A bailee is also liable for the negligence of the servants of his independent
contractor: British Road Service Ltd v Arthur V Crutchley & Co Ltd [1967] 2 All ER 785. In
Fairline Shipping Corpn v Adamson [1975] QB 180, a director who was not himself a bailee,
assumed responsibility for refrigerated goods and was held liable for carelessly allowing them to
defrost.
131 Port Swettenham Authority v TW Wu & Co [1979] AC 580, PC
132 Tv North Yorkshire County Council (1998) Times, 10 September, CA.
133 As did a burglary by a porter in a block of flats when the porter burgled the flat using keys
entrusted to him by his employers, the management company who ran and maintained the
flats: Nahhas v Pier House (Cheyne Walk) Management Ltd (1984) 270 Estates Gazette 328.
134 [2001] UKHL 22, [2002] 1 AC 215.
had no knowledge of these facts. Cs claimed damages against Ds for the personal
injuries they suffered, arguing inter alia, that Ds were vicariously liable for the
torts committed by the warden. The Court of Appeal held that the warden’s acts
could not be regarded as an unauthorised mode of carrying out his authorised
duties. The House of Lords reversed that finding emphasising the close contact
he had with the pupils by virtue of his job and the inherent risks his job carried
with it.
At the heart of their Lordships’ decision was the fact that there was a sufficiently close
connection between the work that the warden had been employed to do and the acts
of abuse that he had committed for those acts to be regarded as having been committed
within the scope of his employment thus rendering the defendants vicariously liable
for them. As Lord Steyn put it, in terms reflecting the role of policy in this context:
The question is whether the warden’s torts were so closely connected with his
employment that it would be fair and just to hold the employers vicariously
liable. On the facts of the case the answer is yes. After all, the sexual abuse was
inextricably interwoven with the carrying out by the warden of his duties in [the
children’s] House.!*>
And for Lyde Clyde:
The opportunity to be at the premises would not in itself constitute a sufficient

connection between his wrongful actings and his employment. In addition to
the opportunity which access gave him, his position as warden and the close
contact with the boys which that work involved created a sufficient connection
between the acts of abuse which he committed and the work which he had been
employed to do. It appears that the respondents gave the warden a quite general
authority in the supervision and running of the house as well as some particular
responsibilities. His general duty was to look after and to care for, among others,
the appellants. That function was one which the respondents had delegated to
him. That he performed that function in a way which was an abuse of his position
and an abnegation of his duty does not sever the connection with his employment.
The particular acts which he carried out upon the boys have to be viewed not in
isolation but in the context and the circumstances in which they occurred.'*°
What seems to lie at the heart of Lister, then, is not that the job provided the mere
circumstances in which the tort took place, but rather that the tort in question
constituted a particular risk which was inextricably linked to the employer’s type of
business. As Lord Clyde further explained: ‘[t]he fact that his employment gave the
employee the opportunity to commit the wrong is not enough to make the employer
liable. He is liable only if the risk is one which experience shows is inherent in the
nature of the business’.!*”
135 [2001] UKHL 22, at [28], [2002] 1 AC 215, at [28].

136 [2001] UKHL 22, at [50], [2002] 1 AC 215, at [50].
137 [2001] UKHL 22, at [65], [2002] 1 AC 215, at [65]. It might be argued that the focus on the
nature of the employer’s business tends to blur the distinction between the employer’s primary
and vicarious liability (see Balfon Trustees Ltd v Peterson [2001] IRLR 758, at [28], per Laddie
J). But the decision in Lister is assuredly based on the latter.
In the wake of Lister, it is perhaps unwise to regard earlier‘decisions treating wanton,

egregious conduct as falling beyond the bounds of a course of employment as cast-
iron precedents on vicarious liability. A moment’s reflection reveals that child abuse,
by whatever means, can hardly be viewed as a mere unauthorised mode of performing
an authorised act. It is better simply to recognise that the decision is rooted in policy,
albeit cloaked in language that stresses the intimate connection between the employee’s
tort and the nature of his employment.'** And in determining whether a sufficiently
close connection exists on any given facts, much will turn on context: the kind of
employment in question, the kinds of risk incidental to that line of work and the injustice
that may result from leaving the claimant without a sufficient remedy..
(8) Fraup
Leaving physical abuse to one side, it is clear that an employee’s fraud may also form
the basis of vicarious liability. Barwick v English Joint Stock Bank,'*” made this clear
where a bank manager caused his employers to be held vicariously liable for his
fraudulent misrepresentations. Before 1912 it had been thought that the employer
would only be liable for wilful wrongdoing where, as in Barwick’s case, the act was
done for his benefit. In that year, however, Lloyd v Grace, Smith & Co'* was decided
by the House of Lords.
In an action to recover title deeds by C (who was a client of D, a firm of solicitors),
the material point was whether the firm were liable for the act of their managing
clerk, who, when C consulted him about selling her property and realising a
mortgage, fraudulently induced her to sign documents transferring those
properties to him. The managing clerk was employed, among other things, to
carry out conveyancing transactions. Although the firm derived no benefit from
these frauds, perpetrated by their employee for his own purposes, they were
held liable for his acts.
But the issue of vicarious liability for fraud must be approached cautiously. The liability
of an employer for a fraud perpetrated by an employee is not to be treated identically
with liability for other forms of wrongdoing. Lord Keith put it this way:
[D]ishonest conduct is of a different character from blundering attempts to
promote the employer’s business interests involving negligent ways of carrying
out the employer’s work or excessive zeal and errors of judgment in the
performance of it. Dishonest conduct perpetrated with no intention of benefiting
the employer but solely with that of procuring a personal gain or advantage to
the servant is governed, in the field of vicarious liability, by a set of principles
and a line of authority of particular application."*!
138 In similar vein see Bazely v Curry (1999) 174 DLR (4th) 45; Jacobi v Griffiths (1999) 174
DLR (4th) 71.
139 Supra.
140 Supra.
141 Armagas Ltd v Mundogas SA, The Ocean Frost [1986] AC 717, HL.
The key question where it is sought to make an employer liable for a fraud committed
by the employee, is whether all aspects of the tort (or other wrongdoing, such as
breach of fiduciary duty) occurred within the course of the employee’s employment.
In Crédit Lyonnais Bank Nederland NV v Export Credits Guarantee Department'”
part of the fraud was committed by the employee (by his non-tortious conduct) and
part by a third party. The House of Lords refused to combine the two sets of acts so as
to make the employer vicariously liable for the combined acts of the two fraudsters.
However, in Dubai Aluminium Co Ltd v Salaam,'* all the acts necessary to make the
employee personally liable took place within the course of his employment and vicarious
liability was accordingly imposed.
A rather different point was canvassed in Armagas Ltd v Mundogas SA, The Ocean
Frost.'“ There, the vice-president of the defendant company had negotiated, via a
broker, a deal with the claimants from which he received a secret profit. He had no
authority to arrange the deal, nor did anything done by the defendants induce the
claimants to believe that he had such authority. The claimants argued that even though
the vice-president acted beyond the scope of his authority as the defendants’ agent,
he remained within the course of his employment as their employee. The House of
Lords reasserted that, as far as the tort of deceit was concerned, the parameters of the
employee’s course of employment were determined by the scope of his authority.
(C) Statutory duty and vicarious liability

It remains undecided to what extent an employer may be vicariously liable for breach
by an employee of a statutory duty imposed directly on him and not on his employer.
In Stanbury v Exeter Corpn, the local authority which appointed a sanitary inspector
was held not liable for the negligence of that inspector in carrying out public duties
imposed on him by authority of statute.'** Both the House of Lords and Court of
Appeal have considered (obiter) whether employers are liable for breaches of statutory
duty by miners employed by them. The point was left open in Harrison v National
Coal Board'*° and England v National Coal Board,'*’ although in the latter case it
was held that the employer was vicariously liable for the breach (because it was still
open for the court to regard the act as negligent at common law despite the fact that the
statute covered the same ground). It is thought that the question is one of statutory
interpretation: does the statute intend to create not only a liability on the employee on
whom the duty is expressly imposed, but also on his employer?'** So far as the Crown
142 [2000] 1 AC 486, HL,

143 [2002] UKHL 48, [2003] 1 Lloyd’s Rep 65, HL
144 [1986] AC 717, HL.
145 [1905] 2 KB 838, Div Ct.
146 [1951] AC 639, HL.
147 [1953] 1 QB 724, CA (on appeal sub nom National Coal Board v England [1954] AC 403,
HL); ICI Ltd v Shatwell [1965] AC 656, HL. ; .
148 Darling Island Stevedoring Co Ltd v Long (1956) 97 CLR 36 (H Ct Australia), especially the
judgment of Fullagar J. It may well be that those statutes which impose some duties expressly
on employers and other duties on employees do not impliedly make the employers liable in
respect of those duties expressly imposed only on employees.
576 Remedies and paxties
is concerned, it seems that the rather obscurely worded s 2(3) of the Crown Proceedings
Act 1947 has the effect of making the Crown liable for breaches of statutory duty by its
employees.'”
149 It reads: ‘Where any functions are conferred or imposed upon an officer of the Crown as such
either by any rule of the common law or by statute, and that officer commits a tort while
performing or purporting to perform those functions, the liabilities of the Crown in respect of
the tort shall be such as they would have been if those functions had been conferred or imposed
solely by virtue of instructions lawfully given by the Crown’. Section 2(2) provides that the
Crown can be liable only for those breaches of statutory duty which bind persons other than
the Crown and its officers. But since s 2(3) makes the Crown liable, not as if for breach of its
own statutory duty, but as if it had instructed its employee to perform the work, it seems that
s 2(3) is unaffected by s 2(2). Cf the relations of public officers with public authorities other
than the Crown, on which Stanbury v Exeter Corpn [1905] 2 KB 838 probably remains the law.
CHAPTER 26
Remedies
Section |. Extra-judicial
The availability of a limited number of extra judicial, self-help remedies has been touched
on earlier.' In general, however, the person invoking self-help should remember that he
acts at his peril.
Section 2. Judicial
(A) Damages?’
(1) Nominal
Some interests, for example, freedom of movement, the exercise of a vote at an election
and the possession of one’s property are considered to be so important that any
violation of them is a tort.’ The damages are said to be at large in all these torts. This
means that although the interest protected may not have a precise cash value, the
court is free, on proof of the commission of the tort, to award substantial damages.’ By
contrast, nominal damages (of as little as £1) will be awarded where the court decides
in the light of all the facts that no damage has been sustained.° The function of nominal
damages is simply to mark the vindication — where no tangible damage has been
suffered — of a right which is held to be so important that any infringement of it is
actionable per se. Grobbelaar v News Group Newspapers Ltd? provides a good example.
There, a professional footballer had been libelled in so far as he had been accused of
1 See ch 6 in the contexts of self-defence, abatement etc.

2 Burrows, Remedies for Torts and Breach of Contract (1994); Harris, Campbell and Halson,
Remedies in Contract & Tort (2002).
3. ‘For the difficulties involved in deciding whether an action on the case is actionable per se, see
the opinion of Viscount Haldane in Hammerton v Earl of Dysart [1916] 1 AC 57, HL.
4 Eg,£5 damages were awarded to C in Ashby v White (1703) 2 Ld Raym 938 (right to vote); £50
damages were treated as appropriate in Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343,
CA (interference with fishery).
5 The Mediana [1900] AC 113, at 116, HL, per Earl of Halsbury LC; Neville v London Express
Newspaper Ltd [1919] AC 368, at 392, HL, per Viscount Haldane.
6 [2002] UKHL 40, [2002] | WLR 3024.
actually fixing football matches. He had not technically fixed the result of the matches,
thus the statement was untrue and libellous. He had, however, accepted money in
exchange for his endeavours to throw the games, and was awarded £1 in nominal
damages by the House of Lords. Nominal damages are nowadays given only in respect
of torts actionable per se’ and are not to be confused with a small sum of substantial
damages.
One case runs counter to these principles — Constantine v Imperial Hotels Ltd.®
C, a famous black cricketer, was improperly refused accommodation at Ds’ hotel.
This was a tort derived from the former action on the case, and actionable per se.
Birkett J held that he could not grant substantial damages.
The decision seems wrong because damages were at large in accordance with the
above principles and he found that the claimant suffered unjustifiable humiliation and
distress. He should, therefore, have awarded damages that reflected the injury to
feelings.’
(2) Contemptuous damages

These are derisory damages, marking the court’s low opinion of the claimant’s claim, or
its disapproval of his conduct in the matter. They differ from nominal damages in that
they may be awarded in respect of any tort, not merely those actionable per se. Moreover,
the award of only contemptuous damages may be material in deciding whether to allow
costs to the claimant.
(3) Distinguishing between general and special damages

These expressions have various meanings but the basic principle is this. General
damages are those damages that the law presumes to have resulted from the defendant’s
tort; special damages are awarded for a loss that will not be presumed. Thus, to avoid
injustice to the defendant, the claimant must give notice in his pleadings of, and
substantiate any claim for, ‘special damages’.'®The expenses incurred by the claimant
prior to the date of the hearing — eg, expenses for medical treatment in personal injury
cases — constitute special damages. In short, the substantial damage capable of
pecuniary assessment that must be proved in the case of all torts not actionable per se
is called “special damage’. All other heads of damage constitute general damage.
(4) Personal injuries

Detailed discussion of the principles governing compensation for personal injuries
and the relationship of those principles to other compensation systems is located in
the next chapter.
ai Cf Embrey v Owen (1851) 6 Exch 353, at 368, per Parke B.

8 [1944] KB 693.
9 And see post for general confirmation of this approach in Cassell & Co Ltd v Broome [1972]
INC MOHATE, Vellly,
10 See, eg, Domsalla v Barr [1969] 1 WLR 630, CA.
Remedies 579
(5) Damages and tax

If the award of damages is not subject to income tax and damages are calculated by
reference to income that would be taxable, then tax must be deducted in calculating the
damages. Tax, therefore, must be deducted in calculating loss of earnings,"' or, in
awarding damages in trespass, for loss of rent!? (rent is taxable but the damages are
not).
(6) ‘Parasitic’ damages

There is no general rule that simply because a particular head of damage is recoverable
in one tort, the same head of damage is recoverable in any other tort. In that sense,
English law does not recognise any principle of ‘parasitic’ damages." At the same
time, pecuniary loss may be recovered even though the tort is not concerned to protect
that pecuniary loss, and even though no other tort affords such protection; for example,
loss of hospitality may be recovered in slander.'* Consider Campbell v Paddington
Corpn where the facts were as follows."
A nuisance on the highway (stands erected by D for viewing a procession)
obstructed C’s house. C was thereby deprived of a view from his windows, and
suffered pecuniary loss through not being able to charge for the viewing of the
procession from the windows. Although the right to a view is not a tort-protected
interest, this pecuniary loss was held to be recoverable in the tort derived from
public nuisance.'°
(7) Aggravated and exemplary damages

The object of an award of damages in tort is normally to compensate the claimant for
what he has lost and/or suffered as a consequence of the tort. Nonetheless, in certain
torts an award of compensatory damages may take into account the motives and
conduct of the defendant where they aggravate the injury done to the claimant. There
may be malevolence or spite, or the manner of committing the wrong may be such as to
injure the claimant’s proper feelings of dignity and pride.'’ Such damages are traditionally
called ‘aggravated damages’ and they are said to be awarded in respect of conduct
11 British Transport Commission v Gourley [1956] AC 185, HL. For an assessment of the
Gourley principle see Burrows, at pp132-5.
12 Hall & Co Ltd v Pearlberg [1956] 1 All ER 297n. Gourley has also been applied to awards for
libel: Rubber Improvement Ltd v Daily Telegraph [1964] AC 234, HL.
13. Spartan Steel and Alloys Lid v Martin & Co (Contractors) Ltd [1973] QB 27, at 35, CA, per
Lord Denning MR.
14. Davies v Solomon (1871) LR 7 QB 112.
15 [1911] 1 KB 869. And see especially the clear statement of the principle by Lush J, at 879.
Followed in Owen v O’Connor [1964] NSWR 1312 (loss of sunlight).
16 Damages for loss of reputation have been held recoverable in replevin (Smith v Enright (1893)
63 LJQB 220), ahd conversion (Thurston v Charles (1905) 21 TLR 659); and it seems that a
wife can recover damages for loss of consortium in a negligence action (Lampert v Eastern
National Omnibus Co Ltd [1954] 2 All ER 719n) even though she has no action against a
person whose negligent conduct in relation to her husband deprives her of consortium. This
decision seems unaffected by the Administration of Justice Act 1982, s 2 but that section
prevents a husband from claiming damages for loss of his wife’s consortium.
17 Rookes v Barnard [1964] AC 1129, at 1221, HL.
which outrages the claimant. They have commonly been awarded in actions for
defamation and trespass, but they are also available in malicious falsehood.'* Their
availability in other torts has been restricted by the decision of the Court of Appeal in
Gibbons v South West Water Services Ltd.'’ There, striking out a claim for aggravated
damages in a claim for public nuisance and negligence by the victims of contaminated
water supplies, the Court of Appeal rejected the idea of aggravated damages in personal
injuries actions founded on negligence.” If as a result of the defendants’ tortious acts
the claimants suffered distress and anxiety, that injury fell to be compensated in the
award of compensatory damages. Should that distress be ‘magnified or exacerbated’
by the defendants’ conduct, that too would be reflected in the ordinary measure of
damages. But no further sum, over and above full compensation for what has been
suffered by the claimant, should be added to the compensatory damages to condemn
the defendants’ conduct. At that point, such an award ceases to be compensatory and
becomes punitive in function. In A B v South West Water Services Ltd, Sir Thomas
Bingham MR said this of aggravated damages in defamation:
I know of no precedent for awarding damages for indignation aroused by the
defendant’s conduct. Defamation cases in which a [claimant’s] damages are
increased by the defendant’s conduct of the litigation (as by aggressive
cross-examination of the [claimant] or persistence in a groundless plea of
justification) are not in my view a true exception, since injury to the [claimant’s]
feelings and self-esteem is an important part of the damage for which
compensation is awarded.”
From this dictum it appears that aggravated damages should not be seen as a distinct
class of damages but that they should be available if the ‘injury to the claimant’s
feelings and self-esteem’ are integral to the cause of action. Confirmation of this
interpretation was offered in Appleton v Garrett” where a dentist had subjected a
number of his patients to unnecessary and painful dental treatment. Dyson J held that
aggravated damages should be available since, in an action for trespass to the person,
the arousal of feelings of anger and indignation in the patients was a relevant head of
damage to be compensated.
By contrast, exemplary damages (which in theory turn upon conduct which outrages
the court) may be seen as an anomaly in the law of torts.”? Their object is to punish and
deter. The preponderance of opinion until relatively recently has been that exemplary
damages should be abolished.” Their continued existence, it is often argued, confuses
the functions of the civil and criminal law. The defendant is ‘punished’ without being
18 Khodaparast v Shad [2000] 1 All ER 545, CA.

19 [1993] QB 507, CA.
20 Kralj v McGrath [1986] 1 All ER 54, at 61 (claim arising out of mismanagement of childbirth).
21 [1993] 1 All ER 609, at 629, CA.
22 [1996] PIQR P1.
23 Despite the endorsement of exemplary damages in Kuddus v Chief Constable of Leicestershire
Constabulary [2001] UKHL 29, [2001] 3 All ER 193, HL, their Lordships nonetheless
expressly recognised their anomalous nature in tort.
24 See, inter alia, the proposals for abolition of exemplary damages in defamation in the Faulks
Report — Report of the Committee in Defamation Cmnd 5609 (1975). See also Law Commission
Consultation Paper No 132, Aggravated, Exemplary and Restitutionary Damages (1993) and
Law Commission Report, Exemplary, Aggravated and Restitutionary Damages Law Com No
247 (1997).
Remedies 58|
afforded the safeguards provided for accused persons in criminal proceedings. And
the claimant who benefits from the award of exemplary damages receives an unwarranted
windfall.* Those judges who defend exemplary damages, most notably Lord
Wilberforce,” stress that the objects of the law of tort have never been exclusively
compensatory. Tort retains a deterrent function and, most importantly, in relation to
the categories in which exemplary damages remain available, a role in reinforcing the
civil liberties of the individual.’
The practical problems in applying the present judge-made rules on exemplary awards
have led to considerable judicial disquiet.’* In Rookes v Barnard, Lord Devlin limited
exemplary damages awards to those categories of cases:
3 “Where the claimant has been the victim of oppressive, arbitrary or unconstitutional
action by servants of government’. The latter term embraces central and local
government and includes police officers” and prison officers guilty of misfeasance
in public office.*° Where unlawful conduct by a police’officer is proved, it is not
additionally necessary to prove that it was also arbitrary or oppressive.*! Public
utilities, such as the electricity and water companies, fall outside this category, as
do other privatised monopoly suppliers. Even though they are endowed with
statutory powers and obligations, they are not exercising executive functions.”
“Where the defendant’s conduct has been calculated by him to make a profit for
himself which may well exceed the compensation payable to the [claimant]’. Thus,
publishers who, as in Cassell & Co Ltd v Broome,* calculate that a libel may well
sell so many copies that they will still profit despite having to pay compensatory
damages to the victim may learn that ‘tort does not pay’.* In this context, it is
important to stress that ‘carelessness alone, however extreme, is not enough’
unless the inference may be drawn ‘that the publisher had no honest belief in the
truth of what he published’.*° Awards of exemplary damages are also commonly
made against landlords committing torts against tenants to drive them out of their
Ds For a powerful justification of exemplary damages in cases where either (a) the protected
interest can be protected by an injunction, or (b) the tort in question (whether intentional or
not) causes a fatality or (c) the tort in question is morally repugnant in that it generates a
benefit that, on moral grounds, ought to be disgorged, see Ogus, ‘Exemplary Damages and
Economic Analysis’ in Hawkins (ed), The Human Face of Law: Essays in Honour of Donald
Harris (1997)
See his forceful opinion in Cassell & Co Ltd v Broome [1972] AC 1027, HL.
This has been supplied by the decision in Lancashire County Council v Municipal Mutual
Insurance Ltd [1997] QB 897, CA (even exemplary damages may be claimed from the
tortfeasor’s insurers).
Consider the cri de coeur from Stephenson LJ in Riches v News Group Newspapers Ltd [1985]
2 All ER 845, at 850; endorsed by the Court of Appeal in AB v South West Water Services Ltd
[1993] 1 All ER 609, at 624. Cf Lancashire County Council v Municipal Mutual Insurance Ltd
[1997] QB 897, CA and Kuddus v Chief Constable of Leicestershire Constabulary [2001]
UKHL 29, [2001] 3 All ER 193.
Casssell & Co Ltd v Broome [1972] AC 1027, HL, at 1130; Thompson v Metropolitan Police
Comr [1998] QB 498, CA.
Racz v Home Office [1994] 2 WLR 23, HL.
Holden v Chief Constable of Lancashire [1987] QB 380, CA.
AB v South West Water Services Ltd [1993] 1 All ER 609, at 622 and 628, CA.
Supra.
ae could an action for unjust enrichment achieve the same laudable aim? Note also the limits
of this argument exposed in AB v South West Water Services Ltd, supra.
John v MGN Ltd [1996] 2 All ER 35, at 57, CA, per Sir Thomas Bingham MR.
property in order to profit from selling the property of letting it to someone else at
a higher rent.*°
3. ‘Where authorised by statute’.*’
What remained unclear from Lord Devlin’s purported restriction of exemplary awards
in Rookes v Barnard was whether the range of torts in which exemplary damages were
available was limited to those torts that had already recognised their availability at the
time Rookes v Barnard was decided. It was uncertain, in other words, whether exemplary
damages could be awarded, for example, against a producer cynically disregarding the
risk posed by a defective product,* or in torts designed to protect against the exploitation
of intellectual property rights.*° That uncertainty has now been removed as a matter of
English law by the decision of House of Lords in Kuddus v Chief Constable of
Leicestershire Constabulary.” There, it was held that so long as the conduct in question
fell into either of the first two of Lord Devlin’s categories, exemplary damages should
in principle be available.*! Lord Devlin had not attempted to confine the availability of
exemplary damages to fixed list of torts, nor were their Lordships in Kuddus prepared
to hold that such a restriction was implicit in what he had said.”
The later case of A v Bottrill,*’ concerning a pathologist’s negligent misreporting of
cervical smears, saw the Privy Council go a step further in principle.“ There it was
held (Lords Hutton and Millett dissenting) that when considering an award of exemplary
damages, the fundamental question was whether the defendant’s conduct met the
criterion of outrageous conduct. As such, awards of exemplary damages would not be
limited to cases in which the defendant had committed the tort intentionally or with
conscious recklessness. The fundamental rationale of exemplary damages, it was held,
was that the defendant was guilty of conduct that was unacceptable to society. It
followed that there was no especial need to draw a distinction between advertent and
inadvertent conduct (which in any event can be difficult to draw). On the other hand,
the point was made that cases in which it will be appropriate to make an award of
exemplary damages remain exceptional, and where the wrongdoing constitutes the tort
of negligence, the justification for such an award, in the absence of intentional
wrongdoing or conscious recklessness, would be very rare indeed.
(8) Mitigation of damage

This expression covers two separate rules in the law of torts.
36 Drane v Evangelou [1978] 2 All ER 437, CA.

37 See, eg, the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951, s 3(2).
38 See Owen, ‘Problems in Assessing Punitive Damages Against Manufacturers of Defective
Products’ (1982) 49 University of Chicago Law Review 1.
39 Morton-Norwich Products Inc v Intercen Ltd (No 2) [1981] FSR 337 (yes); Catnic Components
Ltd v Hill & Smith Ltd [1983] FSR 512 (no).
40 [2001] UKHL 29, [2001] 3 All ER 193.
41 Lord Nicholls’ speech hints at the appropriateness of an even more expansive approach (based
on outrageous conduct) than that laid down by Lord Devlin: [2001] UKHL 29, at [66]-[67],
[2001] 3 All ER 193, at [66]-[67], HL. This approach was advocated more strongly still by his
Lordship in the later Privy Council case of A v Bottrill [2002] UKPC 44, [2002] 3 WLR 1406.
42 Cf the suggestion to this effect in AB v South West Water Services Ltd [1993] 1 All ER 609, CA.
43 [2002] UKPC 44, [2002] 3 WLR 1406.
44 In the instant case, the Court of Appeal had erred in concluding that the fresh evidence relied
on by C was irrelevant, and a retrial was ordered.
Remedies 583
1 There is the situation which is the converse of the circumstances in which

aggravated damages may be awarded — evidence may be given of circumstances
which justify a lesser award of damages at large.*° For example, damages in
defamation will be reduced where C has provoked D.“°
N The discussion of causation showed that it is the policy of the law not to allow C
to recover to the extent to which he has brought the loss upon himself by his own
act.*’ Similarly, where C is negligent after the commission of the tort against him,
he cannot recover further damages caused by that carelessness. The F.lying Fish*®
illustrates the point.
C’s ship was damaged by the negligence of those in charge of D’s vessel.
C’s captain showed want of nautical skill in that he refused aid after the
collision. In consequence of this negligent refusal, the ship was destroyed.
C was able to recover the damage caused by the collision but not that
additional damage accruing when the ship was destroyed by the negligence
of the captain.
In short, contributory negligence is concerned with negligence of the claimant before

the cause of action has matured by the occurrence of some damage. After damage has
occurred and an action in tort is vested in the claimant, he has a duty to take care to
mitigate his loss. So an injured claimant should generally seek medical attention. Where
a claimant refuses treatment or surgery that could have lessened the consequences of
his injury, the onus lies on the defendant to prove that his refusal was unreasonable.”
Even if the claimant shows that the refusal of treatment is presently reasonable, there
may still be a discount if it can be shown that there is a chance both (a) that the
claimant will accept the treatment in the longer term and (b) that the treatment might
succeed.*°
The distinction between avoidable and unavoidable consequences is important since
the Law Reform (Contributory Negligence) Act 1945 does not extend to avoidable
consequences of a tort.*!
45 Peruvian Guano Co Ltd v Dreyfus Bros & Co [1892] AC 166, at 174, HL, per Lord Macnaghten;
Drane v Evangelou [1978] 2 All ER 437, CA.
46 Moore v Oastler (1836) 1 Mood & R 451n.
47 See ch 14. In Dodd Properties Ltd v Canterbury City Council [1980] 1 All ER 928, CA C’s
premises were damaged in 1970, but when he repaired them in 1978 the cost of repairs was
much greater. He was allowed the 1978 repair costs on the ground that, in deciding what it was
reasonable for C to do in mitigation, it was relevant to ask whether C could afford to repair
sooner (distinguishing Liesbosch Dredger v SS Edison [1933] AC 449, HL); Perry v Sidney
Phillips & Son [1982] 3 All ER 705, CA (also distinguishing Liesbosch Dredger v SS Edison in
the same way).
48 (1865) 2 Moo PCCNS 77.
49 Geest ple v Lansiquot [2002] UKPC 48, at [14], PC. Note that a woman’s refusal of an
abortion after Ds’ negligence resulted in an unplanned pregnancy did not constitute an
unreasonable failure to mitigate damages: Emeh v Kensington and Chelsea and Westminster
Area Health Authority [1985] QB 1012, CA.
50 Thomas v Bath District Health Authority [1995] PIQR Q19, CA. )
51 The Law Reform (Contributory Negligence) Act 1945 applies if C’s negligence before the
accident increased the harm even though it did not contribute to the accident: Froom v
Butcher [1976] QB 286, CA (C was a passenger not wearing a seat belt).
584 Remedies and patties
Where the claimant does take reasonable steps to minimrse the consequences of the
defendant’s tort, he can recover for the harm sustained by him in consequence of his
action” or expenses thereby incurred, regardless of whether his total loss would
have been less had he not acted at all. Thus, in Rogers v Austin™ it was held to be
reasonable to hire a replacement car at above the market rate for such a vehicle where
the basis of the hire agreement was that no hire payment would be required of the
claimant until completion of her legal proceedings against the defendant.
(9) Successive actions on the same facts

The difficulties presented by this topic are of the same character as those arising from
the undefined stand of English law with regard to parasitic damages. The following
principles may be gleaned from the decided cases.
The guiding rule can be stated shortly (the difficulty is in defining its terms). If one and
the same act produces two different heads of damage, but does not give rise to two
separate causes of action, the claimant cannot bring successive actions but must
recover in respect of all his damage in the first proceedings. The policy is to avoid
excessive litigation. The leading case is Fitter v Veal.°°
C recovered £11 damages from D for assault and battery. Some years later, C
discovered that his injuries were much more serious than he had at first thought,
and he underwent a surgical operation for removal of part of his skull. He was
held unable to recover any damages in a second action for his additional injuries.
(A) VIOLATION OF TWO RIGHTS SEPARATELY PROTECTED

Ifa single act violates two rights which are accorded separate protection by the law of
torts, then there are two separate causes of action, the pursuit of one of which will not
necessarily bar proceedings in respect of the other.°° In Brunsden v Humphrey*’ the
facts were as follows:
A cab driven by C collided with D’s van through the negligent driving of D’s
servant. In county court proceedings, C recovered compensation for the damage
to his cab. He then brought a second action in the High Court for personal
52 The Oropesa [1943] P 32, CA.

53 Kirkham v Boughey [1958] 2 QB 338.
545 [1 997IICLY 1791.
55 (1701) 12 Mod Rep 542.
56 But note that it may be regarded an abuse of process to return to court raising issues that might
have been raised against the same wrongdoer in earlier proceedings: see, eg, Talbot v Berkshire
County Council [1994] QB 290, CA and Bradford and Bingley Building Society v Seddon
[1999] 4 All ER 217, CA. If it is such an abuse, the second claim will be struck out. In some
circumstances, this approach may be thought extremely harsh. Thus, in Wain v F Sherwood &
Sons Transport Ltd [1999] PIQR P159, CA, the rule operated to prevent a second action
worth £100,000 being brought in respect of a back injury that had not been sued for in the first
action due to the negligence of C’s (then immune) counsel. Happily, the House of Lords has
adopted a more relaxed approach to this rule in more recent times: Johnson v Gore Wood & Co
[2001] 2 WLR 72, HL. See also Toth v Ledger [2002] PIQR Pl, CA.
57 (1884) 14 QBD 141, CA. Brunsden v Humphrey was accepted as correct in O'Sullivan v
Williams [1992] 3 All ER 385, at 388, CA and Barrow v Bankside Members Agency Ltd [1995]
2 Lloyd’s Rep 472, CA.
Remedies 585
injuries sustained by him in the same collision, and the Court of Appeal held that
this action was not barred by the earlier one.
The interest in bodily security is separate from that in one’s goods — hence there were
two separate causes of action.** Likewise, the following interests are distinct for present
purposes: interests in land, in reputation, in freedom of the person and freedom from
excessive litigation (ie, malicious prosecution).°° Where a single act caused a shortened
expectation of life and damaged goods, two actions lay.® On the other hand, the
interest in length of life and in freedom from pain are deemed to be subsumed under the
one interest, namely that in bodily security. Accordingly, only one action may be
brought.°!
(B) CONSEQUENTIAL DAMAGE WHERE TWO TORTS PROTECT THE SAME INTEREST
If the primary purpose of two different torts is to protect-the same interest, merely
consequential damage that could have been recovered in proceedings for the first tort
cannot be claimed in an action on the second tort. Gibbs v Cruikshank® makes this
clear.
D executed an illegal distress on C’s land. In an action of replevin, C recovered

the goods and the replevin expenses. This action did not preclude a subsequent
suit in trespass to land, but did preclude a later action in trespass to goods for
consequential business loss, for both replevin and trespass to goods primarily
protect one’s interest in goods and, parasitically, one’s business interests.
It would seem that if the chief purpose of the second tort is to protect an interest
different from that primarily protected by the first, then damages for the violation of the
main interest protected by the second tort can be recovered in proceedings for the
second tort even though those damages could have been recovered consequentially
in the first action.® If, as is supposed, damages for interference with land are recoverable
in replevin, Gibbs v Cruikshank would be authority for this.’ Suppose, for instance,
that X took from Z letters which were in Z’s possession and which were defamatory of
Z, and gave them to Y. Suppose further that in proceedings in conversion against X, Z
recovered damages for his loss of the letters gua goods, but did not claim or recover
(as he could by way of consequential damages®) damages for loss of reputation — it is
58 But does a man have distinct interests in, say, a leg, and an arm? Coleridge CJ, dissenting in
Brunsden v Humphrey, said that was the logical consequence of the decision in the case, but
one of the judges who constituted the majority subsequently said that the case ‘is no authority
for holding that if there be an actionable injury to the person one action may be brought for
injury to one part of the body and another action for injury to another part’: MacDougall v
Knight (1890) 25 QBD 1 at 8, CA, per Lord Esher MR. Note also the power to strike out an
unreasonable claim as an abuse of process: The Indian Grace [1992] | Lloyd’s Rep 124, CA.
59 Guest v Warren (1854) 9 Exch 379. And see Ash v Hutchinson & Co (Publishers) Ltd [1936]
Ch 489, CA, for a further addition to the list.
60 The Oropesa [1943] P 32, CA.
61 Derrick v Williams [1939] 2 All ER 559, CA. Cf Chant v Read [1939] 2 KB 346.
62 (1873) LR 8 CP 454.
63 So if D causes subsidence on C’s land, C may not claim for later depreciation in the value of the
land although he can claim for the cost of remedial work that will help to prevent further loss:
Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321.
64 See also Guest v Warren (1854) 9 Exch 379.
65 See Thurston v Charles (1905) 21 TLR 659.
submitted that he would be able to bring a further action for defamation against X
(because defamation protects the interest in reputation which is a different interest
from that covered by conversion).
(c) Successive ACTS

Successive actions are barred only in respect of one and the same act. If, then, A
assaults B today and again tomorrow, two actions lie. Should A, however, in one and
the same fight break B’s nose and knock out some of his teeth, then B has only one
cause of action. In less straightforward cases, one must look to the pleadings of the
first action to discover whether the facts there relied on do or do not include those later
complained of.
(D) ONE TORTIOUS ACT CAUSING DAMAGE ON DIFFERENT OCCASIONS
Sometimes, a single act may cause the same damage over and over again. If X digs a
hole in Y’s land, Y’s cattle may fall into it and suffer injury both before and after Y has
sued X for trespass to land. There is, however, only one act of a tortious nature —
digging the hole. It follows, therefore, that only one suit in trespass to land can be
brought. If, on the other hand, A throws an object on B’s land and B recovers in
trespass to land, and thereafter B’s cattle stumble over it and are injured, B can bring a
second action, for leaving an object on the land of another is an act of trespass in itself,
separate from the earlier trespass constituted by throwing the object on to the land.°°
(B) Account of profits

Sometimes it is more advantageous for the claimant to seek an account of the
defendant’s profits resulting from the tort rather than to claim damages. Frequently,
the victim of a tort such as passing off will obtain an injunction and an account of the
defendant’s profits, but the remedy is not confined to these torts.
(C) Injunctions
(1) As a remedy per se, or as an addition to damages

A remedy in damages alone may sometimes be inappropriate or insufficient to vindicate
the claimant’s rights. Where there is a risk a tort may be repeated, what the claimant
wants is an order to prohibit that repetition — that is, an injunction. Injunctions are a
critical remedy in many tort claims, but they will be dealt with only briefly here.
There are two kinds of injunctions, viz, prohibitory and mandatory. A prohibitory
injunction may, for example, be issued against someone who has committed a trespass
or a nuisance so that he will be restrained from committing or repeating the act. A
mandatory injunction, by contrast, requires the defendant to undertake a positive act
66 In principle, the same rules should apply to torts not actionable per se. In Maberley v Henry W
Peabody & Co London Ltd [1946] 2 All ER 192 it was held that where two separate torts are
committed, two successive actions may be brought.
Remedies 587
to put an end to a state of affairs amounting to a tort. For example, a mandatory

injunction may require him to pull down a wall which interferes with the claimant’s right
to light.
Where an injunction is granted before the trial of an action, pending that fuller
investigation into the case that will take place at the trial, to prevent the commission or
continuance of an act alleged to be tortious, it is called an interim injunction. Such an
injunction is commonly applied for in respect of alleged economic torts — such as
interference with contract — where the claimant contends that the state of affairs resulting
from the defendant’s act is so serious that the defendant ought not to be allowed to
continue to create that state of affairs pending the hearing.
At one level, the granting of an interim injunction might seem to be a prejudgment of

the case because it is, of course, a remedy granted to a claimant who has yet to prove
that he has had his legal right infringed by the defendant. This begs the question of
whether such injunctions should, in justice, ever be granted. So far as the courts are
concerned, the matter is clear: there is no offence caused in considering the respective
strength of both parties cases and, if the claimant has a strong prima facie case, in
granting such orders.°’ Where, however, such an injunction would effectively ruin the
defendant’s livelihood, the courts will be loath to grant such an order without a hearing
having taken place.®
A further restriction on the availability of interim injunctions operates in the field of
breach of confidence and is to be found in s 12 of the Human Rights Act 1998. There it
is provided that no such injunction should be granted if it is likely to restrict freedom
of expression unless the court is satisfied that the applicant is likely to establish that
the publication in question should not be permitted.”
Two highly important forms of the interim injunction are the Anton Piller order and the
Mareva injunction. An Anton Piller order” is a mandatory injunction which requires
the defendant to allow the claimant entry to premises to search for property infringing
the claimant’s rights, or documents relevant to his claim. In actions for breach of
intellectual property rights, such orders are crucial to ensure the defendant cannot
destroy incriminating documents prior to the trial of the action. A Mareva injunction
prohibits the defendant from moving his assets abroad or from disposing of assets
within the jurisdiction.”' Thus, the claimant ensures that if he obtains judgment against
the defendant, there will be property in England against which to enforce that judgment.
Both Anton Piller orders and Mareva Injunctions are draconian measures” and claimants
will always be required to justify their claim for such interim injunctions and to give
undertakings to return property seized and compensate the defendants should their
suit ultimately fail.
67 Series 5 Software Lid v Clarke [1996] 1 All ER 853.

68 Series 5 Software Ltd v Clarke [1996] | All ER 853.
69 See Douglas v Hello! Ltd [2001] QB 967, CA.
70 Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55, CA.
71. Mareva Cia Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd’s Rep 509, CA. See
also Practice Direction [1997] 1 All ER 288.
72 See Columbia Pictures Industries Inc v Robinson (1987] Ch 38.
A perpetual injunction is a final one, issued after the hearirig of the action. A quia timet
injunction may be issued to restrain a tort which has not yet been committed, but
commission of which is threatened, so long as substantial damage is very probable
and imminent.”
The jurisdiction of the High Court” to grant injunctions is discretionary. An interim
injunction may be granted even though the claimant has not made out a prima facie
case. Provided there is a ‘serious question’, the court decides on the balance of
convenience.’”> The courts exercise sparingly their discretion to grant mandatory
injunctions, and will refuse unless very serious damage would otherwise occur.’”° A
prohibitory injunction will be granted to a claimant on proof that the wrongful act is
continuing, unless special circumstances exist.’’ An injunction will not be refused
because it is against the public interest to restrain the activity; the courts are reluctant
to leave the victim of a serious interference with merely a remedy in damages.”* The
most that the courts are willing to do to mitigate the consequences of their granting
these injunctions as a matter of course is occasionally to suspend the coming into
force of the injunction for a short period,” or to impose time restrictions on the
injunction.*°
(2) Injunctions where an action in tort does not lie

One final matter that should be noted is whether, even if all the elements of a tort
required for an action in damages are not made out, an injunction may still be granted
to protect the claimant’s interest. In general the answer must be ‘no’. So if the defendant
successfully mounts a campaign of persecution against the claimant avoiding any
73 Lemos v Kennedy Leigh Development Co Ltd (1961) 105 Sol Jo 178.

74 Supreme Court Act 1981, s 37(1).
75 American Cyanamid Co v Ethicon Ltd [1975] AC 396, HL. Lord Diplock enumerated at
length the factors to be weighed in deciding where the balance of convenience lay. See also
Garden Cottage Foods Ltd v Milk Marketing Board [1982] QB 1114, CA where Sir John
Donaldson MR preferred the phrase ‘balance ofjustice’. It is clear that public policy
considerations enter the equation and not simply factors relating to the convenience of the
parties: Department of Social Security v Butler [1995] 1 WLR 1528, CA.
76 Redland Bricks Ltd v Morris [1970] AC 652, HL, where detailed rules governing the exercise
of this discretion are set out. And see Locobail International Finance Ltd v Agroexport [1986]
1 All ER 901, CA. Cf Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER
WD.
77 Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149,
CA.
78 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, CA. There have been recent
attempts to extend the situations where C will be left to his remedy in damages, especially
Miller v Jackson [1977] QB 966, CA. But the later case of Kennaway v Thompson [1981] QB
88, CA held the Shel/fer case to be binding, applied its rules strictly, refused to consider the
public interest and held Miller v Jackson not to be binding.
79 In Woollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 All ER 483, Ds (building contractors)
operated a crane in Cs’ air space. The court suspended the injunction until Ds completed the
building, because Cs had refused reasonable compensation and the air space had become valuable
only because of Ds’ activities. In Charrington v Simons & Co Ltd [1971] 2 All ER 588, CA, the
soundness of that decision concerning the injunction was left open by the court and in John
Trenberth Ltd v National Westminster Bank Ltd (1979) 253 Estates Gazette 151, the court held
that the Woollerton case was wrongly decided and refused to follow it.
80 Eg, Dunton v Dover District Council (1977) 76 LGR 87, CA (the use of a playground was
confined to children under 12, and between 10am and 6.30pm).
Remedies 589
actually tortious conduct, she cannot be granted an injunction against him.*! But the
courts have occasionally granted injunctions to protect title to property, even where
no tort is established.*?
Examples need not be confined to economic interests. In Gee v Pritchard,® the claimant
obtained an injunction to prevent the defendant from disclosing confidential and
private material contained in letters (which had already been returned to the claimant,
but of which the defendant had kept copies) written by the claimant to the defendant
— because, said the court, an injunction lies to protect the claimant’s right of property
in the letters. English tort law does not protect privacy as such,** but it is interesting
that this English case has been the cornerstone of the development in the US of the
tort of infringement of privacy.
Until 1982 it seemed that the injunction was available to protect victims of criminal
violations of statutes even though no action for breach of statutory duty lay. We saw
earlier how RCA Corpn v Pollard® has ruled against the availability of injunctions in
such cases.*°
The possibility of an injunction, even though no tort has been committed, is doubly
important when it is noted that Lord Cairns’ Act of 1858 enables the court to grant
damages in addition to, or in substitution for, an injunction.*’
Section 3. Tort and contract

For a time, the Court of Appeal, in a series of decisions,** gave support to dicta by Lord
Scarman in Jai Hing Cotton Mills Ltd v Liu Chong Hing Bank Ltd® to the effect that
where the relationship between two parties is contractual, no concurrent duty should
lie in tort. Yet it has since been authoritatively determined that concurrent duties in
contract and tort may in fact lie.’ Furthermore, the claimant is at complete liberty to
choose whichever cause of action he thinks will be most advantageous to him.”' That
choice may be crucial for the following reasons:
1 Causes of action for liquidated damages may perhaps be assignable if they lie in
contract,” but not if they lie in tort.
81 See Burnett v George [1993] 1 FCR 1012, CA.
82 See Loudon v Ryder (No 2) [1953] Ch 423; Springhead Spinning Co v Riley (1868) LR 6 Eq
Sieully
83 (1818) 2 Swan 402. In Savoy Hotel plc v BBC (1982) Times, 28 December the BBC filmed a
barman in the Savoy bar allegedly giving short measure. Because this was without permission,
the court granted an interim injunction forbidding the televising of the film.
84 But it is moving swiftly in this direction, see ch 1.
85 [1983] Ch 135, CA and holding that Ex p Island Records Ltd [1978] Ch 122, CA was overruled
by Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173, HL.
86 See Ch 21.
87 Now the Supreme Court Act 1981, s 50. For judicial discussion of the provision, see Marcic v
Thames Water Utilities Ltd (No 2) [2001] 4 All ER 326.
88 National Bank of Greece SA v Pinios Shipping Co [1990] 1 AC 637, HL, Lee v Thompson
(1989) 2 PN 91; Johnstone v Bloomsbury Area Health Authority [1992] QB 333, CA.
89 [1985] 2 All ER 947, at 957, PC.
90 Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, HL
91 [1995] 2 AC 145, at 194, HL, per Lord Goff.
92 County Hotel and Wine Co Ltd v London and North Western Rly Co [1918] 2 KB 251, at 258,
per McCardie J, not considered on appeal when affirmed on other grounds: [1919] 2 KB 29,
CA, [1921] 1 AC 85, HL.
2 Although C may not freely evade the contractual immunities of minors and mentally
disordered persons by suing in tort, in some circumstances he can sue them for
torts committed in the course of a contractual relationship.”
3 There are circumstances in which an action in contract will give greater damages
than one under the Fatal Accidents Acts.** Although the Fatal Accidents Acts
may perhaps bind the Crown in tort proceedings, they do not bind the Crown in
contract actions (to which they also extend).
4 The Crown is answerable in tort for the acts of a restricted class of ‘servants’.”°
That restricted definition does not apply to actions against the Crown for breaches
of contracts made by servants of the Crown.
5 Trade unions are partially immune from tortious liability but are fully liable for
breaches of contract.”°
6 Most importantly, the rules relating to limitation of actions differ depending on
whether C sues in contract or tort. In contract, time starts to run from the date of
the breach of contract; in negligence it runs only from the date damage was
suffered, or the date when C had the necessary knowledge of the facts to sue, if
that be later. The claimant-friendly provisions of the Latent Damage Act 1986 do
not apply to an action for breach of a contractual duty of care.*’ But note that the
availability of the defence of contributory negligence no longer depends on which
remedy C seeks where the essence of the claim is breach of a duty of care rather
than of a strict contractual obligation.”
(A) Tort and unjust enrichment”
(1) Election of remedies

It has been held that, in appropriate circumstances, a claimant has the choice of suing
either in tort or in the law of unjust enrichment.'” For example, if the defendant wrongfully
takes the claimant’s goods and sells them, the claimant is said to have the choice of
suing in conversion or bringing an action for restitution of an unjust enrichment for
the price received by the defendant. It is not proposed here to examine the intricacies
of the law of unjust enrichment (which would be necessary if every possible circumstance
giving rise to both tortious and restitutionary remedies were to be considered).'"' It
suffices to note two things: first, that the torts in which such an election is likely to
arise are conversion,'” trespass to goods,'*’ trespass to land by removing minerals,'“
OBmesceicuo:
94 Sellars v Best [1954] 2 All ER 389.
95 Crown Proceedings Act 1947, s 2.
96 See post.
97 Iron Trades Mutual Insurance Co Ltd v J K Buckenham Ltd [1990] 1 All ER 808, CA.
98 Forsikringsaktieselskapet Vesta v Butcher, supra.
99 See Edelman, Gain-Based Damages: Contract, Tort, Equity and Intellectual Property (2002)
ch 4; Cane, The Anatomy of Tort Law (1997) ch 5
100 A-G v Blake [2001] 1 AC 268, at 280, HL, per Lord Nicholls.
101 On this, see Edelman.
102 Lamine v Dorrell (1705) 2 Ld Raym 1216; Thomas v Whip (1715) cited in 1 Burr 458.
103 Oughton v Seppings (1830) 1 B & Ad 241; Rodgers v Maw (1846) 15 M & W 444; Neate v
Harding (1851) 6 Exch 349.
104 Powell v Rees (1837) 7 Ad & El 426.
Remedies 59\|
and deceit;'®° and secondly, that it is questionable whether in juridical terms there is a
straightforward election between a compensatory remedy (in tort) and a restitutionary
remedy (based on the defendant’s unjust enrichment). In conversion cases, the loss
suffered by the defendant will frequently coincide exactly with the gain made by the
defendant. Imagine A steals B’s watch and sells it for the market value of £60. If B sues
on the basis of A’s gain he will receive just the same amount as if he sues on the basis
of his own loss. But if B sues on the former basis, this does not ipso facto render the
damages received restitutionary in nature. In as much as B suffered a loss, and in so far
as the damages he receives perform corrective justice, they may perfectly well be
viewed as compensatory in nature.!°
This election by the claimant to sue for ‘restitution’ has sometimes been erroneously
described as a ‘waiver’ of the tort. The claimant does not ‘waive’ the tort if he elects to
sue for restitution.'*’ He is free at any time before he has signed judgment to abandon
his restitutionary claim and pursue, instead, a remedy in tort. Equally, his suit in unjust
enrichment will not bar proceedings in tort on the same facts against another wrongdoer
unless the claimant has not merely obtained judgment but has also had satisfaction of
it. It is true that ifhe signs judgment in unjust enrichment, his claim in tort against that
defendant is barred,'® but that is merely an illustration of the rule that where the
claimant has succeeded in one cause of action he has no further cause of action,
howsoever framed, in respect of that very same interest for which the first cause of
action lay.
These rules are clearly illustrated by the leading case of United Australia Ltd v Barclays
Bank Ltd.'°
A cheque payable to Cs was wrongfully endorsed by M & Co, presented by M
& Co for payment to, and collected for it by, Ds (its bankers). Cs discontinued an
unjust enrichment action against M & Co for money had and received without
obtaining final judgment. Cs then sued Ds for conversion of the cheque. The
House of Lords held that Cs could not be said to have ‘waived’ their right to sue
Ds by having instituted proceedings against M & Co — nothing less than
satisfaction of a judgment in the first proceedings would have barred this action
in tort for the same damage. Cs, therefore, were not precluded from bringing the
present action in tort.
105 Hill v Perrott (1810) 3 Taunt 274; Mahesan S/O Thambiah v Malaysian Government Officers’
Co-operative Housing Society [1979] AC 374, PC. 2
106 This argument is explored more fully in Giglio, Theoretical & Comparative Issues in Restitution
for Wrongs (unpublished D Phil, 2003)
Hedley, ‘The Myth of Waiver of Tort’ (1984) 100 LQR 653; Edelman, p 124. And see
107
Maheson S/O Thambiah v Malaysian Government Officers’ Co-operative Housing Society
[1979] AC 374, PC, where the court also held that a principal whose agent had received a bribe
could either sue for deceit or recover the bribe in unjust enrichment, but that he could not be
compensated twice over.
108 United Australia Ltd v Barclays Bank Ltd [1941] AC 1, at 30, HL, per Lord Atkin.
109 [1941] AC 1, HL.
(2) Advantages of proceedings in tort or unjust enrichments

The crucial difference between proceeding on the basis of normal tort principles and
suing for the restitutignary remedy lies in the different measure of damages.''° For
example, if A converts B’s watch valued at £10, a suit in conversion will allow B to
recover £10. But if A sells it to C for £15, B can recover £15 in unjust enrichment as
money had and received by A. Some of the differences between contract and tort
mentioned in the previous section are also relevant here: eg, the disabling effect of
infancy or insanity''' and the operation of the Crown Proceedings Act 1947 in relation
to tort actions. Finally, if X makes use of Y’s land without causing any tangible harm to
that land, a restitutionary remedy based on a fair rental value, will be available.'!”
110 In Universe Tankships Inc of Monrovia v International Transport Workers’ Federation [1983]
1 AC 366, the House of Lords held that by bringing an action in restitution (instead of inducing
breach of contract) against a trade union, the immunity of trade unions under s 13 of the Trade
Union and Labour Relations Act 1974 was evaded by C.
111 See Morriss v Marsden [1952] 1 All ER 925, at 927, per Stable J.
112 A-G v Blake [2001] 1 AC 268, at 279, per Lord Nicholls.
CHAPTER 27
Compensation for personal injuries and

associated losses
The function and the anomalies of tort law as a system of loss distribution in society
are well illustrated when we consider the overall provision made for compensation of
personal injuries today.' The victim’s financial future turns on whether he is successful
in establishing that his injuries are someone else’s ‘fault’; essentially, that a tort was
committed. Should he succeed, he and his family will receive a level of compensation,
which, while its method of assessment may be criticised, will help to meet his material
needs and will far exceed the total of social welfare benefits available to an equally
severely injured person unable to prove ‘fault’? on the part of another.
Consider this rough example. No liability is accepted for the accuracy of the figures! X,
Y and Z all aged 25 suffer severe brain damage rendering them incapable of continuing
paid employment. X’s accident happens when he is swimming in a cold lake. He gets
into difficulties and by the time he is rescued from drowning and resuscitated, the
brain damage inflicted by lack of oxygen is irreversible. Y suffers brain damage in the
course of surgery to remove his appendix. Proceedings are started on his behalf but
allegations of negligence against the hospital are not substantiated. Z’s injuries are
inflicted in a road accident for which the driver of the other car accepts liability. All
three victims, before their misfortunes, were earning £13,000 a year.
Providing X and Y are successful in obtaining the maximum available social security
benefits they may hope for a basic weekly income of £151.55.° A further £43.15* may
also be paid to a relative caring for them. They may also be able to apply for housing
benefit, for help from the local authority in converting living accommodation and for
some financial help with invalid aids. Z, the only victim to benefit from the torts system,
can realistically expect an award of damages of, at the most conservative estimate,
1 For full treatment of the topics treated briefly here, see Cane, Atiyah’s Accidents Compensation
and the Law (1999) (hereafter Atiyah).
Z For an indictment of the ‘fault’ principle see Atiyah pp 145-164.
3 At April 2003-4 rates. Basic incapacity allowance £54.40; disability living allowance £97.15
(care component £57.20; mobility component £39.95).
4 Invalid care allowance.
£394,000 providing him with an approximate weekly income,’° once invested, of about
£3718.
How can the discrepancy be justified? In the case of X, is it that his accident was his
own ‘fault’ and that he took the risk upon himself? What about Y? Anaesthesia is a
dangerous enterprise. Risk cannot be entirely eliminated however careful doctors are.
Does Y have to accept the risk to attain the benefit of the surgery? After all, X and Y
could have insured themselves against their respective injuries. But then so could Z
and, as we shall see later, if he has done so he will receive his insurance monies in
addition to his award of damages. They will not be set off against that award.
Consideration of the discrepancies in compensation for personal injuries forces us to

reconsider the operation of the ‘fault’ system and torts.* Is the deterrent function of
the law of torts more fundamental to the continuance of torts than was first suggested??
After all, if there is no moral imperative explaining why Z should be so much better off
than X and Y, are there good moral and/or economic grounds, why the negligent
tortfeasor who injured Z should be made to pay for that injury?'® We shall see that the
debate on compensating personal injuries has raged for nearly three decades but that
proposals for replacing torts relating to personal injuries by a comprehensive social
welfare system have gained virtually no ground in the UK even though they have
been implemented in New Zealand,'' and partially implemented elsewhere in the
Commonwealth.” The overall context of compensation for personal injuries must be
borne in mind as we examine the intricacies of the rules for assessment of damages for
victims able to prove the commission of a tort.
Section 2. Awards of damages to living claimants

It must not be forgotten that the overwhelming majority of claims for damages for
personal injuries never come to court.'? Furthermore, save for one very limited
exception,'* damages can at present only be awarded on a once and for all basis. This
results in less than perfect rules on how damages should be assessed. Predictability
often comes at the expense of individual justice. Lord Diplock explained the traditional
approach towards damages for personal injuries in Wright v British Railways Board.
5 Made up as follows: loss of earnings £133,840 (multiplicand £9,560: multiplier 14); pain and
suffering and loss of amenity £50,000; cost of future care £150,000; provision for holidays
and mobility £30,000; alterations to house £30,000.
a Invested at 5%. See Auty v National Coal Board [1985] 1 All ER 930, CA.
7 Of course not all the capital sum will be invested. A proportion will be used for immediate needs
such as conversion of accommodation, special wheelchairs etc. However, where these are
specific needs their cost will generally be added to the total damages award: see, eg, the
computations in Housecroft v Burnett [1986] 1 All ER 332, at 334, CA.
8 See Stapleton, ‘Tort, Insurance and Ideology’ (1995) 58 MLR 820.
9 See the Report of the Royal Commission on Civil Liability and Compensation for Personal
Injury (Cmnd 7054-1) (hereafter Pearson Report) paras 1716-7.
10 See Calabresi, The Cost of Accidents (1970).
11 See Atiyah ch 19. But note that the New Zealand system had to be revised for reasons of cost.
12 Eg, Australia.
13 See Atiyah ch 8; Genn, Hard Bargaining (1987) and Genn, Compensation and Support for
Illness and Injury (1984).
14 Where a provisional award may be made enabling C to re-apply for further damages if a risk of
further damage (eg, epilepsy) does in fact materialise: see the Supreme Court Act 1981, s 32A.
Compensation for personal injuries and associated losses 595
[C]laims for damages in respect of personal injuries constitute a high proportion

of civil actions that are started in the courts in this country. If all of them proceeded
to trial the administration of civil justice would break down; what prevents this
is that a high proportion of them are settled before they reach the expensive and
time-consuming stage of trial, and an even higher proportion of claims, particularly
the less serious ones, are settled before the stage is reached of issuing and
serving a writ. This is only possible if there is some reasonable degree of
predictability about the sum of money that would be likely to be recovered if the
action proceeded to trial and the [claimant] succeeded in establishing liability.
The principal characteristic of actions for personal injuries that militate against
predictability as to the sum recoverable are, first, that the English legal system
requires that any judgment for tort damages, not being a continuing tort, shall be
for one lump sum to compensate for all loss sustained by the [claimant] in
consequence of the defendant’s tortious act whether such loss be economic or
non-economic, and whether it has been sustained during the period prior to the
judgment or is expected to be sustained thereafter. The second characteristic is
that non-economic loss constitutes a major item in the damages. Such loss is not
susceptible of measurement in money. Any figure at which the assessor of
damages arrives cannot be other than artificial and, if the aim is that justice
meted out to all litigants should be even-handed instead of depending on
idiosyncrasies of the assessor, whether jury or judge, the figure must be ‘basically
a conventional figure derived from experience and from awards in comparable
CASES 7.
The practice of awarding damages in a once and for all lump sum has attracted
increasingly vociferous criticism in recent years. The whole process sometimes appears
to consist of little more than judicial ‘guesstimates’. How long would the claimant live?
Would she develop epilepsy in five years’ time? Lump sums can never of their nature
provide comprehensively and accurately for all such contingencies. A claimant whose
medical prognosis is over-pessimistic may gain a bonus, and vice versa. That factor
may of itself lead accident victims awaiting trial or settlement of their claim to put off
rehabilitation: the worse one is when the award is made, the more compensation one
will receive. Moreover, with a lump sum award, there is the additional risk that the fund
provided by the award may be dissipated unwisely by the claimant or his family.
Periodic payments that could be adjusted over time to meet the claimant’s needs were
perceived, in certain cases, as a more effective and just compensation mechanism.
More recently, the provision of flexible periodic payments to severely injured claimants
has become possible through the medium of the structured settlement.'° The complexity
of the structured settlement would require a chapter of its own to do the topic full
justice. Yet the basic pattern of such a settlement is relatively simple. '7 The defendant’s
liability insurers make an immediate payment to cover losses already incurred'®
(sometimes termed the ‘upfront monies’). They then use the balance of the award due
15 [1983] 2 AC 773, at 776-8, HL. rr

Act 1996, s 2. For a statutory definition of a structured settlement, see
16 See the Damages
Damages Act 1996, s 5. ,
17. See Lewis, ‘Pensions Replace Lump Sum Damages’ (1988) J Law Soc 392; Allen, ‘Structured
Settlements’ (1988) 104 LQR 448.
18 Eg, loss of income and medical expenses up to the trial and past pain and suffering.
596 Remedies and patties
to the claimant to purchase a package of annuities from 4 life assurance company to

provide a flexible income for the claimant for the rest of his life. The payments can be
indexed to increase at regular intervals, make provision for intermittent lump sum
payments to meet capital needs, and have a built-in contingency provision against
unexpected requirements on the part of the claimant or his carers.
Structured settlements, originally arranged voluntarily, now exist on a statutory
footing.’ Yet the formal introduction of structured settlements does not mean that
they can be imposed upon the parties by the court without the parties’ consent.” Nor
do they remove the need to forecast future losses. Drawing up the necessary schedule
to devise the settlement can be as complex as the traditional process.
Awards of damages to living claimants can be broken down into three main components:
1 pecuniary losses — primarily but not exclusively those. resulting from loss of
earnings or earning capacity;
2 cost of further care such as medical and hospital expenses. (The aim of
compensation under both these preliminary heads will be to restore C, so far as
money alone ever can, to the position which he would have enjoyed had the tort
never been committed?');
3 non-pecuniary loss — ie pain and suffering and loss of amenity.”
The Court of Appeal exercises overall supervision over the level of awards and sets
the ‘tariff’ for non-pecuniary losses. Itemisation of awards is now encouraged to
enable awards from individual High Court judges to be scrutinised properly.”
(A) Pecuniary losses
(1) Loss of earnings

A number of years are likely to elapse between the infliction of the relevant injuries and
the trial.”* Loss of earnings up to the date of the trial are part of the claimant’s ‘special
damages’ and must be specifically pleaded.” All claims for loss of earnings (including
19 Damages Act 1996. The impetus for this statute was provided largely by the Law Commission
in its review of such settlements: Consultation Paper No 125, Structured Settlements and
Interim and Provisional Damages (1992). See also Law Com No 224, Structured Settlement
and Interim Provisional Damages (1994).
20 Damages Act 1996, s 2.
21 For recognition of the artificiality of this exercise, see Heil v Rankin [2000] PIQR Q187, at
Q193, CA, per Lord Woolf MR. See also Stapleton, ‘The Normal Expectancies Measure in
Tort Damages’ (1997) 113 LQR 257.
22 For a detailed account of the composition of non-pecuniary loss see Law Com No 257,
Damages for Personal Injury: Non-Pecuniary Loss (1999). See also Ogus, ‘Damages for Lost
Amenities: For a Foot, a Feeling or a Function’ (1972) 35 MLR 1 and Rogers (ed), Damages
for Non-Pecuniary Loss in a Comparative Perspective (2001).
23 George v Pinnock [1973] 1 WLR 118, at 126. For an example see Housecroft v Burnett [1986]
1 All ER 332, at 334, CA. And see also Practice Direction (personal injuries actions: particulars
of claim) [1984] 3 All ER 165.
24 Matters have improved to some extent in the wake of the changes made to the availability of
legal aid and the introduction of tracking of claims within the Civil Justice System.
25 Ilkiw v Samuels [1963] 2 All ER 879.
business profits”) are computed after taking into account deductions which would
have been made by way of tax.”’ Loss of perquisites, will also be taken into account.28
Prospective loss of earnings is also recoverable. The court estimates the claimant’s
future employment prospects,” his future incapacity and the number of working years
of which he has been deprived. The traditional judicial method is to arrive at a
multiplicand derived from the estimate of his net annual loss and to multiply that by a
multiplier, the starting point for which is the remaining years in his working lives. That
multiplier is reduced to take account of contingencies such as unemployment and
sickness and, above all, the fact that he receives a capital sum which he is expected to
invest in some interest-bearing securities. In the important House of Lords decision in
Wells v Wells” it was held that there is an expectation that the prudent claimant will take
advantage of index-linked government securities which yield a low but safe average
net return. The relatively low return associated with such securities has to be reflected
in a higher initial lump sum than would formerly have been made? The award is
calculated on the basis that he will spend the income and part of the capital annually so
that the capital will be exhausted at the age the court has assessed to be the appropriate
age having regard to all the contingencies. Currently, the courts assume a 2.5% rate of
interest which is net after tax. In practice the experience of the court has resulted in a
multiplier which, for example, in the case of a 30-year-old, would ordinarily be about 17,
reducing to about 14 in the case of a man of about 40.* Practitioners are familiar with
current judicial trends and out of court settlements are negotiated on the basis of the
current ‘going rate’.*4
Until Wells v Wells, actuarial evidence was discouraged by the courts despite the fact
that actuaries are accustomed to using statistical tables to work out expectancies and
to ‘discount’ capital awards so as to reflect contingencies and the immediate receipt of
the capital sum.** The main criticism made against actuarial tables was that, being
26 Kent v British Railways Board [1995] PIQR Q42.
27 British Transport Commission v Gourley [1956] AC 185, HL. The case sets out in detail how
the notional tax liability is to be calculated.
28 Clay v Pooler [1982] 3 All ER 570. Where a director is able to show that his company suffered
a loss of profits through his incapacity, so that his earnings fell, damages for this loss were
awarded: Lee v Sheard [1956] | QB 192.
29 Or, in the case of a professional sportsperson, his or her likely winnings by comparison with
the previous year: Raitt v Lunn 2002 WL 31599780.
30 This paragraph is based mainly on the speeches of the House of Lords in Taylor v O’Connor
[1971] AC 115, HL and Cookson v Knowles [1979] AC 556, HL. For the most modern
statement on the correct approach to the computation of loss of earnings in cases of long-
term disability, see Herring v Ministry of Defence [2003] EWCA Civ 528, CA. See also
Clenshaw v Tanner [2002] EWCA Civ 1848 on the deductions that can be made in order to
take account of the likely effects of C’s alcohol abuse on his future earning potential.
31 [1998] 3 All ER 481, HL.
32 In terms of presumed rates of return, Wells was decided on the basis of a 3% return (compared
with something in the region of 4.5% which had previously been the expectation). Since June
1998, however, the Lord Chancellor (exercising his powers under the Damages Act 1996, s 1
to prescribe ‘from time to time’ a rate of return which serves as an official guide to the courts)
has set a discount rate of 2.5%: see Damages (Personal Injury) Order 2001 (SI 2001 No 2301).
33 See Pritchard v JH Cobden Ltd [1988] Fam 22, CA.
34 Relying heavily on publications such as Kemp and Kemp.
35 Mitchell v Mulholland (No 2) [1972] | QB 65, CA. In Auty v National Coal Board [1985] |
All ER 930, at 939, CA, Oliver LJ commented ‘the predictions of an actuary can only be a
little more likely to be accurate (and will almost certainly be less entertaining) than those of
an astrologer’. The courts seem to take a very different attitude to actuarial evidence when
approving structured settlements: see Law Com 125, pp 53-4.
produced for insurers, they were designed to deal with average expectancies within
groups rather than with the actual expectancies of particular individuals (with whom
the courts had to deal). Put thus, this criticism is somewhat misleading, for it takes no
account of the fact that actuarial tables can be drawn up more specifically — eg, on an
occupation-specific basis — than the criticism suggests. Furthermore, it fails to indicate
why a judicial guesstimate in accordance with the precedent-based approach would
be any more accurate than such tables. In recognition of this fact, there was support in
Wells v Wells for the practice of counsel endeavouring to calculate their clients’ claims
in accordance with the most well-known set of such tables — the Ogden Tables.
Furthermore, if it ever comes into force, section 10 of the Civil Evidence Act 1995 will
afford statutory recognition to the use of the Ogden Tables.
The courts will not hear evidence from economists on future inflationary trends.*° The
House of Lords considers such evidence highly speculative*’ and takes the view that
by prudent investment the claimant can offset the effects of inflation.** Only in very
exceptional cases will any allowance be made for inflation to offset the effect of higher
rate tax on very large awards.*’ Lord Oliver put the matter thus:
the incidents of taxation in the future should ordinarily be assumed to be
satisfactorily taken care of in the conventional assumption of an interest rate
applicable to a stable currency and the selection of a multiplier appropriate to
that rate. *°
The courts generally continue to show touching faith in the efficacy of fine tuning the
multiplicand and multiplier in order to provide an award which is both just and meets
the claimant’s needs.*' But considerable problems have been encountered. As we
have noted, several years may elapse between the accident causing injury and the
trial. The claimant receives his actual loss of earnings up to the trial. The defendants in
Pritchard v J H Cobden Ltd” sought to argue that the multiplier, which is fixed by
reference to the period likely to elapse between the date of the trial and the end of the
claimant’s working life, should be reduced to allow for the actual loss recovered as
special damages and to discourage delay in bringing personal injuries actions to trial.
Their contentions were rejected. The Court of Appeal stressed the need that the
claimants had for a certain and predictable sum in lost earnings to defray their immediate
post-injury expenses.
A further difficulty is encountered in fixing a multiplier where the medical evidence
suggests that the claimant will die early as a result of his injuries. Can he recover
compensation for his ‘lost years’ when, but for the fatal injury, he would have continued
to earn? Loss of income in the ‘lost years’ is now recoverable* subject to a deduction
36 Mitchell v Mulholland (No 2) {1972] 1 QB 65, CA. But see again Law Com 125, pp 12-14
deploring this stance.
37 See Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174, at 193, HL,
per Lord Scarman.
38 Cookson v Knowles [1979] AC 556, HL; Wells v Wells [1998] 3 All ER 481, HL.
39 Hodgson v Trapp [1989] AC 807, HL.
40 [1989] AC 807, at 835, HL.
41 For an exception see Read v Harries [1995] PIQR Q 25.
42 [1988] Fam 22, CA.
43 Pickett v British Rail Engineering Ltd [1980] AC 136, HL.
of the claimant’s own living expenses.“ For claimants injured in the middle of their
working life when they have families and dependants, such income should clearly be
recoverable. It is needed to ensure that even after the claimant’s premature death his
family do not suffer and the claimant himself can enjoy some relative peace of mind in
what remains of his life. Section 3 of the Damages Act 1996 now provides for this
eventuality, allowing dependants to claim those losses not compensated by the original
award of damages.
It is now clear that the courts will compensate loss of earning capacity‘ as readily as
loss of earnings. So a married woman who at the time of her injuries is engrossed in
child rearing will be compensated for any loss of earning capacity when she would be
likely to return to work outside her home.*° Children and young people who have not
started earning will receive compensation for the damage to, or destruction of, their
employment prospects. The older the child and the more evidence there is of her
prospects of remunerative work, the larger the award will be’ With a very young child
the highly speculative nature of assessing her loss of earning capacity will not disentitle
her from such an award but may mean a relatively small amount is received under this
head. In Croke v Wiseman,** for example, a 21-month old boy was permanently
incapacitated in a medical accident. He was seven at the date of the trial and likely to
survive until he was 40. To compensate him for loss of earnings, a multiplicand of
£5,000 and a multiplier of five were set by the Court of Appeal. No award was made in
respect of loss of earnings in the ‘lost years’. This now seems standard for children
and young people.”
(2) Medical, nursing and hospital expenses*°

A claimant is entitled to recover as special damages those medical, nursing and hospital
expenses which he has reasonably incurred up to the date of trial. His predicted future
expenses will then be estimated and awarded as general damages. Where the claimant
has received private health care or plans to arrange future treatment privately, the
possibility that the claimant could have avoided these expenses by using the facilities
of the NHS is to be disregarded.*' Yet if it is clear that private medical care will not be
used, the courts will refuse to entertain any claim that the claimant makes in respect of
44 Including a pro rata sum for his consumption of housing, electricity costs etc: Harris v
Empress Motors Ltd [1983] 3 All ER 561, CA.
45 Smith v Manchester Corpn (1974) 17 KIR 1, CA; Dhaliwal v Personal Representatives of Hunt
[1995] PIQR Q56. But what of C who elects to paint unprofitably rather than do well-paid
commercial work? See Keating v Elvan Reinforced Concrete Co Ltd [1967] 3 All ER 611.
46 Daly v General Steam Navigation Co Ltd, The Dragon [1980] 3 All ER 696, CA. ;
47 See Housecroft v Burnett [1986] 1 All ER 332, CA (£56,000 for loss of earning capacity
awarded to an intelligent 16-year-old girl).
48 [1981] 3 All ER 852, CA.
49 See Housecroft v Burnett [1986] 1 All ER 332, CA. Cf Harvey v Northumberland County
Council [2003] EWCA Civ 338, CA (C, a young adult, got £9,000 for his thwarted ambition to
become a police officer).
50 See Law Com No 262, Damages for Personal Injury: Medical, Nursing and Other Expenses;
Collateral Benefits (1999).
51 Law Reform (Personal Injuries) Act 1948, s 2(4). If C does make use of the NHS he cannot
recover what he would have had to pay if he had had private treatment: Lim Poh Choo v
Camden and Islington Area Health Authority [1980] AC 174, HL.
any such care he might have elected to use. In other respects, the expenditure must
be reasonable both in relation to the claimant’s condition and the amount paid. If he
has to live in a special institution or in special accommodation, the additional expense
is recoverable.*’ He cannot claim the capital cost of acquiring special accommodation,
for he continues to own that accommodation.™ But he can claim the additional annual
cost over his lifetime of providing that special accommodation and the capital cost of
any alterations or conversions needed to meet his disability which do not enhance the
value of the property. Any saving to the claimant which is attributable to his
maintenance at public expense in a hospital, nursing home or other institution is set off
against any loss of earnings.*°
The claimant is able to claim his nursing expenses. If the court finds, however, that at
some future time he will be unable to obtain all the private nursing services required,
and will have to enter an NHS hospital, an appropriate deduction from future nursing
expenses is made.°*’
Where the burden of caring for the claimant is largely shouldered by relatives or
friends, the claimant’s right to compensation to pay for such services is normally
unaffected.** He is entitled to receive a sum to recompense his wife, mother or friend.”
That the carer has given up gainful employment must be taken into account and
generally his or her loss should be made good although the total cost of care should
not exceed current commercial rates for professional nursing care.*’ Recompense is
available even though the relative is simply caring for the claimant voluntarily, out of
love.*' On the other hand, if a spouse provides gratuitous assistance in connection
with the running of her injured husband’s business, no award will be made in relation
to the value of these essentially commercial services.”
There is no need for the injured party to enter into any contractual agreement with his
relative or friend, and any such agreement made for the purpose of increasing the
award for care will be treated as a sham.® The need for additional help for the family by
way of night sleepers to help a paralysed claimant, and substitute help to give family
members a holiday, must not be overlooked.
52 Woodrup v Nicol [1993] PIQR Q 14, CA.

53 Shearman v Folland [1950] 2 KB 43; George v Pinnock [1973] 1 All ER 926, CA.
54 Cunningham v Harrison [1973] QB 942, CA.
55 Roberts v Johnstone [1989] QB 878, CA.
56 Administration of Justice Act 1982, s 5.
57 Cunningham v Harrison [1973] QB 942, CA.
58 Hunt v Severs [1994] 2 AC 350, HL; Donnelly v Joyce [1974] QB 454, CA (mother gave up job
to care for six-year-old C); Cunningham v Harrison [1973] QB 942, CA, (wife gave up job to
nurse husband); Roberts v Johnstone [1989] QB 878, CA (care provided by adoptive mother).
But note the important distinction between caring services and business services: Hardwick v
Hudson [1999] 1 WLR 1770.
59 In Croke v Wiseman [1981] 3 All ER 852, CA, C had a life expectancy of 33 years, throughout
which he would need continuous nursing by professional nurses and his parents. In awarding
£119,000 for the future cost of nursing care the court took account of the mother losing her
teacher’s pension rights, valued at £7,000, on giving up her post.
60 Housecroft v Burnett [1986] 1 All ER 332, CA. Where, however, the carer’s net loss of
earnings is a lesser amount than the commercial rate for caring, the amount will nonetheless
be confined to the carer’s net loss: Fitzgerald v Ford [1996] PIQR Q72, CA.
61 But here, it has been suggested that the amount should be equal to 75% of the commercial rate
for help: Fairhurst v St Helens and Knowsley Health Authority [1995] PIQR QI.
62 Hardwick v Hudson [1999] PIQR Q202, CA.
63 Fairhurst v St Helens and Knowsley Health Authority [1995] PIQR Q 1.
Compensation for personal injuries and associated losses 60\
Exceptionally, nursing care cannot be recouped in the case where the carer was
also’
the tortfeasor who inflicted the injury. In Hunt v Severs,“ a wife had run over her
husband in a car but no award was made in relation to the nursing care she later
provided since the House of Lords stated that this head of damage was only to be
awarded in circumstances where the claimant had a moral duty to account for those
damages to the carer. In other words, such damages were seen as an award “compensating
the carer’.®
(3) Additional pecuniary losses and expenses

Loss of earnings or earning capacity, and medical and nursing expenses commonly
form the bulk of the pecuniary loss resulting from personal injuries. But other losses
and expenses which can be shown to flow from the claimant’s injuries will also generally
be recoverable. These include obvious additional costs of coping with a life of
disability, expenses of removal to a specially adapted dwelling,” a specially built
invalid car or some other means of giving the claimant mobility, a telephone for
emergencies” etc. Similarly, losses resulting from no longer being able to pursue a
profitable hobby will also be recoverable. And a married woman whose injuries impaired
her capability to do housework received an award for that impairment based on the
cost of obtaining household help.”
But certain ‘losses’ resulting from injury are more problematic. Traditionally, young
unmarried women have received an award for loss of marriage prospects where they
have suffered disabling or disfiguring injuries. That award was generally regarded as
part of the claimant’s recompense for loss of amenity. But young female claimants paid
for it in that, in assessing the multiplier for loss of future earnings, account was taken
of the likelihood of marriage and motherhood reducing the number of years in which
the claimant was likely to be earning.’! In Hughes v McKeown” the judge made no
award for loss of marriage prospects and consequently then, correctly, declined to
reduce the multiplier used to calculate the award for loss of earnings from that
appropriate to a young man of similar age. The Court of Appeal has suggested that
either approach is equally acceptable.” In the modern era, loss of a young woman’s
64 [1994] 2 AC 350, HL.

65 [1994] 2 AC 350, at 394, HL, per Lord Bridge. But why should the loss be so seen? Why is it
not to be regarded in terms of C’s need for such care? For criticism see Matthews and Lunney,
‘A Tortfeasor’s Lot is not a Happy One’ (1995) 58 MLR 395; Law Commission Consultation
Paper 144, para 3.55. Note also the fact that the Australian Courts have refused to follow the
Hunt v Severs approach: Kars v Kars (1996) 141 ALR 37.
66 In Kroeker v Jansen (1995) 123 DLR (4th) 652 an award was made to a woman ‘disabled from
some of her housework beyond the level that her husband ought reasonably to do for her’.
67 Moriarty v McCarthy [1978] 2 All ER 213 (paraplegic moving to a bungalow).
68 Housecroft v Burnett [1986] 1 All ER 332, CA.
69 Moriarty v McCarthy [1978] 2 All ER 213.
70 The award was made regardless of whether it was actually used to obtain domestic help: Daly v
General Steam Navigation Co Ltd, The Dragon [1980] 3 All ER 696.
71 Moriarty v McCarthy [1978] 2 All ER 213.
72 [1985] 3 All ER 284.
73 Housecroft v Burnett [1986] 1 All ER 332, CA; but what of the 20-year-old law student who has
a training contract at a London firm? Her prospective earnings may be higher than her
speculative ‘husband’s’ and she today may well never give up paid work. And what about the
financial loss to a young man deprived of the chance of marrying a high earning wife?
marriage prospects coupled with a presumed dependency upon a husband would

seem to be inapt. The loss of marriage and parenthood prospects should be reflected
in the award for loss of amenity and be available equally to young men.
A second problematic ‘loss’ occurs where injuries lead to the breakdown of the
claimant’s marriage. Can he recover the additional expenditure involved in running two
homes and maintaining his former wife? The Court of Appeal” has held such expenses
to be irrecoverable. They are not ‘losses’ resulting from the injuries but rather a
redistribution of assets. And in any case, such ‘losses’ should be excluded as a matter
of policy: the spectre of sham ‘divorces’ clearly cannot be ignored.
The exclusion of damages on policy grounds has also surfaced in other contexts. In
one case, a rapist who had earlier recovered damages for the change of personality he
suffered after a traumatic injury, attempted to obtain an indemnity for the damages he
was ordered to pay his victims. His attempt failed.” In cases in which mothers have
attempted to obtain damages for wrongful birth, it is now clear that no award will lie in
respect of the ordinary costs associated with raising a healthy child;’”° but damages
will be available in respect of the special costs associated with raising a disabled
child.”
Where a claimant was permanently incapacitated and, in addition to loss of earnings,
there was a ‘cost of care’ claim, the House of Lords sought to avoid any duplication of
damages as follows.” A full award for loss of earnings was made in the usual way with
no deduction for living expenses except in respect of the ‘lost years’. In calculating the
award for cost of care, however, a deduction was made for the living expenses the
claimant would have incurred in any event had she not been injured.
Other miscellaneous losses that would fall into this category include the loss of the
opportunity of obtaining affordable health or life insurance,” the loss of lodgings
which have to be surrendered when the claimant is unable to work any longer (since
those lodgings have been provided by the employer),®° and the loss of a company
car?!
(4) Deduction for benefits received®’

The pecuniary losses and expenses resulting from injury may on occasion be offset by
benefits received whether from social security, insurance provision or charity. But how
far should such benefits be set-off against the award to be made to the claimant? Social
74 Pritchard v J H Cobden Ltd [1988] Fam 22, CA.

75 Meah v McCreamer (No 2) [1986] 1 All ER 943. See also Clunis v Camden and Islington
Health Authority [1998] 3 All ER 180, CA (discussed in ch 6).
76 McFarlane v Tayside Health Board [1999] 3 WLR 1301, H; AD v East Kent Community NHS
Trust [2002] EWCA Civ 1872, CA.
77 Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266, CA; Groom
v Selby [2002] PIQR P201, CA.
78 Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174, HL.
79 Av National Blood Authority [2001] 3 All ER 289.
80 Liffen v Watson [1940] 1 KB 556, CA.
81 Clay v Pooler [1982] 3 All ER 570.
82 For comprehensive coverage, see Lewis, Deducting Benefits from Damages for Personai
Injury (2000).
security benefits are now dealt with in the Social Security (Recovery of Benefits) Act
1997. That Act provides protection for damages awards made in respect of pain,
suffering and loss of amenity against the recoupment of social security benefits. Taken
together, section 8 and Schedule 2 of the Act permit recoupment only as against
compensation for loss of earnings, the cost of care and loss of mobility. The scheme
affects the defendant in the following way. As regards those damages that represent
the amount payable in respect of pain, suffering and loss of amenity, the defendant is
directly liable to the claimant. As regards the amount now paid to the claimant by way
of state benefits in respect of loss of earnings etc, the defendant is, instead, liable to
the Secretary of State. The principle is simple: the state shall not bear the pecuniary
cost of the defendant’s tort, while the claimant at the same time should not be
compensated twice over. But one possible exception to this principle is contained in
Part II of Sch 1 to the Social Security (Recovery of Benefits) Act 1997 which allows for
regulations to be made for the disregarding of small payments.** Here it is possible that
the state will not recover the pecuniary element of the damages award from the
defendant.
Social security benefits are not the only collateral benefits which may result from the
claimant’s injury and disablement. Few general principles can be deduced from the
authorities about when such benefits should be deducted from the award of damages
for loss of earnings and additional expenditure. Any attempt to present a rational
picture of the rules is therefore likely to fail. The courts make every effort to encourage
benevolence so that charitable payments made to the claimant — eg, from a disaster
fund— will not be deducted;™ nor generally will ex gratia payments made by employers.*°
Proceeds of personal insurance policies provided for by the claimant or his family will
not be deducted.** But where, even despite his sickness or disability, the claimant
receives sick pay as part of his contract of employment, he must account for those
monies*’ unless the contract provides that sick pay must be refunded in the event of a
successful tort claim.*®
In Parry v Cleaver* the House of Lords held that an occupational disability pension
was not deductible regardless of whether it was contributory or discretionary. The
test, their Lordships held, was twofold: was the money received of the same nature as
what was lost and, if not, was it a benefit still intended to be paid even if the claimant
were to be reimbursed from another source? Thus, statutory sick pay payable by the
employer under the Social Security and Housing Benefits Act 1982 was later held to be
deductible.” It was essentially the same as a contractual entitlement to sick pay.
83 ‘Small payments’ are those of £2,500 or less. There is no sign of any such regulations at
present.
84 Redpath v Belfast and County Down Rly [1947] NI 167; approved in Parry v Cleaver [1970]
AC 1) HL:
85 Cunningham v Harrison [1973] QB 942. Cf Hussain v New Taplow Paper Mills Ltd [1987] 1
All ER 417, (where D was the employer).
86 Bradburn v Great Western Rly Co (1874) LR 10 Exch 1; approved in Parry v Cleaver [1970]
AC 1, HL.
87 Turner v Ministry of Defence (1969) 113 Sol Jo 585, CA.
88 Browning v War Office [1963] 1 QB 750, CA.
89 [1970] AC 1, HL; followed in Longden v British Coal Corpn [1998] AC 653, HL.
90 Palfrey v Greater London Council [1985] ICR 437.
In Hussain v New Taplow Paper Mills Ltd’! the injured claimant received long-term
sickness benefit provided for by a permanent health insurance scheme arranged by his
employers and taken out for their (the employers’) benefit. The monies received were
held to be indistinguishable from contractual sick pay and were not seen as analogous
to a disability pension or private insurance monies. The Court of Appeal suggested
that, as between claimant employees and their employers, ex gratia benefits ought to
be accounted for and that the claimant should generally only recover his net loss. But
difficulties arise because two basic principles of compensatory damages conflict. First,
as Hussain affirmed, the claimant should receive only his actual estimated loss, and
not gain a net benefit from his injuries. But on the other hand, the tortfeasor should not
benefit either from the claimant’s own prudence in insuring himself or from the
benevolence of others.
‘Victory’ for the net loss principle in Hussain was short-lived. In Smoker v London
Fire and Civil Defence Authority,” the House of Lords affirmed Parry v Cleaver. A
contributory disability pension remains non-deductible even if provided and partly
paid for by the employer. Similarly, in McCamley v Cammell Laird Shipbuilders Ltd’
the defendant employers took out and paid for personal accident policies on behalf of
all employees. The proceeds of the policy were held to be non-deductible. The policy
operated whenever an employee suffered a qualifying injury regardless of fault. It was
a product of the employers’ benevolence not a consequence of the tort which later
materialised. Hussain, then, is probably best seen as confined it to its own special
facts.** Only if part of the claimant’s claim is that he has lost the opportunity to
accumulate greater pension rights will the pension payable after the normal date of
retirement be taken into account.”
(B) Non-pecuniary losses”
(1) Pain and suffering
The claimant is entitled to compensation for the pain and suffering, both actual and
prospective, which is caused by the initial injury or subsequent surgical operations.”
If his expectation of life has been reduced by his injuries, an award of damages for pain
and suffering shall take account of any suffering caused or likely to be caused to him
91 [1988] AC 514, HL. And see College v Bass Mitchells & Butlers Ltd [1988] 1 All ER 536, CA
(redundancy payments).
92 [1991] 2 AC 502, HL.
93 [1990] 1 All ER 854, CA.
94 Tentatively suggested in McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 All ER 854, at
860, CA.
95 Longden v British Coal Corpn [1998] AC 653, HL.
96 For a full review of the current law and potential reforms in respect of amenity loss, quantum
of damage and interest on awards see Law Com No 257, Damages for Personal Injury: Non-
Pecuniary Loss (1999). For the role of the Court of Appeal in setting levels of damages see
Heil v Rankin [2000] PIQR Q187, CA.
97 H West & Son Ltd v Shephard [1964] AC 326, HL; Cutler v Vauxhall Motors Ltd [1971] 1 QB
418, CA. In Sutton v Population Services Family Planning Programme Ltd (1981) Times, 7
November, damages were awarded for the premature onset of the menopause. And in Kralj v
McGrath [1986] 1 All ER 54 C received damages for her trepidation concerning a further
wanted pregnancy after an obstetric ‘nightmare’.
by awareness that his expectation of life has been shortened.°® A permanently

unconscious claimant has no claim for pain and suffering.” Nor, according to Kerby v
Redbridge Health Authority,” is mere sorrow or upset at the loss of a child actionable.
(2) Loss of amenities

Compensation is also recoverable for loss of faculty. Even though the accident has
converted the claimant into a human vegetable so that he is unaware of his injuries, he
is still entitled to claim for any loss of bodily function.'°' Damages cannot be refused
because the claimant will be unable to enjoy the damages in view of the severity of his
injuries.'** The award for loss of amenities must be made on the basis of amenities lost;
awareness of deprivation is irrelevant. The court will take into account deprivation of
sexual pleasures,'”* loss of a holiday,'™ inability to fish,'°> disfigurement,'” as well as
more obvious losses, such as inability to play games or to walk. In short, damages
under this head may be increased by taking into account subjective factors.
(3) Assessing the quantum

Non-pecuniary damages differ from pecuniary damages in that there is no scientific
method of deciding what sum should be awarded. Damages for loss of amenity and
pain and suffering are normally awarded as an aggregate lump sum. This is a
conventional sum which is taken to be the sum which society deems fair (fairness
being interpreted by the courts in the light of previous decisions). There has evolved
a set of conventional principles providing a provisional guide to the comparative
severity of different injuries, and the introduction of brackets of damages into which
particular types of injury fall. In other words, loss is generally'”’ compensated according
to a tariff — eg £X for the loss of an arm, £Y for the loss of an eye etc. The particular
circumstances of the claimant, including his age and any unusual deprivation which
he suffers, are taken into account. So, too, it seems, is the fact that the injuries were
inflicted in the context of a rape.'” The fall in the value of money leads to a continuing
98 Administration of Justice Act 1982, s 1(1)(b). Damages for loss of expectation of life as such,
and as a separate head of damage, were abolished by this Act.
99 Wise v Kaye [1962] 1 QB 638, CA.
100 [1994] PIQR Q 1.
101 H West & Son Ltd v Shephard [1964] AC 326, HL; Lim Poh Choo v Camden and Islington
Area Health Authority [1980] AC 174, HL.
102 H West & Son Ltd v Shephard [1964] AC 326, HL.
103 Cook v JL Kier & Co Ltd [1970] 2 All ER 513, CA.
104 Ichard v Frangoulis [1977] 2 All ER 461.
105 Moeliker v A Reyrolle & Co Ltd [1977] 1 All ER 9, CA.
106 Where a husband’s disfigurement caused his wife to leave him and his children, £7,000 was
awarded to him under that head in Oakley v Walker (1977) 121 Sol Jo 619. Financial losses
resulting from divorce are generally irrecoverable: Pritchard v JH Cobden Ltd [1988] Fam 22,
CA. :
107 The courts may depart from the standard tariff where the circumstances of a particular case
require it. See, eg, Griffiths v Williams (1995) Times, 24 November, CA (court took account of
fact that C was a rape victim).
108 In Griffiths v Williams (1995) Times, 24 November, the Court of Appeal stated that the
consequences of injuries incurred in such cases placed them in a distinct category from the
generality of personal injuries cases.
reassessment of these awards.'” What happens in practiceisthat practitioners’ books

and periodicals'!® regularly publish judicial awards under all the relevant heads — eg,
blindness, loss of a leg, etc — with brief details of the claimant’s circumstances. This
enables the claimant’s lawyers and the defendant’s insurers to assess likely awards,
and assists judges in conforming to the current levels of awards made by their brethren.
The intrinsic difficulty of awarding a sum of money as compensation for the loss of
amenity resulting from catastrophic injury, and the problem of updating awards to
compensate for the fall in the value of money are well illustrated in Housecroft v
Burnett.''! The injuries sustained by the 16-year-old claimant resulted in tetraplegia.
The life which she could have expected with its pleasures, career prospects and the
hope of a family was replaced by complete dependence on her mother for every aspect
of her care. The court recognised the imprecise nature of the task but stressed the need
for uniformity where possible: the bracket of acceptable awards should be set by
reference to recent decisions. In Heil v Rankin,''? a modern-day bracket of £150,000 to
£200,000 was set for the most serious injuries, with a suggested sum of £175,000 for an
average case of tetraplegia. Physical pain, or the impairment of speech or hearing
would justify an award above the average. Lack of awareness of the disability might
justify an award at the lower end of the range. But the difficulty of comparing levels of
injury is well illustrated in McCamley v Cammell Laird Shipbuilders Ltd.''° There, the
claimant lost most of an arm and a leg on one side. He continued to suffer great pain
and regained very little mobility. The trial judge awarded him £85,000, equivalent to the
then going rate for tetraplegia. The Court of Appeal judged the award generous but
refused to overturn it.
The imprecision with which damages are computed perhaps helps to explain the
reluctance of the superior courts to overturn damages awards that seem out of line
with common practice. But the extent to which they are unprepared to do this can be
quite remarkable on occasion. In Kiam v MGN Ltd''* — admittedly a defamation case —
the Court of Appeal refused to disturb an award of £105,000 made by the jury even
though the trial judge had suggested a bracket of between £40,000 and £80,000. The
amount was not, according to the court, out of all proportion to what might sensibly
have been thought appropriate.
(4) Provisional awards''*

Frequently the courts are called upon to award prospective damages where the
claimant’s medical prognosis is imprecise. For example, the injury may have created a
risk of, say, epilepsy developing later in life. The courts used to estimate the percentage
chance of such a condition developing and award an equivalent proportion of damages
for the results of that condition. Claimants were consequently over-compensated if
109 Birkett v Hayes [1982] 2 All ER 710, CA.

110 Especially Kemp and Kemp, Quantum of Damages and the monthly publication, Current Law,
under the heading of ‘Damages’.
111 [1986] 1 All ER 332, CA.
112 [2000] PIQR Q187, at Q216, CA, per Lord Woolf MR.
113 [1990] 1 All ER 854, CA.
114 [2002] 2 All ER 219, CA.
115 See generally Law Com 125, pp 73-84.
the risk did not materialise and under-compensated if it did. The Administration
of
Justice Act 1982 accordingly provided an alternative. Where there is a chance that the
claimant at some time in the future will, as a result of the tort, develop some serious
disease or suffer some serious deterioration in his physical or mental condition, the
court will assess damages on the assumption that the development or deterioration
will not occur, but award further damages at a future date if it does so occur, upon an
application made by the claimant.!'°
Applying the rules on provisional damages has proved to be problematic. In Willson v
Ministry ofDefence,'" the claimant injured his ankle. He suffered continuing disability
and pain, and medical reports suggested that progressive deterioration of the ankle
joint might cause arthritis in years to come. Scott Baker J held that this was not an
appropriate case for an order for provisional damages. Such an order required that
there be a chance of a clear-cut event occurring causing a separate, additional risk to
the health of the claimant and not merely evidence of progréssive deterioration of the
original injury. Such contingencies should be reflected in the lump sum award. Thus,
the claimant who fractures a hip with the possibility of arthritis later in life cannot take
advantage of the provision for provisional damages, but the road accident victim,
whose brain injuries create a risk of epilepsy developing at a later date, may do so.
What if the condition that may develop later is life-threatening? If it is, it has been
suggested that the potential injustice to the defendant in such cases outweighs the
potential injustice to the claimant of a conventional award, hence the aptness of a
conventional rather than provisional award in such cases.''®
(5) Interest
The courts have power to award interest on all or any part of an award of damages and
should do so on awards for personal injuries or death unless there are ‘special reasons’
not to do so.''? Detailed exposition of the rules on interest is beyond the scope of this
work.'”° It suffices to note the general rule that interest on pre-trial pecuniary loss will
be payable at half the average rate on short-term investment accounts for that period."”!
No deduction of interest is normally made to take account of social security benefits
received by the claimant.'” Interest payable on non-pecuniary loss will be low — not
more than 2% at present.'”
116 The 1982 Act merely provided for rules to be made under it that grant this jurisdiction. They
have now been made. See Supreme Court Act 1981, s 32A(1) and (2). See also RSC Ord 37, rr
8-10.
117 [1991] 1 All ER 638.
118 See Molinari v Ministry of Defence [1994] PIQR Q 33.
119 Supreme Court Act, s 34A. ’
120 See Burrows pp 256-62; Law Commission Consultation Paper No 140.
121 Jefford v Gee [1970] 2 QB 130, CA.
122 Wisely v John Fulton (Plumbers) Ltd [2000] 2 All ER 545. But where the benefits exceed the
1
damages due to be paid, such a deduction may be made: Griffiths v British Coal Corpn [2001]
WLR 1493, CA. L ,
Railways
123 Lawrence v Chief Constable of Staffordshire [2000] PIQR Q349, CA; Wright v British
inflation
Board [1983] 2 AC 773, HL. The reasons are (1) aamages should take into account
to
up to the time of judgment and (2) damages for non-pecuniary loss are often difficult
quantify until C’s condition has stabilised.
(C) Damage or destruction of goods

Claimants in personal injury actions often also have a claim for damage to goods —
especially their cars. Where the car or other goods are destroyed, damages are made
up of the cost of buying a replacement, together with compensation for loss of use
pending replacement, with a deduction for the salvage value of the destroyed goods.'™
Where there is damage to goods, the measure is the diminution in value, normally
based on the cost of repair.'** Damages are also given for loss of use, even though the
goods were non-profit earning and not replaced during repair.'”° If a substitute has
been hired, then the cost can be claimed provided the goods hired and the price paid
are reasonable.'’
Section 3. Death
Two issues arise when death ensues from a tort. First, the deceased’s estate may wish
to proceed with the cause of action which the deceased himself would have had if he
had not died. Secondly, others — especially relatives — may claim that they have suffered
a loss in consequence of the death. Two statutes need therefore to be examined: the
Law Reform (Miscellaneous Provisions) Act 1934 (dealing with survival of actions),
and the Fatal Accidents Act 1976 (dealing with death itself giving rise to a cause of
action).
(A) Survival of actions

The Law Reform (Miscellaneous Provisions) Act 1934 provides that, subject to three
significant exceptions, on the death of any person, all causes of action vested in him
survive for the benefit of his estate.'* Actions for defamation do not survive. The right
of a person to claim under section 1A of the Fatal Accidents Act 1976 for bereavement
does not survive for the benefit of his estate.'*? Nor are exemplary damages available
to an estate.'°? All of these are regarded as claims personal to the deceased.
Where the death of the deceased has been caused by the act or omission giving rise to
the cause of action, the 1934 Act enables his estate to bring proceedings in tort against
the defendant.'*' His estate may claim damages according to the usual principles for
the period between when the cause of action arose and the death. Thus, damages may
124 Moore v DER Ltd [1971] 3 All ER 517, CA; Thatcher v Littlejohn [1978] RTR 369, CA. And
see also Liesbosch Dredger v SS Edison [1933] AC 449, HL.
125 Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 All ER 928, CA.
126 The Mediana [1900] AC 113, HL; HL Motor Works (Willesden) Ltd v Alwahbi [1977] RTR 276,
CA.
127 HL Motor Works (Willesden) Ltd v Alwahbi [1977] RTR 276(reasonable to hire a Rolls Royce
until C’s Rolls Royce repaired).
128 Section 1(1).
129 Administration of Justice Act 1982, s 4(1).
130 Administration of Justice Act 1982, s 4(2).
131 For the limitation periods within which these proceedings must be brought, see the Limitation
Act 1980, s 11(5)-(7).
be awarded for the pain, suffering' and loss of amenity’ for that period during which
the deceased actually suffered such deprivations. Damages may also be awarded for
earnings lost'** and medical expenses incurred up to the time of death.'35
The damages awarded to his estate ‘shall be calculated without reference to any loss
or gain to his estate consequent on his death’.'** Thus, if the deceased loses an
annuity to which he was entitled, or if insurance monies become payable upon his
death, these losses and gains are disregarded in computing damages under the 1934
Act. The rights conferred by the Act are in addition to, not in derogation of, any rights
conferred by the Fatal Accidents Act 1976.'*’ The award of damages under the earlier
legislation is the same whether or not an award is also made under the 1976 Act.
No damages may now be awarded to the estate in respect of loss of income in the
deceased’s ‘lost years’.'** The potential overlap between claims by dependants under
the Fatal Accidents Act for loss of dependency and an estate’s claims for lost income
from the ‘lost years’ is thus avoided.'°°
Technically, the 1934 Act applies even though death occurs instantaneously upon the
commission of the tort (thus removing the possibility that the victim experiences any
pain and suffering).'*° But since the Administration of Justice Act 1982 came into force,
there is only one circumstance in which a claim may, in reality, be made under the 1934
Act where death is immediate;'*' and even that is of restricted application. Whether
the deceased dies immediately or not, a claim for funeral expenses may be made.'” But
if a dependant has already incurred funeral expenses in respect of the deceased, and
even though he is unable to prove any loss of pecuniary advantage consequent on
the death, a claim in respect of those funeral expenses lies under the Fatal Accidents
AceI9/6)°
Finally, we must consider the situation where a claimant has been awarded provisional
damages under the Supreme Court Act 1981, s 32A. If he subsequently dies due to
deterioration in his condition, his dependants may now claim those losses that were
not compensated by the initial award of damages.'™
132 Andrews v Freeborough [1967] 1 QB 1, CA (£2,000 awarded to the estate of a child of 8 who
remained unconscious for a year between the accident and death); Murray v Shuter [1976] QB
972, CA (£11,000 awarded to the estate of a man of 36 in respect of pain and suffering and loss
of amenity during the four years he survived the accident in a coma).
133 Rose v Ford [1937] AC 826, HL (£2 awarded for loss of leg amputated two days before death).
134 Murray v Shuter [1976] QB 927, CA.
135 Rose v Ford [1937] AC 826, HL.
136 Law Reform (Miscellaneous Provisions) Act 1934, s 1(2).
137 Law Reform (Miscellaneous Provisions) Act 1934, s 1(5); Yelland v Powell Duffryn Associated
Collieries Ltd (No 2) [1941] 1 KB 519, CA.
138 Law Reform (Miscellaneous Provisions) Act 1934, s 1(2)(a).
139 See Gammell v Wilson [1982] AC 27, CA.
140 In Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65 it was held that
momentary pain was merely part of the dying process and not an independent period of pain
prior to death. mip
141 The problem is that, with immediate death, there is no time for the victim to appreciate pain,
suffering etc and for the cause of action to vest. The better view 1s probably that the cause of
action is completed by the injuries, and vests in the deceased at the moment of death.
142 Law Reform (Miscellaneous Provisions) Act 1934, s 1(2)(c).
143 Law Reform (Miscellaneous Provisions) Act 1934, s 3(5); Stanton v Ewart F Youlden Ltd
[1960] 1 All ER 429.
144 Damages Act 1996, s 3.
(B) Death as a cause of action'” i
(1) Introduction
Historically, at common law, no action in tort could be brought by third parties who
suffered loss through the killing of another.'*° But fatal accidents became so frequent
with the development of railways that in 1846 Parliament had to pass the Fatal Accidents
Act which made considerable inroads into the common law rule. The modern principles
are now embodied in the Fatal Accidents Act 1976.
The 1976 Act only benefits certain dependants. Thus, save as otherwise provided in
the Act, the law of torts still does not recognise the interest of one person in the life of
another. An employee, therefore, can never sue if his employer is killed and he loses his
job. Similarly, an insurance company has no cause of action simply because it has to
discharge its obligations under a life policy sooner than it otherwise would. In short,
interests beyond those of the deceased’s family have no recognition when death
occurs. :
Section 1(1) of the Fatal Accidents Act 1976 provides:
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) Who may sue?

The action is brought in the name of the executor or administrator'*® of the deceased,
and lies for the benefit of the following relatives:'” wife, husband (or former wife or
husband!*’), children, grandchildren, father, mother, stepparents, grandparents,
brothers, sisters, uncles, aunts and their issue, adopted and illegitimate dependants
and step-children of the several categories.'°' If there is no executor or administrator,
or if he fails to bring the action within six months after the death of the deceased, any
dependant may bring the action.'°* The Administration of Justice Act 1982 responded
to social changes by including for the first time any person who was living with the
145 See generally Law Com No 263, Claims for Wrongful Death (1999).
146 Baker v Bolton (1808) 1 Camp 493; Admiralty Comrs v SS Amerika [1917] AC 38, HL.
147 For transport accidents in the course of an international journey see the Carriage by Air Act
1961, Carriage of Passengers by Road Act 1974, Merchant Shipping Act 1995 and International
Transport Conventions Act 1983.
148 Fatal Accidents Act 1976, s 2(1).
149 Fatal Accidents Act 1976, s 1(2)-(5).
150 By the Fatal Accidents Act 1976, s 1(4), a former spouse includes a person whose marriage has
been annulled or declared void as well as a divorced person. This provision still applies even if
the surviving former spouse has remarried: Shepherd v Post Office (1995) Times, 15 June, CA.
151 Fatal Accidents Act 1976, s 1(5)(a): ‘any relationship by affinity shall be treated as a relationship
by consanguinity, any relationship of the half-blood as a relationship of the whole blood, and
the stepchild of any person as his child’. D must be given particulars of the dependants for
whom a claim is made and of the nature of this claim: Fatal Accidents Act 1976, s 2(4).
Compensation for personal injuries and associated losses 6\\
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 of the deceased.'*4
(3) Nature of the act complained of

It must first be proved that the act caused the death.'®> Thereafter, it must be shown
that there was a ‘wrongful act, neglect or default’ by the defendant. These words
presumably embrace any tort.'*° Consequently, if the defendant’s act was never
actionable because he would have had a defence to any action brought by the deceased
in his lifetime, no action will lie.'°’ Where the deceased died as the result partly of his
own fault and partly of the fault of any other person, damages are reduced to a
proportionate extent'** in the same way as under the Law Reform (Contributory
Negligence) Act 1945.'°° If a dependant’s contributory negligence is a cause of the
deceased’s death, that dependant’s damages are reduced but the awards to other
dependants are unaffected.'®°
At the time of his death, the deceased must have been in a position to sue the defendant
had he not died because of the wrongful act. If the limitation period expired between
the injury and his death, the Limitation Act 1980 stipulates that no Fatal Accidents Act
claim can come into existence.'®' This ordinarily'* means that if more than three years
have elapsed between the injury and death, the claim is barred.'* The Limitation Act
1980 also provides that if the deceased had settled his own claim,'™ no action lies
under the Fatal Accidents Act,'® but an action still lies (and without any limit on the
damages) if the claimant had merely agreed beforehand that no more than, say, £1000
damages should be recoverable in the event of his being the victim of this tort.'®
153 Note that it is possible for a person to be living in more than one household at any one time:
Pounder v London Underground Ltd [1995] PIQR P 217.
154 Fatal Accidents Act 1976, s 1(3)(b). But note that the Act is not so progressive as to recognise
same-sex cohabitational relationships. Cf Family Law Act 1996, s 62.
155 In Pigney v Pointer’s Transport Services Ltd [1957] 2 All ER 807, the deceased committed
suicide while in a depressive state induced by D’s negligent act; the death was held to have been
caused by that act, so that an action under the Fatal Accidents Act 1976 was successful (as was
a similar claim in Watson v Willmott [1991] 1 QB 140).
156 And a negligent breach of contract: Grein v Imperial Airways Ltd [1937] 1 KB 50, CA.
157 Murphy v Culhane [1977] QB 94, CA (if the deceased had failed because of the defence of ex
turpi causa — see ch 6 — no action would lie under the Act).
158 Fatal Accidents Act 1976, s 5S.
1598 Seexchr lS:
160 Dodds v Dodds [1978] QB 543. The negligent dependant may also be required to make a
contribution (under the Civil Liability (Contribution) Act 1978) towards the damages which D
has to pay for the benefit of the dependants.
161 Limitation Act 1980, s 12(1).
162 The three-year period can be extended if the deceased did not have ‘relevant knowledge’ of his
cause of action.
164 Pickett v British Rail Engineering Ltd [1980] AC 136, at 146-7 and 152, HL, per Lords
Wilberforce and Salmon.
166 Nunan v Southern Rly Co [1924] 1 KB 223, CA.
(4) The nature of the interests protected

In certain restricted circumstances, an action under the Fatal Accidents Act may consist
of, or include, a claim for damages for bereavement.'©’ This claim may be brought for
the benefit of the wife or husband of the deceased.'® It is not available for former
spouses, or where the parties, though living together as husband and wife, were not
married. The only other case in which a claim may be made is where the deceased was
a minor (ie, under the age of 18) who was never married, and the claim is on behalf of his
parents (if he was legitimate), or on behalf of his mother (if he was illegitimate).'°
Apart from the claim for bereavement, a claim by a dependant lies only on proof of
pecuniary loss.'” The language ordinarily used by the courts is that there must be a
loss of ‘prospective pecuniary advantage’ and that a ‘speculative possibility’ of
pecuniary gain is not enough.'”! A parent could recover, therefore, when his 16-year-old
daughter died, having almost completed her unpaid dressmaking apprenticeship.'”
But the parent of a three-year-old child has been held to have no cause of action. 173
Although it is not essential that the dependant should have a legal right to that aid'”
— the loss of services gratuitously rendered is enough!’ — so long as the pecuniary
benefit to the dependant would have accrued (not qua family relationship, but qua
business relationship), no action lies. Thus, a father could not sue in respect of the
loss of business contracts occasioned by the death of his son, who worked for the
father’s firm.'”° On the other hand, in Pym v Great Northern Rly Co'” it was held that
younger children of the deceased had sustained loss of pecuniary advantage because
most of the income from the settlement of which the deceased had been tenant for life
passed on his death to his widow and eldest child.
For public policy reasons, where the pecuniary loss is attributable to an illegal enterprise
in which the deceased was engaged, no action will lie under the 1976 Act. Thus, in
Hunter v Butler'”* it was held that no claim would lie where the deceased had been
earning wages while fraudulently claiming social security benefits. The court was
167 Fatal Accidents Act 1976, s 1A(1).

168 Fatal Accidents Act 1976, s 1A(2)(a).
169 Fatal Accidents Act 1976, s 1A(2)(b).
170 Duckworth v Johnson (1859) 4 H & N 653.
171 Davies v Taylor [1974] AC 207, HL: wife deserted husband five weeks before his death; shortly
before his death he instructed a solicitor to begin divorce proceedings. The deserting wife had
no claim, for she had to show a reasonable expectation of pecuniary benefit — there had to be
a significant prospect, not a mere speculative possibility, of reconciliation with the husband
had he lived, and this she failed to prove. In Kandalla v British Airways Board [1981] QB 158,
elderly parents of two young women doctors were awarded damages on proof that the doctors
intended to flee from Iraq (where they had been working) to England where they would have
supported their parents.
172 Taff Vale Rly Co v Jenkins [1913] AC 1, HL.
173 Barnett v Cohen [1921] 2 KB 461.
174 Stimpson v Wood & Son (1888) 57 LJQB 484, the mere fact that a wife by her adultery had lost
her legal right to maintenance did not bar her claim.
175 Berry v Humm & Co [1915] 1 KB 627.
176 Sykes v North Eastern Rly Co (1875) 44 LJCP 191. The decision was followed in Burgess v
Florence Nightingale Hospital for Gentlewomen [1955] 1 QB 349 (husband could not recover
for loss of services of wife as dancing partner). See also Behrens v Bertram Mills Circus Ltd
[1957] 2 QB 1 and Malyon v Plummer [1964] 1 QB 330, CA.
177 (1863) 4B & S 396.
178 [1996] RTR 396, CA. See also Burns v Edman [1970] 2 QB 541: no claim could be made by
a widow who knew that her support came from the proceeds of her husband’s crimes.
concerned not to allow monies illegally gained to form the basis of a claim
for
dependency.
(5) Period of limitation

The action must be brought within three years from either the date of the death, or
‘knowledge’ of the person for whose benefit it is brought, whichever is the later.'”
Where there are several potential claimants, the limitation period runs separately against
each. If one had the required knowledge more than three years before the action, the
action is barred against him but not against the others. Where the dependant’s limitation
period has expired before an action was brought on his behalf, the court has a further
discretionary power to extend the period.'*°
(6) Assessment of damages

The sum to be awarded as damages for bereavement is £10,000.'*! Where both parents
claim this sum, it is divided equally between them.'*? Damages other than damages for
bereavement are such as are proportioned to the injury'® resulting from the death to
the dependants.'* The actual pecuniary loss resulting to each dependant from the
death is ascertained'* and separately assessed.'*° Where an award is made to a widow
and her children it is suggested that the proportion awarded to the children should
represent their genuine dependency,'*’ and not follow the practice of awarding the
bulk of the money to the widow on the assumption that she will provide for her
children.'** Among other things, the children need protection against the risk of their
mother dying and the money passing into the hands of a stepfather.
Lord Wright has explained the traditional method of measuring the damages.

180 Limitation Act 1980, s 33.
181 Damages for Bereavement (Variation of Sum) (England and Wales) Order 2002 (SI 2002 No
644).
182 Fatal Accidents Act 1976, s 1A(4). Query whether this would be so where one parent was the
tortfeasor who caused the death?
183 ‘Injury’ includes any disease and any impairment of a person’s physical or mental condition:
Fatal Accidents Act 1976, s 1(6).
184 Fatal Accidents Act 1976, s 3(1). This is an oddly worded provision. For elucidation of its
meaning, see Jameson v Central Electricity Generating Board [2000] 1 AC 455, HL.
185 Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601, at 612, HL, per Lord
Wright. A dependant’s damages are not reduced because his mother was contributorily negligent:
Dodds v Dodds [1978] QB 543. When assessing a claim by a mother for the death of her son,
the court must take account of the possibility of the son’s marriage: Dolbey v Goodwin [1955]
2 All ER 166, CA. Where husband and wife with either separate incomes or a joint income
share their living expenses, the amount by which their joint living expenses are less than twice
the expenses of each one living separately is a benefit arising from the relationship, and may
be the subject of a claim under the Fatal Accidents legislation by the husband in respect of the
death of this wife: Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 QB
349.
186 Dietz v Lennig Chemicals Ltd [1969] 1 AC 170, at 183, HL, per Lord Morris of Borth-y-Gest.
The court directs how the award be divided: Fatal Accidents Act 1976, s 3(2).
187 Benson v Biggs Wall & Co Ltd [1982] 3 All ER 300, at 303.
188 Clay v Pooler [1982] 3 All ER 570, at 578 (the children merely received pocket money).
The starting point is the amount of wages which the deceased was earning, the
ascertainment of which to some extent may depend on the regularity of his
employment. Then there is an estimate of how much was required or expended
for his own personal and living expenses. The balance will give a datum or basic
figure which will generally be turned into a lump sum by taking a certain number
of years’ purchase. That sum, however, has to be taxed down by having due
regard to uncertainties.'®
The House of Lords elaborated upon this in Taylor v O’Connor.'” The damages to a
widow must make available to her, to spend each year, a sum free of tax equal to the
amount of the dependency — an award sufficient to buy an annuity of that amount is
not enough because part of the annuity will be taxable. The multiplier must be calculated
from the date of the victim’s death'”' and should be such that the capital sum awarded,
together with the income earned by its investment, will be exhausted by the end of the
period intended to be covered. It is supposed that the dependants will spend each
year a part of the capital as well as the whole of the income they receive from so much
of the capital as remains.'” The multiplier of the annual loss of dependency is seldom
fixed at more than 16 times that annual figure; so if the dependants have lost £2,000 a
year from the death, the award will rarely exceed £32,000.
In assessing future earnings, probable deductions for income tax are to be made.'”? No
account may be taken of the fact that the dependant is of independent means, except
in so far as it shows what pecuniary aid to that dependant was made by the deceased.'*
So if a professional woman loses her husband who is also a professional, it is no
answer to say that she could well support herself and her children. The question is
simply how much of his income the deceased husband spent on his family rather than
himself.
In Cookson v Knowles,'*> the House of Lords refined further the method of calculation.
As a general rule, damages up to the date of trial are to be assessed separately from
those after that date. For the first part, the loss of dependency will be multiplied by the
actual period between accident and trial; interest on that sum will be awarded at half
the short-term investment rate current during that period. For the second part, the
court will arrive at the amount of dependency (the multiplicand) by estimating the
probable rate of earnings of the deceased at the date of the trial. It will calculate the
multiplier in the usual way. The multiplier will be fixed by reference to the date of the
death and the number of years actually elapsing between the death and the trial will
then be deducted.'*° Interest is not awarded on the second sum.'%’ Inflation is
disregarded except in estimating earnings at the date of trial.
189 Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601, at 617.
19:0) [LOTMA 115; HL:
191 Graham v Dodds [1983] 2 All ER 953, HL.
192 Young v Percival [1974] 3 All ER 677, CA. See also Taylor v O’Connor [1971] AC 115, HL.
193 Bishop v Cunard White Star Co Ltd [1950] P 240, at 250, per Hodson J.
194 Shiels v Cruikshank [1953] 1 All ER 874, HL, a Scottish case, but presumably also applicable
to England.
195 [1979] AC 556, HL; Corbett v Barking, Havering and Brentwood Health Authority [1991] 2
QB 408, CA (but multiplier should be adjusted to take account of known facts).
196 Graham v Dodds [1983] 2 All ER 953, HL.
197 For the award of interest generally on damages where the award exceeds £200, the Supreme
Court Act 1981, s 35A.
If the dependants have incurred funeral expenses in respect of the deceased, damages
may be awarded in respect of those expenses.'°* But in assessing damages payable to
a widow in respect of the death of her husband, there shall not be taken into account
the remarriage of the widow or her prospects of remarriage.'”
It will be recalled that subject to certain conditions, persons living together as man and
wife, though not married, are treated as ‘dependants’.”” In assessing their damages
the court has to take into account the fact that the dependant had no enforceable right
to financial support by the deceased as a result of their living together.2”'
To what extent can the courts take account of events occurring between the death and
trial? If such an event enables the courts to fix more precisely that which they are
otherwise called upon to estimate, they must have regard to that event.”” Thus, they
have taken into account that, before trial, the defendant died;?° that war broke out
(reducing the deceased’s life expectancy); that tax rates had been reduced.?° Each
of these events enables the courts to quantify more precisely a dependant’s loss of
contribution from the deceased. Hypothetical events which would, but for the deceased’s
death, have increased the dependant’s dependency will not be taken into account. So
the claimant widow’s greater prospective loss had she, as she would have so desired,
given up work to have a family, was rightly disregarded in Malone v Rowan.*” Also to
be disregarded under the 1976 Act are benefits which have accrued or will, or may,
accrue to any person from his estate, or otherwise, as a result of the death.”””
The assessment of damages in a Fatal Accidents Act claim can thus be seen to be
relatively straightforward where what is in issue is the loss of a family breadwinner.
The dependent family seeks to replace the lost income of the deceased parent. In
recent years the courts have recognised that the death of a parent gives rise to other
pecuniary losses over and above any loss of earned income. A series of cases have
considered how damages should be assessed where a mother is tortiously killed. It
may be that at the time of her death she was not working outside her home, or was only
doing so on a part-time basis. The fundamental principle is that the widower and
children are entitled to compensation based on the reasonable cost to them of replacing
the mother’s services in the home.” The starting point for that assessment where the
children are under school age,”” will be the national cost of hiring a nanny/
198 Section 3(3) of the Fatal Accidents Act 1976, s 3(5).

199 Fatal Accidents Act 1976, s 3(3). Her remarriage prospects might affect awards to her children:
Thompson v Price [1973] QB 838.
200 If an unmarried father is killed, even if the mother of his children has no claim, their children
recover the loss of all the benefits which their father had provided for them, including such
benefits given to the mother for the children’s advantage — eg, the cost of her air fares for a
family holiday: K v JMP Co Ltd [1976] QB 85, CA.
202 Corbett v Barking, Havering and Brentwood Health Authority [1991] 2 QB 408.
203 Williamson v John I Thornycroft & Co Ltd [1940] 4 All ER 61, CA.
204 Hall v Wilson [1939] 4 All ER 85.
205 Daniels v Jones [1961] 3 All ER 24, CA.
206 [1984] 3 All ER 402.
207 Fatal Accidents Act 1976, s 4.
208 Hay v Hughes [1975] QB 790; Corbett v Barking, Havering and Brentwood Health Authority
[1991] 2 QB 408, CA. atid
209 The court in Spittle v Bunney [1988] 3 All ER 1031, CA assumed a diminishing need for
‘motherly services’ once a child is settled at school.
housekeeper.?'? Allowance will be made for the fact that mothers do not work fixed
hours and do not limit themselves to cooking, cleaning and routine tasks. They provide
more general care and moral guidance and those wider ‘motherly services’*'' should
be reflected in the award of damages. Where the father,’”” or other relative,”'* has given
up work to take over the mother’s duties, and in the light of the children’s needs, that
is a reasonable course of action, compensation may be based on his loss of earnings
rather than the cost of a nanny.
What is said above assumes the existence of a nuclear family where the mother stays
at home providing 100% of the child care and the father earns 100% of the family
income. That, of course, is seldom these days the case. If the mother, too, is in regular
employment, the children will suffer a loss of family income which they can obviously
claim. They will also lose her ‘motherly services’ which can be compensated (subject
to a ‘modest’ discount because the mother did not provide full-time care*"’). Interestingly,
in Hayden v Hayden,’'* it was held that if the father in effect undertook most of the
mother’s responsibilities after her death there was no loss to the child in this respect.
Yet Hayden v Hayden must be contrasted with Stanley v Saddique’'® where the child’s
parents were not married. On the death of the mother, the father undertook full
responsibility for his son and soon remarried. The evidence suggested that the
stepmother was likely to make a much better parent than the deceased mother. The
defendants argued that the benefit conferred by the acquisition of a stepmother more
than cancelled out the loss of the original mother’s services. But the court held that
section 4 of the Fatal Accidents Act 1976 prevented any such ‘benefit’ being taken into
account.?!”
The two decisions can only be reconciled by understanding that in every case the
assessment of damages in a fatal accidents claim revolves around the special facts of
a particular family. In Stanley v Siddique the boy had been solely cared for by his
mother, however inadequately. He lost that care and the benefit conferred by an excellent
stepmother could not offset that loss. In Hayden v Hayden the father had shared in the
care of his daughter. When his wife was killed he simply continued to act as a loving
father, increasing his parenting role to make up for the loss of the mother. The child, it
was held, suffered a much lesser loss. In Watson v Willmott*'* both parents ultimately
died as the result of a road accident and the infant claimant was adopted by his aunt.
He recovered for his loss of financial dependency on both parents,”'° but nothing for
loss of ‘motherly services’. The adoption imposed a legal obligation on the adoptive
210 Based on the net rather than the gross wage payable: Spittle v Bunney [1988] 3 All ER 1031,
CA.
211 Regan v Williamson [1976] 2 All ER 241.
212 Mehmet v Perry [1977] 2 All ER 529 (note the special needs of these children who suffered
from the hereditary disease thalassaemia).
213 Cresswell v Eaton [1991] 1 All ER 484 (aunt gave up job as a traffic warden).
214 Cresswell v Eaton [1991] 1 All ER 484.
215 [1992] 4 All ER 681, CA.
216 [1992] QB 1, CA.
217 On the broad meaning of ‘benefit’ in this context see also O'Loughlin v Cape Distribution Ltd
[2001] EWCA Civ 178, CA (business flair of the deceased a benefit for the purposes of s 4).
218 [1991] 1 QB 140 (note the judge’s finding that the child’s right of action survived the
adoption).
219 Based on the difference between the level of support his natural and adoptive parents could
provide.
Compensation
for personal injuries and associated losses 6\7
mother to provide such care, thus in effect ensuring the boy suffered no loss in that
respect.
Although Hayden v Hayden and Watson v Willmott may appear objectionable, they
are consistent with the House of Lords’ approach to the non-recoverability of gratuitous
services provided by a tortfeasor to the victim of that tort in Hunt v Severs.22°
Section 4. Alternative compensation systems”?!
(A) Responsibility and the welfare state?”

Public responsibility for personal injury victims is recognised in the existence of a
safety net of a number of benefits and provisions made for such persons. The plethora
of systems which leads to confusion and inequality can only be explained here in
outline.
(1) The welfare state provides essential services for accident victims in two main
respects. Medical advice and treatment for injury and disease are largely available
free within the National Health Service. The victim of a tort, however, retains the
option to elect for private treatment and to charge the cost of that treatment to the
tortfeasor.’*? Where long-term care is required, that advantage may be substantial
in nature. The Chronically Sick and Disabled Persons Act 1970 empowers local
authorities to provide benefits and services for the disabled. In theory, that Act
should ensure that all accident victims may be provided with home helps, holidays
and assistance in adapting their homes. In practice, however, pressure on local
authority budgets means that only minimal benefits and services may in fact be
available. The tort victim can, as we have seen, claim the total estimated cost of
such services as part of his proper measure of damages.
(2) A wide range of social security benefits is available to persons incapable of work
by reason of accident or disease.*** The level of payments made is at a subsistence
rate, and generally far lower than the loss of earnings suffered by the incapacitated
victim. Certain of the non-means-tested benefits are also payable to tort victims
but the Social Security (Recovery of Benefits) Act 1997 now provides that the
state recovers these payments from the tortfeasor.’
One thing is clear in this context: the better off one is to start with, the more one
suffers from an incapacity in respect of which one has no remedy in tort. Thus, the
solicitor who succumbs to an inherent risk of surgery stands to lose a great deal
more than the single mother on social security benefits before she is incapacitated.
220 But for criticism see Matthews and Lunney, ‘A Tortfeasor’s Lot is not a Happy One’ (1995) 58
MLR 395. See also Law Commission Consultation Paper 144 and Dimond v Lovell [2002] |
AC 384, HL,
221 See, eg, Atiyah and Stapleton, ‘Tort, Insurance and Ideology’ (1995) 58 MLR 820. .
222 See generally Oxford Socio-Legal Studies, Compensation and Support for Illness and Injury
(1984) and McLean (ed), Compensation for Damage: an International Perspective (1993).
223 Law Reform (Personal Injuries) Act 1948, s 2(4). is!
224 For examples of the kinds of benefit available, see the 10th edition of this work.
225 Section 6. Note that this provision requires that the ‘compensator’, who will usually be D’s
insurer, must pay the full amount of recoverable benefits which may exceed the sum that would
have been payable as compensation. This means that the state never loses out although,
plainly, D might (as might C, depending on future contingencies).
However, if the state has limited resources to compensate for disability it might be
argued that high earners have no special claim for preferential treatment. The
solicitor could, after all, have taken out an insurance policy covering her against
all forms of personal injury or disease. There is a sense in which one could argue
that social provision for disability merely reflects the inherent inequities in our
society.
(3) Certain groups of the disabled may, in addition, receive extra payments related to
their disability. For example, the Vaccine Damage Payments Act 1979 provides for
payments to persons suffering 80% disablement consequent on vaccination.*”*
(B) Other compensation systems
(1) Criminal injuries compensation scheme

The Criminal Injuries Compensation Board administers from government funds a
statutory scheme’ for compensating victims of crimes of violence. If they suffer
personal injury as a result of violent crime or while apprehending (or seeking to
apprehend) a suspect, the Board may award compensation according to a statutory
tariff.
(2) Occupational sick pay

Many members of the workforce are entitled to continued payments from their employer
in replacement of loss of earnings at least in part, for a limited absence from work
through sickness or injury.** But the number so entitled is on the wane.
(3) Occupational pensions

Many millions are members of pension schemes run by their employers, which entitle
them to compensation beyond social security in the event of personal injury compelling
their early retirement.*”’
(4) Industrial injuries scheme
Where injury occurs at work as a result of an industrial accident, a much more generous
scheme provides higher levels of disability benefit than that available within the basic
social security provision.
226 Vaccination of children against diseases such as whooping cough, measles and diphtheria
benefits the community as a whole. The rationale of the Act is that it is unjust to leave one
family to bear alone the burden of any damage resulting from vaccination. Haemophiliacs who
have contracted AIDS from the contaminated transfusions successfully argued that they entrusted
themselves to the NHS and that they should not shoulder the total cost of the unknown danger
lurking in the blood products on which they relied. The Department of Health agreed to set up
a fund to compensate haemophiliacs who had contracted AIDS from blood products. Several
months later the government reluctantly agreed to a similar scheme to cover patients
contracting AIDS from whole blood transfusions.
227 The basis for this scheme is the Criminal Injuries Compensation Act 1995.
228 Pearson Report, para 137.
229 For details, see Pearson Report, para 145 et seq.
(5) Trade unions and charities

A small percentage of employees receive some payment from trade unions or friendly
societies during absence from work owing to sickness or accident. Many charities also
support the sick and disabled.
(6) Insurance
In many cases, the person killed or injured will have taken out an insurance policy
providing for benefits in the event of his death or personal injury.° There are three
main forms of this first-party insurance.”*'! The most common is a life policy providing
a guaranteed minimum sum on death. Personal accident policies cover death, loss or
disablement resulting from accidents for a prescribed period. Permanent health policies
provide periodic payments if the insured person becomes unable to follow his usual
occupation because of sickness or accident. Sometimes these forms of insurance are
provided by employers for their staff.
The Pearson Report estimated that about one-half of the total compensation for
personal injury and death comes from social security and a quarter from the tort system.
The remaining quarter comes from the other sources listed above. These figures show
how limited a view of accident compensation is obtained if one examines only tort, and
ignores these other sources of compensation.
(C) The Pearson Report

In 1974 the Royal Commission on Civil Liability and Compensation for Personal Injury
was set up under the chairmanship of Lord Pearson. It reported in 1978. The fundamental
issue confronting the Commission was the respective merits of a tort system and a
social welfare system. After comprehensive consideration of the various arguments,”*
the Report rejected widespread adoption of a social welfare system. In significant
measure, this was because it lacked data on the probable cost of a comprehensive
accident and disease scheme, but also because it saw justice in having those at fault
make reparation. Its basic proposal was to retain the mixed system of tort law and
social security, with a gradual swing towards social security. It made 188 detailed
proposals of which one of the most interesting was a proposal to bring road traffic
accidents”*? within social security schemes on the model of industrial injuries.
A wholesale change to a social welfare system which abandons ‘fault’ is highly
improbable in this country, at least in the foreseeable future. In particular categories of
accident, however, there has been some pressure for limited ‘no-fault’ compensation
systems. For example, the Pearson Report in its chapter on medical injury recommended
against immediate implementation of a ‘no-fault’ scheme for medical accidents, but
230 Much more widespread is insurance against fire or damage to one’s buildings, homes, furniture
or car, where the insured has a right of subrogation against tortfeasors.
231 For greater detail and for arguments in favour of augmenting first-party insurance, see Atiyah,
The Damages Lottery (1997).
232 For details of some of the more fundamental arguments, see the 10th edition of this work.
233 For the problems of such a scheme actually implemented in France see Redmond-Cooper, “No
Fault Liability on French Roads’ in McLean (ed), Compensation for Damage: an International
Perspective at p 115.
expressly accepted that ‘changing circumstances’ mighf*cause that decision to be

reviewed. But on what rational grounds should victims of medical accidents be singled
out for special treatment? The damage done to good medical practice and doctor/
patient relationships by the increasing pace of medical litigation is often cited by
proponents of a ‘no fault’? scheme for medical injuries. Furthermore, the concept of
‘fault’ may seem especially unjust when applied to a junior doctor making an error after
a 48-hour shift in an under-resourced hospital.
It is equally to be noted that a piecemeal implementation of ‘no fault’ schemes would
be potentially problematic: it would simply add to the plethora of present compensation
systems.
CHAPTER 28
Extinction of remedies
In this chapter, we consider various ways in which remedies in tort may be extinguished
so as to free the defendant from any (continuing) liability.
Section |. Waiver
The circumstances in which waiver will extinguish liability in tort were neatly summarised
by Lord Atkin in the following terms:
If a man is entitled to one of two inconsistent rights it is fitting that when with full
knowledge he has done an unequivocal act showing that he has chosen the one
he cannot afterwards pursue the other, which after the first choice is by reason
of the inconsistency no longer his to choose. !
Thus, a lessor who has brought ejectment proceedings following breach of covenant
cannot afterwards sue for rent.’ Similarly, when an act is done professedly on behalf of
a principal but in fact without his authority, the election by the principal to ratify
deprives him of a later action alleging breach of authority.’
Nonetheless, “[i]t is essential to bear in mind the distinction between choosing one of
two alternative remedies, and choosing one of two inconsistent rights.’* For merely to
choose one remedy is not necessarily inconsistent with the continued availability of
another remedy. For instance, misdelivery by a carrier gives alternative remedies for
breach of contract and conversion; and a buyer who has failed in an action for rescission
may subsequently recover damages in deceit. In many of these cases of alternative
remedies ‘the [claimant] has never the slightest intention of waiving, excusing or in
any kind of way palliating the tort’.° Obviously, then, where there is no evidence of
1 United Australia Ltd v Barclays Bank Ltd [1941] AC 1, at 30, HL. But see Hedley, ‘The Myth
of Waiver of Tort’ (1984) 100 LQR 653.
2 Jones v Carter (1846) 15 M & W 718.
Verschures Creameries Ltd v Hull and Netherlands Steamship Co Ltd [1921] 2 KB 608, CA.
4 United Australia Ltd v Barclays Bank Ltd [1941] AC 1, at 29, HL, per Lord Atkin. See also
Burrows, Understanding the Law of Obligations (1998) pp 40-44.
5 Clarke v Dickson (1858) EB & E 148 (subsequent proceedings (1859) 6 CBNS 453).
6 United Australia Ltd v Barclays Bank Ltd [1941] AC 1, at 28-9, HL, per Lord Atkin.
waiver, and no inconsistency, the claimant will not be deprivéd of his alternative remedy.
Thus, if someone finds that a thief has stolen his jewellery, he does not, by maintaining
an action for restitution of the proceeds, thereby say in effect: ‘It is my intention to
abandon my claim against you for the tort of conversion’.
Nor will the intention to waive a tort be imputed to a claimant merely because he
receives back part of what he has lost, and still less because he demands from the
defendant the price of the goods of which he has been deprived.’ Consider Burn v
Morris.*
C lost a £20 note. X found it, and D bought it from her for £18, knowing that it
was a lost note. When it became known that X had merely found the note, she
was brought before the Mayor of London’s Court where she surrendered £7,
being all of the £18 she then retained. Acceptance by C of this £7 did not prevent
him from recovering the balance from D.
Waiver is equally unlikely to have taken place unless the claimant has full knowledge
of the material facts.°
Finally, in those circumstances examined tn chapter 26, where more than one action can
be brought on the same facts, suing in respect of one of those causes of action will not
be waiver of the remainder.'° A claim may be pursued under parallel causes until such
time as liability is established. An election need normally only be made between
alternative causes at the time of judgment.'' However, in /sland Records Ltd v Tring
International plc'* a caveat to this general rule was introduced: an election ought to
be made sooner than judgment where any delay is both unreasonable and prejudicial
to the defendant.
Section 2. Satisfaction
Where judgment for a sum of money has been given for the claimant against the
defendant and the defendant has satisfied that judgment by payment in full of that
money, this discharges the claim of the claimant arising out of the same facts, not
merely against the defendant, but against any other tortfeasor. Thus, in United
Australia Ltd v Barclays Bank Ltd, Viscount Simon stated that if the claimants had
obtained judgment for restitution against the converters of the cheque, and if the latter
had then satisfied that judgment, the claimants could not subsequently have sued the
bank for the tort of conversion.'? Judgment, not followed by satisfaction, would not,
however, have barred a claim against the bank.
7 Valpy v Sanders (1848) 5 CB 886.

8 (1834) 2 Cr & M 579.
9 [1941] AC 1, at 30, HL, per Lord Atkin. Cf Lord Porter (at 54) who left open this point.
10 Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178, at 199, HL, per Lord
Porter.
11 United Australia Ltd v Barclays Bank Ltd [1941] AC 1, HL. In Tang Man Sit v Capacious
Investments Lid [1996] 2 WLR 192, at 196-7, PC, Lord Nicholls said: ‘The law frequently
affords an injured person more than one remedy for the wrong he has suffered. Sometimes the
two remedies are alternative and inconsistent ... Faced with alternative and inconsistent
remedies a [claimant] must choose, or elect between them ... He is asked to choose when, but
not before, judgment is given in his favour’.
12 [1995] 3 All ER 444.
13 [1941] AC 1, at 21, HL. Cf the situation where the parties merely arrive at a settlement,
which, though embodied in a judge’s order, is not a judgment: Rice v Reed [1900] 1 QB 54, CA.
Section 3. Judgment
Final judgment in a suit has two principal effects. First, the original cause of action is
terminated by its merger in the judgment. Where, therefore, the claimant elects to sue
in conversion rather than for money had and received, although that election does not
amount to a waiver of his alternative remedy, judgment in that suit of conversion, even
if unsatisfied, will bar a further action against the same defendant for restitution.'4
And, of course, in those cases where successive actions on the same facts may not be
brought’ one judgment bars any further proceedings.
Secondly, by virtue of the rule known as res judicata, judgment also operates to
terminate certain other claims by either of the parties against the other. Suppose that A
sues B for trespass to land, and the court decides that A was in possession of the land
and returns a verdict in his favour. If B later sues A for assault in ejecting him from the
land on that occasion, and A raises the defence that he used reasonable force for the
purpose of ejecting a trespasser, B will be estopped by the earlier judgment from
denying that he was a trespasser.'°
Finally, it should be noted that where X causes harm to both Y and Z simultaneously,
Y’s successful action does not bar Z from bringing an action in her own right, later.
And this is so where Z, a child, is dependant upon Y."”
Section 4. Release
Any surrender of a cause of action may legitimately be called a release. But the term is
usually reserved for surrenders by deed. Surrender by deed discharges the cause of
action even though there is no consideration.'* Moreover, a release may discharge
tortious liability regardless of whether it is given before or after the commencement of
the action.”
Section 5. Accord and satisfaction

The terminology used in connection with this method of discharge is confusing, but
the law is clear. If the claimant enters into a valid contract with the defendant to settle
a cause of action, and the defendant performs this contract, the defendant has a
defence to any proceedings by the claimant based on that cause of action. The
agreement is the ‘accord’; satisfaction is used both to mean the ‘consideration’ given
for the claimant’s promise, and the ‘performance’ of that promise.
Whether the cause of action will be discharged by mere agreement — that is, before the
terms of the agreement have been performed — is a matter of interpretation of the
14 Buckland v Johnson (1854) 15 CB 145; approved in United Australia Ltd v Barclays Bank Ltd
[1941] AC 1, at 16-17, HL, per Viscount Simon LC.
15, See" chi.22,
16 This is also known as ‘issue estoppel’. See generally Henderson v Henderson (1843) Hare 100
and Handley, ‘A Closer Look at Henderson v Henderson’ (2002) 118 LQR 397. See also
Johnson v Gore Wood & Co [2002] 2 AC 1, HL.
17. C (A Minor) v Hackney London Borough Council [1996] | WLR 789, CA.
18 For an example of a release of an action in tort, see Phillips v Clagett (1843) 11M & W 84.
19 Apley Estates Co Ltd v De Bernales [1946] 2 All ER 338 (affd [1947] Ch 217, CA, where the
point was not discussed).
agreement.” The significance of interpretation is also evident where the claimant reserves
in the accord the right to litigate the matter at a later date if the injury or loss sustained
turns out to be greater than was initially supposed to be the case,”! and where it is
important whether the agreement was intended to be in ‘full and final settlement’ in
cases involving concurrent (ie, several) tortfeasors.”
Section 6. Limitation of actions”
(A) Introduction
At common law there was no time limit restricting the right to sue. Successive statutes
from 1623 onwards introduced limitation periods after the expiry of which an action in
tort is time-barred. The victim of an alleged tort must serve his writ within a specified
number of years or forfeit his remedy.
The need for limitation periods is self-evident. Potential defendants would otherwise
face years of uncertainty not knowing whether or not they will be sued. A fair trial
becomes increasingly difficult as witnesses’ memories fade and in some cases witnesses
even die or leave the country. Accordingly, even if the claimant begins his cause of
action within the statutory limitation period, his claim may still be struck out if he
prosecutes it in a dilatory manner on the basis that this will amount to an abuse of
process of the court.”
Very short and rigid time limits, however, also result in injustice to the claimant. He may
not discover for some years that he has been the victim of a tort. Common examples
include persons contracting industrial disease, and the losses suffered by the owners
of negligently constructed buildings. Damage to the body from working conditions is
likely to be stealthy and progressive. Definitive symptoms of disease may manifest
themselves years after the disease was in fact well established.*? Similarly, when a
building is erected on defective foundations, cracks may begin to ruin the fabric of the
20 The judgment of Greer LJ in British Russian Gazette and Trade Outlook Ltd v Associated
Newspapers Ltd (1933] 2 KB 616, CA is a very clear judicial exposition of the law. Cf Morris
v Baron & Co [1918] AC 1 at 35, HL, per Lord Atkinson and the alternative ratio decidendi
of Holroyd J in Brewer and Gregory v Sparrow (1827) 7 B & C 310, at 313. See also Lee v
Lancashire and Yorkshire Rly Co (1871) 6 Ch App 527 and Ellen v Great Northern Rly Co
(1901) 17 TLR 453, CA.
21 Lee v Lancashire and Yorkshire Rly Co (1871) 6 Ch App 527; Ellen v Great Northern Rly Co
(1901) 17 TLR 453, CA.
22 Jameson v Central Electricity Generating Board [1999] 2 WLR 141, HL; Heaton v Axa Equity
& Law Life Assurance Society Ple [2002] UKHL 15, HL. Both cases make it clear that if the
agreement is not intended, on its proper interpretation, to be in ‘full and final settlement of
the claim’, C will still have the right to sue the other tortfeasor(s) with whom no such
agreement has been reached. And this is the case even if it would lead to apparent ‘double
compensation’.
23 See further Law Com 270, Limitation of Actions (2001).
24 Grovit v Doctor [1997] | WLR 640, at 647, HL, per Lord Woolf; Arbuthnot Latham Bank Ltd
v Trafalgar Holdings Ltd [1998] 2 All ER 181, CA.
25 See, eg, Cartledge v E Jopling & Sons Ltd [1963] AC 758, HL (pneumoconiosis from inhaling
dust); Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 (industrial deafness);
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2002] 3 All ER 305
(mesothelioma from inhaling asbestos dust).
building years before they become apparent to even the most prudent homeowner.” It
would scarcely be fair to deny the worker suffering from disease or the unfortunate
homeowner any remedy at all simply because a rigid limitation period had expired
before they could have realised that they might have a right to compensation.
The relevant and complex law on limitation is now mainly contained in the Limitation
Act 1980 (as amended by the Latent Damage Act 1986).2’ In the case of actions for
injury caused by negligence, nuisance or breach of duty — whether the duty exists by
virtue of a contract, a statute’* or independently of either a contract or a statute — when
the damages claimed by the claimant consist of, or include, damages in respect of
personal injuries to the claimant or any other person, the period of limitation is three
years.” In cases of actions for negligence, other than for personal injuries or death, the
Latent Damage Act 1986” introduced a primary limitation period of six years (with
provision in special circumstances for a further period of three years to run from the
‘starting date’ set by that Act, subject to a final ‘long-stop’ of 15 years).
An action for libel and slander must be brought within one year, with discretion to
allow the action to proceed despite the expiry of the one-year period.*! Where the
claimant sues in respect of a defective product under the strict liability regime contained
in the Consumer Protection Act 1987, he or she must normally bring the action within
three years of suffering the relevant damage, or within three years of acquiring the
necessary knowledge of the facts to sue if that date be later.** No action may be
brought under the Consumer Protection Act 1987 more than 10 years after the product
was first put into circulation.** The claimant may still have an action in negligence after
that date where, even by then, he has not discovered his injury or damage or other
relevant facts pertaining to his right of action in negligence. The limitation period for
other tort actions remains six years.**
The three-year period of limitation for personal injuries applies only to ‘any action for
negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract
or of a provision made by or under a statute or independently of any contract or any
such provision)’.*°
26 See Anns v Merton London Borough Council [1978] AC 728, HL; Pirelli General Cable Works
Ltd v Oscar Faber & Partners [1983] 2 AC 1, HL. But note that both decisions must now be
read subject to Murphy v Brentwood District Council [1991] 1 AC 398, HL.
27. For recommendations in favour of a streamlined, unitary approach to the limitations of
actions in this context, see Law Com 270, Limitation of Actions (2001).
28 A breach of a duty embodied in Community law that causes C to suffer the infringement of a
right created by Community law will be treated in the same way as the breach of a domestic
statutory duty: R v Secretary of State for Transport, ex p Factortame Ltd (No 7) [2001] 1 WLR
942.
30 By inserting a new s 14A into the Limitation Act 1980.
31 Limitation Act 1980, s 4A.
32 Consumer Protection Act 1987, s 5(5) and Sch I.
33 Consumer Protection Act 1987, s 5(5) and Sch f.
The term ‘personal injuries’ includes any disease and any impairment of a person’s
physical or mental condition.*° But what exactly is meant by the broad phrase breach
of duty? In Letang v Cooper,*’ Lord Denning MR held those words to include any
breach of any duty imposed by the law of tort. Thus where a claimant sought to sue in
trespass to the person more than three years after the commission of the alleged
trespass,*® her action was barred. However, the House of Lords has now ruled in
Stubbings v Webb*’ that Lord Denning was wrong. Availing themselves of their new
freedom to consult Hansard,” their Lordships held that Parliament never intended the
three-year limitation period to apply to deliberate torts such as trespass to the person.“!
Such torts were governed by the standard six-year period of limitation.
Any apparent advantage to the victim of a trespass action is however misleading. For
although trespass does not fall within the three-year personal injuries rule, the claimant
cannot take advantage of the special provisions permitting a claim exceptionally to be
brought well after the original limitation period has expired.” Stubbings v Webb itself
illustrates the claimant’s dilemma. The claimant claimed that her adoptive father and
stepbrother had sexually abused her in childhood. She sought to sue them in battery
when she was 35 years old and came to appreciate the link between her ongoing
psychiatric problems and that childhood abuse. The House of Lords ruled that her suit
was subject to an absolute six-year limitation period. But had she, for example, been
able to sue social workers whom she might have contended had negligently ignored
her plight, the personal injuries rules would have come into play giving the court the
discretion to allow her to proceed even after such a long period of time. This is certainly
true where the action is brought against a mother for failure to prevent paternal abuse.*
(B) When does a cause of action accrue?

A cause of action accrues, and hence the limitation period begins to run, at that
moment in time when a potential claimant is entitled to succeed in an action against a
potential defendant.* There must then be in existence such a claimant and defendant.
If, for example, a tort is committed against the estate of a deceased person, and if his
goods are taken away, the cause of action does not accrue until an executor or
administrator is appointed.*° A cause of action against an ambassador does not accrue
36 Limitation Act 1980, s 38(1). It also seems capable of embracing the failure to make proper
provision for someone suffering from a congenital learning difficulty: Phelps v Hillingdon
London Borough Council [2000] 3 WLR 776, HL.
317, [SESE OBM325CA-
38 Even where the trespass was intentional: Long v Hepworth [1968] 3 All ER 248.
39 [1993] AC 498, HL.
40 See Pepper (Inspector of Taxes) v Hart [1993] AC 593, HL.
41 But note that positively giving permission for an uninsured third party to drive one’s car is not
treated as an intentional tort: Norman v Ali [2000] PIQR P72, CA.
42 If, however, the gist of C’s action is that D was under a duty to prevent a third party from
committing trespass against C, then the case does not fall to be dealt with as a (six-year)
trespass case: S v W [1995] 3 FCR 649, CA.
43 Sv W [1995] 1 FLR 862, CA.
44 More than one cause of action may arise from a single set of circumstances. In Duke of
Brunswick and Luneberg v Harmer (1849) 14 QB 185, D’s newspaper had published a statement
defamatory of C. 17 years later, an agent of C purchased a copy at D’s office. C’s cause of
action accrued upon the sale of this copy, not when the newspaper was first published.
45 Murray v East India Co (1821) 5 B & Ald 204; Pratt v Swaine (1828) 8 B & C 285.
until his diplomatic immunity ends.“ On the other hand, a claimant whose car has been
stolen by a thief whom he does not know and cannot trace has a cause of action
against that thief from the time of the theft.*” When a cause of action lies without proof
of damage, time clearly always runs from the date of the wrongful act.
By contrast, in negligence the cause of action accrues only when damage is suffered;
and in fact this is the case in all torts where damage is essential to the cause of action.
But ascertaining when damage occurs may be difficult. The crucial date is the date of
the damage not its discoverability.** So a claim in respect of negligent construction of
a building prima facie accrues when cracking and subsidence begin,*’ not when the
physical damage becomes patent. Similarly, when a negligently constructed security
gate is the reason for a burglary’s commission, the time runs from the date of the
burglary, not the time of the negligent construction of the gate.*” Where the relevant
negligence consists of negligent advice, the question arises whether the damage
founding the cause of action is suffered when the claimant relies on that advice,>! or
when the subsequent financial loss is suffered. On one argument, loss occurs as soon
as the advice is relied upon because the claimant would not have acted in the way that
he went on to act. A different (but not inconsistent) argument is that, in negligent
valuation cases, no loss can be established until the inaccuracy of the negligent
valuation can be demonstrated at a (necessarily) later stage.*? However, the leading
case of Nykredit Mortgage Bank plc v Edwards Erdman Group Ltd (No 2)°? held that
a purchaser’s course of action accrues at the time of the purchase for, as Lord Nicholls
explained, ‘[h]e suffers damage by parting with his money and receiving in exchange
property worth less than the price he paid.’** The injustice to a claimant who would
otherwise lose his right to a remedy before he could know of its existence explains why
in the tort of negligence special provision is now made for all forms of latent damage
with separate rules for personal injuries and other forms of damage.
(C) Special rules for personal injuries”

The impetus for reform of the limitation rules concerning personal injuries came from
cases relating to industrial disease. Where the claimant contracts some form of
pneumoconiosis from inhaling dust, his cause of action in negligence arises even
though he is unaware of the onset of the disease. In Cartledge v E Jopling & Sons
46 Musurus Bey v Gadban [1894] 2 QB 352, CA.

47 RB Policies at Lloyd’s v Butler [1950] 1 KB 76.
48 Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1, HL. Cf the position
in New Zealand, established by the Privy Council, which renders uncertain the authority of
Pirelli: Invercargill City Council v Hamlin [1996] 1 All ER 756. ion
49 The cause of action against the builders accrues when physical damage occurs. Any claim in
negligence against the local authority in respect of negligent inspection accrues later, when
that damage poses a threat to health and safety: Governors of the Peabody Donation Fund v
Sir Lindsay Parkinson & Co Ltd [1985] AC 210, HL.
50 Dove v Banhams Patent Locks Ltd [1983] 2 All ER 833.
51 Forster v Outred & Co [1982] 2 All ER 753, CA; Secretary of State for the Environment v Essex
Goodman & Suggitt [1986] 2 All ER 69. .
52 UBAF Ltd v European American Banking Corpn [1984] QB 713, CA; First National Commercial
Bank ple v Humberts [1995] 2 All ER 673, CA.
53 [1997] 1 WLR 1627, HL.
54 [1997] 1 WLR 1627, HL.
55 See Jones, Limitation Periods in Personal Injury Actions (1995).
Ltd®° the House of Lords held that, at common law, time started to run as soon as the
damage was suffered. In this case, therefore, time ran once material scarring of the lung
tissue has occurred, even though X-ray examination would not have revealed it. The
Limitation Act 1980°’ seeks to avoid the injustice that might otherwise result when a
cause of action for personal injuries becomes time-barred before the claimant knows of
it. The three-year limitation period begins to run either from the date of the accrual of
the cause of action (ie, the date of the damage) or from the date of the claimant’s
knowledge of that damage, whichever is the later. The limitation period ends only three
years after the date of the claimant’s knowledge of the cause of action if that date is
after three years from the accrual of the cause of action. If the claimant dies before the
expiration of the period, the period as respects the cause of action surviving for the
benefit of the estate of the deceased by virtue of the Law Reform (Miscellaneous
Provisions) Act 1934, s 1 is three years from the date of death or the date of knowledge
of the personal representative.*
Section 14 of the the Law Reform (Miscellaneous Provisions) Act 1934 provides a
detailed definition of ‘knowledge’, the interpretation of which has given rise to
complicated case law. When, in a personal injuries case, time runs from the date of a
person’s knowledge, the date is the date on which he first had knowledge of the
following facts:°?
1 that the injury in question was significant.
2 that the injury was attributable in whole or in part to the alleged wrongful act or
omission.°!
eS) the identity of the defendant;”
4 the identity of a third person (and any additional facts supporting the bringing of
an action against the defendant) where that third person was guilty of the act or
omission on which the claimant’s case hangs.
The case law surrounding these factors has been summarised by the Court of Appeal
and reduced to the following four rules:
S165) [(M9G3iIPACe 758, HL.

58 Limitation Act 1980, s 11(5), (6). For the corresponding application of these provisions to
claims under the Fatal Accidents Act 1976 see ss 12(1) and 33.
59 LR(MP)A 1934, s 14(1). Note that there is an important distinction between ‘knowledge’ and
‘belief’: see Nash v Eli Lilly & Co [1993] 4 All ER 383. C’s intelligence is relevant here
(McCafferty v Metropolitan Police District Receiver [1977] 2 All ER 756, CA), though his
reasons for not suing are not (Miller v London Electrical Manufacturing Co Ltd [1976] 2
Lloyd’s Rep 284, CA).
60 Under LR(MP)A 1934, s14(2), an injury is deemed significant if the person whose date of
knowledge is in question would reasonably have considered it sufficiently serious to justify his
instituting proceedings for damages against D who does not dispute liability and is able to
satisfy a judgment.
61 See Wilkinson v Ancliff (BLT) Ltd [1986] 3 All ER 427, CA. C need not know the precise details
of D’s acts or omissions to set time running, only the essence of the act or omission: Nash v
Eli Lilly & Co [1993] 1 WLR 782, CA. He need not know that the act constitutes an actionable
tort: Brooks v J & P Coates (UK) Ltd [1984] 1 All ER 702; Broadley v Guy Clapham Co
[1994] 4 All ER 439, CA; Dobbie v Medway Health Authority [1994] 4 All ER 450, CA.
62 C may have been knocked down by a hit-and-run driver, or D’s firm may be a member of a
group of interlocking companies — see Simpson v Norwest Holst Southern Ltd [1980] 2 All ER
471, CA.
1 The knowledge required to satisfy section 14(1)(b) of the Law Reform

(Miscellaneous Provisions) Act 1934 is a broad knowledge of the essence of the
causally relevant act or omission to which the injury is attributable.
2 ‘Attributable’ in this context means ‘capable of being attributed to’, in the sense
of being a real possibility.
3 A [claimant] has the requisite knowledge when she knows enough to make it
reasonable for her to begin to investigate whether or not she has a case against
the defendant. Another way of putting this is to say that she will have such
knowledge if she so firmly believes that her condition is capable of being attributed
to an act or omission which she can identify (in broad terms) that she goes to a
solicitor to seek advice about making a claim for compensation.™
4 On the other hand she will not have the requisite knowledge if she thinks she
knows the acts or omissions she should investigate but in fact is barking up the
wrong tree: or if her knowledge of what the defendant did or did not do is so vague
or general that she cannot fairly be expected to know what she should investigate;
or if her state of mind is such that she thinks her condition is capable of being
attributed to the act or omission alleged to constitute negligence, but she is not
sure about this, and would need to check with an expert before she could properly
be said to know that it was.™
Section 14(1) expressly states that knowledge that any acts or omissions did, or did
not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.® In
effect the claimant is deemed to know the legal significance of facts.” Yet it is not only
the claimant’s actual knowledge which is relevant. Section 14(3) makes the following
provision for constructive knowledge.
For the purposes of this section, a person’s knowledge includes knowledge which he
might reasonably have been expected to acquire:
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate
expert advice which it is reasonable for him to seek; but a person shall not be fixed
under this subsection with knowledge of a fact ascertainable only with the help of
expert advice so long as he has taken all reasonable steps to obtain (and, where
appropriate, act on) that advice.
If he consults the expert, he is not prejudiced if the expert fails to find, or inform him of,
the ascertainable facts.” The subsection applies only to knowledge of a ‘fact’. Thus,
if the claimant delays suing because he has received erroneous legal advice, time will
run against him if he has not issued a writ.° Similarly, the subsection is confined to
63 Cf someone who merely suspects that they may have suffered and whose investigation takes
the form of seeking medical (as opposed to legal) advice in order to clarify matters: Sniezek v
Bundy (Letchworth) Ltd [2000] PIQR P213, CA.
64 Spargo v North Essex District Health Authority [1997] PIQR P235, at P242, CA, per Brooke
LJ. See also Griffin, Lawson and Williams v Clwyd Health Authority [2001] EWCA Civ 818.
65 That said, where C’s action relies on D’s omission, ‘knowledge’ cannot exist until C knows that
something else could and should have been done: Forbes v Wandsworth Health Authority
[1997] QB 402, CA.
66 See Brooks v J & P Coates (UK) Ltd [1984] 1 All ER 702.
67. Marston v British Railways Board [1976] ICR 124.
68 If the solicitor’s advice is wrong on the facts (as distinct from the law), time does not start to
Tun.
knowledge and what ought to be known, and it does not extend to reasonable belief or
reasonable suspicion.”
Nevertheless, in exceptional cases, the victim of personal injuries who fails to start his
action in due time may, with permission of the court, still be able to proceed. Thus, the
claimant who had knowledge of all the relevant facts but was unaware of his legal
rights, or the claimant who has received hopeless legal advice, has one last chance to
seek a remedy. By section 33(1) of the 1980 Act, the court may still allow an action to
proceed notwithstanding the expiry of the limitation periods. The court has a discretion
to extend the statutory time limits if it considers it equitable to do so having regard to
the degree to which the ordinary limitation rules prejudice the claimant and the degree
to which any exercise of the power would prejudice the defendant. The court must
have regard to all the circumstances,” including:
(a) the length of, and the reasons for, the delay on the part of C,”!
(b) the effect of the delay on the cogency of the evidence in the case,
(c) the conduct of D after the cause of action arose, including his response to C’s
request for information,
(d) the duration of any disability of C arising after the cause of action,”
(e) the extent to which C acted promptly and reasonably once he knew of the facts
which afforded him a cause of action, and
(f) the steps taken by C to obtain medical, legal, or other expert advice and the nature
of any such advice received.”
A very wide discretion, and one not limited to the six named factors, is given to the
court.” So, for example, the fact that the defendant is insured is a relevant consideration”
as, too, is the fact that the case may involve putting the defendant to greater expense
in defending the action than the action is actually worth.” There is, however, one
restriction: where the claimant has commenced proceedings and then discontinued
them, only in the most exceptional case will discretion be exercised in his favour.”
Recall also that the decision of the House of Lords in Stubbings v Webb” denied the
benefit of any such discretion to the victim of a deliberate tort.
69 Nash v Eli Lilly & Co [1993] 4 All ER 383.
70 A balancing exercise is central to the exercise of this discretion and it is unacceptable simply
to consider the effects of not exercising the discretion on either C or D: KR v Bryn Alyn
Community (Holdings) Ltd (In Liquidation) [2003] EWCA Civ 85, [2003] 1 FCR 385.
Furthermore, it has also been held that the courts should be slow to find the balance of prejudice
in favour Cs in the absence of cogent medical evidence showing a serious effect on Cs’ health:
Robinson v St Helen’s Metropolitan Borough Council [2002] EWCA Civ 1099, [2002] All ER
(D) 388 (Jul).
71 Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 2 All ER 296, HL; Long v Tolchard
& Sons Ltd [2001] PIQR P18, CA.
72 See, eg, Barrow v Consignia plc [2003] EWCA Civ 249.
73 But note that C is not necessarily to be associated with his dilatory (or otherwise negligent)
legal advisers Das v Ganju [1999] Lloyd’s Rep Med 198, CA.
74 Firman v Ellis [1978] QB 886, CA. See also Birkett v James [1978] AC 297, HL; LiffvPeasley
[1980] 1 All ER 623, CA; Hartley v Birmingham City District Council [1992] 2 All ER 213,
CA; Shapland v Palmer [1999] 3 All ER 50, CA; Steeds v Peverel Management Services Ltd
[2001] EWCA Civ 419, (2001) Times, 16 May.
75 Kelly v Bastible (1996) 36 BMLR 51.
76 Nash v Eli Lilly & Co [1993] 4 All ER 383, CA.
77 Walkley v Precision Forgings Ltd [1979] 2 All ER 548, HL; Deerness v John R Keeble & Son
(Brantham) Ltd [1983] 2 Lloyd’s Rep 260, HL.
78 [1993] AC 498, at 552, HL. See also Halford v Brookes [1992] PIQR P175 though in
substance the judgment must now be considered incorrect.
Extinction of remedies 63|
(D) Latent damage in non-personal injuries cases

The special provision made by the Limitation Act 1980, s 11 to assist claimants who
lacked the necessary knowledge to start an action was restricted to actions for personal
injuries. Yet the problems limitation periods pose for the victim of a latent defect can be
just as acute in relation to damage to property. A series of Court of Appeal decisions
sought to establish that the cause of action in such cases accrued only when the
defect was discoverable.” But in Pirelli General Cable Works Ltd v Oscar Faber
&Partners® the House of Lords overruled those decisions as inconsistent with
Cartledge v E Jopling & Sons Ltd.*' The facts in Pirelli highlight the problems of
latent damage.
In 1969, Cs engaged Ds to advise them in relation to building a new chimney. Ds’

design was negligently produced. Cracks occurred in the chimney and it had to
be replaced. Cs first discovered the cracks in 1977 but they first occurred in 1970.
Cs served their writ in 1978 contending that the (six-year) limitation period did
not begin to run until 1977 when they could first reasonably have discovered the
defect.
The House of Lords held that the cause of action accrued in 1970 when the damage
first occurred so the claim was time-barred. Two further acute difficulties for claimants
emerged from the decision in Pirelli. Lord Fraser, in an obiter dictum,” suggested that
where a defect was so gross that the building was ‘doomed from the start’,** time
would begin to run even earlier: from the completion of the building. The result of such
a doctrine that the worse the negligence the more favourable the limitation period
would be to the defendant did not find favour in later decisions.**
The second difficulty arising from the case in relation to latent defects affected
‘subsequent owners’ of buildings. In Pirelli it was said that time did not start to run
again in favour of the subsequent owner once he acquired the property.** But
subsequent owners’ problems were in fact more acute than simply being entitled only
to the tag end of their predecessors’ limitation period. Had they any claim at all in
respect of damage to property to which, at the time damage occurred, they had no title?
The essence of the claim in such a case is a claim for economic loss, for the diminished
value of the property the subsequent owner has acquired. In general, the House of
Lords’ decision in Murphy v Brentwood District Council® has now held such claims
to be inadmissible, yet their Lordships also managed to approve Pirelli as falling
79 See Sparham-Souter v Town and Country Developments (Essex) Ltd [1976] QB 858, CA;
Dennis v Charnwood Borough Council [1983] QB 409, CA.
80 [1983] 2 AC 1, HL.
81 [1963] AC 758, HL.
82 [1983] 2 AC 1, at 16, HL.
83 See Dove v Banhams Patent Locks Ltd [1983] 2 All ER 833; Jones v Stroud District Council
[1988] 1 All ER 5, CA.
84 See, eg, Ketteman v Hansel Properties Ltd [1987] AC 189, HL where the House of Lords
adopted a severely restrictive view of ‘doomed from the start’. The doctrine, if it existed, did
not embrace any latent defect bound at some stage to result in damage to the property: [1987]
AC 189, HL.
85 [1983] 2 AC 1, at 18.
86 [1990] 2 All ER 908, HL. See ch 12.
within the principle of Hedley Byrne v Heller.*’ The ensuing result has been continuing
confusion.**
The Law Reform Committee reported on these several problems concerning latent
damage to property in 1984. Their proposals were largely incorporated into the Latent
Damage Act 1986 which applies not solely to latent damage to property but also to all
negligence actions other than claims in respect of personal injury or death. The Act
took effect by inserting new ss 14A and 14B into the Limitation Act 1980. The limitation
period in actions to which ss 14A and 14B apply are now either six years from the date
on which the cause of action accrued, or three years from the ‘starting date’ when the
claimant had the necessary knowledge of the facts to bring an action. ‘Knowledge’ is
defined in section 14A(6)-(8) in terms virtually identical to those used to define
‘knowledge’ in the original section 14 for the purpose of extending the three-year
period to bring an action in respect of personal injuries.*° Section14B of the 1980 Act
imposes a ‘long stop’ of 15 years from the date of the alleged negligence. Once 15
years have elapsed, no action may be brought, even though the claimant may not have
discovered the relevant damage. Section 14B contains no provision similar to section
33 of the 1980 Act, giving a judge the discretion to override this final limitation period.”!
The Latent Damage Act 1986 represents a worthy attempt at compromise between the
rights of claimants and defendants, but it still leaves some key questions unanswered.
First, sections 14A and 14B apply to actions for negligence. But are they also applicable
to actions for nuisance or breach of statutory duty where the essence of the wrong
complained of is also absence of reasonable care?” Secondly, no clear definition of
damage is provided. Thus, as damage to buildings is often progressive, will the cause
of action accrue when the first crack is judged to have occurred or, if at a later stage,
when?
One matter that was once unclear has now been clarified by the Court of Appeal. The
Latent Damage Act 1986 is applicable only to actions in tort.” But, notwithstanding its
inapplicability to contractual duties of care, some contractual relationships may still be
governed by this limitation period where concurrent duties are owed in both contract
and tort.** According to Henderson v Merrett Syndicates Ltd,” the claimant is entitled
to rely on that limitation period which is most advantageous to him.
Section 3 of the Latent Damage Act 1986 addresses the rights of successive owners of
property. It provides that where a cause of action has accrued to A while he has an
interest in that property, ‘then providing B acquires the property’ ... after the date on
which the original cause of action accrued,
87 [1990] 2 All ER 908, at 919, HL, per Lord Keith.

88 See McKendrick, ‘Pirelli Re-examined’ [1991] Legal Studies 326.
89 Twenty-fourth Report; Latent Damage Cmnd 9390.
90 See, eg, Spencer-Ward v Humberts [1995] 06 EG 148, CA. In assessing C’s knowledge, account
will be taken of misleading advice that has been provided by ‘experts’ in the past that now
prevents C from knowing that an actionable case exists: Oakes v Hopcroft [2000] Lloyd’s Rep
Med 294, CA.
91 But see the Latent Damage Act 1986, s 2 regarding fraud, concealment or mistake.
92 For a ‘yes’ answer, see James, ‘Statutory Liability for Negligence and the Latent Damage Act
1986’ [1994] NILQ 301.
93 Iron Trades Mutual Insurance Co Ltd v JK Buckenham Ltd [1990] 1 All ER 808; Société
Commerciale de Réassurance v ERAS (International) Ltd [1992] 2 All ER 82n, CA.
94 Note that many professional-client relationships would fall into this bracket.
95. [1995] 2, AG 145, Hie
but before the material facts about the damage have become known to any
person who, at the time when he first had knowledge of the facts, has any
interest in the property; a fresh cause of action in respect of that negligence
shall accrue to that other person on the date on which he acquires his interest in
the property.
The limitation period as against the new owner is once again either six years from when
his cause of action accrued (ie, his acquisition of the property) or three years from
when he acquired knowledge of the relevant facts (subject once again to the 15-year
‘long stop’ in LA 1980, s 14B).
Three further points must be noted about LDA 1986, s 3. First, and most importantly,
how can s 3 be reconciled with Murphy v Brentwood District Council which generally
denies the existence of any duty of care in such cases?” Note that in Murphy, s 3 did
not even get a passing mention from their Lordships! Secondly, although drafted with
defective buildings in mind, it applies to all property including goods. Finally, the new
cause of action for the subsequent property owner arises only where his predecessor
did not have any actual or constructive knowledge of the relevant defect.”
(E) Continuing wrongs

Where the act of the defendant is a continuing wrong — eg, if he erects a building on
the claimant’s land and there is a continuing trespass — so long as it endures, any
cause of action will lie providing it is based on the continuance of that wrong during
the six years (or three years in the case of personal injuries) immediately preceding the
action.”®
(F) Effect of disability of the claimant

If, on the date when any right of action accrued, the person to whom it accrued was a
minor or a person of unsound mind,” the action may be brought at any time before the
expiration of six years (or three years in the case of personal injuries) from the date
when the person ceased to be under that disability, or died, whichever event first
occurred. '°°
Where the cause of action has once vested in a person who is free from disability, and
the period has therefore began to run, should that person or some other person to
96 Murphy does not deny a duty of care where the defective property poses a threat of damage to
other property, nor does it do so where the property damage is of the kind often referred to as
‘complex structure’ damage. These would appear to be the only two exceptions to the seeming
redundancy of s 3 in this context.
97 In what circumstances (if any) could the subsequent owner sue the vendor who failed to disclose
his knowledge of the relevant defects?
98 Hardy v Ryle (14829) 9 B & C 603; Earl of Harrington v Derby Corpn [1905] | Ch 205.
99 By Limitation Act 1980, s 38(3) ‘a person is of unsound mind if he is a person who, by reason
of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing
and administering his property and affairs’. The court will not strike out an action by an infant
claimant for negligence for mere inactivity on his part before his 21st birthday: Tolley v Morris
[1979] 2 All ER 561, HL. a
100 Limitation Act 1980, ss 28(1) and 28A. For an illustration of the operation of these provisions
see again Stubbings v Webb [1993] AC 498, HL. See also Tolley v Morris [1979] 2 All ER 561,
HL.
whom the cause of action has passed subsequently become disabled, the period will
not on that account be further extended.'®' When a right of action which has accrued
to a person under disability vests, on the death of that person while still under a
disability, in another person also under a disability, there also no further extension of
time shall be allowed by reason of the disability of the second person.'” Where a
person, in whom a cause of action has vested, was, at the moment of vesting, under
one disability, for example minority, and, at or before the cessation of that disability,
becomes insane, time does not begin to run until he has ‘ceased to be under a
disability’,'°’ that is until the last of his disabilities has ended.
The fact that disability may persist for a very long time obviously works to the
disadvantage of the defendant. But according to Headford v Bristol and District
Health Authority it was not an abuse of process to institute proceedings after a 28-
year delay, even though the delay was apparently unjustified other than in terms of the
Act’s provision for extension of the limitation period.
(G) Postponement of limitation period in cases of fraud or

concealment
Where the action is based on the fraud of the defendant or his agent, or of any person
through whom he claims'® (or that person’s agent), or where any fact relevant to the
right of action is deliberately concealed by any such person, the period shall not begin
to run until the claimant has, or with reasonable diligence could have, discovered the
fraud or concealment.'® It is not sufficient if the defendant has merely concealed facts
that would strengthen the claimant’s claim; they must be central to him framing such a
claim in the first place.'"’ On the other hand, once a cause of action has arisen,
subsequent concealment of facts relevant to the claimant’s action will postpone the
running of the limitation period.'®*
A tort is ‘based upon fraud’ only where fraud is a necessary allegation in order to
constitute the cause of action.'” (Presumably, deceit is the only tort based upon fraud
in this sense.) Deliberate commission of a breach of duty in circumstances in which it
is unlikely to be discovered for some time amounts to deliberate concealment of the
facts involved in that breach of duty.''® The House of Lords — despite the ambiguity of
the language used in the provision (‘deliberate conduct’ does not necessarily imply
deliberate harm) — has made it clear that moral wrongdoing on the part of the defendant
10 — Limitation Act 1980, s 28(2). But in personal injury actions, the court may take account of
this factor in deciding whether to exercise its s 33 discretion to extend the limitation period.
104 [1995] 6 Med LR 1, CA.
105 In Eddis v Chichester Constable [1969] 2 Ch 345, CA, these words included the tenant for life
where Cs were the trustees and owners of an heirloom fraudulently sold by the tenant for life.
107 Cv Mirror Group Newspapers Ltd [1996] 4 All ER 511.
108 Sheldon v RHM Outhwaite (Underwriting Agencies) Ltd [1996] AC 102, HL.
109 Beaman v ARTS Ltd [1949] 1 KB 550, CA (conversion not an action based on fraud).
110 Section 32(2). See also Beaman v ARTS [1949] 1 KB 550, CA.
is an essential ingredient.''' ‘Fraud’ in the Act is to be interpreted very widely.'' It

appears, rather than to bear any technical meaning, to signify simply ‘conscious
wrongdoing’ .'!3
Section 7. Death
The Law Reform (Miscellaneous Provisions) Act 1934''* provides that on the death of
any person all causes of action subsisting against, or vested in him, shall survive
against (or as the case may be, for the benefit of) his estate. But this does not apply to
causes of action for defamation. If the claimant dies, the damages recoverable for the
benefit of his estate shall not include exemplary damages.
The right of a person to claim for bereavement under section 1 A of the Fatal Accidents
Act 1976' does not survive for the benefit of his estate.''° No damages may be
awarded for loss of income in respect of any period after the death of the injured
person.''” If the claimant dies after the expiry of the limitation period, the claim does not
survive in cases of personal injury. However, it is open to his personal representatives
to ask the court, under the discretionary provisions of section 33 of the Limitation Act
1980''8 to waive the limitation period.
If the claimant dies before the limitation period expires, a new limitation period begins
to run under the Limitation Act 1980.''? This new period is three years from either the
date of death, or from the date of the personal representative’s knowledge, whichever
is the later.
111 Cave v Robinson Jarvis & Rolf [2002] UKHL 18, [2003] 1 AC 384: the moral wrongdoing on
the part of the defendant must exist either in respect of the act that constitutes the breach of
a duty or in connection with the concealment of a duty that was breached without any malice.
112 Beaman v ARTS [1949] 1 KB 550, CA, per Singleton LJ; Kitchen v Royal Air Force Association
[1958] 2 All ER 241, CA.
113 Beaman v ARTS [1949] 1 KB 550, at 572, CA, per Singleton LJ.
114 Law Reform (Miscellaneous Provisions) Act 1934, s 1(1).
115 See above.
118 Limitation Act 1980, s 33(4), (5).
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CHAPTER 29
Capacity and parties
Section |. The Crown
(A) Vicarious liability

By the Crown Proceedings Act 1947, s 2(1):
... the Crown shall be subject to all those liabilities in tort to which, if it were a
private person of full age and capacity, it would be subject in respect of torts
committed by its servants or agents.
Notwithstanding this general statement of the Crown’s vicarious liability, it is clear

that an employee must still be directly or indirectly appointed by the Crown and paid
wholly out of the Consolidated Fund or other specified national funds for this vicarious
liability to be triggered.' The Crown is not, therefore, vicariously liable for the torts of
police officers,’ or for the torts of borrowed servants.
The Act does not define the term ‘Crown’, yet it is clear that the Crown Proceedings
Act 1947 does not apply to the employees of those bodies that are not deemed to be
agents of the Crown. In such cases, the ordinary law affecting public bodies and
public officers will apply and many public bodies fall outside the Act. It is thus
important to be able to determine which public bodies constitute agents of the Crown.
Yet resolving this matter is often difficult. Certainly, the nature of the functions of the
body in question and the extent to which it is under ministerial control, are especially
relevant considerations.*
1 Crown Proceedings Act 1947, s 2(6); unless the relevant tort is infringement of copyright or
any other tort ‘within s 3 of the Act, or detinue, or any other tort affecting property for which
a petition of right formerly lay (s 1). ;
2) For the liability of the chief constable to pay damages out of public funds to those harmed by
a policeman’s torts, see the Police Act 1964, s 48.
3 Tamlin v Hannaford [1950] 1 KB 18, CA.
4 Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584,
HL.
(B) Non-vicarious liability 4

Section 2(1)(b) and (c) of the Crown Proceedings Act 1947 make the Crown liable for
any breach of those duties owed at common law to employees, agents or independent
contractors by an employer, and for any breach of the duties attaching at common law
to the ownership, occupation, possession or control of property.
Section 2(1) does not seem sufficiently wide to take account of all the cases where an
employer is liable otherwise than vicariously. While employers are frequently answerable
for the acts of independent contractors — not because the independent contractor has
committed a tort in the course of his work, but because a duty is imposed on the
employer — section 2 may not be wide enough to cover non-delegable duties of this
sort.» The Crown is liable in tort to the same extent as private persons for breaches of
statutory duty that have been imposed on it, provided the duty is also imposed on
persons other than the Crown and its officers.° If the duty is imposed, not on the
Crown, but directly on its employees, and an employee commits a tort while performing
or purporting to perform those statutory functions, “the liabilities of the Crown in
respect of the tort shall be such as they would have been if those functions had been
conferred or imposed solely by virtue of instructions lawfully given by the Crown’.’
The Crown also has the same liability as other employers under the Employers’ Liability
(Defective Equipment) Act 1969.
(C) Exceptions
(1) Judicial errors

Section 2(5) of the Crown Proceedings Act 1947 provides that the Crown shall not be
liable ‘in respect of anything done or omitted to be done by any person while discharging
or purporting to discharge any responsibilities of a judicial nature vested in him, or any
responsibilities which he has in connection with the execution of the judicial process’.
The first part of the subsection would be otiose if it merely provided that the Crown
shall not be liable wherever the judge has the defence of ‘judicial act’. It seems, therefore,
that whatever doubts there may be about the liability of inferior courts for acts done in
excess of jurisdiction which purport to be in discharge of the judicial function, the
Crown is exempted from liability.’ Presumably the first part of the subsection extends
not only to that limited class of bodies not being courts, stricto sensu, to which the
defence of ‘judicial acts’ applies, but also to other administrative tribunals.’
5 Cf Egerton v Home Office [1978] Crim LR 494: a duty was owed to a sexual offender in prison
to keep a protective watch to guard against his being attacked by fellow prisoners.
6 Crown Proceedings Act 1947, s 2(2). The Occupiers’ Liability Act 1957, s 6 provides that that
Act shall bind the Crown and that the common duty of care imposed by it shall apply as a
statutory duty for the purpose of the Crown Proceedings Act 1947.
7 Crown Proceedings Act 1947, s 2(3). Presumably, this rule also applies where the duty in
question is not also imposed on persons other than employees of the Crown.
8 Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692. Under the Justices of the
Peace Act 1997 (as inserted by the Access to Justice Act 1999) immunity is granted to justices
only in respect of ‘any matter within his jurisdiction’.
9 Is the Crown vicariously liable for a malicious prosecution by the Director of Public Prosecutions?
(2) Armed forces

The Crown Proceedings (Armed Forces) Act 1987 repealed section10 of the 1947 Act
which prevented members of the armed forces suing the Crown in respect of injuries
suffered in the course of their duties, caused by another member of the armed forces
who was on duty. The Act applies only to causes of action arising after its passing,!°
but the Crown Proceedings (Armed Forces) Act 1987 did make provision for the
Secretary of State to revive section 10 for ‘the purpose of any warlike operations in any
part of the world outside the United Kingdom’.
In connection with the fact that section 10 of the Crown Proceedings Act continues to
apply in respect of death and personal injury suffered prior to 15 May 1987, it should
be noted that the House of Lords in Matthews v Ministry of Defence'' rejected the
argument that section 10 was incompatible with the right to a fair trial enshrined in
Article 6(1) of the European Convention on Human Rights and imported into English
Law by virtue of the Human Rights Act 1998. In their Lordships view, section 10
governed a substantive right. As such, the procedural right to a fair and public court
hearing afforded by Article 6 was unaffected. Accordingly, the serviceman in this case
whose illness was attributable to asbestos with which he had come into contact during
his pre-1987 service had no cause of action. Put simply, the argument that section 10
was incompatible with Article 6 could not be sustained because there was no cause of
action to which Article 6 could apply.
Beyond the statute, it was also established in Mulcahy v Ministry of Defence’’ that no
(alternative) common law liability exists. There, the Court of Appeal held that a
serviceman did not owe his fellow servicemen a duty of care in warlike conditions for
it would not be fair, just and reasonable to impose such a duty."
(3) Certain statutes imposing liability in tort

It is doubtful whether the Crown is bound by statutes imposing tortious liability
unless the particular statute has clearly made the Crown liable. However, most modern
Acts making substantial changes in the law of torts have been made expressly applicable
to the Crown.'* .
Section 2. Foreign states

Foreign states cannot be sued in tort in the English courts except as provided in the
State Immunity Act 1978.'° Under that Act, the foreign state is no longer immune for (1)
10 Note also that the effect of the Crown Proceedings Act 1947, s 10 had already been narrowed
somewhat by judicial interpretation of that section: Bell v Secretary of State for Defence
[1986] QB 322; Pearce v Secretary of State for Defence [1988] AC 755; HL,
11 [2003] 1 All ER 689, HL.
12 [1996] QB 732, CA.
13 Note that this decision must now be read in the light of Barrett vyEnfield London Borough
Council [2001] 2 AC 550, HL and Phelps v Hillingdon London Borough Council [2000] 3
14 Eg, Law Reform (Contributory Negligence) Act 1945, the Congenital Disabilities (Civil Liability)
Act 1976, the Civil Liability (Contribution) Act 1978 and the Limitation Act 1980. Statutes
about which the doubt persists include the Defamation Acts of 1952 and 1996.
15 State Immunity Act 1978, s 1. State immunity does not amount to an abrogation of Art 6 of
the European Convention on Human Rights: McElhinney v Ireland (2001) 34 EHRR 323.
an act or omission in the UK"® causing death or personal injury or damage to or loss of
property,'’ (2) obligations arising out of the ownership, possession or use of property'*
and (3) actions for purely financial loss arising from a commercial transaction.'” In this
last instance, however, according to Playa Larga v I Congreso del Partido,” an
ostensibly commercial transaction that is, in truth, undertaken by a state acting in its
governmental capacity will be afforded immunity.”'
Section 3. Ambassadors
The relevant law in relation to ambassadors is contained in the Diplomatic Privileges
Act 1964.” There, ambassadors and their staffs and families are exempt from the
jurisdiction of English courts so long as they continue to exercise their diplomatic
functions.”’ But they are not ineluctably immune from legal liability: they may waive
their procedural privilege and submit to the jurisdiction. Further, once their diplomatic
immunity has ended, actions may be brought against them in respect of causes of
action which accrued during their employment.” Members of the administrative,
technical and service staffs have no immunity for torts committed outside the course
of their duties.
Section 4. Postal services

The relevant law in connection with the tortious liability of postal service providers is
now contained in the Postal Services Act 2000. The general position is governed by
section 90 of the Postal Services Act 2000 which provides immunity in tort for a ‘universal
service provider’® in respect of ‘anything done or omitted to be done in relation to any
postal packet in the course of transmission by post’.”®
Leaving aside the general position, it is provided that limited liability may lie in respect
of inland packages sent by registered post. However, for liability to be imposed, two
conditions must be met. First, the universal service provider must subscribe to a
special scheme provided for by section 89 of the Postal Services Act 2000.7’ Secondly,
the loss or damage must be due to ‘any wrongful act of, or any neglect or default by, an
16 Cf Al-Adsani v Kuwait (2002) 34 EHRR 11(the alleged acts of torture took place in Kuwait).
17 State Immunity Act 1978, s 5.
20 [1983] 1 AC 244, HL.
21 See Kuwait Airways Corp v Iraqi Airways Corp (No 11) [2003] EWHC 31 (painting of wrongfully
retained, requisitioned aircraft).
22 See Sch 1 thereto.
23 The immunity extends to such a reasonable period after an ambassador has presented his
letters of recall as is necessary to enable him to wind up his official business and prepare for his
return to his own country: Musurus Bey v Gadban [1894] 2 QB 352, CA.
24 Nor does the period of limitation begin to run until the privilege expires: Musurus Bey v
Gadban [1894] 2 QB 352, CA.
25 The Postal Services Act, s 4(1) broadly defines such service providers in terms of daily
collections and deliveries at reasonable prices.
26 Under the Postal Services Act 2000, s 90(2), this immunity extends to any ‘officer, servant,
employee, agent or sub-contractor of a universal service provider’.
27 Postal Services Act 2000, s 91(1).
Capacity and parties 64|
officer, servant, employee, agent or sub-contractor of the universal service provider

while performing or purporting to perform in that capacity his functions in relation to
the receipt, conveyance, delivery or other dealing with the packet’.”®
Section 5. Highway authorities

Persons who suffer injuries caused by the defective state of a highway may have
causes of action against highway authorities in negligence, in public nuisance, or for
breach of statutory duty. Indeed, they will often have a choice of action.2’
The liability ofall highway authorities (including the Crown) for such torts is regulated
by the Highways Act 1980. The Act applies regardless of whether the claimant is suing
in public nuisance, negligence or for breach of statutory duty. Section 58(1) of the
Highways Act 1980 provides that:
in an action against a highway authority in respect of damage resulting from

their failure to maintain a highway maintainable at the public expense, it is a
defence (without prejudice to any other defence or the application of the law
relating to contributory negligence) to prove that the authority had taken such
care as in all the circumstances was reasonably required to secure that the part
of the highway to which the action relates was not dangerous for traffic.
Following the pattern of the Occupiers’ Liability Act 1957, the section proceeds to
define some of the criteria which will be relevant in deciding whether the highway
authority has discharged its burden of proving that it took reasonable care. These
criteria, set out in section 58(2) of the Highways Act 1980, are:
(a) the character of the highway, and the traffic which was reasonably to be expected
to use it;
(b) the standard of maintenance appropriate for a highway of that character and used
by such traffic;
(c) the state in which a reasonable person would have expected to find the highway;
(d) whether the highway authority knew, or could reasonably have been expected to
know, that the condition of the part of the highway to which the action relates was
likely to cause danger to users of the highway;
(e) where the highway authority could not reasonably have been expected to repair
that part of the highway before the cause of action arose, what warning notices of
its condition had been displayed.
The Act has received judicial interpretation in a series of cases. The claimant must
prove that the highway is dangerous. A trifling defect such as one flagstone being an
inch higher than the next will not avail the pedestrian who trips.*” The claimant must
further prove that the danger was caused by failure to maintain. An occasional flooding
28 Postal Services Act 2000, s 91(2). Note that various limits on who may sue and the extent of
liability are set by the Postal Services Act 2000, s 92.
29 Simon v Islington Borough Council [1943] KB 188, CA.
30 Meggs v Liverpool Corpn [1968] 1 All ER 1137, CA; Burnside v Emerson [1968] 3 All ER
741, CA. A hole 12’ x 6’ x 3’ deep was held dangerous in Bird v Tower Hamlets London
Borough Council (1969) 67 LGR 682.
or an icy patch in winter is not evidence of failure to maintain.*! But failure to drain a
trunk road that became flooded in consequence rendered the Department of Environment
liable.*? Once the claimant has established these points, the onus is on the defendant
to prove that he did what was reasonably required.*?
The section also provides that:
it is not relevant to prove that the highway authority had arranged for a competent
person to carry out or supervise the maintenance of the part of the highway to
which the action relates unless it is also proved that the authority had given him
proper instructions with regard to the maintenance of the highway and that he
had carried out the instructions.
Presumably the object is to make the highway authority liable whenever an independent
contractor has negligently failed to maintain the highway. And despite some ambiguity
in the language, the courts may be expected to construe it in that way. By contrast,
economic loss occasioned to traders and others by disrepair of nearby roads is not
recoverable in an action for breach of this statutory duty.**
Section 6. Corporations
(A) Liability
Where the liability of an employer for the acts of his employees is in issue, there are
normally four possible situations.
1 The act may be treated as the act of the employer himself so that no issue of
vicarious liability arises.
2 The employer has directed the employee to commit the tort.
3. The employee has committed the tort in the course of his employment.
4 The employee has committed the tort while acting outside the scope of his
employment.*°
The same four possibilities presumably apply where the employer is a corporation. In
the House of Lords case of Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd,**
dealing with the defendant’s plea that the ‘fault’ of a corporation was co-extensive
with that of its employees, Viscount Haldane said of a corporation that:
31 Burnside v Emerson [1968] 3 All ER 741, at 743, CA, per Lord Denning MR.
32 Tarrant v Rowlands [1979] RTR 144. In Bird v Pearce (Somerset County Council third party)
(1979) 77 LGR 753, CA, a local authority was held liable for a collision after it had obliterated
white lines at a junction while resurfacing.
33 Pridham v Hemel Hempstead Corpn (1970) 69 LGR 523, CA (proof that it inspected the
footpath of a minor residential road every three months and kept a complaints book excluded
it from liability). See also Griffiths v Liverpool Corpn [1967] 1 QB 374, CA. The duty to
maintain a highway imposed by the Highways Act 1980, s 41 includes a duty to remove snow
and ice from footpaths, but C who slips on an icy footpath must prove that the authority failed
to take reasonable remedial measures in the circumstances: Haydon v Kent County Council
[1978] QB 343, CA.
34 Wentworth v Wiltshire County Council [1993] 2 All ER 256, CA.
35 This is the only one of the four cases where the employer is not liable.
36 [1915] AG@-705, HL-
[it] has no mind of its own any more than it has a body of its own; its active and
directing will must consequently be sought in the person of somebody who for
some purposes may be called an agent, but who is really the directing mind and
will of the corporation ... That person may be under the direction of the
shareholders in general meeting; that person may be the board of directors
itself...”
In order, then, to be the act of the company in this sense, the act must be of “somebody
who is not merely a servant or agent for whom the company is liable on the footing
respondeat superior, but somebody for whom the company is liable because his action
is the very action of the company itself’.** If somebody of such authority in the
company acts tortiously on behalf of the company the company is liable, not by way
of vicarious liability, but because the tortious act is that of the company itself.>°
Poulton v London and South Western Rly Co“ provides a clear example of the fourth
scenario, an act outside the scope of the employee’s contract of employment.
A stationmaster arrested C for non-payment of the freight in respect of his horse.
Because Ds, his employers, were empowered by statute to arrest passengers for
non-payment of fares but for no other reasons, the court held that the stationmaster
was acting outside the scope of his employment, and that Ds were therefore not
liable.
Thus, in deciding what an employee is or is not impliedly authorised to do, one may be
assisted by considering what his employers may lawfully do.
Campbell v Paddington Corpn is a case in the second class: a corporation was held
liable for the tortious act of its employees on the basis that it had authorised the
commission of the tort.*!
In pursuance of a resolution of the council, D erected a stand on the highway so
that members of the public could view a procession. This act was a public
nuisance which D (the corporation), seemingly, had no authority to perform: the
fact that the act was ultra vires did not prevent the corporation from being held
liable in tort.
Lush J distinguished the Poulton case (and, hence, the fourth scenario) as follows:*
37 [1915] AC 705, at 713; HL.

38 [1915] AC 705, HL. In The Lady Gwendolen [1965] P 294, CA, the Guinness company were
liable for their managerial failure to detect and stop the habitual practice of their ship’s captain
in going full steam ahead in fog through reliance on the fact that his ship was fitted with radar.
39 The director may be personally liable as bailee when goods are stored with his company and he
assumes personal responsibility for their storage: Fairline Shipping Corpn v Adamson [1975]
QB 180. For other circumstances in which a company director may be personally liable see C
Evans & Sons Ltd v Spritebrand Ltd [1985] 2 All ER 415, CA. Cf Williams v Natural Life
Health Foods Ltd [1998] 1 WLR 830, HL (no personal assumption of responsibility by
director); Standard Chartered Bank v Pakistan National Shipping Corp (No 2) [2000] :
Lloyd’s Rep 218, CA (no liability where director merely carrying out his constitutional role in
the company’s governance). See also Watts, ‘The Company’s Alter Ego — An Impostor in
Private Law’ (2000) 116 LQR 525.
40 (1867) LR 2 QB 534.
41 [1911] 1 KB 869.
42 [1911] 1 KB 869, at 878.
That case was only an illustration of the principle that where the wrongful act is
done without the express authority of the corporation, an authority from the
corporation to do it cannot be implied if the act is outside the statutory powers
of the corporation. That principle has no application to a case where the
corporation has resolved to do and has, in the only way in which it can do any
act, actually done the thing which is unlawful and which causes the damage
complained of.
The Campbell case — the only one on the point — seems to support the proposition
that a corporation can be liable for a tortious act arising from an activity beyond the
powers of the corporation. Though unique on the point, the case is perfectly in kilter
with sections 35, 35A and 35B of the Companies Act 1985 abolishing the application of
the ultra vires doctrine to those dealings which take place between a company and
third parties.
(B) Power to sue

Corporations (but not their members”) can sue for any tort other than those of which,
in the nature of things, they could not be victims — for example, assault. That said, in
the context of defamation — for which a corporation may in principle sue — it is important
to identify whether the words in question refer to the corporation or an individual.
Thus, to say of the sole owner of a company that he is a ‘bloody crook’ is a slur on the
individual rather than his company.“
Section 7. Trade unions and other unincorporated bodies
(A) Trade unions
Trade unions are no longer generally immune from liability for their own torts. So far as
liability for negligence, nuisance or other non-economic torts is in issue, if the requisite
elements of the tort are proved, the union is liable just as an individual would be.*
Unions may further be held liable for acts of their members where those acts constitute
one of the economic torts, but only if the member does so other than in contemplation
or furtherance of a trade dispute* and with the authorisation of a ‘responsible person’*’
within the union.** The remaining immunities in this context are made dependent on
support for the employee’s action being approved in a ballot.”
As regards the capacity to sue, section 10 of the Trade Union and Labour Relations
(Consolidation) Act 1992 stipulates that unions are not to be treated as bodies corporate.
43 Thus if a shareholder suffers a loss in the value of his shareholding due to a tort committed
against the company, it is the company, not the shareholder who can recover: see Johnson v
Gore Wood & Co [2002] 2 AC 1, HL.
44 Shendish Manor Ltd v Coleman {2001] EWCA Civ 913, CA.
45 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992), s 20.
46 On the narrow definition of trade dispute see TULRCA 1992, s 244.
47 Widely defined: see TULRCA 1992, s 20.
48 But note TULRCA 1992, s 23: financial limits related to total membership restrict the amount
of damages which may be awarded in such cases.
49 TULRCA 1992, s 226.
Accordingly, unions (unless they are special register bodies — and few are) cannot sue
for defamation.”
(B) Other unincorporated bodies

Here we are concerned with those bodies which apparently exist and carry on their
activities as separate units, but which are not incorporated: members’ clubs, many
students’ unions and friendly societies are notable examples.°!
(1) Liability as defendants
(A) SupsTANTIvE
There are no special rules of tort law to determine whether a cause of action subsists
against the members of an unincorporated association as such. If, on ordinary principles,
there is vicarious liability for the tort of an employee of the association, or if someone
has been ordered to commit an act constituting a tort, or if there is a breach of the
duties of an employer to an employee, a cause of action will be established.
(B) ProceDURAL
More difficult is the problem of who may be made a defendant when such a cause of
action is made out. Four possible solutions must be examined.
1 The body cannot ordinarily be sued in its group name.” In a few cases, statutes
setting up certain bodies have been interpreted as imposing on them a liability to
be sued in their collective names — friendly societies are an example.*
2 There is no legal obstacle to joining all the members of the association as defendants
in proceedings, but the practical inconveniences of doing this in the case of a
large club with a possibly fluctuating membership are obvious.
3 Where numerous persons have the same interest in any proceedings, the
proceedings may be begun and continued by or against any one or more of them
as representing all of them.** However, in many tort proceedings this rule cannot
be invoked because not all the defendants have the same common interest. In
Mercantile Marine Service Association v Toms the facts were as follows.»
Cs wished to make three officers of a guild for the protection of seamen the
representative Ds in a libel action. The court refused to allow this on the
ground that not all the general body of members had the same interest in
resisting the proceedings.
50. Electrical, Electronic Telecommunication and Plumbing Union v Times Newspapers Ltd
[1980] QB 585.
51 But note that friendly societies may be registered as incorporated friendly societies under the
Friendly Societies Act 1992, s 93.
52 London Association for Protection of Trade v Greenlands Ltd |1916] 2 AC 15, HL.
53 Friendly Societies Act 1992; Longdon-Griffiths v Smith [1950] 2 All ER 662.
54 RSC Ord 15, r 12. See also Prudential Assurance Co Ltd v Newman Industries Ltd [1981] Ch
PS).
55 [1916] 2 KB 243, CA.
Obviously, the requirement that all the persons represented should have the same
interest was not met, because not all members of the guild could have published,
or authorised the publication of, the libel. Furthermore, there are, no doubt, many
circumstances where a representative action may be held inappropriate because
different defences are available to the various defendants represented.
4 Actions may sometimes be brought against officers of clubs. There is no procedural
problem here, but such actions will fail unless, according to the ordinary principles
of tort, those officials can be shown to have committed a tort. So, in Robertson v
Ridley, it was held that members of the club committee were not liable to a
member for injuries resulting from the unsafe condition of club premises simply
because they were committee members. Nothing in the rules of the club expressly
imposed such liability on them.*’ On the other hand, in Owen v Northampton
Borough Council® it was held that once a committee (or any ordinary) member of
the club, carrying out a task for the common good becomes aware of a risk of
injury to others, he owes a duty of care to his fellow members.
(2) Capacity as claimants

The body cannot ordinarily sue in its own name except, as in the case of friendly
societies and trade unions, where an intention to permit this can be spelt out in a
statute.
Rules of Court provide for representation orders being made for claimants in the same
circumstances as those laid down for defendants.°’ But how far will the English courts
allow class actions by representatives of very large numbers alleging the infringement
of similar rights? Prudential Assurance Co Ltd vyNewman Industries Ltd® reveals a
wish to keep such actions on a fairly tight rein. A representative action may be brought
by a claimant suing on behalf of himself and all other members of a class, where each
member has a separate cause of action in tort, provided that (i) the relief claimed could
not have the effect of conferring a cause of action on a member who would not have
had a separate cause of action, (ii) all the members shared the same interest, and (iii) the
action benefited the class.
The normal relief is a declaration, and sometimes an injunction (which is obviously
useful where there are numerous small claims of a similar kind). Damages are also
probably available. In the Prudential case the court said that damages could not be
awarded in representative tort actions.°' But it has since been held that this statement
goes to far. In EMI Records Ltd v Riley,” the court directed an inquiry into damages in
a representative action for infringement of copyright, as well as granting an injunction.
56 [1989] 2 All ER 474, CA.

57 The authority to look to club rules for these purposes derives from the decision in Prole v Allen
reported at (1950) 209 LT 183. It was endorsed in Grice v Stourport Tennis, Hockey and
Squash Club [1997] CLY 3859, CA. Relying on the decision in Grice, Hooper J has since
questioned the correctness (but not the ratio) of the decision in Robertson in Melhuish v
Clifford (18 August 1998, unreported, QBD).
58 (1992) 156 LG Rev 23, CA.
SIMRSE Ordilsrn 12:
60 [1981] Ch 229.
61 See also obiter dicta in Markt & Co Ltd v Knight Steamship Co Ltd [1910] 2 KB 1021.
62 [1981] 2 All ER 838.
It held that where the damage is to a property interest, in which the members of the
body have a common interest, it is open to a court to award damages in a representative
action.
Section 8. Partnerships and limited liability partnerships

Partners may be jointly and severally liable to any persons not themselves partners®
for torts committed by any one of them either while acting in the ordinary course of the
business of the firm, or with the authority of co-partners.“ The claimant must show
that he relied on the individual partner’s status as a partner. In addition to this
vicarious liability, each partner may have a primary duty in tort: eg, the occupier’s duty
of care to visitors is owed by each partner in a partnership that occupies premises.
Where the partnership has been established as a limited liability partnership,” the
commission of a tort by any one partner will render liable both that partner personally,
and the limited liability partnership (as principal). The other partners will not be liable
personally on the face of the legislation. But one important issue that is unclear from
the Limited Liability Partnerships Act 2000 is whether the personal involvement of one
partner in linking a client to a second partner can invoke that partner’s personal liability.
Suppose senior partner X recommends to a client, C, that junior partner Y should do
C’s conveyance. Suppose further that X misrepresents that Y is competent. In such a
case, it is clear that Y could be held liable for a negligently performed conveyance, as
could the limited liability partnership. But would X remain immune, or would the personal
assumption of responsibility principle that causes a director to be personally liable in
the case of a limited company be applied in this context, too?
Section 9. Husband and wife

The liability of one partner in a marriage for the torts of the other is to be decided on the
same principles as those applying where the parties are not married. There is no
presumption that one is responsible for the other.®
Section 1(1) of the Law Reform (Husband and Wife) Act 1962 provides that ‘each of the
parties to a marriage shall have the like right of action in tort against the other as if they
were not married’. In most cases where spouses wish to sue each other, the spouse is
a nominal defendant, and the real defendant is an insurance company. Thus,
63 Mair v Wood 1948 SC 83 (M was one of five partners of a trawler injured through negligence
of another partner. Under neither the Partnership Act 1890 nor under any common law rule
unaffected by the Act could the other three partners be vicariously liable for the negligence of
one partner to a fellow partner).
64 Partnership Act 1890, ss 10 and 12; Dubai Aluminium Co Lid v Salaam [2003] | All ER 97,
HL
65 Nationwide Building Society v Lewis [1998] Ch 482. Note that the existence of a partnership
may be implied from an agreement to carry on a business in common where the term
‘partnership’ is not expressly used: Grant v Langley [2001] WL 513090.
66 See Meekins v Henson [1964] | QB 472.
67 This legal entity was created by the Limited Liability Partnerships Act 2000.
68 Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830, HL.
69 Law Reform (Married Women and Tortfeasors) Act 1935, s 3. Husband and wife can be jointly
liable in conspiracy: Midland Bank Trust Co Ltd v Green (No 3) [1982] Ch 529, CA.
significantly, where one spouse is injured in a car accident through the tortious driving
of the other spouse, the victim can collect from the other’s motor vehicle insurers. If
another negligent driver is involved, his insurers will be able to claim a contribution
from the spouse’s insurers on the basis of principles discussed later in this chapter.
Notwithstanding section 1(1), Parliament was also anxious to discourage actions
founded on petty grievances between spouses. Section 1(2), therefore, allows the
court to stay the action ‘if it appears ... that no substantial benefit would accrue to
either party from the continuation of the proceedings’.”” The expression ‘substantial
benefit’ is problematic. For example, when deciding whether to exercise its discretionary
power to stay, the court may have to balance its estimate of how much cash the
claimant is likely to collect in the form of damages against the chance of unhappiness
or even disruption of the marriage resulting from the litigation. It may also inquire
whether any damages awarded will be paid by the spouse’s insurers. Furthermore,
what constitutes a trivial grievance? Should we in this era, for instance, tolerate any
notion of a ‘trivial battery’ against a wife?
Section 10. Mentally disordered persons

The problems here arise mainly from the incomplete analyses often made by the judges
of the states of mind required in particular torts. The case most directly in point is
Morriss v Marsden.”
D violently attacked C, a complete stranger, while he was standing in the entrance
hall of a hotel, and was sued for battery. The defence raised was insanity. The
judge found that D was not in a condition of automatism or trance at the time of
the attack on C, but that his mind directed the blows which he struck; he also
found that at the material time he was a certifiable lunatic who knew the nature
and quality of his act but, because of his lunacy, did not know that what he was
doing was wrong. He nevertheless held that the defence of insanity not to be
applicable.
This case is therefore authority for the proposition that if a mentally disordered person
has that state of mind which is required for liability in battery, then his insanity is no
defence — all that is required in battery is that the defendant must intend to strike the
blow at the claimant. The judge found that he did so intend, and it therefore followed
that he was liable. At a more general level, the case decides that, in tort (as distinct from
criminal law), a defendant who intentionally invades the claimant’s protected interest
will not be excused simply because he was unaware that the invasion was a wrongful
act.
These rules are definite. In every case one has to ask: what state of mind did the
particular tort require? Did the defendant have that state of mind? It follows that in all
torts — including those of ‘strict’ liability —if the defendant’s conduct is, because of his
mental disorder, involuntary and purely automatic, he has a valid defence. Thus, in
Morriss v Marsden Stable J said:
70 Note, too, the provision in s 1(2)(b) to allow property disputes to be dealt with under the
Married Women’s Property Act 1882, s 17.
71 [1952] 1 All ER 925.
... fa person in a condition of complete automatism inflicted grievous injury, that

would not be actionable. In the same way, ifa sleepwalker inadvertently, without
intention or without carelessness, broke a valuable vase, that would not be
actionable.”
In short, one is never liable in torts requiring deliberate acts for one’s involuntary
conduct: if the defendant is so mentally disordered that his conduct is involuntary,
then he has a sound defence. Furthermore, if the tort requires an improper purpose or
malice, his insanity — although it does not render his act unintentional — nevertheless
prevents him from consciously forming the requisite improper purpose. Accordingly,
the insanity will afford him a defence.”
If the defendant’s insanity causes him to be under a delusion about the surrounding
circumstances, then it seems that this will not afford him a defence provided that he did
have that state of mind required by the tort.”
Section I!. Minors
(A) Liability
A person is a minor until he attains the age of 18 years.” Minority as such is not a
defence: but like all other defendants, a minor is not liable for a specific tort if it is
shown that he lacked the required state of mind. Should a one-year-old child pick up a
letter defamatory of X, written by his father, and throw it through the window, whereupon
Y picks it up and reads it, X will have no cause of action for libel against the baby. On
the other hand, a 15-year-old youth who pushed a man into a swimming pool, was held
liable in negligence and trespass.”
(1) Where the act of the minor is also a breach of contract

With certain exceptions a minor is not liable for breach of contract.” Therefore, where
the act of the minor is merely an improper performance of one of the acts contemplated
by such a contract, it will not be open to the person aggrieved to sue him in tort so as
to evade the contractual immunity. On the other hand, if the act complained of, though
72 [1952] 1 All ER 925, at 927.

73 Obiter dicta in some old cases such as Weaver v Ward (1616) Hob 134, which might suggest that
insanity is no defence in trespass, are easily explained: they were voiced at a time when the
courts regarded trespass as a tort of strict liability, and merely inferred, therefore, that want of
intention through insanity would be no defence. Given the premise, the conclusion is sound,
but now that trespass is held not to be a tort of strict liability, they are irrelevant. See also
Denning LJ (obiter) in White v White [1950] P 39, at 48, CA, who would support the dicta in
Weaver v Ward.
74 In Buckley and Toronto Transportation Commission v Smith Transport Ltd [1946] 4 DLR 721
(Ontario CA), D, a driver, had the delusion that his truck was under remote control from head
office. This was a defence to negligence based on a road accident caused by his truck — by reason
of the delusion ‘he did not understand the duty which rested upon him to take care’.
75 Family Law Reform Act 1969, s 1(1).
76 Williams vy Humphrey (1975) Times, 20 February. Cf Wilson v Pringle [1987] QB 237 (13-
year-old schoolboy pulling bag off another).
77. See now Minors’ Contracts Act 1987.
performed upon the occasion of a contract, is independent of it, the claimant may then
sue in tort. Of course, this rule is difficult to apply in marginal cases, but its judicial
recognition is clear. Thus, a minor who had possession of goods under a hire-purchase
agreement, and who wrongfully disposed of them to a third party was liable to the true
owner for the independent tort of detinue which he committed by wrongfully disposing
of them.” The hirer of a mare, hired for riding only, is liable in tort for doing an act ofa
nature not contemplated by the contract (namely jumping the mare); but if he were
merely to ride her too far, this would not be an act of a different nature and no action in
tort would lie.” The fact that the contract was in both cases void against the minor did
not prevent him from being liable in tort.
In this context, the question of suing a minor in tort arises most often where he has
obtained goods or a loan of money under contract by misrepresenting his real age. The
courts have decided that no action in deceit then lies, because that would be tantamount
to allowing the enforcement of a void contract.®°
(2) Liability of the parent

Although a claimant may have no cause of action against the minor, he may sometimes
be able to recover from its parent. The parent is liable only where he is accountable
according to some other general principle of torts. He may be vicariously liable — eg, if
the minor is acting as her father’s chauffeur and drives the car negligently. Similarly,
the father will be liable if he instigates the son’s commission of a tort, and he will be
liable if he himself has been personally negligent.*! Accordingly, a father is not
necessarily liable merely because his son has thrown a stone through his neighbour’s
window. Unless the father ordered him to do so, or unless his negligent supervision is
proved to have caused the act complained of, he will not be liable.
(B) Capacity to sue”

Except that he must normally sue by his next friend, a minor is in the same position as
any other claimant when suing in tort. A child may sue either parent, and may wish to
do so where the parent has an insurance policy (usually a comprehensive household
insurance) which covers the particular liability — eg, if a loose tile from the family home
is carelessly allowed to fall onto the child while playing in the garden.*’ The Court of
Appeal has warned against the danger of too readily imposing liability for the ‘rough
78 Ballett v Mingay [1943] KB 281, CA.

79 Burnard v Haggis (1863) 14 CBNS 45; Jennings v Rundall (1799) 8 Term Rep 335. See also
Walley v Holt (1876) 35 LT 631 and Fawcett v Smethurst (1914) 84 LIKB 473.
80 R Leslie Ltd v Sheill [1914] 3 KB 607, at 612, CA, per Lord Sumner MR.
81 Donaldson v McNiven [1952] 2 All ER 691, CA; Newton v Edgerley [1959] 3 All ER 337. The
duty of school authorities is also to take the care which a reasonable parent would take: see, eg,
Ricketts v Erith Borough Council [1943] 2 All ER 629 and Rich v LCC [1953] 2 All ER 376,
CA.
82 For actions associated with unborn children and unwanted births see ch 12.
83 In Ash v Lady Ash (1696) Comb 357, a daughter sued her mother in false imprisonment and
battery and succeeded, subject to a new trial, to fix damages. See also Young v Rankin 1934 SC
499 (child, who was injured by the negligent driving of his father, could sue his father).
Capacity and parties 65\
and tumble of family life’.** Certainly, it is well established that a parent (or someone
with quasi-parental responsibility) may exercises reasonable chastisement in respect
of the child.** Here, there may be a fear not only of litigation by children against their
parents, but also by children formerly in care against foster parents and local authorities.
But it seems objectionable that children’s rights should be circumscribed.
One other case that clearly does have that effect is Stubbings v Webb.* By imposing
an absolute six year-limitation period for actions in trespass to the person, victims of
child abuse are effectively denied a remedy for their suffering. The capacity of children
to sue for injuries sustained before birth has been considered earlier.”
Section 12. Bankrupts
(A) Liability
In respect of the liability arising from torts committed before bankruptcy, section 382 of
the Insolvency Act 1986 provides that such liability is a bankruptcy debt and provable
against the trustee in bankruptcy. In respect of torts subsequently committed, the
bankrupt remains personally liable but may not, of course, be worth suing.
(B) Capacity to sue

Where the tort protects only a purely personal interest — eg, assault or slander** — the
bankrupt retains the right to sue, and the claim does not pass to the trustee for the
benefit of creditors. Where, however, the purpose of the tort is to preserve property —
eg, the action for recovery of land — or where the damage is in the form of purely
economic loss,® the cause of action passes to the trustee and any suit by the bankrupt
personally may be met by the valid defence that the claimant is a bankrupt.
If there are two separate causes of action, one of which is personal — eg, in respect of
loss of reputation — and the other of which is financial — such as damage to business
interests — the personal right remains with the bankrupt and the proprietary one vests
in the trustee. A split of this kind — between trustee and bankrupt — may only be made
where there is more than one cause of action. If there is only a single cause of action
where the main head of loss is related to a proprietary interest while the remaining head
of loss is of a personal character, the cause of action passes to the trustee. Consider
Hodgson v Sidney as an illustration.”'
84 Surtees v Kingston-upon-Thames Borough Council [1991] 2 FLR 559, CA.

85 See, eg, R v H [2001] 2 FLR 431, CA (allegation of assault by father of his son).
86 [1993] AC 498, HL.
87 See ch 12.
88 Re Wilson, ex p Vine (1878) 8 Ch D 364, CA.
89 In Ramsey v Hartley [1977] 2 All ER 673, CA it was held that a cause of action for negligent
misstatement passed to the trustee. See also Weddell v JA Pearce & Major [1988] Ch 26.
90 Wilson v United Counties Bank Ltd [1920] AC 102, at 131, HL, per Lord Atkinson; Mulkerrins
v Pricewaterhouse Coopers [2001] BPIR 106, CA. Cf Re Kavanagh (1950) 66 (pt 1) TLR 65,
CA.
91 (1866) LR 1 Exch 313, followed in Wenlock v Moloney (1967) 111 Sol Jo 437, CA: the
bankrupt’s conspiracy action was mainly for business and property damage so that not even
the consequential claim for injured feelings and loss of reputation could be pursued by him.
X
C claimed damages for both pecuniary loss and loss of reputation in consequence
of the deceit of D. C had become bankrupt and the court held that D had a valid
defence to the suit by the bankrupt in respect of both heads of damage, because
the main element of*the tort was pecuniary loss, and the personal claim was
merely a separate head of damage, not a separate cause of action remaining
available to the bankrupt C.
The courts have made some surprising decisions in respect of actions for trespass to
land. They have allowed a bankrupt to sue in trespass where he has maintained that
the major part of the damage was not to his property but in connection with his
personal enjoyment of the property.” The principle on which all these decisions have
been based is summarised in the following dictum.”
[T]hose rights of action are given in respect of the immediate and present violation
of the possession of the bankrupt, independently of his rights of property, and
are an extension of the protection given to his person, and the primary personal
injury to the bankrupt is the principal and essential cause of action.
It is submitted that while the principle may be correct in relation to other torts, it is
inappropriate to apply it in relation to trespass. Trespass is actionable per se” and
personal injury is not essential in such an action. Thus, an action for trespass should
be seen as principally (if not entirely) proprietary and should therefore pass to the
trustee.
Section 13. Assignees

A right to sue in tort is not in general assignable” for the law has an interest in
preventing rights of action in tort from being marketable commodities.”° There are,
however, several glosses on this rule.
1 There is an obiter dictum that ‘an assignment of a mere right of litigation is bad ...
but an assignment of property is valid, even although that property may be
incapable of being recovered without litigation’.”’ This rule, if substantiated,”
would be an acknowledgement that actions for the recovery of land or wrongful
interference with goods are often brought to settle title to property disputes.”
92 Brewer v Dew (1843) 11 M & W 625; Rogers v Spence (1844) 13 M & W 571; Rose v Buckett
[1901] 2 KB 449, CA.
93 Beckham v Drake (1849) 2 HL Cas 579, at 612, per Cresswell J.
94 Bush v Smith (1953) 162 Estates Gazette 430, CA.
95 Eg, Defries v Milne [1913] 1 Ch 98, at 109, CA, per Farwell LJ.
96 See, eg, Camdex International Ltd v Bank of Zambia [1998] QB 22, CA, per Hobhouse LJ.
However, it has long been recognised that the assignee of a claim who has ‘a genuine commercial
interest in the enforcement of the claim of another’ is entitled to enforce that claim so
assigned to him: Trendtex Trading Corpn v Crédit Suisse [1982] AC 679, at 703, HL, per Lord
Roskill.
97 Dawson v Great Northern and City Rly Co [1905] 1 KB 260, at 271, CA, per Stirling LJ.
98 HEL vol vii 533-4 n 7, deduces the same rule from Prosser v Edmonds (1835) 1 Y & C Ex 481
and Dickinson v Burrell (1866) LR 1 Eq 337 but these cases also fail to establish the point
authoritatively.
99 At the same time it is not thought likely that the exception would extend to injuries to
property, where title is not in dispute: see Trendtex Trading Corpn v Crédit Suisse [1982] AC
679, HL.
2 _ A trustee in bankruptcy can assign any cause of action in tort vested in him to a
third party or even to the bankrupt.'”
3 The damages to be recovered in an action in tort, as distinct from the cause of
action itself, can be assigned. Thus C may transfer to another the right to any
damages recovered in a pending action, but of course must continue to bring the
action in his own name.!”!
4 Where C’s insurers have paid a claim made by him in respect of circumstances
which afford him a cause of action in tort against another, and, in consideration of
the settlement of that claim on the insurance policy, have taken an assignment of
the right to sue in tort, the insurers may maintain that suit.!°? This concession to
commercial convenience applies even if subsequent investigation shows that the
insured did not have in fact a valid claim on his policy, provided that the settlement
by the insurers of his claim was a bona fide transaction.'”
Section 14. Convicted persons

Those convicted of crimes, whether or not they have been imprisoned, have virtually
the same rights and liabilities in tort as others.'"* The only difference is that in
disciplining prisoners and segregating them in a way that would ordinarily constitute
a battery, the prison authorities are exempt from liability.’
Section I5. Joint torts'%
(A) Categories
There are three broad categories of circumstances where one person may suffer damage
as the result of torts committed by two or more defendants.
(1) Joint tortfeasors

In this category are the following.'”’
(a) Employer and employee in those cases where the employer is vicariously liable for
the tort of the employee.'”
(b) Where one person instigates another to commit a tort. Thus, a landlord who
invited his lodger to help him detect an escape of gas on the premises by striking
100 Ramsey v Hartley [1977] 2 All ER 673, CA (where an action based on a negligent misstatement
was validly assigned to the bankrupt, even though it was a term of the assignment that the
bankrupt should retain only 65% of the net proceeds of the action); Stein v Blake [1995] 2 All
ER 961. See also Weddell v JA Pearce [1988] Ch 26.
101 Glegg v Bromley [1912] 3 KB 474, CA.
102 King v Victoria Insurance Co Ltd [1896] AC 250, PC; Compania Colombiana de Seguros v
Pacific Steam-Navigation Co [1965] 1 QB 101.
103 King v Victoria Insurance Co [1896] AC 250, PC.
104 Criminal Justice Act 1948, s 70.
105 Rv Deputy Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58, HL.
106 See Williams, Joint Torts.
107 Cf Scrutton LJ in The Koursk [1924] P 140, at 155, CA.
108 See ch 25.
a match was a joint tortfeasor along with the lodger-in respect of the damage
caused by the ensuing explosion.'® But a person who merely facilitated (rather
than procured) a tort would not be a joint tortfeasor.'!°
(c) Where there is a bréach of a duty imposed jointly on two or more persons. Thus,
two occupiers are joint tortfeasors if they are sued by a visitor for failure to take
reasonable care in respect of the premises jointly occupied by them.
(d) Where persons take ‘concerted action to a common end’'’ and, in the course of
executing that joint purpose, any one of them commits a tort, all of them are joint
tortfeasors. The liability of partners for a tort committed by one of them in
connection with the firm’s business, and the liability of joint employers of an
employee who commits a tort in the course of his employment, are two examples.
Brooke v Bool furnishes another.''? The landlord and his lodger were looking for
an escape of gas, and an explosion occurred as a result of the careless exposure of
a naked light to the escaping gas by the lodger. Besides holding that they were
joint tortfeasors because the landlord had authorised the lodger to do the act, the
court held that they were joint tortfeasors for the further reasons that!!’ ‘the
enterprise in which he [the landlord] and M [the lodger] were engaged was the
joint enterprise of both, and that the act which was the immediate cause of the
explosion was their joint act done in pursuance of a concerted purpose’. Similarly,
where D1 imprisoned C, and D2 threatened to strike C if he resisted, they were
joint tortfeasors in respect of C’s false imprisonment even though D2’s act was
also an assault.''4
The Porter Committee summarised the position in defamation as follows:''®
Where defamatory matter is contained in a book, periodical or newspaper, there
is normally a series of publications each of which constitutes a separate tort.
First, there is a publication by the author to the publisher for which the author is
solely liable. Secondly, there is the publication by the author and publisher
jointly to the printer, for which the author and publisher are jointly liable. Thirdly,
there is the publication of the printed work to the trade and the public, for which
the author, publisher and printer are jointly liable.
109 Brooke v Bool [1928] 2 KB 578, Div Ct; Ash v Hutchinson & Co (Publishers) Ltd [1936] Ch
489, CA.
110 PLG Research Ltd v Ardon International Ltd [1993] FSR 197.
111 The Koursk [1924] P 140, at 152, CA, per Bankes LJ. Directors may be joint tortfeasors with
a limited company where they directed or procured the tortious act, or informed the company
for the express purpose of doing a wrongful act: Rainham Chemical Works Ltd v Belvedere Fish
Guano Co [1921] 2 AC 465, at 476, HL, per Lord Buckmaster; or if, after formation, the
company adopted a deliberate policy of wrongdoing: Oertli (T) A-G v E J Bowman (London)
Ltd [1956] RPC 282, at 292.
11 NO [1928] 2 KB 578, Div Ct. Perhaps Scarsbrook v Mason [1961] 3 All ER 767 furnishes the
most remarkable example. There it was held that where passengers and the driver of a car
combine on equal terms for the enterprise of a specific journey by the car of another, each is
jointly liable for the driver’s negligence.
113 [1928] 2 KB 578, at 585, per Salter J.
114 Boyce v Douglas (1807) 1 Camp 60. See also the view of Bankes LJ (at 149) in The Koursk
[1924] P 140, that if X, Y and Z conspired to attack C, and X and Y carried out the attack, the
fact that X and Y were sued in battery, and Z was sued in conspiracy, would not prevent them
from being joint tortfeasors.
115 Cmd 7536, at p29. If C must prove malice in order to defeat a plea of qualified privilege, only
Ds who are malicious are joint tortfeasors: Gardiner v Moore [1969] 1 QB 55.
(2) Several concurrent tortfeasors

Several, or separate, or independent tortfeasors are of two kinds: either those whose
tortious acts combine to produce the same damage, or those whose acts cause different
damage, to the same claimant. It is convenient to call the first group several concurrent
tortfeasors, and they alone are illustrated in the present subsection. This subsection
is, therefore, concerned with acts that do not fit into any of the four sub-heads of joint
torts already listed, but which result in the infliction of the same damage to the claimant.
In Drinkwater v Kimber,'"° a passenger in a motor car was injured in a collision between
that car and another. Morris LJ said that the two drivers, both of whom were negligent,
“were separate tortfeasors whose concurrent acts caused injury to the female claimant’.
Thompson v LCC'"’ provides a further example.
C’s house was damaged when its foundations subsided due to (i) negligent
excavation by D1 and (ii) a water company, D2, negligently allowing water to
escape from their main.
Finally, the facts in The Koursk also reveal a case in which there was only one unit of
damage that was impossible to divide between the various tortfeasors as follows.!'®
The Koursk, while sailing in convoy, negligently changed course so that it bore
down on the Clan Chisholm, which was careless in failing to reverse its engines
in order to avoid a collision. Immediately after the impact, the Clan Chisholm
collided with the /tria. Having recovered damages against the Clan Chisholm
for an amount less than the loss suffered (because of a special statutory
provision), the /tria sued The Koursk. The Koursk and Clan Chisholm were
held not to be joint tortfeasors, but only several tortfeasors causing the same
damage.
(3) Several tortfeasors causing different damage

Where two or more persons not acting in concert cause different damage to the same
claimant, they are treated differently in law from either joint or several concurrent
tortfeasors. In the straightforward kind of case, the two defendants inflict quite separate
harm on the claimant. For example, D1 gouges out C’s eye, and D2 fractures his skull,
whereupon D1 is answerable for the damage resulting from the loss of the eye and D2
for the damage attributable to the fracture of the skull. Similarly, suppose that a motorist
carelessly knocked down a pedestrian who sustained multiple injuries to his leg, and a
surgeon later amputated the wrong leg. Since the motorist would not be answerable for
the further damage caused to the pedestrian by the surgeon’s negligence, the motorist
and the surgeon would be several tortfeasors causing different damage to the same
claimant.
In some cases it is very difficult to decide whether there was an indivisible unit of
darmage, or whether the harm was capable of apportionment among the several
defendants. The courts appear to have taken a sensible attitude in such cases, avoiding,
116 [1952] 2 QB 281, at 292, CA. See also Fitzgerald v Lane [1989] AC 328, HL.
117 [1899] 1 QB 840, CA. Cf Sadler v Great Western Rly Co [1896] AC 450, HL.
118 [1924] P 140, CA.
if possible, saddling any one defendant with responsibility for more harm than he has
caused. They will, therefore, be very ready to declare harm to be divisible.''? Thus, in
the common kinds of case of harm caused by the independent acts of various defendants
— eg, pollution of rivers or nuisance by smell or noise — the courts will not hold each
defendant liable for the entire damage. They will endeavour to ascertain the respective
contributions to the harm made by each defendant, and, failing that, they will apportion
the loss equally between them.'”° Flooding is a more difficult problem. If C’s land is
flooded for 30 days by the combined flood water of D1 and D2, and would have been
flooded for 15 days by the flood water of either of them, each is liable for 15 days’ loss
of farming activity. If however the flooding does not hinder C’s work, but actually
destroys his crops in circumstances where the flood water of either D1 or D2 alone
would not have destroyed the crops, both D1 and D2 will be liable for the entire loss —
the harm being indivisible. When the act of the defendant impinges on existing
circumstances — eg, where D1 and D2 are already discharging water into a stream and
not causing a flood — and D3, knowing of D1 and D2’s acts, discharges such a further
amount as causes C’s lands to be flooded, then D3 is answerable for the entire flood
damage.
(B) The important distinction between joint tortfeasors, several

concurrent tortfeasors and other tortfeasors
1 Concurrent tortfeasors, whether joint or several, are each answerable in full for the
whole damage caused to C. Other several tortfeasors are merely answerable for
that damage which each has caused. It is therefore often of prime importance to
decide whether Ds were acting in concert. Suppose that A and B are engaged on
a hunting expedition and both of them simultaneously fire across a highway at
game beyond the highway. If a shot injures a highway user, but it is not known
which of A or B fired it, they are joint tortfeasors acting in concert, enabling C to
recover full damages from either.'”! If, however, they are several tortfeasors, they
have not committed the same damage (for only one has caused damage), and the
success of the action depends on proof of the commission of a tort by the one
who is sued.'** Questions of divisible harm do not arise where Ds are joint
tortfeasors for each joint tortfeasor is liable in full for all the harm sustained by C.
119 In Friends’ Provident Life Office v Hillier Parker [1997] QB 85, CA, for example, the element
of damage caused by D1 was restitutionary in nature while that caused by D2 was tortious in
nature; the court nonetheless treated the loss as the ‘same damage’ for the purposes of the
Civil Liability (Contribution) Act 1978. See also Birse Construction v Haiste Ltd [1996] 1
WLR 675, CA.
120 Bank View Mills Ltd v Nelson Corpn [1942] 2 All ER 477, especially per Stable J at 483
(reversed [1943] KB 337, CA); Pride of Derby and Derbyshire Angling Association Ltd v
British Celanese Ltd [1953] 1 All ER 179, CA. See also Dingle v Associated Newspapers Ltd
[1961] 1 All ER 897, at 916, CA, per Devlin LJ. The point was not discussed in the House of
Lords: [1964] AC 371. Sometimes the cumulative effect of D1 and D2’s actions is greater than
the sum of their respective contributions — this does not deter the courts from making them
liable proportionately to the amount of harm which each would have caused in any event.
121 Arneil v Paterson [1931] AC 560, HL.
122 Cf Cook v Lewis [1952] 1 DLR 1.
2 _ Satisfaction'” by any concurrent tortfeasor discharges the liability of all the others,
whereas satisfaction by a several non-concurrent one does not.!24
3 The courts are less willing to exercise their discretion under RSC Ord 16, r 4 to
allow joinder of Ds where the Ds concerned are not concurrent tortfeasors.
4 — There is in general a right to contribution in the case of concurrent tortfeasors, but
not in respect of other tortfeasors.
(C) Joint tortfeasors and several concurrent tortfeasors

The distinction between joint and several concurrent tortfeasors is of minor importance
since the abolition by the Law Reform (Married Woman and Tortfeasors) Act 1935, s
6(1)'* of the rule in Brinsmead v Harrison" that a judgment against one joint tortfeasor
barred the action or the continuance of the action against the others. !2’
The following two rules apply to both joint and several concurrent tortfeasors. A
claimant who has obtained judgment against one wrongdoer for any damage is free to
obtain judgment later against anyone else jointly liable for that damage,'”* and the
damages in the later actions can exceed the award in the first. The claimant is not
entitled to costs in any such later action, unless the court is of the opinion that there
was reasonable ground for bringing that action.'”
(D) Contribution
(1) Scope
The Civil Liability (Contribution) Act 1978, s 1(1) provides that ‘any person liable in
respect of any damage suffered by another person may recover contribution from any
other person liable in respect of the same damage (whether jointly with him or otherwise)’.
At one time, the courts gave a wide interpretation to the meaning of the phrase ‘same
damage’.'*° However, in Royal Brompton Hospital NHS Trust v Hammond (No 3)'°!
the House of Lords overruled this broad approach.
123 But note that an accord with a concurrent several tortfeasor does not necessariy have this
effect: everything turns on the interpretation of the accord: Jameson v Central Electricity
Generating Board [2000] 1 AC 455, HL; Heaton v AXA Equity & Law Life Assurance Society
plc [2002] UKHL 15, HL.
124 And see Bryanston Finance Ltd v de Vries [1975] QB 703, CA. For the effect of C’s accepting
payment into court by one D on his right to sue others jointly liable, see Townsend v Stone
Toms & Partners [1981] 2 All ER 690, CA.
125 Section 6(1) has been repealed, and in this respect substantially re-enacted in Civil Liability
(Contribution) Act 1978, s 1.
126 (1872) LR 7 €P 547.
127 If C had an unsatisfied judgment against D1 and a retrial is ordered of his action against D2 the
judgment against D1 does not prevent C from recovering judgment against D2: Wah Tat Bank
Ltd v Chan Cheng Kum [1975] AC 507, PC.
128 Civil Liability (Contribution) Act 1978, s 3.
129 Civil Liability (Contribution) Act 1978, s 4.
130 For details, see Friends’ Provident Life Office v Hillier Parker May and Rowden [1997] QB 85,
CA and the 10th edition of this work.
131 [2002] UKHL 14, HL.
A firm of architects had negligently issued extension certificates to contractors

in respect of certain construction work commissioned by a developer. The building
work was delayed and the developer sued the architects in respect of their
negligence. The architects were unable to claim a contribution from the
contractors who actually performed the delayed construction. The contractors
were responsible for delayed construction per se, whereas the architects (by
issuing the extension certificates) had caused the developer to lose the
opportunity to sue the contractors for liquidated damages in respect of that
delay. The question was whether loss of opportunity to sue for liquidated
damages was to be seen as the same damage as the delay, per se.
Their Lordships insisted that the words ‘liable in respect of the same damage’ were to
receive their ordinary and natural meaning and held that the loss of opportunity to sue
for liquidated damage was not the same damage as the delayed construction.
(2) Who may claim contribution

The Civil Liability (Contribution) Act 1978 reaffirms the general principle that a person
who is liable is entitled to claim contribution.'*? Frequently, a person agrees to make a
payment in settlement or compromise of a claim against him. If he can show that,
assuming that the factual basis of the claim against him could be established, he would
have been liable, he may claim contribution for a bona fide payment.'* If he has settled
because he was doubtful about his liability in law, even though the facts were
established, he would obtain contribution only if he could prove that he was legally
answerable, however bona fide and reasonable his decision to settle the claim. If he
were liable at the time he made, was ordered to make, or agreed to make the payment, he
is still entitled to recover contribution, even though he has since ceased to be liable
either because of the expiry of a limitation period, or otherwise.'** The right to claim
contribution passes on the defendant’s death to his personal representatives, whether
or not his liability had, before his death, been established or admitted.'*
(3) Those from whom contribution may be claimed

Contribution is recoverable from anyone who is liable for the same damage,'** and on
the authority of K v P'’’ it is clear that the defence of ex turpi causa may not be raised
in order to defeat a claim for contribution. '** If one party was originally liable, but then
ceased to be liable since the time the damage occurred, he nonetheless remains liable
to make a contribution.'*? Someone may have ceased to be liable because the claimant
132 Civil Liability (Contribution) Act 1978, s 1(1).

133 Civil Liability (Contribution) Act 1978, s 1(4); Arab Monetary Fund v Hashim (No 8) (1993)
Times, 17 June.
135 Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398, CA.
137 [1993] Ch 140.
138 On the other hand, those factors relevant to raising the defence are also factors of which the
court may take note in fixing the level of contribution (which may be 0%).
has waived his claim. The same is true, normally, where a settlement has been reached.!*°
One exception to this latter rule was judicially recognised in Jameson v Central
Electricity Generating Board.'*'
Jameson was exposed to asbestos at work due to the fault of his employer, X. He
agreed a ‘full and final settlement’ with X. When Jameson died, his executors
claimed for loss of dependency under the Fatal Accidents Act 1976 from the
CEGB alleging similar negligence and breach of statutory duty. It was held that
this settlement, because of the terms in which it was expressed, meant that any
action against the CEGB could not be pursued notwithstanding the fact that
they had contributed to same ‘damage’.!*”
More commonly, the period of limitation for the claimant suing that defendant may
have expired (the limitation period being two years after the right to contribution
arose).'* So long as contribution is sought before the expiry of the limitation period,
however, he may still seek a contribution.'“
(4) Amount of contribution recoverable
By section 2(1) of the Civil Liability (Contribution) Act 1978:

... In any proceedings for contribution under section | 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.
Section 2(2) of the same Act provides that:
The court shall have power in any such proceedings to exempt any person from
liability to make contribution, or to direct that the contribution to be recovered
from any person shall amount to a complete indemnity.
Neither causation nor culpability is the sole test to be applied in making the
apportionment. It is not enough to discover merely who is guilty of moral blame, but,
taking a commonsense view of the facts, the degree of ‘responsibility’ must be
determined’ '** — both the blameworthiness and the extent to which the act is directly
140 Logan v Uttlesford District Council and Hammond [1986] NLJ Rep 541, CA.
141 [2000] 1 AC 455, HL. See also Heaton v Axa Equity & Law Life Assurance Society plc, HL.
142 [2000] 1 AC 455, at 483, HL, per Lord Hope. X argued that the damage in respect of which the
CEGB were claiming was different — ie, the loss of dependency. But their Lordships accepted
that damage for the purposes of the 1978 Act was the wrong causing injury and/or death. It did
not mean death nor did it mean loss of dependency resulting from death.
143 The relevant date is the date of judgment or, where the case has been settled out of court, the
date of the agreement to pay: Limitation Act 1980, s 10(3), (4). The period may be extended
where the person seeking contribution is under a disability or is the victim of fraud, concealment
or mistake Limitation Act 1980, s 10(5).
144 Civil Liability (Contribution) Act 1978, s 1(3). The subsection has a proviso that he is not
liable if, on the expiry of the period of limitation or prescription, the right on which the claim
against him was based, was extinguished. But because most tort actions are not extinguished by
limitation — conversion is the important exception — this proviso is unimportant here.
145 Weaver v Commercial Process Co Ltd (1947) 63 TLR 466.
connected with the damage are material in making this apportionment.'*° This view
that moral blame is not the only criterion is supported by the cases which have
authorised apportionment between a defendant liable for negligence at common law
and one who was not negligent but who was in breach of statutory duty.'*”
If there is a limit on the amount for which a defendant could be liable to the claimant, by
reason of an agreement between the claimant and the defendant, or if the amount
would have been reduced by reason of the Law Reform (Contributory Negligence) Act
1945,'48 then the maximum amount of contribution is that amount so limited or reduced.'*”
It will be noted that the statute contemplates tortfeasors being entitled to a complete
indemnity in some circumstances. Where, for example, a person who knows that he is
not entitled to sell goods authorises an auctioneer to sell them, and he immediately
does, the auctioneer, having been held liable in conversion, is entitled to an indemnity
from his principal.!°°
Most important is the relationship between master and servant. In Lister v Romford Ice
and Cold Storage Co Ltd the facts were as follows.'*!
D, employed by C, took his father with him as mate. In backing his lorry D injured
his father who, in an action against C, recovered damages in respect of D’s
negligent act. C brought an action against D claiming an indemnity in respect of
the amount of the judgment and costs awarded against it.
The House of Lords held that the claimant was entitled to recover from the defendant
for breach of the defendant’s contractual obligation of care to his employer.'” It follows
that an employer who has been made vicariously liable for the tort of his employee can
146 Miraflores (Owners) v George Livanos (Owners) [1967] 1 AC 826, at 845, HL, per Lord
Pearce; Brown v Thompson [1968] 2 All ER 708, at 709, CA, per Winn LJ; Cavanagh v
London Passenger Transport Executive (1956) Times, 23 October, per Devlin J.
147 Eg, Jerred v Roddam Dent & Son Ltd [1948] 2 All ER 104; Dooley v Cammell Laird & Co Ltd
[1951] 1 Lloyd’s Rep 271.
148 Suppose that C was injured by defective goods which he bought, but that C was also contributorily
negligent. As contributory negligence is not a defence to actions for breach of strict contractual
duties (Barclays Bank plc v Fairclough Building Ltd [1995] QB 214, CA), the retailer will be
liable in full to C, but his claim for contribution against the negligent manufacturer will be
reduced to the extent to which a claim by C against the manufacturer would have been scaled
down on account of C’s contributory negligence.
149 Civil Liability (Contribution) Act 1978, s 2(3). The reduction to represent the degree of C’s
contributory negligence must be made before assessing the respective contributions of the
tortfeasors: Fitzgerald v Lane [1989] AC 328, HL.
150 Adamson v Jarvis (1827) 4 Bing 66. For an illustration of a statutory right of indemnity, see
the Civil Aviation Act 1982, s 76(3).
151 [1957] AC 555, HL; distinguished in Harvey v R G O'Dell Ltd [1958] 2 QB 78, at 106, per
McNair J: ‘I find it difficult to see on what grounds of justice and reason I should hold that by
making his motorcycle combination available for his employers’ business on a particular
occasion he should be held in law to have agreed impliedly to indemnify them if he committed
a casual act of negligence’. And see Vandyke v Fender [1970] 2 QB 292, at 303, CA, per Lord
Denning MR.
152 The Report of the Inter-Departmental Committee (1959) set up by the Ministry of Labour
and National Service concluded that the decision raised no practical problem and that no
legislative change was called for at present. Moreover, in Morris v Ford Motor Co Ltd [1973]
QB 792, CA, it was held that the agreement in that case, being in an industrial setting so that
subrogation against employees was unrealistic, contained an implied term excluding subrogation
against them.
Capacity and parties 66|
claim an indemnity from the employee. It was clearly recognised before this decision
that when the employer himself was also at fault he would not obtain a complete
indemnity but must suffer a reduction in respect of his own fault.'53 But these cases
were based on section 6 of the Law Reform (Married Women and Tortfeasors) Act
1935.!°* What remains to be decided is whether, and if so on what principles, a reduction
can be made in a claim by the employer based on a breach by the employee of his
contract of employment.'*
153 Eg, Jones v Manchester Corpn [1952] 2 QB 852, CA. Where the master’s’s liabilityliability isis purely
cme involving no personal fault, the master will obtain a 100% contribution from the
negligent servant under the Civil Liability (Contribution) Act 1978, as in Harvey v R G O'Dell
Ltd [1958] 2 QB 78.
154 Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555, HL, left open whether an
indemnity under the Act could also have been given. 18
155 How Fe die Law Reform (Contributory Negligence) Act 1945 applies to a suit in contract is
obviously pertinent. But see Barclays Bank ple v Fairclough Building Ltd [1995] QB 214, CA,
ruling out its applicability in relation to strict contractual duties.
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APPENDIX. |
Convention rights
(Human Rights Act 1998, Sch 1)
Section 1(3)
PART |
THE CONVENTION
Rights and Freedoms
Article 2
Right to life
1 Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of
a crime for which this penalty is provided by law.
2 Deprivation of life shall not be regarded as inflicted in contravention of this Article

when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
(c) inaction lawfully taken for the purpose of quelling a riot or insurrection.
Article 3
Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or

punishment.
Article 4
Prohibition of slavery and forced labour
1 No one shall be held in slavery or servitude.

664 Appendix J
2 No one shall be required to perform forced or compulsory labour.
3 For the purpose of this Article the term ‘forced or compulsory labour’ shall not
include: .
(a) any work required to be done in the ordinary course of detention imposed
according to the provisions of Article 5 of this Convention or during conditional
release from such detention;
(b) any service of a military character or, in case of conscientious objectors in
countries where they are recognised, service exacted instead of compulsory
military service;
(c) any service exacted in case of an emergency or calamity threatening the life or
well-being of the community;
(d) any work or service which forms part of normal civic obligations.
Article 5
Right to liberty and security
1 Everyone has the right to liberty and security of person. No one shall be deprived of
his liberty save in the following cases and in accordance with a procedure prescribed
by law: :
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful
order of a court or in order to secure the fulfilment of any obligation prescribed
by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent
his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the
competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention ofa person to prevent his effecting an unauthorised
entry into the country or of a person against whom action is being taken with
a view to deportation or extradition.
2 Everyone who is arrested shall be informed promptly, in a language which he under-

stands, of the reasons for his arrest and of any charge against him.
3 Everyone arrested or detained in accordance with the provisions of paragraph 1(c)

of this Article shall be brought promptly before a judge or other officer authorised by
law to exercise judicial power and shall be entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by guarantees to appear for trial.
4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to

take proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.
5 Everyone who has been the victim of arrest or detention in contravention of the
provisions of this Article shall have an enforceable right to compensation.
Article 6
Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law. Judgment shall be pro-
nounced publicly but the press and public may be excluded from all or part of the trial
in the interest of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private life of the parties so
require, or to the extent strictly necessary in the opinion of the court in special circum-
stances where publicity would prejudice the interests of justice.
2 Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.
3 Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of
the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or,
if he has not sufficient means to pay for legal assistance, to be given it free
when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as
witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak
the language used in court.
Article 7
No punishment without law
1 No one shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be imposed than the one that
was applicable at the time the criminal offence was committed.
2 This Article shall not prejudice the trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the
general principles of law recognised by civilised nations.
Article 8
Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his
correspondence.
666 Appendix I X
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.
Article 9
Freedom of thought, conscience and religion
1 Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief and freedom, either alone or in com-
munity with others and in public or private, to manifest his religion or belief, in wor-
ship, teaching, practice and observance.
2 Freedom to manifest one’s religion or beliefs shall be subject only to such limita-
tions as are prescribed by law and are necessary in a democratic society in the inter-
ests of public safety, for the protection of public order, health or morals, or for the
protection of the rights and freedoms of others.
Article 10
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. This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.
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 pre-
scribed 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 rights of
others, for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
Article | |
Freedom of assembly and association
1 Everyone has the right to freedom of peaceful assembly and to freedom of associa-
tion with others, including the right to form and to join trade unions for the protection
of his interests.
2 No restrictions shall be placed on the exercise of these rights other than such as are
prescribed by law and are necessary in a democratic society in the interests of national
security or public safety, 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 Article
shall not prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration of the State.
Article 12
Right to marry
Men and women of marriageable age have the right to marry and to found a family,
according to the national laws governing the exercise of this right.
Article |4
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured
without discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a national minority,
property, birth or other status.
Article 16
Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting
Parties from imposing restrictions on the political activity of aliens.
Article |7
Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or
person any right to engage in any activity or perform any act aimed at the destruction
of any of the rights and freedoms set forth herein or at their limitation to a greater extent
than is provided for in the Convention.
Article 18
Limitation on use of restrictions on rights
The restrictions permitted under this Convention to the said rights and freedoms shall
not be applied for any purpose other than those for which they have been prescribed.
PART Il
THE FIRST PROTOCOL
Article |
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
No one shall be deprived of his possessions except in the public interest and subject
to the conditions provided for by law and by the general principles of international law.
668 Appendix 1
The preceding provisions shall not, however, in any way ithpair the right of a State to
enforce such laws as it deems necessary to control the use of property in accordance
with the general interest or to secure the payment of taxes or other contributions or
penalties.
Article 2
Right to education
No person shall be denied the right to education. In the exercise of any functions
which it assumes in relation to education and to teaching, the State shall respect the
right of parents to ensure such education and teaching in conformity with their own
religious and philosophical convictions.
Article 3
Right to free elections
The High Contracting Parties undertake to hold free elections at reasonable intervals
by secret ballot, under conditions which will ensure the free expression of the opinion
of the people in the choice of the legislature.
APPENDIX 2
Defamation Act 1996

(Sch |, Parts | and 2)
SCHEDULE |
QUALIFIED PRIVILEGE
PART |
STATEMENTS HAVING QUALIFIED PRIVILEGE WITHOUT EXPLANATION OR
CONTRADICTION
1_ A fair and accurate report of proceedings in public of a legislature anywhere in the

world.
2 A fair and accurate report of proceedings in public before a court anywhere in the
world.
3. A fair and accurate report of proceedings in public of a person appointed to hold a

public inquiry by a government or legislature anywhere in the world.
4 A fair and accurate report of proceedings in public anywhere in the world of an

international organisation or an international conference.
5 A fair and accurate copy of or extract from any register or other document required
by law to be open to public inspection.
6 A notice or advertisement published by or on the authority of a court, or of a judge

or officer of a court, anywhere in the world.
7 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.
8 A fair and accurate copy of or extract from matter published anywhere in the world
by an international organisation or an international conference.
670 Appendix 2 ‘
PART Il “4
STATEMENTS PRIVILEGED SUBJECTTO EXPLANATION OR CONTRADIC-
TION
9 (1) A fair and accurate copy of or extract from a notice or other matter issued for
the information of the public by or on behalf of—
(a) a legislature in any member State or the European Parliament;
(b) the government of any member State, or any authority performing governmental
functions in any member State or part of a member State, or the European
Commission;
(c) an international organisation or international conference.
(2) In this paragraph ‘governmental functions’ includes police functions.
10 A fair and accurate copy of or extract from a document made available by a court
in any member State or the European Court of Justice (or any court attached to that
court), or by a judge or officer of any such court.
11 (1) A fair and accurate report of proceedings at any public meeting or sitting in
the United Kingdom of—
(a) a local authority or local authority committee;
(aa) in the case of a local authority which are operating executive arrangements, the
executive of that authority or a committee of that executive;
(b) a justice or justices of the peace acting otherwise than as a court exercising
judicial authority;
(c) acommission, tribunal, committee or person appointed for the purposes of any
inquiry by any statutory provision, by Her Majesty or by a Minister of the
Crown [a member of the Scottish Executive] or a Northern Ireland Department;
(d) a person appointed by a local authority to hold a local inquiry in pursuance of
any statutory provision;
(e) any other tribunal, board, committee or body constituted by or under, and
exercising functions under, any statutory provision.
(1A) In the case of a local authority which are operating executive arrangements, a
fair and accurate record of any decision made by any member of the executive where
that record is required to be made and available for public inspection by virtue of
section 22 of the Local Government Act 2000 or of any provision in regulations made
under that section.
(2) In sub-paragraphs (1)(a), (1)(aa) and (1A)—
‘local authority’ means—
(a) inrelation to England and Wales, a principal council within the meaning of
the Local Government Act 1972, any body falling within any paragraph of
section 100J(1) of that Act or an authority or body to which the Public
Bodies (Admission to Meetings) Act 1960 applies,
(b) in relation to Scotland, a council constituted under section 2 of the Local
Government etc (Scotland) Act 1994 or an authority or body to which the
Public Bodies (Admission to Meetings) Act 1960 applies,
(c) inrelation to Northern Ireland, any authority or body to which sections 23
to 27 of the Local Government Act (Northern Ireland) 1972 apply; and
Defamation Act 1996 67|
‘local authority committee’ means any committee of a local authority or of local

authorities, and includes—
(a) any committee or sub-committee in relation to which sections 100A to
100D of the Local Government Act 1972 apply by virtue of section 100E of
that Act (whether or not also by virtue of section 100J of that Act), and
(b) any committee or sub-committee in relation to which sections 50A to 50D
of the Local Government (Scotland) Act 1973 apply by virtue of section
50E of that Act.
(2A) In sub-paragraphs (1) and (1A)—
‘executive’ and “executive arrangements’ have the same meaning as in Part II of the
Local Government Act 2000.
(3) A fair and accurate report of any corresponding proceedings in any of the
Channel Islands or the Isle of Man or in another member State.
12 (1) A fair and accurate report of proceedings at any public meeting held in a
member State.
(2) Inthis paragraph a ‘public meeting’ means a meeting bona fide and lawfully held
for a lawful purpose and for the furtherance or discussion of a matter of public concern,
whether admission to the meeting is general or restricted.
13. (1) A fair and accurate report of proceedings at a general meeting of a UK public
company.
(2) A fair and accurate copy of or extract from any document circulated to members
of a UK public company—
(a) by or with the authority of the board of directors of the company,
(b) by the auditors of the company, or
(c) by any member of the company in pursuance of a right conferred by any
statutory provision.
(3) A fair and accurate copy of or extract from any document circulated to members
of a UK public company which relates to the appointment, resignation, retirement or
dismissal of directors of the company.
(4) In this paragraph ‘UK public company’ means—
(a) a public company within the meaning of section 1(3) of the Companies Act
1985 or Article 12(3) of the Companies (Northern Ireland) Order 1986, or
(b) a body corporate incorporated by or registered under any other statutory
provision, or by Royal Charter, or formed in pursuance of letters patent.
(5) A fair and accurate report of proceedings at any corresponding meeting of, or
copy of or extract from any corresponding document circulated to members of, a public
company formed under the law of any of the Channel Islands or the Isle of Man or of
another member State.
14 A fair and accurate report of any finding or decision of any of the following
descriptions of association, formed in the United Kingdom or another member State, or
of any committee or governing body of such an association—
(a) an association formed for the purpose of promoting or encouraging the exercise
672 Appendix 2 \
of or interest in any art, science, religion or learning, and empowered by its

constitution to exercise control over or adjudicate on matters of interest or
concern to the association, or the actions or conduct of any person subject to
such control or adjudication;
(b) an association formed for the purpose of promoting or safeguarding the interests
of any trade, business, industry or profession, or of the persons carrying on or
engaged in any trade, business, industry or profession, and empowered by its
constitution to exercise control over or adjudicate upon matters connected
with that trade, business, industry or profession, or the actions or conduct of
those persons;
(c) an association formed for the purpose of promoting or safeguarding the interests
of a game, sport or pastime to the playing or exercise of which members of the
public are invited or admitted, and empowered by its constitution to exercise
control over or adjudicate upon persons connected with or taking part in the
game, sport or pastime;
(d) an association formed for the purpose of promoting charitable objects or other
objects beneficial to the community and empowered by its constitution to
exercise control over or to adjudicate on matters of interest or concern to the
association, or the actions or conduct of any person subject to such control or
adjudication.
15 (1) A fair and accurate report of, or copy of or extract from, any adjudication,
report, statement or notice issued by a body, officer or other person designated for the
purposes of this paragraph—
(a) for England and Wales or Northern Ireland, by order of the Lord Chancellor,
and
(b) for Scotland, by order of the Secretary of State.
(2) An order under this paragraph shall be made by statutory instrument which
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Index
Abuse of process Arrest—contd

tort of, 546 police powers after, 102
Accord and satisfaction policeman with warrant, by, 98
effect of, 623 private citizens, by, 100, 102
Account reasonable cause, for, 100, 101
profits, of, 586 statutory rules, 101
Act of State warrant, maliciously procuring, 541
defence, as, 105 without warrant, 99
Action on the case Assault
action of, 14 apprehension of contact, establishment of,
Agent 36
control of, 556 defendant’s conduct, character of, 36, 37
deceit by, 557 meaning, 36
false representation by, 124-126 mere words as, 37
privilege of, 518 prevention of threat, effect of, 37
servant and independent contractor, res judicata, 105
overlapping, 556 tort of, 31
vehicle driven by, liability for, 557 trespass, overlap with, 28
Ambassadors unloaded pistol, brandishing, 37
diplomatic privilege, 640 Assignment
Animals right to sue, of, 652, 653
dangerous-
liability for, 453 Bailment
non-dangerous species of, 452, 453 at will, 49
species of, 451, 452 conversion, action in, 49-51
dogs, liability for injury to livestock done dealing with goods in manner wholly
by, 455 inconsistent with, 50
duty of care, 451 disregarding terms of, 71
straying livestock, liability for, 454 loss or destruction of goods, 59, 60
strict liability- Bankrupt
dangerous animals, damage by, 451-453 capacity to sue, 651, 652
statutory regime, 451 liability of, 651
Anton Piller order Battery
effect of, 587 act of defendant, character of, 34-36
Armed forces consent of claimant, absence of, 34
personal injuries.actions, 639 contact, need for, 35
Arrest damages for, 36
arrestable offences, 99 defendant, state of mind of, 32
defence, powers as, 98 direct, act to be, 35
general, power of, 99 hostility, absence of, 33
informing of grounds of, 101 intentional act, meaning, 32
manner of, 101, 102 meaning, 32
674 Index
Battery—contd Breach of statutory duty—contd

medical treatment, in context of, 28 matters to be proved—contd
motive and malice, relevance of, 33 causation, 470
person of another, defence of, 92 claimant’s interest, protection of-
proof of injury or damage, no need for, 33, alternative statutory remedies, 466,
36 467
recklessness, 32 considerations, 465-468
res judicata, 105 pre-existing common law, state of,
tort and crime, as, 32 465, 466
tort of, 31 public and private rights, violation
transferred intent, 32 of, 467
Breach of confidence conduct of defendant, violation of
competing interests, 172, 173 statute by, 469, 470
confidentiality, obligation of, 170-172 damage, proof of, 469
emergent tort, as, 171 harm suffered within scope of general
freedom of expression, and, 173 class of risks, 468
justifiable disclosures, 172, 173 obligation on defendant, 464
nature of action, 171 persons protected by statute, claimant
personal information, protection of, 170, as one of, 469
7A negligence, confusion with, 463
privacy, protection of interest in, 171 Parliamentary intent to confer right to
public interest, justification of disclosure compensation, identifying, 459-463
in, 72 performers’ rights, protection of, 461
recipient of confidential information, precise terms, duty in, 463
obligation binding, 172 public authority, action against for failure
remedies, 173 to provide public services, 462
Breach of statutory duty simplicity, 463
action for- vicarious liability for, 575
broad principle, 457, 458 Burden of proof
careless performance, for, 464 causation, evidence of, 283
local authorities, duties of, 458, 459 consent, of, 86
meaning, 457 conspiracy, of, 149
nature of, 463, 464 defective products, liability for, 375
two-part test in, 459 fair comment, as to, 531
breach of regulation, deriving from, 462 malice in relation to defamation, as to,
circumstances of harm, Parliament Sil, Sil
envisaging, 463 negligence, of, 273-280
common law duty of care, 463 res ipsa loquitur, 274-280. See also RES IPSA
company assets, remedies enforceable LOQUITUR
against, 461 reversing, 280
Crown, vicarious liability of, 575, 576
defective products, liability for, 377 Careless misstatement
defences- economic loss resulting form, 232
assumption of risk, 472 liability, test for, 232
contributory negligence, 472, 473 physical damage resulting from, 232
criminal and tortious liability, to, 471 re-examination of liability for, 232
ex turpi causa non oritur, 473 special relationships, 232-237
third party, act of, 473 Causation
disrepair of highway, 462 all torts, relevant in, 281
economic loss, recovery of, 461 breach of duty, relationship with, 294
enforcement of obligation, 458 breach of statutory duty, proof for, 470
European legislation, under, 470, 471 burden of proof, 283
harassment, action for, 39 but-for test, 282, 283, 286
inducing, 159 cause and effect, establishing, 282
industrial safety legislation, interpretation chain, breaking, 295
of, 460, 461 chance, loss of, 283-286
injury or loss of recognised type, showing, concurrent causes, 293
460 contributory negligence, 308-312
land and goods, protection of interests in, defective products, injury caused by, 375,
461 Syd)
matters to be proved- evidence of, 283
burden on defendant, statute imposing, what if, question of, 294
464 fact, in, 282-293
Index 675
Causation—contd Contract—contd
material contribution to harm principle, existing, interference with—contd
286, 287 indirect procurement, by, 155, 156
material contribution to risk of harm inducing breach. See INDUCING BREACH OF
principle, 287, 288 CONTRACT
several wrongdoers, among, 288-291 injunction against, 160
negligence, cases arising in, 281] justification of, 158, 159
novus actus interveniens- malice or ill-will, irrelevance of, 157
act of nature as, 294, 296 remedies for, 160, 161
conduct of claimant as, 295-297 secondary industrial action, by, 155
forms of, 294 tortious interference, 153
initial harm or loss, subsequent damage illegal transaction, arising from, 106
subject to, 299 negligence, concurrent liability in-
intervening act constituting, 294, 295 common calling, exercise of, 210, 211
meaning, 294 exclusion of, 211
policy issues, 298 implied duty of care, 210
remoteness, issues of, 298 remedy in tort, agreement to give up,
third party, act of, 295, 297-299 22.
one among several causative agents restrictive rules, exclusion of, 211
principle, 292 third party, duty sought to be
product liability, in, 385, 386 established by, 213
remoteness of damage, 298 tort action, limits of, 212
stages, analysis in, 281 occupiers’ liability in, 345, 346
standard of proof- tort, concurrent action in-
chance, loss of, 283-286 cause of action, choice of, 589, 590
relevance of, 283 contributory negligence invoked in,
tort actionable per se, in, 281 Simons
Character merchandising professional duties, 264
passing off, 133 remedies, choice of, 589, 590
Civil liberties tort, juridical division between, 18, 19
foundations of, 29 Contribution
Compensation amount of, 659-661
crimes, for, 456 limit, agreement for, 660
Conspiracy persons claiming, 658
burden of proof, 149 persons from whom claimed, 658, 659
combination, need for, 146, 147 statutory provisions, scope of, 657, 658
damage, to inflict, 148 Contributory negligence
false and fraudulent representations, action for breach of contract, in, 317
making, 148 assumption of risk, relationship with, 328
illegal aim, with, 146 availability as defence, 90
intent to injure claimant, proof of, 148 breach of statutory duty, defence to, 472,
justification, scope of, 149, 150 473
own interests, protection of, 149 causation, 308-312
purpose of defendants, 148-149 causative potency of act, 319
simple, 146-148 child, not imputed to, 315
tort, forms of, 146 claimant in position of danger, where, 314
unlawful act, to do, 146 collisions at sea, as to, 309
unlawful means, 146, 148 common law, at, 307
Contract commonsense principles, 310
action for breach, contributory negligence contributing factor, as, 308-312
invoked in, 317, 318 damage-
breach, inducing. See INDUCING BREACH OF cause of, 316
CONTRACT definition, 316
confidence, obligation of, 171, 172 damages, apportionment of, 318-320
existing, interference with- deceit, no defence to, 123
damage, causing, 158 duty of care after risk has materialised, 308
damages for, 159 employee of claimant, of, 315
defendant, state of mind of, 157 establishing, elements of, 307
‘direct intervention, by, 154, 155 examples of, 313
direct persuasion or procurement, by, fact, as question of, 310
154 fault, definition of, 316, 317
forms of, 153 independent contractor, of, 315
inconsistent dealing, by, 156 injuries, contributing to, 316
676 Index .
Contributory negligence—contd Conversion—contd

last opportunity rule, 309, 310 refusal to surrender goods on demand, 58,
misrepresentation, as defence to, 127 59
negligence of claimant, and, 312-315 remedies, 65, 66
nuisance, as defence to, 420 residual acts amounting to, 60
occupiers’ liability, as to, 342 subject matter of, 54
product liability, as defence to, 383, 384 taking goods, 56
reasonable behaviour of claimant, 314 use of goods, 57
reduction of damages for, 316 voluntary act, absence of, 59
risk, nature of, 308 Convicted persons
risk of danger, claimant deliberately rights of, 653
encountering, 314 Copyright. See also INTELLECTUAL PROPERTY
tule in Rylands v Fletcher, defence to claim inducing breach of, 159, 160
under, 445 Corporations
seat belt, failure to wear, 319, 320 power to sue, 644
severability of acts, 310 vicarious liability of, 642-644
standard of care, 313 Crime
statutory provisions- use of force to prevent, 94
effect of, 307 Criminal Injuries Compensation
scope of, 315-318 Scheme
strictly synchronous negligence, 310 compensation from, 618
Conversion Criminal law
action for, 48 tort law, overlap with, 19
acts of, 55-60 Crown
claimant, interest of- armed forces, personal injuries actions by,
bailment, 49-51 639
finder, of, 52, 53 judicial errors, not liable for, 638
jus tertii, 53 non-vicarious liability, 638
licensee, of, 52 statutes imposing tortious liability, whether
lien and pledge, 51 bound by, 639
possession or right to immediate vicarious liability, 575, 576, 637
possession, 49 Crown prerogative
sale, on, 51, 52 acts under, 105
third party rights, 53
co-owners, between, 60, 61 Damages. See also NEGLIGENCE, etc
damages for- aggravated, 579, 580
date of conversion, value at, 62-65 assignment of, 653
detinue, previously available in, 64 contemptuous, 578
full value, recovery of, 61 exemplary-
increased value, no recovery of, 63 application of rules on, 581
market value, as, 61, 62 object of, 580
pecuniary loss, for, 64 punitive, being, 580, 581
re-sale profit, 65 range of torts for which available,
special, 64 581
transfer of title on satisfaction of where granted, 581, 582
judgment, 64 fatal accidents. See FATAL ACCIDENTS
value of interest, limited to, 61 general and special distinguished, 578
defendant, state of mind of, 55 injunction, in addition to, 586, 589
definition, 49 mitigation of damage, 582-584
delivery, order for, 66 nominal, 577, 578
denial of title not being, 59, 60 non-material harms, for, 18
destruction or alteration of goods, 56 parasitic, 579, 584
disposition with delivery, 57, 58 personal injuries, for. See PERSONAL INJURIES
disposition without delivery, 57, 58 successive actions on same facts-
dispossessing person of goods, 56 one tortious act causing damage on
goods subject to, 54 different occasions, where, 586
human body products, rights in, 54 policy as to, 584
intentional conduct, need for, 55 successive acts, relating to, 586
loss or destruction of goods, 59, 60 two rights separately protected,
misdelivery by carrier, 58 violation of, 584, 585
mistake, by, 55 two torts protecting same interest,
question in law as to, 48 where, 585
receiving as, 57, 58 tax on, 579
Index 677
Damages—contd Defamation—contd
unjust enrichment and tort, choice of defamatory statements-
action in, 592 abuse, words of, 482
Damnum sine injuria commercial reputation of trading
maxim of, 13 corporation, defaming, 484
Death examples of, 483
cause of action, survival of, 608, 609, 635 innuendo, 485-487
damages incurred until time of, award of, interpretation, 484-488
608, 609 judge and jury, roles of, 487, 488
defamation actior. not surviving, 635 knowledge of defendant, immateriality
fatal accidents. See FATAL ACCIDENTS of, 489
Deceit living person, defaming, 484
agent, by, 124-126 opinion, words of, 483
contributory negligence no defence to, reputation, injury to, 481-483
ZS several meanings, capable of, 487
damage, proof of, 124 defences-
damages for, 124 absolute privilege-
definition, 119 executive matters, 509, 510
development of tort, 119 judicial proceedings-
exemplary damages for, 124 reports of, 513
false representation- statements in, 510-512
agent, by, 124-126 Parliamentary proceedings, 508,
change of circumstances, due to, 120 509
communication of, 122 solicitor-client communications,
concealment of truth, 120 512
conduct being, 120 amends, offer of, 507, 508
fraudulent, economic loss through assumption of risk, 501
reliance on, 232 consent, 501
intention to deceive, 121, 122 fair comment-
intention, as to, 123 burden of proof, 531
knowledge of falsity, 121 honest, to be, 529, 530
law, statements of, 123 judge and jury, functions of, 531
motive for, 122 malice, not to be actuated by, 529,
opinion, as to, 123 530
reliance on, 122, 123 procedural complexities, 527
use of, 119 public interest, matters of, 526
written or spoken words, 120 qualified privilege compared, 531
misrepresentation- scope of, 526
contributory negligence as defence to, true facts, comment on, 527-529
(AT innocent dissemination-
entry into contract, inducing, 126 common law, 505, 506
innocent, 127 statutory provisions, 506, 507
statutory provisions, 126 justification-
principal, liability of, 557 fact and opinion, statements of,
vicarious, 124-126 503
Statute of Frauds, action under, 126 interpretation of defamatory
tort of, 115 statement, 502, 503
Defamation malice, effect of, 505
actions in- material statements, of, 504
claimant’s death, not surviving, 480 minor points of detail, inaccuracy
damages, level of, 479 in, 503
wealthy persons, by, 479 press, freedom of, 505
apology, effect of, 531, 532 qualified privilege-
appeals, 480 common interest, instances of,
background issues, 477-480 png
broadcast, in, 495 criminals, statements given to assist
claimant, reference to, 489-491 in catching, 521
class libels, 490 fair comment compared, 531
commercial enterprises, action by, 484 general principle, 518, 519
constitutional significance, 480 instances of, 518-526
damages for, 532-534 interest, statements to protect,
level of, 479 521-523
death, action not surviving, 635 joint publishers, 518
678 Index \
. bed
Defamation—contd Defamation—contd
defences—contd remedies, 532-535
qualified privilege—contd remoteness of damage, 498, 499
legal, social or moral duty, right to freedom of speech, and, 478
statements in pursuance of, slander-
523-526 actionable per se-
malice, relevance of, 514-518 crime, implication of, 495, 496
misconduct of public officers, disease, imputation of, 497
statements concerning, 521 office, profession, calling trade or
occasions of, 513 business, in respect of, 497
privileged reports, 519-521 unchastity of woman, imputation
publisher, interest of, 522 of, 498
statutory provisions, 669-672 damages for, 533
dishonesty, allegations of, 241 libel distinguished-
elements of, 481 criteria for, 494, 495
extension of liability, 478 juridical differences, 495
historical development, 477, 478 meaning, 494
human rights provisions, effect of, 478 special damage, 498, 499
individual’s interest and freedom of speech, proof of, 477
balancing, 480 types of, 477
injunction against, 534, 535 unintentional references, 490, 491
injurious falsehood, and, 144 witness immunity, 546, 547
joint tortfeasors, 654 Defective premises
knowledge of defendant, immateriality of, inadequate foundations, 356
489 liability for-
lawyers, as lucrative specialism for, 480 builders and contractors, of-
legal aid not available for, 479 duty of care, 358
legislation, 479 economic loss, for, 359-362
libel- negligent construction, for, 358-
actionable per se, 495 361
crime, as, 495 omissions, 359
meaning, 494 physical damage, for, 358, 359
repetition of, 499 property separate from building,
slander distinguished- damage to, 360
criteria for, 494, 495 state not fit for habitation, premises
juridical differences, 495 in, 361
limitation period, 625 landlords, of, 363, 364
malice- local authorities, of, 362, 363
burden of proof, 516, 517 non-occupiers, of, 356-364
establishment of- occupier, of, 331. See also OCCUPIERS’
abuse of purpose of privilege, 515 LIABILITY
extraneous matter, inclusion of, 516 physical injury, for, 331
persons outside scope of privilege, professional advisers, of, 362
unreasonable publication to, strict, 357
516 types of defendant, 331
truth of statement, defendant not work, for, 357
believing in, 514 statutory duties in relation to, 357
excess of privilege, 517 statutory provisions, 356-358
fair comment not to be actuated by, work in relation to, strict liability for, 357
529, 530 Defective products . See also PRODUCT
joint publishers, problems of, 518 LIABILITY
judge and jury, roles of, 516 breach of statutory duty, action for, 377
publication with, 514 common law stance, 367
malicious publication, 491-493 consumer protection laws, 367
political import, 479 contract law, limitations of, 368, 369
public authorities and governmental bodies, Directive, 368
no right of action by, 478 loss or injury caused by, history of liability
publication- for, 367
meaning, 492 negligence, liability in-
omission, by, 493 burden of proof, 375
proof of, 493 causation, proving, 375, 377
responsibility for, 492, 493 continuing duty of care, 374
third party, to, 493 dangerous goods, for, 370
Index 679
Defective products—contd Defences—contd

negligence, liability in—contd exclusion of liability, 329, 330
defendants, range of, 371 executive acts, 105
design defects, for, 376 general, 85
design, container or labelling, defect in > inevitable accident, 86
374 injurious falsehood, to, 143, 144
development of, 369 intentional torts to person and property,
Donoghue v Stevenson, case of, 370 to, 85
drugs, for, 377 judicial acts, 103
intermediate examination, no malicious prosecution, to, 546
possibility of, 373 mistake, 85-6
manufacturer, of, 370, 371 necessity-
narrow rule, 371 actual danger, need for, 96
neighbour principle, 370 defence of property distinguished, 94
preparation or putting up, for, 374 medical treatment, in context of, 90,
principles of, 370, 371 95
products, meaning, 372 private, 94, 95
proof of, 375-377 public, 95, 96
recoverable loss, 374, 375 scope of, 94, 95
sale of goods, absence of, 373 nuisance, to. See NUISANCE
ultimate consumer, to, 372 Parliamentary proceedings, acts connected
negligence, proof of, 367 with, 104
privity of contract, rules of, 369 person of another, defence of, 92
reform of law, calls for, 378 prerogative, 105
Sale of Goods Act, protection under, 368, product liability. See PRODUCT LIABILITY
369 property, defence of-
satisfactory quality, 368, 369 another, of, 94
services, contract for, 368 own, 92-94
statutory protection, 368 res judicata, 105
ultimate user, action by, 367 Rylands v Fletcher, rule in. See RYLANDS V
Defences FLETCHER, RULE IN
Act of State, 105 self-defence, 91
arrest. See ARREST self-help remedies, 109, 110
breach of statutory duty, to. See BREACH OF statutory authority, 104
STATUTORY DUTY volenti non fit injuria. See VOLENTI NON FIT
claimant as wrongdoer, where- INJURIA
anti-social or disgraceful conduct, 108, Detinue
109 abolition, 58
conceptual basis of, 107 remedies, preservation of, 64
criminal act, injury arising from, 107, writ of, 47
108 Diplomatic _ privilege
entitlement to remedy, barring, 106 effect of, 640
ex turpi causa non oritur actio, source Discipline
of maxim, 106, 107 children, of-
examples of, 107, 108 parents, by, 97
other defences, giving rise to, 109 schoolteachers, etc, by, 97
test for, 106 defence to action, as, 95
uncertainty in applying, 106 justification, 96
consent- passengers in public transport, of, 98
act complained of, to, 87 Dogs
burden of proof, 86 liability for injury to livestock done by,
express, 36 455
forms of, 86 Duty of care
inferred, 86, 87 animals, for. See ANIMALS
medical treatment, to, 88-90. See also architect, of, 230, 231
MEDICAL TREATMENT assumption of responsibility, effect of,
contributory negligence. See CONTRIBUTORY 199, 200
NEGLIGENCE breach-
crime, prevention of, 94 causation, relationship with, 294
defamation. See DEFAMATION establishment of, 177
discipline. See DISCIPLINE Caparo test, 186-198
entry, search and seizure, powers of, 98, co-criminal, to, 226
LOZ els contract, implied in, 264
680 Index
‘
Duty of care—contd Duty of care—coéntd
damage to property, to avoid, 228-231 special relationship between parties, 199,
defective design, for, 230, 231 200
denial of existence of, 179 standard of care. See STANDARD OF CARE
Donoghue v Stevenson, principle in, 178 third parties, failure to control or guard
duty-situations- against acts of, 191-194
analogous, 185 tort and contract, in-
Anns, rise and fall of, 179-186 common calling, exercise of, 210, 211
general, 178 concurrent, 210-213
necessary proximity giving rise to, 182 exclusion of, 211
new, incremental development of, 186, implied duty, 210
198 remedy in tort, agreement to give up,
novel, 184, 185 212
physical damage, carelessness causing, restrictive rules, exclusion of, 211
182, 183 third party, duty sought to be
two-stage test of, 180-182 established by, 213
economic loss, to safeguard against, 232, tort action, limits of, 212
233. See also ECONOMIC LOSS tort of negligence, establishment in, 177
employers’ liability. See EMPLOYERS’ LIABILITY types of damage, approach to, 182
fair, just and reasonable to impose- unborn, to, 216-218
issues, 195
negative usage, 195, 196 Easement
policy, 194, 195 nuisance, right to commit, 418
positive usage, 196-198 Economic interests, interference with .
test of, 183, 184 See also ECONOMIC TORTS
foreseeability. See FORESEEABILITY careless, 117
foreseeable claimant, to, 187, 188 contract and tort, overlap of, 117
general test, emergence of, 178, 179 deliberately inflicted harm, 113, 114
harm, types of, 215 negligent, 114-117
imposition of- positive right to, 114
moral questions involved, where, right to protection of interests,
226 establishment of, 114
policy issues, 226-228 Economic loss
incrementalism, 198, 199 breach of statutory duty, recovery on, 461
insurance, certainty for, 185, 186 builders and contractors, liability of, 359-
issues, 195 362
law, question of, 179 careless statements, caused by. See CARELESS
modern approaches to, 186-200 MISSTATEMENT; NEGLIGENT ADVICE
neighbour principle- child-rearing costs, 227
injury inflicted, nature of, 215 classification of loss as, 243, 244
new situations, emergence of, 179 duty to avoid, 239, 240
statement of, 178 economic torts. See ECONOMIC TORTS
new situations, emergence of, 179 failed sterilisation as, 227, 228
non-delegable, 560-563 fair, just and reasonable to impose liability
occupiers’ liability. See OCCUPIERS’ LIABILITY for, 241
omissions, 189-191 foot and mouth disease, allowing cattle to
particularising, 262 become infected by, 242
person to whom owed, 178 fraudulent statement, reliance on, 232
personal injuries, to avoid, 215 liability for, 181
personal injury, in relation to, 184 principles governing, 240
policy grounds for existence of, 181, 182 limits of recovery for, 245
professional, of, 264 negligent interruption of services, caused
proximity, requirement of, 188-194 by, 242, 243
psychiatric harm, as to, 218-226. See also never recoverable, where, 244, 245
PSYCHIATRIC HARM nuisance causing, 410
public authorities, of. See PUBLIC AUTHORITIES physical damage, consequent on, 243
public functions, and, 201-210 another person, to, 244
public policy, limitation of liability for predictability of, 243
harm on basis of, 226-228 property, damage to, 185, 229-231
requirements for imposing, 186 proximity of parties, 243
rescuers, to, 218, 224, 225 pure, 231-245
scope of, 247 relationship between parties, relevance of,
situations imposing, 178 243
Index 681
Economic loss—contd Ex turpi causa non oritur actio—contd

restrictive approach to, 231 wholly discretionary defence, not, 107
rule in Rylands v Fletcher, claim under, Exclusion of liability
439 business liability, 329
Economic torts death or personal injury, for, 329
breach of contract, inducing, 116 duty of care arising, where, 330
Convention rights, lack of impact, 9 statutory provisions, 329, 330
deceit. See DECEIT
economic regulation, and, 118 False imprisonment
free competition, emphasis on, 115 character of act, 41-44
haphazard development of, 114 claimant, knowledge of, 44
injurious falsehood. See INJURIOUS FALSEHOOD conditions of detention, changes in, 42, 43
intellectual property, protection of, 116 damages for, 45, 46
negligence, economic loss caused by, 117 definition, 40
passing off. See PASSING OFF information leading to, giving, 44, 45
scope of, 9 initial act, wrongful nature of, 539
trade union immunities, 116, 167 interest protected by, 6
unfair competition, 115, 116 justifiable, whether, 85
unlawful acts, 115 malicious prosecution distinguished, 45
unlawful interference with trade. See means of egress from premises, failure to
UNLAWFUL INTERFERENCE WITH TRADE provide, 43
Employee movement, restraint on, 42
employers’ liability to. See EMPLOYERS’ omission, effect of, 43
LIABILITY persons liable for, 44, 45
independent contractor distinguished. See place of confinement, 41
INDEPENDENT CONTRACTOR positive act of, 43
Employers’ _ liability proof of damage, no need for, 45
abroad, employee working, 272 remand beyond statutory limits as, 43
adequate premises and plant, for, 269 state of mind of defendant, 41
company assets, remedies enforceable tort of, 31
against, 461 voluntarily attending police station, 102
competent staff, provision of, 269 Fatal accidents
contributory negligence by employee, 315 bereavement, claim for, 612, 613
defective equipment, for, 268, 269 damages, assessment of-
defences, 268 bereavement, for, 613
development of, 266 cohabitants, position of, 615
duty of care- 267-269 date of trial, to, 615
employee’s family, to, 272 death and trial, taking account of
equipment, provision of, 562 events between, 615
fault, proof of, 267 family breadwinner, for loss of, 615,
general, 266, 267 616
negligence, for, 268 funeral expenses, 615
physically dangerous work environments, future earnings, for, 614
responsibility for, 271 parent, loss of, 616
proper system of working, provision of, pecuniary loss, for, 613
270-272 traditional method, 613, 614
responsibilities, divisions of, 267 widow, payment to, 614
workmen on premises, rights of, 271, 272 death as cause of action-
Entry on premises act complained of, nature of, 611
police powers of, 102, 103 contributory negligence, 611
Equitable obligation executor or administrator, action by,
inducing breach of, 159 610
Estate agent historical background, 610
negligent statement by, 557 interests protected, nature of, 612
European Community law limitation period, 613
rights protected by, 11-12 relatives, on behalf of, 610
Ex turpi causa non oritur actio wrongful act, neglect or default, caused
breach of statutory duty, defence to, 473 by, 611
conceptual basis of, 107 dependant, ciaim by, 612
conduct short of crime as basis for, 109 issues arising, 608
contribution, not defeating claim for, 658 lost years, no damages for income in,
effect of, 106-109 609
source of, 106 statutory provisions, 610
682 Index \
Foreign states Human rights

immunity, 639, 640 Convention rights, 663-668
Foreseeability common law, remedy under, 7
egg-shell skull rule, 304,.305 domestic law, not established in, 6
extent of damage, of, 303, 304 interpretation of statutes consistently
foreseen claimant, 187, 188 with, 8
harm, of, 187 law of torts, recognition in, 5
insufficiency of, 183 meaning, 5
means by which harm caused, of, 301-303 protection of, 5, 11-12
precise mechanics of harm, of, 302 public authorities, enforceable against,
proximity, and, 188 6
tule in Rylands v Fletcher, claim under, defamation, action for, 478
442, 443 law of, 4
sole test of duty of care, as, 181, 182 nuisance, right to bring action in, 408
type of damage, of, 300, 301 privacy, right to, 6-8
Wagon Mound principle, 300 private individual, wrongdoer as, 6
Fraud Human Rights Act 1998
limitation period, postponement of, 634 claims under, 6
vicarious liability for, 574, 575 Convention rights, effecting, 5
Freedom of speech horizontal effect, 8
breach of confidence, and, 173 intentional torts to the person, effect on,
defamation, relationship with action for, 31
478, 479 law of torts, impact on, 5
right to, 478 Husband and wife
actions between, 647, 648
Goods liability of, 647, 648
conversion. See CONVERSION
detinue, 47 Independent contractor
interests not in possession, protection of, agents, and, 556-558
48 contributory negligence, 315
interference, protection against, 47 employee distinguished-
law of torts relating to, criticism of, 47 borrowed employees, 555, 556
residual torts involving, 71 cases of, 554-556
slander of, 138, 139 control, 552, 553
trespass to. See TRESPASS TO GOODS criteria for, 552-556
wrongful interference with- hospital staff, 555
remedies, 65, 66 importance of, 551, 552
statutory provisions, 48, 49 intention of parties, 554
trespass to goods as, 69 personal investment, 553
Goodwill police officers, 556
confusion, injury from, 134 liability of employer for-
malicious falsehood, protection by, 138 authorising committing of tort, 558,
passing off goods to cash in on, 135 Sa)
intentional or negligent conduct not
Harassment required to be proved, 559
breach of statutory duty, action for, 39 negligence-
criminal offence of, 39 non-delegable duties, 560-563
meaning, 39 personal, on part of employer, 559,
statutory tort of, 39 560
unsocial behaviour rendered as, 39 meaning, 551
Health and safety no liability of employer for-
European provisions, 461 collateral negligence, 563, 564
legislation, 460 duty imposed on employer, no breach
Health service of, 563
non-delegable duties, 561 nuisance, creation of, 415
Highway occupiers’ liability for, 342-344
disrepair as breach of statutory duty, 462 Inducing breach of contract
public nuisance. See PUBLIC NUISANCE breach of obligation, proving, 152
trespass on, 76 contracts, types of, 151
Highway authorities enticement of servant, 151
liability of, 641, 642 extension of, 150
Human body products knowledge of contract, need for, 153
property rights in, 54 origins of, 150-153
Index 683
Inducing breach of contract—contd Land

other obligations, breach of, 151 trespass to. See TRESPASS TO LAND
performance, preventing or hindering, 152 Latent damage
secondary obligations, breach of, 151 limitation period, 631-633
strike in breach of no-strike clause, Libel. See DEFAMATION
inducing, 152 Lien
tort of, 150 goods, over, 51
types of breach, 151-153 Limitation period
Industrial injuries accrual of cause of action, 626, 627
compensation for, 618 continuing wrongs, for, 633
Injunction . See also NUISANCE, etc death of claimant after expiry of, 613
action in tort not lying, where, 588, 589 defamation, 625
Anton Piller order, 587 disability of claimant, effect of, 633, 634
balance of convenience, on, 588 fraud or concealment, postponement in
breach of confidence, restraining, 173 case of, 634
damages in addition to, 586, 589 latent damage, in case of, 631-633
discretionary jurisdiction, 588 need for, 624, 625
interests protected by, 589 personal injuries action-
interference with contract, against, 160 breach of duty, meaning, 625
interim, 587 extension for, 630
interlocutory, 586 generally, 625, 626
mandatory, 586 industrial diseases, 627, 628
Mareva, 587 knowledge of injury, beginning to run
passing off, against, 137 from, 628-630
perpetual, 588 special rules for, 627-630
prohibitory, 586 product liability, 386, 625
quia timet, 588 short, injustice of, 624
remedy per se, as, 586 statutory provisions, 625
right of property, protecting, 589 trespass, action for, 626
trespass to land, against, 81, 82 Limited liability partnership
Injuria sine damno liability of, 647
maxim of, 13 Litigation
Injurious falsehood. See MALICIOUS FALSEHOOD unjustifiable, protection from, 539
Insurance Livestock
assignment of right to sue, 653 dogs, liability for injury done by, 455
circumstances in which duty of care arising, straying, liability for, 454
certainty as to, 185, 186 Local authority
loss distribution, 16 defective premises, liability for, 362, 363
personal injuries, payment for, 619 public nuisance, proceedings against, 424
professional negligence, against, 263
Intellectual property Malicious falsehood
breach of confidence. See BREACH OF ambit of, 139
CONFIDENCE damage, causing, 142, 143
definition, 169 defamation, and, 144
infringement, action for, 170 defences, 143, 144
interests, protection of, 9 definition, 138
protection of, 116 disparagement, 140
protection of, 169 economic damage, causing, 140
rights, grant and regulation of, 170 economic reputation, protection of, 138
statutory protection, 169 false statement-
threat of infringement proceedings, 140 pecuniary loss, causing, 142, 143
Intimidation proof of, 141
criminal act of violence, threat to commit, publication, 141
163 intellectual property, protection of, 139,
tort of, 161, 162 140
unlawful threats, 162, 163 interests in land, protection of, 138
interests protected, 138-140
Judgment malice, element of, 141, 142
final, effects of, 623 rarity od actions, 143
res judicata, 623 slander of goods, as, 138, 139
satisfaction, 622 tort of, 115, 116
Judicial acts trade libel, as, 139
liability in tort, negating, 103 utility, extension of, 139
684 Index
Malicious prosecution Negligence

conditions for, 540 animals, liability for. See ANIMALS
defences, 546 burden of proof, 273-280
defendant not believing in claimant’s guilt, calculated, 16
evidence of, 543 categories, expandable nature of, 181
false imprisonment distinguished, 45, 539 causation. See CAUSATION
guilt of claimant, person of ordinary collateral, 563, 564
prudence not believing in, 544 defective products. See DEFECTIVE PRODUCTS
improper purpose, evidence of, 544, 545 defences-
malice, evidence of, 544, 545 contributory negligence. See
proceedings- CONTRIBUTORY NEGLIGENCE
Crown Prosecution Service, by, 545 exclusion of liability, 329, 330
disciplinary, 542 volenti non fit injuria. See VOLENTI NON FIT
institution of, involvement of INJURIA
defendant, 540 duty of care. See DUTY OF CARE
nature of, 541 economic interests, deliberately inflicted
non-criminal, 541 harm to, 114, 115
termination in favour of claimant, 542 economic loss, liability for, 181, 185
public interests, balance of, 539 grey areas, 28
purposes of procedural formalities, Human Rights Act 1998, re-evaluation of
concerned with, 539 principles under, 216
reasonable and probable cause, absence of, new categories of, 185
542-544 professional. See PROFESSIONAL NEGLIGENCE
warrant of arrest, procuring, 541 proof of-
Medical treatment law and fact, 272, 273
battery in context of, 28 onus of, 273-280
consent to- procedure, background to, 272
child, on behalf of, 89 res ipsa loquitur, 274-280. See also RES
implied, 88 IPSA LOQUITUR
minor, by, 88, 89 public authorities, of. See PUBLIC AUTHORITIES
necessity, defence of, 90, 95 separate tort, emergence as, 177
person incapable of giving, position in trespass, overlap with, 23-26
relation to, 89, 90 Negligent advice
written, 88 duty of care-
counselling on, standard of care, 249 auditors, of, 233, 234
mental disorder, conduct towards persons extended principle, 237-242
suffering from, 96 managing agents, of, 235
professional negligence. See PROFESSIONAL special relationships, 233
NEGLIGENCE surveyors, of, 236
Mentally disordered person economic loss arising from, parameters of
liability, relevance of state of mind, 648, liability for, 233
649 liability for-
Minor assumption of responsibility, 199, 200,
capacity to sue, 650, 651 22238
liability of- basis of, 236, 237
breach of contract, act being, 649, disappointed beneficiaries, to, 238, 239
650 disclaimer of, 237
state of mind, lacking, 649 economic loss, redress for, 238-240
meaning, 649 extended principle, 237-242
parent, liability of, 650 limits of, 234
Misfeasance in public office person to whom owed, 238
fabrication of evidence, 548 practical justice, doing, 239
malicious refusal of bail, 548 reference, provision of, 240
public body, against, 547, 548 placing faith in, situations of, 235
test for liability, 547 professional negligence, 264
vicarious liability for, 548 recovery for, criteria, 233
witness immunity, 548 special relationships, 233
Misrepresentation Nervous shock. See pSYCHIATRIC HARM
contributory negligence as defence to, 127 Nuisance
entry into contract, inducing, 126 action, persons bringing-
innocent, 127 damage to chattels, persons suffering,
passing off. See PASSING OFF 410
statutory provisions, 126 economic loss, persons suffering, 410
Index 685
Nuisance—contd Nuisance—contd
action, persons bringing—contd substantial interference with land—contd
owners, 408, 409 material damage, causing, 397, 398
personal injuries, persons suffering, 410 motive of defendant, 403, 404
resident occupiers, 408, 409 nature, characterisation of, 399
reversioners, 409 preventing or avoiding, impracticability
activities being, 388 of, 407
acts of nature, 414 reasonable user, 402-408
boundaries of, 391 seriousness of, 394
creators of, 411-413 servitudes, interference with, 398
damages for, 420-422 type of user, 406
defences- unreasonableness-
assumption of risk, 419 character of harm, 401, 402
claimant’s conduct, 419 duration of harm, 400
contributory negligence, 420 extent of harm, 401
fire, accidental starting of, 420 issues to which relating, 399
prescription, 418 reasonable user, 402-408
statutory authority, 417, 418 role of, 399-408
defendants- seriousness of, 399-402
creators, 411-413 type of user, 406
landlords, 415-417 use interfered with, social value of,
occupiers, 413-415 402
definition, 387 use and enjoyment, with, 393-397
environmental law, and, 389, 390 tenant, liability of, 416
independent contractor, created by, 415 trespass, overlap with, 391, 392
injunction as remedy for, 392, 422 trespasser, acts of, 413, 414
interests protected, 387
liability in- Occupiers’ _ liability
strict or fault-based, being, 391 activities on land, for, 353-355
substantial interference, for, 393-399 adjoining premises, to persons on, 355,
unreasonableness, role of, 399-408 356
negligence, and- common law, at, 331, 353-355
elements eclipsed by, 389 damage by animals, for, 451
relationship with, 391 movable structures, application of
outcome of conduct, reasonableness, 388, principles to, 344
389 non-visitors, to-
personal injuries, no recovery for, 389 age and capabilities of, 351
planning legislation, effect of, 390 awareness of danger, 350
previous occupier, acts of, 415 common law rules, replacement of, 350
public. See PUBLIC NUISANCE duty of care, test for existence and
public and private, relationship between, substance of, 351
426-428 likelihood of entry by, 350
remedies, 420-423 objective and subjective elements, 350,
tule in Rylands v Fletcher, relationship 3511
with, 391, 448-450 right of access to open land, exercising,
scope of, 387-389 352
substantial and unreasonable disturbance, risk of injury, foreseeable, 350
388 statutory provisions, 349-353
substantial interference with land- warning, 351, 352
abstraction of water, 403, 404 occupier, meaning, 332
amenity, 393 persons outside premises, to, 355, 356
basis of liability, as, 393 statutory provisions, 332
character of neighbourhood, alteration visitors, to-
of, 397 activities not directly associated with
claimant, sensitivity of, 394-396 occupation, 338
damage, proof of, 393 children, 335, 339, 340
defendant’s land, emanating from, 417 common duty of care-
fault, 405, 406 assumption of risk, 341, 342
ill-conduct, 404 child, physical and mental powers
location of defendant’s enterprise, 404, of, 339
405 chimney sweep, to, 340
location of premises, relevance of, 396, contributory negligence, 342
397 exclusion of, 347-349
686 Index
‘
Occupiers’ _liability—contd Passing off—contd

visitors, to—contd defences, 137
common duty of care—contd elements of action, 128
general principles, 338- false advertising, 132
independent contractors, liability foundation of, 128
for, 342-344 goodwill-
particular profession, visitors of, another’s, cashing in on, 135
340 protection of, 127, 128
purposes for which invited, in injunction against, 137
relation to, 338 misrepresentation-
standard required, attaining, 338, character merchandising, 133
339 claimant’s customers, likely to deceive,
warning, giving, 340, 341 133, 134
window cleaners, to, 340 claimant’s name, using, 129
common law rules, use of, 338 claimant’s trade mark, using, 130, 131
contract, in, 345, 346 claimant’s trade name, using, 129, 130
damage to property of, 345 false advertising, 132
exclusion of- forms of, 128
common duty of care, modification goodwill of another, cashing in on, 135
of, 347 group of traders, product of, 134
contract term, in form of, 348 imitating appearance of claimant’s
farmers and countryside owners, by, goods, 131
349 inferior goods to that of claimant,
notice, by, 348, 349 selling to mislead purchaser, 131,
fixed or movable structures, application 132
of principles to, 344 marketing product as that of claimant,
implied invitation to, 335, 336 129
independent contractors, liability for, requirement of, 128
342-344 trade, in course of, 134
invitees or licensees, irrelevance of probability of damage, showing, 136
distinction between, 334 remedies, 137
meaning, 333-336 scope of, 127
more than one occupier, in relation to, tort of, 115
334 unfair trading, 138
occupier, meaning, 332 Perjury
public right of way, on, 334, 335 crime, as, 547
right, persons entering as of, 336 Personal injuries
risks against which protected, 337, 338 compensation for-
scope of provisions, 333-338 charity, from, 619
standard of care, 333 Criminal Injuries Compensation
trespassers, and, 334 Scheme, 618
workmen on premises, to, 272 debate on, 594
Omission fault system, 593, 594
actionable negligence, 189-191 industrial injuries scheme, 618
acts distinguished, 189 insurance, 619
immediate cause of harm as, 190 occupational pensions, 618
liability for, scope of, 215 occupational sick pay, 618
positive duty to act, relationship giving Pearson Report, 619, 620
rise to, 190, 191 reform, 619, 620
proximity, relationship of, 191 social welfare approach, 619, 620
pure, 190 torts as system of loss distribution, 593
statutory power, failure to exercise, 207, trade unions, payments from, 619
208 Criminal Injuries Compensation Scheme,
warn, to, 192 618
damage or destruction of goods, claim for,
Parliamentary proceedings 608
acts connected with,, no liability for, 104 death. See FATAL ACCIDENTS
Partners disability payments, 618
liability of, 647 limitation period-
Passing off breach of duty, meaning, 625
character merchandising, 133 extension of, 630
damage caused, 136 generally, 625, 626
damages for, 137 industrial diseases, 627, 628
Index 687
Personal injuries—contd Privacy—contd

limitation period—contd right to, 6-8
knowledge of injury, beginning to run recognition, step to, 478
from, 628-630 Product liability
special rules for, 627-630 blood and human tissues, exclusion of, 381
living claimants, damages for- causation, 385, 386
components of, 596 claimants, 379
flexible periodic payments, 595 construction and presentation defects, 383
interest on, 607 defect, definition, 381-383
loss of amenities, for, 605 development risks defence, 368, 378, 384,
loss of earnings, for- 385
actuarial evidence, use of, 597 Directive-
date of trial, up to, 596 construction of provisions in light of,
early death, prospect of, 598, 599 379
earning capacity, and, 599 Consumer Protection Act regime,
inflation, effects of, 598 derivation of, 378, 379
Ogden Tables, 598 requirements of, 368
prospective, 597-599 drugs, side-effects of, 382
non-pecuniary losses, for- fault, proof of, 381
loss of amenities, 605 intermediate examination of product, 386
pain and suffering, 604 limitation of actions, 386, 625
provisional awards, 606, 607 producers, of, 379
quantum, assessing, 605, 606 products, definition, 372, 380, 381
once and for all lump sum, as, 594, statutory provisions, 368
595 strict liability-
pain and suffering, for, 604 benefits of regime, 385
pecuniary losses, for- defences-
benefits received, deduction for, contributory negligence, 383, 384
602-604 development risks, 384, 385
breakdown of marriage, associated general, 383
with, 602 improper use, 384
loss of earnings, 596-599 no-fault liability, and, 381
marriage prospects, loss of, 601 persons on whom imposed, 379, 380
medical, nursing and hospital Professional negligence
expenses, 599-601 advice, as to, 264
policy grounds, exclusion on, 602 background to, 263
special expenses, 601 breach of duty, 264
provisional damages, 606, 607 doctors, of-
structured settlement, 595, 596 action against, 265, 266
traditional approach to, 594, 595 difficulties faced by, 263
meaning, 626 duty of care, 264
social security benefits, 617, 618 errors of judgment, 266
welfare state, role of, 617, 618 implications of, 263
Physical harm indemnity cover, 263
wilful act or statement causing- insurance against, 263
disuse of tort, 39 proper practice, evidence of, 265
examples of, 38 reasonable professional, standard of, 265,
harassment, 39 266
injury, nature of, 40 skill and competence, exercise of, 263,
intention, proof of, 38 265
nervous shock cases, 38, 40 standard of care, 263
strip search, 38, 39 third parties, duties to, 264
tort, as, 38 tort and contract, concurrent duties in,
Pledge 264
right conferred by, 51 Property
Postal service providers damage to-
liability of, 640 duty to avoid, 228-231
Privacy personality damage, as, 245
basis of right, 171 defective premises. See DEFECTIVE PREMISES;
breach of confidence, protection by action OCCUPIERS’ LIABILITY
in, 171 economic loss to, 229-231
common law, development of, 8 imminent danger, causing, 231
freedom of expression, and, 11 latent damage to, 631-633
688 Index
Psychiatric harm Public authorities—contd

abnormal grief reaction, caused by, 220 vicarious liability, 207
bystanders, liability to, 223, 224 Public nuisance
categories of claimants, 221 criminal offence, as, 387, 423
claim for damages, disorders giving rise to, damages for, 428, 429
220 defective premises, injuries caused by, 355
emergency services, to members of, 224, highways, danger or obstruction on, 425,
225 426
examples of situations of, 225 injunction against, 428
expansion of liability, halting, 225 local authority proceedings,. 424
Hillsborough cases, 221, 224 nature of, 423
liability for, 218-226 private nuisance, relationship with, 426-
criteria for, 221, 222 428
monetary value of, 219 relator action against, 423
other person’s injuries, as reaction to, 219 remedies, 428, 429
post-traumatic stress disorder, 219, 220 special damage, civil action for, 424-426
pragmatic approach, 222
primary victim, liability as author of own Reference
injury,, 223 liability for, 241
primary victims of negligence, victims as, qualified privilege, as example of, 241
220 Rehabilitation of offenders
proximity to events, establishment of, spent convictions, 505
Dail, 22947) Release
recovery of compensation for, 219 cause of action, of, 623
reform of law, need for, 226 Remedies . See also NEGLIGENCE, etc
secondary victims, 219-221 account of profits, 586
trauma of event or aftermath, resulting choice of, 621, 622
from, 222 contract and tort, choice between, 589,
Public authorities 590
classification of persons as, 6 damages. See DAMAGES
Convention rights enforceable against, 6 extra judicial, 577
defamation, no right of action in, 478 injunctions. See INJUNCTION
employees, vicarious liability for, 207 unjust enrichment and tort, choice of
failure to provide public services, claim for action in,
breach of statutory duty, 462 measure of damages, 592
liability of- election, 590, 591
general principle, lack of, 200, 201 Remoteness of damage
public service immunities, 209, 210 causation, and, 298
statutory power, failure to exercise, defamation, in, 498, 499
200, 207, 208 egg-shell skull rule, 304, 305
negligence claims against, complexities in, extent of damage, 303, 304
201 foreseeable type of harm, 300, 301
negligent exercise of statutory powers, limitation of liability, 299
justiciability- means by which harm caused, 301-303
child care appeals, 204, 206 Wagon Mound principle, 300
decision-making cases, 205 Reputation
discretionary powers, 203-205 protection of, 10
education cases, 204 Res ipsa loquitur
historical precis, 202-204 absence of explanation, 275
implementation cases, 205 effect of, 278-280
modern approach- harm being of kind not ordinarily
general principles, 204-207 happening if proper care taken, 275,
statutory power, failure to exercise, 276
207, 208 instrumentality causing within exclusive
policy/operations dichotomy, 205, 206 control of claimant-
vires, question of, 203 control, meaning, 276, 277
privacy, invading, 6 two or more persons, control by, 277,
public service immunities, development of, 278
209, 210 onus, shifting, 279
statutory functions, accountability for, prima facie evidence of negligence, as, 279
201, 202 principle of, 274
statutory power, failure to exercise, 207, rebutting inference of, 280
208 statement of, 274
Index 689
Rescuers Standard of care

duty to, 218, 224, 225 adults affected by disability or infirmity, in
emergency services, compensation to, relation to, 259
218 children, in relation to, 255
psychiatric harm to, 224, 225 circumstances, demanded in, 250
volenti non fit injuria not lying against > claimant, of, 313
327 claimant, special knowledge concerning,
Restitution 260
tort, juridical division between, common types of claim, 262
18-19 duty, relationship with, 261-263
Risk factors relevant to establishing-
voluntary assumption of. See VOLENTI NON FIT act of defendant, social utility of, 249-
INJURIA 25%
Rylands v Fletcher, rule in adults affected by disability or
claimant in action, 437-439 infirmity, in relation to, 259
defences- children, in relation to, 255
Act of God, 447 claimant, special knowledge
consent of claimant, 444 concerning, 260
contributory negligence, 445 cost of avoiding harm, relative, 252
necessity, 447 defendant-
statutory authority, 443, 444 extraneous to, 248-254
third party, act of, 445-447 pertaining to, 254-261
defendants to action, 435-437 emergency, in, 251
economic loss, claim for, 439 facts and circumstance, knowledge of,
escape, meaning, 441, 442 256
extension of liability, 432 general practice of community, 253,
foreseeability of harm, 442, 443 254
land not owned or occupied by defendant, harm, likelihood of, 248
escape from, 437 hurly burly of life, 253
lessor of land, liability of, 437 intelligence and knowledge, 256, 257
negligence, relevance of, 446 legislation, utility implicit in, 250, 251
non-natural use of land- magnitude of harm, 249
application to, 439, 440 memory and experience, 256
definition, 433 skill of defendant,, 257, 258
essence of, 431 third parties, foreseeable acts of, 261
instances of, 440, 441 medical treatment, counselling on, 249
interpretation of, 440 objective nature of, 255
liability for, 432 occupiers’ liability. See OCCUPIERS’ LIABILITY
munitions works, operation of, 433 particular needs of claimant, relevance of,
nuisance- 260
analogy with, 432 professional negligence. See PROFESSIONAL
overlap with, 391 NEGLIGENCE
relationship with, 448-450 professional persons, skill of, 257, 258
occupier of land, recovery by, 438 reasonable person, of-
original case, 431 considerations for, 247, 248
personal injury, action by person suffering, hypothetical, 255
439 legal standard, as, 247
scope of, 431 objective nature of, 255
strict liability tort, as, 431, 432 ordinary care and skill, using, 255
things within, 433-435 skill, as to, 257, 258
vegetation, accumulation of, 435 sport, playing of, 258
water, artificial accumulation of, 435 test by which judged, 247
third parties, foreseeable acts of, 261
Search and seizure Statutory authority
defence, powers as, 98 compensation for acts under, 105
police powers of, 102, 103 defence, as, 104
reasonable cause, for, 100 nuisance, defence to, 417, 418
Self-defence rule in Ryiands v Fletcher, defence to claim
defence of, 91 under, 443, 444
Slander. See DEFAMATION Strict liability
Social security animals, for. See ANIMALS
victims of personal accidents, benefits for, defective premises, for, 357
617, 618 torts of, meaning, 366
690 Index
Tort Torts, law of—coutd

contract and restitution, juridical division rights and wrongs, relationship of, 13
between, 18-19 theoretical perspectives, 12-18
crime, conduct constituting, 19 wrongfulness, 13-14
deterrent effect, 16 ; Trade union
forms of action, 14-15 immunities, 116, 167
harm involving violation of interest, liability of, 644
requiring, 4 Trespass
interest, violation of, 4 assault, overlap with, 28
malice or motive, relevance of, 14 boundaries set by, 27, 28
meaning, 3 careless conduct as, 24, 25
motive for, 539 consent as defence, 86
non-material harms, caution in respect of, discipline. See DISCIPLINE
18 duty of care, 25
other areas of law, and, 18-19 fundamental human right, vindication of,
other branches of law distinguished, 3 28
pleadings, 14 goods, to. See TRESPASS TO GOODS
situations held to be, 13 history of, 23
Tortfeasors intention, and, 26, 27
concurrent- intentional invasion, as, 23, 25
joint distinguished, 656 justifiable, whether, 85
several, 655 land, to. See TRESPASS TO LAND
contribution- limitation period, 626
amount of, 659-661 medical treatment, in context of, 28
limit, agreement for, 660 motive for, 26
persons claiming, 658 negligence, overlap with, 23-26
persons from whom claimed, 658, 659 negligent, 25, 26
statutory provisions, scope of, 657, person of another, defence of, 92
658 police behaviour as, 28
indemnity, 661 property, defence of-
joint- another, of, 94
defamation, in, 654 own, 92-94
examples of, 653, 654 relevance of, 29
several and others distinguished, 656 reported cases, paucity of, 27, 28
several- security of person and property, deliberate
concurrent, 655 violation of, 23
different damage, causing. 655, 656 self-defence, defence of, 91
joint distinguished, 656 unintentional, 24-5
Torts, law of writ of, 14, 23
certainty and justice, conflict between, 15 Trespass to goods
claimant’s interests, emphasis on, 4 ab initio, 70
compensation, providing for, 4 act of defendant, character of, 67
Convention rights, recognition of, 6 action for, 47
economic analysis, 16-17 actionable per se, whether, 67
effectiveness, limits of, 17 damages for, 69, 70
function of, 3 direct interference, remedy for, 47
fundamental human interests, protecting, 4 dispossession of plaintiff, need for,
Human Rights Act, effect of, 5 67
interests protected by- forms of, 66
competing, 8 indirect interference, 67
Convention rights, 11-12 interest of claimant, 68, 69
economic relations, business and interests protected by, 66
trading, 9 meaning, 66
Eurotorts, 11-12 question in law as to, 48
intellectual property, 9 state of mind of defendant, 67, 68
malicious abuse ofjudicial process, 10 wrongful interference, as, 69
negligent interference, 9-10 Trespass to land
personal and proprietary, 9-10 airspace, invasion of, 76
reputation, 10 claimant, interest of, 77-80
laissez-faire, judicial acceptance of, 17 continuing, 74
law of tort, or, 13 damages for, 80, 81
loss distribution, 15-16 defences, 82, 83
obligations imposed on members of society defendant, state of mind of, 77
to fellow members, as, 4 direct and indirect, 73, 74
Index 69\
Trespass to land—contd Vicarious _ liability—contd

exclusive possession, claimant having, 77, Crown, of, 575, 576, 637
78 indemnity, employer claiming, 661
highway, on, 76 loss distribution, 16
injunction against, 81, 82 misfeasance in public office, for, 548
interests protected by, 73 tort of employee, for-
justification of, 82, 83 commission by employee, 565
licence, defence of, 83 course of employment-
meaning, 73 act in, 565
non-possessory interest, damage to, 80 act unrelated to, 567
nuisance, overlap with, 391, 392 connection with work, 570-575
permission, withdrawal of, 75 detour by employee, 568
recovery of land, action for, 82 express prohibition of act, 569, 570
relation, by, 79 fraud, 574, 575
remedies, 80-82 general principles, 566, 567
subject matter of, 76, 77 mode of doing work, 566
title, assertion of, 74 overt criminal conduct, 571-574
type of acts, 73-76 time and space, authorised conduct
under surface of land, 76 within limits of, 567, 568
unlawful possession by claimant, effect of, travel to and from work, 567, 568
719 unauthorised mode of acting, 566
Trustee in bankruptcy generally, 267, 551
cause of action, assignment of, 653 Volenti non fit injuria
breach of statutory duty, defence to, 472
Unborn persons dangerous activities, participation in, 326
duty to, 216-218 defamation, defence to, 501
mother, duty of, 217 defence, as, 320-322
wrongful life, action for, 217, 226, 227 defendant’s negligent conduct, assumption
Unfair competition of risk of, 320
torts of, 115 denial of duty, as, 321
unlawful acts, 115, 116 driver of vehicle, defence not used in
Unfair contract terms action by passenger against, 328
business liability, in relation to, 329 drunken drivers or pilots, in case of, 324-
exclusion of liability, restricting, 329 326
statutory provisions, 329, 330 employees, in suits by against employers,
Unincorporated body 322-324
claimants, capacity as, 646 employment context, in, 322
liability of- illustrations of, 322-327
procedural, 645, 646 judicial approaches to, 320
substantive, 645 no duty approach, 321
Unjust enrichment occupiers’ liability, as to, 341, 342
choice of action in, 590-592 sporting events, at, 312
Unlawful interference with trade suicides in hospital or prison, duty to, 327
boundaries of, 163 summary of, 320
breach of contract, inducing. See INDUCING theoretical basis, debate on, 328
BREACH OF CONTRACT tortious act by defendant, presupposing,
conspiracy. See CONSPIRACY 322
criminal acts, 165, 166 voluntary act, assumption of risk by-
development of tort, 145 contributory negligence, relationship
economic torts as species of, 145 with, 328
ingredients of, 163, 164 economic pressures negativing, 327
interests protected, 164 employees, claims by, 327
intimidation. See INTIMIDATION rescuers, position of, 327
justification, 166, 167 Voluntary assumption of risk. See VOLENTI
liability, rules for, 145 NON FIT INJURIA
two-party cases, 166
unlawful means, 164-166 Waiver
liability in tort, extinguishing, 621, 622
Vicarious _ liability Witness
breach of statutory duty, for, 575 immunity, 546-548
chief officer of police, of, 556 Wrongful life
corporations, of, 642-644 claim for, 217, 226, 227
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Now in its eleventh ne Street on Torts has long been renowned for
its clear and wide-ranging coverage of the law of torts. It clearly explains
how torts actually work and the social purposes behind them. The book
covers the whole range of torts, including, particularly, negligence,
defamation, trespass, the economic torts, nuisance and the growing
area of breach of confidence/privacy.
&F-
John Murphy continues to build upon the work of the original author,
Harry Street, retaining the same basic structure, reflecting the range and
hierarchy of interests protected by tort law.
The new edition has been substantially reworked, especially in the areas
of the duty of care in negligence, causation, product liability, vicarious
liability, defamation, occupiers’ liability and the economic torts. This
rewriting and reorganisation within chapters has been necessitated by a
host of significant decisions since the last edition in 1999. The growing
significance of the Human Rights Act 1998 throughout the whole of tort
law — but especially in relation to the protection of privacy, defamation
and nuisance - is also fully covered in this eleventh edition. ©
Street on Torts is justifiably one of the most highly regarded Wore

available.
John Murphy is a senior lecturer at Manchester University. He has

written and taught widely on Torts, Family Law and Health Care Law,
both in this country and abroad. He is currently an editor of Clerk and
Lindsell on Torts. He is also the principal author of Ethnic Minorities,
their Families and the Law and a co-author of Health Care Law: Text and
Materials (with McHale and Fox).
IS BN 0-406-94682
9 "780406'94682 9

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John Murphy Ls, Lm

United Kingdom LexisNexis UK, a Division of Reed Elsevier (UK) Ltd,

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© Reed Elsevier (UK) Ltd 2003

ISBN 0 406 94682 5

Printed and bound in Great Britain by The Bath Press, Bath

Visit LexisNexis UK at www.lexisnexis.co.uk

The book is fully up to date on the basis of those materials available to me as of

The law of torts 3

Section 1. What is a tort? 3

(B) Wrongfulness in tortlaw 13

Intentional invasions of interests in person

Intentional torts today 23

Trespass to the person and related torts 31

Wrongful interference with goods 47

(D) Who may sue? 7

Defences to the intentional torts 85

Section 1. Mistake and inevitable accident 85

(B) Prerogative 105

Intentional interference with economic interests

Interference with economic interests 113

Section 1. Rights and economic interests 113

False representations I19

(2) Damages 137

Interference with contract or trade 145

Sectionl. Conspiracy 146

Intellectual property interests 169

Negligent invasions of interests in person and

Duty of care I: foundational principles 177

Duty of care Il: recognised harm 215

(B) A duty to rescuers? 218

Breach of duty 247

Section 1. Causation infact 282

Defences to negligence 307

Liability for defective premises and ;

Invasions of interests in person and property

Product liability 367

(11) Proving causation 377

Section 1. Nuisance as a separate tort 387

(D) Other defences +420

Rylands v Fletcher 431

Section]. Negligence and strict liability 451

Breach of statutory duty 457

Interests in reputation — defamation

Defamation: foundational principles 477