sourcebook on tort

SOURCEBOOK ONTORTS

Second Edition

CavendishPublishing

Limited

London Sydney

SOURCEBOOK ONTORTS

Second Edition

Graham Stephenson, LLM, SolicitorPrincipal Lecturer in Law

University of Central Lancashire

CavendishPublishing

Limited

London Sydney

Second edition first published in Great Britain 2000 by CavendishPublishing Limited, The Glass House, Wharton Street, London WC1X 9PX,United Kingdom

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Stephenson, Graham 2000

First edition 1996

Second edition 2000

All rights reserved. No part of this publication may be reproduced, stored in aretrieval system, or transmitted, in any form or by any means, electronic,mechanical, photocopying, recording, scanning or otherwise, except under theterms of the Copyright Designs and Patents Act 1988 or under the terms of alicence issued by the Copyright Licensing Agency, 90 Tottenham Court Road,London W1P 9HE, UK, without the permission in writing of the publisher.

Stephenson, Graham, 1947

Sourcebook on tort law2nd ed

1 TortsEngland 2 TortsWales

I Title

346.4'2'03

ISBN 1 85941 587 3 Printed and bound in Great Britain

vPREFACE

I recall that when I was putting together the manuscript for the first edition Iwas running some 60 miles a week in preparation for the London Marathonof that year (1996). I completed the book but did not get much beyond the 14mile mark in the race as a result of feeling unwell (it was particularly hot!).This year, I again was involved with the book and had also been accepted forthe marathon. This time I am happy to say that I completed both without toomuch difficulty.

The invitation from the publishers (to whom I am grateful) to do a secondedition seems to have come round very quickly. There has been much to add,including several important House of Lords decisions, some statutorymaterial and references to Law Commission Reports in relation to PsychiatricIllness and Damages. The more than welcome decision of the House of Lordsin Arthur Hall and Co (a Firm) v Simons; Barratt v Woolf Seddon (a Firm); Harris vSchofield Roberts and Hill (a Firm) ((2000) The Times, 21 July) came too late forfull consideration in this edition. In a highly significant ruling, the wholeHouse decided that the advocates immunity from suit for negligence shouldbe removed for acts during the conduct of civil proceedings and, by a majority(4:3), held that it should no longer survive in relation to acts performed incriminal litigation.

As far as I can ascertain, the materials are up to date as at 1 July 2000.

Graham StephensonPreston

July 2000

vii

ACKNOWLEDGMENTS

Grateful acknowledgment is made to the Controller of Her MajestysStationary Office for permission to reproduce Crown Copyright materials; tothe Incorporated Council of Law Reporting for England and Wales forpermission to reproduce extracts from the Law Reports and the Weekly LawReports; to Butterworths for permission to reproduce extracts from the AllEngland Law Reports; and to Sweet & Maxwell for permission to reproduceextracts from the Criminal Appeal Reports.

i x

CONTENTS

Preface vTable of Cases xvTable of Statutes xxxv

1 INTRODUCTION 1TORT AND OTHER TYPES OF LIABILITY 2FUNCTIONS OF TORT LAW 5

Appeasement and vindication of rights 6Justice 6Deterrence 7Public forum function 8Compensation function 9

HUMAN RIGHTS 11CONCLUSION 11

2 DUTY OF CARE 13INTRODUCTION 13THE ELEMENTS OF NEGLIGENCE 13

DUTY OF CARE 15Pre-1932 16Post-Donoghue 23Post-Anns 25Post-Caparo 31

HUMAN RIGHTS 32SPECIFIC AREAS OF DIFFICULTY 39

Omissions 40IMMUNITY BASED ON THE DEFENDANTS STATUS. 53

Police 53Other emergency services. 58Public authorities 67

3 BREACH OF DUTY 91INTRODUCTION 91STANDARD OF CARE 92FACTORS TAKEN INTO ACCOUNT 96

Magnitude of the risk 97Seriousness of the harm 103Cost and practicality of precautions 104

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Social utility of the defendants activity 106Special standards 107Professional persons 107Common practice 114Children 125Sporting competition 128Proof of breach 132

4 CAUSATION AND REMOTENESS OF DAMAGE 137INTRODUCTION 137CAUSATION IN FACT 137

The extent of the harm 143Successive causes 146Multiple causes 155Proof of causation 155Lost chance 164

REMOTENESS OF DAMAGE 166Type of harm 169Manner of occurrence 170Extent of the harm 173Egg-shell skull rule 174Claimants economic state 175Intervening events 176Intervening natural events 177Intervening negligent acts by third parties 177Deliberate intervention by third parties 180Act of the claimant 187

5 LIABILITY FOR PSYCHIATRIC INJURY 191INTRODUCTION 191PRIMARY VICTIMS 192SECONDARY VICTIMS 196

6 LIABILITY FOR ECONOMIC LOSS 259PURE ECONOMIC LOSS 260GENERAL RULE AGAINST RECOVERY 278

The notable exception 280RELIANCE 305OTHER EXCEPTIONAL CASES 309CONCLUSION 328

Contents

x i

7 OCCUPIERS LIABILITY 329INTRODUCTION 329LIABILITY TO LAWFUL VISITORS 330

Who is an occupier? 331Who is a lawful visitor? 336

THE COMMON DUTY OF CARE 338Variations in the standard of care 341Warning notices 348Liability for independent contractors 349Limitations on the extent of the duty 354Restriction or exclusion of liability 357Liability to trespassers 358

8 PRODUCT LIABILITY 363INTRODUCTION 364COMMON LAW 364

Who owes the duty? 364To whom is the duty owed? 367

STANDARD OF CARE 368CAUSATION/REMOTENESS 372STRICT LIABILITY 373COMMENTARY 386

Products covered 386Producer 387Actionable damage 387Defect 388Defences 388

9 STRICT LIABILITY 393INTRODUCTION 393LIABILITY FOR ESCAPES OF THINGS 393

Non-natural use 396Escape 398Status of the claimant 399Defences 401Remoteness of damage 402

LIABILITY FOR FIRE 405Fire under Rylands v Fletcher 406Negligence 409Nuisance 411

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LIABILITY FOR ANIMALS 413Common law 413Animals Act 1971 414

COMMENTARY 419Defences 425

10 NUISANCE 429INTRODUCTION 429DISTINCTION BETWEEN PUBLIC AND PRIVATE NUISANCE 430PRIVATE NUISANCE 437

Interests protected 437Conduct covered 441Activity or conduct must be unreasonable 441Negligence a factor? 441Continuing or isolated escape? 448Substantial harm 449Locality 450Social utility 451Claimants hypersensitivity 452Duration, frequency and intensity 453Motive 453Who can be sued? 454Remoteness of damage 456Types of damage recoverable 459Defences 459

REMEDIES FOR NUISANCE 462

11 TRESPASS TO THE PERSON 469INTRODUCTION 469DIRECT HARM 470

Nature of liability in trespass to the person 472Hostility 477Assault and battery 481Intentionally caused harm outside trespass 486

DEFENCES TO ASSAULT AND BATTERY 487Self-defence 488Provocation 488Contributory negligence 489Ex turpi causa and volenti 490Consent 492

FALSE IMPRISONMENT 494

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12 DEFAMATION 501INTRODUCTION 501WHO CAN SUE? 502THE MEANING OF DEFAMATORY 503DEFAMATORY OF THE CLAIMANT 507PUBLICATION 509

Difference between libel and slander 510DEFENCES 512

Responsibility for publication 512Offer to make amends 513Justification 516Absolute privilege 516Qualified privilege at common law 518Statutory qualified privilege 536Fair comment 541

MALICE 542DAMAGES 543

13 DEFENCES 549INTRODUCTION 549VOLENTI NON FIT INJURIA 549CONTRIBUTORY NEGLIGENCE 557

14 VICARIOUS LIABILITY 565INTRODUCTION 565TEST FOR DECIDING WHO IS AN EMPLOYEE 566COURSE OF EMPLOYMENT 572

Time 572Place 573What was the employee employed to do? 574Benefit of employer 575Express prohibitions by employer 577

LENDING OF VEHICLES 579

15 ASSESSMENT OF DAMAGES 581INTRODUCTION 581GENERAL AND SPECIAL DAMAGES 582AGGRAVATED AND EXEMPLARY DAMAGES 583LUMP SUM 589

Pecuniary and non-pecuniary losses 592

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Medical expenses 593Loss of earnings 595

THE LOST YEARS 610DEDUCTIONS FROM DAMAGES 612

Comment 616Collateral benefits 617Loss of earning capacity 618Pain and suffering 619Loss of amenity 620

DAMAGES ON DEATH 621CONCLUSION 627

Index 629

xv

TABLE OF CASES

AAB v South West Water Services Ltd [1993] QB 507 462, 586Adams v Ursell [1913] 1 Ch269 450Adams v Ward [1917] AC 309; [191617] All ER Rep 157 518, 524Addie v Dumbreck [1929] AC 358 358Admiralty Comrs v SS Volute [1921] All ER Rep 197;

[1922] 1 AC 136 129Al Saudi Banque v Clark Pixley (a Firm)

[1989] 3 All ER 36; [1990] 2 WLR 344 296Albery-Speyer and Budden v BP Oil Ltd (1980) 124 SJ 376 372Alcock v Chief Constable of the South Yorkshire Police

[1991] 4 All ER 907; [1992] 1 AC 310 211, 22528, 231,23342, 24449

Alexander v North Eastern Rly Co (1865) 6 B & S 340 516Alexandrou v Oxford [1993] 4 All ER 328 56, 57Aliakmon, The; see Leigh and Sullivan Ltd

v Aliakmon Shipping Co LtdAllbut v General Council of Medical Education and

Registration (1889) 23 QBD 400 525, 526Allen v Gulf Oil Refining Ltd [1980] QB 156;

[1979] 3 All ER 1008 460, 461Ancell v McDermott [1993] 4 All ER 355 56Anns v Merton London Borough Council [1978] AC 728;

[1977] 2 All ER 492 14, 24, 25, 2730, 50, 52,54, 59, 67, 70, 71, 77,8082, 88, 234, 266,

27078, 328Arneil v Schnitzer (1944) 173 ORE 179 46Arthur Hall and Co (a Firm) v Simons; Barratt

v Woolf Seddon (a Firm); Harris v Schofield Robertsand Hill (a Firm) ((2000) The Times, 21 July v, 53

Ashdown v Samuel Williams [1957] 1 QB409 357Associated Provincial Picture Houses Ltd

v Wednesbury Corpn [1948] KB 223; [1947] 2 All ER 680 81Attia v British Gas [1987] 3 All ER 455 225, 226Attorney General v Guardian Newspapers Ltd (No 2)

[1988] 3 All ER 545; [1990] 1 AC 109 503Atwell v Michael Perry & Co [1998] 4 All ER 65 53Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623 68

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B

Baker v Willoughby [1970] AC 467 146, 15055Balfour v Barty-King [1957] 1 QB 496 409Barnes v Nayer (1986) The Times, 19 December 489, 491Barnett v Chelsea and Kensington Hospital Management

Committee [1969] 1 QB428 138Barrett v Enfield London Borough Council

[1999] 3 All ER193 15, 87Barton v Armstrong [1969] 2 NSWLR451 484Beach v Freeson [1972] 1 QB 14 519Beard v London General Omnibus Co [1900] QB 530 577, 578Behrens v Bertram Mills Circus Ltd [1957] 1 All ER 583 419, 425Benning v Wong [1969] 122CLR249 400Benson v Lee [1972] VR 879 201, 202Bird v Jones (1845) 7 QB 742 494Birkett v Hayes [1982] 2 All ER 71; [1982] 1 WLR 816 607Blacker v Lake and Elliott Ltd (1912) 106 LT 533 18, 19Blackshaw v Lord [1984] QB 1; [1983] 2 All ER 311 526, 540Blake v Barnard (1840) 9 Car & P 626 483Blyth v Birmingham Waterworks Co (1856) 11 Exch 781 92Boardman v Sanderson [1964] 1 WLR 1317 201, 202Bolam v Friern Hospital Management Committee

[1957] 2 All ER 118 65, 10810, 115, 117, 11924Bolitho v City and Hackney Health Authority

[1997] 4 All ER 771 117Bolton v Stone [1951] 1 All ER 1078; [1951] AC 950 97, 99, 101, 453Bone v Seale [1975] 1 All ER 787 438Bonnington Castings Ltd v Wardlaw [1956] AC 613;

[1956] 1 All ER 615 139, 141, 142, 156, 159Bourhill v Young [1943] AC 92; [1942] All ER 396;

[1941] SC 395 92, 93, 168, 197, 200, 210,211, 214, 215, 233, 240

Bowater v Rowley Regis Corpn [1944] 1 KB 476 551Braddock v Bevins [1948] 1 All ER 450; [1948] 1 KB 580 526, 527Bradford v Robinson Rentals [1967] 1 All ER 267 169, 170Brice v Brown [1984] 1 All ER 997 225British Celanese Ltd v AH Hunt (Capacitors) Ltd

[1969] 1 WLR 959 397, 448, 453

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British Railways Board v Herrington[1972] 1 All ER 749; [1972] AC 877 43, 359

Brown v Rolls Royce Ltd [1960] 1 All ER 577 114Burnie Port Authority v General Jones Pty Ltd

[1994] 64 AJLR 331 405Byrne v Deane [1937] 1 KB 818 505, 509Byrne v Statist Co [1914] 1 KB 622 569

C

Cambridge Water Co Ltd v Eastern Counties Leather plc[1994] 1 All ER 53 397, 399, 402, 457, 459

Campbell v Spottiswoode 3 B & S 769; 122 ER 288 522Candler v Crane Christmas & Co [1951] 2 KB 164;

[1951] 1 All ER 426 281, 285, 287, 288, 290,301, 306, 311

Candlewood Navigation Corpn Ltd v Mitsui OSKLines Ltd, The Mineral Transporter, The Ibaraki Maru[1985] 2 All ER 935; [1986] AC 1 266, 268

Canterbury v Spence (1972) 464 F 2d 772 123Caparo Industries plc v Dickman [1990] 1 All ER 568;

[1990] 2 AC 605 2931, 51, 61, 63, 8385, 89,221, 230, 29597, 304,

305, 309, 321Capital Counties plc v Hampshire County Council and

Others [1997] 2 All ER 865 58, 6165Cappsv Miller [1989] 2 All ER 333 561Carrick Furniture House Ltd v Paterson 1978 SLT (Notes) 48 45Carslogie SS Co Ltd v Royal Norwegian Government

[1952] AC 292 177Cassell & Co Ltd v Broome [1972] 1 All ER 801 585Cassidy v Daily Mirror Newspapers Ltd

[1929] All ER Rep 117 504Cassidy v Ministry of Health [1957] 1 All ER 574 567Cattle v Stockton Waterworks Co Ltd (1875) LR10 QB 453;

[198780] All ER Rep 220 50, 279Cavalier v Pope [1906] AC 428 332Century Insurance Co Ltd v Northern Ireland Transport

Board [1942] 1 All ER 491 575Chadwick v British Railways Board [1967] 2 All ER 945;

[1967] 1 WLR 912 201, 210, 237, 246, 247

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Chadwick v British Transport Commission, seeChadwick v British Railways Board

Chatterton v Gerson [1981] QB 432; [1981] 1 All ER 257 119, 492Chatterton v Secretary of State for India

[189599] All ER Rep 1035 517Chaudry v Prabhakar [1988] 3 All ER 718 309Christie v Davey [1893] 1 Ch 316 453Clark v Molyneux (1877) 3 QBD 237 543Cockcroft v Smith (1705) 11 Mod 43 488Cole v Turner (1704) 6 Mod Rep 149; [1704] 90 ER 958 478, 481Collins v Hertfordshire County Council [1947] KB 598 566Collins v Wilcock [1984] 3 All ER 374 477, 480, 481, 494Compania Financiera Soleado SA v Hamoor Tanker

Corpn lnc [1981] 1 WLR 274 181Condon v Basi [1985] 2 All ER 453 132, 492Cook v Lewis [1952] 1 DLR 1 155Cookson v Knowles [19768] 2 All ER 604; [1979] AC 556 60709Costello v Chief Constable of Northumbria Police

[1999] 1 All ER 550 58Coward v Baddeley (1859) 4 H & N 478; [1859] 157 ER 927 479Cox v Feeney (1863) 4 F & F13; 176 BR 445 525, 526, 528Cummings v Granger [1977] QB 397; [1977] 1 All ER 104 42022, 425Curran v Northern Ireland Co-ownership Housing

Association Ltd (Stewart third party) [1987] AC 718;[1987] 2 WLR 1043; [1987] 2 All ER 13 27, 30

Curtis v Betts [1990] 1 All ER 769 420Cutler v United Dairies (London) Ltd [1933] 2 KB 297 555, 556Cutler v Vauxhall Motors Ltd [1970] 2 All ER 56 144

D

D and F Estates v Church Commissioners for England[1988] 2 All ER 992; [1989] AC 177 271, 27577

Daborn v Bath Tramways Motor Co [1946] 2 All ER 333 106Daniels v White [1938] 4 All ER 258 363, 370Dann v Hamilton [1939] 1 KB 509 552Davidson v Chief Constable of North Wales

[1994] 2 All ER 597 498Davies v Snead (1870) LR 5 QB 608 523Davis Contractors Ltd

v Fareham Urban District Council [1965] AC 696 26

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De Haes v Belgium (1997) 25 EHRR 1 534Derbyshire County Council v Times Newspapers Ltd

[1993] 1 All ER 1011; [1993] AC 534 502, 527Derry v Peek (1889) 14 App Cas 337 281, 285, 287, 289, 547Dillon v Legg (1968) 29 ALR 3d 1316 201, 209, 210Dodd Properties (Kent) Ltd v Canterbury City Council

[1980] 1 WLR 433 176Dodwell v Burford (1670) 1 Mod 24 471Dominion Natural Gas Co Ltd v Collins and Perkins

[1909] AC 640 18Donoghue v Stevenson [1932] AC 562;

[1932] All ER Rep 1; see, also, McAlister v Stevenson 14, 16, 17, 23, 24,26, 27, 29, 32, 41, 52, 73, 74,203, 210, 27173, 275, 277,

278, 288, 290, 292, 313,328, 350, 363, 364, 368

Dooley v Cammell Laird & Co Ltd[1951] 1 Lloyds Rep 271 245

Dorset Yacht Co v Home Office [1970] AC 1004;[1970] 2 All ER 294; see, also, Home Office v Dorset Yacht Co 2426

Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518 171Draper v Hodder [1972] 2 QB 560 413Dulieu v White & Sons [1901] 2 KB 669;

[190003] All ER Rep 353 192, 201, 233Dutton v Bognor Regis Urban District Council

[1972] 1 QB 373; [1972] 1 All ER 462 68, 273, 274, 277

E

E (A minor) v Dorset County Council [1995] 3 All ER 353 72, 86East Rivers Catchment Board v Kent [1941] AC 74;

[1940] 4 All ER 527 59Electrical, Electronic, Telecommunication and Plumbing

Union v Times Newspapers Ltd [1980] QB 585 502Emanuel (H and N) Ltd v Greater London Council

[1971] 2 All ER 835 409Esso Petroleum Co Ltd v Mardon [1976] 2 All ER 5 293, 294European Commission v United Kingdom

[1997] All ER (EC) 481 389Evans v Glasgow District Council 1978 SLT17 49Evans v Triplex Safety Glass Co Ltd [1936] 1 All ER 283 368, 373

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F

F v West Berkshire Health Authority [1989] 2 All ER 545 481Fagan v Commissioner of Metropolitan Police

[1969] 1 QB 439 482Fairman v Perpetual Investment Building Society

[1923] AC 74 334Fajagopal (R) (alias R Gopal) v State of Tamil Nadu

(1994) 6 SCC 632 528Fayed v Al-Tajir [1987] 2 All ER 396 518Ferguson v John Dawson & Partners [1976] 3 All ER 817 570Fergusonv Welsh [1987] 3 All ER 777 352Filliter v Phippard (1847) 11 QB 347 406, 407, 412Fisher v Harrods [1966] 1 Lloyds Rep 500 365, 370Fitzgerald v Lane [1987] 2 All ER 455 162Fowler v Lanning [1959] 1 QB 426 473, 475, 480Francis v Cockerell (1870) LR 5 QB 501 19Fressoz v France (Case No 29183/95) (1999) unreported 534Froom v Butcher [1975] 3 All ER 520 560Frost v Chief Constable of South Yorkshire Police

[1997] 1 All ER 540; [1997] 3 WLR 1194 229

G

Galt v British Railways Board (1983) 133 NLJ 870 245Gartside v Sheffield Young and Ellis [1983] NZLR 37 316George v Skivington (1869) LR 5 Ex 1 18, 19Gillingham Borough Council v Medway (Chatham) Dock

Co Ltd [1992] 3 All ER 923 460Glasgow Corpn v Muir [1943] 2 All ER 44; [1943] AC 448 92, 94Glasgow Corpn v Taylor [1922] AC 44 342Golder v UK judgment of 21 February

1975, Series A no 18, p 18, para 36 34Goldman v Hargrave [1966] 2 All ER 989; [1967] AC 645 42, 44, 45, 49, 412,

441, 44547, 458Gough v Thorne [1966] 3 All ER398 563Governors of the Peabody Donation Fund v Sir Lindsay

Parkinson & Co Ltd [1985] AC 210; [1984] 3 All ER 529 25, 26, 29, 70Graham, Thomas & Co Ltd v Church of Scotland General

Trustees 1982 SLT (Sh Ct) 26 45Grant v Australian Knitting Mills Ltd [1936] AC 85 368, 370, 372

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Greater Nottingham Co-operative Society Ltd v CementationPiling and Foundations Ltd [1988] 2 All ER 971 312

Greenock Corpn v Caledonian Rly Co [1917] AC 556 401

H

Hague v Deputy Governor of Parkhurst Prison[1991] 3 All ER 733 497

Haley v London Electricity Board [1964] 3 All ER 185 102Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145 430Hambrook v Stokes [1925] 1 KB 141;

[1924] All ER Rep 110 196, 201, 214, 215, 233Hargrave v Goldman (1963) 110 CLR 40 74Harris v Wyre Forest District Council [1989] 2 All ER 514 307Harrison v BRB [1981] 3 All ER 679 557Harrison v Vincent [1982] RTR 8, CA 131Haseldine v Daw [1941] 2 KB 343 349, 367Haynes v Harwood [1935] 1 KB 146; [1934] All ER Rep 103 43, 49, 210, 556, 557Heaven v Pender (1883) 11 QBD 503; [1881] All ER Rep 35 16, 19, 21, 221Hedley Byrne & Co Ltd v Heller & Partners Ltd

[1964] AC 465; [1963] 2 All ER 575 24, 259, 274, 284, 29294,296, 300, 301, 305, 309,

313, 314, 31720, 328Heil v Rankin and Others (2000) The Times, 24 March 621Henderson v Henry E Jenkins & Sons Ltd

[1969] 3 All ER 756; [1970] AC 282 95Henderson v Jenkins [1969] 3 All ER 756 134Henderson v Merrett Syndicates Ltd [1994] 3 All ER 506;

[1994] 3 WLR 761 83, 320, 322, 327Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 496Herring v Boyle (1834) 1 CR M & R 377; [1834] 149 ER 1126 499, 500Hevican v Ruane [1991] 3 All ER 65 213, 214, 223, 225Hicks v Chief Constable of South Yorkshire

1992] 2 All ER 65 241, 439, 622Hilder v Associated Portland Cement Manufacturers Ltd

[1961] 3 All ER 709 101, 103Hill v Chief Constable of West Yorkshire

[1996] 3 WLR 988; [1988] 2 All ER 238; [1989] AC 53 2831, 3437, 53,56, 57, 6366,

83, 84, 86Hill v Church of Scientology (1995) 126 DLR (4th) 129 528

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Hill v Crowe [1978] 1 All ER 812 370Hinz v Berry [1970] 2 QB 40; [1970] 1 All ER 1074 201, 202, 223, 230Hodgson v Trapp [1988] 3 All ER 870; [1989] AC 807 596, 600, 612Holden v White [1982] 2 All ER 328 337Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 454Holmes v Mather (1875) LR 10 Ex 261 472Home Office v Dorset Yacht Co Ltd [1970] AC 1004;

[1970] 2 All ER 294; see also Dorset Yacht Co v Home Office 23, 29, 41, 43,53, 54, 56, 74, 8082,

181, 184, 321Honeywill and Stein Ltd v Larkin Bros [1934] 1 KB 191 410Horrocks v Lowe [1974] 1 All ER 662; [1975] AC 135 523, 524, 531, 542Hotson v East Berkshire Area Health Authority

[1987] 2 All ER 909 164Howitt v Heads [1972] 1 All ER 491 626Hudson v Ridge Manufacturing Co Ltd [1957] 2 All ER 229 578Hughes v Lord Advocate [1963] AC 837 17073Hulton & Co v Jones [1910] AC 21 504, 507Hunt v Severs [1994] 2 All ER 385 594, 595Hunt v Wallis (1991) The Times, 10 May 424Hunter v Canary Wharf Ltd [1997] 2 All ER 426 436, 437, 441, 459, 484Hunter v Hartley 1955 SC 200 112Hussain v New Taplow Paper Mills Ltd [1988] 1 All ER 541 617, 618Huth v Huth [1915] 2 KB 32 509

I

ICI v Shatwell [1964] 2 All ER 999 552, 565Innes v Wylie (1844) 1 Car & Kir 257 481Invercargill City Council v Hamlin [1996] 1 All ER 756 278

J

Jaensch v Coffey (1984) 54 ALR 417 212, 214, 224James v Woodall Duckham Construction Co Ltd

[1969] 2 All ER 794; [1969] 1 WLR 903 232Janvier v Sweeney [1919] 2 KB 316 439, 487Jobling v Associated Dairies Ltd [1982] AC 794 149John v Mirror Group Newspapers Ltd (1995) 146 NLJ 13;

[1996] 2 All ER 35 545Jolley v Sutton LBC [2000] 3 All ER 409 169

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Jones v Boyce (1816) 1 Stark 493 563Jones v Department of Employment [1988] 2 WLR 572 86Jones v Livox Quarries Ltd [1952] 2 QB 608 557, 563Joyce v Sengupta [1993] 1 All ER 897 501Junior Books Ltd v Veitchi Co Ltd [1982] 3 All ER 201;

[1983] 1 AC 520 50, 266, 311, 312

K

Kay v Ayrshire and Arran Health Board[1987] 2 All ER 417 161

Kelley v Corston [1997] 4 All ER 466 53Kemsley v Foot [1952] AC 345 541Kennaway v Thompson [1980] 3 All ER 329 46567Kent v East Suffolk Rivers Catchment Board

[1940] 1 KB 319; [1939] 4 All ER 174 64, 68, 73Kent v Griffiths and Others (No 2)

(2000) The Times, 10 February 67Khorasandjian v Bush [1993] 3 All ER 669 43537, 439, 484King v Liverpool City Council

[1986] 3 All ER 544; [1986] 1 WLR 890 49King v Phillips [1953] 1 QB 429; [1953] 1 All ER 617 168, 201, 240Knightley v Johns [1982] 1 All ER 851 178

L

Lamb v Camden London Borough[1981] QB 625; [1981] 2 All ER 408 49, 181, 185

Lambert v Lewis [1982] AC 225 367Lane v Holloway [1967] 3 All ER 129 48890Lange v Atkinson [1998] 3 NZLR 424 529, 530, 532Lange v Australian Broadcasting Corp

(1997) 145 ALR 96 529Langridge v Levy (1837) 2 M & W 519;

(1838) 4 M & W 337 17, 19Latimer v AEC Ltd [1953] 2 All ER 449 105Leach v Chief Constable of Gloucestershire

[1999] 1 All ER 215 58Leakey v National Trust [1980] 1 All ER 17 444Leigh and Sullivan Ltd v Aliakmon Shipping Co Ltd,

The Aliakmon [1986] AC 785; [1986] 2 All ER 145 26, 29, 50, 264

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Letang v Cooper [1965] 1 QB 232 475, 480Lewis v Daily Telegraph Ltd [1963] 2 All ER 151 505Liesbosch Dredger, The [1933] AC 449 175Lievre, Le v Gould [1893] 1 QB 491 17Lim Poh Choo v Camden and Islington Area Health

Authority [1979] 2 All ER 910; [1980] AC 174 589, 596, 608Lingens v Austria (1986) 8 EHRR 407 533Lister v Romford Ice and Cold Storage Co Ltd

[1957] 1 All ER 125; [1957] AC 555 66Lloyd v Grace Smith & Co [1912] AC 716 575London Artists v Littler [1969] 2 QB 375;

[1969] 2 All ER 193 522, 541London Association for Protection of Trade v Greenlands

Ltd [1916] 2 AC 15; [191617] All ER Rep 452 524, 525London Fire Brigade Case 60, 6264, 66Longmeid v Holliday (1851) 6 Ex 761 17, 18Lonrho plc v Tebbit [1992] 4 All ER 280 81Lord v Pacific Steam Navigation Co Ltd, The Oropesa

[1943] 1 All ER 211; [1943] P 32 177, 178, 247Luxmoore-May v Messenger May Baverstock

[1990] 1 All ER 1067 111

M

M (a Minor) v Newham London Borough Council and Other[1995] 3 All ER 353 72, 80

McAlister v Stevenson [1932] AC 562; [1932] All ERRep 1; see, also, Donoghue v Stevenson 29

McCamley v Cammell Laird Shipbuilders Ltd[1990] 1 All ER 854 617

McFarlane v EE Caledonia Ltd, The Piper Alpha[1994] 2 All ER 1, CA 226, 228, 229

McGeown v Northern Ireland Housing Executive[1994] 3 All ER 53 336

McGhee v National Coal Board [1972] 3 All ER 1008;[1973] 1 WLR 1 155, 156, 16064, 166

McHale v Watson [1966] 115 CLR 199 126McKew v Holland and Hannen and Cubitts (Scotland)

Ltd [1969] 3 All ER 1621 187MKibbin v City of Glasgow Corpn 1920 SC 590 102

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McLoughlin v OBrian [1982] 2 All ER 298;[1983] 1 AC 410; [1982] 2 WLR 982 27, 193, 200, 212, 213,

21517, 21921, 223,224, 233, 234, 237,239, 240, 245, 247

McNaughton, James Paper Group Ltd v Hicks Anderson& Co (a Firm) [1991] 1 All ER 134 303

Macpherson v Buick Motor Co 217 NY 382 21MPherson v Daniels (1829) 10 B & C 263; 109 ER 448 522McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295 140Mafo v Adams [1969] 3 All ER 1410 586Mallett v McGonagle [1969] 2 All ER 178; [1970] AC 166 165, 608, 625Malone v Laskey [1907] 2 KB 141 434, 436Mansfield v Weetabix [1998] 1 WLR 1263 95Marc Rich & Co v Bishop Rock Marine Co Ltd,

The Nicholas H [1996] AC 211; [1995] 3 All ER 307 60, 65, 320, 328Margarine Union GmbH v Cambay Prince SS Co Ltd,

The Wear Breeze [1967] 3 All ER 775; [1969] 1 QB 219 266Marlor v Ball (1900) 16 TLR 239 425Marshall v Lionel Enterprises Inc [1972] 2 OR 177 201Marshall v Osmond [1982] 3 WLR 120, CA 96Mason v Levy Auto Parts of England Ltd 407Matania v National Provincial Bank Ltd [1936] 2 All ER 633 455Matthews v Wicks (1987) The Times, 25 August 426Maynard v West Midlands Regional Health Authority

[1985] 1 All ER 635; [1984] 1 WLR 634 108, 112, 115, 117Meades and Belts, see R v Meade and BeltMeah v McCreamer (No 2) [1986] 1 All ER 943 186Meering v Graham-White Aviation Co Ltd (1919) 122 LT 44 499Merchant Prince, The [1892] P 179; [189194] All ER Rep 396 95Mersey Docks and Harbour Board v Coggins and Griffith

(Liverpool) Ltd [1947] AC 1 571Miller v Jackson [1977] 3 All ER 338 101, 451, 453, 46466Ministry of Housing and Local Government

v Sharp [1970] 1 All ER 1009 309Moloney v Lambeth London Borough Council

(1966) 64 LGR 440 341Monson v Tussauds [189194] All ER Rep 1051 510Morgan Cruicble Co plc v Hill Samuel Bank Ltd

[1991] 1 All ER 148 304, 305, 507

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Morgans v Launchberry [1972] 2 All ER 606 579Morris v CW Martin & Sons Ltd [1965] 2 All ER 725 576Morris v Murray [1990] 3 All ER 801 554Morton v Wheeler (1956) unreported 457Motherwell v Motherwell (1976) 73 DLR (3d) 62 436Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 245, 246Muirhead v Industrial Tank Specialities Ltd

[1985] 3 All ER 703 312Mulcahy v Ministry of Defence [1996] 2 All ER 758 66Mullins v Richards [1998] 1 All ER 920 127Murphy v Brentwood [1990] 2 All ER 908; [1991] 1 AC 398 29, 31, 67, 230, 274Murphy v Culhane [1976] 3 All ER 533 489, 491Murray v Ministry of Defence [1988] 2 All ER 521 498Musgrove v Pandelis [1919] 2 KB 43 406, 407, 412Mutual Life and Citizens Assurance Co Ltd

v Evatt [1971] 1 All ER 150 292, 294

N

National Media Ltd v Bogoshi 1998 (4) SA 1196 529Nelson Holdings Case 63Nettleship v Weston [1971] 3 All ER 581 93, 95, 110, 553New York Times Co v Sullivan 376 US 254 (1964) 528Newstead v London Express Newspaper Ltd

[1939] 4 All ER 319 508Ng Chun Pui v Lee Cheun Tat [1988] RTR 298 135Nicholson v Atlas Steel Foundry & Engineering Co Ltd

[1957] 1 All ER 776; [1957] 1 WLR 613 159Norton v Lord Ashburton [1914] AC 972 289

O

OLL Ltd v Secretary of State for Transport[1997] 3 All ER 897 66

OConnell v Jackson [1971] 3 All ER 129 560OReilly v Mackman [1982] 3 All ER 1124; [1983] 2 AC 237 81Ogwo v Taylor [1987] 3 All ER 961; [1988] AC 431 249Ormrod v Crosville Motor Services Ltd [1953] 2 All ER 753 579Osman v Ferguson [1993] 4 All ER 344 56, 57Osman v UK [1999] 1 FLR193 15, 32, 34, 39Owens v Brimmell [1976] 3 All ER 765 561

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xxvii

P

Pacific Associates Inc v Baxter [1990] 1 QB 993;[1989] 2 All ER 159 324

Page v Sheerness Steel Co Ltd [1997] 1 All ER 673;[1997] 1 WLR 652; [1996] PIQR Q26 599

Page v Smith [1995] 2 All ER 716; [1996] AC 155 193, 230, 232, 235, 237, 238, 240, 243,

248, 251Paris v Stepney Borough Council [1951] 1 All ER 42;

[1949] 2 All ER 843, CA 103, 104Pearson v Coleman Brothers [1948] 2 KB 359 355Perera v Peiris [1949] AC 1 525, 526Performance Cars Ltd v Abraham [1962] 2 QB 33 143, 148Perl (P) (Exporters) Ltd v Camden London BC

[1984] QB 342; [1983] 3 All ER 161 43, 50, 52, 180Perrett v Collins and Others

(1998) The Times, 23 June, CA 60Perry v Kendricks Transport Ltd [1956] 1 WLR 85 399401Phelps v Hillingdon London Borough Council

[1999] 1 All ER 421 89Philcox v Civil Aviation Authority (1995) The Times, 8 June 60Philips v Whiteley [1938] 1 All ER 566 112Phipps v Rochester Corpn [1955] 1 QB 450 344Pickett v British Rail Engineering Ltd [1979] 1 All ER 774 611Pigney v Pointers Transport Services Ltd

[1957] 1 WLR 1121 188Pitts v Hunt [1990] 3 All ER 344 554Poland v Parr and Sons [1927] 1 KB 236 574Polemis and Furness Withy & Co, Re [1921] 3 KB 560 166, 167Preist v Last [1903] 2 KB 148 363Prince v Chehalis Savings and Loan Association

(1936) 186 Wash 372 46Purcell v Sowler (1877) 2 CPD 215 525

R

R v Billinghurst [1978] Crim LR 553 492R v Bird [1985] 1 All ER 513 488R v Bournewood Community and Mental Health

NHS Trust ex p L [1998] 3 All ER 289 497

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R v Brown [1993] 2 All ER 75 481, 493R v Governor of Brockhill Prison ex p Evans (No 2)

[1998] 4 All ER 993 497R v Meade and Belt (1823) 1 Lew CC 184 483R v St George (1840) 9 Car & P 483 483R v Wilson [1955] 1 WLR 493 483Rainham Chemical Works Ltd v Belvedere Fish Guano

Co Ltd [1921] AC 465 396Rantzen v Mirror Group Newspapers (1986) Ltd

[1993] 4 All ER 925 544, 546Rapier v London Tramway Co [1893] 2 Ch 588 411Ravenscroft v Rederiaktiebolaget Transatlantic

[1991] 3 All ER 73 213, 214, 223, 224Rawlings v Till (1837) 3 M & W 28; [1837] 150 ER 1042 479Read v Coker (1853) 13 CB 850 484Read v Lyons [1947] AC 156 396, 398, 399, 404Ready Mixed Concrete (South East) Ltd v Minister of

Pensions and National Insurance [1968] 1 All ER 433 569Reeves v Metropolitan Police Commissioners

[1999] 3 All ER 897 561Reible v Hughes (1980) 114 DLR (3d) 1 123, 124Revill v Newbery [1996] 1 All ER 291 491Reynolds v Clarke (1725) 2 Ld Raym 1399; 1 Stra 634 470Reynolds v Times Newspapers Ltd [1999] 45 All ER 609 520Richley v Faull [1965] 3 All ER 109; [1965] 1 WLR 1454 95Rickards v Lothian [1913] AC 263 396, 401Roberts v Chief Constable of Cheshire [1999] 2 All ER 326 497Roberts v Dorman Long & Co Ltd [1953] 1 WLR 942 141Roberts v Johnstone [1989] 1 QB 878 599Roberts v Ramsbottom [1980] 1 All ER 7 95Robertson v Forth Road Bridge Joint Board

(No 2) 1994 SLT 568 228Robertson v Forth Road Bridge Joint Board, Rough

v Forth Road Bridge Joint Board 1995 SLT 263 237, 246Robinson v Balmain New Ferry Co Ltd [1910] AC 295 495Robinson v Kilvert (1889) 41 Ch D 88 452Robinson v The Post Office [1974] 2 All ER 737 174, 180Roe v Minister of Health [1954] 2 QB 66 125, 171Roles v Nathan [1963] 2 All ER 908 347, 348

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Rondel v Worsley [1967] 3 All ER 993; [1969] AC 191 31, 5355Rookes v Barnard [1964] 1 All ER 367; [19641 AC 1129 435, 583, 586Rose v Miles (1815) 4 M & S 101 459Rose v Plenty [1976] 1 All ER 97 577Ross v Bryce 1972 SLT 76 489Ross v Caunters (a firm) [1979] 3 All ER 580 312, 315, 317, 318Rouse v Port of London Authority

[1953] 2 Lloyds Rep 179 145Rowling v Takaro Properties Ltd

[1988] 1 All ER 163; [1988] AC 437 69, 82, 83Ruddiman v Smith (1889) 60 LT 708 572Ruxley Electronics and Construction Ltd

v Forsyth [1995] 3 All ER 268 438Rylands v Fletcher (1868) 100 SJ 659;

(1868) LR 3 HL 330; (1866) LR 1 Ex 265 2, 12, 13, 39395, 398, 400,402, 404, 40608, 410,

414, 42931, 456,458, 459

S

Saif Ali v Sydney Mitchell & Co [1980] AC 198 53St Helens Smelting Co v Tipping (1865) 11 HL Cas 642 438, 449Sawyer v Simonds (1966) 197 Est Gaz 877 341Scally v Southern Health and Social Services Board

[1991] 4 All ER 563; [1992] 1 AC 294 236Scott Group Ltd v McFarlane [1978] 1 NZLR 553 296Scott v London and St Katherine Docks Co

(1865) 3 H & C 596 134Scott v Shepherd (1770) 2 W BI 892 470Sedleigh-Denfield v OCallaghan [1940] AC 880 443, 447, 45658Shelfer v London Electric Lighting Co [1895] 1 Ch 287 462, 465Sidaway v Bethlem Royal Hospital Governors

[1985] 1 All ER 643 119, 492Silkin v Beaverbrook Newspapers Ltd

[1958] 2 All ER 516; [1958] 1 WLR 743 523Sim v Stretch [1936] 2 All ER 1237 503Simkiss v Rhondda Borough Council (1983) 81 LGR 460 346Simpson and Co v Thomson, Burrell (1877) 3 App Cas 279 279Smith v Ainger (1990) The Times, 5 June 424

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Smith v Baker [1891] AC 325 550Smith v Eric S Bush [1989] 2 All ER 514; [1989] 2 WLR 790 297, 299, 300, 307, 309Smith v Leech Brain & Co Ltd [1962] 2 QB 405 174, 175Smith v Leurs (1945) 70 CLR 256 43Smith v Littlewoods Organisation Ltd [1987] 1 All ER 710 40, 51Smith v Manchester Corporation (1974) 17 KIR 1 600Smith v Prendergast (1984) The Times, 18 October 414South Hetton Coal Co Ltd v North Eastern News

Association Ltd [1894] 1 QB 133 502Spartan Steel and Alloys Ltd v Martin & Co

(Contractors) Ltd [1972] 3 All ER 557 261Spicer v Smee [1946] 1 All ER 489 411Spring v Guardian Assurance plc

[1994] 3 WLR 354; [1994] 2 All ER 129 32, 318Square v Model Farm Dairies [1939] 2 KB 365 387Squires v Perth and Kinross DC 1986 SLT 272 4648Stanley v Powell [1891] 1 QB 86 472, 473Stansbie v Troman [1948] 2 KB 48; [1948] 1 All ER 599 42, 49, 181Stapley v Gypsum Mines Ltd [1953] 2 All ER 478 559Staton v National Coal Board [1957] 1 WLR 893 573Stennet v Hancock and Peters [1939] 2 All ER 578 367, 372Stephens v Myers (1830) 4 Car & P 349 486Stevens v Woodward (1881) 16 QBD 318 572Stevenson Jordan and Harrison Ltd

v Macdonald and Evans [1952] 1 TLR 101 568Stovin v Wise (Norfolk CC, third party)

[1996] AC 923; [1996] 3 All ER 801 59, 60, 72Sturges v Bridgman (1879) 11 Ch D 852 460Sunday Times v UK (1979) 2 EHRR 245 544Sutcliffe v Pressdram [1990] 1 All ER 269 543Sutherland Shire Council v Heyman (1985) 60 ALR 1 27, 28, 30, 60Swinney v Chief Constable of Northumbria Police

[1996] 3 All ER 449 56

T

Taylor v OConnor [1970] 1 All ER 365; [1971] AC 115 600, 607, 608, 626Tetley v Chitty [1986] 1 All ER 663 454, 456, 466Theaker v Richardson [1906] 1 WLR 151 509Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627 542

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Thomas v Brighton Health Authority[1997] 1 All ER 673; [1997] 1 WLR 652; [1996] PIQR Q44 599

Thompson v Price [1973] 2 All ER 846 626Thorgeirson v Iceland (1992) 14 EHRR 843 534Tinelly & Sons Ltd and Others; McElduff and Others

v UK judgment of 10 July 1998, Reports 1998 37Todorovic v Waller (1981) 150 CLR 402 600Tojo Maru, The [1971] 1 All ER 1110; [1972] AC 242 64Tolley v Fry [1931] AC 33 506Toogood v Spyring (1834) 1 Cr M & R 181;

[182434] All ER Rep 735 523Topp v London Country Bus (South West) Ltd

[1993] 1 WLR 976 51Torrack v Copramercia Inc (1958) 144 A 2d 703 45Tremain v Pike [1969] 3 All ER 1303 169, 170Tromso v Norway (Case No 21980/93) (1999) unreported 534Tuberville v Savage (1669) 1 Mod Rep 31; [1669] 86 ER 684 478, 484Tutin v Mary Chipperfield Promotions Ltd

(1980) 130 NLJ 807 414, 419

U

Ultramares Corpn v Touche (1931) 255 NY 170;(28) (174 NE 444) 283, 295

United Australia Ltd v Barclays Bank Ltd[1940] 4 All ER 20 475

V

Vacwell Engineering v BDH Chemicals [1971] 1 QB 88 173Vaughan v Menlove (1837) 3 Bing NC 468 407Vernon v Bosley (No 1) [1997] 1 All ER 577 230Victorian Railways Commissioners

v Coultas (1888) 13 App Cas 222 239, 242Vizetelly v Mudies Select Library Ltd [1900] 2 QB 170 510

W

W v Essex CC [2000] 2 All ER 237, CA 89Wagner v International Rly Co (1921) 232 NY 176 247Wagon Mound, The (No 1) [1961] AC 388 166, 168, 174, 175, 184,

186, 189, 456, 457

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Wagon Mound, The (No 2) [1966] 2 All ER 709;[1963] Lloyds Rep 411; [1967] 1 AC 617 99, 100, 402, 403,

436, 442, 456, 458Walker v Northumberland CC [1995] 1 All ER 737 243, 244Wallace v Newton [1982] All ER 106 423Walton and Walton v British Leyland (1978) unreported 371Ward v Cannock Chase District Council

[1985] 3 All ER 537 185Ward v Tesco Stores Ltd [1976] 1 All ER 219 134Warren v Henlys Ltd [1948] 2 All ER 935 574Wason v Walter (1868) LR 4 QB 73;

[186173] All ER Rep 105 526, 537Watson v Buckley, Osborne, Garrert & Co Ltd

[1940] 1 All ER 174 366, 370Watson v Thomas S Whitney & Co Ltd

[1966] 1 All ER 122; [1966] 1 WLR 57 95Watt v Hertfordshire County Council [1954] 1 WLR 835 106Watt v Longsdon [1930] KB 130 518Watts v Times Newspapers Ltd [1996] 1 All ER 152 540Webb v Times Publishing Co Ltd

[1960] 2 All ER 789; [1960] 2 QB 535 526Weld-Blundell v Stephens [1920] AC 956;

[1920] All ER Rep 32 42, 43Weller v The Foot and Mouth Disease Research Institute

[1965] 3 All ER 560 260, 262Wells v Cooper [1958] 2 QB 265 114Wells v Wells [1998] 3 All ER 481 598, 599West v Shephard [1963] 2 All ER 625 619, 621Wheat v E Lacon & Co Ltd [1966] 1 All ER 582 331, 335, 336, 339, 410Wheeler v Saunders [1995] 3 WLR 466 461White v Blackmore [1972] 2 QB 651 357White v Chief Constable of South Yorkshire Police

[1999] 1 All ER 1 229, 250White v Jones [1995] 1 All ER 691 32, 313, 319White v St Albans City and District Council

(1990) The Times, 12 March 360Whitehouse v Jordan [1981] 1 All ER 267;

[1980] 1 All ER 650 108, 110, 111Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006 188

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Wiffin v Kincard (1807) 2 Bos & PNR 471;[1807] 127 ER 713 479

Wigg v British Railways Board(1986) The Times, 4 February 245, 246

Wilkinson v Downton [1897] 2 QB 57 439, 486, 487Wilks v The Cheltenham Home Guard Motor Cycle Club

[1971] 2 All ER 369 130Williams v Humphreys (1975) The Times, 20 February 477Williams v Natural Life Health Foods Ltd

[1998] 2 All ER 577 320Wilsher v Essex Area Health Authority

[1986] 3 All ER 801; [1988] 1 All ER 871, CA 108, 160, 163, 164Wilson v Pringle [1986] 2 All ER 440; [1987] QB 237 477, 480, 481Winterbottom v Wright (1842) 10 M & W 109;

(1842) 10 M & W 115 17, 19Wise v Kay [1962] 1 All ER 257 620, 621Wong, Edward Finance Co Ltd v Johnson Stokes and

Master [1984] 1 AC 296 118Woodward v Mayor of Hastings [1945] 1 KB 174 350Woolridge v Sumner [1962] 2 All ER 978; [1963] 2 QB 43 128, 130Wright v British Railways Board [1983] 2 All ER 698;

[1983] 2 AC 773 607, 608Wringe v Cohen [1940] 1 KB 229 436, 456, 457

X

X and Others (minors) v Bedfordshire County Council[1995] 2 AC 633; [1995] 3 All ER 353 63, 72, 79, 83, 88, 89

Y

Yianni v Evans [1981] 3 All ER 592 305, 306, 308Youssoupoff v MGM Ltd (1934) 50 TLR 581 504, 510Yuen Kun Yeu v Attorney General of Hong Kong

[1987] 2 All ER 705; [1987] 3 WLR 776; [1988] AC 175 27, 28, 30, 54, 70, 86, 87

xxxv

Administration of Justice Act 1982s 1(1)(a) 619s 3 214, 625s 5 593s 6 590

Animals Act 1971 413, 414, 424, 426s 1 415ss 25 415, 416ss 24 416, 419s 2 416, 419, 420, 424s 2(2) 419, 420s 2(2)(a) 420, 421, 423s 2(2)(b) 420, 423, 424s 2(2)(c) 420ss 39 419s 3 416s 4 416, 417, 427s 4(1), (2) 416s 5 416, 420s 5(1) 425s 5(2) 425, 426s 5(3) 426s 5(4) 418s 5(5) 426s 6(1)(3) 416s 6(4) 416, 417s 6(5) 417s 7 415, 417ss 8, 9 418s 10 419s 11 415, 419

Bills of Lading Act 1855s 1 265, 269

Broadcasting Act 1990s 166(1) 510

Building Societies Act 1962s 25 306s 30 306, 307

Bush Fires Act 19558 442

Carriage of Goods by SeaAct 1971 322

Child Care Act 1980s 76 85

Children Act 1989 85s 17 84

Civil Evidence Act 1968 132s 11(1)(3) 133s 13 133, 516

Civil Evidence Act 1995s 10 596

Civil Liability (Contribution)Act 1978 515s 1 515

Commons RegistrationAct 1965 419

Companies Act 1985 297s 1(3) 539ss 236, 237 297s 238(3) 298ss 239, 240, 241, 246 298s 384 297

Congenital Disabilities (CivilLiability) Act 1976s 1 378

Consumer ProtectionAct 1987 23, 363, 364,

373, 387, 388,391, 392

Pt I 363, 364, 373Pt III 379s 1 392s 1(1), (2) 373s 1(2)(a)(c), (3) 374s 2 37678s 2(1)(3) 374s 2(2) 375, 376s 2(3) 375, 377s 2(3)(b), (c) 375

TABLE OF STATUTES

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s 2(4)(6) 375s 3(1), (2) 375s 4 388s 4(1) 375s 4(1)(c)(f) 376s 4(1)(e) 388, 389, 392s 4(2) 376s 5(1)(4) 376s 5(5)(8) 377s 6(1)(2) 377s 6(3)(8) 378s 7 378s 41 132s 45(1) 378s 46(1)(4) 379Sched 1 378

Contracts (Rights of ThirdParties) Act 1999 363

Control of Pollution Act 1974s 75(1) 372

Copyright Designs andPatents Act 1988Pt I 512

Courts and Legal ServicesAct 1990 544s 8 544, 545

Criminal Injuries Act 1995 230Criminal Injuries Compensation

Act 1995 10, 469Criminal Justice Act 1988

ss 108117 469s 109(2) 230

Criminal Law Act 1967s 3 488

Criminal Procedure (Scotland)Act 1995s 249 615

Damages Act 1996s 1 598, 606s 1(3) 610s 2 592s 2(12) 599, 600

Damages (Scotland) Act 1976 377Dangerous Dogs Act 1991 426Defamation Act 1952 527, 528

s 2 511s 4 513s 5 516s 7 528s 9(1) 537s 10 526s 16(1) 510

Defamation Act 1996 501, 512, 528s1 510s 1(1)(3) 512s 1(3)(a)(e), (4)(6) 513s 2 51315s 3 514s 3(8)(10) 515s 4 515ss 811 501s 14 517s 15 528, 537Sched 1 537Sched 1, paras 211 538Sched 1, paras 1214 539Sched 1, para 15 540

Defective Premises Act 1972 271, 273s 4 332, 335s 4(1)(5) 335s 4(6) 336

Dogs Act 1906s 1(1), (2) 415

Dogs (Amendment) Act 1928 415

Education Act 1981 86

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Environmental ProtectionAct 1990 429

European CommunitiesAct 1972 392

Fatal AccidentsAct 1976 377, 419, 611,

622, 625, 626s 1 623s 1(2)(5) 624s 1A 214, 249, 621s 1A(2) 623s 1A(5) 625s 1A(7) 231ss 2, 3 624s 3(3) 626s 3(5), (6) 625s 4 625s 5 378, 625

Fire Services Act 1947s 30(2), (3) 63

Fires Prevention (Metropolis)Act 1774 408, 412s 86 405, 406, 412

Food Safety Act 1990 387

Guard Dogs Act 1975 426

Highways Act 1980 75s 41 73s 79 75, 77

Highways (MiscellaneousProvisions) Act 1961 78

Human Rights Act 1998 11, 15, 32,40, 79, 502, 527

s 2 32, 530s 3 32s 4 33s 6 33, 530s 12 530

Insurance CompaniesAct 1982 616

Land Charges Act 1925s 17(1)(3) 310s 17(3) 311

Law Reform(Contributory Negligence)Act 1945 378, 378, 419,

489, 557, 562s 1(1) 557, 558, 625s 4 562

Law Reform(Miscellaneous Provisions)Act 1934 377, 502, 625s 1 621, 626s 1(2)(5) 622

Law Reform(Miscellaneous Provisions)Scotland Act 1940s 3(2) 515

Law Reform(Personal Injuries) Act 1948s 2(1) 612s 2(4) 593

Limitation Act 1980 378, 419Lord Cairns Act 463, 465

Misrepresentation Act 1967s 2 295

National Health ServiceAct 1977 593

National Health Service(Scotland) Act 1978 593

National Parks andAccess to the CountrysideAct 1949 330, 358

Nuclear InstallationsAct 1965s 12 378

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Occupiers LiabilityAct 1957 103, 327, 32937,

346, 348, 353, 354,358, 360, 361, 566

s 1(1)(4) 330s 1(1) 333s 1(2) 333, 336s 2 338, 359s 2(1)(5) 338s 2(1) 354, 357s 2(2) 354s 2(3) 341s 2(3)(b) 347s 2(4)(a) 348s 2(4)(b) 349, 352, 354s 2(5) 358s 2(6) 337s 3 357s 3(1) 358s 4 332, 336

Occupiers LiabilityAct 1984 327, 330, 336, 337,

358, 359, 361, 491s 1(1)(5) 359s 1(3), (b) 360s 1(6)(9) 360

Offences Against thePerson Act 1861ss 20, 47 493

Parliamentary Papers Act 1840s 1 517s 3 536, 537

Partnership Act 1890 576Police and Criminal Evidence

Act 1984 58, 497Powers of Criminal Courts

Act 1973s 35 3, 615

Powers of CriminalCourts (Sentencing) Act 2000s 130 3, 615

Prescription and Limitation(Scotland) Act 1973 378

Protection from HarassmentAct 1997 439, 48486ss 15, 7 485

Public Health Act 1936 68Pt II 68

Road ImprovementsAct 1925s 4 77

Road Traffic Act 1988 95s 149 554

Rehabilitation of OffendersAct 1974 522s 8 516

Sale of Goods Act 1893 363Sale of Goods Act 1979 3, 363

s 13 3s 14(2), (3) 3

Slander of Women Act 1891 511Social Security Act 1989

s 22 612Social Security Administration

Act 1992ss 81, 82 612

Social Security (Recoveryof Benefits) Act 1997 582, 612, 626s 1(2)(4) 613ss 24, 6 613s 6(2)(4) 614ss 8, 9 614s 9(2)(4) 615ss 15, 17 615Sched 1, Pt I 613, 615Sched 1, Pt I, paras 38 616Sched 1, Pt II 615Sched 2 614

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Supreme Court Act 1981s 32A 590

Theatres Act 1968 511ss 27 511

Unfair Contract Terms

Act 1977 308, 309, 354,358, 361

s 1(3) 358s 2 357s 2(2) 309s 2(3) 358s 14 358

1CHAPTER 1

INTRODUCTION

Individuals, businesses and other organisations in a complex post-industrialsociety suffer losses of various kinds as a result of the activities of others. Tortlaw is one of the areas of law primarily concerned with the question ofwhether these losses are to be compensated for by the person responsible forthe relevant activity or whether the loss must lie where it falls, namely, withthe victim. The other major area dealing with similar issues is the law ofcontract. Tort law is, to a lesser extent, also concerned with preventing ordeterring certain types of conduct. An action in tort is a civil action, asopposed to a criminal prosecution, and is initiated by an individual,business or other organisation, rather than by the State as is usually the casein a criminal matter. An action, in normal circumstances, will be brought intort to obtain damages, monetary compensation, for some loss sustained bythe victim, for example, personal injury, damage to or loss of property,damage to economic interests or loss of reputation.

The word tort is French for wrong, and we can therefore say that a tortis a civil wrong. Tort law comprises the rules of liability which dictatewhether the defendants activity constitutes a civil wrong, thus enabling thecourt to grant a remedy, that is, compensation to the claimant victim. Thisseems straightforward enough but there are obvious difficulties with theexplanation of what is tort law in view of the diverse nature of the causes ofaction which appear to fall within its scope. It is common in an introductionof this kind to discuss the issue of whether there is a law of tort or torts. Thesearch for some unifying factor underlying all causes of action in tort, thusenabling us to distinguish between tort actions and other types of action, forexample, actions for breach of contract, would appear to be a vain one.Indeed, the fragmentary nature of tort law would seem to militate stronglyagainst discovery of any such principle. It might, therefore, be moreappropriate to talk of a law of torts, a rather loose collection of random causesof action, a residual category of civil wrongs falling outside and independentof the law of contract, the other major source of civil wrongs. If this view istaken, it must nonetheless be acknowledged that the major part of the areacovered in this and other books on tort law is within the scope of one singletort, that is, negligence, but by the same token, it has to be recognised thatthere are other causes of action, totally independent of negligence, with theirown specialised rules of liability which clearly fall within the subject matterof tort law.

Attempts have conventionally been made to assimilate the variouscauses of action within the tort umbrella into groupings to provide some

Sourcebook on Torts: Chapter 1

2

coherenceor structure to the subject. For example, it is possible to arrange thesubject in terms of the interests protected, such as, personal safety, reputation,property and economic interests, and group the torts together which offersome protection in relation to that particular interest. A number of tortsprotect the interest in personal safety, that is, negligence, trespass to theperson (assault and battery, and false imprisonment), public, and possiblyprivate, nuisance, and arguably, the tort known as the rule in Rylands vFletcher. Property interests in goods are in the main protected by the torts ofnegligence and interference with goods, whereas interests in land are coveredby the actions for trespass to land, under the rule in Rylands v Fletcher and innuisance. Interests in reputation are protected by the defamation actions oflibel and slander, whilst economic interests are within the scope of the socalled economic torts, deceit and to a limited extent, the negligence action.Alternatively, the grouping could be based on the level of the defendantsblameworthiness, namely, torts requiring proof of intention on the part of thedefendant, those whose liability rules are founded on a lack of careestablished against the defendant, and those where liability is imposedirrespective of fault, namely, the strict liability torts. The intentional tortswould include trespass to the person and land, interference with goods anddeceit by way of illustrations. Negligence would clearly constitute theparamount example of a tort based on the defendants carelessness, andproduct liability, nuisance and the rule in Rylands v Fletcher, on the face of itat least, would be prime examples of strict liability torts, although it has to bepointed out that the former was originally based on common law negligenceand the latter two have in modern times come under severe pressure from theall embracing negligence action as we shall see in the relevant chapters.Neither of the two approaches is entirely satisfactory, but the latter approachhas been adopted in the main in this book. It has to be borne in mind,however, that some torts will protect more than one interest and that thedegree of protection offered may fluctuate depending on for which interestprotection is being sought. For example, in the earlier chapters, we shall seethe vast gap in protection afforded by the negligence action to the personalsafety and property interests on the one hand and the much less favouredeconomic interests on the other.

TORT AND OTHER TYPES OF LIABILITY

It is traditional at some point in an introduction of this nature to compare tortliability with the types of liability with which it has a close connection, witha view to marking out more clearly the territory of the subject. Tort law hasmore in common with the law of contract, but there are connections andoverlaps with criminal law, actions for breach of trust and the more recentlyrecognised law of restitution. We have already distinguished between civil

Introduction

3

wrongs, which are pursued at the initiative of an individual, and criminalmatters, which are normally taken up by the state in the public interest. Thefunction of the criminal law is usually stated as being the punishment of theoffender, by fine or imprisonment, whereas tort law is essentially concernedwith compensating the victim of the tort by a damages award made againstthe perpetrator. Criminal law also seeks to affect the future behaviour of thetransgressor, but also that of others with similar criminal tendencies. Tort lawmay perform this function but, as we shall see, to a much lesser extent. Sometort actions will also constitute crimes, for example, assault and battery,intentional damage to the property of others and public nuisance. Inaddition, criminal sanctions and a civil action may arise on the same facts inthe context of a road traffic accident or an accident in the workplace. In sometort actions the court may award what are known as exemplary damages,which are clearly designed to punish the defendant, although unlike a fine ina criminal matter being payable to the state, the exemplary award iscontroversially handed over to the victim over and above any damagesdesignated as compensation. The incidence of such awards is, however, lessfrequent nowadays precisely for the reason that such payments blur thedistinction, as far as the judiciary perceives it, between criminal and civilmatters. The distinction is blurred in the eyes of the public in any event by theavailability of compensation orders payable to the victims of crime incriminal cases under s 35 of the Powers of Criminal Courts Act 1973 (as from25 August 2000, see s 130 of the Powers of Criminal Courts (Sentencing) Act2000), although this power is rather restricted in practice.

As mentioned above, tort law is more akin to contract law than any othersubject. It would be easy to say that contract law is really a specialised area oftort law because of the similar origin of the two types of action but this wouldbe to ignore the reality that contract has been treated historically as a separatesubject from tort with its own independent cause of action. Indeed, there islittle to choose between books on tort and contract in terms of depth, breadthand the numbers of them produced for the academic market. Taken together,tort and contract form the basis of the English law of obligations, although itwould be misleading not to acknowledge the contribution to such aclassification of the law of restitution and that of the much ignored area ofbailment. Traditionally, contract was seen to be based on consent and tortessentially was perceived as a series of primary duties imposed by societyirrespective of the consent of those making up that society. This is anoversimplification, as it must be acknowledged that many contractual dutiesare implied into certain types of contract irrespective of the wishes of theparties to the contract in question. For example, the Sale of Goods Act 1979(as amended) implies terms of satisfactory quality (s 14(2)), description (s 13)and fitness for particular purpose (s 14(3)) into sale of goods contracts. Thereare many other examples of this and these make a significant inroad into theidea that contract is based solely on the agreement of the parties. Likewise, itis inappropriate to say that all tort duties are imposed as a matter of law.


4

Consent does play some part in the imposition of tort duties, for example, inrelation to liability for negligent mis-statement and occupiers liability. One ofthe major issues in recent years has been that of concurrent liability incontract and tort arising from the same facts. It now seems to be the case, aftersome deliberation, that its existence has been accepted.1

The issue of the interplay between contractual and tortious liability willbe returned to in Chapters 2 and, more particularly, 6 as the existence or non-existence of a contractual duty has been considered in some cases as arelevant factor in deciding whether the defendant is thought to owe a duty ofcare in the tort of negligence, more especially in the cases involving claims fordamage to economic interests.

It has to be recognised, however, that there are some significantdifferences still between liability in contract and tort. One of the mostsignificant departures between the two causes of action concerns the purposeof the award of damages in the respective actions. In contract, the claimant isnormally entitled to be placed in the position he should have been had thecontract been properly performed.2 In other words, the claimant is entitled tohis expectation loss. In tort, the claimant is to be put in the position she wasin before the tort was committed, sometimes crudely known as the out ofpocket expenses rule. Other differences include differing limitation periodsand tests of remoteness of damage.

Actions for breach of trust and other equitable obligations are historicallyseparate from tort law, as the principles were developed in the Chancerycourt as opposed to the common law courts. Even where die claim for breachof any such obligation is met with an award of monetary compensation, itwill nonetheless still be regarded as being outside the scope of tort law. Thelaw of restitution provides some remedies which enable a claimant to recoupmoney, for example, money paid under a mistake of fact. This is normallyregarded as being outside the subject of books on tort. The requirement torepay money in such circumstances does not come about as a result of thebreach of a duty owed to the claimant, nor as a result of damage to the latter,but is based on the principle of unjust enrichment of the defendant. The lawof restitution has justifiably gained considerable momentum as a subject inits own right in recent years. There is on occasions an overlap between tortlaw and restitution, and the claimant may seek a restirutionary remedyinstead of the normal damages claim. This area of liability is covered in theleading books on restitution.3

There have been suggestions in recent years that tort law is only a part ofa larger area of law known as the law of obligations. Such an area would also

1 See Jones, Textbook on Torts, 5th edn, 1998, London: Blackstone, pp 59; Stanton, TheModern Law of Tort, 1994, London: Sweet & Maxwell, pp 68.

2 In limited circumstances, a plaintiff may choose reliance based damages in contract; seeBurrows, Remedies for Torts and Breach of Contract, 2nd edn, Butterworths, pp 24856.

Introduction

5

take in contract, restitution and bailment. It would of necessity contain a vastamount of material and from a purely pragmatic point of view it would beextremely difficult to teach or study as a single subject area. There are alsotheoretical obstacles, in that, as observed above, it would still be necessary todistinguish certainly at least between contract and tort actions. It is probablyonly true to say that tort is a major but separate part of an overall and muchlooser classification of the law of obligations, despite the obvious similaritieswith contract.

FUNCTIONS OF TORT LAW

Rather than concentrating too much time and energy on searching for somespurious unifying principle which enables us to identify tort law from othertypes of civil liability, effort might be more usefully directed at an inquiryinto the way in which tort law operates. Howarth prefers to look at thisquestion from the converse angle, by asking what would we miss if tort lawdid not exist and we were only left with contract law in the main? Hisanswer is:4

it ought to be said that abolishing the law of torts may not make a greatdifference at all. In theory, a great deal of it could be reinvented throughimplied terms in contracts, constructive (that is, made-up) trusts and ordersto restore the [claimants] property. One might remark that in countrieswhere attempts have been made greatly to restrict the scope of tort law, inNew Zealand and Sweden, for example, such developments do not seemyet to have happened. But that might have as much to do with the legallimits of imagination and the will of the judiciary as with the theoreticalpossibilities.

It is normal to mention in this context several aims or objectives of tort law ofwhich we would not feel the benefit if tort law no longer existed. Monetarycompensation has already been identified as a primary function, but in anylist of aims would come deterrence, appeasement or vindication of rights,justice and to provide a public forum in which to discuss new forms ofbehaviour and the consequences of new technologies.5

3 See Goff and Jones, The Law of Restitution, 5th edn, 1998, London: Sweet & Maxwell;Birks, An Introduction to The Law of Restitution, revd edn, 1989, Oxford: Clarendon;Burrows, The Law of Restitution, 1993, London: Butterworths.

4 Howarth, Textbook on Tort, 1995, London: Butterworths, p 7.5 Ibid, p 13.


6

Appeasement and vindication of rights

It is fairly clear that these two aims only have a limited role to play in moderntort law and are therefore dealt with briefly together. The idea of appeasementmay have been a factor in the early days of the legal system, wherebyallowing an individual the opportunity to make a claim in a civil courtagainst the transgressor would prevent the victim from resorting to someform of selfredress which might result in a breakdown of law and order. Thevindication of rights function is probably more important these days andthere appears to have been a resurgence in its popularity as evidenced byrecent litigation in respect of large scale disasters such as the Zeebrugge andPiper Alpha incidents. Victims or the families of deceased victims are ofteninterviewed on television, saying that they are not really interested incompensation, rather supporting the idea of the deterrence function of thelaw by expressing the view that nobody else should have to undergo whatthey or their relatives have had to go through. Of course, in relation to thecivil liberties torts, for example, assault, battery and more particularly, falseimprisonment, vindication of rights has a significant part to play, especiallyin relation to injured feelings and loss of dignity and respect, over and aboveany compensatory function. Such an analysis might also be applied todefamation actions. Despite this, if tort law ceased to exist, it is unlikely that,in relation to these two functions at least, much would be lost.

Justice

Justice might be perceived as requiring that a defendant be made to pay forhis wrongdoing by being ordered to compensate his victim. The defendant isforced to correct or rectify the situation which he has brought about. Thismight have some appeal as a valid argument in the context of torts whichrequire the proof of some element of blameworthiness on the part of thedefendant, for example, trespass to the person, negligence, etc., but thisanalysis runs into difficulties with the torts which are categorised as strictliability in nature, where proof of fault is not an essential requirement. Ofcourse, it might be argued that even though the defendant is not at fault insuch instances, nonetheless, it is her activity which has created the riskwhich has resulted in the harm to the claimant, but this is difficult torationalise in terms of wrongdoing, involving as it must a moral dimension.Justice may be more appropriately served by looking to the claimants need forcompensation rather than the defendants moral turpitude. This, however,would take the debate into the different, and controversial, realm of distributive

Introduction

7

justice. There are serious doubts whether tort law is capable of socialengineering in the redistribution of wealth in society.6

The arguments concerning the defendant having to pay for hiswrongdoing or risk-creating are themselves weakened further by the fact thatin most types of accident, any compensation paid to the tort victim will comefrom an insurance company, rather than the particular defendants ownpocket. Of course, the defendant may have paid something by way ofpremiums to the insurance company, but where the claim is for substantialdamages, far exceeding the amount of those premiums, there is little scope forarguing that tort law is achieving the aim of corrective justice. As Jonesobserves7 [liability] insurance removes the connection between thewrongdoer and the claimants compensation. Howarth reinforces the pointgraphically:8

There is a paradox that when insurance intervenes, the higher the sumclaimed in relation to the premiums paid the less the requirements ofrectificatory justice are fulfilled.

There seems to be considerable doubt as to whether tort does or can serve thecause of justice in the light of the above.

Deterrence

If taken in isolation, the liability rules in tort law clearly seem to have adeterrent function, whether the claim be for compensation or an injunction.However, in the areas most important in a quantitative sense, that is, roadand work accidents, the impact of liability insurance clouds the picturesignificantly. The threat of having to pay compensation to the victim of oneswrongful action cannot be dismissed lightly and, in some torts, it will still bea powerful deterrent to many. This is particularly the case in the realms ofliability for defamation and assault and battery and the economic torts. Thefear of having to pay substantial damages to a victim of a defamatorystatement no doubt explains why publishers employ the services of expertlibel lawyers to advise on material before it is published. The use ofinjunctions in this area to prevent publication of alleged defamatory materialreinforces the deterrent aspect of this particular cause of action. The grantingof the injunction works as a deterrent on the particular defendant but alsoprovides a warning to others of a like mind that in appropriate cases thecourts will not shrink from such orders.

6 See op cit, Stanton, fn 1, p 16; op cit, Jones, fn 1, p 16; Atiyah, Accidents, Compensationand The Law, Cane (ed), 6th edn, Chap 7.

7 Op cit, Jones, fn 1, p 16.8 Op cit, Howarth, fn 4, p 13.


8

It is, however, very difficult, in the absence of factual studies, to evaluatethe precise effect of the fear of imposition of tort liability on the behaviour ofpotential defendants. In respect of road traffic accidents, it is suspected thatother factors may be at play in deterring bad driving. Notions of self-preservation, safety of others, such as passengers, fear of damage to onesown property are at least part of the picture, in addition to which one mustalso consider the vital impact of the criminal sanctions for poor driving.Insurance also plays its part in reducing the deterrent aspect of tort law, inthat the transgressor is not the person paying the compensation andnormally will only be out of pocket to the extent of any no claims bonus onher insurance policy. A similar process is at work in the field of industrialaccidents where liability insurance is also compulsory. On the other hand, afinding of fault against a professional person, even if the damages award ismet by an insurance company, may have a significant effect on the reputationof the defendant and must provide some measure of deterrence, although thismust not be overstated. Disciplinary action by a professional body, if any,may concentrate the mind more closely than any concern about an award ofdamages. In the absence of a system of tort law, it might be surmised thatthere would in some of these areas be little difference in the preventative effectof the law.

There is another school of thought concerned with the deterrent aspect oftort law. In the interests of overall economic efficiency, it is argued that societyshould be moving towards a cost-justified level of accidents. This is knownas the general deterrence theory and is largely based on the work ofCalabresi9 where the view is taken that there is a point at which the costs ofprevention of accidents outweigh the savings made in the costs of accidents.Once that point has been reached, no further savings are possible and,indeed, more expenditure on prevention is wasted. This economic efficiencyargument is not universally accepted.10

We have seen in this brief discussion that there are severe limits to thescope of tort law as an effective deterrent and that certainly in some areas, if itdid not exist it might not be missed too much.

Public forum function

According to Howarth, this function takes two forms. The first is that tort lawperforms a kind of ombudsman11 function through the medium of thenegligence action, investigating the causes of accidents and subjecting the

9 Calabresi, The Costs of Accidents, 1970, Connecticut: New Haven.10 Op cit, Atiyah, fn 6, pp 37492.11 See Linden, Tort as ombudsman (1973) 51 Can Bar Rev 155.

Introduction

9

defendants activity to the scrutiny of reasonableness. Not all accidents are orcould be subjected to such a process. It may be purely random incidentswhich are placed under the judicial microscope and those which might beconsidered more appropriate for full investigation are not pursued for allsorts of good reasons, or are settled before being the focus of the open court.This is the piecemeal nature of a system which depends in the main uponindividual initiative to set the ball rolling. Public inquiries are generallythought to be a more successful way of launching investigations into majoraccidents.

The other form is best expressed in Howarths own words:

Another form of the idea is that tort law provides a way for the optimalregulation of new forms of behaviour and new technologies to be workedout on a case by case basis so that the legislature has a pattern of thoughtand decision about a new problem to work on before plumping for aparticular set of regulations.

It might be argued that this form of function is subject to the same criticism asthe other, being dependent upon the accidents of litigation for it to be capableof making a contribution.

Compensation function

Finally, it is necessary to consider the primary function of tort law, namely,compensation. On the face of it, tort is a loss shifting device, whereby aperson who has sustained a loss attempts to transfer that loss to the personwho has apparently brought such loss into being. A claimant who succeedsin unlocking the door to the tort system, that is, manages to establish liabilityagainst another under the rules of tort, wins the equivalent of the jackpot inthe National Lottery if the injuries are severe. However, the tort systemoperates against the backdrop of a well established insurance market, incircumstances where the two most commonly successful types of claim, roadand workplace accidents, are covered by compulsory insurance. Tort law istherefore, in reality, a loss spreading mechanism, distributing the lossamongst the relevant category of premium payers. In the majority of cases,consequently, the existence of insurance guarantees that the victim will gether compensation and in some cases the very fact of insurance may wellinfluence the issue of imposition of liability in the first place. For example, inroad traffic accidents it appears that the slightest momentary lapse ofattention may found the basis of liability, the courts being readily influencedby the fact that the defendant will not be paying personally out of his ownpocket for the damages.

It is worth considering what the position would be if tort law wasabolished overnight. The victims loss would have to lie where it fell, unlessshe had adequate first party insurance covering the type of loss in question,or could unlock the door to some other compensation system. If


10

the circumstances giving rise to the injury, though no longer a tort, wereclassified as constituting a crime of violence falling within the scope of theCriminal Injuries Compensation Scheme, the victim could obtain areasonable level of compensation, although this may not be the case now thatthe Criminal Injuries Compensation Act 1995 is in force. Alternatively, theinjured party might make use of the courts power to award compensation incriminal cases mentioned earlier in this chapter. Both these sources ofcompensation have serious limitations and would certainly not make up forthe loss of the tort action in cases of severe injury in particular.

If the injury to the victim falls outside the scope of the above, it isnecessary to consider what other forms of compensation might be available.A victim of a serious accident or chronic illness or disease, not attributable toany breach of tortious duty, may well find that the only available source ofcompensation, short of falling upon charity, is the State benefits scheme. It isnot proposed to go into any detail in relation to the benefits that might beavailable but merely to make some general observations about therelationship between compensation in the tort system and that in the Statesystem. Serious injury or disease, for which the victim manages to pin theblame on a defendant in the tort system, is generously compensatable, for aswe shall see in Chapter 15, the principle underlying an award of damages intort is that of full compensation. The claimant is entitled to be compensatedunder a number of different heads of damage in appropriate cases. Inparticular, she is paid damages for the non-pecuniary losses sustained as aresult of the accident, as well as pecuniary losses, for example, loss ofearnings and medical expenses. Non-pecuniary losses include pain andsuffering and loss of amenity. A substantial element in any claim where theinjury or illness is severe will be a claim for future loss of earnings. As aconsequence, particularly where the claimant was a top earner before theaccident, a final award may be extremely high. The State system is nowherenear as generous, as the general principle underlying this scheme is toreplace lost income, and not to compensate normally for the non-pecuniaryloss favoured by the tort system. In addition, the State scheme falls far short ofreplacing all lost income and those in the higher income bracket can certainlynot expect generous treatment at the hands of the state benefits scheme. It istherefore without doubt the case that if tort law were to be abolished, in theabsence of a replacement scheme, it would be sorely missed by those whomight have been its beneficiaries. It is likely that the abolition of the tortsscheme will remain politically unacceptable. It is also unlikely that thepresent State benefits system would be enhanced in order to fill the gap.Consequently, it would be necessary to install a new system to compensatethe long term injured or ill who would otherwise have succeeded under tortlaw. Some form of no-fault scheme might fit the bill, but suggestions for itsintroduction in this country remain unheeded and are likely to remain so forthe foreseeable future.12 Financing such a scheme will always be a majorstumbling block, even though it may be the case that such a scheme would

Introduction

11

appear to be cheaper to run than the tort system, which is notoriouslyexpensive, especially in comparison with the State benefits system in thiscountry.13 We can conclude, therefore, that the main function of tort law,namely, its compensation mechanism would be sorely missed if the tortaction was removed from the legal catalogue of actions and no substitute wasput in place for it.

HUMAN RIGHTS

The protection of human rights would seem to lie at the forefront of issueswithin the remit of tort law, particularly in relation to the interest of personalsecurity and safety. Other matters, for example, such as the protection ofreputation and the countervailing right to freedom of speech have hithertofrequently been ventilated before the courts. The Human Rights Act 1998 isexpected to be in force this year, providing that legislation should beinterpreted, as far as possible, in a manner compatible with the EuropeanConvention on Human Rights. In addition, any public authority (whichincludes a court) must not act in a way which is incompatible withConvention rights. Its potential impact on the law of torts is not altogetherclear. There has been a sprinkling of cases already before the Act is in forcewhere the judges have had regard to Convention provisions in coming todecisions in cases. On the one hand, the Act will no doubt give fresh impetusto challenges to, for example, public authority and police immunities fromactions in negligence, as well as support popular clamour for a moreproactive approach to issues such as the right to privacy.

CONCLUSION

It is likely that tort law will be with us for some time to come more or less inits present form. There may, however, over time be some significant changesof approach following the Human Rights Act 1998. The following chapters ofthis book will cover the liability rules of tort law together with materials onthe available remedies as appropriate. As mentioned earlier in thisintroductory chapter, the book has been organised primarily on the basis thatthe torts can be grouped according to the extent of the blameworthiness of thepotential defendant. This is a rough and ready classification which is not

12 See the Pearson Commission, 1978, Cmnd 7054, and, of course, op cit, Atiyah, fn 6,generally.

13 See op cit, Atiyah, fn 6, Chap 17.


12

entirely satisfactory, but it at least should give some structure to the materials.It is proposed to start with the tort of negligence, which is the tort wider inscope than all the others and of course forms the basis of accidentcompensation in the UK. The initial negligence chapters will look at thegeneral principles, and will be followed by chapters dealing with areas ofparticular difficulty for the law of negligence, namely, liability for damage tofinancial interests, liability for psychiatric injury, and occupiers liability. It isthen proposed to look at the materials making up the torts falling under theheading of trespass to the person as an illustration of an intentional tort. Weshall then go on to consider the stricter liability torts, namely, nuisance,Rylands v Fletcher, product liability and liability relating to animals.Defamation, sticking out like a sore thumb, has a chapter to itself, as it isdifficult to categorise it as falling satisfactorily into one of the previousgroupings. The final chapters will consider vicarious liability and remedies.Defences, with the exception of volenti non fit injuria and contributorynegligence (which have their own chapter), will normally be dealt with in thecontext of the relevant torts.

13

CHAPTER 2

DUTY OF CARE

INTRODUCTION

The focus of this and the next six chapters will be the tort of negligence, themajor tort of the 20th century. Discussion of this area of tort law tends todominate most academic courses and this is also reflected in the treatment inthe textbooks on tort law. Negligence is the tort of all torts, arriving on thescene in any organised form at least, late on in our legal development, butimmediately threatening to take a stranglehold on the law of civil obligations.It has been perceived as a danger to the neighbouring law of contract, theuneasy relationship between these two areas of law being a persistent themein many of the cases, particularly those involving claims for financial harm.1Its impact on other torts cannot be ignored either, particularly nuisance2 andthe rule in Rylands v Fletcher.3

It should perhaps not be so surprising that the tort should have developedso rapidly in a post-industrial society, where technological change itself has beenso rapid, throwing up new problems on a regular basis, but also at the same timemassively increasing the numbers of older problems, particularly road and workrelated accidents. As society becomes more complex and technologicallyorientated, product liability claims become not only just more common but alsomore sophisticated. In addition, as society moves from a largely manufacturingbased economy to a services dominated one, there is a consequential increase inproblems arising from the provision of poor or inadequate services. The actionbased on the tort of negligence has been asked to deal with these types of issuesmore and more over recent years. It has so far had to bear the brunt of claims foraccident compensation as was outlined in Chapter 1 and perhaps it is not sosurprising that it is groaning under the pressure.4

THE ELEMENTS OF NEGLIGENCE

In this chapter, we are concerned with negligence as an independent tort,rather than negligence relating to the way or manner in which other legal

1 See Chapter 6.2 See Chapter 9.3 See Chapter 10.4 See Howarth, Negligence after Murphy: time to rethink (1991) 50 CLJ 58.


14

duties may be broken, for example, a negligent breach of contract or anegligent trespass to goods. In these instances, negligence is a word beingused to describe the conduct of the defendant where it might be lessconfusing to use the word careless. The tort of negligence involves morethan just careless behaviour, having developed a conceptual apparatus all ofits own to deal with problems of varying kinds. It is often said that negligencecomprises three elements: duty, breach and damage. The damage aspect issometimes broken down into the components of causation and remoteness. Itcan safely be said that all these elements are interrelated and fused togetherat times and confusion is often the inevitable result as far as the student isconcerned. Some of the confusion is, however, generated by the judiciary, asituation which is avoidable.5 Judges are often found talking about issues ofbreach of duty or causation instead of duty and vice versa. It is, however,convenient to attempt to discuss each of the elements in isolation from eachother, but it has to be remembered that the claimant has to show all threeelements are present before she can succeed in the tort of negligence.

It is proposed to deal with the duty issue first of all, although there is aschool of thought which believes that the breach issue should be consideredfirst. The reasoning behind this is that unless one understands the concept offault, that is, blameworthy conduct, then it is not very illuminating toconsider theoretical notions about whether a duty is owed by a defendant. Aswe shall see, if the claimant fails to establish that he is owed a duty of care, itdoes not matter whether the defendant has been careless or not, there is noliability. Likewise, if there is no breach, there is no liability even if, as a matterof law, it is a duty situation. Similar arguments relate to the damage aspect, ifthere is no damage, there is no liability in negligence. This does not reallytake us any further forward. The justification here for placing the duty issuefirst, is that in many cases hitherto the duty issue has been referred by thetrial court to the appeal court for resolution, before any evidence has beenheard. In these circumstances, the court is being asked to assume that thefacts as set out in the statement of claim are true and whether they disclose acause of action known to law. If the answer to this question is in the negative,the case need not proceed any further. This is the procedure in Scotland andis often adopted in England.6 If the answer is in the affirmative, the caseshould then be referred back to the trial court to hear the argument andevidence. However, once the decision on the duty issue has been resolved infavour of the claimant, a settlement may follow, as this may have been theonly substantial ground on which to defend the action. Even if it was not theonly issue of substance, nonetheless it is one less obstacle for the claimant toface at trial and may persuade the defendant that it is in his interests to offersuitable terms for settlement. The thinking lying behind this way of

5 See op cit, Howarth, fn 4.6 Donoghue v Stevenson [1932] AC 562; Anns v Merton London Borough Council [1978]

AC 728.

Duty of Care

15

proceeding, however, may have to be revised in the light of the decision of theEuropean Court of Human Rights in the Osman case7 and the enactment ofthe Human Rights Act 1988. Indeed, the influence of the case may be seenalready in some of the recent pronouncements of the House of Lords.8

The remainder of this chapter will consider this important duty issue.The two subsequent chapters will cover the other two no less importantelements making up the tort of negligence.

DUTY OF CARE

The claimant has to show that she is owed a duty outside contract or othertorts to take reasonable care for her safety or whatever other interest of hershas been damaged. If she fails to establish this, her case will be unsuccessfulno matter how careless the defendant has been and irrespective of whetherthat carelessness has brought about the damage to the interest in question.The duty concept is being used here to keep issues of liability firmly undercontrol. It is a control mechanism enabling a court to say whether or not thedamage claimed for is legally recognised. Another way of expressing it is interms of immunity from suit. If there is no notional duty on a carelessdefendant, then he is immune from action, despite his lack of care.Immunities are granted for certain types of loss, subject to exceptions, forexample, damage to financial interests. Liability for psychiatric harm isseverely restricted, as we shall see, so it might be said that this is an area ofpartial immunity. Other types of immunity are based on the status of thedefendant, for example, public authorities, the police, legal personnel,namely, judges and advocates etc and some in this category are consideredabsolute. There is general immunity in relation to the difficult area ofomissions, otherwise known as misfeasance. On the other hand, the law hasselected certain claimants as its favourite, the most obvious of these being therescuer.9

Lying beneath these significant immunities are value judgments by thejudiciary. The reasons for these particular choices are often obscured bynotions such as reasonable foreseeability, proximity, what is just andreasonable. However, it is more frequently the case that judges express theirreasons for denying or imposing liability in particular instances and many ofthese will be discussed in the cases extracted below.

7 Osman v UK [1999] 1 FLR 193.8 Eg, Barrett v Enfield London Borough Council [1999] 3 All ER 193, pp 198200, per Lord

Browne-Wilkinson.9 Described by Linden as the darling of the law: Rescuers and good Samaritans

(1971) 34 MLR 241.


16

The duty issue is dominated by the search for the Holy Grail, namely, thedesire to discover some general guiding principle which can be referred to innovel cases, where there is no existing precedent on the issue of whether thesituation in hand is a duty one or not and provide an answer one way or theother. It was fashionable some 60 years ago to question whether such a questis at all worthwhile. The experience of the last 20 years, chronicled below,may persuade some that it is worth reconsidering whether we need thecumbersome duty concept. After all, it is the case that the French and Dutchhave done without such a concept without any noticeable detriment either tothe coherence of their law or to the well being of their societies.10Nonetheless, we are still left with the concept which seems to take up adisproportionate amount of time in the appellate courts, at the same timegenerating much bewilderment amongst students and academics alike.

We shall briefly look at the position before the landmark case of Donoghuev Stevenson,11 consider the development of the duty concept following thatcase until the early 1980s and then, finally, the current situation.

Pre-1932

Before 1932, all that can be said is that there were specific situations where itwas recognised that some situations were duty situations and others werenot. As Street observed:12 The law originally developed in an empiricalmanner by decisions that in some particular circumstances there was a dutyand that in others there was none. The first real attempt to discover theelusive general principle lying behind the various cases was made by BrettMR in Heaven v Pender:13

The proposition which thes

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