tort summaries

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Seminar 2: Psychiatric Illness SUMMARY

-Law generally looked upon personal injury claims more favourably than psychiatric claims

- Idea being that we’re expected to deal with a certain amount of distress in life

- This imbalance was somewhat addressed in McLoughlin where a woman who wasn’t ‘directly

involved’ as such was allowed to claim for psychiatric injury. Some requirements are imposed to

keep claims down though. Namely proximity of relationship and proximity of time and space.

- This is taken further in Alcock where there’s a distinction drawn, with regards to psychiatric

injury suffered, between primary and secondary victims.

- Primary Victims – (Per Alcock, those involved mediately or immediately and includes rescuers.

Changed in White to those in the zone of foreseeable danger)

-Secondary victims – claims subject to stricter conditions

o Proximity of relationship (burden on C. Some relationships would have this assumed.

E.g. parent-child, spouses)

o Proximity of time and space (witness event or immediate aftermath – e.g. mcloughlin)

o Experience the event ‘unaided’; i.e. with your own senses (not on TV or through a TP.

E.g. McLoughlin she saw them before they were cleaned up. In Alcock, a claim by

someone who saw the primary victim in a morgue a few hours later, cleaned up as well,

failed)

o “Shock” (can’t be a gradual onset)

-Definition of primary victim refined in White. Becomes ‘zone of foreseeable danger’ (note the

concern to avoid differential treatment between police and bereaved relatives.

- The definition of primary victims may not be settled though

o W v Essex – class of primary victims isn’t closed

o Re Organ – Parents treated as primary victims

Analogy with doctor-patient relationship

The need to have some primary victim

- There is a further category of primary victim. This may be described as ‘being an unwitting

instrument of another’s negligence’. It applies in situations where C believes he has caused

another’s death or injury. This can only succeed if C was actually present when the death or

injury occurred. E.g. in Hunter , the owner of the mine was negligent in not having the minimum

safety clearance distance in the mine. C a driver struck a hydrant and when he was away getting

helped, someone else was killed by an explosion from the hydrant causing C to have a

psychiatric injury.



- Also, it seems that with regards to psychiatric injury for primary victims, only some physical

harm needs to be foreseeable. (see Page v Smith)

- But note how this was not followed in Grieves (RothwellI)

o Risk of physical harm wasn’t immediate

o Intervening event (medical report)

- Also, where the primary victim is the negligent defendant, he is not liable for any psychiatric

injury suffered by secondary victims (Greatorex v Greatorex )

Employees

- As White makes clear, there is no special protection for Employees as secondary victims

- However, as stated in Hatton/Barber (CA) and confirmed by Barber (HL), where an employee has

suffered PI from stress at work, it is not necessary to show that the employee was within the

primary/secondary requirements to establish a DoC.

-Rather, it needs to be shown that the PI was reasonably foreseeable for the specific employee.And without more, employers were entitled to assume employees could deal with everyday

stresses. (Note how they seemingly had ‘notice’ in Barber (HL))

- In Hartman the CA say that even though there may be some superficial difference between the

language used by HL and CA in the Barber cases, that difference isn’t important.

- The basic principles are still whether the PI was foreseeable because if it was, a DoC arises and

the focus has to be on whether the employer has breached that duty. (So this is the basic

importance of Hartman confirming Hatton and stuff)

- One of the Hartman cases is Melville which is particularly important as it shows that the division

between the primary/secondary classification and the employee stress at work cases isn’t a neat

division.

o Note the distributive justice point

Prisoners

- It is clear from the nature of the relationship that prisons owe prisoners a duty of care to ensure

their health and safety. The question is then whether D knew or ought to have known that C

was a prisoner vulnerable to psychiatric harm, taking account of inevitable constraints imposed

by what was reasonably practicable In a prison community.



Seminar 3: Pure Economic Loss SUMMARY:

-The law doesn’t like claims for PEL (Spartan Steel )

o We specifically try to cause economic loss often

o Idea of what we should bear

o Burden sharing theory

o There might be ‘unlimited liability’

- Broadly, there are 4 categories we see PEL

1. ‘relational’ economic loss (economic loss caused by damage to property of another party – e.g.

Spartan Steel

General rule against liability

2.

Economic loss caused by acquiring a product that turns out to be defective (Murphy )

Generally, there’s no liability but note the room for argument in murphy

With regards to latent/patent distinction, note Targett v Torfaen Borough Council [1992]

3 All ER 27

3. Economic loss caused by reliance on negligent misstatement (Hedley Byrne)

4. ‘Extended’ Hedley Byrne Liability (Cases after hb)

- With regards to category 3, we see in HB this idea of:

o

A voluntary assumption of responsibility (making a statement knowing it will be reliedon)

o Reasonable reliance on the statement

- In Smith v Bush, this idea seems to be distorted and a new test is suggested to fit the facts

- This essentially becomes the 3-stage Caparo test

o Foreseeability (harm)

o Proximity (relationship)

o FJR (liability)

-In later cases however, we see a resurgence of this ‘assumption of responsibility’ idea (seeespecially Lord Bridge in Spring, Henderson and White). Nonetheless, it is now clear that the

assumption is not voluntary, but objective (see especially William)

- There was thus a conflict then in the test for a DoC in relation to economic loss which had to be

resolved. The CA wrestled with the difficulty, saying that they were alternative tests which



should lead to the same result and even going so far as to say the ‘assumption of responsibility’

had merged with Caparo (Merrett )

- Broadly, after Customs and Excise v Barclays, it seems you apply the ‘assumption of

responsibility’ first and that may be sufficient (though there is debate over whether you are

applying one test first followed by the wider one or whether the tests have indeed merged but a

finding of this assumption means that it is FJR). Should that fail, you apply the wider Caparo test.

So after Customs excise, in general with regards to PEL:

1. There is actually no overarching exclusionary rule for PEL but rather, two specific exclusions for

categories 1 and 2. Even then, the exclusion for category 1 can seem arbitrary and while

category 2 has more concrete reasons, note that they are doubted and also, the issues with

Murphy

2. Outside the scope of the exclusionary rules, additional criteria will apply in addition to

foreseeability.

3. If a ‘voluntary assumption of responsibility’ is present, it may suffice without separate

consideration of policy issues

4. If the assumption of responsibility is not present, the three stage Caparo test may nevertheless

be satisfied. But note that in such cases, policy considerations will be especially important. (per

Lord Bingham in Customs Excise “the ‘fair, just, and reasonable criterion’ can be frankly and

openly reassessed in terms of ‘policy’”



Seminar 4: Duty of Care 3 – Omissions Summary

-No general duty to act in English law (Stovin v Wise)

- A good way to tell the difference between an act and omission is whether the defendant made

things worse (which would be an act and thus potentially have liability) or whether he merely

did not make things better

- There are nonetheless exceptions to this rule such as when you undertake responsibility to act

o This is explicitly not the case for the fire department (Capital and Counties)

No policy reasons to impose duty at time of answering call

Policy reasons (conflicting interests) against duty at time of arrival

Unstated reason? Insurance

o

However, it seems to be so for the ambulance service (Kent )

No conflicting interests once allocated to a call. Nonetheless, even if there are

there’d still be a duty

o The distinction between the above 2 is unsatisfactory and in Van Colle, Bingham

suggests that the reason may be that one deals with personal injury and another with

property. So is there a duty if the fire service is called to rescue someone?

o Where someone is clearly in a very bad state and you make some motion of helping

them (Barrett )

o Perhaps employers and employees? (wide reading of Jebson)

o Something in the nature of organising an activity for servicemen (narrow reading of

Jebson)

o Prison officers and prison guards (Reeves)

o Occupiers of land and visitors (Goldman. Note how special cost considerations may arise

here)

- With regards to liability for the acts of third parties again, the general rule is that there is no DoC

owed. However there are some exceptions.

o Home Office v Dorset Yacht ; where D has a high degree of control over the TP. Note that

the category approach was favoured by the majority here. (but it is still unsettled here)

o Smith v Littlewoods; the majority favoured a foreseeability approach. Lord Goff firmly

took a category approach and suggested a few categories to consider.

High degree of control

Assumption of responsibility

Where D has created a dangerous situation but is negligent allowing the TP’s to

‘realise the danger’ (or make the danger materialise essentially)

o Mitchell ; adopted Lord Goff’s reasoning in Smith. So it seems the mere foreseeability

approach is gone.



Seminar 5: Duty of care 4: public

authorities Problem question

- Test from Carthy

o Step one: whether the case is justiciable

o Step two: applying the Caparo test

- When explaining what justiciability means, it certainly would do no harm to demonstrate you

understand that the concept of justiciability has two aspects. The constitutional theory side of it

that LJ laws brings out in connor but also, the more pragmatic side to it. The idea being there are

certain things a court isn’t very well placed to decide on.

Justiciability test

- Carthy v Croydon is probably the best case for PA liability

- The dominant strand for the test is a kind of line that emphasises that it isn’t practicably sensible

for a court to try to go into questions of political allocation of funding, resource allocation etc…

o So that’s the idea that something isn’t suited for judicial resolution

o In Connor , LJ laws highlights there’s another dimension of justiciability which doesn’t get

highlighted in many bases but which laws thinks was at the back of LBW’s mind in X

o The idea that as a matter of constitutional convention/law, courts cannot challenge

decisions made under parliamentary authority. E.g. if parliament enacts a statute

allowing the LA to decide how much to allocate to schools in an area, that decision is

protected by what Laws called an immunity

o So that’s a side to justiciability which hadn’t really got much prominence prior to Connor

o So when talking about justiciability, the case-law is very much focused on the pragmatic

side. But now, we also need to take account of the fact that it isn’t a very sort of

pragmatic doctrine (at least if Laws is right)

- So we shouldn't use the tests in X and Barrett for justiciability anymore. Those cases are best

seen as the courts trying to paraphrase the idea of justiciability. They’re trying to come up with a

more precise legal test for it but, for the reasons discussed, there are problems with those tests

and ultimately, you come back to the fact of this core idea of justiciability and ultimately, it

seems we can’t do much better than justiciability as a test.



Seminar 6: Breach of duty and causation

1 SUMARRY

- You typically have a breach of duty where D has been negligent. Per Blyth v Birmingham

Waterworks negligence is doing something a RP person wouldn’t or not doing something a

reasonable person would.

- When we talk about the RP here, we mean it is judged from an objective standard (Nettleship v

Weston) taking into account the context (Wooldrige v Summer, Blake v Galloway ), and without

the benefit of hindsight (Roe v Minister of Health)

- However, certain characteristics of the particular D can be taken into account. Notably:

o Age, especially young age (Mullins v Richards)

o

Profession (Phillips)

o Disability (Weetabix )

- When considering the factors a RP would take into account, there are 4 main things we look at

o Likelihood of harm occurring (Bolton v Stone, The Wagon Mound (no 2), Whippey v

Jones)

o Gravity of the harm (Paris)

o Cost and practicability of precautions (Latimer v AEC )

o Purpose (so socially desirable purposes will have a lower standard of duty owed to C –

Watt; nb. Compensation Act 2006 s1)

- Note also the specific issues regarding breach of duty concerning professionals

o

Bolam and Bolitho

- Also take note of the learned hand formula

SUMMARY

- Starting point is ‘but for’ causation (Barnett )

- There is an exception where D was responsible for a material contribution to the damage

(Bonnington)

- There is a further exception where D is responsible for a material increase in risk of damage

(Barker but also important are the cases leading up to Barker )

o

McGhee – material increase in risk of damage was sufficient for liabilityo Wilsher – material increase of risk was not sufficient. McGhee reinterpreted

o Fairchild – Essentially follows McGhee and says that a material increase in risk of

damage was sufficient and while they reject the Wilsher analysis, they approve the

result

- Barker – resolves the tension between Fairchild and Mcghee somewhat



o Says that D can be liable when responsible for a material risk in increase of damage

regardless of whether all the sources of exposure were negligent

o However, they favoured ‘proportionate liability’ which per Lord Rodgers reasoning

seems to make this not an exception to ‘but for’ causation but a new form of causation

o Importantly, to use the Fairchild exception, it seems you need

Scientific uncertainty

Same causal agent/mechanism



7: Causation 2 and remoteness Summary

(1) Causation 2

(A) Loss of a change

- Loss of a change is not sufficient to warrant an actionable claim (Hotson)

- Confirmed in Gregg v Scott but with a particularly strong dissent this time. There are legitimate

concerns against allowing it though.

o Might mean a push for all claims to be based on ‘proportionate liability’

o Floodgates

o Statistics aren’t perfect but at least with BoP, you have a greater change of getting it

right.

(B) Intervening Acts

- In Empress Car Co, Lord Hoffman says there are 2 strong indicators to look out for (to see when

an intervening act breaks the chain of causation)

o Deliberate voluntary acts

o Extraordinary natural events

- With regards to negligent acts, it seems that the original defendant will be responsible for injury

and damage which are the natural and probably results of the initial wrongful act; he will also be

liable where the intervening act is the one he should have foreseen.

-Broadly, there are three main points to look out for when considering whether a negligent actbreaks the chain of causation

o Where allowing an intervening act to break the chain will make the duty itself

redundant (Reeves)

o Where the negligent act(s) is/are quite stupid or extraordinary (Knightley v Johns)

o Where an act of a claimant is entirely unreasonably in all the circumstances (McKew v

Holland & Hannen & Cubitts, Spencer v Wincanton Holdings)

(2) Remoteness

- The main link between damage and liability is that the type of damage must be foreseeable (The

Wagon Mound (No 1))

- It is sufficient to foresee the type of harm, not the magnitude of harm: this is essentially the

‘egg-shell’ skull rule (Smith v Leech Brain & Co)

- It is sufficient that you foresee that that type of harm may come about, even if you don’t

foresee the exact method in which it comes about (Hughes v Lord Advocate, Jolley v Sutton)



- It can be tricky to determine what counts as merely the magnitude of harm and what counts as

a different type of harm altogether. Courts seem to take a wide interpretation of the extent of

harm. (Corr v IBC , Page v Smith)



SEMINAR 8: DEFENCES TO NEGLIGENCE

CLAIMS Summary

3 main defences

- Consent (Volenti )

- Contributory negligence

- Illegality (some dispute as to whether it’s a defence)

Consent

- Easiest way is to see if there’s some express consent. Consent to the risk is not the same as

knowledge of the risk (Woodley v metropolitan district railway )

- Where the consent is not express, courts have indicated there are 2 main situations in which it

can be inferred (Dann)

o Implied consent to the risk; (more) objective standard (Shatwell )

o Deciding to enter an obviously dangerous situation (Morris)

Subjective test (Morris and Corr )

Also in situations witch large groups, particularly sporting events, it might make

more sense to lower the standard of care rather than enquiring into the

individual’s state of mind (Wooldridge)

Contributory negligence

- Covered by the Law Reform (Contributory Negligence) Act 1945

o S1 – explains the workings

o S4 – defines fault (essentially uses breach of duty analysis)

o Pre-1945, contributory negligence was a complete defence. This was somewhat

mitigated by the ‘last opportunity’ doctrine.

- So first to work, both parties actually have to have contributed.

o Fault essentially uses a breach of duty analysis (E.g. in Gough, it was reasonable for the

girl to rely on the directions of the lorry driver and thus, she didn’t contribute) o Also, with regards to ‘contributed’, there is a different concept of causation. You look at

whether C’s act has been relegated to history and if so, there’s no causation ( Jones)

- And the court then makes an award that is ‘fair and just’

o E.g. if one part is ‘more careless’ than the other, the award is adjusted to reflect that

(Froom v Butcher )



- The problem with contributory negligence is deciding how responsible each party is. Denning

suggests some guidelines in Froom but they aren’t really followed so really it’s up to the judge.

Illegality (4 theories on it)

- It is unfair to allow an illegality defence where C would otherwise be entitled to compensation

at law (Revill )

o It is likely that this now isn’t going to be persuasive because it takes this view that

illegality is irrelevant to tort liability and does so for reasons no one’s found convincing.

In particular, this emphasis on OLA 84. i.e. because trespassers can claim, parliament

wanted liability towards criminals.

o It’s possible to have trespassers who lack the mens rea to be criminals.

- Illegality comes in at the stage of deciding whether a DoC exists as something to be considered

under stage 3 of the Caparo test (Only taken by Sedley LJ in Vellino and not really pursued since)

- Illegality alters the standard of care C is entitled to expect (Pitts v Hunt )

- There is an illegality defence (Majority in Vellino. Gray v Thames Trains: note the broad and

narrow interpretations)

Illegality problem question

- Start with Gray and apply the narrow and broad interpretation.

o Narrow: C shouldn't be allowed to recover for the consequences of a criminal sanction

o Broad: C can’t claim where the illegality caused the damage.

- Note also how though speeches in Gray suggest this is the extent of the defence; it must surely

still be the case that you cannot recover damages when you are relying on your own illegality to

do so.

-Note also Hoffman in Gray and the possible need to distinguish between illegality causing thedamage and illegality merely creating the opportunity for the damage to be suffered.



SEMINAR 9: OCCUPIER’S LIABILITY SUMMARY

-Pre 1957, the law on OL was a mess. 4 different categories and the lines were getting blurredetc. No duty owed to trespassers and different duties for the rest

- OL Act 1957 to attempt to codify and harmonise

o Occupier – someone who exerts a reasonable degree of control over the premises

(wheat v lacon)

o Visitor – s1(2); invitees, licensees, contractors (licenses can be implied – Glasgow corp)

o Duty owed? A common duty to take care to ensure reasonable safety. (s2(1), (2) to all

visitors, which can be modified by agreement and to the extent they are allowed in the

premises) in respect of dangers arising from the premises and things done or not

done(s1(1))

Fairchild – seems to draw a distinction between activities done on the premises

and the sort of static state of the premises saying only the latter is covered Tomlinson – distinction drawn between risks due to the (static) state of the

premises and risks due to the acts of the claimant

o Exceptions to the common duty

Children (s2(3)(a)) – suggests a higher standard might be owed

Phipps – if the kids are/ought to be supervised, that is enough to require

only the standard duty (won’t always apply and means the duty may

vary by area)

Jolley – example of a higher standard being owed. Also useful for RoD.

People exercising their calling (s2(3)(b)). Note the lingering question of the

scope of ‘their calling’

Warning signs (s2(4)(a)) – enough to make the premises ‘reasonably safe’

Darby – the area was reasonably safe and though there was an extra

risk of disease which was not adequately warned off, it was not relevant

to the death of the claimant and thus not explored

Independent contractors

Haseldine; reasonable reliance

Gwilliam; reasonable reliance can extend to checking insurance

Payling; seems gwilliam is rare. Requirement may exist with regards to

one-off contracts as opposed to recurring ones but even if it does, it is

only as to enquire whether the contractor has insurance not to take

further steps

- Old CL positions remained for trespassers. 2 qualifications though

o

Doctrine of allurement (Glasgow corp)o Duty of common humanity (british railways board )

- Law with regards to trespassers changed by the Occupier’s liability act 1984

o If D is aware of the danger, knows or has reason to believe C will encounter the danger,

and the danger is one which he might be expected to protect against… Then, he has a

duty to take reasonable care to ensure C doesn’t suffer the risk

o Donoghue v Folkstone – The act is limited to the particular claimant and the particular

circumstances



o Tomlinson – all the circumstances to be taken into account including freedom of the

individual to do something dangerous and freedom to factor in other factors in deciding

not to put up signs or damage a potentially beautiful place (fight back against a

compensation culture)



Seminar 10: Product Liability Summary

CPA 1987

- S1(2) Meaning of producer and product

(a) Manufacturer

(b) Person who won/abstracted it

(c) Subjected it to an industrial process (e.g. in relation to agricultural produce)

o “Product” means any good or electricity and includes products comprised in others

whether they be raw materials or manufactured

- S2(2) Liability for defective products

(a) Producer

(b)

Those who hold themselves out to be a producer (e.g. Supermarket brands)(c) Those who import into the EU from outside it for the purpose of supplying it

- S2(3) Suppliers may be liable if they fail to give information about those higher up the supply

chain

- S3(meaning of defect)

(1) Safety is not such as persons are reasonably entitled to expect

(2) In deciding what they are reasonably entitled to expect, regard shall be had to all the

circumstances including

(a) The way the product was marketed including warnings and instructions

(b) What might reasonably be expected to be done with the product

(c)

Time of supply- S4 (defences)

(d) Defect did not exist at the time

(e) State of the art

- S6(4); contributory negligence applies

Application of the Act

A v National Blood Authority

- There was liability. Blood was a product as it was produced and supplied

o

Need not be for profito Act not limited to ‘traditional products’

- Seemed to ‘read down the act’. He affirms strict liability but goes on to say that though s3(2)

says ‘all the circumstances’ to maintain strict liability, and to avoid it slipping into a test of

negligence, only ‘relevant circumstances’ should be considered and things like avoidability and

social purpose should be disregarded.



o Mothercare (elastic strap snapped back causing an eye injury) – One of the reasons for

liability was avoidability. That D could have done more testing, and thus discovered this

risk and avoided the accident

o McDonalds (burn due to coffee served at a negligently hot temperature. The claim being

that if it were a few degrees cooler the risk was greatly reduced) Held that there was a

social benefit in it being served hot.

- Said that first, one has to identify whether the product is a standard or non-standard product.

Non-standard product

- Product which does not meet the producer’s own standards

- Almost always going to be liability

- Unless there’s something in the expectation of consumers generally that prevents liability

- Richardson (defective condom leading to unwanted pregnancy) No liability

Standard Product

- Meets the producer’s specifications. The issue then is with finding a comparator

- General standards?

o Palmer v Palmer ; inadequate instructions render a seat-belt device defective by failing

to warn against perils of creating slackness in the belt

- Industry Standards?

o Pollard v Tesco (child-resistant capo was opened by an unsupervised toddler who then

suffered damage); Held that what people were entitled to expect generally was that a

safety cap would be harder to open than a normal one and indeed that was the case

here. The fact that it did not comply with the British Standard torque measure was not

an issue. If not the act wouldn't be what people were entitled to expect but would be astandard measure

o So it is clear that the obvious comparator is then going to be a similar product by a

different manufacturer

Going to have to attack the design process. All manufacturers make different

choices for form/cost reasons.

- Products providing information?

o No conclusive ruling yet

Defences and specifically, s4(1)(e) – the state of the art defence

- Tried in A v national blood authority

o Clarifies that the defence relates to risk that could not have been foreseen not those

that were known but nothing could be done about

o Note the obiter comments limiting the ‘Manchurian exception’ to documents/research

that was unpublished

- Tried in Mothercare



o Held that the non-discovery of the defect was not due to a scientific or technical

limitation and with further practical testing, could have been discovered

- European Commission v UK

o The directives article 7(e) is clear this defence is to be objective. There was some

concern that the phraseology in the UK statute made it turn on the producer’s

subjective assessment.

o The AG’s opinion

It is not a question of industry standards of safety or practicability of taking the

steps

Has to do with the knowledge of experts in the sector

Scientific knowledge is not linear, and we’re concerned with the most

‘advanced’ knowledge

With regards to accessibility, he thought that perhaps some research carried out

by an academic in Manchuria published in a local scientific journal in Chinese,

which does not go outside the boundaries of the region might be a valid

exception

o The court’s judgment

It is clear that the test need to be objective but also, that the information need

to be accessible at the time. S4(1)(e) doesn’t obviously fail to do so and there’s

no reason to think the UK won’t interpret it in line with the directives.



Seminar 11: Private Nuisance Summary

-

Private nuisance is the unreasonably interference with the claimant’s enjoyment of his or her

land

(A) A tort against land

- It is a tort against land. Said in St Helen’s Smelting Co v Tipping. HL in Hunter v Canary Wharf

reaffirms that both physical damage to land and amenity damage count.

o Consequently, only those with a proprietary interest in the land can sue.

But note Khorasandjian (licensee granted standing), McKenna (suggested HRA

and art 8 might come into play), and Khatun (broad definition of home for the

purposes of art 8)

(B) Reasonable user

- Certain common sense factors to be considered

o Extent of the interference

o Duration of the interference

o The timing, particularly with regards to noise

- Beyond that, there are certain specific categories we need to think about

o Locality/coming to the nuisance

o Sensitive claimants

o

Maliceo Public benefit, statutory authority, planning permission

Locality/coming to the nuisance

- Locality is only relevant in the case of Amenity damage (St Helen’s)

- What might constitute a nuisance in one area might not in another (Sturges v Brigdman)

- Planning permission can change the nature of a locality (Gillingham DC , Watson v Croft-Promo)

- It is not a defence to say that something was always done (Sturges, Miller v Jackson)

- However, the fact that C is ‘coming to the nuisance’ might affect the remedy (Miller )

Sensitive claimants

- The classic approach was that an otherwise reasonable interference would not become

unreasonable merely because the claimant was sensitive (Robinson v Klivert )

- More recently however, the CA suggested that foreseeability should be taken into account and if

it was reasonably foreseeable to D that he might affect C, then it might constitute a nuisance

(Network Rail Infrastructure v Morris)



Malice

- If an act is motivated by malice, that may turn a reasonable interference into an unreasonable

one (Christie v Davey, Hollywood Silver Fox Farm v Emmett )

- However, we do have the case of Bradford Crop v Pickles which is potentially hard to reconcile

o

Olliphant suggest that the best explanation is suggested in Winfield. Namely, that wherethe right is an absolute one, motive is irrelevant. However, where it is a relative right

(e.g. noise/smell), motive is relevant

Public benefit

- Without more, the mere fact that an act is for the public utility does not prevent it from being a

nuisance (Bamford v Turnley )

- However, there are suggestions that the court will consider it when assessing whether the use

of the land is reasonable

- Further, it may affected the remedy (Dennis v MoD)

Statutory Authority

- Acts which are expressly authorised by statutes will only be a nuisance if done negligently

- ‘expressly authorised’ in this context means it is an inevitable consequence of carrying out the

statutorily permitted activity ( Allen v Gulf Oil Refining)

o Thus with this area, the question is often one of statutory construction/interpretation

Planning Permission

- Planning permission can change the character of an area and the reasonableness of the user will

have to be assessed by reference to the new character (Gillingham DC v Medway Dock Co)o There was some suggestion that the judge meant perhaps something wider however it

was made clear in Hunter that the comments were limited to the above principle.

- If planning permission is held not to change the character, the fact that permission was granted

in itself does not prevent the act from being a nuisance. (Wheeler v JJ Saunders – intensification

of pig farming caused it to amount to a nuisance despite the planning permission)

(c) Foreseeability and Fault

Where D creates the nuisance

-

Cambridge Water Co Ltd v Eastern Counties Leather o Here, it is mentioned that when seeking an injunction, the question of fault is irrelevant

as D already knows his act is causing C inconvenience so the only question is whether he

amounts to an unreasonable user of land

o It is almost made clear that it is not necessary to establish a failure to take care in

carrying out an activity on the land for a claim in nuisance.



o Nonetheless, it is possible to construe it as a form of fault based liability as a defendant

will only be liable for reasonable foreseeable consequences (even as an unreasonable

user)

o Note that an alternative view is that there is really no difference between the fault

requirements in negligence and in nuisance, at least insofar as damages are sought

rather than an injunction.

- Delware Mansions ltd v Westminister (liability for encroaching tree roots)

o This is one of the cases where it’s recognised that the occupier of land may owe a duty

to act positively to prevent harm to his neighbour. Lord Cooke says at 333 “The label of

nuisance or negligence is treated as of no real significance. In this field, I think the

concern of the common law lies on working out the fair and just content and incidents

of a neighbour’s duty rather than affixing a label and inferring the extent of the duty

form it.”

o Also, in the case the damage is described as being caused by a nuisance but in reality, it

would be negligence as well and further, damage is determined according to negligence.

-

Network Rail Infrastructure v Morris

o Here, D did not amount to an unreasonable user of land as the interference was not

reasonably foreseeable (so clearly suggests it is fault based in their view here)

Third parties/natural events

- It is established that a nuisance is continued or adopted if the defendant knew or ought to have

known of the existence or the possibility of a nuisance on his land and failed to take reasonable

steps to bring the nuisance to an end. (So very much fault-based)

- An occupier of land can owe a duty to his neighbour to remove any hazards, whether natural or

man-made. The duty is based on the occupier’s knowledge of the hazard and foresight of damage to his neighbour if the failed to act. The standard of care required of the occupier was

what it was reasonable to expect of him in his circumstances. The PC was clearly of the opinion

here that liability arose in negligence. (Goldman v Hargrave)

o Note: since the duty to act was imposed on the occupier, the individual resources of the

occupier were to be considered in assessing whether his response was reasonable

(Goldman, Leakey v National Trust )

NB. The result of these cases is that where the alleged nuisance is caused by a natural occurrence, an

action may be commenced in either nuisance or negligence, but that liability will be determined

according to the principles applicable to the law of negligence.

The only exception is where the damage C alleges is not sufficient to found an action in negligence but

would be in nuisance.

(d) The rule in Rylands v Fletcher (1886)

1. ‘dangerous thing’ (likely to cause damage if it escapes)

2. Accumulation/ non-natural use of the land



3. Escape

4. Cause damage

Dangerous thing

- Likely to cause damage. Rationale for the rule is if a person brings something on his land for his

own benefit, he should keep it at his peril. (Rylands)

Non-natural use

- In Rylands the suggestion seems to be that it is accumulated and that D is responsible for

anything besides natural processes (which is what the accumulation would be). One judge

described it as ‘non-natural use’

- It seems to be the case now that the use of the land must be something quite extraordinary or

unusual (Read v Lyons, Transco v Stockport )

o Just to drive home the point that it requires an exception risk, one of the judges in

Transco pointed to the fact that insurance was available for damage caused by leakingwater to property to show that the risk was unexceptional.

Liability

- Liability is technically strict however, as Lord Goff makes clear in Cambridge Water , it is only

strict insofar as D is liable even if he has taken great care and precautions in preventing the

escape.

- Nonetheless, D is still only liable for damage that is reasonably foreseeable (draws on Wagon

Mound (No 1) so type of damage only)

Note: There is no liability where the escape is due to TP’s or acts of god



Seminar 12: Intentional interference

with the person Summary

(1) Cause of Action

(A) Meaning of Intention

- HL specifically refused a woolin style intent recognising that the purposes of the 2 strands of law

were different. If anything though, one would imagine tort would have a wider definition

(B) Assault

- To cause another person to apprehend the infliction of immediate unlawful force on his person

-

Note that the apprehension need only be reasonable and not an actual possibility (Stephens v Myers)

- As for the immediacy requirement, take note that even silence can constitute an assault (R v

Ireland – note that it is contextual as well. Phone call therefore D can be anywhere including

right in the immediate vicinity)

(C) Battery

- The intentional and direct unlawful application of force to a person

- Note that though a hostility requirement was suggested in Wilson v Pringle, this was

d isapproved by HL in Re F .

- A positive act is required. (Innes v Wylie)

-

With regards to directness, this is absent in the criminal law. It is uncertain whether trap casessuffice for the tort. Case law seems to indicate t the danger must be created in a relatively short

time period before the damage for it to be actionable.

(D) Intentional infliction of physical or emotional harm

Wilkinson v Downton

- A person who has “wilfully done an act calculated to cause physical harm to the claimant and

has in fact thereby caused physical harm to her” has provided a good cause of action. (Wilkinson

v Downton)

o Harm needs to be specifically intended (as opposed to intending the application of

force)o Damage needs to be suffered (As opposed to assault and battery which are actionable

‘per se’)

- In Khorasandjian v Bush (1993), the CA grant an injunction on the basis of Wilkinson to prevent

the tort happening (c would have suffered damage due to the stalking and harassment)

o It seemed like Wilkinson might grow into a useful tort however the need for it to grow

has been reduced by the Protection from Harassment Act 1997

Protection from Harassment Act 1997 ss1, 3, 7



- Section 1 prohibits a course of conduct which amounts to or he ought to know amounts to

harassment (which would be if a reasonable person in possession of the same information

would think it amounted to harassment)

- Importantly, per s7(3), a “course of conduct” must involve conduct on at least two occasions

- S3 allows for civil remedies such as damages and an injunction. It also makes it a criminal

offence.

o Importantly, s3 allows claims for actual or apprehended breaches of s1

- In Majrowski v Guy’s and St Thomas’ NHS Trust (2007), Lord Nicholls was clear that there was a

certain amount of irritations and such in everyday life and that for conduct to amount to

harassment, it’d have to be “oppressive and unacceptable” and “the gravity of the misconduct

must be of an order which would sustain criminal liability under s2”

o Here the HL also confirms that the tort imposes vicarious liability

- In Ferguson v British Gas Trading, these ideas were reaffirmed, namely, that individuals are

expected to tolerate a certain amount of annoyance and “the impugned course of conduct had

to be grave, in that it was oppressive and unacceptable before either the criminal or civil law

would intervene”

o This case also highlights how the act is drafted broadly enough to take account of all

sorts of harassments and is not limited to stalkers or threats of violence.- The mental element required for liability under the act is that of subjective recklessness

(Wainwright v Home Office (CA) - Lord Woolf)

o Note that one of the judges thought objective recklessness would suffice however, given

that the criminal law reverted to fully subjective recklessness after R v G [2003], and

that the criminal liability and civil liability under the Act seem intertwined, that the

liability is subjective seems fairly certain.

The Role of Wilkinson Today (Mostly from Wainwright v Home Office (HL))

- Lord Hoffman stresses that the scope of Wilkinson has been reduced today

- At the time, there was no liability for psychiatric injury generally however that is no longer the

case- Lord Hoffman personally feels that Wilkinson should’ve been swept into the law of negligence

o Nonetheless, he does not rule out the potential of a tort based on or amending

Wilkinson which would cover ground not currently protected by the law of negligence or

the Protection from Harassment Act.

This would have to be a non-recognised psychiatric injury such as grief

And would have to be the result of a one-off incident

o He goes on to say that if you did have such a tort, you’d have to be very careful as to

how you defined intention (and seemed to suggest actual intention would be required

and that recklessness wouldn't suffice)

- Also, Lord Scott was unequivocally opposed to the idea that the infliction of humiliation and

distress by conduct calculated to humiliate and cause distress was, without more, tortious at CL.

(2) Defences

(A) Consent

1. C must have capacity co consent

o Re MB – C must be capable of understanding and retaining the information and using it

in making a decision



o Gillick v Department of Health makes clear that with regards to to children, steps must

be taken to ensure they know of the wider significance

2. Consent must be real (C must understand the broad nature of the touching)

o Chatterton: Broadly, the idea here is that the consent must be obtained by fraud or

misrepresentation to prevent it from being real. (has to go beyond mere carelessness)

o So a failure to give full information about risks for instances would go to negligence not

battery.

o Only misinformation that meant you no longer understand the broad nature of the act

would suffice (highlighted by R v Dica – the lack of knowledge of HIV didn’t vitiate

consent to the sexual intercourse)

3. The consent must cover the application of force (the touching)

o Example of the boy being circumcised due to maladministration when he was meant to

merely have his tonsils removed.

o Blake v Galloway : “In a sport which inevitably involves the risk of some physical contact,

the participants are taken impliedly to consent to those risks which can reasonably be

expected to occur in the course of the game, and to assume the risk of injury from such

contacts… But they do not assume the “the risk of a savage blow out of all proportion to

the occasion. The man who strikes a blow of such severity is liable in damages unless hecan prove accident or self-defence””

(B) Self-defence

- A person may use such force as is reasonable (objective standard) to protect against an actual or

perceived threat of harm (though there has to be a reasonable belief in the existence of the

threat) against themselves or another person. The force used must be proportionate to the

threat.

o Note that in the criminal law, the belief in the threat needs to be an ACTUAL, honest

belief, it need not be REASONABLE

- Ashley v Chief Constable of Sussex Police (HL invited to import criminal standard) but refused to

do so as it would be wholly inappropriate given the different functions of the 2 strands of thelaw.

o There needs to be a reasonable belief to the existence of the threat (Lord Goff)

Lords Scott, Rodger and Neuberger left open the question of whether even a

reasonable belief in the existence of the threat should be sufficient to found the

defence. (as opposed to the objective existence of the threat)

o C must also show that the response to the threat was proportionate.

L&O:

Problems -

- However, if the consent analogy had been taken further, it would have supported the view

that even a reasonable belief would NOT be SUFFICIENT.

- It is no defence to a claim in battery that D reasonably thought that C was consenting unless

perhaps C induces D to believe that he/she is consenting.



- Why should a surgeon who mistakenly but reasonably believes she has consent to operate on a

patient commit a battery VS a police officer who deliberately shoots another in the mistaken but

reasonable belief that he is under attack has a defence?

- Note: S329 of the Criminal Justice Act 2003 applies to both private individuals and the police –

provide a defence to an action for trespass to the person where C was convicted of animprisonable offence on the same occasion as the conduct alleged to amount to trespass to the

person. Should this similar treatment to police also apply to tort?

- Seems to be NO reason for self-defence to stand alone amongst the other defences (of

battery) in allowing a reasonable belief to found the defence.

If the test is set up as what a reasonable person in the position of D would have reasonably concluded

given what he ACTUALLY knew about the situation (objective):

- Complication of the test: whether we take into account what D OUGHT TO have known?

(subjective)

Even if it is taken to be sufficient, what factors can be taken into account to determine reasonableness?

Difficulties arise when the mistake is induced by the conduct of 3RD

PARTIES, that is to make you

perceive a threat that otherwise you wouldn’t have perceived it.

- Here, it was due to the briefing to the police officers by the police force. Should you be allowed

to have such a defence based on information by a 3 rd party, such that you will perceive a threat

when otherwise you would not have perceived such a threat? No.

- If it is allowed, it would be contrary to the rules that apply to the defence of consent : it is no

defence to an action for battery for a surgeon to say that he reasonably thought, as a result of a

clerical error by hospital staff, that a consent form had been signed if it had not.

Response to the threat must be Proportionate:

- Lane v Holloway: 64 year old C struck 23 year old D on the shoulder, and D responded by hitting

C in the eye with such severity that he was in hospital for a month

- CA held that the blow was out of all proportion to the original act of C = no defence of consent

or self-defence was applicable

(C)Capacity/Necessity

Mental Capacity Act 2005 ss1-6, 24-27

S1 – the principles



- People are to be assumed to have capacity unless it’s established they don’t (having taken all

reasonable steps etc… also, you can’t assume lack of capacity from an unwise decision (e.g. Re

B))

S2 – People who lack capacity

- A person lacks capacity in relation to a matter if at the material time he is unable to make a

decision for himself in relation to the matter because of an impairment of, or a disturbance in

the function of, the mind or brain

S3 – Inability to make decisions (unable to understand, retain, use and weigh information. Or, to

communicate his decision)

S4 – Best interests (must be considered having regard to all the relevant circumstances)

S5 – Acts in connection with care of treatment ( reasonable steps taken prior to act and during, D has to

reasonable believe that P lacks capacity and that the treatment is in P’s best interests)

S24 – Advance decisions to refuse treatment: general (can be made by anyone who is sui jurisprudence

and altered when they still have capacity)

S25 – Validity and applicability of advance decisions (it has to be valid and applicable to the treatment)

S26 – Effect of advance decisions

(D) General principles of necessity

F v West Berkshire Health Authority (1990) (sterilisation of the mentally ill patient)

- These general principles that predate the act are important for 2 reasons

o The Act only applies to certain types of incapacity (s2)

o Lord Goff’s discussion indicates how courts might interpret the act.

- The defence of necessity arises in situations where it’s impractical to communicate with D.

- In a medical situation, where D has mistakenly concluded that an act isn’t in C’s best interests

but does it, he does not have a defence under s5 but if it turns out to be objectively in C’s best

interests, that’s covered by CL principles of necessity.

- Some points:

o Following Shaw (1990) commentary: is it acceptable that judges should make public

policy choices about the relevance of such factors to the presumed best interest of

mentally handicapped people in the courtroom?

o Should this decision be made by reference for the most part only to the clinical

judgment of doctors and in isolation from wide questions of resources allocation?

o Conversely, do such utilitarian concerns have any place when considering the rights of

personal autonomy?

Re MB



- Woman needed a caesarean section, in which she signed a consent form. Refused to carry out

the procedure due to fear of the needle, refused to consent to anaesthesia by mask and the

surgery was cancelled. D (health authority) went to obtain a declaration that it would be lawful

to go ahead with the surgery. Next day, she consented to the surgery, performed caesarean and

the baby was delivered.

- In any case, the CA dismissed an appeal from MB. Whilst recognising the right of a competent

adult to refuse medical treatment for rational or irrational reasons or for no reasona t all, the

refusal needed to be made by a person with the mental capacity to make that decision. Applying

these principles to the fact of the case. Held that:

o MB consent to a caesarean section

o What she refused to accept was not the incision by the surgeon’s scalpel but only the

prick of the anaesthetist’s needle. Capacity is commensurate with the gravity of the

decision to be taken.

o She could not bring herself to undergo the caesarean section she desired because, as

the evidence established, ‘a fear of needles has got in the way of proceeding with the

operation. at the moment of panic her fear dominated all at the actual point she was no

capable of making a decision at all at that moment the needle or mask dominated her

thinking and made her quite unable to consider anything else.’

o Note, obiter that it made no difference that the life of the foetus was threatened as it

had no legal personality to be weighed in (confirmed in St George’s)

(E) Contributory negligence

- Standard Chartered Bank v Pakistan National Shipping Corporation

- Main significance is to explore the question of whether the 1945 Act can apply to intentional

tortso HL concludes that it doesn’t apply to intentional torts, primarily because of the language

of s4

o S4 defines fault in terms of things which would give rise to the defence of contributory

negligence before 1945

o And before 1945, given that it was a complete defence, it hadn’t been recognised as a

defence to intentional torts like deceit, or battery, or assault

o Note that there is a CA decision in Murphy (merely an interlocutory appeal as well)

which the HL refuses to say is correctly decided.

o There’s also dicta in the 2004 HC case of Bici but the point is dealt with in brief and

standard chartered isn’t discussed.

Note: All the above defences clearly apply for battery and assault. With regards to Wilkinson, consent

aside, it is unclear due to a lack of case law.



Seminar 13: Defamation Summary

(1) The Cause of action

- The publication of defamatory words; publication here merely means making known the

imputation to one or more people besides the claimant

(A) Defamatory meaning

- CA in Berkoff said there are several separate tests

o Causes C to be shunned

o Causes C to be exposed to hatred, ridicule, or viewed with contempt

These first 2 points show the width of defamatory comments (Berkoff v Burchill )

o

Lowers the claimants reputation in the estimation of right-thinking people (dominant

test)

‘right-thinking’ people is somewhat objective. For example, right-thinking

people wouldn't shun someone who reported illegal activity (Byrne v Dean)

(B) Interpretation

- Words are to be given their ‘plain-meaning’. D not to be liable because people had ‘over read

into them’ in a technical manner; (Lewis v Daily Telegraph)

- Claimants may be allowed to plead a ‘true innuendo’ to explain how material which is not

defamatory in its natural and ordinary meaning may convey to people who are aware of special

facts certain defamatory implications (Cassidy v Daily Mirror )

o By contrast, a ‘false innuendo’ is where C’s explanation simply amplifies or expands the

obvious meaning.

(C) Libel and Slander

- Libel (in permanent form) is actionable ‘per se’

- Slander (in impermanent form) requires proof of special damage, with 4 exceptions

o Indictable criminal offence

o Serious contagious disease

o

Professional incompetenceo Allegations of unchastity

- It is recognised that the distinction cannot be justified on the basis that written words

necessarily reach a larger group nor on the basis that libel is more likely to indicate malice (strict

liability). However the distinction is kept for historical reasons (Thorley v Lord Kerry )

- 2 Exceptions



o Theatres Act 1968 s4(1): (words spoken in the course of a theatrical performance are to

be treated as libel)

o Broadcasting Act 1990 s166(1): Words spoken in a broadcast are to be treated as libel

(D) Who can Sue for Defamation

- Any individual named or referred to in the publication (on a plain interpretation of the words –

Lewis)

- Companies ( Jameel )

- Groups where a reference to the group can be interpreted as a reference to each of the

individual members. Size of the group is the key factor here with a suggestion that 6-8 is near

the upper limit (Knupffer v London Express Newspaper )

- Note that government bodies cannot sue in defamation, though there may be liability with

regards to defamatory statements towards government in malicious falsehood or to the specific

individuals concerned (Derbyshire County Council v Times Newspaper )

Strict Liability

- Liability is strict: it is not the intention of the publication that matters but rather, what is

understood by it (Hulton v Jones, Cassidy )

- Even words intended true of their target may be malicious (Newstead v London Express

Newspapers)

o Note that this has led to the media instituting a process called ‘negative checking’

- With regards to publication of pictures however, as it is not possible to do anything like negative

checking, strict liability here would be inconsistent with Art. 10 ECHR (O’Shea v MGN)

(2) Defences

(A) Innocent Dissemination

- Defamation Act 1954 s1: essentially where D is neither author, editor, nor publisher and where

he neither knew nor ought to know the material was defamatory, he’d have the defence

available.

- Wording means defence can be lost if:

o D is informed

o D suspects

(B) Justifications

- D needs to prove that the claim is true in substance (that the ‘sting’ of the argument is true). 2

points flow from this

o Repetition Rule – the mere fact that D is repeating information without actual proof

does not suffice for justification (Stern v Piper )



o It is important to ensure that the actual thrust of the defamatory claim, confined to its

scope, is proved. Proof of general misconduct will not suffice if the ‘sting’ of the

argument is not proved (Bookbinder v Tebbit, Scott v Sampson)

- Defamation Act 1952 s5: “In an action for libel or slander in respect of words containing two or

more distinct charges against the plaintiff, a defence of justification shall not fail be reason only

that the truth of every charge is not proved if the words not provide to be true do not materially

injure the plaintiff’s reputation having regard to the truth of the remaining charges.”

(C)Fair Comment

4 elements

- Comment (as opposed to fact)

- Fair

- In the public interest

- Can’t be malicious (reintroduces an element of fault)

Comment

- Covers substantive opinions. However, the comment has to be considered as it appears to

ordinary readers, so something that may be defamatory out of context would thus be

defamatory if published in isolation (Telnikoff v Matesuvitch)

- With regards to something presented as an inference/conclusion from factual evidence, the

basic rule seems to be that it still has to be presented as a statement of opinion rather than a

statement of fact (Spiller v Joseph; though note historically, this was not the case)

- However, it seems that while it has to be a statement of opinion, you don’t need to preface it

expressly as long as the nature of the subject matter shows it’s your opinion. (BritishChiropractic Association v Singh)

Fair

- There seem to be 2 strands to this

1. Sufficient foundation of facts

o London Artists v Littler indicates that it must be enough for a person to reach the same

conclusion as the actual defendants

2. Factual foundation must be identified

o Used to be thought that the factual foundation had to be set out in sufficient detail to

allow the reader to decide whether they agreedo SC in Spiller v Joseph said the test is now simply that you must identify at some general

level the factual basis of the comment

Matter of Public Interest



- Public interest is to be understood broadly and even extends to developments in show business.

(London Artists “the fate of plays publicly performed and the comings and goings of the actors

are matters of public interest on which fair comment can legitimately be made”)

Malice

- Malice in this context simply means that D does not hold the opinion he expresses

Defamation Act 1952 s6: a defence of fair comment shall not fail be 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 proved

(D) Qualified Privilege

(i) Common Law

‘Conventional’ Qualified Privilege

- The conventional defence of QP depends on a reciprocity of duty or interest as between D and

the person to whom the statement is published. The determination of whether a duty to

communicate exists is for the judge. The duty need not be legal; a moral or social duty will

suffice (Toogood v Spyring)

‘Reynolds privilege’ for matters of public interest

- Established in Reynolds v Time Newspapers Ltd .

- Lord Nicholls provide a list of 10 criteria against which attempts to use the Reynolds defence

should be judged.

-

Jameel

o It has been made clear that the categories are not tests to pass.

o You do not need to show that the specific defamatory allegation is a matter of public

interest; it is enough to show that the subject matter of the story is a matter of public

interest.

- A key development is this idea of ‘reportage’. The repetition rule still applies however, you can

make a clear, balanced and neutral report of allegations made in the public interest and

provided the allegation is not adopted, the duty to verify the underlying truth is less pressing.

Malice

- The defence of QP is lost if the comment is malicious (and Reynolds privilege but less relevant

for it)

- The crucial finding is the belief in truth (Horrocks v Lowe)

(ii) Statute/Reports

- Defamation Act 1996 s15



o Gives a defence of QP to 2 distinct categories of publications.

o One category gains the defence simply by falling within the list of requirements

Reports on shareholders meetings or public meetings for example

Note McCartan Turkington Breen v Times Newspapers which holds that press

conferences count as public meetings for the purpose of s15 as their

fundamental purpose is to publicise the information.

o The second category only counts as being protected by QP provided C has been given

the opportunity to reply (and the comment is published with the report)

Reports of proceedings in overseas legislatures

(E) Absolute Privilege

- Powerful defence only that apples irrespective of D’s mental state but only applies in 2 broad

categories with 1 other minor exception (5 more specific categories)

o Statements made in court

o Bill of Rights 1689 art 9 – provides for free speech in parliament

Defamation Act 1996 s13 gives an option to wave parliamentary privilege (see

eg Hamilton v Al Fayed )

o Communications made by a minister or other officer of state to another in the course of

his official duty (Chatterton v Secretary of State for India in Council – this seems to have

been rejected in subsequent cases just not authoritatively removed)

(3) Remedies

(A) Compensatory damages

-

Courts and Legal Services Act 1990 s8; gives CA power to substitute its own award for jury’s - John v MGN; CA said the award was too high and in the future, jurors should be told to think

about comparable awards for personal injury damages. So it seems we have to factor

consistency across the law

(B) Exemplary damages

- Punitive; can be awarded for example where there’s proof

(C)Mitigation

- It seems that little can be done to mitigate damages. Per Scott v Sampson, D can’t adduce

evidence that is not relevant to the specific claim

- The result of this is that defendants will seek to claim that if interpreted properly the words

have a very wide claim so as to adduce more general evidence as the justification stage.

(D) Offer of amends

- Created by the Defamation Act 1996, ss2-4



(E) Injunctions



14. Privacy Summary

(1) No right to privacy in English law

- Historically, there was no general right to privacy at English law (Malone v MPCC ). There was

coverage through other torts but notable gaps are highlighted in cases

o Kaye v Rovertson; C wins on malicious falsehood which doesn’t seem to go to the

essence of the problem (CA express the need for some sort of tort of privacy)

o Wainwright v HO; Hoffman doesn’t feel the need for a new general tort but for him,

privacy is something the law of tort should bear in mind as it develops its own

autonomous categories of tortious liability.

- Nonetheless, there has been a large expansion of the tort of the breach of confidence spurred

by the HRA.

(2) Breach of confidence protecting privacy before the HRA 1988

- Note the 3 elements of the classic tort of breach of privacy

o Element of confidence (element)

o Obligation of confidence (duty)

o Unauthorised use of the confidential information (breach)

- It seems the classic element of confidence , element has to be secret, or at least known to a very

few number of people (Woodward v Hutchins)

o So this idea seems to mean something narrower or at least different to privacy

-

As for the obligation of confidence though, though the typical example is in the commercial

context, it is clear it can arrive in other circumstances and in that sense, it covers things a tort of

privacy would. (Stephens v Avery )

(3) The transformation of the traditional tort of breach of confidence

(A) The transformation in Campbell v MGN

- In Campbell , Lord Nicholls says that breach of confidence has developed to the point that it is

perhaps more appropriate to think of it as a tort of misuse of private information.

- He says there are two steps in deciding whether a breach has occurred

o

Whether there is a reasonable expectation of privacy

o Proportionality

- With regards to when a reasonable expectation of privacy exists, this was not really elaborated

on. Lord Nicholls suggested the test was whether the publication would be highly offensive to

the particular claimant. Baroness Hale suggested focusing on whether the person publishing the

information knew or ought to have known it was private.

o Both tests are too subjective and have various flaws.



- Later cases have made clear it is an objective test about the reasonably expectation of privacy

which the law might protect.

(B) Expectation of Privacy

- Problems with the subjective tests are highlighted in Murray v Sunday Express. Subjectively, we

wouldn't think two year olds would be highly offended by such a publication.

- In Author of a Blog v Times Newspapers, it is made clear that the test is an objective one that

takes the suggested two-stage approach

- So it reasonably clear the test is objective and perhaps ‘more objective’ than other such tests as

the claimant’s age is not taken into account at the first stage.

(C) There are cases where certain competing interests outweigh the expectation of privacy

- The typical countervailing right is article 10 (FoE)

- S12 HRA seems to tilt the favour towards art. 10 but that doesn’t mean the BoP is always on C.

-

HL in Campbell said you don’t treat all types of speech the same way. Hale suggests a hierarchywith political speech at the top of the list (idle celebrity gossip). As we get further down, courts

seem to be looking at the degree of interference with the rights to privacy as compared to

focusing on the importance of freedom of speech.

o E.g. Mosley ; not in the public interest to have legal sexual habits exposed

- At the proportionality stage, it seems courts have taken a strong view when it comes to

protecting the rights of children. (Murray )

- Also, the courts are clear that there is no decisive factor at this stage, and all the factors such as

thing previously said or done and the nature of the invasion for instance need to be considered.

(4) The influence of the European Convention on Human Rights

- It is clear art. 8 is important and in force due to the HRA. The HRA however covers public bodies

and though there is this on-going academic debate about whether the HRA provides horizontal

direct effect by virtue of the courts being public bodies, this is yet undecided.

- Also, while Strasbourg jurisprudence may have persuaded domestic courts, they have stressed

that they have developed breach of confidence (or misuse of private information rather)

independent of Strasbourg.

- It is important to note that the ECHR seems to accept that certain incidents which take place in

public can still fall within someone’s private and family life and for which they can have a

reasonable expectation of privacy (Peck v UK )

- Indeed, in Von Hannover , the state (Germany) was held to have violated her legal rights by

failing to provide adequate protection against the sort of photographs of C going about daily life

in public, something Hale in Campbell was clear wasn’t protected.

- So it is clear courts will have to directly deal with the issue of how to engage the Strasbourg

jurisprudence at some point.

Statutory torts/remedies



- Protection from Harassment Act 2007

- Thomas v News group [2002]

- Data Protection Act 1998



Seminar 16: Remedies (1) Compensatory damages

(A) The purpose of compensatory damages

- To put C into the position he would have been if not for the tort (Livingstone)

(B) Possible tot actions

- Action by living claimant

- Action by (administrator of) deceased’s estate (Law Reform (Miscellaneous Provisions) Act 1934

s1(2))

- Action by dependants to recover for loss they personally suffer (Fatal Accidents Act 1976)

(C) Damages for personal injury

(I) Lump Sums or Periodical Payments?

- Per the Damages Act 1996 s2 (as amended by the Courts Act 2003),

o a court may make a periodical payment order in respect of future pecuniary loss

o may award it in respect of other damages with the permission of parties

o is not to award it unless satisfied that security of payment is secured

o security is basically secured where D is a government body or if an individual, if they

purchase an annuity

- E.g. of periodical payment order being made (Tameside and Glossop Acute Services NHS Trust v

Thompstone)

(ii) Financial/Pecuniary loss

- With regards to past financial loss, that is simply awarded in full,

- With regards to future financial loss, courts use the multiplier/multiplicand method (number of

years*annual loss C will suffer)

- Complicating factors:

o Vicissitudes of life (bad stuff)

o Acceleration (wells v wells) and;

o Inflation (wells v wells – it is to be assumed D will invest in index linked government

securities)

o ‘the lost years’ ( pickett v british rail engineering; you can recover for what you’d have

spent on your family and dependants)

(iii) non-pecuniary loss

- 2 main ones



- Pain and suffering (subjective assessment)

- Loss of amenity (objective assessment)

o West & Son v Shepard and Lim Po Choo v Camden & Islington: Coma cases so low award

for pain and suffering but a high award for loss of amenity

- There are 2 main books judges refer to, to ensure consistency with previous cases however, it is

not clear the awards are generally sufficient. LC in a previous report proposed that damages for

non-pecuniary awards should be increased significantly (in NI where jury awards were used till

the 80s they were a lot higher)

- In Heil v Rankin CA recognised the LC may be right but did it by a lower amount then they

proposed and said it was a one-off increase and there was no need to do it again.

(D) Aggravated damages

- To compensate for additional suffering caused by the manner the tort was committed. Initially

had a very narrow scope (Richardson v Howie)

- It has since been widened (Rowlandson v Merseyside police)

- Note that aggravated damages are a form of compensatory damages and that further, the

award is often just bundled up as a single award for non-pecuniary loss (Choudhary v Martins)

2 Non-compensatory damages

(A) Nominal

- Typically for torts actionable per se where no damage has been suffered

(B) Contemptuous damages

-

Where C has technically suffered loss but the court/jury is trying to express its contempt(Grobbelaar v News Group Newspapers)

(C) Exemplary/Punitive damages

- Anomalous in the law of tort but have too much history to get rid of. However, they can be

confined to 2 categories (Rookes v Barnard )

o Where a PA has acted in an arbitrary and oppressive manner in committing the tort

o Where D calculates that if he commits the tort and has to pay compensatory damages,

he will still make a profit (Cassell v Broome – there the court also said before making an

exemplary award, it had to be satisfied a compensatory award wasn’t accurate)

-

Kuddus v Chief Constable of Leicestershire clarifies that exemplary damages can be recovered

even for torts where it hadn’t been recognised before 1964 as long as they fit in the 2

categories.

(D) Restitutionary damage



- The basis is debated but usually seen as based on denying a wrongdoer any profit from his

wrongdoing. A yet unanswered question relates to what wrongs should allow this remedy

o MoD v Ashman

(3) Injunctions

(A) Types of injunction

- Final/perpetual (given at the completion of trial)

o Can be mandatory or prohibitory

- Interim (to keep things the same until trial)

- Quia timet (=because s/he fears)

(B) General Principles

(i) Inadequacy of CL remedy (e.g. with regards to a nuisance)

(ii) Clean hands (Measure Bros v Measures – general principle of equity)

(iii) Delay and acquiescence

(iv) Equity will not act in vain (AG v Observer )

(v) Public interest

o Dennis v MoD

o Miller v Jackson

o Kennaway v Thompson (powerboat racing)

Highlights how the courts have the power to tailor injunctions.

(C) Special rules for defamation

-

The importance of Freedom of Speech means that in defamation cases, an interim injunctionsshould not be permitted where D pleads a valid defence (Bonnard v Perryman)

tort summaries

Documents