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The Tort of Negligence

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Per Laleng

on 29 March 2016

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Transcript of The Tort of Negligence

ACTIONABLE
DAMAGE?

Minimum,
legally recognised
damage

de minimis non curat lex

What harm or loss did C suffer?
A legal person
natural (very often)
or corporate (sometimes)

who has suffered
some form of
harm or loss.
(ie is the harm legally recognised/protected?)
What did D do
or fail to do

(given what he knew
or ought to have known)

What should D have done
which would have prevented harm?
CARELESSNESS
NEGLIGENCE
BREACH OF DUTY
Can the Claimant claim in private law (sue) in this situation?

Synonyms - for (personal?) FAULT
or Wrongful
Conduct
in Tort of Negligence
"TECHNICAL" DEFENCES
VICARIOUS
LIABILITY

Some Implications of the conceptual structure:

1. Not everyone who suffers injury or loss can claim compensation in tort

- The
extent of loss
is irrelevant to liability

2. Not everyone who proves fault/wrongdoing can claim compensation

- The
extent of wrongdoing
is irrelevant to liability

Physical damage (bodily/property)
+
consequential
psychological harm or financial losses

"Pure" Psychiatric harm
"Pure" Economic loss
- both theoretically actionable
but
subject to conditions (under Duty of Care)

Infringement of some other "autonomy" right
(
not
Loss of Chance:
Gregg v Scott
(2005) HL)
Is this a legally recognised duty relationship?
NO


Does the "Rule of Thumb" apply?
NO



If not... then the Duty of Care has to be proved/established
Personal injury or death: bodily, psychological, psychiatric;
Physical property damage,
Financial or economic loss (loss of wages; medical, care and/or travel expenses; loss of pension; loss of investments)
Loss of enjoyment of life, work, sex;
Loss of autonomy (freedom to choose how to live)
etc etc

The legal definition of harm is expansionary
Usually,
but not always
, an employer's responsibility for the wrongdoing of their employee if there is a "sufficient connection" with employment
Therefore a form of
secondary
liability
ie
employer's liability for employee's tort
NOT
employer's liability to employee)
QUANTUM
How much can C claim?

The Assessment of Damages
NB some defences apply to
all
torts
REMOTENESS
OF DAMAGE
Are there any good reasons why the Defendant should not be held liable (responsible) for
all
the damage which he has negligently "caused"?
Law's tools (based on those "practical reasons"):


Type of damage
Intervening acts
"Scope of duty"
Policy or fairness reasons
A central concept
(REASONABLE)
FORESEEABILITY

OCCUPIERS' LIABILITY
RULE OF THUMB:
Where
physical damage
has been caused by a
direct

and (
positive) act
of an "unprotected" Defendant, there is a Duty of Care (if damage reasonably foreseeable: it usually is!).
PRECEDENT OR STATUTE
Most common cases
eg
:

Motorists
(owe a duty to other road users to drive carefully)
Employers
(owe Common Law and Statutory duties of care to provide a safe place and safe systems of work for their employees)
Doctors
(owe duties to their patients re: diagnosis, advice & treatment)
Occupiers
(owe statutory duties of care to their lawful visitors and sometimes to people who are not lawful visitors)
Highway Authorities
(owe statutory duties to road users predominantly re: fabric/condition of roads)
Manufacturers
(owe statutory strict liability duties to consumers)
Prison officers
(owe some common law duties to their charges)
Conversely, when the damage is
not physical

and/or has been
caused indirectly
(eg by a third party)
and/or by
an omission

and/or by a
"protected"
Defendant
and there is
no precedent
,
then the existence of a duty of care is
problematic
(
ie
has to be established/proved)
Common Law's pendulum
Liability restricting:

Hill v cc West Yorkshire
(1989) HL
Caparo v Dickman
(1990) HL
Alcock v CC of S Yorkshire
(1992) HL
Osman v Ferguson
(1993) CA
X v Bedfordshire
(1994) HL
Stovin v Wise
(1996) HL
Capital & Counties plc v Hampshire CC
(1997) CA
Gorringe v Calderdale MBC
(2004) HL
JD v East Berkshire
(2005) HL
Brooks v CoP of Metropolis
(2005) HL
Customs & Excise v Barclays
(2006) HL
Sutradhar v NERC
(2006) HL
Rothwell v Chemical & Insulating Ltd
(2007) HL
Van Colle v CC of Herts
(2009) HL
Mitchell v Glasgow CC
(2009) HL
Michael v CC of South Wales
(2015) SC
Liability expanding:

Donoghue v Stevenson
(1932) HL
Hedley Byrne v Heller
(1964) HL
Home Office v Dorset Yacht
(1970) HL
Anns v Merton BC
(1978) HL
McLoughlin v O'Brien
(1982) HL
Page v Smith
(1995) HL
White v Jones
(1995) HL
(Human Rights Act 1998)
Kent v Griffiths
(2000) CA
Phelps v Hillingdon BC
(2001) HL
Barret v Enfield BC
(2001) HL
Arthur Hall v Simons
(2002) HL
Savage v S Essex Partnership NHS Trust
(2008) HL
Jones v Kaney (2011) SC
Rabone v Pennine Care NHST
(2012) SC
Smith v MoD
(2013) SC
Woodland v Essex CC
(2013) SC (non-delegable duties)
Although focus is always on what the Defendant could have reasonably foreseen (a
factual
question looking at foresight in the light of the prevailing circumstances), the question about reasonable foresight is different depending on the legal concept in question:

Duty
: foreseeability of damage to this Claimant (as individual or member of a class) a
possible
consequence of carelessness?
Breach
:
degree
of foreseeability of risk of harm (how likely/severe)?
Remoteness
: what
type of harm
and/or
intervening act
were reasonably foreseeable?
But Fluidity of Concepts...
"The fact that one conceptual basis for a ruling (no duty) can often be exchanged for another (eg remoteness of damage without making any difference to the outcome inevitably leads one to question whether the existing conceptual structure of the tort of negligence is serving a useful purpose ... What is needed is a frank acknowledgment that policy choices are being made all the time in difficult cases which lie at the boundaries of negligence liability, and that in this area the outcome of decisions cannot be predicted in advance by mechanical application of verbal formulae."
Markesinis & Deakin
Tort Law
(7th Ed, Oxford: 2013) pp.108-9

THE FAULT PRINCIPLE
"Fault is like a magic talisman; once it is established, all shall be given to the injured party"

- P Cane
Atiyah's Accidents, Compensation and the Law
(8th ed. Cambridge, 2013) 210
If D causes injury negligently then he should pay
If D is
not
negligent then he should
not
pay

Ideology based on
individual responsibility
(no responsibility without fault
cf. social security - collective responsibility without fault)
Also applies to
Claimant's own conduct
(see defences)

quaere:
is it fair to reduce a Claimant's damages because of fault given that a Defendant at fault does not pay personally?
LIABILITY BASED ON BEHAVIOUR
Liability based on consequences of risky ACTIVITY
rather than wrongful ACTS (although do need wrong too)
NO FAULT "SCHEMES"
An example of a strict liability obligation
Provision and Use of Work Equipment Regulations 1998
r. 5(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.
Stark v Post Office
(2000) CA
D is in Breach of (Common Law) Duty if Negligent
Test:
Blyth v Birmingham Waterworks
(1856)

"negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do" -
per
Baron Alderson

So comparing what D did to the reasonable person

D in breach if takes less care than reasonable person would have done in the circumstances
Not
an absolute obligation:

take care;
not
eliminate
all
risks
Who is the (21st Century) Reasonable Person?
= Objective test
(therefore eliminates personal characteristics of Defendant)

What
should
have done
not
what
could
have done
1. Qualities of Reasonable person: Question of Law

2. Given those qualities, how much care would that person have taken? The
factors
to be taken into account are a Question of Law but the
amount
of care is a Question of Fact.

3. Did the Defendant take less care than the reasonable person? Question of Fact.
Most cases are about this.
QUALITIES OF THE REASONABLE PERSON
*
Not
perfect, but has life experience (so should guard against common risks including others' wrongs).

*
Not
Average person: because always acts reasonably (including making reasonable mistakes). Therefore not human!

* Has knowledge of the world which would be reasonable to have
at the time of alleged breach
(
Roe v Minister of Health
(1954)). If D has special knowledge then reasonable person also has it:
Baker v Quantum Clothing
(2011) SC. And reasonable person keeps herself reasonably up to date:
Stokes v GKN (Bolts & Nuts) Ltd
(1968).

* Reasonable person is
in position of defendant
:

ie
motorist, doctor (
Wilsher v Essex AHA
(1987); lawyer, architect, footballer
etc)
;
but does
not
have D's
personal shortcomings
(
eg

Nettleship v Weston
(1971));
can take into account pressures of situation: how would a reasonable person react?
If D is a child, then comparison with reasonable child:
eg Orchard v Lee
(2009) {"tag"}
If D holds himself out as possessing special skill, will be judged according to that standard

HOW MUCH CARE?

ONE STANDARD: REASONABLE CARE OF REASONABLE PERSON
Take care against what? Reasonably foreseeable risks of harm

D does not need to foresee
precise risk
, just risk of harm in general (
cf.
Duty of Care question)

eg Alexis v Newham LBC
(2009) HC {pupils; cleaning fluid; water bottle; unsupervised. Risk = prank but not injury to teacher}



If risk of harm reasonably foreseeable, how would the reasonable person respond?


Risk Matrix v Cost & practicability of precautions
Risk Matrix
(Foreseeability of Risk)
Cost & practicability of precautions

The greater the probability and impact of risk, the more steps have to be taken

How much would it cost in terms of resources, ease/practicability & social utility to reduce or eliminate the risk?

In short: was it "too expensive" to reduce or eliminate risk?
Possible, probable, very likely
Minor
Severe
Examples: what could reasonable person foresee?
Magnitude of risk (how likely is the risk?):

Bolton v Stone
(1951) HL {6 balls/28 yrs + chance)

Whippey v Jones
(2009)

cf.
Nicholls v Ladbrokes
(2013) CA {low risk area}

Gravity of risk (if risk happens
how serious?):

Paris v Stepney
(1951)
cf.
Harris v Perry
(2009) CA
Examples:
What would reasonable person do?
Ease of precautions:

The Wagon Mound No 2
(1967) PC
Scout Association v Barnes
(2010) CA
Cost of precautions
(inc. social costs & utility)
s.1 Compensation Act 2006 (& SARAH Act)
Tomlinson v Congleton BC
(2003) HL
Watts v Herts CC
(1954)
"The Negligence Calculus"
Proving the Defendant fell below the standard
Take into account all facts: no two cases the same

NO PRECEDENTIAL VALUE:
Qualcast (Wolverhampton) Ltd v Haynes
(1959) HL

only Guidance (as "history repeats" but never quite in the same way)

Burden of proof on Claimant.
Standard of proof: On the Balance of Probabilities

D cannot say: "but I complied with general practice"
is but one factor to take into account.
UNLESS...
D is a professional (usually medical)

Bolam
test: D will discharge duty if what D did is supported (
ie
via expert evidence) by a "responsible body of opinion" within the profession.

If there are two responsible views, D wins.
Covers lack of consensus but means medical self-regulation


C can rely on:
breach of statutory standards and criminal convictions as
evidence
of negligence, but not conclusive.

eg
breach of Highway Code not necessarily negligent:
Goad v Butcher
(2011) CA.


A
B
C
Wrongdoer
Tortfeasor
Claimant
(harmed)
R2: Sufficiently close
relationship between
Wrongdoing
and R1
The example of tort & employment (
eg
NHS doctor/consultant)

1. R1:
Employee
(Contract of service) not independent contractor (Contract for services)
cf.
police constables (s.88 Police Act 1996)

2.
(W)
Commits Tort (any tort) [employee personally liable]

3. R2: In course of employment
Employer (eg NHS) would be
Vicariously Liable
(May also be personally liable
eg
by selecting wrong employee)
JUSTIFICATION
Employer has set something in motion, so should be responsible for consequences even if gets another to do it ("causation').

"...all forms of economic activity carry a risk of harm to others, and fairness requires that those responsible for such activities should be liable to persons suffering loss from wrongs committed in the conduct of the enterprise. This is "fair", because it means injured persons can look for recompense to
a source better placed financially than individual wrongdoing employees
... the financial loss arising from the wrongs can be spread more widely, by liability insurance and higher prices."

Lord Nicholls in
Majrowski v Guy's and St Thomas NHS Trust
[2006] UKHL 34

Loss spreading = realm of distributive justice
OTHER FORMS OF RELATIONSHIP (R1)
Catholic Child Welfare Society v Institute of the Brothers of the Catholic Schools
(2012) SC

Contribution proceedings between managers of Catholic school (CCWS) & suppliers of teachers (Brothers) who had sexually abused children

If wrongdoer & person alleged to be vicariously liable acting for
common purpose
then could be akin to employment

{here wrongdoer was not employed but in fact paid over money received to Institute. According to Lord Phillips, this made relationship even closer. And common purpose = Catholic education of children (who were abused)}


Cox v Ministry of Justice
(2016) SC
Prisoner not employed by MoJ but doing work in prison kitchens negligently dropped sack on prison catering manager's back who then sued MoJ based on vicarious liability

Lord Reed referred to Lord Phillips' 5 factors in
Christian Brothers
case:

1. D more likely to have means to compensate & have insured ("not of independent significance")
5. Tortfeasor under control of D ("no longer of significance")

Other three factors "interrelated":

2. tort committed as a result of activity undertaken by tortfeasor
on behalf

of D
3. tortfeasor's activity likely to be
part of the business of D
4. D by "employing" the tortfeasor to carry out the activity will have
created the risk of the tort committed by tortfeasor

If tortfeasor acting for own or TP's
independent business
, then no VL

Application:

Prisoners working in kitchen integrated into operation of prison and furthers aim of feeding prisoners (= an objective of D) = of direct & immediate benefit to MoJ.
Prisoners put in position where there is a risk of all sorts of negligent acts in carrying out activities.
Work under direction of staff (control).

R2: Connection between
R1 & wrong (act/omission)
1. In employment cases, whether occurred within scope/course of employment. Focus is not on the wrong, but what act doing @ time of wrong. The "close connection test" derived from
Lister v Helsey Hall
{warden entrusted to "look after" children
cf.
handyman}

2. Generally: whether the risk which occurred is sufficiently inherent in the business (eg risk of child abuse in care homes, church etc). But...
NB: s. 69 Enterprise & Regulatory Reform Act 2013
eg D leaves loaded gun in unlocked wardrobe (= negligent), gun is stolen by X & used to kill B.

D's negligence is a "but for" cause of B's death but X is the responsible adult, the cause that probably "breaks the chain". The damage (death) would probably be deemed "too remote".

Would the answer be different if X is a child?

Is a policy question that uses the
language of causation
.
Effects (damage/loss) have many causes.


Modify our RTA example: it now involves D, C and a TP. C an old lady has brittle bone disease. D driving at 28 mph in 30 mph zone; icy conditions; there are pot holes in the road; C steps into road just as there is a bolt of lightning which shocks D into swerving; when D sees C slams on brakes which malfunction and causes car to skid towards C who happens to step awkwardly into a pot hole more or less simultaneously as being struck by D. Break in leg could be due to impact or pot hole or just coincidence. At hospital, the treating doctors are careless resulting in permanent disability.

What caused the permanent disability?
Medical, scientific, social policy (road design, missing pelican crossing), philosophical, theological, statistical (inc. chance) and/or legal answers.

Legally we want to know whether D's acts/wrongdoing can be
excluded
as event/cause contributing to C's loss?
Q: What caused this to burn?
A: It depends on why asking question
Atmospheric Oxygen is a cause, but more natural to say the person who lit the match.

Why? Often because we are looking to attach responsibility to someone (rather than explaining something).

Legally too: looking for
legal
responsibility

quaere
: is it factual question at all???
Law's "privileged" causes

ie
what will tend to count as causes
Human actions
rather than natural factors or "states of affairs"

Acts
rather than omissions (non-acting)
Voluntary
rather than involuntary acts

And when do third party party acts & events become independent causes (links to remoteness)?

Unreasonable
rather than reasonable behaviour
More
rather than less
culpable
behaviour
Unforeseeable
rather than foreseeable events
THE BURDEN AND STANDARD OF PROOF
On Claimant
On the Balance of probabilities
= (>50%) or "more likely than not"

cf. scientific "truth": >95%

PROBABLE CAUSE

Possible (might) < Probable (would) < "Certain"

"a matter of persuasion, not proof"
& can't recover in proportion to cogency of proof of persuasion:
Gregg v Scott
Cause in Fact: The Tests
1. "But For"


2. Material Contribution to Harm


3. Material Increase in Risk of Harm
one test?
BUT FOR
Test - or
"would damage have happened anyway
if D had behaved properly
(counterfactual)?"
But For = Filter & exclusionary:
"the subsequent is not necessarily consequent" (T. Weir)

egs
Barnett v Chelsea & Kensington Hospital
(1969) (arsenic)
Chubb Fire Ltd v Vicar of Spalding
(2010) (fire extinguisher)
Saunders v CC of Sussex
(counselling)
The Problem with But For : Multiple Causes

Indeterminancy and Over-Determination
Two Hunter problem Mk1:

Two wrongs,
One bullet,
One death

Summers v Tice
(1948) US
Cook v Lewis
(1951) Canada

Reversed Burden of Proof
Two Hunter problem Mk 2:

Two wrongs, two bullets, one death


Solving Two Hunter Mk 2
"Material Contribution to Harm"
More than minimal

De minimis
Did D's breach actually contribute to Harm?

Role of expert evidence

Bonnington Castings v Wardlaw
(1952)
Divisible or Indivisible?
100% damages
even if 1% contribution
in solidum
rule

Bailey v MoD
(2008)
Dickins v O2
(2008)
Leigh v London Ambulance
(2014) HC
D liable to extent of contribution
(apportionment)
Holtby v Brigham & Cowan
(2000)
Rahman v Arearose
(2000)
(beaten up + hospital negligence - blindness, psychological wreck)
"MODIFIED
BUT FOR?'
Solving Hunter Mk 1
"POSSIBLE" causation
1. Tortious and non-tortious causes:
McGhee v NCB
(1973) HL

2. Tortious causes:
Fairchild v Glenhaven Funeral Services
(2002) HL

Exception based on policy (risk of insolvency) where there is undoubted (admitted) wrongdoing & due to scientific knowledge (impossible of proof)

Material Increase in Risk will be treated "as if" Material Contribution to Harm

3. Tortious and non-tortious causes (Part 1):
Barker v Corus UK Ltd
(2006) HL

Reinterpretation of damage as "risk of damage" but cf.
"Trigger Litigation"
(2012) SC (damage "contracted" v "sustained") therefore need damage (
Rothwell
) & agents "operating in substantially the same way" (
cf. Wilsher
) & impossibility of proof due to scientific knowledge. Led to proportionate liability (overturned by Compensation Act 2006 which does not apply in Guernsey therefore have SC decision in
International Energy Group Ltd v Zurich Insurance
(2015) SC...)

4. Tortious & non-tortious causes (Part 2):
Sienkiewicz v Greif (UK) Ltd
(2011) SC

"Doubling of risk" test rejected in mesothelioma cases, but may apply to other diseases.


Can any sensible conclusions be drawn about the scope of the
Fairchild
exception?
Is
Fairchild
a
de facto
mesothelioma exception? (per Lord Brown in Sienkiewicz & see
AB v MoD
(2012) SC &
Jones v SoS for Climate Change
(2013) HC)?
Problem:
McGhee
!
Is it confined to industrial disease cases?
No:
Willmore v Knowsley MBC
(2011) conjoined with
Sienkiewicz
And see
Fitzgerald v Lane
(1987)
McGhee
used in RTA

Potential limiting conditions:

1. Impossibility of proof caused by scientific knowledge (not just difficulty of proof)
2. Need agent(s) operating in substantially the same way (smoke v other carcinogens &
cf. Fitzgerald
)

....But:
Heneghan v Manchester Dry Docks Ltd
(2014) HC -
Fairchild
applies to lung cancer potentially caused by asbestos or smoking
Where does this leave causation in these types of case?

And corrective justice (causal responsibility)?

"to impose liability without but for [causation] is incompatible with notions of individual responsibility on which the law of torts is based."
- French CJ in Amaca v Booth (2009) HC (Australia)

A breach = a material risk of harm
So prove breach and you prove causation

But cf.
Williams v Uni of Birmingham
The problem:
To Recap....
Tort Law's "causal requirements"
(or causation-based responsibility)
1. D will pay damages if he is responsible for Harm
(
ie
has (negligently) "caused"
(by contributing to (
Bonnington/Bailey
) or,
exceptionally
materially increasing the risk of harm (
Fairchild/Barker
)

= "Causation I"

2. Unless he can get off the hook
despite
such contribution to harm

= "Causation II"
Other notions of responsibility
1. Under
first party
insurance policies Insurance companies pay compensation because they have
PROMISED
(via Contract Law)

2. State pays social security benefits because
STATUTE
so provides (via Social Security law)

Neither have caused/contributed to harms but are still
RESPONSIBLE
(
ie
obliged to pay/look after the claimant)
"In the varied web of affairs the law must abstract some consequences as relevant, not perhaps on the grounds of pure logic but simply for practical reasons."

- per Lord Wright
Liesbosch Dredger v SS Edison
(1933)
Remote = "far away, distant..."

(
cf.
Proximate: "near, close..."
Note the language
The (Modern) position in summary:
Simmons v British Steel plc
(2004) HL
1. D is not liable for consequences of
a kind
[or
type
] not reasonably foreseeable (
Wagon Mound No.1
(1961)).

2. It does not follow D is liable for all consequences that were reasonably foreseeable (because
eg

intervening acts

by a third party
or
unreasonable act on part of C
can "break chain" of causation).

3. Subject to (2) if damage is of a kind that was reasonably foreseeable, then D is liable if damage is
greater in extent

than what was foreseeable (= "thin skull" rule) or if it was caused in an unforeseeable way (
Jolley v Sutton LBC
(2000) HL).

4. Subject to (2) where personal injury is reasonably foreseeable, D is liable for any PI
whether physical or psychiatric
(
Page v Smith
(1996) HL).
Q: So what has to be reasonably foreseeable consequence of breach now for D to be liable?
A: two things:

1. The
type of damage
but
not
its extent
nor
manner of infliction

personal injury (psychological harm is personal injury unless you are a secondary victim - see duty of care re: psychiatric harm),
property damage,
pure economic/financial loss
Same kind of damage that has occurred has to be reasonably foreseeable consequence of breach
Wagon Mound No.1
and
No.2

Q: was damage to wharf a reasonably foreseeable consequence of negligent spillage of oil onto water?

Damage by fouling v damage by fire

In
Wagon Mound No.1
trial court decided that D could not foresee that oil could catch fire on water (and as PC changed test of remoteness from directness to reasonably foreseeability of harm, no liability)

In
Wagon Mound No.2
(different claimant) Privy Council rejected inference that fire damage to was not therefore reasonably foreseeable as chief engineer should have foreseen real risk of fire
even if unlikely
(so not too remote despite natural language to say risk was "remote"!)

cf. where TP causes/aggravates damage this is has to be
very likely
to happen in order to be reasonably foreseeable!!
"Eggshell Skull"
D takes victim as found, but some damage has to be a reasonably foreseeable consequence to person of "reasonable fortitude"

Smith v Leech Brain & Co
(1961)
Lagdon v O'Connor
(2004) HL (which effectively overturns
The Liesbosch
re impecuniosity)
INTERVENING ACTS
(uses language of causation)
Consequences will be too remote if there is a break in the chain of causation
between
the D's conduct and C's harm.

(
nova causa interveniens;
or
novus actus interveniens
if
human

act
)
= modern language of "intervening acts"
Negligence of Defendant creates danger "triggered" by TP or C:
the more culpable/unreasonable and/or unforeseeable
the intervening act, the more likely it will break chain.


INTENTIONAL ACT BY C
Corr v IBC Vehicles Ltd
(2008) HL

Accident @ work 1996 (severe head injury almost decapitated)

Disfigured, unsteadiness, mild tinnitus, severe headaches, PTSD, severe flashbacks, increased alcohol consumption, bad tempered, severe depression

May 2002, suicide - deliberate

"Well known": 1/6 and 1/10 of severely depressed commit suicide

Q: whether financial losses consequent on death too remote?
D's
alternative
arguments

Suicide outside "scope of duty"

Was not a reasonably foreseeable act

Broke the chain of causation (
novus actus interveniens
)

Was an unreasonable act that broke the chain of causation

A voluntary act (
volenti non fit injuria
)/Consent

Failing that, contributory negligence
The House of Lords' classic resolution of
the foreseeability issue
Depression = reasonably foreseeable consequence (
type of damage
) of negligence that occurred
Extent
of depression need not be foreseen (thin skull rule)
Suicide is not uncommon in the severely depressed (therefore foreseeable even if
unlikely
)
The Novus Actus issue
Lord Bingham

"The rationale of the principle that a novus actus breaks the chain in causation is
fairness
"

Would not be fair to hold D liable if intervening act was a conscious/deliberate decision
Here, not a "voluntary, informed decision" by adult of sound mind
Therefore "not unfair to hold D responsible for this dire consequence of breach of duty, although it could be thought unfair to the victim not to do so"
The Unreasonable Act issue
"It is of course true that, judged objectively, it is unreasonable in almost any situation to take one's life. But once it is accepted, as it must be, that the deceased's unreasonable conduct was induced by the breach of duty of which the claimant complains, the argument ceases in my mind to have any independent validity"
CRIMINAL ACT BY C
Gray v Thames Trains Ltd
(2009) HL

Accident 1999: Ladbroke Grove disaster
Personality change inc. PTSD
Killed pedestrian following altercation
Convicted of manslaughter on grounds of diminished responsibility
Detained under Mental Health Act 1983
Claimed damages for loss of freedom and consequential financial losses
"But for" made out

Q: should D be responsible for everything that flowed from breach? Or break in chain of causation?

HoL: C's
criminal conduct
broke chain

Was voluntary & deliberate (not enough:
Corr
)
"the stress disorder
diminished
his personal responsibility but did not
extinguish
it" (Lord Hoffmann)
Policy: inconsistent to award damages in
civil law
to someone who has been convicted/punished in
criminal law
(
quaere
what about a fraudster claiming damages
cf.

Summers v Fairclough Homes?
)
C's
detention
caused the loss and the detention reflected his personal responsibility for his actions (is "responsibility" issue the same in criminal and civil law?)
What about unreasonable acts by C generally?
Smith v Youth Justice Board for England & Wales
(2010) CA

"forcible restraint technique" for 7 mins on 15 yo offender = "dangerous practice" therefore negligent.
C = prison officer involved in restraint suffering PTSD suing on basis of unsafe system of work.

"But for" made out but "causation is in essence a question of fairness... to what point the state ought in fairness to be regarded as responsible so to be held liable for the consequences"
per
Sedley LJ

Common sense "gone out the window"
"Unwise" acts by C
Spencer v Wincanton Holdings Ltd
(2009) CA

above knee amputation post accident
fell over whilst filling car not using prosthesis or walking sticks
Became wheelchair bound
Sedley LJ: remoteness is a "value judgement"
Extent of loss for which D ought "fairly or reasonably or justly be held liable" (
Kuwait Airways Corp v Iraqi Airways Co (Nos. 4 & 5)
(2002) HL
Need "high degree" of unreasonableness to break chain (see
McKew v Holland
(1969) HL)
So: filled petrol many times before, loss of leg was major reason for fall; but con neg at 1/3.
"SCOPE OF DUTY"
(whence foreseeability?)
Scope of duty determines extent of loss; does the duty "embrace" the loss or kind of damage

eg
SAAMCO
(1997)

Negligent over-valuation of property. Further losses due to fall in market. But for valuation C would not have entered into transaction. Q: should D be liable for all losses?

Don't ask what position would have been if valuation correct but what consequence of info being inaccurate (in this case: less security than thought). What was extent of obligation assumed by D? Was
not advising on wisdom of buying property as security
therefore not responsible for losses due to market fall.
"The Doctor and the Mountaineer"
If ask advice about mountaineering with dodgy knee and doctor fails to spot you have a dodgy knee & you then hit on head by a rock whilst climbing. Is Doctor liable for all losses?

Duty = advice about health
not
safety
And finally:
Chester v Afshar
(2004) HL
Patient autonomy but full liability!
D escapes liability
even if

all
other elements of tort made out
ie

eliminates
liability
cf.
Contributory Negligence
(affects
Remedy
only
therefore is not a liability-defeating rule)
JUSTIFICATIONS



D acted reasonably
in committing tort
PUBLIC POLICY
DEFENCES


Defence irrespective of D's (un)reasonableness
PRIVATE PUBLIC
To safeguard
own interests
To safeguard
public interest
"proper" motivation
PP Defence @
time of tort
PP arising
post tort
motivation does not matter
Partial Taxonomy by Goudkamp
Burden of proof on Defendant ... and there are 100s of Defences!
The language of "defences"
Ds can raise a "defence" (more accurately a
denial
) based on
elements
of tort

eg

Tort of Negligence

"I wasn't careless" (defence based on
Breach of Duty
)
"my carelessness didn't cause your loss" (defence based on
Causation
)
"even if my carelessness caused some of your loss, I'm not responsible for all of it" (defence based on
Remoteness
)
"even if my carelessness caused all your loss, you cannot sue me in private law" (defence based on
Duty of Care
)
or even "That's not what happened" (defence based on evidence/facts)

Or for
intentional torts
:

"You consented to me touching you" (defence based on
Consent
)

Contractual Notice
:

"I excluded liability via a contract" (C has
surrendered right
to sue)
VOLUNTARY ASSUMPTION OF RISK
A general form of Consent therefore denial of element of tort (but not always clear which one - could be no duty or no breach - so look at reasoning)
Doctrine (rarely successful)

1. Did C have knowledge of risks?
2. C voluntarily agreed to incur the risk of injury

(if didn't know, cannot have agreed!)
Subjective
knowledge of
ALL
risks

= a very high threshold of knowledge



Drunk person in better position than sober?
AGREEMENT
Just knowing activity is dangerous is not
sufficient to licence D's
carelessness

ie
Consent has to go to D's carelessness
VAR is excluded in RTAs by s.149 Road Traffic Act 1988
CONTRIBUTORY NEGLIGENCE
Does not eliminate liability only reduces damages
1. C fails to take care for
own
safety
2. That failure contributed to C's harm
Objective test (like reasonable man test)
Has to risk own safety (not D or TP)
Depends on all circumstances
Others around C may be careless
Con Neg varies over time (social/legal attitudes)
Seat Belts
Smoking (
Badger v MoD
(2005) HC)
Drinking (but passenger does not need to interrogate driver:
Booth v White
(2003) CA
Deliberate conduct counts (anything a reasonable person would not do inc. suicide:
Reeves v Metropolitan Police Commissioner
(2000) HL)
C's failure to take care has to be causally implicated in loss and damage
Not
about contribution
to accident
but
to harm
(eg not wearing helmet or seat belt)
Damage sustained has to be within risk of carelessness
APPORTIONMENT
Unavailable at Common Law

s.1(1) Law Reform (Contributory Negligence) Act 1945

"to such an extent as court thinks just and equitable"

and applies only where both C and D "at fault" - fault does
not
include intentional wrongs (eg trespass to person:
Pritchard v Co-Operative Group
(2011) CA)
nor
to breaches of contract where obligation breached was strict.

Con Neg cannot be 0% or 100% - based on relative blameworthiness and causative potency (Rough & Ready)
Froom v Butcher
(1976)

If
all
damage would have been avoided: 25% reduction
(also applies to failure to use child seat instead of booster for 3 y.o child:
Hughes v Williams
(2013) CA)

If some damage would have been avoided: 15% reduction
SEAT BELT CASES
cf.
Stanton v Collinson
(2010) No seat belt, brain damage, but medical evidence could not say whether damage would have been avoided or reduced - therefore no Con Neg.
PRIVATE JUSTIFICATIONS
Self Defence
Defence of (own) property
Abatement
(often described as "self-help remedy" - but isn't a "remedy" as non-judicial)
prevents liability from arising in trespass where D uses reasonable force to remove a nuisance (is an extension of defence of property).
Have to take lesser of harmful measures and need to ask offender to remove first
has to be impractical to start legal proceedings.
Where abatement justified, can recover costs reasonably incurred:
Abbahall Ltd v Smee
(2002) CA
PUBLIC JUSTIFICATIONS
Public Necessity (not private): very rare
Defence of another (analogous to self defence)
Arrest
Prevention of Crime
Lawful confinement in prison
Stop & Search (police)
Statutory Authority
ILLEGALITY
1. Waiver (giving up right of action)
2. Accord & satisfaction
3. Release
4. Prior criminal proceedings
5. Abuse of Process
6. Judgment
7. Assignment (but cannot assign bare right to litigate)
8. Limitation (time bar: Limitation Act 1980)
Potentially available to all torts
Need unlawful (sometimes immoral) conduct of a fairly serious nature
Could be used to eliminate some heads of damage (rather than all)
Overlaps with contributory negligence (therefore courts are slow to find illegality)
Burden of proof on D
If C has a criminal law defence, D cannot rely on illegailty
The problem
: no-one really knows what the test is:
TYPES OF ILLEGALITY (egs)
1. C's own conduct caused own damage
Gray v Thames Trains
("wide")
Joyce v O'Brien
(2013) CA; stolen ladder; back of van
cf. Delaney v Pickett
(2011) CA; cannabis transporting, C passenger, D negligent driver.

2. Seeking recovery of damages re: criminal law sanction
Penalty imposed by criminal law ("narrow" Gray)
Clunis v Camden & Islington HA
(1998) CA; mental patient committed manslaughter: cannot use tort to "undo" criminal sanction

3. Lost illegal earnings
Generally barred; but not re: failure to pay tax!
REMEDIES
1. Damages (Common Law)
2. Injunctions (Equitable)
3. Equitable compensation
4. Restitution
5. Declaration
DAMAGES
"It's all about the money" (about the numbers)
other concepts relevant to damages (as well as liability) eg causation, remoteness, contributory negligence
Many similarities between Contract & Tort
The main idea: full compensation
assessed by reference to
C's loss
Assessed
once

(C can't come back)
some modifications in some personal injury cases (eg didn't know) or in "continuing wrong" cases (
eg
ongoing nuisance as cannot claim for future loss in nuisance)
Lump sum
(but see exceptions).
To ensure closure and freedom of choice in use of damages.
"Duty" of
mitigation
on C to act reasonably post-tort. Applies to all torts.
Different
kinds of Damages
THE KINDS OF DAMAGES
1.
Contemptuous


2. Nominal

3. Compensatory

4. Exemplary

5. Aggravated

6. "Gain-based"
C wins case but court disapproves of claim.

C "deserved what happened"

Damages: £0.01
Contemptuous Damages
Nominal Damages
C has a complete cause of action but no loss

Damages: £5-20
Compensatory Damages
Measures C's
loss
: the greater the loss the greater the Damages

Basic principle:
Restitutio in integrum
(
full
compensation)

(put C in same position as he would have been in if the tort had not been committed)

-
Livingstone v Rawyards Coal Co
(1880)

Compare C pre and post tort & difference = measure of Damages
Can include future losses caused by breach (assessed at time of breach)
Burden of proof on C to prove extent of that loss caused


Easy (if boring) to calculate for some pecuniary losses (eg loss of earnings)
aka

Special Damages
; less easy for non-pecuniary losses (eg "loss of amenity")
aka

General Damages

Exemplary Damages
Controversial: punish D - confusing civil and criminal sanctions
Therefore limited in extent:
Rookes v Barnard
(1964)
ONLY available if:
(i) "oppressive, arbitrary or unconstitutional action by servants of the government" (abuses of Executive power)
or (ii) cases where D sought to profit from tort (eg libel in newspaper or making fraudulent claim v insurer)
Not entitled as of right, but at Court's
discretion

Law Commission wants to retain them and extend them to any tort or equitable wrong but not breach of contract. No Legislation
Aggravated Damages
For subjective mental distress & hurt feelings due to the way D committed the tort (eg maliciousness).

Not
available in Tort of Negligence but have been awarded in:

Trespass to person (assault, battery, false imprisonment)
Trespass to land
Deceit
Malicious prosecution
Misfeasance in public office
Misuse of private information
Discrimination
Normally limited to 2x compensatory damages & increasingly rolled into
General Damages
Gain-based/restitutionary Damages
Usually for "property torts" (conversion, trespass to goods, trespass to land) but no theoretical limit

Sometimes referred to as
"Licence fee"
damages (for use of property) or
Disgorgement
damages (account of profits that D made - potentially
all
profit)

Classic case:
AG v Blake
(2001)
DAMAGES IN PERSONAL INJURY CLAIMS
"HEADS OF LOSS"







Non-pecuniary
(General Damages)
Pecuniary
(Special Damages)
1. Pain & Suffering (
subjective
experience of C inc. worry or awareness that life has been shortened.

Therefore nothing if C unconscious).

2. Loss of Amenity (effect on ability to
enjoy
life;
objective
test.

Therefore can receive compensation even if unaware of loss of amenity.

Usually lumped together in one sum

Courts will use Judicial College Guidelines and past decisions as guide plus
Simmons v Castle
(2012) uplift 10%.
Are non-pecuniary losses justifiable? (Jolowicz)

1. Arbitrary (where is the market in injuries)?
2. Less important than pecuniary losses (in terms of value) therefore diversion of funds.
3. People don't value them - if they did, they would insure them more.
4. Money cannot replace lost limbs.

But such damages
are
available in most developed legal systems; courts value injuries every day and
Judicial College
produces Guidelines on a yearly basis
Past losses (pre-trial) are easier to calculate than Future losses (post-trial).

Past losses calculated by using evidence and time actually elapsed (
eg
loss of earnings over 2 years 3 months).

Future losses have to be "reduced" to take account of current use of money but also future uncertainties and are therefore heavily discounted (whence "full compensation"?)
Some exemplars

1. Loss of earnings - net earnings, career trajectory, "vicissitudes of life", disadvantage on the open labour market (
Smith v Manchester
award)
2. "Lost years" by reason of reduced life expectancy recoverable less living expenses which won't be incurred.
3. Domestic and DIY services
4. Medical care - as long as reasonable incurred (not obliged to use NHS but if use NHS cannot recover notional costs; & NHS can recover costs from insurer up to £47,569: Health & Social Care (Community Health & Standards) Act 2003.
5. Future expenses inc. medical, physio, prescriptions, hairdressing, equipment, additional travel costs, accommodation needs, pensions, care (inc. gratuitous care: on trust for carer:
Hunt v Severs
(1994)), DIY & gardening. Use of Ogden tables (multipliers and multiplicands)

+ INTEREST
2% on General Damages from date of issue of Claim Form

8% on past losses
Deductions of Benefits received?
Not if

1. due to benevolence of Third Party; or
2. fruits of personal insurance (
Parry v Cleaver
(1970)); or
3. pension received due to early retirement cannot be offset against loss of earnings

But
Secretary of State is reimbursed for certain social security payments under Social Security (Recovery of Benefits) Act 1997. There are other recoverable payments eg under Diffuse Mesothelioma Schemes of 2008 and 2014
Exceptions to one time lump sum
1. Interim payments (pre-trial)

2. Provisional damages: s.32A Senior Courts Act 1981 re: risk of future serious deterioration

3. Periodical payments: s.2(1) Damages Act 1996 - with consent of parties but court decides whether to approve

4. Structured settlements - insurer buys annuity with lump sum which provides guaranteed source of income. Untaxed. But capital is locked.
DAMAGE TO PROPERTY
Damages for
Diminution in Value
of damaged property and any Consequential Losses (inc. loss of profits/use).

Diminution in value
normally measured by reasonable cost of repair (or cost of rectification as assessed by expert).

But cost of repair is only
EVIDENCE
of diminution in value:
Coles v Hetherton
(2013) CA

Therefore if C can repair at no cost, there is still a loss;
if the cost is unreasonably high then that cost will not reflect the diminution in value (
eg
if repair costs exceed value).

And because cost of repair is only evidence, does not matter if C does not intend to effect repairs.
ASSESSING COMPENSATION
NON PHYSICAL DAMAGE
Psychiatric Harm
Pure Economic Loss
(or "nervous shock")
Why is it treated differently?

Is a form of personal injury but...

1. A pervasive belief that diagnoses can be inaccurate (concern
re:
veracity, unmeritorious claims (back to fraud!) or caused by Claimant's weak constitution or "litigation syndrome").

2. Some forms of mental harm are controversial & fluid: DSM-1 (1952) had 106 conditions; DSM-IV (2000) had 297; DSM-5 (2013) has led to a petition of 13,000 calling for independent review).

3. The line between physical and mental not always understood (
eg
depression caused by physical changes in brain?)

4. The physical effects of accidents are limited by the laws of inertia whereas mental effects may spread beyond the immediate "explosion" (fear of floodgates but "administrative convenience" v empirical proof?) ie fear of indeterminate liability
A precondition of liability in Negligence:
Damage (nervous shock) has to be a
"recognized psychiatric injury".
Mere distress insufficient:
Hinz v Berry
(1970);
Hicks v CC of S Yorks
(1992) fear of impending death insufficient...
Historically, even "nervous shock" not actionable but:

1. Intentional tort (
Wilkinson v Downton
(1897) and now
O v Rhodes
(2015) SC)

2. In Negligence from
Dulieu v White
(1901)
"the only sensible general strategy is for the courts to say thus far and no further [and] ... to leave any ... development in this corner of the law to Parliament. In reality there are no analytical tools which will enable the courts to draw lines by way of compromise in a way that is coherent and morally defensible."

- per Lord Steyn in
White (Frost) v CC of S Yorks
(1999)

"the rules on the recovery of compensation for negligently inflicted psychiatric harm are widely regarded as some of the silliest and most arbitrary in the law of tort."

- Michael Jones

"what is important is that the student should realise that all these concepts are tools to be used as necessary; they are a means to an end, not the end itself. Attachment to concepts as such, to the exclusion of the socio-economic pressures that guide the way in which they are used, can distract lawyers from the real policy issues that lie behind them."

- Markesinis & Deakin (2008, p.33)
cf.
actionability in other contexts:

- employment law: "hurt feelings"
- Contract law: "disappointment"/"loss of amenity"
- Protection from Harassment Act 1997: "anxiety & distress"
- Fatal Accidents Act 1976: "ordinary grief" following death
- education cases eg
Phelps v Hillingdon LBC
(1999) &
Skipper v Calderdale MBC
(2006): failure to diagnose dyslexia leading to "frustration, loss of self confidence or self esteem"
etc
A complex web of rules & distinctions
Non "pure" psychiatric harm
(ie psychiatric harm consequent
on physical injury = unproblematic)
"Pure" psychiatric harm
One off event
(accident)
Gradual build up
(stress/disease)
Psychiatric harm does not have
to be reasonably foreseeable
consequence of negligence; RF of
physical injury
necessary & sufficient
& thin skull rule applies
Simmons v British Steel plc
(2004) HL
Primary Victim
(participant in accident)
Secondary Victim
(Witness to accident)
In "danger zone"?

Page v Smith
Reasonably believing
self to have involuntarily
caused another injury

Dooley v Cammel Laird

C has to be present
at scene
Psychiatric injury has to be
reasonably foreseeable consequence
of negligence in person of reasonable fortitude/reasonable phlegm
Psychiatric harm has to be reasonably foreseeable in Claimant (subjective knowledge matters)
Primary Victims
- "near miss" cases; "reasonable fear for own safety"
(so C has to be in the "danger zone" - subjective belief is not enough:
McFarlane v EE Caledonia
).

Page v Smith
: recurrence of ME/CFS in low velocity RTA

Psychiatric harm not reasonably foreseeable in person of reasonable fortitude but personal injury was.

Majority: psychiatric injury = personal injury therefore C could recover based on "thin skull" rule (if duty breached then liable for all consequences even if those consequences not RF).

Was in danger zone in a way the police officers in
White v CC of South Yorks
weren't (arriving on scene); rescuer case of
Chadwick
(1967) reinterpreted as a "danger zone" case
cf. Donachie v CC Greater Manchester
(2004) (imagined attack)
cf. Rothwell v Chemical & Insulating Co Ltd
(2007) (
Grieves
) HL
C in danger zone (exposure to asbestos) - pleural plaques (not damage but risk of future damage).

Worried about risk of cancer - clinical depression.

Evidence: person of reasonably fortitude would not react so strongly to become ill.

Gap between negligent exposure to danger & mental consequences + fear of unfavourable event that had not yet happened.

Page v Smith
distinguishable.
Secondary Victims
(Passive & unwilling witnesses)
Alcock v Chief Constable of S Yorks
(1992) HL

Hillsborough disaster: 96 dead, 400 injured, 10 Appellants, none in danger, most saw event on tv.

Question: how to limit claims beyond reasonable foresight?
Answer: impose a number of preconditions (or control mechanisms):

*
(as above) Event has to be sufficiently "shocking" to make psychiatric harm reasonably foreseeable to a person of "reasonable fortitude" (often determined by medical evidence).
cf.
Primary victim of abnormal susceptibility (no need for RF of
psychiatric harm
at all).

AND ...

"Proximity" in various guises ...

1. C must have "
relationship of close ties and affection
with injured person" (relational proximity).

* Has to be proved if not immediate family members. By the time case reached HL, too late for some.

2. C must be
present at scene of accident or "immediate aftermath"
of
event
(temporal/spatial proximity)

* see
McLoughlin v O'Brien
(1983) HL which was distinguished in
Alcock eg
"identification" at mortuary 9 hours post event.
Taylor v A.Novo (UK) Ltd
(2013) CA - sudden death 3 weeks post accident. Event was accident not death. Therefore, insufficiently proximate in time.

3. Psychiatric harm must be
"product of own unaided senses"
(sight/hearing) - not mediated by media (tv/radio).


What counts as sufficiently shocking and unmediated event?

In
Alcock
, fact that
broadcasting guidelines
forbade transmission of "recognisable human suffering" meant that images only led anxiety as not sufficiently shocking (and insufficiently immediate: tv). Psychiatric harm = caused by "imagination"

Sion v Hampstead HA
(1994) 2 week vigil by bedside of dying son = "gradual dawning of consciousness"

But in
Walters
, C was told matters about daughter. Redefined as "part of the circumstances of the entire event" therefore relevant to whether had witnessed a "shocking event" which started with her waking up and seeing her newborn throwing up blood...

Ghalli-Atkinson v Seghal
(2003) mother saw accident scene but not daughter until 2 hours later at mortuary. Medical evidence: 20% by what saw, 80% by "ordinary grief" (succeeded in full)

Glamorgan Trust v Waters
(2002) - mental breakdown after death of new born, 36 hours at bedside redefined as "entire event". Not "dawning of consciousness" but "sudden realisation".

Liverpool Women's Hospitals NHS Foundation Trust v Ronayne
(2015) CA

Owers v Medway NHS Foundations Trust
(2015) HC




A mishmash of cases...

Occupational stress, prisoner cases, professionals and their clients, local authority (social services) cases, mental harm due to distressing knowledge (bad/misinformed news/fear of future harm); {humiliating/distressing treatment (intentional torts)}

General comments:

Here not a general fear of indeterminate liability but fear of over-deterrence

Relationship between C & D takes center stage with two important ideas:

1.
Voluntary assumption of responsibility
(for mental wellbeing) but NB nothing "voluntary" about it
eg
prison officers do not "volunteer" to look after prisoners' mental health.

2.
D's knowledge of C's pre-existing vulnerable condition
(
eg

Home Office v Butchart
(2006) - knew C was suicide risk, put C in a cell where cell mate committed suicide...;
eg
stress cases:
Hatton v Sutherland
(2002),
Barber v Somerset CC
(2004) - do not use reasonable fortitude test but employer entitled to assume can withstand normal pressures of job unless has actual knowledge of particular vulnerability)
An outlier?

Psychiatric injury as a result of witnessing destruction of property

Attia v British Gas
(1988)

Assumption of responsibility?
Exemplar "mishmash" cases
W v Essex CC
(2001) - foster child abusing natural child

Al-Kandari v JR Brown
(1988) - spouse's children kidnapped due to solicitor's negligence in matrimonial proceedings

Organ Retention Group Litigation
(2004) - organs removed from dead children without parents' consent

Allin v City & Hackney HA
(1996) - C falsely told of death of child soon after birth


The Current Position on establishing a Duty of Care

(from
Donogue v Stevenson
(1932) to
Caparo v Dickman
(1990) via
Anns v Merton LBC
(1978)).

And beyond...)
Three Main Approaches (which can overlap! - see
Customs & Excise Commissioners v Barclays Bank plc
(2006) HL)
1.
Caparo
tripartite test

a. Foreseeability of Harm
b. Sufficient Proximity between C & D
c. Whether Fair, Just & Reasonable
to impose Duty
2. Whether D had
Assumed Responsibility
to C re: matter which arises.
3.
Incremental
test
Prominent in cases of:

Negligent misstatement OR
D undertaking to take on task for C; AND/OR
Pure Economic Loss ("PEL")

but
Caparo
= PEL, Neg Misstatement case & created tripartite test!

Spring v Guardian Assurance plc
(1994) (one judge used VAR; rest used
Caparo
);

Barclays Bank
: no assumption of responsibility as
no choice
but to comply with Court Order. Therefore should use contempt proceedings rather than Tort of Negligence.

Lord Mance: "no analogous case; not incremental"
Lord Hoffmann: "Analogous to cases where statutory duty where no private law liability"
"A Guide not a Formula"
Treat words as "Labels"

Sometimes have additional/more precise rules (
eg
psychiatric harm cases) where relationship with
Caparo
unclear.
1.
Foreseeability
(that C might be injured if D careless).
Rarely in issue.
Whether C's injury foreseeable is a Question of Fact.
Don't need to foresee C precisely only that C is a member of a class who would be at a "real risk" of harm by reason of D's careless act.
Tested objectively

2.
Proximity
(wider than physical nearness; about closeness of
relations
)
Depends on
type of case

directly caused physical loss, don't need proximity at all beyond physical proximity
eg Hill v CC of S Yorks
(1990) - no prior relations with victim; wrongdoer not in custody; cf
Osman v Ferguson
(1993)
Losses due to incorrect info, need relationship "equivalent to contract" (
Hedley Byrne
)
sometimes need proximity between D and source of harm rather than parties (eg
Sutradhar v NERC
(2006) - see later)

3. Whether
fair, just and reasonable
to impose Duty of Care
Fairness, Justice & Reasonableness = Judicial Policy
The Nicholas H
(1996)

Crack in vessel, master calls in surveyor employed by classification society, recommended temp welding work, sank 4 days later, loss of $6.2 m cargo. Cargo owners receiver $500K from ship owner & seek balance from classification soc.

Assumed
negligence by surveyor, foreseeability & proximity

Not F/J/R to impose D of C:
complex network of transactions re carriage of good by sea
liability of ship owners limited to
by statute
$x p ton
if liability imposed, would disturb balance between cargo owners and carriers set by
international conventions
would lead to potentially
wasteful indemnity insurance
for classification societies who might also decline to survey high risk vessels (who act for public welfare)
here was attempt to pass liability from subrogated loss insurer to liability insurer)
Caparo v Dickman
(1990) HL

inter alia...

Reliance by investors on audited accounts was foreseeable but no duty based on fear of multiplicity of claims (floodgates
ie
administrative public policy concerns)

Fairness factor: imposition of a duty might lead to an 'undeserved entitlement'
Further situations where Duty of Care problematic:
damage "caused" by failure to act (come to someone's aid) or prevent harm being caused by third party
OMISSIONS
HARM CAUSED BY ACT OF
THIRD PARTY
General rule:

No liability for
1. Failing to act
2. Failing to prevent TP from causing damage to C

even if
harm reasonably foreseeable & D could have prevented it

ie
no obligation to act for
benefit
of another
Malfeasance (= "bad" act) (sometimes misfeasance)

D makes C worse off by doing something positive (C is worse than if D did nothing)
D is adding danger to the world
by doing something badly

D should normally refrain from this
if reasonable

eg
Donoghue v Stevenson
(not failing to inspect but putting ginger
beer into circulation without inspecting
Need to take care when characterizing the wrong eg failing to stop v driving too fast)
Nonfeasance (= no act)

Failing to protect C
from harm emanating
from elsewhere (TP, nature,
victim/C) or make C
better

ie
failing to do anything at all

eg
not saving drowning child,
not warning man walking towards cliff
Justifications

(some from
Stovin v Wise
(1996) HL)

Province of Contract/Statute

Infringement of liberty
(political)
Tort should only interfere with my freedom of action if it is to protect someone else's freedom or people shouldn't have to live reasonably all the time

Certainty
: what are the limits of positive duties?

Why pick on me?
(if more than one person could have saved - all liable in full). But also if legal compulsion to act then may remove moral compulsion and create resentment (moral). Might actually deter rescue (avert gaze and walk on by).

Individual Responsibility
: if TP or C have put C in danger, why should D save C and TP/C "get off" (eg drug-taking)?

Hand in pocket
= cost (economic); inefficient allocation of resources

Exceptions
"Special Relationships"

1. D has "assumed responsibility" to look after C


2. D put C in danger of suffering harm


3. D interfered with C or someone else's saving C from harm


4. D in control of dangerous thing/person posing foreseeable threat/special risk to C
Who has to take positive steps to protect others?
Relationships of
dependence and control
(over C)
Kirkham v CC of Greater Manchester
(1989):
police
under duty to protect detainees
known suicide risk
Savage v S Essex Partnership NHS Foundation Trust
(2008) HL -
mental hospital
to
inpatient
who is a
known suicide risk
but
not
if no dependence eg
Barrett v MoD
(1995): no duty on control drinking of soldier generally; but duty when starts to look after unconscious soldier (VAR)
Other Special Relationships
between D and C
Doctors, Employers
Occupiers
because of the Occupiers Liability Acts (Statutory Duty)
in Tort (
eg
if victim not on D's land) If had control over a natural hazard on land:
Goldman v Hargrave
(1970) or Man-made dangers
Leakey v National Trust
(1970); or creates or adopts risk.
But not to prevent wilful damage caused by TP unless
very likely
:
Smith v Littlewoods
(1987)
Teachers
of children with
special educational needs
:
Phelps v Hillingdon LBC
(2001)
Social services
(sometimes):
Barrett v Enfield LBC
(2001);
D v E Berks
(to children, not parents)
Special Relationships between D and TP
(TP causing harm)
Carmarthenshire v Lewis
(1955) - school
in loco parentis
to prevent wrong by pupil (even though parent does not owe private law duty to own child beyond duty that would be owed to another child:
XA v YA
(2010) HC mother does not owe own son duty to protect from abuse)
Home Office v Dorset Yacht
(1970) - Warders must protect property owners from youth offenders (NB brought danger onto land and failed to control it)
Ellis v Home Office
(1953) - where D has control over C & TP: duty to protect C from attack

Where D
Voluntarily Assumes Responsibility
for C... eg undertaking by public body...
Often overlaps with "omissions":
D has
failed to prevent
TP from committing wrong

& is often a public body failure too (think police)
"this case looks like that case"...
A good example of competing public policy concerns (within F/J/R category):
X & Others v Bedfordshire CC
(1995) HL
First public policy concern with claim to law: Wrongs should be remedied

Counter-considerations:

1. Common Law duty would cut across statutory scheme for protecting children at risk.
2. Task of local authority is "delicate" enough as it is.
3. If liability imposed, might lead to cautious/defensive behaviour.
4. Possibility of vexatious & costly litigation due to conflict between social work and parents of child removed (or not, as the case may be)
5. There is a statutory complaints procedure (a kind of remedy for grievances) plus local authorities' ombudsman.
6. Need to proceed incrementally & by analogy. No case with analogous duty.
Assumption of Responsibility
Derived from
Hedley Byrne v Heller
(1964): can have duty of care in tort for
negligent misstatements

if
D
assumed responsibility
to C and C
relied
on D.

Now extends beyond statements & includes D
undertaking to perform tasks
for C
Parallel liability to contract (eg
Henderson v Merrett Syndicates
(1995))

Rivals
Caparo
test

* Educational psychologist advising on child:
Phelps
* British Boxing Board of Control re adequacy of medical arrangements at fights:
Watson
* Referee at amateur rugby match:
Vowles

Objective test as responsibility never expressly assumed & can now have VAR without reliance (
White v Jones
(1995)).



Public Bodies & Private Law
The starting point:

in theory, liability is the same as for other legal (private) persons (
ie
no general immunity from suit & public body will only owe a duty where private person would)

Dicey
:

application of "ordinary principles" of private law to public authorities is fundamental to the
Rule of Law
Many important cases in trespass to person, false imprisonment & trespass to property were attacks on "governmental abuse"...
Some general implications of the "Diceyan perspective"
1. It follows that public bodies may incur liability in Tort just like private persons (and has done since 19C).

2. Just because an act or decision is invalid in
public law
terms does not necessarily make it actionable in private law.

3. The rule that private law duties should not be imposed for the benefit of others applies to public bodies (even though public bodies are often set up precisely for that reason
ie
to help others).
Private law liability may arise in different ways:
1. For breach of statutory duty.

2. Public body itself may be under a Duty of Care (
eg
as an employer towards its own employees or towards members of the public directly).

3. An individual member of public authority staff may owe a Duty of Care to a member of the public. The public body as employer would then be vicariously liable.
All three may run parallel!
Hence why public bodies have (had) some protection
1. Some matters are not "justiciable" (for example policy decisions made by public bodies / matters going to the allocation of resources).

* Law sometimes attempts to distinguish between "policy" and "operational" decisions.

2. Historically, had greater protection:

* Crown immunity (central governmental bodies could not be sued in tort; removed by Crown Proceedings Act 1947)

* Public Authorities Protection Act 1893 (limitation period for claims against local governmental bodies 6-12 months).

3. Further protection through third limb of
Caparo
(not "fair, just or reasonable" to impose a duty of care) ie protection via policy arguments.
Justifications for special treatment:
1. Have "deep pockets" (usually don't go bankrupt) therefore easy target especially for unmeritorius claims (fear of fraud & nuisance value claims etc). Substantial claims will led to diversion of resources and/or increased taxation (
public policy
:
distributive justice; social/fiscal policy
).

2. Diversion of resources away from community towards individual claimants (
legal policy
:
corrective justice v distributive justice
).

3. Judges should not interfere with politics/policy making functions. Public bodies are normally set up by statute after careful consideration by Parliament and have been given a degree of discretion within a statutory regime (
public policy
:
constitutional
).

4. Legal reasons: Duty of Care analysis complicated by context of statutory powers & duties (
public policy
:
legal policy/constitutional
)

5. Imposing liability in private law will lead to defensive practices: they will worry about being sued and so won't do their jobs properly (
public policy: social/economic - inefficient allocation of resources/waste
).

6. But cf. widening of liability due to Human Rights Act 1998 (
Euro policy
)


And the rest?
Public body liability at private law is often a function of:

The statutory origins of legal duties and powers and whether those functions justify restricting a duty of care (based on policy or justiciability).

Insufficient
that PB is under a statutory (public)
Duty
to act.
Insufficient
that a statute allows for payment of compensation.
Insufficient
that there is a public law duty to consider exercising a statutory power
Further examples of unsuccessful cases against Police
* Owner of shop cannot sue for losses caused by alleged negligent failure to catch burglar:
Alexandrou v Oxford
(1993) CA

* Estate of victim of RTA has no cause of action against police for failure to alert road users to diesel spillage on highway caused by TP:
Ancell v McDermott
(1993) CA

* Police owe no due to protect potential victims of crime (
Osman v Ferguson
(1993) CA - went to Europe
Osman v UK
); witnesses to crime (
Brookes v Commissioner of Police of Metropolis
(2005) HL) or witnesses in a criminal case (
Van Colle & Smith
(2008) HL)

* Police owe no duties to passers-by injured in the course of an arrest of a suspect
Robinson v CC of W Yorkshire
(2014) CA

* Police owe no duty at private law to act on a 999 call
Michael v CC of South Wales
(2015) SC

Can you never sue the police in negligence?
Almost never:

Swinney v CC of Northumbria
(1997) - confidential info about C (police informant) stolen from police vehicle - assumption of responsibility.

but cf.
An Informer v A Chief Constable
(2012) CA

Reeves
(1998) - suicide risks (VAR)
Stovin v Wise
(1996) HL

Statutory duty (Highway Act 1980) to maintain fabric of road, breach of which can give rise to a claim for breach of statutory duty.

RTA caused by poor visibility (a bank of earth at a junction).

PB has statutory power to remove obstructions and/or to require landowner to do so. Decided to remove bank but did not follow through.

Lord Hoffmann: cannot turn a statutory "may" into a common law "ought". May be duty if specific reliance (VAR).

Followed in
Gorringe v Calderdale MBC
(2004) HL re: failure to erect "SLOW" sign on road.
The example of the public Highway Authority
The wide reaching tentacles of Public Bodies
Planning, building regulations
Police, fire & rescue
& other emergency services (maritime & coastguard)
Social services (social work)
Schooling
Health (including mental health)
Highway maintenance
(Social) Housing
Licensing
Military
Regulating the economy
Charity Commission
Food safety
HRMC
Courts & Tribunals
Border Agency
Examples from Social Services & Education
Leading case
was

X v Bedfordshire
(1995) (went to Europe:
Z v UK
(2001);
TP & KM v UK
(2002))

but later cases place less reliance on background statutory context & risk of defensive practices - due to influence of human rights cases & will tend not to strike out at preliminary stage:

Barrett v Enfield LBC
(2001) (failure to spot negligent treatment whilst C in care)

Phelps v Hillingdon LBC
(2001) (failure to spot educational needs)

D v East Berks
(2005) (CA's decision on duty owed to children
not
appealed; no duty to parents re wrongful suspicion of child abuse).

cf.
Mitchell v Glasgow City CC
(2009) HL - no VAR
What about the Military?
No duty of care owed by MoD to its "employees" (soldiers) to provide safe system of work during battle conditions (
Mulcahy v MoD
(1996)); and soldiers do not owe each other a duty of care.

But may be a duty of care to provide suitable equipment & training during the
preparatory stage
:
Smith v MoD
(2013) SC. Case not struck out, but...

"it is of paramount importance that the work that the armed forces do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things go wrong..."
per
Lord Hope
Compare with liability for riot
Mitsui Sumimoto Insurance Co v Mayor's Office for Policing and Crime
(2014) CA

(appeal to SC outstanding)


Riot (Damages) Act 1886
JUSTICIABILITY
Connor v Surrey County Council
(2010) CA

(i) "pure" choices of public policy are not justificiable.
(ii) if decision is mixed policy and operational, then the greater the element of policy the more likely it is that it is not justiciable.
(iii) where purely operational, the matter is justiciable.
Domesticating Convention Rights
UK first country to
ratify
the
European Convention on Human Rights 1950

But Convention rights were not
domesticated
(Convention NOT incorporated) until
Human Rights Act 1998
(in force October 2000).

s.6(1) It is unlawful for a public authority to act in a way which is incompatible with a convention right.

s.6(3)(a) "public authority" includes a court.

If public authority acts unlawfully, Court can grant relief considered "just and appropriate" (s.8(1))

- Relief may include damages (therefore discretionary);
- Court will take into account ECtHR principles:
- Sometimes declaration may "sufficient".

Therefore not a tort of breach of statutory duty (damages not "as of right")
Implications of the Court being a "public authority"
Can
only
bring claim re: judicial act via Appeal.

Can
not
claim damages re: good faith judicial act.

Court cannot act incompatibly
with convention rights

- Does this mean court has to act compatibly with convention when declaring and applying
Common Law
principles;
OR
- Is it enough that the Human Rights Act provides a remedy?

If the former, the Common Law would be subsidiary to the Convention.
There is
no real guidance
, but there is an overlap between Common Law and Convention rights.
Overlapping areas
Both Common Law and Convention are supposed to set
Minimum Standards
therefore unsurprising that cover similar areas.

For example:

Art 2
(Right to life. Tort of trespass to person & Negligence)
Art 3
(Prohibition on torture, inhuman & degrading treatment. Trespass to person & Negligence)
Art 4
(Prohibition on slavery & forced labour. Law of Contract)
Art 5
(Right to liberty & security. Tort of False Imprisonment.
Habeas Corpus
)
Art 6
(Right to fair trial.
Magna Carta
,
Bill of Rights
. Common Law).
Art 8
(Right to privacy & family life. Tort of misuse of private information. But no general tort of infringement of privacy).
Art 10
(Freedom of expression. Common Law right tempered by Tort of Libel)
Art 1 1st Protocol
(Right to property. Trespass to land; Tort of Nuisance. Tort of Conversion)
Parallel Regimes?
Where Convention protects a right not covered by Common Law, generally Courts say "parallel regime" & Court fulfills its duty of not acting incompatibly by giving a remedy via Act.

Provided
breach of relevant Article can be proved.

For example,
Smith v CC of Sussex
(2009) HL (
Van Colle
)

No duty at Common Law on police to protect individuals from crimes committed by third party (therefore no concomitant Common Law right to sue police for failure to protect). Basis: the
Hill
"immunity".

There might be a duty on the police under article 2 of the Convention via HRA 1998 to protect an individual if the
Osman
test is satisfied eg
Michael v CC of South Wales
(2015)
Is a claim under the HRA a claim at private law?
Probably
NOT
hence uneasy relationship with Tort

Private law
= claims against all (inc. public bodies) that results in compensation

HRA
= about holding the state (public bodies) to account by upholding minimum standards & vindicating rights (quasi-public law)

See Donal Nolan (seminar week 22)

But much of tort law has traditionally protected some human rights
ie

basic dignity as human being
(not to be touched without consent, threatened, falsely imprisoned etc)
The impact of
Osman v UK (1998)
Pre Human Rights Act 1998 (factually and pre 2000)

Petitioned ECtHR after claim struck out based on
Hill
"immunity".


Where "...the authorities
knew
or
ought to have known

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

No breach of Art.2 (no precise moment when police should have acted)

but was breach of Art 6 (right to fair trial). Hill "immunity" precluded it.


Retreat from
Osman
Art. 6 analysis
in
Z v UK
(2001)
[
X v Bedfordshire
(1995) HL]
Alleged breach of arts 3, 6, 8 & 13

ie
failure to remove child from abusive home amounted to inhuman & degrading treatment (art 3) and/or protection of family life (art 8); that striking out the claim on basis of public policy (under third limb of
Caparo
) denied the claimants a fair trial (art 6) and therefore, as there was no remedy in domestic private law, there had been a breach of art 13.

ECtHR said breach art 3 (conceded), no breach of art 6 (as had misunderstood UK law in
Osman
) and no separate breach of art 8. Therefore entitled to damages under art 13.


Net Result...
1. Cannot challenge absence of Duty of Care as a breach of Article 6 (is not a "procedural bar")

2.
Osman
test for breach of Art 2 remains (but subject to modification).

3. Failure to remove children from abusive home situation is a breach of Art 3 OR wrongly removing child on basis of suspected child abuse is a breach of Art 8. which led CA in
D v East Berkshire
to find a Duty of Care was owed to children (contrary to HL decision in
X v Bedfordshire. Quaere
when can the CA overrule the HL?) but not to parents in case of mistaken diagnosis of child abuse.
Some comments about
Osman
test
1. Is not confined to Police cases but applies to all public bodies who might be aware of a real & immediate risk.

BUT, outside police cases, only where has
control
over victim (eg detained in custody or under mental health legislation) and/or where victim is
vulnerable
and there is an
exceptional risk of harm
(
Rabone v Pennine Care NHS Trust
(2012) SC). See also
Al-Skeini v UK
(2011) - civilians killed in "non combat" situations in Iraq - art 2 duty on UK who had "authority & control" via soldiers to investigate cause of death. Lay behind HR part (Snatch Land Rover claims) of
Smith v MoD
(2013) SC.

Therefore mere fact that public authority could have prevented harm is not enough to engage Art 2.

2.
Sarjantson v CC of Humberside Police
(2013) CA suggests that potential victim does
not
have to be
identified
for art 2 to be engaged provided the police knew there were actual or potential victims.
And what about Causation?
Sarjantson
: C does not have to prove that intervention by public body would have made any difference (ie no need to satisfy But For test)

Why? Because under Human Rights law do not have to prove that you have suffered damage only that your rights have been infringed (so do not need to prove damage was caused by wrongdoing).

This is consistent with idea that damages are not available as of right: you should not have to prove damage if you are not entitled to damages in respect of such damage.
TORT LAW & HUMAN RIGHTS
FORESEEABILITY
What, no Duty (owed to the parents)?
MAK v UK
(2010) ECHR - removing child after wrongly suspecting child abuse is an infringement of
both
child and parent's Art 8 rights!
Or

"Trippers & Slippers"
Why study Occupiers' Liability?
1. QLD requirement

2. "Most accidents happen in the home" (yes, but, PL claims require D "at fault").

3. Many accidents happen on someone's property or structure (
eg
shops, pubs, clubs, public and privately owned spaces (eg University))
NB
for accidents on roads: Highway Act 1980

4. Overlaps with Tort of Negligence (was liability at Common Law & some carry over).

5. Exam!
What is it?
Regulation of liability of
Occupier
of
premises
towards
persons

on
those premises.

Long-standing positive duties on Occupiers to protect others
on
their land


(if things are done on premises which affect
other

premises
= probably Tort of Nuisance)
How was liability regulated
at Common Law (in brief)?
Gradations of standards of care owed to different classes of people:

Contractors
: premises had to be reasonably fit for purpose.

Invitees
(someone who had a mutual business interest with occupier): occupier had to protect invitee against "unusual dangers" of which he knew or ought to have known.

Licensees
(those with express or implied permission): occupier had to warn against "concealed dangers" of which occupier actually knew.

Trespassers
(the "
uninvited
"): only duty was to abstain from deliberately or recklessly injuring them
Philosophy = (despite +ve obs) preservation of freest use & enjoyment of land by occupier
Common Law liability in Statutory Form?
Not quite:

* Duty question is different (broadly easier) & (obviously) contained in statutes. Common Law retains some influence.

* Unclear whether variable standards of care (
Bolam
may apply to professionals
eg
tree inspectors:
Bowen v National Trust
(2011));

* may also be possible difference between 1957 and 1984 Acts re breach question (see Lord Hoffmann in
Tomlinson v Congleton BC
(2003)).

* The breach question is similar to breach question in negligence but NB occupier may owe positive obligations.

* Causation issues normally identical as at Common Law (usually, but for test).

* "Technical defences" for practical purposes identical but some are contained in statutes.
The Relevant Acts
Occupiers' Liability Act 1957


Deals with duties owed to "Lawful Visitors"


Occupiers' Liability Act 1984

Deals with duties owed to others who are not lawful visitors (most commonly, trespassers but also those exercising a lawful right of way
ie
"ramblers")
NB both require accident caused by a
Danger due to the
state of the premises
Similarities and differences
OLA 1957
OLA 1984
Both require a
danger
due to the
state of the premises
If D = Occupier & C = Visitor
then a Duty is owed
If D = Occupier & C = not Visitor
then Duty must be established
via threshold conditions s.1(3) OLA 1984
"Common Duty of Care"

s.2(2) "...such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises..."
s.1(4) "...such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned."
s.1(5) "...may be discharged [by giving warning]"
s.2(4)(a) "... warning is not to be treated without more as absolving the occupier from liability."
D's resources may be relevant:
Ratcliffe v McConnell
(1999)
& nature of trespass
Cannot claim for property damage s.1(8)
s. 2(5) No duty re "
willing acceptance of risks
" s. 1(6)
Occupier can exclude liability provided "adequate" & compliant with UCTA 1977
Statute silent on power to exclude liability
Danger due to State of the Premises
Identify the danger/defect

eg
tripping edge, wobbly paving stones, holes, liquid, unguarded machinery, fire, broken glass, tree stumps & "splat walls" (
Gwilliam v Herts Hospital NHS Trus
t (2002))

Usually "traps for the unwary" or latent dangers

Not
minor defects
eg

Esdale v Dover City Council
(2010)
s. 1(3)(a) OLA 57 "... any fixed or movable structure, including any vessel, vehicle or aircraft."
OCCUPANCY DUTY
Q: "was there something wrong with the
condition of the premises

(given the purposes for which invited, if visitor)?"

No duty to guard against "obvious dangers":
cease to be dangerous when aware of them

eg T
omlinson v Congleton
(2003) HL (if was danger (drowning/shallow diving) = obvious)
Staples v West Dorset DC
(2001)

("obvious dangers" may not be obvious to everyone
eg
children) - but no duty of absolute safety
Not ACTIVITY Duty
(= Tort of Negligence - see
Fairchild
in Court of Appeal)
but drawing the line?
Cunningham v Reading FC
(1992)
Occupiers and (non-) Lawful Visitors
* s.1(2)(a) OLA 1984 refers to OLA 57 for definitions.

* s.1(2) OLA 57 "...[the duty arises" in consequence of ... a person's
occupation or control
... The persons who are to be treated as an occupier and his visitor are
the same as the persons who would at common law
be treated as an occupier and as his invitees or licensees."
The Occupier:
"occupation & control" - a question of fact
Not the same definition as under Law of Property

- Owner might not be occupier (eg leased property)
- Control need not be complete (duty is function of
degree
of
de facto
control)

- Therefore can have multiple occupiers
Wheat v E Lacon & Co Ltd
(1966)
or eg occupier absent due to building works (contractor
and
owner may owe duty)

- Can have absentee occupiers
Harris v Birkenhead Corporation
(1975)
Lawful Visitors": Invitees & Licensees
*
Express invitations
- but there may be qualifications on that permission by reference to Space, Time or Purposes of visit
"when you invite a person into your house to use the stairs you do not invite them to slide down the bannisters"
-
per
Lord Scrutton
The Calgarth
(1927)

*
Implied Permission/Toleration/Licence & Common sense
- trying to finding loo in pub v staying after closing time
- revocations have to be clear:
Snook v Mannion
(1982) & need to give reasonable time to leave.
-
Harvey v Plymouth CC
(2010) CA
-
Tomlinson v Congleton
- purposes of visit (no swimming)

*
Anyone with right conferred by law
(eg firemen, policemen)
The Threshold Conditions
Duty
is only owed by occupier to another (not being his visitor eg trespasser, authorised rambler, person exercising private right of way)
IF:

s.1(3)(a)
“he is aware of the danger or has reasonable grounds to believe that it exists”
AND
Rhind v Astbury Water Park
(2004) CA

s.1(3)(b)
“he knows or has reasonable grounds to believe that the other is in the vicinity of the danger”
AND
Higgs v WH Foster
(2004) CA
Maloney v Torfaen BC
(2005) CA
White v City of Albans City & DC
(1990) CA


s.1(3)(c)
the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection” (merges with breach question)
Tomlinson
(slippage into
breach
: costs to freedom if impose liability)
Keown v Coventry Healthcare NHS Trust
(2006) CA


DUTY
Standard
(BREACH)
"DEFENCES"
Some statutory guidance on Standard of Care owed to lawful visitors
s.2(3) - Children may be less careful than adults (but occupier entitled to assume guardian will look after children so if danger is reasonably obvious to guardian (eg via warning to adult) no further steps required:
Bourne Leisure v Marsden
(2009) CA

s.2(3) - "expert" visitors can be expected to take care of themselves (
Hughes v Midnight Theatre Co
(1998) therefore no need to take steps to protect them against known risks/ought to know

s.2(4) occupier not liable for faulty execution of work undertaken by contractor if has taken reasonable steps to ensure contractor is competent. May need to check works (see
Gwilliam
re: need to check for insurance but rejected in
Payling v T Naylor
) -
NB
= consistent with no vicarious liability for independent contractors.
Illustrating reasonable care/breach
(akin to Breach of Duty analysis in Negligence)
Foreseeable risk
/
allurements

& easy steps in face of risk
Jolley v Sutton MBC
(2002)


Unusual event consistent with D's fault? If so, burden of proof on D to show absence of fault:

Systems of inspection

Ward v Tesco Stores Ltd
(1976) CA
Hall v Holker Estate Co Ltd
(2008) CA
Unforeseeable or recent dangers

Wombwell v Grimsby Fish Dock Enterprises
(2008) CA

Tedstone v Bourne Leisure Ltd
(2008) - jacuzzi
Hufton v Somerset CC
(2011)
- school assembly

No evidence of knowledge of "danger" of pooling water
CAUSATION
CAUSATION
No special rules here: as per Common Law

eg S
utton v Syston RF Club
(2011) CA - although breach of duty by not having a system of inspecting for cricket boundary flags, such a system would not have discovered the broken flag (therefore not a but for cause)
ILLEGALITY
Potential defence but rarely successful here as elsewhere.

Possibly reserved for "joint enterprise" or cases where compensation would be "an affront to public conscience"

Also require causal link between illegal act and loss as well as proportionality (in depriving C of compensation).
In Conclusion
Statutory "liberalisation" has not led to unlimited rights of compensation as initially feared by conservatives
YOU "HURT" ME

Can I sue you?
Are you liable to me?

Q: What are the limits to your liability?
A: They are set by tort law

Can C claim something for this type of harm?
Did a legal person
hurt the Claimant?
What did D do wrong?
If you commit a tort against me,






the law will give me
a remedy against you

THERE ARE MANY MANY TORTS
EACH HAS ITS OWN ELEMENTS or INGREDIENTS or CONDITIONS
eg Tort of Negligence

1. D owed C a Duty of Care AND
2. D Breached that duty AND
3. D's breach caused C loss & damage
Usually
the person(s) who directly
or indirectly harmed C
by what they did or said
or didn't do or say
Did someone get hurt?
Was there wrongdoing by D?
Who is the
Can D pay ("satisfy")
any judgment or liability?
Is someone else legally responsible
for the Defendant's wrongs?
Who is the
(or is the Defendant immune
from civil liability
despite being careless
?)
DUTY OF CARE
Did the breach
Is all of loss too
BREACH
Factual scenario
D is driving down road in residential area. Despite some light drizzle creating a beautiful rainbow, there are people milling about. Children are playing here and there. The speed limit is 20 mph. D is driving at about that speed when a 6 year old child, C, emerges from between two parked cars, chasing after a football, into path of D who performs an emergency stop but cannot stop in time. There is a collision. C suffers a broken leg and broken teeth.
The Conceptual Structure of
the Tort of Negligence

Should D be "let off" some of the consequences?

If D's conduct is a cause of the harm should it be considered a legally effective cause to justify liability?
What type of legal person hurt C?

1. A natural person/an individual?
(if now dead: that person's Estate via
Law Reform (Miscellaneous Provisions) Act 1934
)

2. A corporate body
- A Company
- A public body

3. An unincorporated association
May need to be represented
eg
if child via "litigation friend"; if dead: Adminstrator/Adminstratrix or Executor/Executrix
Do they have insurance or assets?

NB the answer will normally be "yes" for:


Insurance
Road Traffic Act 1930
Employers Liability (Compulsory Insurance) Act 1969

Public bodies (inc. NHS)
Did the harm "result from" the wrongdoing?
Does C owe D a
in this factual situation?
Does D have any other
DEFENCES
or ways to reduce the liability?
(ie PARTIAL "defence")
Often but not always:
Q: Did C's actions contribute to the harm/loss?
(Assuming there is a duty)
Did D
that duty?
the harm?
CAUSE
REMOTE?
Did C suffer
What is the
of the claim?
DEFENDANT?
CLAIMANT?
"The gist of the action" - Stapleton
YES
YES
YES
YES
YES
YES
NO
NO/YES!
FULL
YES
NO
YES
NO
NO
NO LIABILITY
NO
NO
NO
NO
NO LIABILITY
(or some or none?)
THE TORT
OF
NEGLIGENCE

A Cause of Action for unintentional wrongs

ie
accidents

YES
NO
WORTHLESS JUDGMENT



Rights go unprotected

(no remedy no right)
The limits of
Bolam

1. If the D's expert opinion is illogical,
then
Bolam
does
not
apply (
Bolitho
).

2. If the wrongdoing relates to a failure to advice as opposed to negligent diagnosis or treatment, then
Bolam
does not apply (
Montgomery v Lanarkshire Health Board
(2015) SC)
Montgomery v Lanarkshire Health Board
(2015) SC
C pregnant diabetic & small stature with large baby. Raised concerns re: vaginal delivery.

Doctor does not advise of 9-10% risk of shoulder dystocia (shoulders stuck in pelvis) on basis that risk of serious injury to baby small, and most women in C's situation would therefore ask for Caeserian (not in C's interests)

Son born with severe disabilities due to shoulder dystocia.

D had supportive expert evidence (
Bolam
)
*
Adult of sound mind has absolute right to decide what treatment to undergo.

*
Bolam
does not apply to advisory duty (not a matter of professional judgment/skill)

*
Doctor under duty to take care to ensure patient aware of any
material risks
involved proposed treatment and reasonable alternative treatment.

*
Test of materiality: whether a reasonable person in patient's position likely to attach significance to it or doctor was or should reasonably be aware that patitwent would be likely to attach significance to it.

*
Limited "therapeutic exception": Doctor can withhold info if reasonably considered that disclosure would be
seriously detrimental
to patient's health
BREACH


* Motorists owe other road users a duty to drive carefully

* Employers owe their employees a duty to provide a reasonably safe system of work and co-workers (NB employment has a wide scope
eg
includes military)

* Doctors owe their patients a duty to take reasonable care in their diagnosis, advice and treatment

* Occupiers owe lawful visitors a duty to ensure they are reasonably safe

* Prison officers owe their charges a duty of care
Common situations where the duty of care is unproblematic:
TYPES OF FAULTY CONDUCT
Intention
: doing an act with intent to cause harm (intent can be actual, inferred, or imputed)

Recklessness
: doing an act (subjectively) realising it might cause harm



cf.
Negligence
: failing to take reasonable precautions against risks of injury that a person ought to have foreseen (objective: "reasonable", "ought")
Other terms describing likelihood:
very probable, highly probable, quite likely,
not unlikely, remarkable, extraordinary, remote,
fantastic...
The Competing values

Freedom of D's Action
v
C's security from harm
"My freedom to swing my fist stops at your nose" O.W Holmes
Thought experiment: Driverless cars
Should it swerve to save the child and kill the owner?
Does it depend on the utility of their respective lives?
CAUSATION
"Cause in Law"
Need causal connection between D's act and C's loss for private law system of liability = linchpin of individual responsibility and corrective justice (cf. 1st party insurance: promise; welfare: statute)
Williams v Bermuda Hospitals Board
[2016] UKPC 4
* C attends A&E suffering from acute appendicitis

* Appendectomy delayed by at least 2 hours 20 minutes

* Suffers serious complications due to incremental sepsis (infection) - damaged heart and lungs (indivisible injury)

* Issue: whether negligent delay (which meant that C was infected
for longer than otherwise would have been)
caused the harm

* PC holds that "extended period" of infection probably/on BoP made a material contribution to the process and therefore to the indivisible injury

* Upholds approach in
Bailey v MoD
(2008) (and confirms that material contribution to harm approach can apply to successive as well as concurrent causes)


Fairchild (2002)
Barker (2006)
Sienkiewicz (2011)
Competing causes Admitted Wrongdoing + all under a D's control
Competing causes Wrongdoing, not all under a D's control
(self-employment)
Competing causes wrongdoing (one) = 18% of "innocent" environmental exposure
Wilsher (1988)
"Potential causes"
But NB "idiopathy" argument
Competing potential causes: one wrong and 4 innocent
All potential causes in first 3 cases = "asbestos"
Environmental exposure RR>2
"strand in the cable"
Inferential reasoning/abduction
REMOTENESS
"Cause in Fact"
Contrast causation in law of contract
In contract
: D's breach has to be"effective" or "dominant" cause; "but for" is insufficient.

Galoo v Bright Grahame Murray
(1994)

Supershield Ltd v Siemens Building Technologies FE Ltd
(2010)
= The normal test as tend not to sue people uninvolved
In tort
: The right question (most of the time): did D's breach of duty contribute to the harm (it does
not
have to be the main or only cause)?

Tort is more
pro-Claimant
Q: What is the role of "reasonable foreseeability" in the context of Remoteness of Damage?
A: a Defendant will be held responsible for harm is reasonably foreseeable (but not necessarily all of it)
Q: But haven't we already answered that question by finding that the Defendant breached his duty earlier on?
A: No, because when asking whether D failed to take reasonable precautions in the face of reasonably foreseeable harm occasioned by his acts, we were focusing on
how

likely
harm was to occur and
how

serious
that harm might be if the Defendant failed to take those precautions
2. Foreseeable/reasonable intervening acts by third party
or Claimant (likelihood comes back in!)
Rouse v Squires
(1973)
cf. Wright v Lodge
(1993)

(TP negligence (no) v recklessness (yes))

Knightley v Johns
(1982): too many unforeseeable errors therefore break in chain of causation
cf. Webb v Barclays Bank plc
(2001) "mere clinical neg" does not break the chain
ACTS BY THIRD PARTIES
CONTRASTING REMOTENESS
IN CONTRACT & TORT
Both require reasonable foreseeability (tort)/contemplation (contract) of
type
of loss; but not necessary to foresee extent of loss (unless, in contract, unusually high levels of profit)

1. Tort test of 'reasonable foreseeability' is less demanding (ie pro C) than contemplating something as 'serious possibility'

2. Different dates for assessment:
a. contract test by reference to
date of contracting;

b. tort at time of
breach of duty

3. Contract law's limb 2 'special knowledge' test does not apply in tort
For "technical" defences
Three recent Supreme Court cases gave three inconsistent tests:

Hounga v Allen
[2014] UKSC 47 - C working in breach of immigration law; could recover damages for tort of discrimination against employer as barring claim would not achieve anything (balance public policy)

Les Laboratoires Servier v Apotex Inc
[2014] UKSC 55 - Patent dispute; D relied on C's breach of Canadian patent law; SC said not sufficient "turpitude" (depravity); need something to trigger public interest (significant criminal or immoral conduct not mere
private
wrongs)

Jetiva SA v Bilta (UK) Ltd (in liquidation)
[2015] UKSC 23 - VAT carousel fraud £38m; liquidators sued company directors & other alleged conspirators (Ds) who raised illegality (!). Directors' wrongdoing cannot be attributed to the company. (Don't balance public policy)


"The distinct impression that the three cases create is that the Supreme Court's position on the subject of illegality depends largely on which Justices happen to constitute the Court in any given case"

J Goudkamp 'The Doctrine of Illegality: a Private Law Hydra' UK supreme court yearbook 2014-15, 254
Jackson v Murray
[2015] UKSC 5
C (pursuer) 13 y.o schoolgirl runs out from behind stationary school minibus displaying hazards into path of car travelling at 50 mph in 60 zone. Sustains serious injuries.
1st instance 90/10 in D's favour
Court of Sessions (appeal): 70/30 in D's favour
SC...
3:2 split
not possible to arrive at apportionment of damages which is "demonstrably correct" = consistent with "just & equitable"
therefore should respect differing views within limits of reasonable disagreement
causative potency of D no less than C - this exceeded ambit of "reasonable disagreement"
therefore substitute 70/30 for 50/50
s1(1) "Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in responsibility for the damage ..."
MITIGATION
Injured party must take reasonable steps to minimise losses flowing from D's breach

Injured party must not take unreasonable steps to
increase
loss

Need not risk own money,
damage own commercial reputation,
no duty to start litigation against third party
can refuse D's offer of repair (eg NHS)
General Damages for PSLA
Pain, suffering & loss of amenity (PSLA)

Physical inconvenience & discomfort

Social Discredit

Mental distress

Loss of society of relatives (bereavement)
PHYSICAL INCONVENIENCE & DISCOMFORT
Negligent surveyors -
Watts v Morrow

Being deprived of a car after accident

Tort of Nuisance (smells/noise)

Torts of deceit (buying property following lie) / conversion (being deprived of property)
MENTAL DISTRESS
Insufficient in Negligence (confirmed in
Rothwell
)

Not normally recoverable as resulting from financial loss only

But aggravated damages may include it

And may be recoverable under some contracts or statutes

SOCIAL DISCREDIT
Slander/defamation

Malicious prosecution

False imprisonment
Claims under Fatal Accident Act 1976
Economic dependency

Bereavement (£12,980 since April 2013)

Funeral expenses
DESTRUCTION OF PROPERTY
Cost of replacement by reference to reasonable market value

At the time
of destruction/conversion:
Kuwait Airlines
LOSS OF USE/PROFIT
eg property damaged so cannot use it (eg taxi)
has to prove lost profit
can hire alternative vehicle (might be obliged to due to mitigation)
can recover basic hire rate
unless impecunious
(Lagden v O'Connor (2003)
if not impecunious then have to strip out "credit" element of hire charges which is proved by adopting the lowest reasonable basic hire rate in C's geographical area at the time of the accident:
Stevens v Equity Syndicate Management
[2015] EWCA 93
ILLUSTRATING A DIFFERENCE BETWEEN DAMAGES IN CONTRACT AND TORT
A buys B's car for £5,000 after B wrongly tells A that car has done 30,000 miles when it has done 60,000.

Market value is £4,000 with 60,000 on clock, £12,000 with 30,000 on clock.

1. In contract, difference between market value at time of contract (£4,000) and value
as promised
(£12,000). Loss of bargain (contract) measure is £8,000
2. In tort, difference between price paid (£,5,000) and car's actual value (£4,000). Tort measure is £1,000.

If statement had been true, would have made a good bargain, so claim contract damages. If A had made a bad bargain (eg value of car would have been £4,000 even with 30,000 miles on clock then make claim in tort).

Criminal Justice and Courts Act 2015
s. 57 Personal injury claims: cases of fundamental dishonesty

(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—

(a) the court finds that the claimant is entitled to damages in respect of the claim, but

(b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied
on the balance of probabilities
that the claimant has been
fundamentally dishonest
in relation to the primary claim or a related claim.

(2)The court
must dismiss the primary claim
,
unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
A response to
Summers v Fairclough Homes Ltd
(2012) SC
DUTY OF CARE
Did the accident happen on the Defendant's property due to
the state of the premises
?
PRODUCT LIABILITY
"Grief, sorrow, deprivation and the necessary [sic] for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation. It would be inaccurate and hurtful to suggest that grief is made any less real or deprivation more tolerable by a more gradual realisation, but to extend liability to cover injury in such cases would be to extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point."

Lord Oliver in
Alcock
GRADUAL ONSET CASES
Hedley Byrne & Co v Heller & Partners
(1963)

Negligent misstatements etc

(but NB
Caparo v Dickman; Barclays Bank
)
C physically injured + psychiatric
C "almost injured"
physically
only suffers psych
PI or almost injury to TP
Here can't build liability
on physical injury as not RF
Rescuers?
RESCUERS
Frost (White) v CC of W Yorkshire
(1999) HL

based claim on
Chadwick v British Transport Commission
(1967) RF that rescuer might come to scene of train crash and suffer psychiatric harm

Police responsible for what happened at Hillsborough...

What was different? no physical danger
Possibility of claiming based on shocking event alone as "mere bystander"?
Obiter
remarks in
Alcock
:

eg may be a duty of care owed to C "if the circumstances of a catastrophe occurring very close to him were particularly horrific" per Lord Keith

But post
Alcock
Case law suggests not:

McFarlane v EE Caledonia
(1994) Piper Alpha disaster (wasn't primary victim as not in danger zone and not suffciently close relationship with primary victims

Frost
...

But will the law stand still for ever?
Sutradhar v Natural Environment Research Council
[2006] 4 All ER 490
"The largest mass poisoning of
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