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The Tort of Negligence

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Per Laleng

on 18 January 2019

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Transcript of The Tort of Negligence


legally recognised

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?)
(not Negligence)

breach of duty
(of care)
Can the Claimant claim in private law (sue) in this situation?

Synonyms for (personal?) FAULT
(in narrow sense)
or Wrongful
in the Tort of Negligence:

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 not a trigger liability and is often irrelevant

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

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

Infringement of some other "autonomy" right
Loss of Chance:
Gregg v Scott
(2005) HL)
Is this a legally recognised duty relationship?

Does the "Rule of Thumb" apply?

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
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
employer's liability for employee's tort
employer's liability to employee therefore a
liability where employer not personally at fault.
How much can C claim?

The Assessment of Damages
NB some defences apply to
Are there any good reasons why the Defendant should
be held liable (responsible) for
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

physical damage
has been caused by a

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

Road users
owe a duty to other
all other road
users to use the road carefully

owe Common Law and Statutory duties of care to their
provide a safe place and safe systems of work for their employees)

Healthcare practitioners
owe duties to their
re: diagnosis, advice & treatment

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

owe statutory strict liability duties to

owe some common law duties to their

Transport operators
owe duties to their

for physical welfare and educational needs

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
and there is
no precedent
then the existence of a duty of care is
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)
The focus is always on what the Defendant actually could or should have foreseen
the accident

It is a
question looking at foresight in the light of the prevailing circumstances and which should
be judged with the benefit of hindsight (which is very difficult given the cognitive illusion of hindsight bias)

But, the question of foreseeability is different depending on the
concept in question (it may well overlap)

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
"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 (provided there is a Duty)
If D is
negligent then he should

Ideology based on (one form of)
individual responsibility
(no responsibility without fault
social security - collective responsibility for harm without fault)
Also applies to
Claimant's own conduct
ie C's responsibility for harm suffered may impact the amount of damages recoverable(see defences)

is it fair to reduce a Claimant's damages because of C's fault given that a Defendant at fault does not pay personally?
Liability based on harm-causing BEHAVIOUR/CONDUCT
Liability based on consequences of risky ACTIVITY
rather than wrongful ACTS (although do need a wrongful act too)
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/careless
Blyth v Birmingham Waterworks

"negligence is the omission to do something which a reasonable man, {guided upon those considerations which ordinarily regulate the conduct of human affairs [ie given what is reasonably foreseeable/predictable]}, would do, or doing something which a prudent and reasonable man would not do" -
Baron Alderson

What did D
fail to do
(which he should have done) or
(which he shouldn't have done) which resulted in Cs' harm? [
specify it

comparing what D did/did not do with with what the reasonable person would have done
in the circumstances

an absolute obligation (
contract law: obligation of guarantee)

but to take
Given the comparative exercise,
who is the (21st Century)
Reasonable Person?
= Objective test
(therefore eliminates personal characteristics of Defendant)

have done,
have done
1. Qualities/characteristics of Reasonable person = a Question of Law

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

3. Did the Defendant take less care than the reasonable person would have taken? The
of care is a Question of Fact.
Most reported cases are about this.
perfect; but has
life experience

(so should guard against common risks including others' wrongs).

average person: because
acts reasonably
(but which can include making reasonable mistakes).
Therefore not human!

* Not highly-anxious, highly perceptive or visionary

* Has knowledge of the world which would be reasonable to have
at the time of alleged breach
Roe v Minister of Health

* And reasonable person keeps herself reasonably up to date:
Stokes v GKN (Bolts & Nuts) Ltd

* If D has special knowledge then reasonable person also has it:
Baker v Quantum Clothing
(2011) SC (D did not have special knowledge beyond government guidance on noise exposure)




Reasonable person does not need to foresee
precise risk
that his conduct may give rise to
only a risk of an accident

But if there is a reasonably foreseeable risk of an accident,
how would the reasonable person respond to it

Risk Matrix v Cost & practicability of precautions
Foreseeability of Risk
is "calculated" using
"Risk Matrix":
Likelihood of harm
x severity of predictable harm

Cost & practicability of precautions

The greater the probability and impact of risk, the more steps a reasonable person would take to guard against them

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/difficult" to reduce or eliminate risk?
Possible, probable, very likely
Examples: what would a reasonable person foresee?
Magnitude of risk (how likely is the risk?):

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

Whippey v Jones

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

Gravity of risk (if risk happens
how serious likely to be?):

Paris v Stepney
known susceptibility

Harris v Perry
(2009) CA
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 2015
Tomlinson v Congleton BC
(2003) HL
Watts v Herts CC
"The Negligence Calculus"
Proving the Defendant fell below the standard
Take into account all facts: no two cases the same

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.
D is a Professional
doctors, architects, surveyors, valuers, project managers, educational psychologist, teachers, social workers, education officers, tree inspectors, football referees, window lock installers - cases on all)


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

If there are two responsible views, D wins.

Covers lack of consensus within profession,
but means risk of self-regulation by professions

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

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

R2: Sufficiently close
relationship between
W and R1

B commits a wrong (
tort or equitable wrong):

a doctor providing negligent diagnosis

: B is an
(contract of service) not independent contractor (contract for services)
police constables (s.88 Police Act 1996); or B's relationship to A is 'akin to employment'
doctors would usually be contracted to NHS (or could be private) under contract of employment

: B committed tort in course of employment (or if 'akin to employment', close connection between relationship and B's tort)
doctor giving diagnosis at doctor's surgery/A&E rather than at cocktail party
Employer (eg NHS) would be
Vicariously Liable
for that doctor's negligence (NHS may also be
by selecting wrong employee for job/systemic negligence but C will need to prove NHS owed C a personal duty of care). Doctor would also be personally liable, but probably not worth suing. Joint and several liability (= each liable in full but gentlemen's agreement to indemnify).
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
corrective justice
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

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


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

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
The problem:

Effects (damage/loss) have many causes.
Modified 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 to the wrong side of road. D slams on brakes which malfunction and causes car to skid towards C. C steps awkwardly into a pot hole more or less simultaneously as being struck by car. Break in leg could be due to impact with car or pot hole or just coincidence. At hospital, the treating doctors are careless resulting in permanent disability.

What caused the permanent disability?

Answers can be medical, scientific, social policy (road design, missing pelican crossing), philosophical, theological, statistical (inc. chance) and/or legal.

we want to know whether D's / TP's acts/wrongdoing can be
as event/cause contributing to C's loss?
Q: What caused the bill to burn (effect)?

A: It depends on why you are asking the question
Atmospheric Oxygen is a (necessary) cause of fire, as is the match, but more natural to say the person who lit the match is
(necessary) cause.

The thin shell is a (necessary) cause of broken egg, as is the law of gravity, but more natural to say the person who dropped the egg is
(necessary) cause.


Often because we are looking to
attach responsibility
to someone (rather than simply explaining something). We look for a
trigger event

Legally too: we are looking for
responsibility for consequences

PS: none of the necessary causes are
in isolation
sufficient causes of the events (the match or thin shell are insufficient by themselves to cause fire/break egg).
The causes in combination become the sufficient cause.

Law's "privileged" causes

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

rather than omissions (non-acting)
rather than involuntary acts
rather than reasonable behaviour
rather than less
rather than foreseeable events

This also applies to third party party acts & events which may become independent causes (links to remoteness)

On Claimant

(as with all the
factual elements
of Negligence
or indeed
causes of action
in civil law)
On the
Balance of probabilities
= >50% chance or "more likely than not"

therefore, in law > 50% = 100% certain

scientific "truth": >95%

Therefore what happened is actually
"a matter of persuasion, not proof"

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

Cause in Fact: The Tests
1. "But For"

2. Material Contribution to Harm

3. Material Increase in Risk of Harm
one test

or exception?
Test = a counter factual inquiry:

if D had behaved properly (ie not been careless)
would damage probably have happened anyway?
But For test = A filter & exclusionary.


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

Indeterminancy and Over-Determination
Two Hunter problem Mk 1:

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 C's Harm?

Role of expert evidence

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

Bailey v MoD
Dickins v O2
Leigh v London Ambulance
(2014) HC
D liable to extent of contribution
Holtby v Brigham & Cowan
Rahman v Arearose
(beaten up + hospital negligence - blindness, psychological wreck)
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
) &
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
de facto
mesothelioma exception? (per Lord Brown in Sienkiewicz & see
AB v MoD
(2012) SC &
Jones v SoS for Climate Change
(2013) HC)?
Is it confined to industrial disease cases?
Willmore v Knowsley MBC
(2011) conjoined with
And see
Fitzgerald v Lane
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

Heneghan v Manchester Dry Docks Ltd
(2014) HC -
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 if you prove breach and you prove causation

But cf.
Williams v Uni of Birmingham
"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
Remote = "far away, distant..."

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
] not reasonably foreseeable (
Wagon Mound No.1

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

intervening acts

by a third party
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).
Same kind of damage that has occurred has to be reasonably foreseeable consequence of breach
Wagon Mound No.1

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

Damage by fouling v damage by fire

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)

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!!

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

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
of depression need not be foreseen (thin skull rule)
Suicide is not uncommon in the severely depressed (therefore foreseeable even if
The Novus Actus issue
Lord Bingham

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

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"
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:
"the stress disorder
his personal responsibility but did not
it" (Lord Hoffmann)
Policy: inconsistent to award damages in
civil law
to someone who has been convicted/punished in
criminal law
what about a fraudster claiming damages

Summers v Fairclough Homes?
caused the loss and the detention reflected his personal responsibility for his actions (is "responsibility" issue the same in criminal and civil law?)
Smith v Youth Justice Board for England & Wales
(2010) CA

C = prison officer involved in restraint suffering PTSD suing on basis of unsafe system of work.

"forcible restraint technique" for 7 mins on 15 yo offender = "dangerous practice" therefore negligent.

"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"
Sedley LJ

Common sense "gone out the window" therefore highly unreasonable
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
So: filled petrol many times before, loss of leg was major reason for fall; but con neg at 1/3.


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.
D escapes liability
even if

other elements of tort made out

Burden of proof on D

Contributory Negligence
therefore is not a liability-defeating rule)

D acted reasonably
in committing tort

Defence irrespective of D's (un)reasonableness
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
The language of "defences"
Ds can raise a "defence" (more accurately a
) based on
of tort


Tort of Negligence

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

Or for
intentional torts

You consented to me touching you
" (defence based on

Contractual Notice

I excluded liability via a contract/notice
" (C has
surrendered right
to sue)
A general form of Consent therefore denial of an element of tort (but not always clear which one - could be no duty or no breach - so look at reasoning)
As a doctrine/defence is rarely successful

1. Did C have
knowledge of nature and extent of
risks created by breach?
Judged Objectively

= a very high threshold of knowledge
Watson v British Boxing Board
(2001) CA
consented to risk of PI in fight, but not to inadequate ringside medical treatment

2. C voluntarily agreed (express or implied) to incur the risk of injury
waived any claim for breach of duty
Just knowing activity is dangerous insufficient
Consent has to go to D's carelessness
if C didn't (objectively) know about risk, cannot have agreed to it!
VAR is
re: passenger injuries in RTAs by s.149 Road Traffic Act 1988
North v TNT Express (UK) Ltd
(2001) CA: drunk hanging off windscreen wiper after driver refused to give him a lift home...

Does not eliminate liability only reduces damages
1. C fails to take care for
2. That failure
to C's harm
Whether reasonable person in C's position would have acted in same way. Objective test
Whether that person should have reasonably foreseen risk
safety (not to D or TP) even if D caused mental instability in C.
Depends on all circumstances
inc. 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
about contribution
to accident
to harm
not wearing helmet or seat belt contributes to harm not accident)
Damage sustained has to be within risk of carelessness
Unavailable at Common Law

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

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

Applies only where both C and D "at fault"

fault does
include intentional wrongs (
trespass to person:
Pritchard v Co-Operative Group
(2011) CA)
to breaches of contract where obligation breached was strict.

Con Neg cannot be 0% or 100% - based on

blameworthiness and causative potency (Rough & Ready)
Froom v Butcher

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
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.
Self Defence
Defence of (own) property
(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 Necessity (not private): very rare
D confronted with an emergency when acted negligently
Emergency: D's acts necessary to prevent injury or harm to C, TP, community
Emergency not created by D's fault
Rigby v CC of Northant
s (1985). CS gas cannister without fire-fighting equipment. Did not create emergency but negligent
Defence of another (analogous to self-defence)
Prevention of Crime
Lawful confinement in prison
Stop & Search (police)
Statutory Authority
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)
If C has a criminal law defence, D cannot rely on illegailty
The problem
: no-one really knows what the test is:
1. C's own conduct caused own damage
Gray v Thames Trains
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!
1. Damages (Common Law)
2. Injunctions (Equitable)
3. Equitable compensation
4. Restitution
5. Declaration
"It's all about the money" (about the numbers)
other concepts relevant to damages (as well as liability)
causation, remoteness, contributory negligence
Many similarities between Contract & Tort
The main idea: full compensation
assessed by reference to
C's loss

(C can't come back)
some modifications in some personal injury cases (eg didn't know) or in "continuing wrong" cases (
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
on C to act reasonably post-tort. Applies to all torts.
Kinds of Damages

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
Where C has a complete cause of action but no loss

Damages: £5-20 although "traditional sum" is £2 (
TCP Europe Ltd v Perry
(2012) HC) or £1 (
AB v MoJ
(2014) HC)

Cannot be awarded in negligence as need damage, therefore loss, in cause of action
Compensatory Damages
Measures C's
: the greater the loss the greater the Damages

Basic principle:
Restitutio in integrum

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

Livingstone v Rawyards Coal Co

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)

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

General Damages

Exemplary Damages
Controversial: punish D - confusing civil and criminal sanctions
Therefore limited in extent:
Rookes v Barnard
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

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).

available in Tort of Negligence (
Kralj v McGrath
(1986) obstetrician, delivery without anaesthetic, arm inside to turn twin, died 8 weeks later) but have been awarded in:

Trespass to person (assault, battery, false imprisonment)
Trespass to land
Malicious prosecution
Misfeasance in public office
Misuse of private information
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
damages (account of profits that D made - potentially

Classic case:
AG v Blake
(General Damages)
(Special Damages)
1. Pain & Suffering (
experience of C inc. worry or awareness that life has been shortened:
Lim Poh Choo

Therefore nothing under this head if C unconscious).

2. Loss of Amenity (effect on ability to

Therefore C can receive compensation even if unaware of loss
inability to participate in recreation, loss of sexual enjoyment, worry of impending death

Usually lumped together in one sum

Courts will use Judicial College Guidelines and past decisions as guide plus
Simmons v Castle
(2012) uplift 10%.
"necessarily artificial ... a value judgement"
Ellision v Uni Hosp of Morecambe Bay NHS Trust
(2015) HC
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
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 (
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
2. "Lost years" by reason of reduced life expectancy recoverable less living expenses which won't be incurred as pecuniary damages:
Pickett v British Rail Engineering
(1980) HL.
Ongoing issue where C is a
Croke v Wiseman
(1982) CA
3. Lost pension rights
4. Domestic and DIY services
5. 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.
6. Future expenses inc. medical, physio, prescriptions, hairdressing, equipment, additional travel costs, accommodation needs, pensions, care (inc. gratuitous care: held on trust for carer:
Hunt v Severs
(1994)), DIY & gardening.
Use of Ogden Tables (multiplicands and multipliers)

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

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 and NHS charges
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.
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
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 (
if repair costs exceed value).

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

Is a form of personal injury but...

1. Pervasive belief that diagnoses can be inaccurate (concern
veracity, unmeritorious claims (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 (
depression caused by physical changes in brain or vice versa?)

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?)
fear of indeterminate liability. Therefore policy concerns.
of liability in Negligence:
Damage (nervous shock) has to be a
"recognized psychiatric injury".
Historically, even "nervous shock" not actionable but:

1. Intentional tort (
Wilkinson v Downton
(1897) now
O v Rhodes
(2015) SC)
2. In Negligence from
Dulieu v White
"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) HL

The principles are "as unconvincing as they are surprising"

- per Ralph Gibson LJ in
Taylorson v Shieldness Produce Ltd
(1994) CA

The law in this area is "not wholly logical"

- per Lord Oliver in
Alcock v CC of South Yorkshire Police

"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

"The Government considers it preferable to allow the courts to continue to develop the law in this area"

Law on Damages
(CP, 9 4 May 2007) ch 3 [97]

"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
Tort Law
(2008, p.33)
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"
- anxiety, worry etc consequent on physical injury!

A complex web of rules & distinctions
Non "pure" psychiatric harm
(ie psychiatric harm consequent
on physical injury = unproblematic)
"Pure" psychiatric harm
One off event
Gradual build up
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
(1967) reinterpreted as a "danger zone" case
cf. Donachie v CC Greater Manchester
(2004) (imagined attack)
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).
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"
(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?

, 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
, 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:

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

D's knowledge of C's pre-existing vulnerable condition

Home Office v Butchart
(2006) - knew C was suicide risk, put C in a cell where cell mate committed suicide...;
stress cases:
Hatton v Sutherland
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)
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

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

And beyond...)
Three Main Approaches (which can overlap! - see
Customs & Excise Commissioners v Barclays Bank plc
(2006) HL)
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.
Prominent in cases of:

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

= PEL, Neg Misstatement case & created tripartite test!

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

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 (
psychiatric harm cases) where relationship with
(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

(wider than physical nearness; about closeness of
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
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

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.

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
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
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

no obligation to act for
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

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

failing to do anything at all

not saving drowning child,
not warning man walking towards cliff

(some from
Stovin v Wise
(1996) HL)

Province of Contract/Statute

Infringement of liberty
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

: 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

"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
under duty to protect detainees
known suicide risk
Savage v S Essex Partnership NHS Foundation Trust
(2008) HL -
mental hospital
who is a
known suicide risk
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
because of the Occupiers Liability Acts (Statutory Duty)
in Tort (
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
of children with
special educational needs
Phelps v Hillingdon LBC
Social services
Barrett v Enfield LBC
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:
(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...
"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


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

assumed responsibility
to C and C
on D.

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


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

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

The starting point:

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


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 have 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 to benefit of others applies to public bodies (even though public bodies are often set up precisely for that reason
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 (
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
(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

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).

that PB is under a statutory (public)
to act.
that a statute allows for payment of compensation.
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

(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)
Health (including mental health)
Highway maintenance
(Social) Housing
Regulating the economy
Charity Commission
Food safety
Courts & Tribunals
Border Agency
Examples from Social Services & Education
Leading case

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

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
appealed; no duty to parents re wrongful suspicion of child abuse).

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..."
Lord Hope
Compare with liability for riot
Mitsui Sumimoto Insurance Co v Mayor's Office for Policing and Crime
(2016) SC

Riot (Damages) Act 1886

Police's liability limited
to property damage
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.
UK first country to
European Convention on Human Rights 1950

But Convention rights were not
(Convention NOT incorporated) until
Human Rights Act 1998

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

Implications of the Court being a "public authority"
bring claim re: judicial act via Appeal.

claim damages re: good faith judicial act.

Court cannot act incompatibly
with convention rights

- (a) Does this mean court has to act compatibly with convention when declaring and applying
Common Law
- (b) 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
despite the 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.

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

There might be a duty on the police under article 2 of the Convention via HRA 1998 to protect an individual
test is satisfied eg
Michael v CC of South Wales
(2015). This test was not satisfied in
Smith v CC of Sussex
Is a claim under the HRA a claim at private law?
common law tort
tort of breach of statutory duty as no damages as of right) hence uneasy relationship with Tort

Private law
= claims against all (inc. public bodies) that results in compensation
as of right
. Focus is on D's conduct. Standard of conduct judged by reference to reasonableness.

= about holding the State (public bodies) to account by upholding minimum standards & vindicating rights (quasi-public law). Focus on C's rights. Damages are discretionary. Standard of conduct judged by reference to proportionality.

But much of tort law has traditionally protected some human rights

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

Where "...the authorities
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
Art. 6 analysis
Z v UK
X v Bedfordshire
(1995) HL]
Alleged breach of arts 3, 6, 8 & 13

failure to remove child from abusive home amounted to inhuman & degrading treatment (art 3) and/or failure to protect family life (art 8); that striking out the claim on basis of public policy (under third limb of
) 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
) 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")

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
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
over victim (eg detained in custody or under mental health legislation) and/or where victim is
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.

Sarjantson v CC of Humberside Police
(2013) CA suggests that potential victim does
have to be
for art 2 to be engaged provided the police knew there were actual or potential victims.
And what about Causation?
: 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.

What, no Duty (owed to the parents)?
(2010) ECHR - removing child after wrongly suspecting child abuse is an infringement of
child and parent's Art 8 rights!

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?
If you (Defendant or C)
commit a tort against
me (Claimant or C),

the law will give me (C)

a Remedy against you (D)

Committing a tort means more than simply hurting someone:

Tort of Negligence

* D owed C a
Duty of Care
* D
that duty AND
* D's breach
C loss &

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 wrongdoer's wrongs?
Who is the
(or is the Defendant immune
from civil liability
despite being careless
Did the breach
Is (all of) loss too
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:
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:

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
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?
Did C suffer
What is the
of the claim?
"Damage is the gist of the action" - Stapleton
(or some or none?)
A Cause of Action for unintentional wrongs



Rights go unprotected

(no remedy no right)
The limits of

1. If the D's expert opinion is illogical,
apply (

2. If the wrongdoing relates to a failure to advice as opposed to negligent diagnosis or treatment, then
does not apply (
Montgomery v Lanarkshire Health Board
(2015) SC)

3. Linked to professional exercising no professional judgement or skill whatsoever.
Montgomery v Lanarkshire Health Board
(2015) SC
C pregnant diabetic & small stature with large foetus. 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 (
Adult of sound mind has absolute right to decide what treatment to undergo.

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 patient 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
Intentional harm
: doing an act with intent to cause harm (intent can be actual, inferred or imputed)

: doing an act realising (subjectively) it might cause harm but carrying on regardless

: failing to take reasonable precautions against risks of injury that a person ought to have foreseen
(objective: "reasonable", "ought" - subject to some exceptions)
Other terms describing likelihood:
very probable, highly probable, quite likely,
not unlikely, remarkable, extraordinary, remote,
Some competing values

Freedom of D's Action
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?
"Cause in Law"
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)

Therefore, as long as can prove
contribution to harm on BoP then causation is satisfied. It is a weaker test than But For.
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
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
"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

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

Tort is more
Both require reasonable foreseeability (tort)/contemplation (contract) of
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

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
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 ..."
Injured party must take reasonable steps to minimise losses flowing from D's breach

Injured party must not take unreasonable steps to

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)
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)
Insufficient in Negligence (confirmed in

Not normally recoverable as resulting from financial loss only

But aggravated damages may include it

And may be recoverable under some contracts or statutes


Malicious prosecution

False imprisonment
Claims under Fatal Accident Act 1976
Economic dependency

Bereavement (£12,980 since April 2013)

Funeral expenses
Cost of replacement by reference to reasonable market value

At the time
of destruction/conversion:
Kuwait Airlines
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) HL )
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
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
Did the accident happen on the Defendant's property due to
the state of the premises
"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
Hedley Byrne & Co v Heller & Partners

Negligent misstatements etc

(but NB
Caparo v Dickman; Barclays Bank
C physically injured + psychiatric
C "almost injured"
only suffers psych
PI or almost injury to TP
Here can't build liability
on physical injury as not RF
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"?
remarks in

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
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


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

From 1970s Bangladeshi govmt with foreign aid provide drinking water to citizens via tube wells
Ground contaminated by arsenic
D commissioned by UK Overseas Development Agency to check condition of wells to see whether water could be used for
fish farming
D did not check for arsenic (no-one knew)
C who drank from poisoned well sued in negligence & failed: D had not made C worse off only failed to save him from becoming ill (ie failed to make him better) therefore no duty in absence of special relationship & not fair, just & reasonable to impose duty

D assumes a responsibility to C to protect C's welfare in some way

1. D
to C that C can
on D to take reasonable steps to look after C's interests or protect C from harm and C
did in fact rely
doctors to patients or negligent misstatement cases)

Declined in
Michael v CC of South Wales Polic
e (2015) SC as only promise was to pass the call on; no promise re rapid response.
Swinney v CC of Northumbria Police
(1997) where informant was told by the police that ID would be protected; docs stolen from police vehicle leading to threats and psychiatric illness. Was duty.

Reliance normally needs to be shown but not always eg unconscious stranger being treated by doctor passing by (but extent of duty is not to make him worse) &
Kent v Griffiths
(2001) CA: acceptance of call & decision to provide ambulance created the duty...

If D knows or ought to know he has done something (not in itself wrongful ie innocently) to put C in danger,
owe duty to take reasonable steps to protect C from that danger

eg unavoidably hitting a large animal whilst driving and taking no steps to get it removed afterwards

But creating danger v providing occasion for danger to arise!

Watson v British Board of Boxing Control
(2001) CA -
duty owed
to take reasonable steps to protect him from danger of suffering long term injuries due to fight with Eubank by providing adequate ring side medical facilities

Mitchell v Glasgow City Council
(2009) HL - Council owed
no duty
to warn deceased that he might be in danger from neighbour who killed him. Hadn't created the danger

All you can say: the greater the part played by by D in exposing C to danger compared to C or TP, the more likely there will be a duty of care

D knows/ought to know C in need of help and D has done something to prevent/dissuade TP from helping C may be under duty to take reasonable steps to help C

Kent v Griffiths
(put off from taking taxi)

Barrett v MoD
(1995) CA - duty arose after soldier collapsed and was taken to barracks thereby cutting off from other sources of help

Possible explanation of
Chandler v Cape plc
(2012) CA
a. businesses of parent & subsidiary the same in relevant respects
b. parent co has or ought to have superior knowledge on some relevant aspect of H&S in industry
c. subsidiary's system of work is unsafe as parent co knew/ought to have known
d. parent knew/ought to have foreseen that subsidiary's employees would rely on it using superior knowledge for employee's protection
Parent co had therefore "interfered" with subsidiary's ability to protect employees.

OLL Ltd v S of S for Transport
(1997) Coastguard sent lifeboat and Royal Navy helicopter to wrong area; children drowned: got in own way rather than in way of others (all rescue services treated as one). Didn't make the situation worse!
If D in control of dangerous substance or animal and reasonably foreseeable that someone like C will be harmed if escapes then DoC to take reasonable steps to keep it under control = settled law

What about being in control of human being (TP) and RF that someone like C will be harmed?

Depends in part on how responsible TP was for harm suffered by C ie the less responsible TP was the lower the level of foreseeability of TP's acts required ie about not diluting TP's responsibility (cf.
Gray v Thames Trains
Topp v London County Bus (SW) Ltd
(1993): TP acts have to be
very likely/probable
for duty imposition.

Carmarthenshire CC v Lewis
(1955) HL: 4 yo child leaves nursery and causes RTA. Child not "responsible" therefore "mere foreseeability" that this might happen if D did not take care sufficient for duty to arise.

Dorset Yacht Co Ltd v Home Office
(1970) HL: young offenders unsuccessfully "escaping" by boat. Was RF that might escape. Was highly likely, TPs were "responsible" therefore need something more than mere foresight of harm; need especial danger (boat owners were at greater risk than others eg shopkeepers on island). And Ds had control over TPs.

Control on its own may therefore not suffice:

K v S of S for the Home Dept
(2002) - Kenyan citizen imprisoned for sexual assault & burglary, detained awaiting deportation, released. Raped C who sued. C not at greater risk (or special danger) than any other woman...

Ditto in
Palmer v Tees Health Authority
(1999) CA - D HA had treated TP as in-patient re: psychiatric problems. Kidnapped, sexually assaulted and murdered 4 yo girl. C argued that owed DoC to diagnose and treat tendency to sexually assault children. Child at no especial risk of danger compared with everyone else. Also mother could not sue for psychiatric harm as only "imagined" horrors but did not come upon immediate aftermath.

What is required of people
What sort of interests it protects
How they arise
D should take
care not to
act in a
particular way
D required to act
in a particular way
D should take reasonable steps to
ensure an outcome
(eg Occupiers under duty to take reasonable steps to ensure reasonable safety of visitor)
D should perform task with reasonable care
(eg Doctor - RCS not guaranteed outcome)
Foreseeable that acting in a particular may result in harm

But sometime foreseeability insufficient

eg need "assumption of responsibility"
Always have to ask whether D was under duty to prevent actual harm which occurred
No duty if
D acted reasonably
Was the "wrong" an
act or omission?
Seriousness of harm

If physical, mere foreseeability of harm enough; if pure economic loss, need more
(slippery concept but
indeterminate liability/availability of insurance?)
Individual responsibility
Don't want to impose a duty on D if someone else "really" responsible
Vellino v CC of Greater Manchester Police
(2002) - escapee
Barrett v MoD
(1995) no duty to prevent drinking self to death, but duty when assumed responsibility
Mitchell v Glasgow CC
(2009) HL
Divided loyalties
Don't want to over-deter/undermining public interest (making people fear prospect of being sued and so not doing main jobs properly)
Judges, military commanders in heat of battle (
Smith v MoD
(2014) SC) v "procurement decisions", Police re suspects, witnesses (
), victims (
Van Colle
), Health & safety inspectors, some social service functions (eg investigation of sex abuse against parents (
D v E. Berks
), Councils (sometimes,
But divided loyalties argument not accepted elsewhere:
Doctors, Work referees (
Spring v Guardian Assurance
(1994), Barristers (
Arthur JS Hall v Simons
(2002) HL), expert witnesses (
Jones v Kaney
(2011) SC).
wasted resources
especially if D is
public body
but cf
Phelps v London Borough of Hillingdon
: teachers may owe duties of care to "normal" pupils)
Parliamentary intentions & separation of powers (
constitutional public policy
Effect on
other areas of law
(eg contract/public)
of case (the more novel the case the less likely there will be a DoC
Importance of remedying wrong
Only pro C factor
But tautologous?
Exceptions or the rule...?
Public Bodies ("PB"): why are they "different"?
They are creatures of statute ("but for" statute, PB would not exist...)

Parliament has created them, should judges control them?
Main control is arguably via
public law

They are given statutory powers and duties
Powers "may" be exercised
Duties "must" be exercised

Should failure to exercise a power result in private law remedy (should a public law "may" become a private law "must")?
Bearing in mind that failure to act = omission and therefore public body hasn't made the situation worse, only failed to make a situation better
Bearing in mind their "reach"

(some overlaps with private sector & non-exhaustive list)
See McBride & Bagshaw

argue that the two perspectives (
public policy
approaches) have been used inconsistently re: public body liability in private law over time

Policy approach:
will be
a private law duty of care
there are good reasons of public policy to deny that duty (the
Anns v Merton BC

Capital & Counties plc v Hampshire CC
(1997) CA
Conjoined appeals
in one set of cases, fire brigade arrived & turned off sprinkler system building burned to ground; in another set, negligently failed to extinguish fire building burned to ground.
No duty to answer call and no common law duty to take care of do, but cannot make the situation worse (by turning off sprinkler) system. No private individual would have owed a duty of care (but
whether had assumed responsibility for the situation).
Hill v CC of S Yorkshire
(1988) HL
no special circumstances/relationship between police and victim (or TP perpetrator)
14/15 paragraphs of Lord Keith's opinion deal with "proximity" = "enough to dispose of appeal". Adds one para on policy

Policy approach

X v Beds
in CA and HL: used policy arguments to deny duty of care even though first policy of law is that wrongs should be remedied
McBride & Bagshaw's suggested (partial) classification
Michael v CC of S Wales (2015) SC
5:2 majority in favour of Diceyan approach
No DoC owed to person calling 999 reporting threats to kill and then bei
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