Tort Lecture Outlines PDF
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This document provides lecture outlines for a tort law course, covering introductory concepts, intentional torts, and trespass. It discusses the definitions and distinctions between different types of legal obligations, with examples and references. The material covers topics like vicarious liability and remedies.
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TOPIC 1: Introduction & Intentional Torts: Lecture Outline. Introduction · What is tort? The classic, judicially recognised definition of tort is: ortious liability arises from...
TOPIC 1: Introduction & Intentional Torts: Lecture Outline. Introduction · What is tort? The classic, judicially recognised definition of tort is: ortious liability arises from the breach of a duty primarily fixed by law; such duty is T towards persons generally and its breach is redressable by an action for unliquidated damages. Winfield,Province of the Law of Tort(1931) p.92 · ome examples of tortious liability: personal injury, professional negligence, nuisance S etc. · The importance of establishing some form of ‘duty’. · Comparing tort with other legal concepts Torts and Crimes ort is a branch of civil law, where the claimant will predominantly seek compensation in the T formofdamages.Theactionisinstigatedbythevictimofthetort(theclaimant)asagainstthe person who committed the tort ( the tortfeasor or Defendant). Criminal law is a form of public law, the state will instigate a prosecution. ort is predominately concerned with compensating victims whereas the criminal law is T predominately concerned with punishing the wrongdoer. However, tort and criminal law can overlap, NB, concurrent liability; exemplary damages. Torts and Contract oth tort andcontractarebasedonan‘obligation’.Intorttheobligationisimposedbythelaw B whereas the obligation in contract isderivedfromtheagreementbetweentheparties.Aswith tort and crime, tort and contract can overlap · Objectives of tort. lanvilleWilliams(1951)4CurrentLegalProblems137identifiedfourpossibleobjectivesofan G action in tort, namely, appeasement, justice, deterrence and compensation. he aims of the law of tort are various, and varied in their prominence in relationtodifferent T torts. Appeasement, justice, deterrence and compensation are underlying aims, in different measuresfordifferenttorts.Itisreasonableforustomeasureoutcomesintermsofthoseaims when seeking to apply critique to the law of torts. · The Role of Public Policy. he societal impact of litigation: floodgates argument; compensation culture; discouraging T socially beneficial activities. ompensation Act 2006, section1,statesthatacourt,whenconsideringwhetheradefendant C should have taken particular steps to meet a standard of care: may… have regard to whether a requirement to take such steps might- (a) prevent a desirable activityfrombeingundertakenatall,toaparticularextent, or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity. · The mental element in Tort. o establish a claim intorttheclaimantisrequiredtoprovethatthedefendanthascommitted T the relevant act/omission. In addition, it is often necessary to prove that the defendanthada particular state of mind ranging from intention to negligence. In some torts,knownastortsof strictliability,itisnotnecessarytoshowthedefendanthadanyparticularstateofmind:theact or omission is enough. · The requirement of damage or loss ome torts require proof of damage, and that the damage was causedbytherelevantactor S omission. Others are ‘actionable per se’, meaning without proof of damage. Trespass is an example of a tort that is actionableper se. · Parties to an action in Tort. Individualsandbodiescorporate–anyonewith“legalpersonality”and“legalcapacity”-cansue andbesuedintort.Anindividualmaybereferredtoasa‘naturalperson’whereasacorporate bodysuchasacompanymaybereferredtoasa‘legalperson’.Inmanycasestheactualvictim of the tort will be theclaimant(plaintiffinolderjudgments)andthepersonwhocommittedthe tort (referred to as the tortfeasor) will be thedefendant.However,thisisnotautomaticallythe case, in many situations other parties can ‘step into the shoes’ of the victim and tortfeasor. he Deceased’s Estate: Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal T Accidents Act 1976 icarious Liability: There are certain situationswhere one person will be held liable for a tort V committed by someone else, where this occurs it is said that the defendant is vicariously liable. In a modern context, vicarious liability usually operates so that an employer is liable for the torts committed by an employee during the course of his employment. ubrogation:whereaninsurancecompanyisinvolvedinatortactiontheywillhavetherightof S subrogation, i.e. given thattheyultimatelywillmeetthecostsoflitigationtheyareabletotake the tortfeasor’s place in any litigation. Trespass to Land, Trespass to the Person · Introduction Trespass is amongst the earliest torts. It protects: · ur property O · Our bodily integrity urrighttopeacefulenjoymentofpropertyandourrightnottohaveourbodilyintegrityviolated O are fundamental rights nowadays protected by human rights law, especially Article 8 ECHR (respect for private life, family life, homeandcorrespondence)andArticle1oftheProtocolto ECHR (peaceful enjoyment of property). utthecommonlawprotectedtheserightscenturiesbeforehumanrightslawcameintobeing. B It did so by creating the following causes of action: · respass to land T · Trespass to goods · Trespass to the person, comprising: oAssault Battery o oFalse imprisonment respass requires only proof of an intentional act or omission. It does not require proof of T damage. Inthiscoursewestudytrespasstolandandtrespasstotheperson,butnottrespasstogoods (on which the common law was largely codified by the Torts (Interference with Goods) Act 1977). · Direct and indirect acts respass requires directness. Adirectactoromission.Forexample:alogisthrown.Ifthelog T strikessomeonetheinjuryisdirect,andtherelevantcauseofactionwouldbetrespass(inthis casethetortofbattery).Ifthelogliesonapathandsomeonetripsoverit,theharmcausedis indirect. There might be a cause of action in negligence, but not trespass. · Intention tonetimeitwasthoughtthattrespasstothepersonwasatortofstrictliabilityandthereforeit A wasunnecessarytoproveintentionorfaultonthepartofthedefendant.Thisviewwasrejected inStanleyvPowell1QB86whereitwasheldtherewasnotrespassintheabsenceof intentionornegligence.Thedecisiondidnothoweveranswerthequestionwhethertheburden of proof of intention or fault fell on the claimant or defendant. Fowler v Lanning 1 QB 436 Letang v Cooper 1 QB 232 · Trespass to Land respass to land is committed when a person enters orremainsonlandinthepossessionof T another, or places objects on it, without permission or lawful authority. he claimant must haveexclusivepossessionoftheland.Soatenantunderaleasewhohas T possessionforthedurationoftheleasemaybetheappropriateclaimantintrespassratherthan the landlord: for example, the tenant inKelsen vImperial Tobacco Co Ltd(below) he defendant must have intended the act or omission in question. Intention canbeimputed T from conduct: League Against Cruel Sports Ltd v Scott and others 2 All ER 489 s long as the act/omission is deliberate, it does not matter that D was unaware of any A prohibition on entry. In other words, the requisite intention is a deliberate act/omission rather than a deliberate trespass: Conway v George Wimpey & Co Ltd 1 All ER 363 ‘Land’ for this purpose includes the airspace above and the subsoil below – to a reasonable extent: Kelsen v Imperial Tobacco Co Ltd 2 All ER 343 Lord Bernstein of Leigh v Skyviews & General Ltd2 All ER 902 Section 76(1) Civil Aviation Act 1982 tarEnergyWealdBasinLtdandanother(Respondents)vBocardoSA(Appellant) S UKSC 35 efencestotrespasstolandincludestatutoryauthorityandnecessity.Necessitymustbeabout D imminent threat to life or property, not social or ‘public interest’ necessity: Southwark London Borough Council v Williams2 All ER 175 Monsanto plc v Tilly Lexis Citation 3727 emedies for trespass to land include damages and/or an injunction. An injunction is a R discretionary remedy – the court may decide to award damages instead. Kelsen v Imperial Tobacco Co Ltd is an example of a case where the court found it not appropriate to award damages instead, because it was important not to enabletheDeffectivelyto‘buyoff’theC’s property rights. · Trespass to the person: Assault, Battery, FalseImprisonment ssault A An intentional act which threatens violence – or produces in C a reasonable expectation of immediate unlawful force. Stephens v Myers(1830) 4 C & P 349 Tuberville v Savage(1669) 1 Mod 3 heclaimant’sfearofviolencemustbereasonable.Therecanbenoclaimforassaultwherethe T claimant knows that the threat of violence cannot be carried out. Thomas v National Union of Miners (South Wales Area) Ch 20 R v Ireland; R v Burstow AC 147 “ The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear thatthecaller'sarrivalatherdoormaybeimminent.Shemayfearthe possibility of immediate personal violence. As a matter of law the caller may be guilty of an assault” per Lord Steyn at p.162 Battery A battery is the direct and intentional application of force to another person without consent. lackstone: “Battery is theunlawfulbeatingofanother.Theleasttouchingofanother’sperson B wilfully, or in anger, is a battery;forthelawcannotdrawthelinebetweendifferentdegreesof violence,andthereforetotallyprohibitsthefirstandloweststageofit;everyman’spersonbeing sacred,andnootherhavingarighttomeddlewithit,inanytheslightestmanner….Butbattery is, in some cases, justifiable or lawful….On account ofthesecausesofjustification,batteryis defined to be theunlawfulbeating of another”. he original force may be unintentional but a failure to rectify the situation may render it a T battery. Fagan v Metropolitan Police Commissioner 1QB 439 Mental state required for battery ItwasstatedinColevTurner(1704)6Mod149: that“theleasttouchinginanger”amountsto a battery. However, the courts have always accepted that not all non-consensual contact amounts to a battery. It has often proveddifficultforthecourtstodistinguishbetweencontact which is part of everyday life and contact which ought to be considered battery. Collins v Wilcock 3 All ER 374 Wilson v Pringle (1987)QB 237 The Court of Appeal held that the claimant had to prove (a) intentional touching or contact in one form or another of the claimant by the defendant (b) that the touching or contact was “hostile” Re F; F v West Berkshire Health Authority 2AC 1 “ In the old days, it used to be said that, for a touching of another’s person to amount to a battery,ithadtobeatouching‘inanger’...andithasrecentlybeensaidthatthetouchingmust be‘hostile’tohavethateffect...Irespectfullydoubtwhetherthatiscorrect.Aprankthatgetsout of hand, an over-friendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that a patient has consented to it, all these things may transcend the bounds of lawfulness,withoutbeingcharacterisedashostile.Indeed,thesuggestedqualificationisdifficult to reconcile with the principle that any touching of another’s body is,intheabsenceoflawful excuse, capable of amounting to a battery” per Lord Goff at p.73 In order to establish the tort of battery it needs to be shown that the defendant acted intentionally. However, the defendant must haveintendedtocommittheactwhichamountsto battery; an intention to injure is not necessary. The courts have accepted the concept of ‘transferred’ intention where, for example, A fires a gun at B but misses and hits C. Livingstone v Ministry of Defence NI 356, NICA · Defences to Assault and Battery Consent Medical treatment:Chatterton v Gerson(1981) 1 QB432 Sport:R v Billingshurst(1978) Crim LR 553 Sado-masochism:R v Brown(1993) 2 WLR 556 Self-defence Inordertosucceed,Dhastoprovethattheforceusedinresponsetothethreatwasreasonable and proportionate: Cockcroft v Smith(1705) 2 Salk 642 “ …hittingamanalittleblowwithalittlestickontheshoulder,isnotareasonforhimtodrawa sword and cut and hew the other” per Holt CJ. Ashley v Chief Constable of Sussex Police UKHL25 Necessity here non-consensual force is used there might be thepossibilityofnecessityasadefence. W The defence only applies where the force used is the minimum necessary to preserve life: Leigh v Gladstone(1909) 26 TLR 130 False Imprisonment hetortoffalseimprisonmentinvolvesthecompleterestrictionofthecomplainant’sfreedomof T movementwithoutlawfulexcuseorjustification.Thetortiscommittedwherethedefendanthas deprivedtheclaimantofhisliberty.Itdoesnothavetobeshownthattheclaimantwaslockedin aroomorbuilding:thetortcoversanyunlawfulrestrictionontheclaimant’smovement.Ithasto be unlawful so that a person lawfully detained in a prison cannot claim false imprisonment. ‘Lawful’isthekeywordhere:iflawfulauthorityends,apreviouslylawfuldetentionmaybecome false imprisonment:R v Governor of Brockhill Prison,ex parte Evans (No.2) 2 AC 19. The tort is not committed where the claimant has a reasonable alternative route: Bird v Jones(1845) 7 QB 742 It does not matter that the claimant was unaware of the restriction on their freedom of movement: Meering v Graham-White Aviation Co Ltd A.C.295 Conditions and Consent It is notnecessarilyfalseimprisonmenttoimposeareasonableconditiononaclaimantbefore you allow them to leave. Robinson v Balmain New Ferry Company Ltd(1910) A.C.295 Herd v Weardale Steel, Coal and Coke Co Ltd(1915)A.C. 67 The rule inWilkinson v Downton. his is a separate tort, established in the case which gives the rule its name: Wilkinson v T Downton. Like trespass, it requires intention, butis not actionableper se. Wilkinson v Downton 2 QB 57. Janvier v Sweeney 2 KB 316. Wainwright v Home Office 4 All ER 969. he continued benefit of the rule might be questioned given the emergence of liability for T negligently inflicted psychiatric damage and the Protection from Harassment Act 1997. However, it was reaffirmed and re-iterated in: O v A UKSC 32: three elements: A conduct element; a mental element and a consequence element. TOPIC 2: Lecture Outline: Occupiers’ Liability Introduction The Current Regime Common law in origin, but now primarily statute based. · ccupiers Liability Act 1957 (OLA 1957) O · Occupier’s Liability Act 1984 (OLA 1984) Essentially these employ a simplified, statutory version of negligence. What is covered? Statutory occupier’s liability relates to injury caused due to thestate of the premises. Premises are widely defined: s1(3)(a) of the OLA 1957 iability isbased on ‘occupancy duties’ - seeMeering v Graham-White Aviation Co Ltd L A.C. 295 - this was confirmedinFairchild v Glenhaven FuneralServices 1 WLR 1052. amage due to activities on the premises (‘activity duties’) falls under common law negligence – D seeOgwo v Taylor AC 431 Who may be liable? The occupier Identifying the occupier(s) -Wheat v Lacon and CoLtd AC 522 – the ‘control’ test,per Lord Denning – referring to ‘occupier’ as: “… a convenient word to denote a person who hadasufficient degree of control over the premises to put him under a duty of caretowards thosewho came lawfully on the premises.” Control may be shared. ho may claim? W Identifying the category of visitor– lawful/non-lawful The position at common law Range of duties were owed – content depended on status of entrant igh standard of care owed to contractual entrants; H Lower standard of care owed to invitees and licensees; No duty owed to trespassers – beyond that not to deliberately/recklessly harm them (which emerged in the early nineteenth century when setting man traps – see image below – was made illegal.) Harsh application of the law raised problems and it was, for example, tempered for child trespassers through the concept ofallurement(seebelow) ltimately the law in this area became very complex – pressure for reform, e.g.: the Law Reform U Committee’s “Third Report: Occupier’s Liability to Invitees, Licensees and Trespassers” (Cmd. 9305)(1954). The Statutory Regime hange – Introducing the Statutory Regime - Occupiers Liability Act 1957 (OLA 1957) – C Lawful Visitors Occupiers–as under common law –Wheat v Lacon(supra) Visitorsencapsulated those who would have been: contractual entrants; invitees; and licensees at common law The Duty · 2(2) - the common duty of care s a duty to take such care as is reasonable in all the circumstances to ensure that a visitor will be reasonably safe in using the premises for the purposes for which he/she is invited/permitted to be there he Act does not require the occupier to take reasonable care to make the premises safe, but T to make the visitor safe; this could be done for example, by providing an adequate warning (see further below). cope of the Duty: S An approach akin to that adopted in common law negligence applies and thusthe nature of the risk in questionis relevant (in negligence seeBolton v Stone 1 All ER 1078). Applied in an occupier’s liability context inSimmsv Leigh RFC Ltd 2 All ER 923 Identified risks only –Clare v Perry EWCA39 · Limits on permission– effect on a visitor’sstatus: Tomlinson v Congleton Borough Council 3 AllER 1122 Spearman v Royal United Bath Hospitals NHS Foundation Trust EWHC 3027 (QB) · Independent contractors At common law – occupiers were under a duty to take ‘due care’: Haseldine v Daw 2 KB 343 cfWoodward v Mayor of Hastings 1 KB 174 Thomson v Cremin and Others 1 WLR 103 Occupier’s Obligations Under s2(4)(b) of the OLA 1957: erguson v Welsh(s upra) Lord Keith’sobiter dictum F [Drawing on Mocatta J inAMF International Ltd v MagnetBowling Ltd 1 WLR 1028] Wells v Copper 2 QB 265: “ … some kinds of work involve such highly specialised skill and knowledge and create such dangers if not properly done that an ordinary occupier owing a duty of care to others in regard to the safety of the premises would fail in that duty if he undertook the work himself instead of employing an expert to do it for him.” Other statutory requirements require the use of contractors · Limiting the common duty of care s2(1) OLA 1957 Warnings 2(4)(a) OLA 1957 requires that warnings be “sufficient to enable the visitor to be reasonably s safe” Darby v National Trust EWCA Civ 189 Limitations on Warnings - s2(6) OLA 1957 – no exclusions re those entering under a right conferred by law; - [Implications of the OLA 1984] - s3(1) OLA 1957 – contractual entrants 2 Unfair Contract Terms Act 1977 re business premises s [s14 – definition of ‘business premises’] s2(1) death/personal injury s2(2) property loss/damage Private occupiers General duty owed to visitors s2 OLA 1957: to enable them to be ‘reasonably safe’. Special cases hildren C s2(3) – occupiers should be prepared for children to be less careful than adults ooke v Midland Great Western Railway of IrelandAC 229– age and intelligence C factors hipps v Rochester Corporation 1 QB 450 – parentalsupervision P perDevlin J: “ …responsibility for the safety of little children must rest primarily on the parents … It would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children to those persons who happen to have accessible bits of land.” Latent/hidden dangers –Jolley v Sutton LBC1 WLR 1082 hose Acting in the Exercise of a Calling T S2(4) - occupiers’ duty tempered by C’s expertise Christmas v General Cleaning Contractors Ltd1 KB 141 Roles v Nathan 1 WLR 1117 cfKealey v Heard 1 WLR 573 Defences onsent– closely tied to warnings C Contributory negligence –seeClare v Perry(supra) Occupiers Liability Act 1984 (OLA 1984) – Trespassers and other non-Visitors · t common law trespassers entered at their ownrisk – seeAddie v Dumbreck A 1054 Limited obligation on D not to injure trespassers –Bird v Holbrook,supra. Severity of this approach tempered by legal fictions: ‘implied licence’ here child trespassers were concerned the fiction ofallurementwas used to justify their W treatment as implied licensees, as, for exampleGlasgowCorporation v Taylor 1 AC 44 he common law subsequently applied a minimal “duty of common humanity” to T trespassers, seeBritish Railways Board v Herrington AC 877 – uses the Practice Statement (Judicial Precedent) 1 W.L.R. 1234 aw Commission Report ‘Liability for Damage or Injury to Trespassers and Related L Questions of Occupier’s Liability’ (Law Com No. 75), 1976. · TheOLA 1984applies to trespassers; and those on land pursuant to the National Parks and Access to the Countryside Act 1949; and those on land pursuant to the Countryside and Rights of Way Act 2000 nly death and personal injury are covered – does not apply to property damage (s.1(8)), i.e. no O recovery for property damage. Under s1(3) a duty is owed if: The occupier knows or has reasonable grounds to believe that: the risk exists; the non-visitor is or may come to into its vicinity; and the risk is one which, in all the circumstances, he can reasonably to offer some protection against. The position of trespassers under the OLA 1984 Tomlinson v Congleton BC, supra Further Illustrations: Knowledge of (or reasonable grounds to believe in the existence of) danger: Rhind v Astbury Water Park Ltd EWCA Civ 756 Scott v Associated British Ports(2000) CA 22 November,2000 nowledgeof(orreasonablegroundstobelievein)thepresenceoftrespassersinthevicinityof K the danger: Donoghue v Folkestone Properties Ltd EWCA Civ231 Reasonable expectation of protection against the risk: nce a claimant has satisfied s.1(3)(a) and (b), the final aspect of s.1(3) needs to be O established, namely, that the risk is such that in all circumstances of the case the occupier/defendantmaybereasonablybeexpectedtooffersomeprotectionfromit(s.1(3)(c)). The claimant failed on this part in Tomlinson. The courts will conduct a similar balancing exerciseheretothatconductedingeneralbreachofdutycases.However,thedutywillonlybe imposed in relation to injury resulting from the known danger. ection 1(4) provides that where it is owed, the duty owed is: S “totakesuchcareasisreasonableinallthecircumstancesofthecasetoseethathedoesnot suffer injuryon the premises byreason of the dangerconcerned.” ote that the content of this obligation is different from andlowerthantheobligationowedto N lawful visitors under the 1957 Act to enable them to be ‘reasonably safe’. “ The duty of care… imposed under the 1984 Actissignificantlylessexactingthanthe commondutyofcareimposedunderthe1957Act,asacomparisonofthetwostatutes readily demonstrates.” Per Stuart-Smith LJ in Donoghue v Folkestone Properties, supra, at. ccupier’s duty discharged by taking such care as is reasonable in all the circumstancesto O warn of the danger or to discourage people from taking the risk(s.1(5)). Defences Consent .1(6): No duty is owed by virtue of this section to any person in respect of risks willingly s acceptedashisbythatperson(thequestionwhetherariskwassoacceptedtobedecidedon the same principles as in other cases in which one person owes a duty of care to another). C’s age may be relevant – seeTitchener v BritishRailways Board 1 WLR 1427 Contributory negligence C’s age may be relevant – seeRatcliff v McConnell 1 WLR 670 TOPIC 3: ort 1 T ecture Outline: Nuisance L Introduction and Overview rivate Nuisance P Public Nuisance Statutory Nuisance The Rule in Rylands v Fletcher Common law in origin, but developed by statute Private Nuisance infield definition: W “Private nuisance consists of a continuous, unlawful and indirect interference with the use or enjoyment of land or of some right over or in connection with it” Bamford v Turnley(1862)3 B & S 62, 122 ER 25 (perBramwell B): “ any continuous activity or state of affairs causing a substantial and unreasonable interference with a plaintiff’s land or his use or enjoyment of that land” fFearn v Board of Trustees of the Tate Gallery2 W.L.R. 339 C Lord Leggat JSC picks out Bramwell B’s judgement inBamfordselecting the reference to hether the Defendant’s acts or activities were those“necessary for its ordinary use and w occupation, and if that activity was necessary for the ordinary use and occupation of the land and if those activities were ‘conveniently’ done, there would be no actionable nuisance. L ord Leggat’s view inFearnwas that the test shouldbe ‘ordinary and common’ use – rather than reasonable use. However, note, the dissenting view as expressed by Lord Sales JSC: “ In this way, in my view, Pollock CB, like Bramwell B, also emphasised that the underlying principle was one of overall reasonableness, involving reciprocity and compromise, taking account of the competing interests of both landowners. This view has persisted since then. In a note in (1937) 53 LQR 3, Professor Goodhart said that the governing principle is one of reasonableness in which “what is reasonable depends both upon [the defendant's] circumstances and on those of his neighbour” (at para 164) …and “ However, whilst a defendant will ordinarily not be liable in nuisance when its use is “common and ordinary”, it does not follow that a defendant will necessarily be liable for nuisance where a relevant interference with the claimant's enjoyment of their land is caused by use by the defendant which is not “common and ordinary”. Moreover, even in a standard type of case, where the defendant says that its use of its land is “common and ordinary”, the requirement that its use is “conveniently done” means that the fundamental principle remains that of reasonable user”. (at para 167) reliminary issue #1: P Nuisance is more than an ‘annoyance’ unter and Others v Canary Wharf Ltd andHunter andOthers v London Docklands H CorporationUKHL 14, AC 655: “ The annoyance caused by the erection of Canary Wharf and the consequential interference with television reception must have been very considerable. But unfortunately the law does not always afford a remedy for every annoyance, however great.” per Lord Lloyd Preliminary Issue #2: Legal Standing – Who can sue? laimant must have an interest in the land affected by the nuisance; must own or have a right C over the land or have exclusive possession e.g owners, leaseholders or tenants hose who do not have an interest in land cannot make a claim of private nuisance. (confirmed T inHunter and Others v Canary Wharf Ltd onKhorasandjian v Bush 3 WLR 476 e.g visitors, family members, lodgers or employees ( live-in nannies, au pairs, servants) alone v Laskey 2 KB 141 M Cf Khorasandjian v Bush Hunter and Others v Canary Wharf Ltd Hunter and Others v London Dockland Corporation Cf impact of Human Rights Act 1998 :Khatun vUK and McKenna v British Aluminium Private Nuisance – Key elements 1. R equirement of ‘legal standing’ in connection with the land affected 2. Unreasonable use of the land which amounts to nuisance cf note the impact of earnand ‘ordinary and common use’ F 3. Continuous, indirect interference 4. The claimant must suffer some harm 1) Requirement of ‘legal standing’ – see PreliminaryIssue #2 2) A ssessment of unreasonable/”ordinary and common”use of the land which amounts to nuisance hether assessing use of land in terms of ‘unreasonable’ or ‘ordinary and common’ the factors W to be considered are: ) The sensitivity of the claimant – sometimes relevant a b) The time, duration and intensity of the nuisance – always relevant c) The character of the area – sometimes relevant d) The reasonable foreseeability of the type of damage - and e) Any malice on the part of the defendant – sometimes relevant a) Sensitivity of the Claimant Standard of tolerance = that of the reasonable person and ordinary land use. The inconvenience: “ ought to be more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people” per Knight-Bruce VC inWalter v Selfe (1851) 64 ER 849 obinson v Kilvert (1889)LR 41 Ch D 88:“[a] manwho carries on an exceptionally delicate R trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade.” Per Lopes, L.J.at 97. f Network Rail Infrastructure Ltd v Morris (t/a Soundstar Studios) EWCA Civ 172: C suggests concept of ‘abnormal sensitivity’ was something of the past and a better question was whether it was foreseeable that specific damage would be caused to the specific Claimant. owever, see impact ofFearnjudgment onNetwork Railand how to approach issue of H sensitivity of Claimant. b) Time, Duration and Intensity uration and time of the alleged nuisance can determine whether a private nuisance has been D created Time:Halsey v Esso Petroleum Co Ltd 1 WLR683 : High Court held that a private nuisance was created by noise at night from boilers and road tankers. ontinuing rather than temporary? C De Keyser’s Royal Hotel v Spicer(1914)30 TLR 257 : piledriving at night was held to be a nuisance despite being of temporary duration. - no complete ban – injunction prohibiting the drilling activity between 10pm and 6.30am. Kennaway v Thompson(1981) QB 88 – motor boat racing rown River Cruises Ltd v Kimbolton Fireworks Ltd 2 Lloyd’s Rep 533 (QBD), a 20 C minute firework display - private nuisance – - physical damage. c) The Character of the Area or Nature of the Locality – where there is ‘damage’ he character of the area in which the alleged nuisance occurred may be relevant in deciding T whether there is a private nuisance. “ [W]hether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges…would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong” Sturges v Bridgman(1879) LR 11 Ch D 852 Per ThesigerLJ St Helen's Smelting Co v Tipping(1865) 11HLC 642: amage caused by vapours from a factory was held to be a private nuisance even though there D were many other factories in the neighbourhood who also emitted vapours. eld: although the character of the area is important that did not prevent a successful action in H private nuisance for damage to property. Relevant cases on ‘character of locality’: Fearn and others v The Board of Trustees of the Tate Gallery EWCA Civ 104 ate Modern viewing platform invades privacy of flats, T supreme court rules Wheeler v JJ Saunders Ltd Ch 19 (CA) Coventry v Lawrence UKSC 13 illingham Borough Council v Medway (Chatham) Dock Co Ltd QB 343 – effect of G planning permission changing nature of locality arr & Others v Biffa Waste Services EWCA Civ312 (permits do not make an B unreasonable activity reasonable) Issues with Nature of Locality element – inequity? (seeBaxtervCamden LBC (No 2) QB 1 d) The reasonable foreseeability of the type of damage “ the development of the law of negligence in the past sixty years points strongly towards a requirement that such foreseeability should be a prerequisite of liability in damages for nuisance, as it is of liability in negligence.” Cambridge Water Co v Eastern Counties Leather PLC 2 AC 264 Per Lord Goff easonable foreseeability confirmed as key inNetworkRail Infrastructure Ltd v Morris (t/a R Soundstar Studios) EWCA Civ 172 e) Acts of malice? ollywood Silver Fox Farm Ltd v Emmett 2 KB468 ( Fox fur farm – gun discharged by H neighbour on purpose, D had acted maliciously. Claimant entitled to injunction and damages) 3) Continuous and Indirect Interference 4) Requirement of Harm Not actionable per se There must be some damage, harm injury or inconvenience Loss of Amenity. Defences to Private Nuisance Main defences to a private nuisance are: tatutory authority S Prescription Consent Act of God Unforeseeable act of a stranger Necessity Statutory Authority Conduct authorised by law: e.g. Civil Aviation Act 1982 s.76 states: “ No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order…have been duly complied with.” Prescription he defence of prescription is a claim by the defendant that he or she has acquired the right to T act in a particular way because they have done so for 20 years. (Also referred to as ‘easement by prescription’). efence based on property law and can be difficult to use in practice. D InSturges v Bridgman(1879) prescription could notbe used as a defence because although the defendant had used noisy equipment for more than 20 years, the moment the claimant doctor built his consulting room, only then did the noise become a nuisance. In other words, the 20 years is not based on how long the act has been going on but rather on how long the act has been a nuisance. NO defence: Coming to a nuisance. “ It may be that this rule works injustice,…. but we are bound by the decision inSturges v Bridgmanand it is not for this court as I see itto alter a rule which has stood for so long.”Miller v Jackson per Lane L J. Public Benefit/Utility :Coventry v LawrenceUKSC 13 Remedies for Private Nuisance . Damages 1 2. Injunctions e.gKennaway v Thompson(1981) 3. Abatement Relationship with Negligence ome situations may raise the possibility of claims in nuisance and negligence but the S requirements are not the same for each. owever, the issue of reasonable foreseeability, key in negligence, is increasingly important in H determining nuisance claims. ome commentators have raised the question of whether nuisance is by now subsumed or just S another category of negligence Private Nuisance: issues to consider Inequity? - Legal Standing? - Conflict with human rights? - Nature of locality/character of area (BaxtervCamden LBC (No 2) QB 1 No defence of public benefit? However: Flexible (consideration of all circumstances) Categories not closed Application of ‘reasonable foreseeability’ permits appropriate balance? Relevant factors taken together lead to a just outcome? Public Nuisance Definition: public nuisance is a nuisance “which materially affects the reasonable comfort and A convenience of life of a class of Her Majesty's subjects.” Attorney-General v PYA Quarries Ltd 2 QB 169,184 per Romer LJ “ A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.” P. J. Richardson (ed),Archbold: Criminal Pleading, Evidence and Practice(2015) para 31-40 Differences with Private Nuisance: public nuisance affects a representative cross-section of a class of society in a A neighbourhood. Is both a crime and a tort Requirements of Public Nuisance uisance must affect a ‘class’ N For a civil claim in tort – individual must sufferspecial or particular harm (Tate & Lyle v Greater London Council 2 AC 509 Fault element? - Defendant is liable if he orshe knew or ought to have known of the risk of the type or kind of nuisance that in fact occurred. Same type of foreseeability in private nuisance. Example: see laterR v Goldstein Examples ee case law and the order inLondon Borough of Hackneyv Persons Unknown in London S Fields EWHC 1900 (QB) which highlights thebroad range of conduct whichmight amount to a public nuisance, including: organising/participating in a rave; playing loud music; urinating of defecating; lighting fires, fireworks, barbeques; consuming or selling nitrous oxide; uprooting or damaging trees or shrubs and littering. Attorney-General v PYA Quarries Ltd n injunction was obtained to prevent the defendant from emitting quantities of stones, splinters A dust and vibration from their quarry which was disturbing the local residents. The defendants unsuccessfully appealed to the Court of Appeal to have the injunction removed. Romer, LJ stated: ‘The sphere of the nuisance may be described generally as "the neighbourhood"; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected…’ A ‘class of people’ he facts of the case will determine if the persons affected by a nuisance amount to a class of T people. InR v Ong 10 WLUK 39 the defendant and otherswere planning to interfere with the floodlights in the course of the Premier Division match between Charlton Athletic and Liverpool football teams. They pleaded guilty to conspiracy to commit a public nuisance (and another offence). The class of people that would have been affected by the nuisance were the football spectators. v Lowrie EWCA Crim 2325 - hoax calls tothe emergency services pleaded guilty to R causing a public nuisance. Court of Appeal upheld the custodial sentence imposed. he class of people that would have been affected by the nuisance were those people who T were in genuine need of help by the emergency services but could not get help because the emergency services had been diverted elsewhere by the hoax calls. Abusive letters? R v Rimmington 1 AC 459 : House of Lords heldthat sending racially offensive materials to members of the public wasnota public nuisance.Reasoning that sending individual letters to individual people did not constitute a nuisanceaffectinga class of people. he House of Lords also stated that common law offences such as public nuisance shouldnot T be used for conduct covered by a statutory offence unless there was a good reason. Rimmingtoncould have been prosecuted under the MaliciousCommunications Act 1988. Joke? InR v Goldstein, the defendant had enclosedsome salt in an envelope together with a cheque. It was intended as a joke both because of the age of the debt he was paying and as a reference to a recent anthrax outbreak in the USA which he had recently discussed with the intended recipient of the envelope. The salt leaked out of the envelope in a Post Office sorting office creating an anthrax scare and the evacuation of the sorting office. he House of Lords held that there was no public nuisance because it was not proved that the T defendant knew or reasonably should have known that the salt would escape from the envelope in the sorting office and cause a nuisance. Civil Actions Against Public Nuisance ivil actions can be brought against those committing a public nuisance in three ways. The C remedies sought will be damages and a prohibitory injunction. 1. By a realtor action. These are brought in the name of the Attorney General on behalf of a rivate citizen who has persuaded the Attorney General to agree to the action. Such p actions are rare. 2. B y a local authority under the Local Government Act 1972 s.222. 3. An action for tort by a private citizen who can show that he has suffered special damage beyond that experienced by the others of ‘Her Majesty’s subjects’. Realtor actions for public nuisance are very rare. Possible reasons for this include: 1. T here are statutory bodies such as local authorities who will usually bring the actions. 2. The Attorney General is unlikely to agree to a realtor action unless there is special amage and, if there is special damage, private citizens can bring actions in their own d name without the permission of the Attorney General. 3. Most nuisance which the affects the citizen can be prosecuted under statutory provisions rather than public nuisance. It is often the case that the Attorney General will receive no applications for a realtor action in one particular year. Defences to claims for Public Nuisance In addition to the general defences to tort , covered in more detail in our study of Negligence, statutory authority is the main specific defence to public nuisance. This means that the alleged nuisance is permitted by statute. Prescription cannot be used as a defence to a charge of public nuisance. Civil Remedies for Public Nuisance . Damages 1 2. Injunctions Statutory Nuisance reated by and contained in Acts of Parliament to cover those nuisances which are most C damaging to the environment or to Public Health E.g Environmental Protection Act 1990 see s79 If a nuisance occurs which amounts to something in s79 then an individual may complain about it but the onus is on the local authority to investigate and then take action. 79. Statutory nuisances and inspections therefor. (1)[F2Subject to subsections (1A) to (6A) below],the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say— (a) any premises in such a state as to be prejudicial to health or a nuisance; (b) smoke emitted from premises so as to be prejudicial to health or a nuisance; (c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance; (d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance; (e) any accumulation or deposit which is prejudicial to health or a nuisance; (f) any animal kept in such a place or manner as to be prejudicial to health or a nuisance; [F3(fa) any insects emanating from relevant industrial,trade or business premises and being prejudicial to health or a nuisance;] [F4(fb) artificial light emitted from premises soas to be prejudicial to health or a nuisance;] (g) noise emitted from premises so as to be prejudicial to health or a nuisance; [F5(ga) noise that is prejudicial to health or a nuisanceand is emitted from or caused by a vehicle, machinery or equipment in a street[F 6or in Scotland, road];] (h) any other matter declared by any enactment to be a statutory nuisance; The Rule in Rylands v Fletcher (1868) LR 3 HL 330 (HL) The Rule: “ We think that the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, isprima facieanswerable for all the damage which is the natural consequence of its escape” lackburn J. in the Court of Exchequer B quoted by Lord Cairns …..adding that the use of land must be non-natural The rule as modified and developed 1. omething must have been brought on to the land……..which is likely to do mischief S 2. ….if it escaped 3. .. must be a non-natural use of land 4. .. type of damage caused must be foreseeable 1. Something must have been brought on to the land……..which is likely to do mischief Transco PLC v Stockport Metropolitan Borough Council 2 AC 1 FACTS: L: decided in favour of the Council because the supply of water through the pipes was normal H and did not create any special hazard. ord Bingham: “It is of course true that water in quantity is almost always capable of causing L damage if it escapes. But the piping of a water supply from the mains to the storage tanks in the block was a routine function which would not have struck anyone as raising any special hazard. …... It was entirely normal and routine.” ord Hoffman: “I agree…that the criterion of exceptional risk must be taken seriously and L creates a high threshold for a claimant to surmount…I think that the risk of damage to property caused by leaking water is one against which most people can and do commonly insure.” Sets a high threshold 2. Escape and Read v Lyons ead v J Lyons & Co AC 156 (HL): explosivesdetonated in a munitions factory killing R one person and injuring others. There was no evidence of negligence and the case was decided using theRule in Rylands v Fletcher. It was heldby the House of Lords that no liability arose because the persons injured were on the Defendant’s premises and there was no escape from the factory. tannard (t/a) Wyvern Tyresv Gore EWCA Civ1248 – (tyres did no ‘escape’ – the fire S did and fire had not been brought on to the land Crown River Cruises Ltd v Kimbolton Fireworks Ltd 3. Non-Natural Use:Rickards v LothianAC 263(PC) InRickards v Lothian: tap left running andthe washbasin’s waste pipe had been blocked by an unknown person. udicial Committee of the Privy Council: held that the water from the overflow pipe, did not J involve the non-natural use of land. ord Moulton: “The provision of a proper supply of water to the various parts of a house is not L only reasonable but has become, in accordance with modern sanitary views, an almost necessary feature of town life..” Non-natural use:Read v J Lyons & Co Ltd his case is also important because Lord Porter in the House of Lords stated that, in deciding T whether something was being used in a non-natural way, all circumstances must be considered. ord Porter: “as to whether the particular object can be dangerous or the particular use can be L non-natural, and in deciding this question I think that all the circumstances of the time and place and practice of mankind must be taken into consideration, so that what might be regarded as dangerous or non-natural may vary according to those circumstances.” on-Natural Use : N Cambridge Water Co Ltd v Eastern Counties Leather PLC 2 AC 264 (HL) -water contaminated by chemicals from a tannery – small spillages over time seeping through the factory floor he House of Lords accepted that the storage of PCE by the defendants was a non-natural use T of the land ord Goff: “I feel bound to say that the storage of substantial quantities of chemicals on L industrial premises should be regarded as an almost classic case of non-natural use; and I find it very difficult to think that it should be thought objectionable to impose strict liability for damage caused in the event of their escape.” . Foreseeability of Harm… type of damage: 4 Cambridge Water Co Ltd v Eastern Counties Leather PLC added this requirement.This type of foreseeability was established inWagon Mound(No 1) (note also for Private and Public nuisances) ord Goff: “…foreseeability of damage of the relevant type should be regarded as a prerequisite L of liability in damages under the rule”. Damage ‘too remote’ Defences: Consent:Carstairs v Taylor(1871) LR 6 Exch217 Act of God:Nichols v Marsland(1876 - 77) LR2 Ex D 1 (CA) – heavy rainfall Act of a stranger:Perry v Kendrick's TransportLtd 1 WLR 85 (CA) tatutory authority:Charing Cross Electric Supply Co v Hydraulic Power Co 3 S KB 772 Contributory negligence: Law Reform (ContributoryNegligence) Act 1945 s1(1) The Rule inRylands v Fletcher: A Review he rule was decided at a time when there wasgrowing public concern over bursting T reservoir dams which was damaging property. Australia no longer follows the rule: Burnie Port Authority v General Jones Pty Limited The rule is not followed in Scotland: RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council In English and Welsh law it is increasingly beingseen as part of the tort of nuisance rather than a separate tort itself. TOPIC 4: Lecture Outline: Duty of Care & Breach of Duty Introduction Intermsofthenumberofcasesdecidedbythecourtseachyear,negligenceisbyfarthemost important tort. Other recognised torts will protect a particular interest of the claimant (e.g. assault and battery protects bodily integrity; defamationprotectsreputation;nuisanceprotects the enjoyment of land). In contrast, negligence is considerably more varied in terms of the interests protected. In general, negligence is capable ofprovidingaremedyforthreetypesof harm: personal injury (numerically the most common), damage to property and economic loss. Establishing a claim in negligence In order to establish liability in negligence, the claimant has to satisfy a number of tests: - that D owed C a duty of care; -that D breached that duty of care; -the breach of duty by D caused the damage complained of by C; and -that damage is not too remote If a claimant can satisfy the above tests, then prima facie, he will have a valid claim in negligence. However, the courts (and law students)willthenhavetoconsiderifanydefences are available to D. Finally, the courts will award a remedy, most commonly damages. oreaseofunderstandingitiscommontodivideanactioninnegligenceintothevariousstages F highlighted above, however, very often the different stages will overlap. Moreover, it is often stated that therecanbenoliability‘intheair’;whatthisbasicallymeansisthatdamageisthe gist of an action in negligence so that no liability will result if the claimant has not suffered damage.Forthisreason,LordPearceinHedleyByrnev.Heller2AllER575statedthat heoftenfounditusefultoconsider‘damage’firstandworkhiswaybackto‘duty’. Negligence doesnotimposeadutyonpersonstoactcarefully;itisadutynottoinflictdamagecarelessly. Forexample,amotoristmaydriveascarelesslyashepleasesbutwillonlybeliableintortifhis careless driving causes damage to another. Pre 1932 position: ‘duty situations’ rior to 1932 and the introduction of a generaldutyofcare,aclaimantcouldonlysucceedin P negligence if they were able to bring their claim within a pre-existingdutysituation.However, thisrestrictiveapproachtonegligenceliabilitywastochangein1932withalandmarkdecision of the HL. The development of a general duty of care Donoghue v. Stevenson AC 562 Lord Atkins ‘neigbour principle’: “ There must be, and is, some general conception of relations giving rise toadutyofcare,of whichtheparticularcasesfoundinthebooksarebutinstances....Therulethatyouaretolove yourneighbourbecomesinlawyoumustnotinjureyourneighbour;andthelawyer'squestion: Whoismyneighbour?receivesarestrictedreply.Youmusttakereasonablecaretoavoidacts or omissions whichyoucanreasonablyforeseewouldbelikelytoinjureyourneighbour.Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that Ioughtreasonablytohavethemincontemplationasbeingso affected when I am directing mymindtotheactsoromissionsthatarecalledinquestion.”(at p.580). he test to be applied is one based on reasonable foresight of harm to persons whom it is T foreseeablearelikelytobeharmedbymycarelessness.Thetesthereisanobjectiveone;the courts do not ask what the individual defendant foresaw butratherwhatareasonableperson would foresee. s a rule of liability,theneighbourprincipleisundoubtedlytoowide.Itisworthnotingthatthe A decisionoftheHLwasabaremajority.LordsBuckmasterandTomlinwerevigorouslyopposed, largely on the basis that an all-encompassing test based simply upon foreseeability of harm wouldleadtoadrasticincreaseintortiousliability,theclassic‘floodgates’argument,whichhas troubled the courts ever since. ord Atkins’ neighbour principlewasappliedinnumeroussubsequentdecisions.However,the L courts did not use foreseeability of harm as the only criterion of liabilityinnegligence.Asthe generallawofnegligencewasdevelopedbythecourts,avarietyoffactualsituationsinwhicha dutyofcarewasheldtoexistdeveloped.Whereafactualsituationseemedcompletelynovel,a duty of care would only be imposed ifthereweresoundpolicyreasonsfordoingso.Policyin this context simply means that the courts consider whether society as a whole would benefit from the imposition of a duty of care. This approach was criticised on the basis that the requirement to find a policy justification for imposing a duty of care was hindering the developmentofthelaw.AssuchLordReidinHomeOfficev.DorsetYachtCo.LtdAC 1004 stated that Lord Atkin’s dictum ought to be applied unless there is some justification or valid explanation for its exclusion (p.1027). The two-stage test Expansion of the duty concept: Anns v. Merton London Borough Council AC 728 “...in order to establishthatadutyofcarearisesinaparticularsituation,itisnotnecessaryto bring the facts of that situation within those of previous situationsinwhichadutyofcarehas beenheldtoexist.Ratherthequestionhastobeapproachedintwostages.Firstonehastoask whether,asbetweentheallegedwrongdoerandthepersonwhohassuffereddamagethereisa sufficientrelationshipofproximityorneighbourhoodsuchthat,inthereasonablecontemplation of the former, carelessness on his part may belikelytocausedamagetothelatter-inwhich caseaprimafaciedutyofcarearises.Secondly,ifthefirstquestionisansweredaffirmatively,it is necessary to consider whether there are any considerations which ought tonegative,orto reduceorlimitthescopeofthedutyortheclassofpersontowhomitisowedorthedamagesto which a breach of it may give rise.” (per Lord Wilberforce at pp.751-752). hus, a two-stage approachtotheestablishmentofadutyofcarewascreated.First,wasthe T neighbourtestsatisfied,i.e.wouldareasonablepersonforeseeariskofharmtotheclaimant? Iftheanswertothisquestionis‘yes’,thenprimafacie,adutyofcarewouldexist.Thesecond stageistoaskwhetherthereareanypolicyreasonswhichwouldjustifytheexclusionofaduty of care. hetestpromulgatedbyLordWilberforceeffectivelyreversedtheprocessutilisedbythecourts T todeterminetheexistenceofadutyofcare.PriortoAnns,thecourtswouldonlyimposeaduty where policy dictatedthatadutyofcareshouldexist.Incontrast,theapproachadvocatedby ord Wilberforce created a presumption that a duty will exist (providing the neighbour test is L satisfied)whichcouldonlybedeniedwherepolicydictatedthatadutyofcareshouldnotexist. This lead to a drastic extension of the situations inwhichthecourtswherepreparedtofinda duty of care. The high water mark:Junior Books Ltd v Veitchi CoLtd 1 AC 520 The retreat fromAnns he expansion of liability heralded by the Anns two stage test created considerable judicial T unease. (Peabody Donation Fund v. Sir LindsayParkinson&Co.Ltd3AllER529 LordKeithatp.534;Leigh&Sillavanv.Aliakmon2AllER145LordBrandonatp.153; Yuen Kun-yeu v. AG of Hong Kong 2 All ER 13Lord Keith at p.710). Sutherland Shire Council v Heyman[1955–95] P.N.L.R.238 (Australian High Court) “ It is preferable, in my view, that the law should develop novel categories of negligence incrementallyandbyanalogywithestablishedcategories,ratherthanbyamassiveextensionof a prima facie duty of care restrained only by indefinable “considerations which ought to negative, ortoreduceorlimitthescopeofthedutyortheclassofpersontowhomitisowed” (per Brennan J at p.284). The incremental approach:Murphy v. Brentwood DistrictCouncil 2 All ER 908. The three stage test Inthevastmajorityofnegligencecases,thequestionofwhetherDowedCadutyofcareisnot an issue. For example, itisacceptedwithoutquestionthatroadusersoweotherroadusersa duty of careandthatemployersoweadutyofcaretoemployees.However,theremaystillbe casesofanovelkindwherethecourtsarecalledupontodeterminetheexistenceofaduty.The modernapproachofthecourtsistoapplythethreestagetestdevelopedinCaparoIndustries v. Dickman 1 All ER 568, namely: - Was the damage reasonably foreseeable? -Was there a relationship of proximity between D and C? -Is it just, fair and reasonable to impose a duty? Reasonable Foreseeability - Objective test: the foresight of the hypotheticalreasonable person - Reasonable foresight as an a flexible concept: Grant v Australian Knitting Mills [1936] AC 85. Proximity Muirhead v Industrial Tank Specialists Ltd3 All ER 705 Watson v British Boxing Board of Control QB1134 Sutradhar v. Natural Environment Research Council 4 All ER 490 Fair, Just and Reasonable Itshouldbenotedthatwhilethethirdlimbismostoftenusedinanegativesensetodenyaduty, itcanalsobeutilisedpositively,asajustificationfortheimpositionofaduty.Inrecentyearsthe courts have identified a widerangeoffactorswhichmayberelevanttothedenialofadutyof care on the basis that it would not be fair, just and reasonable to impose a duty in the circumstances. These include: - theexistenceofadutyofcareinagivensituationwouldleadtoadrasticincreasein similarclaims(floodgatesargument)andwouldexposeDtopotentiallyfarreaching, indeterminate liability. N.B. this argument is particularly relevant to claims for pure economic loss and psychiatric injury. - the claimant is the author ofhisownmisfortune(CalvertvWilliamHillCreditLtd EWHC 454) - a duty of care would lead to unduly defensivepractices; - wherethedefendantisapublicauthorityexercisingapublicfunction,theimposition of a duty would have financial consequences (defending claims and compensation); - there is an alternative remedy available to theclaimant. Illustration of theCaparothird limb: applicationto policing cases: Hill v Chief Constable of West Yorkshire AC53 Smith v Chief Constable of Sussex Police UKHL50 Michael v Chief Constable of South Wales PoliceUKSC 2 Robinson v West Yorkshire Police UKSC 4 he incremental approach and determining novel situations: Darnley v Croydon Health T Services NHS Trust UKSC 50 Breach of Duty of Care Introduction reach of duty is essentially concerned with whether D’s conduct can be characterised as B careless.Thisinvolvesatwostageprocessinvolvingquestionsoflawandfact.First,onehasto consider how, in the circumstances, D ought to have behaved, i.e. what is the appropriate standard of care?Thisisaquestionoflawwhichinvolvesavaluejudgmentonthepartofthe judge whowill,ingeneralterms,relyonthestandardsofthehypothetical‘reasonableperson’. Whatisreasonableconductwilldependuponallthecircumstancesofthecase.Second,ithas to be shown that on the facts, D’s conduct actually fell below the required standard. In most cases, C has the burden of proving this, on a balance of probabilities. In practical terms, breach ofdutyisthemostimportantaspectofthetortofnegligence.Inthe majority of cases, questions regarding a duty of care and causation are not an issue. For example, D and C are involved in a road accident; C suffers injury asaresultandsuesDin negligence. It is obvious that a road user will owe a duty of care to another road user; it is equallyobviousthattheactionsofDcausedtheinjurytoC.Thus,themostcontentiousissueis breach of duty, i.e. was D’s standard of driving considered acceptable? The Objective Standard henitissaidthatDhasbreachedadutyofcareowedtoC,itmeansthatDhasfallenbelow W the standard of behaviour expected in a person undertaking the activity concerned. The test utilised by the courts for thispurposeisanobjectiveonebasedonthereasonableperson,as such,thedefendant’spersonalcharacteristics,idiosyncrasiesorweaknessesareignored.This is clearly illustrated by the following case: Nettleship v Weston 2 QB 691 he objective standard equally applies to a driver who becomes physically incapable of T controllingthevehicleasaresultofaphysicalimpairment,e.g.asaresultofaheartattack.The courtwilldrawadistinctionbetweensomeonewhosuffersfromapre-existingconditionsuchas epilepsy and someone who is unaware of his condition, such as a driver with no previous medical history, who suffers a stroke at the wheel. Roberts v Ramsbottom 1 All ER 7 Mansfield v Weetabix Ltd 1 WLR 1263 The standard of reasonableness he standard of care in negligence never amounts to an unqualified duty to prevent harm to T others.Thestandardisbasedonreasonablenesssothatwhenadutyexists,thedutyrequires a person to do whatever a reasonable person would do to preventtheanticipatedharmfrom occurring, not to do absolutely anything and everything possible to prevent harm. Simmonds v Isle of Wight Council EWHC 2303 ost activities, to a greater or lesser extent, create a risk of harm to others. In determining M whether a breach of duty has occurred, the courts will conductabalancingexercisebetween the risks created by an activity andthepracticalityofprecautions.Inconductingthisexercise, thecourtswillalsohaveregardtotheseriousnessoftheharmlikelytooccurandthepurposeof the activity in question. Although the test to be applied is an objective one, an element of subjectivityisincludedinthecourt’sanalysisbyvirtueofthefactthatspecialcharacteristicsof the defendantaresometimesconsideredrelevant,forexample,wherethedefendantisachild or professional. Magnitude of the risk hemagnitudeoftheriskhasseveralaspects,includingthechancesofdamageoccurring,the T severityofdamageandthepracticalityofprecautions.Further,thepurposeoftheactivitywhich gives rise to the risk of harm will also influence the conclusion reached. Likelihood of harm The court’s approach to the probability of harm occurring is illustrated by the following cases: Bolton v Stone AC 850 Miller v Jackson QB 966 Haley v London Electricity Board AC 778 Severity of the damage he more serious the potentialconsequences,thegreatertheprecautionsthatwillhavetobe T taken in order for a defendant to satisfy the standard of care required of him. “Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in the ordinary routine of daily life”. (G lasgow Corp.vMuirAC448 per Lord Macmillan at p.456). Paris v Stepney Borough Council AC 367 Practicality of precautions ome risks cannot be avoided. Others can only be avoided or reduced at considerable S expense. The main issue for the courts is at whatpointprecautionsbecomesocostlythata reasonably person would be justified in not taking them. Latimer v AEC Ltd AC 643 The social utility of the defendant’s conduct omerisksaretakeninordertodirectlyorindirectlyprovideabenefittosocietyasawhole.As S such, in certain cases the social utility of the defendant’sconductmayjustifytakingrisksthat would otherwise be unacceptable. Watt v Hertfordshire County Council 1 WLR 835 he common law position has been given statutory effect by virtue of section 1 of the T Compensation Act 2006, which states that in deciding what steps a defendant should have taken in satisfying a duty of care, a court: May… have regard to whether a requirement to take such steps might- (a) prevent a desirable activityfrombeingundertakenatall,toaparticularextent, or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity. he section was added to the Act partlyinresponsetoconcernsexpressedinthemediathat T the fear of litigation was deterring some organisations from undertaking socially beneficial activities, e.g. schools refusing to take pupils on school trips.Section1doesnotactuallyadd anythingtothecommonlawapproachevidentincaseslikeWatt,thecourt’sarenotrequiredto onsiderthesocialutilityofthedefendant’sactivitybuthaveadiscretiontodoso,asevidenced c by the word ‘may’ at the beginning of the section. Characteristics of the defendant Children aseswhereachildisadefendantareseldomencountered,possiblybecausechildrenarenot C worth suing; nevertheless, infancy isnotassuchadefencetoanactioninnegligence.Where thedefendantisachild,thestandardofcarerequiredisthatofanordinaryandreasonablechild of the same age. Mullins v Richards 1 All ER 920 Walmsley v Hummenick 2 DLR 232 Professionals and those with special skills hecourtswilltakeaccountofthefactthataparticulardefendanthasaprofessionalskill,where T thecaseinvolvestheexerciseofthatskill.Insuchcasesthecourtswillrequirethedefendantto demonstrate a degree of care and skill usually to be expectedofanordi
