INTRODUCTION

- Tort provides a remedy for a party who has suffered the breach of a protected interest
- Negligence: concerns personal safety and interests in property
- Trespass to the person: concerns physical safety
- Trespass to property: concerns ownership of property
o Torts of nuisance & Rylands v Fletcher also govern property interests
- Tort of defamation: concerns reputation
- Recent development: protection of privacy from media intrusion
- Type of loss/harm covered
o Damages to compensate for loss suffered as a consequence of an infringement
of an interest protected by tort law
- Competing interests is often in issue: e.g. protection of reputation vs freedom of
expression
- Tort vs contract & criminal
o Contract: obligations are negotiated by parties rather than imposed by law;
liquidated damages
 Tort duty fixed by the law, owed not to specific person; unliquidated
damages; punitive damages possible
o Criminal: focus on malicious motive; tort focus on loss/damage

NEGLIENCE

- Elements of claim in negligence:

o Duty of care
o Breach of duty
o Causation of damage
- Duty of care
o Can DOC be imposed in this case (law & policy)?
 Neighbor principle: Must take reasonable care to avoid acts or
omissions which you can reasonably foresee (foreseeability) would be
likely to injure your neighbor (proximity) (Donoghue v Stevenson)
 Neighbor = persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation
as being so affected when I am directing my mind to the acts
and omissions
 Home Office v Dorset Yacht: extending neighbor principle
 Boys escaped custody and harmed P's yacht; held Home Office
owed DOC to P; liability based on omission & for TP acts
 Hill v Chief Constable of West Yorkshire: type of damage foreseeable
(death) but no sufficient proximity between police and Hill
 For novel DOC (Caparo v Dickman):
 Damage must be foreseeable
 Must be proximity of relationship between the parties
 Must be 'fair, just and reaonsable' for such a duty to exist
 Marc Rich applying Caparo: Ship certified by D but sank with loss of
P's cargo; held no DOC despite proximity of parties and foreseeability
of damage, but since risk governed by int'l shipping etc, CL DOC
cannot override i.e. not fair just & reasonable
 o Was it foreseeable that this claimant would be harmed by D's act (factual)?
 Duty is not to the world at large
 Foreseeability of risk to P/ P of his type (e.g. injury to far away
passenger carrying explosives at train station held unforeseeable)
 Haley v London Electricity Board: blind pedestrians were
common enough that they should have been within the
contemplation of D
o NB. D will usually bring a striking out action on grounds that D owes no DOC
to claimant thus no reasonable grounds for C's case.
o Omissions: failure to protect claimant from a risk of harm casued by a TP or
by himself
 Generally, no duty to help someone/prevent injury, something more is
needed in addition to foreseeability and proximity (Stovin v Wise)
 Exceptionally, there may be DOC in respect of omission (Smith v
Littlewoods)
 Relationship between parties which creates an assumption of
responsibility on behalf of D for safety of C
 Relationship of control between D and TP who causes damage
 D creates or permits a source of danger to be created, which is
interfered with by TP
 Failure of D to remove a source of danger of which he is aware
(but court reluctant to impose a duty on public body operating
statutory powers)
o Public bodies as D: not fair, just and reasonable to impose DOC (policy)
 Exception: police's operation liability (e.g. driving or testing facilities)
o Unborn child as claimant: Congenital Disabilities Act (adopted by LARCO)
recognized damages to child born alive, caused by negligence before birth i.e.
statutory DOC
 Liability of mother excluded unless relates to her driving
- Breach of duty
o Standard of care (law)
 What the reasonable person would do in the circumstances
existing at the time (Glasgow Corp)
 Would a reasonable person foresee the risk of accident?
 E.g. Learner driver on the road to be treated as experienced, careful
and skilled driver on the road (Nettleship v Weston)
 Knowledge: if scientific and technical expertise involved, D's actions
judged in terms of state of knowledge at the time of incident in
question; also specific knowledge of D must be taken into
consideration if P knew of it (i.e. higher standard required)
 Exception: Children subject to standard of the reasonable child of that
age (Mullin v Richards)
 Exception: illness depends on extent of D's awareness of illness and
whether actions can be controlled
 Skill: standard varies according to context & how D presents himself
 Experience: May take into consideration the post held (e.g. junior doc)
 Special standards: sports; professional skills (D held himself out as
having particular professional skills)  must act in accordance to a
 practice accepted as proper by a responsible body of men with the
skills (Bolam)
o Did D reach standard? (fact)
 Balancing exercise: likelihood & severity of injury vs D's purpose &
ease of taking precautions
 Bolton v Stone: likelihood of hitting pedestrian with cricket ball was
slight & severity of injury minor; cost of raising a fence is high held no
breach
 Wagon Mound (No 2): D negligently discharged oil into Harbour; held
small but real risk of fire, no cost in avoiding spillage ∴ breach
o Burden on claimant to establish breach on balance of probabilities
 Court may infer negligence but only in absence of convincing evidence
(res ipsa loquitur), if:
 Accident is of the kind which does not normally happen in the
absence of negligence
 Cause of accident was under D's control
 Must be no explanation of the cause of accident
- Causation
o 'But for D's breach of duty, would the claimant's damage still have occurred?'
o Problems of answering but-for causation can be solved by:
 Several liability, joint and several liability, and contribution
o Can be on 'loss of a chance' but not merely higher percentage (reluctant)
 Difficult on medical cases but possible in other situations e.g. solicitors
failed to advise C on potential liability of takeover; held recovery for
loss of a chance of negotiating out of liability, C only has to
demonstrate that there was a more than speculative chance
o Chester v Afshar: Doctor failed to inform P of risk of surgery, held but-for test
not satisfied because P might have undergone the surgery anyway but ruled in
favor of P for policy reasons
o Concurrent causes: Requires only negligence be 'material contribution' to
recover full loss even if other causes exist, if causes accumulated (Bonnington
Castings v Wardlaw)
 Extends to material increase in risk where there was only one factor
involved in P's injury (McGhee v National Coal Board)
 No liability where there are several factors, but only one of which
actually caused damage (no accumulation) and no evidence can be
proved as to D's act caused damage (Wilsher v Essex)
o Where more than one employer could have caused damage, each could be
treated as created a material increase of risk of damage (Fairchild asbestos)
 Jointly & severally liable
o Consecutive causes: later unconnected events causing the same or greater
harm as the first tort
 Second wrongdoer may not have caused additional damage to victim
∴ not liable to pay compensation (Performance Cars v Abraham)
 But may overtake effect of first tort if second event is a natural
occurrence but not another tort (Jobling v Associated Dairies)
o Novus actus interveniens: breaks chain of causation
 Level of unreasonableness by C must be high
 If level of unreasonableness by C is relatively low, court may find
contributory negligence rather than NAI
 Reeves v Commissioner of Police: C's partner committed suicide in
police cell; held: causation not broken b/c it was the precise risk
against which the police had duty to guard but damages reduced by
contributory negligence
o Actions by TP
 Test: whether the act was foreseeable
 An act which is 'very likely to happen' i.e. foreseeable will not break
chain of causation (Dorset Yacht)
 Where TP negligently caused further damage, likely breaks causation
(e.g. Knightley v Johns Police causing 2nd accident in tunnel)
 But there must be a completely new cause (The Oropesa)
 Where TP did deliberate wrongful acts, a higher degree of
foreseeability is required to not break chain (Lamb v Camden)
 Alternative approach is to apportion the loss between the parties
(Webb v Barclays Bank)
o Natural events generally break chain of causation
- Remoteness of damage
o Damage must be a foreseeable type/kind (Wagon Mound No.1)
 If so, D is liable for the full extent of the damage no matter whether the
extent of damage is foreseeable
 NB. Held: although physical damage foreseeable from contamination
of the warf, it was not reasonably foreseeable that oil would spread
into vicinity of the welding and caused fire ∴ no liability
o Whether damage must occur in a foreseeable manner?
 Hughes v Lord Advocate: As long as D's act created a risk of
reasonably foreseeable injury due to burns, the fact that P's burns came
about in an unlikely way did not prevent liability
o Thin skull rule: D must take V as they find them; D remains responsible for
the full extent of injury (Smith v Leech Brain)
 Applies to financial situations (where C has cash-flow/credit problems)
ECONOMIC LOSS (PROBLEM OF DOC)

- Action based on failure to receive expected future profit

- DOC imposed by assumption of responsibility
- Pure economic loss due to acquisition of defective product or damage sustained by TP
o Not recoverable under negligence
- Pure economic loss due to negligent misstatement
o Where there is special relationship between parties, it would give rise to DOC
in making statements (foreseeability and proximity extended beyond physical
damage) (Hedley Byrne v Heller)
 But careful with disclaimers & exemption clauses
o Elements to establish DOC
 C relied on D's skill and judgment or ability to make careful inquiry
 D knew, or ought to have known, C was relying on him
 It was reasonable in the circumstances for C to rely on D
o But misstatement must have motivated P to act (causation)
o NB. usually not fulfilled in social relationships
 o Silence & threats: duty can arise where loss was caused by D failing to warn
about situation or pressuing him to do something
o Indirect statements: Hedley extended to statements not made directly to
claimant or made for purposes other than influencing the claimant
 Surveyor hired by P to produce report to building society; held
foreseeable, reasonable and fair for P to rely on it; relationship akin to
contract (Smith v Eric S Bush)
 Must take into consideration purpose for which statement was made
was not for P, purpose for which it was communicated, state of
knowledge of maker of statement, size of the class to which recipient
belonged, relationship between the maker, recipient and TP, reliance
by recipient (James McNaughton v Hicks Anderson)
o Voluntary assumption of responsibility: Existence of contractual
relationships between parties did not exclude the possibility of a DOC; Hedley
can apply to provision of services too (not only giving info); basis of Hedley is
assumption of responsibility by D to P (Henderson)
o Economic loss suffered by subject of statement: DOC extended based on
assumption of responsibility; e.g. negligent reference about P damaged P's job
prospects (Spring v Guardian Assurance)
 Similarly, beneficiaries of will (though difficult to describe as
reliance), arguably can assert solicitor owed DOC to them on the basis
of assumption of responsibility
- Cf. consequential economic loss that can be recoverable from tangible damage

PSYCHIATRIC INJURY (PROBLEM OF DOC)

- Damages will only be awarded for a recognized psychiatric illness; which must be the
result of the impact of a sudden event or its immediate aftermath
- Primary victim: direct involvement in the incident and is within the range of
foreseeable physical injury (need not foreseeable psychiatric injury)
o DOC not to cause them physical & mental harm
o foreseeability of physical injury is sufficient to bring duty in regard to
psychiatric injury (Page v Smith)
- Secondary victim: must satisfy four criteria for foreseeability to find DOC (Alcock)
o Sufficiently close relationship of love and affection with the primary victim
o Proximity to the accident, or its immediate aftermath; sufficiently close in
time & space (body identification after 9h insufficient)
 Mcloughlin v O'Brian: recovery allowed due to mother-son
relationship with direct victims & proximity to accident because she
witnessed immediate aftermaths
 Taylorson v Shieldness Produce: saw little of their son until hours after
o Suffering nervous shock through what was seen or heard of the accident or
its immediate aftermath (seen through TV insufficient)
o Psychiatric injury must be caused by a shocking event
 excludes those who suffer psychiatric injury as a result of the long term
process of providing care for a loved one who has suffered severe
injuries due to the defendant's negligence
  Exception: work related stress where an employer is under a duty not
to cause psychiatric injury to an employee but only where the injury is
foreseeable
- Difficult situations
o Rescuers: not given favorable treatment (White v Chief Constable)
o Those believing they caused another's' death: must have been within physical
proximity to be primary victim or must satisfy Alcock to be secondary (Hunter
v British Coal Corp)
 Cf. allowed recovery b/c C saw load dropping on ship where workers
were on, even if no one was injured; D provided poor equipment and
C's psychiatric injury was a foreseeable consequence of their failure
(Dooley v Cammell Laird)
o Psychiatric injury due to property damage: arguably allowed; reasonable
foreseeable that C might suffer psychiatric injury from watching house burn
- Thin skull rule applies to psychiatric injury like physical injury

EMPLOYER'S LIABILITY

- Employer owes duty of care to employee

- Duty to provide a competent workforce (rarely applicable to where employer knew
of someone's tendencies e.g. of practical joking which caused injury)
- Duty to provide adequate plant and equipment
- Duty to provide a safe place of work
- Duty to provide a safe system of working
- Financial loss, psychiatric injury (incl. work-induced stress)

VICARIOUS LIABILITY

- Employer liable for wrong of employee

- Elements:
o Tort
o Committed by employee
 Does not cover independent contractors
 Control test: whether employer has ability to control the way a job is
done
 Integration test: extent to which the worker was integrated into the
enterprise as a whole
 Composite test: taking into consideration all factors
 Borrowed/hired-out employees: two+ org. liable
o In the course of employment
 Test of 'close connection': employer liable even for acts which he has
not authorized provided they are so connected with acts which he has
authorized (Lister v Hesley Hall)
 Liable despite carelessness and motive of employee if performing task
he was employed to do (Century Insurance v Northern Ireland)
 Acting contrary to instructions could still be liable if it was an
improper way of doing exactly what he was employed to do (Rose v
Plenty milkman)
  But not liable if employee acts outside course of employment
e.g. gives a lift to trespasser (Twine v Beans Express)
 Diversions and detours: a matter of degree
 Detour to visit relatives after hours held new and independent
journey, not liable for accident (Storey v Ashton)
 Travelling to & from work is generally outside employment
 Intentional and criminal acts: mere fact that an act is illegal does not
take it outside course of employment (performed a task for which he
was paid for, although using e.g. ostensible authority to commit fraud)
- Employer may be entitled to reimbursement from negligent employee for damages
paid out (indemnity)

OCCUPIERS' LIABILITY

- Duty owed by land owners to those who come onto their land
- Liability can arise from omissions since relationship (visitor/occupier) gives rise to
duty to take action to ensure reasonable safety of visitors
- Occupier: depends on degree of control exercised
o Need not be physical occupation
- Lawful visitors: invitees, licensees, those who enter pursuant to a contract, those
entering in exercise of a right conferred by law
o Implied licensee: repeated trespass and no action taken (requires awareness of
trespass and danger)
- The required DOC: take such care as in all the circumstances of the case is reasonable
to see that the visitor will be reasonably safe in using premises for the purpose for
which he is invited or permitted by the occupier to be there
o Standard of care would differ: e.g. higher for children
o Occupier can expect experts to know and safeguard themselves against any
dangers that arise from the premises
- May be possible for occupiers to discharge duty by giving warning of danger
- Occupier not liable for dangers created by independent contractors if occupier acted
reasonably in all the circumstances in entrusting the work to the independent contract
and took reasonable steps to satisfy himself that the work carried out was properly
done and contractor was competent
- Non-lawful visitors: trespassers, invitees who exceed their permission, persons on
land exercising a public right of way, persons on land exercising a private right of
way
- DOC for non-lawful visitors:
o Occupier aware of a danger or has reasonable grounds to believe that it exists
o He knows or has reasonable grounds to believe the other is in the vicinity of
the danger
o Risk is one in which in all the circs of the case, he may reasonably be expected
to offer the other some protection
- Standard of care: duty to take such care as is reasonable in all the circs of the case to
see that the other does not suffer injury on the premises by reason of the danger
concerned
- Duty may be discharged by giving warning or discouraging others from taking risk
- Defences
o Volenti non fit injuria: no liability if visitor voluntarily accepted risks
 o Contributory negligence: visitor fails to take reasonable care for their own
safety
o Exclusion of liability

NUISANCE

- Private nuisance: protects rights of an occupier in respect of unreasonable interference

with the enjoyment or use of his land
o C must have an interest in the land which he asserts enjoyment or use has
been unreasonably interfered with (Hunter v Canary Wharf)
o C must have a right to enjoyment of the facility that is being deprived (Bury v
Pope no right to 'light')
o D must have used land, but need not have interest in land (use of ship at sea
causing nuisance at land failed)
o Person with ownership rights in land may be liable even if they did not create
of nuisance if they authorized it, adopted or continued it (Tetley v Chitty)
 Authorization must relate to nuisance
o Occupier/owner may be liable for hazards naturally arising, but only expected
to do what is reasonable taking into account their resources
o There must be unreasonable use of land by D which leads to an
unreasonable interference
 Test of unreasonableness:
 Nature of locality (residence cf. industrial; irrelevant if physical
damage (St Helen's Smelting v Tipping))
 Duration (but single act capable of amounting to nuisance)
 Sensitivity (If C's use of land is abnormally sensitive, D will
not be liable unless activity would have amounted to a nuisance
ot a reasonable person using the land in a normal manner)
 Malice (more likely unreasonable)
o Remedies: Damages; abatement; injunctions
o Defences: statutory authority (no defence)
- Public nuisance: crime but actionable in tort if claimant suffers particular damage
over and above damage suffered by public generally
- Rylands v Fletcher
o Form of strict liability i.e. may be liable without negligent conduct
o Requirements
 Accumulation to do mischief if it escapes
 A thing likely to do mischief if it escapes
 Escape
 Non-natural use of land
 Damage must not be too remote
o Accumulation: D must bring hazardous material on to his land and keep it
there
 If it is already on the land or is naturally there, no liability arises (Giles
v Walker)
 Must be accumulated for D's own purpose (Dunne v North West)
 Thing escaped need not be thing accumulated (Miles v Forest Rock)
o A thing likely to do mischief: Thing need not be inherently hazardous, it need
only be a thing likely to cause damage if it escapes (e.g. flagpole which fell)
 o Escape: There must be an escape from D's land; injury inflicted by
accumulation of hazardous substance on the land itself will not invoke liability
 Read v Lyons: explosion stayed within D's factor ∴ no escape
o Non-natural use: D's use must be extraordinary and unusual
 Flood caused by wrongful act of TP with sink held natural use
(Rickards v Lothian)
 A munitions factor in war time held natural (Read v Lyons)
 Open fire in domestic fire grate held natural (Sochacki v Sas)
 Large quantities of inflammable auto parts held non-natural (Marson)
 Large quantities of industrial chemicals held non-natural (Cambridge
Water)
o Remoteness: Subject to rules of remoteness (Cambridge Water)
 Damage limited to damage to land or property on land; must be of a
reasonably foreseeable type
 No liability for economic loss under Rylands v Fletcher (Weller)
o Defences
 Act of stranger: if tort caused by unknown TP over whom D had no
control
 Wrongful act of TP
 Act of God: e.g. earth-quake, heavy rainfall
 Statutory authority: where activity is exercise of statutory duty
 Consent/benefit: If C receives a benefit from thing accumulated,
deemed to have consented to accumulation (Carstairs v Taylor)

DEFAMATION

- Libel: defamatory statement in permanent form (publications, TV/radio broadcasts,

theatre performances)
o Actionable without damage
- Slander: defamation in transitory form
o Actionable only with proof that claimant has suffered special damage
 Unless: imputation of a criminal offence, punished by imprisonment
 Unless: imputation of a disease – contagious or infectious
 Unless: Imputation of unchastity or adultery in a woman
 Unless: Imputation of unfitness or incompetence in an office
- Requirements for action in defamation
o Defamatory statement
 Lowers a person in the estimation of right thinking members of society
generally
 Where defamatory meaning is not self-evident:
 True or legal innuendo applies to situation where additional
facts must be pleaded to C in order to establish the defamatory
meaning for statement
 False or popular innuendo requires knowledge of alternative or
slang meanings of words or reading between lines
o Which refers to claimant
 Test: whether reasonable people would believe that the statement
referred to P; intention of D was irrelevant
 NB. balancing defamation with right to freedom of expression
  Group/class defamation: only actionable if refers to small enough
group that they may be taken to refer to each member
o Statement is published i.e. communicated to TP (spouse excluded)
 If D did not intend TP to read statement, test is whether it was
reasonable foreseeable that others would read it (e.g. letter opened by
accident)
 Every repletion of a defamation constitutes a fresh defamation and is
thus actionable
- Internet cases: problem of attribution of responsibility and definition of 'publication
o Turns on how much involvement is required for D to qualify as a 'publisher'
(Metropolitan Int'l Schools v Designtechnica Corp)
- Limits to action: local authorities and other governmental bodies cannot sue
- Defences to defamation
o Truth: for D to prove that it is objectively true BOP
 If statement contains more than one allegation, D is obliged only to
prove the truth of the 'sting' rather than truth of every word
o Honest comment on a matter of public interest: protects socially important
function of honest and fair criticism/opinion (i.e. cannot be true/false)
 Must be matter of public interest, opinion based on true fact, fair and
not malicious
o Absolute privilege: not defeated by proof of malice; covers situations where
participants are able to speak freely and honestly without fear of repercussions
o Qualified privilege: cana be defeated by malice (held dominant and improper
motive accompanied by lack of honest belief in the truth of the statement, or
recklessness regarding its truth)
 For someone who is acting under legal or moral or social duty to
communicate ino to a person who had a corresponding interest in
receiving that info
o Publication on a matter of public interest (Reynolds)
 No qualified privilege b/c no identifiable reciprocal duty/interest
 Factors when considering whether report protected by qualified
privilege:
 Seriousness of allegation
 Nature of info and extent to which subject is of public concern
 Source of info
 Status of info
 Steps taken to verify info
 Urgency of matter
 Whether comment was sought from C
 Whether article contained gist of C's version of story
 Tone of article
 Circs of publication incl. timing
 Jamel v Wall Street: not each factor will be relevant in each case;
Reynolds not to be applied strictly
o Offer of amends: applies to unintentional or innocent defamation occurring
because D thought statement was true of claimant
 Make offer in writing to C, publish correction & apology and pay
compensation
 If rejected, can be relied on as defence in court
 o Innocent dissemination: where D was involved in mechanical processing,
copying or distribution of material
 D must prove BOP that he took reasonable care in relation to its
publication
- Remedies
o Injunctions
o Damages: compensatory & punitive
 Quantum of damages problematic
 If D had poor reputation  lower damages
 Punitive damages when publisher made a cost-benefit analysis then
knowingly published a libel

PRIVACY

- Possible action for publication of private information

o Human rights: to respect for private and family life cf. freedom of expression
- Breach of confidence: arises from a confidential situation, transaction or relationship
o Actionable upon unauthorized use of info of a confidential nature when D
under a duty of confidentiality based upon a relationship (e.g. H&W,
commercial, personal relationships
o Injunction requires justification of being in the public interest to justify
infringement of freedom of expression
- Legal protection regarding publication of private information
o Line drawn between information & intrusive information (e.g. drug addiction
cf. details of treatment)
o Did publication pursue a legitimate aim?
o Were benefits which would be achieved by publication proportionate to harm
that might be done by interference with privacy?
- Are photos private information? Arguably not if taken from public/semi-public places
- Remedies: interim injunction esp. when damages may be inadequate

DEFENCES

- Contributory negligence
o C's conduct contributed to his loss e.g. careless act or omitted to take
precautions for his own safety
o Generally not appropriate against claims made by children
- Volenti non fit injuria: total defence
o Requirements
 An agreement
 Voluntarily made
 With full knowledge of the risk
o Rescuers: reluctant
o Sport: participants taken to have consented to physical impact (for claims in
battery or negligence)
- Exclusion of liability
- Illegality: not action based on illegal act (Ashton v Turner found no DOC owed to him
by driver after burglary)
o Must be close connection between a serious illegal act and the basis for claim
 - Limitation
o Personal injury caused by negligence, nuisance or breach of duty: 3 yrs of the
cause of action accruing
o Otherwise, 6 yrs of cause of action accruing
o Defamation requires actions to be begun within one yr of accrual
o Latent damage: accrued when claimant knows of the loss
o Discretion of court to waive limitation
o Time does not run until C reaches 18

TORTIOUS REMEDIES

- Damages
o Non-compensatory damages: contemptuous (action should never have been
bought but C won technically), nominal (no loss suffered), punitive
o Compensatory damages: restore to the claimant what has been lost
 Pecuniary damages: loss of earnings, medical expenses, lost years of
living
 Non-pecuniary damages: costs to physical and psychological effects of
the injury (injury itself, pain and suffering, loss of amenity)
 Aggravated damages: C's position has been made worse because of D's
bad motivation
o Provisional damages: for future deterioration
o Property loss or damage: D liable for all costs incurred in that loss (property
replacement at current market prices)
- Injunctions: equitable remedy