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LEVEL 6 - UNIT 13 – LAW OF TORT
SUGGESTED ANSWERS – JANUARY 2012
Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2012 examinations. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers.
ILEX is currently working with the Level 6 Chief Examiners to standardise the format and content of suggested answers and welcomes feedback from students and tutors with regard to the ‘helpfulness’ of the January 2012 Suggested Answers.
Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination.
Section A
Question 1
The law of tort is often characterized as having four main objectives. They are: (a) the protection of legitimate interests, (b) the provision of compensation when those interests are infringed, (c) the establishing of normative standards of behaviour, and (d) providing those who have suffered harm with some form of retribution.
The legitimate interests recognised by the law of tort are the integrity of the person, of property and of reputation. They are protected by the provision of causes of action. For example, interests in land are protected by the torts of nuisance and trespass to land; reputation is protected by the tort of defamation; the integrity of the person is protected by the torts of trespass to the person; the tort of negligence serves to protect person, property and reputation from damage caused by the carelessness of others.
The standard remedy in tort is damages. Tortious damages are intended to place the victim in the position s/he would be in had the tort not been committed. Such damages may be seen as having a dual effect: they deter certain kinds of conduct in general; they compensate the individual whose interests have been infringed.
The alternative remedy of injunction is available to the court. Injunction may be awarded in lieu of or in conjunction with damages. Injunction may be granted in cases of defamation, nuisance and trespass. Such a remedy acts to prevent certain kinds of behaviour.
The symbolic stigma of a finding of liability coupled with the remedy of damages is said to encourage minimum standards of behaviour (normative rules). Those who fail to meet them are designated tortfeasors. Individuals who meet or exceed those standards escape liability in tort.
A good example of those standards in operation is to be found in the law of negligence, where potential tortfeasors are judged against the standards of ‘the
reasonable man’. That is: ‘Negligence is the omission to do something which a
reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’, per Alderson B, Blyth v Birmingham Waterworks Co (1856). The test for whether the standard has been attained is an objective one. Where a particular skill is in issue, the standard to be applied is that of ‘the reasonable man’ who was possessed of the skills in question. So (e.g.) learner car drivers are to be judged against the standard of the reasonably competent and experienced driver: see Nettleship v Weston [1971]. In the context of, say, the medical profession, the newly qualified doctor is to be judged against the standard of the reasonably competent and experienced practitioner. Where a recently qualified doctor exercises a role that is appropriate to one who is possessed of considerable skill and experience, the beginner’s conduct and competence is to be judged against what is expected of someone holding that post and not by what is appropriate to the beginner’s rank and experience: see Wilsher v Essex AHA [1987].
The deterrent/normative effect of an action in tort is complex. It encourages people to observe basic minimum standards and to take fewer risks, conducting their activities more carefully, mindful of their possible effects on other people and their property.
This effect is, however, mitigated where the tortfeasor is insured: the only likely direct financial consequence is an increase in the tortfeasor’s insurance premium. Indirect effects may be experienced where professional or business reputation is an issue. Tort’s deterrent effect may then be considerable. It is sometimes said that the risk of being sued for defamation exercises a chilling effect on the media. The combination of substantial damages and harm to reputation may cause newspapers to conduct themselves more carefully.
Part of an analysis of the aims of tort must include the redistribution of loss suffered as a result of a tort. Damages compensate for the harm suffered by a claimant. The defendant will therefore have the loss suffered by the claimant redistributed to him. Such an analysis is, however, rather simplistic. In most cases the defendant is insured so the loss is redistributed to the insurer. In reality this means that the loss is redistributed to all policyholders, to all who pay for insurance. Alternatively, where tortfeasors engaged in business incur damages in tort they may pass on their costs to the buyers of goods and services. Indirectly, loss may thus be seen to be distributed to society at large.
In cases where insurance companies do not bear the costs of a successful claim, there may also be some element of retribution. Those who are likely to be exposed to liability in many instances of tort, such as driving incidents and professional malpractice will have insurance which diminishes this element. The symbolic stigma associated with a finding of liability also has an element of retribution.
The courts may award exemplary damages. This demonstrates that the court regards tortfeasor’s acts as particularly abhorrent. Such damages compensate
with the pilot successfully used the doctrine. Lord Mance, giving the judgment of the Privy Council, said: ‘This was the respondents’ aircraft, their flight and their pilot. Aircraft, even small aircraft do not usually crash…’ so it was ‘…not unreasonable to place on them the burden of producing an explanation which is at least consistent with any absence of fault on their part’.
(b) To establish liability in negligence the claimant must prove that, as a matter of fact, the defendant’s breach of duty caused the harm suffered.
Where there is a single likely cause of harm the appropriate test is the ‘but for’ test. That is, had the defendant’s breach not occurred then no harm would have been suffered by the claimant: see Barnett v Chelsea & Kensington Hospital Management Committee [1968].
The ‘but for’ test is inappropriate when attempting to establish causation in fact in situations in which there are multiple potential causes and the claimant is unable to establish which of those factors caused the damage suffered. In McGhee v National Coal Board (1973) the House of Lords decided that, where there were two possible causes of damage, the claimant need prove only that the defendant’s breach of duty materially increased the risk of the harm suffered.
However, in Wilsher v Essex Area Health Authority [1988] the doctor’s negligence was only one of five separate independent causes of a baby’s blindness and in the absence of conclusive evidence that the negligent excessive use of oxygen caused the blindness as opposed to any of the four other (non – negligent) causes, the hospital was found to be not negligent. This may demonstrate that even where there is a possibility that the doctor’s negligence caused the blindness of the baby the law is reluctant to impose liability.
Successive multiple causes are also problematic. In Performance Cars v Abraham (1962) there was a collision caused by the second defendant’s admitted negligence. This necessitated a re-spray of the claimant’s car, which was already in need of a re-spray because of a previous accident, which had been caused by the negligence of another party (the first defendant). It was held that the first defendant was responsible for the whole amount, thus absolving the appellant (the second defendant) of any liability.
In Baker v Willoughby [1969] the claimant’s left leg was injured as a result of the defendant’s negligence. This caused some loss of amenity and earning capacity. In the interval between the accident and trial the claimant visited a bank where, during the course of a bank robbery, he was shot in his left leg. As a result the leg was then amputated. The defendant argued that the second injury obliterated the first. The House of Lords held that the defendant was liable and that the second injury should be ignored. It did not remove the claimant’s disability; rather it became a concurrent cause. Per Lord Reid: ‘ A man is not compensated for the physical injury: he is compensated for the loss which he suffers as a result of that injury. His loss is not having a stiff leg, it is the inability to lead a full life.’
In Jobling v Associated Dairies (1982) the claimant suffered a slipped disk as a result of the defendant’s negligence. This resulted in a loss of earning capacity of 50%. Four years later the claimant developed a disease of the spine that rendered him totally incapable of work. The disease was unconnected with the injury. The House of Lords held that the defendant’s liability ended when the disease rendered the claimant incapacitated.
The decisions in Baker v Willoughby (1970) and Jobling v Associated Dairies (1982) are difficult to reconcile. The rationale appears to rest on Baker being authority for recovery where the second event is criminal or possibly tortious. In Jobling the spinal condition was considered to be a natural vicissitude of life. The defendant’s liability was restricted to paying damages only for the period prior to the onset of the disease.
The Court of Appeal considered these issues in Rahman v Arearose Ltd [2000]; per Laws LJ the two decisions could be reconciled once ‘ … it is recognised that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible’.
The difficulties caused by the requirement of proving causation in fact are exacerbated where there are possible multiple defendants and it is impossible to ascertain which of them is liable for the harm suffered. In this instance it is possible that the court may hold all parties jointly and severally liable: see Fairchild v Glenhaven Funeral Services ( 2003).
One of the current issues relating to causation, where there are multiple possible defendants, relates to claims for exposure to asbestos and the resultant cancer caused by this. In Fairchild v Glenhaven Funeral Services ( 2003) experts could not identify which asbestos fibre from which employer, caused the cancerous tumour. Lord Nicholls, in the House of Lords, justified imposing joint liability on the employers on the ground that the alternative would be to deny the claimant compensation.
Baker v Corus ( 2006) partially reversed the Fairchild decision allowing joint liability only, but this decision was reversed by the Compensation Act 2006, s 3 of which restored the Fairchild position of joint and several liability in asbestos related cancer – mesothelioma. In this context see also Bailey v Ministry of Defence [2008].
The present state of the law can cause difficulties for claimants and practitioners alike, creating uncertainty of outcome and so difficulty in advising the client. It is arguable that a rule based approach may be preferable to a pragmatic or common sense approach based upon the difficulties associated with proof in this area: see Rahman v Arearose Ltd.
Question 3
Vicarious liability is legal liability that is imposed upon one person for torts (and in some circumstances crimes) committed by another.
Vicarious liability is most commonly based upon the employment relationship, making the employer liable for the acts of the employee. It may also be imposed as a result of the acts of agents and of independent contractors. It is a form of secondary liability: the person held so liable may be personally without fault.
Emphasis in this answer will be given to tortious acts committed within the context of the employment relationship.
Within that relationship, the requirements of vicarious liability are: that the tortfeasor was an employee, a tort was committed, and that the employee was acting in the course of employment when the tort was committed.
Traditionally the tests for this relationship were based upon control and integration into the ‘employer’s’ business. These tests have been largely
are wrongful ways of doing something authorised by him, even if the acts themselves are expressly forbidden by the employer. This would seem to tie the act more closely to the relationship, thus providing greater justification for the doctrine. It may be supported by an examination of cases on express prohibition. In Rose v Plenty (1976) allowing a child to assist in delivering milk, which was expressly prohibited by the employer was held by a majority of the Court of Appeal to be within the course of employment: the use of the child by the employee was said to benefit the employer’s business. Consequently the injured child could claim from the employer. This was not the case in Twine v Bean’s Express (1946) where the claimant’s husband, an unauthorised passenger in a van, was killed by an employee’s careless driving. Here the employer was not vicariously liable as the passenger’s presence was of no benefit to him. Whilst this demonstrates some clarity of principle, it is not necessarily a logical distinction.
Such difficulties are discernible in the ‘deviation cases’, which involve employees driving company vehicles and deviating from their authorised journey. In Harvey v RG O’ Dell (1958) a five mile journey from work to buy some lunch where the workplace did not have a canteen was within the course of employment. In Hilton v Thomas Burton (Rhodes) Ltd (1961) driving employees to a café for refreshments was held to be outside the course of employment. In Storey v Ashton (1869) a deviation in a business journey to visit relatives was held to be outside the course of employment. Such a lack of consistency would seem to support Lord Pearce’s view.
Claims relating to vicarious liability in relation to intentional torts, historically, tended to fail. In Warren v Henlys (1948) and Keppel v Ahmad (1974), claims were brought in damages as a result of physical attacks by employees; it was held that vicarious liability did not arise: the employees were not within the scope of their employment. There are, however counter examples: see Poland v Parr & Sons [1927]
Cases involving intentional torts should now be considered in the light of the House of Lords decision in Lister v Hesley Hall (2002). Here their Lordships stated that in such cases the Salmond test should be replaced by that of whether the act is so closely connected with what the employee was employed to do that it would be fair and just to hold the employer liable. In Lister the systematic sexual abuse by the warden of a home for boys with emotional and behavioural problems was found to be sufficiently closely connected to his duties for liability to arise. Once again, the decision does not apparently have any clear logical or legal principle. The court ‘s concern must be taken to be the provision of a remedy for victims, which may otherwise have been denied.
Various arguments have been advanced in justification of vicarious liability. The court is confronted with two ‘innocent’ parties: the claimant and the employer (or principal). The claimant is less likely to have any control over events. The employer is able to exercise some initial choice over the question of whether to employ the tortfeasor in the first place.
In the context of the employment relationship, the notion has been advanced that the employer will have ‘deeper pockets’ than his employees. The development of the law has been dependent upon the defendant’s access to resources, particularly through insurance. An employer is more likely than an employee to have greater assets and means by which to offset his losses.
Vicarious liability encourages employers to put into practice measures to ensure that employees are not negligent in the course of their employment. It provides
the employer with a financial interest in requiring employees to undertake their work without negligence.
It is also argued that the employer makes a profit from the activities of employees and therefore should bear the brunt of liability for losses caused by those employees.
On the basis of the above it would seem that there are justifiable reasons for imposing vicarious liability. However, the way the doctrine is implemented leaves room for criticism and Lord Pearce’s comment in Shatwell has considerable justification.
Question 4
Defamation has been defined as: ‘The publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him’ (Winfield & Jolowicz ‘On Tort’).
Statements which may amount to defamation have taken many and varied forms. They range from allegations that a woman had been the subject of rape ( Youssouppoff v MGM (1934)) to implications that an amateur golfer had received money in return for the use of his image ( Tolley v Fry [1931]); from imputations of mercenary motives ( Keays v Murdoch Magazines (1992) to imputations that a well-known authoress had produced serialised stories of a cheap and vulgar kind ( Humphreys v Thompson [1905-1910]).
Vulgar abuse or mere insults have traditionally been held to fall short of this. However, in the case of Berkoff v Burchill (1996) it was held that although insults which did not affect a person’s reputation would not be defamatory, such a statement could be defamatory if it resulted in the claimant being subject to contempt, scorn or ridicule.
Every fresh publication of a defamatory statement gives rise to a new right of action against each successive publisher and it may not be necessary to show the defendant was aware of the risk of repetition only that a reasonable person would foresee damage to the claimant’s repetition was likely: see McManus v Beckham (2002).
The classes of those who can claim are limited. Only living people can sue: a person’s reputation can no longer be affected once he or she is dead.
Members of a group or class referred to in a defamatory statement cannot generally bring an action (see Knupffer v London Express Newspapers [1944]); where, however, the class of persons to which the statement refers is sufficiently small it may be possible to demonstrate that the defamatory meaning refers to the claimant :see Foxcroft v Lacey (1613 ).
Local authorities and government bodies cannot sue. The House of Lords has held that to allow central or local government to sue for defamation would inevitably have a chilling effect on freedom of speech. In Derbyshire County Council v Times Newspapers (1993) Lord Keith stated ‘It is of the highest public importance that a democratically elected body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of expression’. Similarly political parties cannot sue: Goldsmith v Bhoyrul (1997).
determining whether qualified privilege should apply in such cases. These factors are the seriousness of the allegation, the nature of the information, the source of the information, the steps taken to verify the information, the status of the information, the urgency of the matter, whether the claimant was invited to comment, whether the article contained the gist of the claimant’s story, the tone of the article and the circumstances and timing of the publication. Although it is only relevant to the media, the Reynolds test for responsible journalism applies to any matter of public interest.
The Reynolds test was applied in Loutchansky v Times Newspapers (2002) where the defence failed because, although the article published fell within the public interest, the information had not been investigated adequately for accuracy and as with Reynolds , the claimant’s side of the story had not been sought. See also Galloway v The Telegraph (2006).
The issue of neutral reportage was considered in Roberts v Gable (2008), where it was held that all of the principles of reportage applied and in all the circumstances the article was a piece of responsible journalism. The article was in the public interest and the defendants did not adopt the allegation of wrongdoing in it. Essentially this extended the defence of qualified privilege to the repetition rule in the form of neutral reportage. The repetition rule traditionally states that where the defendant repeats a defamatory statement that was made to him, the defendant must show that the allegation was true, not that it was true that he had heard the allegation from another: see (e.g.) ‘Truth’ (NZ) v Holloway (1960). In Jameel v Wall Street Journal (2005) the fact the claimant was not given an opportunity to respond prior to publication was not considered critical by House of Lords.
Fair comment on a matter of public interest (now renamed ‘honest opinion’ by the Court of Appeal and later ‘honest comment’ by the Supreme Court in Spiller v Joseph (2010)) is another important defence in this area.
The defence cannot be used to justify unsubstantiated or dishonestly held views. A number of requirements limit its scope.
First, the comment in question must be on a matter of public interest. Two classes of what might amount to public interest were discussed in London Artists v Littler (1969). The first example given was where the public in general may have a legitimate interest, for instance in the conduct of politicians and public servants. The second class consists of matters that are expressly or impliedly subject to public criticism or attention (e.g. theatre productions). The opinion expressed must be based on fact to amount to fair comment. Mere honest belief is insufficient. In Campbell v Spottiswoode (1863) the defendant accused the plaintiff of proposing a scheme to disseminate religious truth among the Chinese as a means of increasing the circulation of his paper, ‘The British Ensign’, and so of enriching himself. It was held that, although the defendant honestly believed his allegation to be true it was not supported by fact. The defence failed. The facts supporting the comment do not have to be expressed in the material complained of: see Kemsley v Foot (1952).
Distinguishing between opinion and fact is sometime difficult and the defence will fail where it is not clear that the material complained of is opinion. In this instance the defendant will be forced to rely on the defence of justification.
Two tests must be satisfied in order for a comment to be regarded as ‘fair’. In Turner v Metro-Goldwyn-Mayer (1950) an objective test was formulated by Lord
Porter, who asked: “would any honest man, however prejudiced … exaggerated or obstinate his views, have written this criticism?”.
The second test is subjective and turns to the state of mind or motive of the defendant. Malice will destroy the defence and in this context ‘malice’ is defined as a statement made out of spite or with evil intent. In the case of Thomas v Bradbury, Agnew & Co (1906) the defendant’s claim that his very critical review of the plaintiff’s book was fair comment failed because of his malice, which was demonstrated in the review complained of and in the witness box.
Liability in defamation is wide and clearly places limits on freedom of expression in order to protect the rights of individuals. In America defamation claims rarely succeed and we have seen many claimants from other jurisdictions take advantage of the strict rules the UK has on defamation. However, it is arguable this balancing exercise is necessary and so these limits are not necessarily ‘chilling’ but rather essential to a civilised society. The available defences, particularly since Reynolds ensures that where there are matters of public importance, liability in defamation is limited and so where there are matters of genuine public interest the available defences limit the ‘chilling effect’ of the law of defamation.
Section B
Question 1
Anil v Bobby
Bobby has provided a report, requested by Anil, which contains inaccurate and misleading information. Anil acted upon the information provided by Bobby and incurred a loss as a result. The question that needs to be asked is whether or not Anil can successfully bring an action against Bobby and recover his losses.
There is no contractual nexus between Anil and Bobby. Therefore Anil must bring his claim in tort rather than in contract. There is no evidence that Bobby deliberately misled Anil. The appropriate cause of action therefore lies in negligence.
Anil’s claim is in ‘pure economic loss’. As a matter of policy, this type of loss is generally not recoverable in negligence. An exception to this is where the claimant can demonstrate that the loss was the result of a negligent misstatement.
As in all claims for negligence, it is necessary to establish that the claimant was owed a duty of care by the defendant, that the defendant was in breach of that duty, and that breach caused the claimant to suffer damage that is not too remote.
The leading case on negligent misstatement is Hedley Byrne v Heller [1964], in which the House of Lords decided that a duty of care might arise in negligent misstatement cases if it could be shown that a special relationship existed between the parties. Such a special relationship may be established by showing:
- That the defendant possessed some special skill or knowledge
- That the claimant reasonably relied upon the advice of the defendant
- That the defendant knew that the advice would be relied upon.
have purchased the business in any event it would seem that Bobby’s advice has caused the damage suffered by Anil.
Finally, it is necessary to show causation in law. That is, that Anil’s loss was not too remote. In order to do so it is necessary to show that the nature of the harm suffered was reasonably foreseeable: see The Wagon Mound (no1)[1961]. This would seem to present little difficulty to Anil.
It is therefore arguable that Anil has a good claim against Bobby. No defences appear to be available to Bobby.
The Bank v Bobby
As above, this is a claim for pure economic loss. The tests set out above need to be applied to the Bank’s relationship with Bobby. It would appear that no evidence exists to suggest a ‘special relationship’ exists between Bobby and the Bank. The Bank did not rely on Bobby’s advice and made its own independent enquiries.
Although Anil made it clear that potential investors would be shown the report it is arguable that Bobby would not have known the bank would be shown the report – either specifically or as an ascertained class of persons.
He could not have expected the bank to rely on his advice without independent enquiry. On this basis it would seem that Bobby owed no duty to the bank, and thus there is no need to consider breach or damage.
Clive v Bobby
In relation to establishing a duty of care (owed by Bobby to Clive), it should be noted that Caparo v Dickman has been distinguished on several occasions. In Morgan Crucible v Hill Samuel [1991] directors and financial advisors made statements as to the accuracy of accounts and profit forecasts that they intended the purchaser should rely on. Those representations had been made after the plaintiff had emerged as an identifiable bidder.
Similarly in Galoo v Bright Grahame Murray [1995] the Court of Appeal took the view that where an auditor confirms the accuracy of accounts after being informed that an identifiable bidder will rely on those accounts a duty of care will arise.
It is then arguable that a duty exists on the basis of the special relationship: Clive is a potential investor, the class of which was specifically mentioned as a potential recipient of the report. The court may therefore decide that a duty of care was owed by Bobby to Clive. If that is the position then breach, causation and remoteness are established as above.
Question 2
Katie v Jake
In order to recover damages in negligence, Kate will need to establish that Jake owed her a duty of care, that Jake was in breach of that duty, that she suffered consequential damage as a result of the breach, and that that damage was not too remote in law.
A road user’s duty of care to other road users is one of the long established categories of duty situations. A road user in this context includes passengers.
In order to establish breach of duty it must be shown that Jake failed to
reach the standard of a reasonable person: Blyth v Birmingham Waterworks
Co (1856), Per Alderson B. A reasonable person would not undertake an activity with such a high magnitude of risk as mobile phone whilst driving, particularly as it is likely to have little or no social utility and is a criminal offence.
A number of tests may be used to establish causation in fact. The most commonly applied is the ‘but for’ test: see Barnett v Chelsea Hospital Management Committee [1968]. It is necessary to ask: ‘but for’ Jake using his phone whilst driving, would the accident have occurred? Jake admits that talking on his phone caused his driving to be careless.
Should the ‘but for’ argument not succeed then it is possible to argue that Jake’s breach materially increased the risk of the harm suffered by Kate: see McGhee v NCB [1973]. Jake’s actions quite clearly materially increased the risk of injury. It is therefore possible to demonstrate causation in fact.
In order to establish whether or not the damage suffered is too remote it is necessary to ask whether the harm suffered was a reasonably foreseeable consequence of the breach in question. Personal injury is a type of damage which is reasonably foreseeable in such circumstances and so satisfies the remoteness of damage test set out in The Wagon Mound (No 1) [1961].
Katie was not wearing her seat belt at the time of the accident. The defence of contributory negligence could therefore be raised: see the Law Reform (Contributory Negligence) Act 1945. Katie has failed to take care for her own safety and the court will thus reduce her damages to the extent that it is ‘just and equitable’. In this case the reduction is likely to be 25%. Her injuries could have been avoided by wearing her seat belt: see Froom v Butcher [1975]. The defence of volenti non fit injuria is excluded by the Road Traffic Act 1988.
Liam v Jake
Liam may also be able to bring an action against Jake on the basis of the tests set out above. He too will need to establish that he was owed a duty of care by Jake and that Jake breached that duty, causing damage that is not too remote. As with Katie, Liam is owed a duty. That duty was breached. The damage he suffered was to his arm, which resulted in amputation. The question is whether or not the actions of the junior doctor make this damage (the amputation) too remote?
Jake may claim that the amputation of the arm was a novus actus interveniens. This would break the chain of causation, thus preventing him from being liable for the full extent of Liam’s injury. Jake could argue it was the negligence of the doctor rather than the accident which resulted in the amputation.
However, in Baker v Willoughby [1969] it was held that simply because an injury has been submerged by a new tort should not mean that the first tortfeasor should escape liability: it would be a ‘manifest injustice’ if the argument succeeded. In Baker the second defendant was unavailable and so it was held that the defendant who caused the injury during the first tort should not be absolved of liability simply because the second tortuous act caused greater harm. Whilst the decision was criticised in Jobling v Associated Dairies (1982) the court
As above, Liam is in breach of his duty to Manjeet. It is clear that ‘but for’ the accident caused by Liam, Manjeet would not have suffered a nervous breakdown and so the tests for causation /remoteness are satisfied. There are no defences available. It would seem Manjeet has a strong case in negligence against Jake.
Oliver v Jake
Oliver is also suffering from a recognised psychiatric condition, namely post traumatic stress disorder. Although Oliver is a foreseeable rescuer, rescuers do not automatically fall within the category of primary victims, and thus still need to pass a threshold test: White v Chief Constable of South Yorkshire [1997].
Rescuers are required to show sufficient proximity by demonstrating that their own safety was under actual or apprehended threat. In order to establish whether a duty is owed Oliver must show he was in danger of personal injury as a result of the rescue attempt or believed himself to be so endangered. This would appear to be satisfied here for he was amongst burning wreckage Even if Oliver has a propensity to psychiatric harm because of his pre-existing stress- related illness, Jake will still owe him a duty: see Chadwick v British Railway Board, Smith v Leech Brain [1961] and Brice v Brown [1984]. Again breach, causation, and remoteness of damage are satisfied as previously discussed.
In relation to defences, Jake may claim Oliver was volenti in acting as a rescuer. This defence rarely succeeds against rescuers as they are considered to be motivated by a desire to help the victim and are not consenting to the risk as such. It would also be against public policy to deny the injured rescuer any damages: Haynes v Harwood [1935].
Question 3
Paul v Supersports
I am asked to advise Paul on any claim he may bring against Supersports under the Occupiers Liability Act 1984.
Paul does not have permission to be on the land in question. Paul has suffered personal injury whilst on land which appears to be occupied by Supersports. His injuries were arguably the result of ‘…injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them…’ (s1(1)(a) OLA 1984). Where a claim for injury suffered on another’s land is brought by a trespasser a proper cause of action is under the Occupiers’ Liability Act 1984, which provides that the common duty of care is extended to trespassers as well as to lawful visitors. The existence of notices, fences, and gates all indicate that Paul’s presence was as a trespasser.
Liability under the Occupiers Liability Acts is a form of statutory negligence. In order to succeed in his claim Paul would therefore need to demonstrate that he was owed a duty of care by Supersport, that Supersport breached that duty, and that he (Paul) consequently suffered damage that was not too remote in law.
Demonstrating that Supersports owed a duty of care under OLA 1984 has two aspects: first that Supersport was, in law, the occupier of the land and second that a duty of care to Paul had arisen in consequence of that occupancy.
‘Occupier’ is not defined in either the Occupiers Liability Act 1957 or the Occupiers Liability Act 1984. The appropriate test for occupier is the common law ‘control test’ set out in Wheat v Lacon [1966]: an occupier is any person who has
sufficient degree of control over the premises in question. This may be taken to mean occupational control (per Lord Pearson, ibid ), which in practical terms means who controls access and egress and what the use the land is put to has sufficient control to constitute an occupier. Supersports appears to control both access to the land and the activity that takes place there. It is consequently an occupier of the land in question.
In order to show that Supersport’s duty of care had arisen in the circumstances in question it is necessary to satisfy the requirements of s1(3) of the 1984 Act, which are that the occupier was: (a) aware of the danger or has reasonable grounds to believe that it existed; (b) knew or had reasonable grounds to believe that the other was in the vicinity of the danger; and (c) the risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer some protection.
The kind of knowledge required by s1(3)(a) and 1(3)(b) seems to be part subjective and part objective. The first part of s1(3(a) (the occupier was ‘aware of the danger’ and 1(3)(b) (‘knew…that the other was in the vicinity of the danger’) both appear to be subjective. The phrase attaching to these subjective criteria ‘ …or had reasonable grounds to believe…’ appears to be objective in character.
Supersport’s actual knowledge of the existence of the cliffs may be deduced from the use to which the land was put: the cliffs were used to provide a place from which hang gliders might launch themselves, which was part of the occupier’s business activity. The nature of the danger: that is the possibility of personal injury or death resulting from a fall from such a cliff is equally obvious and would be inferred by a reasonable occupier.
The question indicates actual knowledge of the existence of trespassers by Supersports, which it either ignored or tolerated.
Section 1(3)(c) requires consideration of whether, in all the circumstances, the danger was one against which the occupier would reasonably be expected to offer some protection. The test is an objective one, unlike that under the common law duty of humanity, where a subjective test was applicable, taking into account, among other things, the resources of the occupier: see Herrington v BRB [1972].
There is, however, considerable authority to indicate that, where the risk is obvious, the court is likely to find either that there was no duty in respect of that risk or that there was no breach: see e.g. Tomlinson v Congleton BC [2003], in particular the speeches of Lord Hoffmann and Lord Hutton, in which they address the issues pertaining to s1(3)(c). Per Lord Hoffmann, considerations on the matter should take into account risk, gravity of injury, cost and social value. Lord Hutton emphasised the issues of obviousness of risk and the importance of common sense. It is perhaps worthy of note (in relation to the facts of the present question) that Lord Hutton’s speech referred to Cotton v Derbyshire Dales District Council (20 June, 1994 unreported), in which the Court of Appeal held that a claim for damages in respect of injuries suffered as a result of falling from a cliff should fail because the danger was obvious.
It has long been accepted that what may not be a danger to an adult may nevertheless be a danger to a child. Nevertheless questions of obviousness of risk are important: see Keown v Coventry Healthcare NHS Trust [2006] in which it was held that that claimant should fail because there was (a) no danger arising
b) Assessment of damages
If he succeeds in his claim, damages will be awarded to Paul for pecuniary and non-pecuniary losses.
The non pecuniary losses are for pain and suffering, loss of amenity and recognition of the injury itself.
The factors the court will take into account include: the length of stay in hospital, number of surgical treatments, type of treatments, permanent disability, diminution in quality of life, diminution in length of life, loss of marriage prospects, cosmetic injury, psychological or emotional harm , inability to pursue hobbies. There are guidelines laid down by the Judicial Studies Board under these heads. In Heil v Rankin (2000) (CA) Lord Woolf emphasised compensation must be ‘fair, reasonable and just’.
There are various areas of recovery for pecuniary loss. This would include compensation for medical expenses. However if Paul was treated under the National Health Service then no medical expenses are payable. If however he is treated privately his medical expenses will be recoverable. A payment will be made for future medical care and attention. The court can compensate Paul, who can then pay his mother for her services but generally the maximum amount for the services rendered by a professional carer is the cost of a professional carer.
Paul is also entitled to compensation for future loss of earnings, even though he is a fifteen year old child. He may have shown potential in a particular area and the courts can use that.
Alternatively the courts may take the national average earnings and extrapolate from that. This may include the lost years so that compensation may be payable for reduction of life expectancy. Statutory benefits will be deducted from the sum awarded and interest is payable on judgement debts.
No damages are payable for the loss of the laptop under Occupiers’ Liability Act
Question 4
In order to discuss the potential tortious liability of Vera and Wilson it is necessary to consider trespass to land, trespass to the person and private and public nuisance.
‘Trespass to land…is constituted by unjustifiable interference with the possession
of land’. (Winfield & Jolowicz ‘On Tort’). It is a wrong against possession rather than ownership of the land. Like other trespasses the act complained of must be direct and ‘willed’: accident or negligence are not enough: see Fowler v Lanning [1959], Letang v Cooper [1965], Wilson v Pringle [1987].
Like other trespasses it is actionable per se , though proof of damage will be reflected in damages awarded. ‘Land’ clearly constitutes the surface of the earth but also includes things attached to the surface of the land, including crops or things growing on the land: see Wellaway v Courtier [1918]. ‘Land’ in this context extends (with exceptions) from the centre of the earth to the sky: see Kelson v Imperial Tobacco [1957]
Trespass to the person may take three forms: assault, battery, and false imprisonment. Only assault and batteries are relevant to the facts of the question.
‘Assault is an act of the defendant which causes the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant.’ (Winfield & Jolowicz ‘On Tort’) The essential constituents of assault are the menace of violence together with the ability to carry out the threat.
Battery may be defined as ‘…the intentional and direct application of force to another person’ (Winfield & Jolowicz ‘On Tort’)
Winfield & Jolowicz ‘On Tort’ defines private nuisance as the ‘…unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.’ Lord Lloyd of Berwick, in Hunter v Canary Wharf [1997], took the view that: ‘Private nuisances are of three kinds. They are (1) nuisance by encroachment on a neighbour's land; (2) nuisance by direct physical injury to a neighbour's land; and (3) nuisance by interference with a neighbour's quiet enjoyment of his land.’
The common law has long taken the view that neighbours should be reasonably tolerant and reasonably robust in their expectations. Generally, when considering whether an ‘unlawful interference’ has taken place, the court will consider the following: (a) whether the thing complained of has been continuous, repetitious or has arisen from a ‘state of affairs’ (see British Celanese v Hunt [1969] Spicer v Smee [1946] etc.); (b) whether the interference is unreasonable or the claimant is hypersensitive (see Robinson v Kilvert (1899) locality; and whether malice is a factor.
‘A public or common nuisance is one which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects who come within the sphere or neighbourhood of its operation.’: AG v PYA Quarries [1957]. What constitutes a class is a question of fact in every case. It must be a sufficiently wide-spread and representative of a cross section to prevent a single individual constituting a class. In order to bring an action the claimant must show particular harm – that is harm suffered over and above that suffered by the class.
Unlike private nuisance, public nuisance requires no proprietary interest. It may be constituted by a one-off event.
Vera v Wilson.
Vera may have a valid cause of action against Wilson in trespass to land. This may take three forms: first, the placing of a chattel on her land in the form of a football (see (e.g.) Rigby v Chief Constable of Northamptonshire [1985]); second damaging plants growing on the land; third, his entering onto the land without permission to recover the football.
Wilson entered Vera’s garden without permission, thus directly interfering with her possession of her land. Vera does not need to prove that damage has occurred simply that Wilson has entered her land without permission. The football entering Vera’s land and damaging her runner beans may also amount to trespass, but not if it was the result of negligence. No defence appears to be
