Tort remaining 3, 4, 5, 6 on notebook, 7

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General Defences:

once all elements of tort have been established, the only way a defendant may escape liability is to rely upon a defence; defences can be in general e.g. consent or tort-specific e.g. self defence which is a defence to trespass against the person. 3 main general defences: consent, illegality, contributory negligence.

every defendant who faces liability will want to know whether they have a defence and the availability of defences is part of the way in which the boundaries of actionable tort are established.

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Consent - volenti non fit injuria - a complete defence.

Before consent can be considered, must be shown the defendant has in fact committed a tort. Once this has been established, defendant must prove:

- the claimant had knowledge of the risk involved (nature and extent of risk)

- the claimant willingly consented to accept that risk (a voluntary acceptance of that risk as the claimant's own free choice)

Latin for "there can be no injury to one who consents" often said to mean "voluntary risk of harm". Basis: a person who consents to harm/consents to an activity which carries a risk of harm should not be able to hold the person who caused that harm liable in tort. If argued successfully, the d will not be held liable for the claimant's loss.

- The claimant had knowledge of the risk involved (nature and extent of risk): Morris v Murray 1991

This requires more than a vague awareness of danger; specific knowledge of the type of risk. Subjective test so have to find evidence of what the claimant knew/was thinking; analyse facts of a PQ. Focus on claimant's knowledge of the risk, not obvious risks.

Claimant went drinking with a friend for some hours, claimant's friend then suggested to go on a joyride in light aircraft. Aircraft, piloted by claimant's friend, took off in poor visibility, low cloud, drizzle. Aircraft crashed. Pilot was killed and claimant seriously injured in the crash. Autopsy on pilot showed more than 3x legal alcohol limit for driving. Claimant brought action against deceased's estate claiming damages for PI. Judge warded £130,00 damages. Estate appealed.

Court applied subjective test and held that the claimant was aware of the risk he was taking and therefore his claim against the deceased's estate was barred by the defence of consent.

- Voluntary consent of the claimant

Defendant must prove that the claimant freely consented to run the risk of injury. Knowledge doesn't = consent. Free consent implies the claimant must have had a choice as to whether or not to accept the particular risk. The defence will not succeed where the claimant had no choice but to accept the risk (Smith v Charles Baker & Sons 1891), or where they lack the mental competence to agree (Gillick v West Norfolk and Wisbech AHA 1986).

Certain categories of claimants who have received particular attention from the courts in terms of their consent to harm. 3 of them:

employees

passengers in vehicles

ppts and spectators at sporting events

Employees:

Difficult position. Their job may involve the risk of harm but the financial reality of life probably means that most people cannot consider the option of leaving their employment to avoid the risk of harm. Smith v Charles Baker and Sons 891 - held that continuing to work in a job that is known to carry risks cannot be taken as a consent to the risk. So consent is rarely successful in relation to tortious claims by injured employees.

Passengers in vehicles:

Courts been reluctant to find that a person who is injured by poor driving, even by an obviously intoxicated driver, has consented to the injury - although, there may be an issue of cont neg. Section 149(3) RTA 1998: the willing acceptance of the risk of negligence by a passenger does not absolve the driver of liability.

Ppts and spectators:

Voluntary participation = individuals deemed to have consented to the risks inherent in that sport. Will vary according to nature of activity e.g. rugby more risk than darts. General principle: participation implies consent to injuries sustained during the course of normal play but not unsporting behaviour that is in breach of the rules of the game: Smoldon v Whitworth and Nolan 1997.

Sports e.g. motor racing that carry risks to spectators, general rule: spectators deemed to have consented to the risk of harm arising from 'error of judgement or lapse of skill' by a ppt but not injuries caused by negligence: Woolridge v Summer 1963.

[Judicial approach to consent in relation to ppt and spectators at sporting events demonstrates its flexible nature. Courts will assess situation and determine what level of risk of harm is reasonable to deem an individual to have consented to via their presence or participation.]

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Illegality - ex turpi causa non oritur actio - complete defence

"No action arises from a disgraceful claim" - if the claimant was knowingly engaged in an unlawful enterprise at the time he was injured, it would be contrary to public policy to allow his claim to succeed.

There must be a close connection between the injury sustained by the c + the criminal enterprise undertaken.

e.g. 2 thieves on their way to commit burglary and 1 punched the other = no defence of illegality to prevent a claim in tort for trespass to the person bc attack was unconnected with the planned criminal enterprise.

Fair degree of dissent amongst case law as to application of illegality. Some cases taken a strong line and held that the claimant's participation in unlawful activity deprives him of any claim for injury sustained during the criminal enterprise:

- Cummings v Granger 1977 (a burglar bitten by a guard dog had no claim due to illegality)

- Murphy v Culhane 1977 (claimant who started fight but severely injured by his opponent was prevented from claiming for the injuries sustained due to illegality)

- Velino v Chief Constable of Greater Manchester Police 2002 (a claim for neg against police for injuries to a prisoner who they failed to prevent from jumping out a window was rejected on the basis of illegality)

Despite fair amount of case law to show claimants have been unsuccessful because of illegality, there have been cases where the courts have been reluctant to allow illegality to defeat the claim for damages:

Revill v Newbery 1996 - claimant went to steal property from a shed but the owner was in wait with a shotgun. Fired the gun in panic when the claimant started to enter the shed and he sustained serious injuries. Court held the claimant should not be deprived of a claim on the basis of illegality saying it was too "far-reaching to deprive [the claimant] even of compensation for injury which he suffers and which otherwise he is entitled to recover at law"

Hounga v Allen 2014 - SC held illegality did not defeat a claim in relation to stat tort of discrimination. SC considered operation of illegality in Jetivia SA v Bilta Ltd 2015, Lord Neuberger noted:

"first, then, there is the proper approach which should be adopted to a defence of illegality. This is a difficult and important topic on which...there can be strongly held differing views and it is probably accurate to describe the debate as involving a spectrum of views. The debate can be seen as epitomising the familiar tension between the need for principle, clarity and certainty in the law with the equally important desire to achieve a fair and appropriate result in each case.

in my view, while the proper approach to the defence of illegality needs to be addressed (certainly with a panel of seven; conceivably with a panel of nine) as soon as possible ... it would, in my view, be unwise to seek to decide such a difficult and controversial question in a case where ... there has been little argument on the subject"

Thus, courts recognise that the defence of illegality requires clarification.

[Although the defence of illegality was rejected in Revill 1996, a defence of contributory neg succeeded in reducing the damages he was awarded by 2/3. Part of the courts' reluctance to admit defences of consent and illegality come from the fact they entirely defeat a claim that has otherwise satisfied the requirements of the tort in question. Contrast - contributory neg allows claim to succeed but adjusts the level of damages awarded to reflect the claimant's responsibility for his own injury.

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Contributory negligence: partial defence

Key statute: Law Reform (Contributory Negligence_ Act 1945, s1(1): where any person suffers damage as the result partly of his own fault and partly of the fault of any other person ... a claim in respect of that damage shall not be defeated ... but the damages recoverable in respect thereof shall be reduced to such an extent as the courts thinks just and equitable having regard to the claimant's share in the responsibility for the damage.

Partial defence which reduces the level of damages payable to the claimant and applies when the claimant's carelessness has caused or contributed to his own injuries in some way.

Not only a defence for negligence. Also has applicability as a partial defence to a whole range of torts via s4 of 1945 Act e.g. breach of statutory duty or any other act or omission which gives rise to liability in tort.

Establish: (1) claimant's damage (2) claimant's fault

(1) Claimant's damage

Requirement that claimant suffered damage includes death and PI but isn't limited to that (s4). It would include any other loss for which damages could be awarded ini tort e.g. damage to property/economic loss.

(2) Claimant's fault

Must be established that the c failed to take care of his own safety in a way which at least partially caused the damage he suffered:

Jones v Livox Quarries 1952 - claimant injured at work when 2 quarrying vehicles collided. Claimant was sat on the back of one of the vehicles when collision happened without driver's knowledge and against the rules of doing so. Held that this did amount to CN as the claimant 'ought to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself'. Thus, injury claimant suffered must have been a foreseeable consequence of his own behaviour even though the damage was caused by the defendant:

Badger v MoD 2006 - damages recoverable by the widow of a man who died after contracting lung cancer from asbestos exposure by the defendant were reduced by 20% as her late husband had continued to smoke knowing/or should have known that his doing so was liable to damage his health and he had been told to stop: a prudent man would've known the risk.

vs:

St George v Home Office 2009 - claimant not held to be CN in respect of injuries he sustained due to negligence of prison staff, claimant was a drug. and alcohol addict and told the staff he suffered from seizures from withdrawal, he was allocated a top bunk which he fell off during a seizure, leaving him permanently, severely disabled. Although the claimant wouldn't have suffered withdrawals and seizures but for his addition, the claimant's act in becoming addicted was too remote in time, place and circumstance and was not sufficiently connected with the negligence of the prison staff to be properly regarded as a potent cause of the injury.

Essence of CN: takes into account the conduct of both the c and the d - remember to examine behaviour of both parties: "did the claimant do anything to put himself at risk of suffering this injury to increase the seriousness of his injuries?" if so, this is a good indication that CN will be established.

Standard of care: that of the reasonably prudent person, a defence of CN will succeed if it can be established that the claimant failed to recognise that he would be jeopardising his own safety if this would have been obvious to the ordinary person

-Children: exception to this soc in relation to children as courts have recognised that children less likely to recognise the risks inherent in their conduct than adults: Gough v Thomas 1966 - 13 yr old claimant struck by a car as she was crossing the road, her view had been obscured by a lorry but the driver had indicated that it was clear to cross the road, car swerved past the lorry and struck the claimant. Issue was whether or not her damages should be reduced on basis of CN. Court held no CN as claimant had done all that could be expected of a child that age:

"a very young child cannot be guilty of CN. An older child may be; but it depends on the circumstances. A judge should only find a child guilty of CN if he/she is of such an age as reasonably to be expected to take precautions for his/her own safety: and then he/she is only to be found guilty if blame is to be attached to him/her. (Lord Denning)

Key question in relation to child claimants: whether their behaviour showed a level of care for their own safety that was appropriate for their age.

Morales v Eccleston 1991 - 11 yr old claimant injured after being struck by a car whilst playing football in middle of busy road. 75% reduction in damages made for CN because this risk would be obvious to an ordinary 11 year old.

Yachuk v Oliver Blais Co Ltd 1949 - nine year old claimant suffered serious burns after setting fire to petrol supplied by the ds. Not CN as he was not of an age where he would appreciate the danger of playing with petrol.

-Rescuers: objective soc also modified here to the standard of the reasonable rescuer. Only if a rescuer haas shown 'wholly unreasonable disregard for his or her own safety' will there be a finding of CN. High threshold. Baker v TE Hopkins & Son Ltd 1959.

-Emergency situations: also recognised that someone faced with sudden peril may respond in a different way that does not seem the best course of action in hindsight. Person acting 'in the agony of the moment' not expected to weigh up the risk of his action. This is taken into account w CN. Jones v Boyce 1816 - question is whether the c's actions were reasonable in the context of the dangerous situation in which he was placed.

Apportionment of blame: if a d establishes CN, the court will look at the contribution of both parties to the harm suffered by the claimant and will apportion a % of responsibly to each party. Claimant's damages will then be reduced by that %. 2 factors to be taken into account when deciding how to apportion blame (from Stapley v Gypsum Mines Ltd 1953):

(1) Causation: the extent to which the claimant's own behaviour caused or contributed to his injuries

(2) Culpability: the relative blameworthiness of the claimant and defendant for the injuries sustained by the claimant

Focus is on claimant's contribution to his injuries, not to the accident that caused his injuries. Claimant may be completely blameless in terms of causing the accident but may have his damages reduced for CN if he has contributed to his own injuries:

Froom v Butcher 1976 for contribution to injury = reduction in damages. C was a passenger, injured when car was struck by oncoming vehicle, driven dangerously by the d. Could not wearing a seatbelt = CN? Yes because CN was concerned with the cause of claimant's injuries, not the cause of the accident. She had contributed to her injury by not wearing a seatbelt, as had the accident.

CoA went on to establish a scale of reductions based upon failure to wear a seatbelt:

- injuries would have been avoided altogether if a seatbelt had been worn: 25% reduction

- injuries would have been less severe if a seatbelt had been worn: 15% reduction

- injuries would have been the same even if a seatbelt had been worn: no reduction.

As F v B 1976 makes clear, the focus of attention must be on how the claimant's behaviour has contributed to his injuries, not considering it in isolation. If bad behaviour made no difference to the injury e.g. if c acted impeccably, there will be no impact on damages.

Froom guidelines also been applied to:

motorcycles (Capps v Miller 1989)

bikes (Smith v Finch 2009)

In Jackson v Murray 2015 - SC considered ways in which responsibility should be attributed and the principles that should govern appeals against calculations, concluding that appellate courts should rarely amend apportionment, even if their conclusion would have been different.

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Remoteness/Legal Causation

Final element in establishing negligence is the extent of the damage suffered by the claimant which should be attributable to the defendant: for how much of the claimant's loss should the defendant be liable?

Remoteness = legal causation/causation in law.

THE TEST OF REMOTENESS

Re Polemis and Furness, Withy & Co Ltd 1921 - charterers of a ship filled the hold with containers of petrol. These filled the hold with water vapour which ignited when a heavy plank was dropped whilst the ship was unloading, destroying the ship. Defendants were liable for all the damage which resulted from the breach of duty, regardless that the damage was foreseeable. "if the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act" - Scrutton LJ: doesn't matter if the actual damage is different to the one foreseen as long as a direct link is there

Re Polemis test does not limit liability for the direct consequences of a negligent act, however severe or unforeseeable those consequences might be. As long as there is a direct link, foreseeability doesn't matter. It has been criticised for this and similar circumstances arose in The Wagon Mound (No.1). 1961 - defendants negligently leaked oil into Sydney Harbour from a tanker, oil drifted into claimants wharf and mixed with wadding. Welding was taking place in the wharf. Claimants got reassurances that it would be safe for them to continue welding. But sparks from the welding ignited the oily wadding which caused fire to spread to 2 ships, damaging them and the wharf.

First instance, trial judge applied Re Polemis principle finding the d were liable for the fire damage since the fouling to the wharf was a foreseeable consequence of the leakage. On appeal, Privy Council reversed the decision, holding that the correct test for remoteness is reasonable foreseeability of the type of damage actually suffered by the claimant.

Both tests (Re Polemis and The Wagon Mound) cannot be reconciled. The decision in Re Polemis was taken by the CoA and has never been overruled, since TWM was heard by the PC. Both cases remain good law and The Wagon Mound is now accepted as the relevant test for remoteness.

Basic principle that loss must be foreseeable is qualified by the scope of the duty of care. If the particular kind of damage suffered by the claimant falls outside the scope of the d's duty, it will not be considered to be within the reasonable contemplation of the defendant (even if it was generally foreseeable). - BPE Solicitors and another v Hughes-Holland 2017

REMOTENESS IN PSYCHIATRIC INJURY CASES

Degree of foreseeability required depends on whether the claimant is primary or secondary victim.

Primary victims - d must or should have foreseen some physical injury to claimant/PV; defendant still liable if no physical injury occurs, only psychiatric.

Secondary victims - psychiatric injury must be foreseeable in a person of reasonable fortitude in the circumstances.

Remoteness is also affected by: THE THIN SKULL RULE

If the injury is foreseeable but the severity (due to pre-existing special condition of the claimant) is not, the defendant remains liable for ALL losses.

Defendants must take their victims as they find them. Also for psychiatric injury.

Smith v Leech Brain & Co Ltd 1962 - the claimant was splashed by molten metal due to employer's negligence, suffered burn to his lip. Burn triggered cancer and claimant died from it. Claimant's lip was pre-malignant at the time of the time of the incident. Some for of harm from the burn was foreseeable although the particular type of harm in the particular circumstances was not. Despite the fact that death from cancer was not a foreseeable consequence of he burn, the employers remained liable in negligence for the full extent of the damage.

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5 - Occupier's Liability

OCA 1957 - prior to this statute, the extent of liability owed by an occupier depended upon the nature of the relationship with the person injured. The OLA 1957 abolished this in favour of 2 categories (1) lawful visitors who were protected by the Act (2) all others, who were not protected (now most are protected by OLA 1984).

S1, OCA 1957: "the purpose of the Act is to 'regulate the duty which an occupier of premises owes to his visitors in respect of danger due to the state of the premises or to things done or omitted to be done on them"

WHO IS AN OCCUPIER?

No statutory definition thus recourse must be made to the common law which has taken a broad view of the issue: "A person who exercises an element of control over premises" - Wheat v E.Leacon & Co Ltd 1966.

Various degrees of control can be exercised so there can be more than 1 occupier. This includes physical control of premises and legal control of premises. In Harris v Birkenhead Corporation 1976, the council was the occupier of an empty house even though it had not taken physical possession as it had served a notice of compulsory purchase on the owner thus was in legal control of the property.

Central question: who has control of these premises? Not: who owns the land. Remember: may be more than 1 occupier simultaneously.

WHAT ARE PREMISES?

Wide definition and covers land, building and 'any fixed or movable structure, including any vessel, vehicle or aircraft' - s1(3)(a) OLA 1957. This has covered:

a ship in a dry dock: London Graving Dock v Horton 1951

aircraft: Fosbroke-Hobbes v Airwork Ltd 1937

scaffolding and ladders (moveable structures): Wheeler v Copas 1981

WHO IS A VISITOR?

3 categories of people considered lawful visitors:

Those w express permission

Can be complicated if the visitor behaves in a way that exceeds the extent of the permission that has been granted. Occupier has right to limit the way in which a visitor behaves whilst on his premises and a visitor who deviates which be a trespasser. (OLA 1984). No longer a lawful visitor.

To distinguish between visitors: "when you invite a person into your house to use the staircase, you do not invite him to slide down the banisters" - The Calgarth, 1927. Look at where the v was entitled to go; what the v was entitled to do; when the v was required to leave. Lawful visitors = OLA 1957. Trespassers = OLA 1984

Those w implied permission

Slightly more problematic category: people who haven't been prohibited from entering but haven't been explicitly invited e.g. delivery man has implied permission to enter. These people are assumed not to be objectionable to the occupier.

Implied permission subject to limitations which render the person a trespasser if exceeded. Can be hard to determine boundaries of implied permission, would likely include situations where entry to certain parts of property has no relation to the purpose of the visit e.g. delivery man may have implied permission to go into reception but not to wander around the gardens.

Harvey v Plymouth CC 2010 - held that any implied permission to enter must be exercised properly. The duty to ensure hat land is safe for visitors too enter is limited to he ordinary use of the land, "an implied licence for general recreational activity cannot be stretched to cover any form of activity, however reckless". - Carnwarth LJ.

If an occupier knows that his land is being used by trespassers but does nothing to prevent them from entering his land, this may amount to implied permission to enter: Lowery v Walker 1911: path across the d's field was used as a shortcut to the railway station by several ppl, d was aware and objected but never taken active steps to prevent it. Without warning, the d put a wild horse in the field which attacked the claimant. Was held that the d's awareness of presence of people on his land and his failure to stop/limit their actions amounted to an implied licence to enter the property.

Those w a right to enter

Law gives rights of entry to certain categories of people which render them within the definition of 'lawful visitor' irrespective of the wishes of the occupier e.g. police officers under warrant. Those who enter premises pursuant to a contract are also deemed to be entitled to entry thus are regarded as visitors.

DUTY OF CARE

S2, OLA 1957 - the common duty of care is ... to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

Similar to negligence doc but there is also an important distinction as an occupier is empowered by statute to determine the boundaries of his liability (s2 of OLA 1957 permits an occupier to extend/modify/restrict duty to visitors by agreement or otherwise)

As the occupier controls to extent of permission to enter, a visitor who acts ini a manner contrary to that permission becomes a trespasser

The duty is to ensure that the visitor is not injured whilst on the premises. This is not the same as a duty to ensure that the premises are safe so the duty may be satisfied if the occupier displays warning signs or cordons off dangerous areas

There are situations in which the common duty of care differs:

Children: an occupier must be prepared for children to be less careful than adults (s2(3)(a) OLA 1957))

This implies greater care may be needed to protect them from harm but case law has sought to balance responsibility between occupiers and parents.

Phipps v Rochester Corporation 1955 - 5 yr old played on land under development by local council, fell down trench dug by council on 1 occasion. Court held the d was entitled to assume parents would take primary responsibility for the safety and control of their child. As a prudent parent would not have allowed a child of that age to play on a building site unattended, there was no liability as the d could not have been expected to protect against unforeseeable risks.

policy behind this decision was: it isn't socially desirable for parents to shift the burden of protecting their children from harm from them to landowners.

But it is likely that a duty will exists if land holds concealed dangers/allurements that tempt children into danger: Glasgow Corporation v Taylor 1922 - 7 yr old died after eating poisonous berries in public park, plants were fenced off but there were no notices that said they were poisonous. Held that plants did not present obvious risk of danger so council should have taken measures to draw attention to the concealed danger that they represented. Court also commented that an occupier who is aware of something on his land would allure children e.g. berries that look edible, must take greater care to protect against this risk involved.

Level of care expected will depend upon the nature of the risk e.g. no duty was owed to a 15 yr old struck by a train after walking on railway track at night because he was aware of the dangers posed by his activity - Titchener v BRB 1983.

Skilled visitors: an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it (s2(3)(b) OLA 1957)). Law expects skilled visitors whose expertise gives them greater awareness of the risks compared to an ordinary person to take precautions to protect themselves from harm. e.g electrician falling over wires in someone's house = not connected to expertise = common duty of care will apply. electrician getting electric shock and continuing work = connected to expertise = expected take precautions, s2(3)(b) applies. Look at the particular expertise of the claimant, don't just assume they aren't owed a duty of care.

WARNING SIGNS

S2(4)(a) - where damage is caused to a visitor by a danger which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe. Warning sign only absolves occupier from liability if it enables visitor to be reasonably safe.

Warning sign safe?

- how specific was the warning? 'Caution' vs 'Caution: slippery service'

- how obvious was the danger? Hidden dangers need greater efforts to call attention to them, Staples v West Dorset District Council 1995 - held that the risks posed by wet algae on a high wall were so obvious there was no need for a warning sign.

- is the sign combined with other safety measures? Fencing/barriers emphasises need for safety.

- what sort of visitor is targeted? Something more than a sign needed to guard children against risks.

[ an occupier may try to avoid liability using an exclusion clause rather than a warning sign - beyond scope of tort: contract ]

LIABILITY FOR INDEPENDENT CONTRACTORS

S2(4)(b) OLA 1957 - specifies 3 circumstances in which an occupier is liable for harm caused to a visitor by the work of an independent contractor. Occupier can be liable for work carried out by contractor if:

if it was unreasonable to entrust the work to an independent contractor e.g. the occupier could have carried out the work himself

if the occupier failed to take reasonable steps to ensure the contractor was competent

if the occupier failed to take reasonable care to ensure the work was carried out to an apt standard

In a PQ - did the occupier check the contractor's competence e.g. references/qualified/ask to see examples of his work? - what did the occupier do to check the quality e.g. periodic inspections/progress reports/inspect.

Occupier only expected to do what is reasonable to check and this will depend on the intricacies/complexities of the work.

Low complexity/straightfoward = occupier expected to notice defects which pose a threat to visitors: Woodward v Mayor of Hastings 1945 - clearing ice from steps was not complex so the occupier should have checked it had been done properly.

High complexity/technical = occupier not expected to notice risks only clear to experts: Haseldine v Daw & Son Ltd 1941 - servicing a lift was technical work that the occupier could not reasonably check: his duty was discharged by a reputable contractor.

DEFENCES: ways an occupier could seek to limit or avoid liability

volenti non fit injuria: if visitor consented to risk of injury (knowing and understanding and accepting risk) s2(5), OLA 1957

reliance on exclusion or limitation of liability by the use of notices

contributory neg under Law Reform (CN) Act 1945, damages awarded to the claimant will be reduced to the extent that the court accepts that he is responsible for his own injuries or loss.

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OCA 1984 - extended the protection of the law to cover trespassers, people lawfully exercising private rights of way, visitors to land cover by s60 of the National Parks and Access to the Countryside Act 1949 and 'right to roam' legislation.

TRESPASSER: no statutory definition but case law has formulated a definition which has been generally accepted.

"Someone who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, its practically objected to" - Robert Addie & Sons Ltd v Dumbreck 1929.

DUTY OF CARE: s1(3) OLA 1984 outlines 3 conditions which must be satisfied for doc to arise:

occupier must be aware of the danger or have reasonable grounds to believe it exists (subjective)

occupier must know or have reasonable grounds to believe that a trespasser is in the vicinity of the danger (subjective)

the risk is one against which, in all the circumstances, he may reasonably be expected to offer some protection (objective: based on the reasonable occupier)

1 + 2 based upon occupier's actual knowledge of the risk and the presence of trespassers, look for evidence in facts e.g. has the occupier noticed risks on his land, is there evidence the land is used as a shortcut, is the occupier aware of previous accidents?

3rd element based upon reasonableness of imposing liability. Factors to take into account:

nature and extent of risk i.e. whether it was obvious or hidden + severity of harm it posed

what sort of trespassers are involved i.e. children - more protection needed vs adults

could the danger have been reduced or negated by precautions? did any precautions taken meet the standards of the reasonable occupier?

Young v Kent County Council 2005 - courts approach to determining liability towards trespassers based on those 3 factors. Court commented that the claimant had been an adult not a 12 yr old, the claimant would have received nothing. Demonstrates variable standard of care in operation. Child was injured falling through a skylight, flimsy and brittle, often used by children as a meeting place and the council knew this (they owned premises) so were found liable. Damages reduced by 50% due to claimant's CN.

Issues of liability for injuries caused to child trespassers further explored by CoA in Keown 2006.

Keown v Coventry Healthcare NHS Trust 2006 - 11 yr old claimant child who was seriously injured falling from the fire escape which ran up 3 storeys in hospital. At trial, claimant accepted he was aware the fire escape was dangerous and he should not have been climbing on it. Trial judge found NHS liable on basis that the state of the premises posed a danger: respondent was aware children played on hospital grounds and so should have guarded against the dangers posed by the fire escape. CoA overturned this on basis that the OCA 1984 required that injury be caused by the DANGER presented by the state of the building, not that injury be caused BY THE STATE of the building. Aka: there was nothing wrong with the fire escape and it would not have caused injury to anyone had it been used in a proper manner.

This case makes an important distinction between injury caused by the danger presented by the state of the building e.g. defective skylight in Young 2005 and the dangerous use of perfectly well maintained premises. Reference was made in Keown 2006 to Tomlinson v Congleton BC 2004, Lord Hoffmann: "the risk arose out of what [the claimant] chose to do and not out of the state of the premises".

Claimant's dangerous use of safe premises doesn't amount to liability of the occupier under OLA 1984.

Tomlinson 2004 landmark case regarded as an attempt to stem the development of compensation culture in the UK. Lord Hobhouse: "the pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen. Of course there is some risk of accidents arising out of the joie de vivre of the young, but that is no reason for imposing a grey and dull safety regime on everyone"

Tomlinson 2004 approach has since been reflected in S1 Compensation Act 2006: "A court considering a claim in negligence or breach of statutory duty may ... have regard to whether a requirement to take [particular steps to meet an appropriate standard of care] might

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.

S2 of CA 2006 - an apology/offer of treatment/other redress shall not amount to an admission of negligence or breach of stat duty. So even if the occupier makes steps to remedy an injury suffered on their premises, this will not automatically determine either negligence or a breach of stat duty.

SIGNS AND DEFENCES: no distinction with provisions outlined in OLA 1957.

OCCUPIER'S LIABILITY SUMMARY

The Acts:

Why the OLA 1957 was abolished: categories: what the OLA 1984 achieved

S1 of 1957 Act, purpose of Act

Definitions:

OCCUPIER: from Wheat v E.Leacon & Co Ltd 1966. Varying degrees of control so 1+ occ. Harris v Birkenhead Corp 1976 to show legal control v physical control: can be an occupier without having physical control over premises.

PREMISES:

VISITORS: 3 categories.

Express: The Calgarth, 1927 'bannister' to distinguish lawful from trespasser, a lawful visitor who deviates from occupier's rules = trespasser. Look at where they could go, what they were allowed to do and when required to leave.

Implied: more problematic because no express permission but also haven't been permitted. These people assumed not to be objectionable to the occupier. Implied permission subject to limitations: boundaries: exceed them set by the occupier = trespasser. Delivery man. Permission must be exercised properly (Harvey v Plymouth CC 2010) also Canwarth LJ: licence for recreational activity cannot be stretched to all activity, no matter how reckless. If an occupier knows trespassers on his land and does nothing to stop, can amount to implied permission to enter (Lowery v Walker 1911)

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6 - Psychiatric Injury

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310

Page v Smith [1996] AC 155

W v Essex County Council [2000] 2 WLR 601

Law Commission, Liability for Psychiatric Illness (Report No. 249), Section C: Reform

Questions for discussion

Outline the main principles of the law concerning liability for the infliction of psychiatric harm. What are the most significant problems with the law in this area?

Tutorial 6: Psychiatric Injury

Required Reading

Paula Giliker, Tort (6th edn, 2017) Ch 4

Description: The main focus of this tutorial is on liability for the negligent infliction of psychiatric injury, though it is useful to bear in mind the parallel but distinct liability for intentionally inflicting mental harm. Students need to consider the different categories of claimant and distinct rules applicable to each.

PSYCHIATRIC INJURY

Definition: medically recognised illness and caused by a sudden event.

Until very recently, claims for P/I were described as claims for “nervous shock”. This quaint terminology served to emphasise the idea that he law would only entertain such claims in cases where P/I resulted from the sudden shock of witnessing or participating in a specific sudden event. As Ackner summarised,a person whose P/I is brought on by the cumulative effect of prolonged exposure to distressing circumstances will normally have no cause of action.

Psychiatric injury must be medically recognised. A number of different conditions have been tested by case law:

Medically recognised

Not medically recognised

PTSD - Leach v Chief Constable of Gloucestershire Constabulary [1999]

Distress - Kralj v McGrath [1986]

Pathological grief - Vernon v Bosley [1997]

Simple grief - Vernon v Bosley [1997]

Personality disorder - Chadwick v British Railways Board [1967]

Miscarriage - Bourhill v Young; Hay v Young [1943]

Rothwell v Chemical Insulating co. ltd 2007 - fear not enough to satisfy. Asbestos case. Bunch of men working with asbestos; get medically examined. Had x rays and x rays show they have pleural plaques in lungs. Not harmful in itself. But does mean you may develop asbestos disease/metheso— in 10/15 years. Sued their employer.

Does not include victims of symptomless pleural plaques who fear they will suffer cancer due to negligent exposure to asbestos. Highlights the courts are still trying to ring fence this area. No matter how much courts can empathise; not enough to claim in this area.

Psychiatric injury must be caused by a sudden event:

Alcock v Chief Constable of South Yorkshire [1992]

Psychiatric injury; sudden event

FACTS:

The case centred upon the liability of the Police for the nervous shock suffered in consequence of the events of the Hillsborough disaster. The Police allowed a large crowd of football fans into an already crowded stand which was surrounded by a high perimeter fence. 95 were crushed to death in the chaos from it. A large number of claims were made by those at the event, family members of people there and those who watched it on the TV.

LEGAL PRINCIPLE: Lord Ackner stated that:

“Shock … involves the sudden appreciation by sight or sound of a horrifying sight or sound or a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.”

HELD AND SIGNIFICANCE:

The plaintiffs in this case were mostly secondary victims, i.e. they were not "directly affected" as opposed to the primary victims who were either injured or were in danger of immediate injury.

The Judicial Committee of the House of Lords has established a number of "control mechanisms" or conditions that had to be fulfilled in order for a duty of care to be found in such cases.

THE HISTORICAL DEVELOPMENT OF PSYCHIATRIC INJURY

STARTING POINT: Victoria, Australia 1888 - Victorian Railways Commissioner case

Still dangerous to take car/horse and carriage across railway tracks. No automatic hazard gates to warn; a man would put the gate down. He negligently didn’t do so. The car with ppl in it, gets stuck and the train is coming. At the last minute, they break free - no one hurt. Except 1 of the passengers is a woman and suffers PTSD as a result. She was so scarred and traumatised. Psychiatric injury. Sues railway company. Case goes all the way through Australian court; goes to Privy Council. PC says ‘no’; not sympathetic. Cannot award damages for mere terror unaccompanied by actual physical injury. ‘it would be extending liability too far’ - floodgates. They don’t believe P/I is a real thing. They think people could fake it. Cultural notions of P/I at the time. Not much sympathy; ‘just a woman thing’.

Damages arising from mere terror is not something the law can deal with.

Shows clear distinction between physical and psych

A car full of passengers gets stuck under manually operated hazard gate and the train is coming. Break free at last minute, no one injured but 1 woman suffers PTSD as a result. PI. Sue railway co. Case goes to PC who is unsympathetic and rejects claim. Wouldn’t award damages for mere terror unacc by physicala injury ‘extending liability too far’ floodgates: cultural notions of PI; women.

NEXT CENTURY: 1901, Dulieu v White - court starts to change their position. Claimant is the wife of a publican. Behind the bar, serving drinks, pregnant at the time. Whilst doing this, a runaway horse carriage smashes into the pub. Suffers severe shock; early labour; baby born with disabilities. Argues premature was caused by terror. Driver of the horse carriage was clearly negligent. Can she sue? Court says in this situation, we won’t stand by Victorian Railways. Where the claimant has an immediate threat to her safety, she should be able to sue. Judge reckons they can tell if someone is faking. In this situation, the court re-affirms that immediate threat to personal safety; willing to acknowledge mere terror as illness. Wanted to prove that the courts could test evidence and see if someone was lying.

Negligent horse carriage driver crashes into the pub where a pregnant woman is working, she suffers severe shock and prematurely delivers, arguing this is he driver’s fault. Court said they wouldn’t abide by Victorian Railways - court reaffirms immediate threat to personal safety = should be able to sue. Willing to acknowledge mere terror as illness and were confident they would be able to be prove if faking.

NEXT: DULIEU EXTENDED BY HAMBROOK. Hambrook v Stokes - a mother taking her children to school; leaves them to walk a bit by themselves. After she leaves them, she sees a runaway truck going towards her lone children. Hears loud smash. Told ‘a child’ has suffered injury. She suffers P/I as a result. Delieu - if someone fears own personal safety, they may be able to claim. If we’re applying D, she shouldn’t be able to claim. BUT court says, ‘mothers who care for children would obvs be seriously affected and she can recover provided the trigger for her illness is what she actually saw’ - the court felt that a mother devoted towards her child should be able to recover. The anguish of a mother really triggered the court’s sympathy.

This has not been according to principal; it has been reactive. The development of this law has been reactive.

D extended by H v S. Mother taking children to school and leaves them to walk remainder alone, sees a runaway truck go towards children and hears loud smash, told a ‘child’ injured. Suffers PI as a result even though not her kids. D application: no claim. But courts acknowledge relationship: anguish of a mother triggered court’s sympathy: can recover provided the trigger for her illness is what she actually saw’

NEXT: 1943 - Bourhill v Young. Pregnant Fish Wife. Scared of blood. She got off a tram and as she reached to get her basket off the tram, the defendant drove his motorcycle past the tram at excessive speed and collided with a car 50 feet away from where the claimant was standing. The defendant was killed by the impact. The claimant heard the collusion but did not see it. A short time later, the claimant walked past where the incident occurred. The body had been removed but there was a lot of blood on the road. The claimant went into shock and her baby was still born. She brought a negligence claim against the defendant's estate.Court says she cannot recover. Not sufficient proximity. Court regains control and says we don’t want this to be too wide. There must be limits.

Pregnant fish wife, scared of blood, got off tram and d drove his motorcycle past at excessive speed, colliding with car 50 ft away from c standing. D killed. C heard collision, didn’t see it, walked past incident and saw blood on road, not dead body. C suffered shock and baby still born. Neg claim against d’s estate. Court: can’t recover, insufficient proximity. Court regained control as they didn’t want liability to be too wide. Limits.

Tells us: over 20th century, courts moved away from the position that you can never claim for P/I. They said you can, but it must be controlled and ringfenced. The development of this area of law has been reactive, not according to principal.

DUTY OF CARE:

A duty of care is owed if the claimant is a reasonably foreseeable victim.

Alcock v Chief Constable of South Yorkshire [1992]

Psychiatric injury claims

LEGAL PRINCIPLE:

The HoL laid down 3 factors (4 if you include sudden shock) to be considered in determining whether a duty of care is owed in P/I cases:

Foreseeability - it must be reasonably foreseeable that a person of normal fortitude in the position of the claimant would suffer illness due to their close ties of love and affection with the victim

Proximity - there must be a temporal and spatial proximity of the claimant in relation to the accident

How the shock was caused

The definition of the reasonably foreseeable victim was subsequently considered by the HoL in Page v Smith:

Page v Smith [1996]

Psychiatric injury; reasonably foreseeable victim; car crash; ME remission

FACTS:

The claimant was involved in a road accident. The claimant was physically unhurt in the collision but the accident brought back his ME (which he had had for 20 years) but which had been in remission.

LEGAL PRINCIPLE:

The HoL held that foreseeability of physical injury was sufficient to allow a claimant directly involved in the incident to recover in P/I even if physical harm does not occur.

SIGNIFICANCE:

In doing so (^), the HoL identified 2 types of victim: primary and secondary.

Law Commission, Liability for Psychiatric Illness (Report No. 249), Section C: Reform

Outline the main principles of the law concerning liability for the infliction of psychiatric harm. What are the most significant problems with the law in this area?

The way the law handles primary/secondary/rescuers

Secondary: Alcock test

Talk about Alcock e.g. brotherly love

Are the tests fair and reasonable

Modern law: preliminary issues

Preliminary issues which help us understand the modern law:

Psychiatric illness resulting from personal injury

Where a claimant has suffered bodily injury as a result of the d’s negligence, the courts allow recovery in respect of psychiatric illness resulting from the injury. Claimant in this circumstance = primary victim. The law has traditionally allowed them to recover damages for pain and suffering consequent upon their injuries. E.g. damages awarded in Kralj v McGrath 1986 - negligence of an obstetrician resulted in plaintiff suffering psychiatric trauma and losing her baby shortly after its birth (distinguish this from allowing damages for natural grief and sorrow which the law doesn’t compensate for)

Psychiatric injury resulting from property damage

In Attia v British Gas Plc 1988, the CoA was asked to decide whether a duty of care could arise where the plaintiff had witnessed the destruction of her home as opposed to injury of a loved one. Held that it could. The decision in Attia is not considered in any of the 3 modern leading cases so its impact remains uncertain. Bingham LJ held that a duty of care could exist also in other examples like where a scholar’s life’s work/research were destroyed before his eyes as a result of a defendant’s negligence.

Policy considerations

In White v CCoSY, Lord Steyn provided useful summary of main policy considerations that dictate that claims for psychiatric illness should be treated differently from claims of personal injury:

Drawing the line between acute grief and psychiatric illness as the law doesn’t compensate for acute grief. Adverse economic implications for the administration of justice if claims for psychiatric illness were to be treated on the same par as physical injury as establishing psychiatric illness via expert evidence is timely/costly. Only take serious cases to court.

Steyn thought it important to consider the effect on people who had witnessed gruesome events of increasing the availability of compensation. Wasn’t thinking about bogus claims, thinking about how the prospect of compensation might sometimes be an unconscious disincentive to rehabilitation.

Relaxing the special rules governing compensation for psychiatric harm would greatly increase the class of persons who could recover damages in tort: open floodgates of litigation.

Steyn thought that expanding liability for psychiatric harm might result in liability disproportionate to the tortious conduct involved - a momentary lapse of concentration e.g. lorry driver on phone = crushing liability.

TYPE OF VICTIM

PRIMARY AND SECONDARY VICTIMS

PRIMARY VICTIM: directly involved in the incident: in the zone of danger.

The decision in White makes it clear that in order to qualify as a PV, the claimant must establish that he or she has been placed in immediate physical danger by the defendant’s negligence. Or at least has been put in reasonable fear for their physical safety.

The position of PV is governed by Page v Smith - minor car crash. Driver physically unhurt but driver had ME. In remission. Chronic fatigue. At the time, this was classified as P/I. The car crash triggered this to start up again.

The reasoning of the majority in White shows It is not necessary to show that fear of physical harm is the cause of the PV’s psychiatric illness. For rescuers, the cause of psychiatric illness may be witnessing the imperilment of those being witnessed.

Before the decision in White it had been unclear whether the category of ‘primary victims’ could be said to include a group of claimants i.e. employees, rescuers and other ‘ppts’ in the circumstances of an accident who weren’t in physical danger but were able to take advantage of legal rules and claim/recover for psychiatric illness. White seems to make it clear that such claimants are not to be regarded as ‘primary victims’.

Argue your clients was in the zone of danger and you’ll probably be able to establish a duty of care.

Unresolved point: the requirement of ‘actual danger’

Lord Steyn in White - would be sufficient if a claimant had ‘objectively exposed himself to danger or reasonably believed that he was doing so’

Lord Hoffman - claimants have to be ‘within the range of foreseeable personal injury’

Unclear as to whether this is a requirement or not.

In any event, the claimant’s fear for his or her own safety must be reasonable

CoA in McFarlane v EE Caledonia 1994 (plaintiff alleged P/I brought on by his involvement in the Piper Alpha oil rig disaster - rig exploded, causing many deaths - his claim as a PV failed because at the time of the disaster, he was working 50 yds away from the rig and there was no evidence that the boat was in any danger) made it clear that claimants who seek to qualify as PV because they have been put in fear for their physical safety must have some reasonable basis for that fear.

SECONDARY VICTIMS: must satisfy the tests laid down in Alcock 1992:

There must be a close relationship of love and affection with the primary victim.

Position of SV governed by Alcock v Chief Constable of South Yorkshire [1992] where South Yorkshire police admitted that the death to 96 spectators and injuries of 400 were caused by their negligence in allowing too many people into the stadium (1989 football match). Claims of death, physical injury and psychiatric harm all settled by police. P/I claims brought by 2 groups of people: relatives (and a fiancee) who had heard or witnessed about the death/injury of their loved ones (plaintiffs in Alcock) and police officers who assisted in the aftermath (plaintiffs in White).

Question for HoL in Alcock was whether the plaintiffs were owed a duty of care on the basis that their psychiatric illness was reasonably foreseeable or if their claims should be governed by the ‘control mechanisms’ introduced by Lord Wilberforce in McLoughlin v O’Brian:

The class of persons whose claims should be recognised

The proximity of such persons to the accident

The means by which the psychiatric illness was caused

SECONDARY VICTIMS: THE ALCOCK “CONTROL MECHANISMS”:

Developed from Wilberforce in McLoughlin. Have to satisfy that their injuries were reasonably foreseeable and:

Proximity of relationship: close relationship of love and affection with the PV.

The plaintiffs in Alcock were parents, brothers, sisters, a brother-in-law, a grandparents and a fiancee of the immediate victims. Instead of their Lordships defining each relationship as being classed a secondary victim, they held there must generally be a close relationship of love and affection between the “secondary victim” and the “immediate victim”. The presumption that it exists in families/spouses could still be rebutted depending on circumstantial evidence.

Lord Keith - thought this should be extended to fiancees, especially the ones affected in Alcock who lost her fiance she had known for 4 years.

For siblings/grandparents, you must show that there is a certain degree of love as it is not normally regarded as having the requisite closeness necessary to satisfy this test.

Lord Ackner - “the quality of brotherly love is well known to differ widely”

Proximity in time and space

The various plaintiffs in Alcock witnessed the injury or death of their loved ones in different ways: been in other stands, watched on TV, heard on radio. After the disaster, some of the plaintiffs went to find their relatives in the grounds or identified their bodies in a mortuary.

Their Lordships held that, to succeed as a secondary victim, a plaintiff had to show a high degree of proximity to the accident in time and space: must witness it as it actually occurs or common upon its “immediate aftermath” within a very short space of time. The decision in Alcock took the meaning of this further than it did in McLoughlin v O’Brian: whole family in car accident, gets to hospital 2 hours later, sufficient love and affection, the scene had been transported to the hospital as they hadn’t been cleaned up, it was as if the mother (claimant - McLoughlin) was at the actual event.

“Immediate aftermath”

Generous view - Galli-Atkinson v Seghal 2003 - CoA was prepared, on the facts, to take more generous view in which a subsequent visit to a mortuary would constitute the immediate aftermath of an accident. Claimant was a mother, told her daughter was killed in car accident by police, attended mortuary 2 hours after incident and saw her daughter’s disfigured body. Trial judge didn’t allow this to count as immediate but on her appeal, Latham LJ thought the visit to the mortuary was not a separate event (like in Alcock) but it was last in the sequence of uninterrupted events which went to make up the claimant’s entire perception of the tragedy. Latham LJ - the mortuary visit was not just to identify the body but to “complete the story so far as the appellant was concerned - who did not want to believe her child was dead”

Stern view - Alcock and Taylor v A Novo (UK) Ltd 2013 - more recent case, 2013, indicated Galli should not be considered to allow further substantial extension of the immediate aftermath test by courts. Claimant’s mother injured at work, daughter witnessed mother’s death and suffered PTSD. Did the IA test apply to the accident at work which the daughter didn’t witness or the death which she did witness and would satisfy all Alcock criteria for? CoA unanimously held that the secondary victim must be in proximity of the actual accident. Otherwise, the mother could have died years after and the test would have been stretched too far. Lord Dyson MR - repeated words of Steyn - “the only sensible strategy for the courts is to say thus far and no further”. He also indicated any extension to the scope of liability for secondary victims should be undertaken by Parliament.

Psychiatric injury resulting from property damage

In Attia v British Gas Plc 1988, the CoA was asked to decide whether a duty of care could arise where the plaintiff had witnessed the destruction of her home as opposed to injury of a loved one. Held that it could. The decision in Attia is not considered in any of the 3 modern leading cases so its impact remains uncertain. Bingham LJ held that a duty of care could exist also in other examples like where a scholar’s life’s work/research were destroyed before his eyes as a result of a defendant’s negligence.

The means by which the psychiatric illness is caused

In Alcock, Lord Jauncey observed: “the means by which the shock is caused constitutes a third control, although in these appeals I find it difficult to separate this from proximity”

No liability where the claimant is merely informed about the accident

No liability when informed about the accident by live television coverage

Psychiatric illness caused by a defendant haming or imperilling himself or herself

The “sudden shock” requirement

Lord Ackner reaffirmed in Alcock that “‘shock’ in the context of the cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.” Not psychiatric illness caused by the accumulation over a period of time of more gradual assault on the nervous system. The sudden psychological impact of witnessing single event or its immediate aftermath which triggers the action NOT trauma caused by subsequent reflection on an event. This requirement acts as a barrier to claims and ensures the floodgates are not opened to a multitude of claims.

W v Essex County Council [2000]

Parents claimed to have suffered psychiatric damage after learning their children had been subjected to serious sexual abuse by a teen who they had fostered.

HoL were not prepared to strike out the claim even though it didn’t satisfy the Alcock control mechanisms test to determine secondary victims.

DUTY OF CARE (cont.)

Various rules courts apply to limit the scope of duty of care:

The requirement that some harm (psychiatric or physical, depending on case) must be reasonably foreseeable

FORESEEABILITY: PRIMARY VICTIMS

Page v Smith 1996 - minor car crash. Driver physically unhurt but driver had ME. In remission. Chronic fatigue. At the time, this was classified as P/I. The car crash triggered this to start up again. HoL held that foreseeability of physical injury was sufficient to allow a claimant directly involved in the accident to recover in psychiatric injury even if physical har does not occur. In doing so, they identified 2 types of victim -

Thin skull rule - take victim as you find them - this is what they applied - where it is reasonably foreseeable that an injured claimant will suffer personal injury, the d will be liable for ALL the consequences of that injury, even though they could not have all been reasonably foreseen.

Lord Lloyd: “since the defendant was admittedly under a doc not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate doc not to cause foreseeable psychiatric injury” - physical and psychiatric injury regarded as the same harm.

CoA - the defendant driver was not liable because he could not reasonably have foreseen that his negligence would cause psychiatric illness. But a majority of HoL overturned this and held that reasonable foreseeability of psychiatric illness need not be established when physical injury was reasonably foreseeable.

Criticism of thin-skull rule here:

Lords Keith and Jauncey dissented in this case on the basis that the d could not reasonably have foreseen that a person of ordinary fortitude would suffer psychiatric illness because of a minor car accident.

Jauncey - the thin skull rule not relevant where what was in issue was the existence of a duty of care to avoid causing a particular kind of damage - it was only relevant to the extent of the damage which occurred, once an established doc had been breached

Goff in White - the thin skull rule was a principle of compensation, not of liability: “Lord Lloyd appears to have taken an exceptional rule relating to compensation and treated it as being of general application, thereby creating a wider principle of liability”

Despite these criticisms, the majority in White were content to accept that Page v Smith had been correctly decided.

FORESEEABILITY: SECONDARY VICTIMS

SV - those suffering psychiatric illness due to witnessing an event, though they are not themselves in any danger.

The claimant must establish that psychiatric illness was reasonably foreseeable. This involves showing that a person of ordinary fortitude might reasonably have suffered psychiatric illness in the circumstances.

No duty of care is owed to avoid causing psychiatric harm to people who are ‘particularly susceptible’ to such harm because they have a nervous or emotional disposition - this is one of the reasons why the plaintiff in Bourhill v Young didn’t succeed.

Thin skull rule is applied again. Once you have proven that a duty exists via reasonable foreseeability through ordinary fortitude test, the defendant will be liable for all the psychiatric illness that occurs, despite it not all being reasonably foreseeable e.g. a defendant cannot limit his scope of liability if their actions cause someone to suffer an illness which he reasonably foresaw to require 2 years off work if the victim ended up needing 10 years off work due to their susceptibility.

EMPLOYEES

Plaintiff’s relationship of employment with defendant created the necessary degree of ‘proximity’ for his negligence action to succeed in Dooley Cammell Laird & Co Ltd 1951 regardless that they were friends too (Donovan J ignored this fact in deciding) - crane driver operating crane at docks where he worked, his employer’s fault that a sling snapped, load fell onto men working, crane driver suffered P/I resulting from fearing death for his employee friends.

In White, Lordships held that an independent right for an employee to recover for P/I caused by witnessing/fearing injury to fellow workers as a result of an employer’s negligence did not exist as assumed before White.

An employer’s duty to safeguard employees from psychiatric harm no different from general duty of care owed by all people to those whom their conduct may affect.

In cases where an employee suffered P/I through witnessing the death, injury or imperilment of others, the rules in Alcock applied - ordinary rules of tort.

UNWITTING AGENTS

Should special treatment be given to claimants, who, because of a defendant’s negligence, are placed in circumstances where they accidentally cause the d,i or i of another through no fault of their own.

In White, Lord Hoffman: “there may be grounds for treating such a rare category of case as exceptional and exempt from the Alcock control mechanisms”

W v Essex CC 2000 - action for P/I from foster parents who told the authorities they wouldn’t foster children with history of sexual abuse to others as they had 4 young children of their own. They got such a child from authority. Alleged that the child sexually abused/indecently handled the claimants’ children. The substance of the parent’s claim was that their P/I came from discovering the abuse and by feeling guilty that by bringing a child abuser around their children, they had unwittingly caused harm to their children.

HoL refused to strike out claim as CC wanted (they disclosed no cause of action). Lord Slynn said it might be difficult for them to succeed but that their claim was not unarguable.

RESCUERS AND THE IMPACT OF WHITE:

RESCUERS: distinct category. Not prim or second. Intermediate. Not involved in accident but put themselves in danger to rescue. Likely to suffer P/I. They are secondary victims technically because they saw it after. But in tort, generous to rescuers.

Chadwick v British Transport Commission 1967 - BIG train crash, many died, caught under the train. Mr Chadwick ‘a small and wiry man’ lived nearby in Clapham and climbed into the wreckage, administered injections, comforted a dying person for hours who was unable to be saved. Very traumatising. Very brave man. Court treated him as if he were a passenger and compensated him. He suffered debilitating P/I after helping. Courts: you must have been exposed to physical injury or believed you were to qualify as a primary victim. This isn’t what they said but they said this in White to re-interpret it so they couldn’t apply it in White.

However: White v Chief Const of South Yorkshire

Hillsborough disaster. Leading case on rescuers. Claim of the PO who carried out rescue missions. A lot of them suffered PTSD. This is a test case that could’ve been applied if they won. Q: should they be treated as Chadwick; as rescuers. The role of PO here was controversial. Ordinary people affected by the accident were not compensated e.g. mothers, brothers. Now police come along asking for compensation. Special treatment. Courts in an awkward position; there would be riots if they compensated. 3:2 majority at HoL: “we will treat them as 2ndary victims”. You cannot be compensated for your heroic acts. Very hard to claim as 2ndary victim under tort.

What we see: in this area of P/I the courts developing law reactively. It is not doctrinally sound. Highly charged, political situation where you cannot compensate the police especially when so many believe Hillsborough was caused by police. This development of law was influenced by external pressures and factors.

See pg 157 for more on this e.g. essay prep, employees and unwitting agents

PROPOSALS FOR REFORM

March 1998 - Law Commission published a report which recommended some important changes to the law. Concluded that, with secondary victims, whilst the control mechanism of ‘close love and affection’ should remain, all of the other Alcock mechanisms should be abolished - most radical proposal. Said the law had ‘taken a wrong turn’ with this.

Commission proposed a strategy of minimal legislative intervention to modify and clarify the modern law. Codifying all of it would ruin the flexibility of it and allowing for new areas of liability to incrementally develop as experts learned more about P/I.

E.g. proximity mechanism abolished so people merely told about the incident could succeed as claimants; people in position of plaintiffs in Alcock.

E.g. sudden shock abolished so people like long-term carers who developed P/I because of emotional strain of caring for victim of a defendant’s negligence could recover. Implications?

“Close ties of love and affection”: the fixed list

Commission felt that this operated as an apt control mechanism but had been too narrowly drawn in Alcock.

Under its proposals, the rebuttable common law presumptions governing spouses, parents and children would be replaced with conclusive statutory presumptions in respect of a wider class of relationships.

There would be a statutory fixed list of relationships where close ties would be deemed to exist.

Parent, child, sibling, spouse (gay or straight) for 2+ years.

Persons outside fixed list dealt with via common law and evidence would be required of close ties.

Commission also recommended that legislation should provide that close ties should exist either at time of accident OR onset of P/I. Flexibility. Makes sense for carers of victims after accidents.

The “just and reasonable” proviso

To accomodate circumstances like where a defendant wouldn’t be liable to an immediate victim but may be to a secondary victim i.e. where an immediate victim has consented to the risk of injury, the C proposed a legislative provision stating defendants should not be liable to secondary victims in cases where the court considers that such liability would not be “just and reasonable”

The “actual danger” proviso

Lack of understanding as to whether a secondary victim could recover because they reasonably believed that the ‘victim’ was in danger, whether they were or not. C didn’t want to open floodgates of litigation so proposed that “legislation should draw the line at where the loved one has in fact been killed, injured or imperilled by the defendant”.

So no liability for wife who thinks husband is dead because his usual train crashed and she saw it on the news but he actually got a later train and arrived home safely that night.

DEFENCES

The LC’s proposals would preserve certain defences. No liability to SV who had voluntarily assumed the risk of suffering P/I or to a defendant who eradicated their liability in an exclusion clause or in situations where it would be unjust to allow the SV to recover because they were involved in illegal activity/activity contrary to public policy.

How to apply this to a Problem Question:

Does x owe y a duty of care?

Threshold test: recognised psychiatric illness test

Satisfy the test for primary or secondary victim: what type of victim are we dealing with?

Foreseeability to establish doc

Ken, a train driver, negligently approaches the rail terminus at too high a speed and crashes his train into the platform. Many people are killed and injured in the accident.

The following people suffer psychiatric damage as a result of this accident:

Vera, a passenger, who was waiting at the station to catch another train. She was unhurt in the accident but suffered shock as a result of witnessing the carnage.

Ben, an ambulance worker, who spent several hours tending to passengers who were trapped in the wreckage.

Don, who had been intending to meet his wife, Ivy, who was travelling on the train which crashed. He arrived at the station 30 minutes after the accident had occurred. He was not allowed to approach the wreckage and was only informed that Ivy had been injured and taken to hospital two hours later. He finally succeeded in seeing Ivy in hospital five hours after the accident had occurred.

Discuss.

How to apply this to an essay question:

Look at prejudices inherent of development of the law, look at the development e.g. towards pregnant mothers

Seite 5

7 - Pure Economic Loss

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] AC 465 ✓

Decision here established, contrary to previous authority, that there could be liability in English law in respect of financial loss caused by negligent misstatement. Changes in 60s - attitudes in financial services were changing.

HB - advertising agents. About to enter into contracts on behalf of one of their clients: Easipower where HB was guarantor if Easipower failed to honour its obligations under the contracts. HB wanted credit check so sought reference through their own bankers - Heller and Partners who considered Easipower to be good for the ordinary course of business. H&P made it clear they were providing this info ‘without responsibility’ on their part. HB went ahead on the basis of favourable credit. Turned out Easipower were not in a good financial position and H&P carelessly failed to realise this when giving reference. Easipower went into liquidation shortly after; HB became liable to pay their debts. HB brought action against H&P.

Looked at if there was a doc owed by Heller.

Lens of who you owe a doc to.

Also weren’t sure whether to frame under remoteness. Remoteness and doc (proximity) HoL prepared to hold that, but for the disclaimer of liability, H&P would have been liable for their negligent misstatement.

Held that for liability in negligent misstatement cases:

a ‘special relationship’ had to be shown between the maker of the statement and the person who subsequently relied on it:

Imbalance of knowledge: Reed in Hedley Byrne - knowing someone is relying on another’s statement

needed reasonable reliance.

voluntary (debatable) assumption of responsibility

Murphy v Brentwood District Council [1991] 1 AC 398 ✓

Brentwood DC, relying on the negligent advice of its consulting engineers, approved the building plans for a house. There were certain areas in the design of the foundations making them defective. Mr Murphy subsequently bought the house. Foundations cracked whilst he lived there. Caused extensive damage. Gad, water and sewage pipes under house began to rupture, posing damage to Murphy and his family. They were forced to move out because of danger. Instead of repairing the house, Murphy sold it to a builder for a lot less than he paid for it. He then sued the council for his financial loss.

Claim failed. HoL held Murphy could not recover his pel. Lordships held that, whilst a local authority/builder might be liable in tort if a latent (undiscovered) defect suddenly materialised, causing personal injury/damage to property other than the building itself, no doc was owed in respect of damage caused by a defect that had become apparent.

Apparent = defect already discovered by claimant or claimant ought reasonably to have discovered it.

Cost of replacing ‘other property’ damaged by an apparent defect was like the defect itself, to be considered as pel.

If a defect was already discovered by claimant, the cost of replacing other property damaged by such defect = pure economic loss. Defect also = pure economic loss. No duty of care owed for damage caused by apparent defect. Classed as pel but not recoverable as pel.

Smith v Bush [1990] 1 AC 831 ✓

Can there be an ‘assumption of responsibility’ where the defendant expressly disclaims responsibility?

Liability imposed in spite of an assertion that the defendant accepts no legal responsibility for the advice in question.

HoL decided 2 appeals where plaintiffs suffered pel as a result of negligent surveys. In 1st appeal (which illustrates the decision) the plaintiff (Mrs Smith) wished to buy a house. She approached a building society for a mortgage. The building society instructed the defendants (a firm of surveyors) to carry out a visual inspection of the house to confirm it was worth at least the money they were proposing to lend. Defendant’s valuer noticed two chimney breasts had been removed but failed to check whether the chimneys had been left adequately supported. His report stated no essential repairs necessary.

Mortgage application form and valuation report contained a disclaimer of liability. Mrs Smith was advised to obtain independent professional advice. Building society, pursuant to an agreement with Mrs Smith, who had paid an inspection fee, supplied her with a copy of the report. She, understandably as a purchaser of a modest house, relied on it and purchased the house without any further survey. Chimneys were not adequately supported and one collapsed.

When Mrs Smith sought to recover her financial loss, ds argued the disclaimer exempted them from liability. But HoL held that the disclaimer was invalid under the Unfair Contract Terms Act 1977 (UCTA) s.2. It did not satisfy the requirement of reasonableness set out in s.11(3). Since the valuer was a professional, whose services were paid for (albeit indirectly) by Mrs Smith, and since he was aware that Mrs Smith would probably purchase the house in reliance on his valuation without an independent survey, it would not be reasonable to allow the valuer to rely on the disclaimer. The valuer had assumed responsibility at law.

“... the phrase ‘assumption of responsibility’ can only have any real meaning if it is understood as referring to the circumstances in which the law will deem the maker of the statement to have assumed responsibility”

Lord Griffiths, Smith v Bush

Faced with the ‘floodgates’ argument, their Lordships chose to confine the ratio of their decision to situations where a private purchaser was buying a modest house. Commercial purchasers/purchases of more expensive houses could be expected to instruct their own independent surveyors.

Decision in this case subsequently applied in Merrett v Babb 2001 (pg 126)

Different to Hedley because disclaimer was invalid under unreasonableness under UCTA, now consumer rights act 2015.

Disclaimer can be excluded.

Hartshorne, “Contemporary approaches towards pure economic loss in the law of negligence” [2014] JBL 425

Questions for discussion

Define “pure” economic loss. Why is “pure” economic loss treated differently from other examples of such loss?

DEFINITION OF PURE ECONOMIC LOSS:

GR: Pel cannot be recovered.

Exceptions: neg misstatement.

‘Economic loss’ often shorthand for ‘pure economic loss’ but pel is a specific legal term. Pure economic loss - loss that is purely financial; does not result from damage to the claimant’s property or injury to the claimant’s person e.g. person who buys defective product will be seen as having suffered pure economic loss because the only loss in question is the cost of repairing or replacing the product (no injury to person/damage to property). It was already damaged when I bought it; didn’t suffer damage to property/person; always been damaged.

CATEGORIES OF EL: CONSEQUENTIAL VS. PURE ECONOMIC LOSS:

Courts draw distinction.

Consequential economic loss - financial loss which is consequent upon damage to the claimant’s person or property e.g. loss suffered by a claimant who has been seriously injured and must give up work: loss of earnings/loss of profits from damage to commercial machinery. Law has little difficulty rendering cel as recoverable because it results directly from damage to the claimant’s property or person. So, cel is recoverable but pel is not (unless it results from negligent misstatement or negligent provision of services)

An illustration: Spartan Steel✓

Illustrates distinctions between pel and cel and damage to property. Decision in SS & Alloys Ltd v Martin & Co (Contractors) Ltd 1973. Defendants, construction workers, negligently cut through cable which supplied power to plaintiff’s factory, caused power cut which lasted for 14.5 hours. Without electricity, plaintiffs’ furnace could not operate and they had to close their factory. Metal in furnace at the time power went off began to solidify and to save damaging the furnace, it had to be thrown away. Plaintiffs brought action for 3 types of loss:

Damage to the melt that was in the furnace at the time of the power cut (physical dam to property)

Loss of the profit which would have been made on the sale of that melt (the metal in the furnace) (cel resulting from property damage)

Loss of profits on 4 further melts which would have been processed during the 14.5 hours the factory was closed because of the power cut (pel - disconnect from damage to property)

A majority of CoA held the first 2 claims recoverable; 3 not. Defendants owed plaintiffs a duty not to damage their property, and therefore had to pay for the damaged metal and the loss of profit resulting directly from that damage but they did not owe a doc in respect of the further lost profits because they did not result from the fact that the plaintiff’s property had been damaged.

Lord Denning MR - unsure whether to approach the question from the pov of doc or remoteness of damage. He observed:

“At bottom I think the question of recovering economic loss is one of policy. Whenever the courts draw a line to mark out the bounds of duty, they do it as matter of policy so as to limit the responsibility of the defendant. Whenever the courts set bounds to the damages recoverable - saying that they are, or are not, too remote - they do it as matter of policy so as to limit the liability of the defendant”

Lord Denning, Spartan Steel

He then referred to the policy considerations which precluded liability for the further loss of profits. Observing power cuts are a fact of life and that they often cause economic loss, he stated people should bear that loss themselves: take out insurance or instal emergency generators, concluding:

“... the risk of economic loss should be suffered by the whole community … rather than be placed on one pair of shoulders”

Lord Denning, Spartan Steel

Stated that if claims for pel due to power cuts were allowed, it would be very easy to make inflated claims - claimants could say they had intended to use machinery for duration of power cut: would be impossible to prove. Taking claimants word for it = exaggerated damages.

Dissenting judgment from Edmund-Davies:

Objected to arbitrary distinction of pel and cel in case

Thought law would be clearer if it stated all foreseeable economic loss was recoverable

Couldn’t see why the recovery of economic loss should depend on the purely fortuitous circumstance of who happened to own the piece of property that was damaged

Logical argument: if contractors had entered the factory in pursuance of a statutory power and damaged a cable belonging to claimants, all economic loss would then have been recoverable because it would have resulted from damage to the claimants’ own property

Edmund-Davies LJ, Spartan Steel

POLICY CONSIDERATIONS

- decision based on these 2 central policy considerations which have traditionally made pel non-recoverable in tort:

Tort law shouldn’t undermine contract law

Contractual remedies are set up in most contractual relationships. Would be inconsistent to give a remedy in tort to others who have not so contracted. Parties would have arranged their relationship and responsibilities under contract law: tort law should not undermine this allocation of responsibility.

“The courts do not permit claimants to use tort in order to evade a fundamental rule of the law of contract that goes to its essence as voluntary, objective, commercial institution or the ‘get round’ the contractual structure of the parties’ particular transaction”

O’Sullivan

The desire to avoid crushing liability

Efficiency of courts. Indeterminate number of claims. Indeterminate time also.

Negligent act may cause an enormous number of people to suffer pel e.g. d crashes car, blocks busy tunnel, plumber on way to work made late - loses pay, builder waiting for plumber to finish work - financial loss etc. etc. domino effect. People’s financial interests are so closely interrelated that causing eco loss to one person usually produces domino effect. Law deals with this by allowing people, via contract law, to fix the extent of their economic liabilities to others - they will only be liable to others with whom they have contracted. Avoids indeterminate loss.

Defendant shouldn’t be liable in tort without having accepted responsibility for the welfare of others: moral weight point: law is only regarded as just if it recognises that people’s willingness to look after the interests of others is limited. People generally more willing to assume doc to look after physical safety/property of someone compared to financial wellbeing of someone. Could argue tort simply reflects views of society.

What is the “floodgates” argument, properly conceived, and why is it particularly applicable in cases of pure economic loss (and psychiatric injury)?

Economic activity is central to everyone's lives; huge potential pool of claimants for something small. Opening the floodgates of litigation: Denning stated in Spartan Steel that if claims for pel due to power cuts were allowed, it would be very easy to make inflated claims - claimants could say they had intended to use machinery for duration of power cut: would be impossible to prove. Taking claimants word for it = exaggerated damages. Courts heed caution.

What are the roles of the special relationship, “assumption of responsibility” and “reliance” in deciding cases in this area?

Both cannot be examined in isolation from one another; both are phrases of ways of saying the same thing. Saying there is a sufficient degree of ‘proximity’ between the claimant and the defendant. Trying to limit only for claims where there is a specific assumption of resp. Complex area but broken down into discrete issues:

When will a ‘special relationship’ normally arise?

“It is plain that the party seeking information or advice was trusting the other to exercise such a degree of care as the circumstances required, where it was reasonable for him to do that, and where the other gave the information or advice when he knew or ought to have known that the inquirer was relying on him”

Lord Reid, Hedley Byrne

He went on to say that a reasonable man, when asked for advice, and realising his skill and judgment might be relied upon, would have 3 options:

Keep silent

Give answer with disclaimer: that he accepted no responsibility for it

Give answer with no disclaimer

A person that chose no disclaimer would be held to have assumed responsibility for their answer being given carefully and would owe a doc to the recipient of the advice. Whether a special relationship exists in any given circumstance is decided by an evaluation of the particular facts of the case e.g. friends in pub not expected to give disclaimer e.g. Chowdhury v Rebecca (?) purchased car but changes nature of social relationships. Could open floodgates to frivolous claims. Patchett v Swimming Pool & Allied Trades Association Ltd 2009: trade association had made statement on website, CoA decided it could not fairly be said that the association had ‘assumed responsibility’ for the accuracy of that statement given the website itself urged browsers to make further enquiries and there was no special relationship. Contrast: Sebry v Companies House 2015: the Registrar of Companies was found to have assumed responsibility to a company, when entering a winding-up order on the companies register, to take reasonable care to ensure that the order was not registered against the wrong company.

Can a ‘special relationship’ arise in a purely social context?

Colin, a valuer, is instructed by Bill to value a caravan park that Bill owns. Bill tells Colin that he is intending to use the valuation to support his application for a loan secured on the park. Colin, who has no previous experience in valuing property of this kind agrees. [he is aware - breached duty?] Colin subsequently sends a valuation of the park, saying that he values it as worth £2 million, to Bill. Bill shows the report to MegaBank Ltd who agree to advance a loan of £1.5 million secured on the property. Megabank relied on Colin’s valuation when deciding to make the loan. Bill’s business fails six months after the loan was granted. Megabank enforced its security but found that the best price that could be obtained for the property was £200,000.

Potential claims:

Bill bringing action against Colin (couldn’t be for business failing as this is an independent act) - Henderson v Merit - contract v tort: they run separately and concurrently

MegaBank against Colin for misstatement:

1st thing to do - establish duty of care - Hedley Byrne - establish special relationship (Caparo criteria for spec rel - individual, transaction, reliance but disregard this cos not discussed in textbook) [has responsibility been assumed?] Playboy v Burlington - who was the special relationship between? Court held secret agency role meant Playboy couldn’t claim. But Colin couldn’t really argue he didn’t know what the valuation was for.

Did colin disclaim liability?

Not a professional - still liable?

Smith v Bush [1990] 1 AC 831 - can there be an ‘assumption of responsibility’ where the defendant expressly disclaims responsibility?

Hedley Byrne?

Whilst leaving a property which he had surveyed, Colin is distracted by the sound of his mobile phone ringing. As a result, his car collides with a railway bridge. Colin is unharmed, but the force of the impact causes structural damage to the bridge which is owned by Railtrack. As a result of the damage, British Waste plc, which used the railway line across the bridge to deliver waste to its incinerator, has to hire a fleet of lorries at an additional cost of £75,000 while the bridge is being rendered safe. British Waste’s premises were clearly visible to those using the road and a sign mounted visibly in the bridge gave directions to it.

Potential claims:

Railtrack claiming for physical damage from Colin. Could also claim for consequential economic loss due to property damage.

British Waste v Colin

Discuss.

Actionable tort?

Employment references - special rel exists between employer and employee asking for reference. Claimant outside of that relationship - Spring v Guardian PLC

Seite 6

8: Nuisance and the Rule in Rylands v Fletcher

Description: This tutorial addresses liability in respect of interference with land, exploring the different types of “nuisance”, the role played by the Rule in Rylands v Fletcher, and the inter-relationship of these various principles.

Required Reading

Hunter v Canary Wharf Ltd [1997] AC 655

Coventry & Ors v Lawrence & Anor [2014] UKSC 13

Cambridge Water v Eastern Counties Leather [1994] 2 AC 264

Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1

M. Lee, “What is Private Nuisance?” (2003) 119 LQR 298

Questions for discussion

John owns a piece of waste land in Bristown which adjoins an exclusive housing development. John agrees to let his land to Harry, a market trader, knowing that Harry intends to use the land to hold a regular Sunday market. Under the terms of his agreement Harry agrees with John that he will take all reasonable steps to keep the disturbance created by the market to a minimum.

Ian, who lives in a house adjoining the market site, complains that he has been awoken in the early hours of Sunday morning by Harry’s employees erecting market stalls, that the market has attracted large crowds and that the road outside his house has been blocked by parked cars. Pauline, Ian’s wife, complains that the noise and disturbance created by the market has resulted in her suffering a recurrence of the nervous depression which has afflicted her in the past.

Colin, who owns another house adjoining the market site, complains that Harry has abandoned an old van on the site next to Colin’s garden; that the engine oil has leaked from the van into the garden ruining his vegetables; and that children playing in the van have set light to it, causing the petrol tank to explode and killing Colin’s pet dog which was sleeping in his garden.

Harry announces that the market has been a great success and that it obviously meets a public need for such ventures.

Discuss.

“Private nuisance is a vulnerable tort: vulnerable to negligence but mainly vulnerable to its own uncertainty and unpredictability” (Maria Lee).

Explain and comment on this statement.

To what extent does the rule in Rylands v Fletcher have any role to play in the modern law of tort?

Seite 7

Products Liability

LIABILITY FOR DEFECTIVE PRODUCTS

Defective products can give rise to liability in variety of ways. Claims may arise in contact law or consumer law involving various statutes, commonly CRA 2015 from 1 Oct 2015. Distinction between causes of action in contract and tort. In relation to tort, liability can arise under common law in negligence or +/or under the Consumer Protection Act 1987.

COMMON LAW NEGLIGENCE

Basis of common law position found in 'narrow rule' from Donoghue v Stevenson 1932. Neighbour principle = wide rule. Part of the judgment deals with relationship between Manu and ultimate consumer of products. Lord Atkin explained the narrow rule as: "a Manu of products which he sells in such a form to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care in preparation .. of the products will result in an injury to the consumer .. owes a duty to the consumer to take that reasonable care"

Elements to this rule:

manufacturer: ordinary sense of the word + includes any party who create the danger inherent in the goods e.g. assembler, installer, retailer

products: D v S concerned drinks but a 'product' is considered to be anything manufactured which is capable of causing damage including such diverse articles as underpants (grant v Australian knitting mills 1936)

ultimate consumer: construed v widely, includes anyone who may foreseeably be affected by the defective product (Stennett v Hancock and Peters 1971). But if the end user is alerted to the defect and voluntarily continues using it, then any damage that results is not regarded as being caused by the Manu's negligence unless the defendant has no choice but to continue using it (Howmet Ltd v Economy Devices Ltd 2016)

intermediate examination : this is linked to causation, f an intermediary is reasonably expected to make an examination of the product which would/should have revealed the defect then this may be sufficient to break the chain causation but the intermediate examination has to be likely, not just foreseeable, to absolve the manufacturer of liability

see lecture notes.

Seite 8

Vicarious Liability