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Tort Revision
Unit 1 Introduction to Tort
Introduction to Tort i-tutorial
Types of harm personal injury, property damage, interference with use or enjoyment of
land, damage to reputation.
Types of tort assault and battery, negligence, private nuisance, defamation, defective
products, defective buildings, trespass to land.
Its better to sue in contract than in tort e.g. in the case of a defective product!, because its
easier to prove and you may receive more compensation.
"ut you might not be able to sue the retailer in contract if you were not the buyer of the
product, or if the retailer has gone out of business.
#otorists and employers are obliged to ta$e out insurance so that a crash victim% employee
will always receive compensation. There is even the #otor Insurers "ureau which pays the
compensation if a driver has failed to ta$e out insurance. &ome insurance would cover injury
to guests on your property.
'hapter (
It is advisable to sue in both contract and tort if possible, in case one claim fails.
The main function of tort is compensation, but it can also function as a deterrent eitherfinancial if uninsured! or reputational or in terms of having to pay increased insurance
premiums!.
Tort law only provides a remedy for types of harm recognised by the e)isting law of tort. This
does not necessarily have to be tangible some torts e.g. trespass to the person! are
*actionable per se, and the harm is simply the infringement of the claimants legal rights.
Osman v Ferguson it would be against public policy to impose a duty on the police to
suppress crime which included liability for any harm caused by criminals whom they could
have apprehended. This duty would e)ist only if there was a *special relationship between
the claimant and the investigating police officers principle established in Hill v ChiefConstable of West Yorkshire!.
+nyone can sue, or be sued by, anyone. + minor under (! will conduct litigation through a
*litigation friend e.g. a parent or guardian!. arents are not legally or financially liable for
the torts of their children, so it is often not worth suing a child defendant.
imited companies and partnerships can be sued as entities.
/hen a person dies, any claim in tort e)cept defamation! continues and is conducted by his
personal representatives.
The time limit for bringing a claim in tort is generally 0 years from when the cause of action
the harm! arose pursuant to the imitation +ct (12!. 3or defamation the claim must be
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brought within a year of publication, and personal injury claims within 4 years of the injury.
The limitation period for a minor does not start until he is ( years of age.
Trespass to the ersonLetang v Cooper if the defendants actions are only careless, the claimant should sue in
negligence.
Trespass to the person is *actionable per se the claimant does not need to prove any
tangible physical harm to bring a claim.
Battery 5the intentional direct application of unlawful force to another person6.
Assault 5an intentional act by the defendant that causes another person to reasonably
apprehend the immediate infliction of a battery upon him6.
7lements of "attery
8nlawful force physical interference with another persons body which falls within *a
general e)ception embracing all physical contact which is generally acceptable in the
ordinary conduct of everyday life F v West Berkshire Health Authority! is not unlawful and
does not constitute battery. 9.". a policewoman grabbing someones arm to :uestion them
constitutes battery Collins v Wilcock!.
Intentional conduct Wilson v Pringle; *it is the act and not the injury which must be
intentional.!bal v Prison Officers Association; intention includes subjective rec$lessness,
where the defendantforeseesthat their actions will result in the application of unlawful force
e.g. throwing a stone in a crowded area!. "ibbon v Pepper if you push someone into
someone else, youve committed a battery on both people.Livingstone v #inistry of $efence
*transferred intent; if you try to hit someone and accidentally hit someone else its still
*intentional.
teyn said in) v relan&that *immediate could cover something
which would happen in a minute or so. *homas v +ational ,nion of #iners the stri$e-
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brea$ing miners were in vehicles and separated from the stri$ers by a police cordon, so there
was no immediacy. *uberville v %avage words can *negative an assault; *if it were not
assi?e-time, I would not ta$e such language from you.
Wilkinson v Downton tort
The defendant told the claimant, as an evil jo$e, that her husband had been badly injured in
an accident. The claimant suffered severe shoc$ and other permanent physical conse:uences.
There was no assault or battery, but the court allowed the claim thereby creating a new cause
of action! on the grounds that the defendant inten&e&to cause shoc$ to the claimant, who
suffered some tangible damage as a result. ater cases have shown that this tort is not
*actionable per se the claimant must suffer some recognised illness or injury. *ee alsoBlake v "allo-ay boys throwing twigs at each other as a game;
implied consent. 3or medical procedures, the consent must be *real Chatterton v "erson.
the patient must have been informed of the broad nature of the procedure.
awful arrest an officer who arrests someone pursuant to a valid warrant, and uses only
reasonable force, does not commit a battery.
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3or a claim to succeed, the information must be private the claim had a reasonable
e)pectation of privacy in relation to the information disclose!, and there must not be a
legitimate public interest in the disclosure of the information.
#atters relating to health, se)ual activities, personal relationships, financial affairs, and
covertly-ta$en photographs in a private place are all li$ely to be considered *private.
7)amples of public interest; the claimant had previously lied about the information= the
claimant had done something illegal= the information pertains to the public role of political
figures.
Unit 2 Negligence
'hapter B.(
Negligence 5a breach of a legal duty of care owed to a claimant that results in harm to theclaimant, undesired by the defendant6.
7lements of 9egligence; duty of care, breach of duty, causation, defences.
Duty of Care
7stablished duty situations; one road user to another including pedestrians! +ettleship v
Weston!, doctor to patient Pippin v %heppar&!, employer to employee, manufacturer to
consumer $onoghue v %tevenson narrow rule!, teacher to pupil Carmarthenshire County
Council v Le-is!, solicitor to client "room v Crocker!, anyone who creates a dangerous
situation owes a duty of care to a potential rescuer Baker v Hopkins!.
9eighbour principle wide rule! in$onoghue v %tevenson 5you must ta$e reasonable care
to avoid acts or omissions which you can reasonably foresee would be li$ely to injure your
neighbourD persons who are so closely and directly affected by my actions that I ought
reasonably to have them in my contemplation6.
Caparo n&ustries plc v $ickman three part test; (! reasonable foresight of harm to the
claimant= B! sufficient pro)imity of relationship between the claimant and the defendant= 4!
fair, just and reasonable to impose a duty of care.
3oreseeability inBourhill v Youngmiscarriage after seeing aftermath of traffic incident!
there was not reasonable foresight of harm.
ro)imity duty of care may be limited in cases such as; omissions to act e.g. local
authoritys failure to carry out road repairs!= pure economic loss= pure psychiatric harm.
3air, just and reasonable #arc )ich v Bishop )ock #arine Co Lt&; not fair, just and
reasonable to impose a duty of care on 9EE, a non-profit ma$ing entity, created and
operating for the sole purpose of promoting safety at sea.
Hill v Chief Constable of West Yorkshire no general duty to apprehend criminals, and no
duty to members of the public who might be harmed by them, e)cept if there were *an
e)ceptional added ris$, e.g. if the claimant had suffered threats which the police $new about.
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"ut even in %mith v Chief Constable of %usse(, where e)tensive evidence of threats was
presented to police, no duty of care was found.
'irkham v Chief Constable of "reater #anchester Police the police had assumed
responsibility for the prisoner, so a duty of care was owed.
iability for @mission to +ct no general duty to prevent harm %tovin v Wise failure of
highway authority to redesign junction!. @nly e)ceptions would be in the case of a special
relationship lifeguard, driving instructor, teacher, parent etc.!.
There would only be liability when a person chose to act if they positively made the situation
worse 2ast %uffolk )ivers Catchment Boar& v 'ent!.
>pecial relationships also confer a duty to prevent their charges causing harm to third parties
Home Office v $orset Yacht Co Lt&= Carmarthenshire County Council v Le-is!. If there is
no special relationship %mith v Little-oo&s Organisation Lt& vandals! then no duty of care
is owed.
Breac of Duty
>tandard of 'are
Blyth v Birmingham Water-orks 59egligence is the omission to do something which a
reasonable man would do, or doing something which a reasonable man would not do6.
This is an objective test "lasgo- Corp v #uir!, but it will be modified based on the
capabilities of the defendant.
The >$illed $illed
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#agnitude of ris$; inBolton v %tone, there was a very low li$elihood of injury, whereas in
#iller v 0ackson, it was high. InParis v %tepneyone-eyed claimant!, an injury to his
remaining good eye would entail a much more serious injury, and so a higher standard of care
would be e)pected unless the defendant had been unaware of the disability!.
racticality of ta$ing precautions; inLatimer v A2C Lt&, the cost of ta$ing precautionsclosing down part of the factory! was high compared to the relatively small ris$ of injury.
ac$ing the financial resources to ta$e precautions is not an e)cuse.
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#ultiple causation in Wilsher v 2sse( AHA, there were multiple possible causes of the
harm, and the defendant failed to establish that the defendants negligence had caused or
contributed to the harm.
#aterial contribution the claimant does not need to show that the defendants breach of
duty was the only cause of the damage, or even the main cause, merely that it materiallycontributed to the damage Bonnington Castings Lt& v War&la-!. It is possible that the courts
have e)tended this principle to include the creation of a material increase in the riskof injury
#c"hee v +ational Coal Boar&!.
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+ovus Actus nterveniensby the claimant this depends on whether the claimant acted
reasonably Wielan& v Cyril Lor& Carpets Lt& nec$ brace, stairs fall! or unreasonably
#c'e- v Hollan& wea$ leg, stairs fall!.
Remoteness of imilar in Type Rule 5provided that the type of injury is reasonably foreseeable, it is
not necessary to foresee the precise way in which the injury is caused6 Hughes v Lor&
A&vocate!. In *remain v Pike, the injury suffered /eils disease! was not foreseeable,
whereas rat bites would have been.
The *7gg-shell >$ull Rule *you ta$e your victim as you find him )obinson v Post Office!.
If the claimant has a particular disability or condition, he may recover in full from the
defendant for his losses, even though the defendant could not have foreseen the full e)tent of
the claimants loss. This also applies to high salary earners the defendant must still
compensate in full.
Defences
Aoluntary +ssumption of Ris$ volenti non fit in5uria! a complete defence. + defendant
must establish that the claimant; a! had full $nowledge of the nature and e)tent of the ris$,
+9< b! willingly consented to accept the ris$ of being injured due to the defendants
negligence +ettleship v Weston!. In$ann v Hamilton, though the passenger $new that the
driver had been drin$ing, that $nowledge was not sufficient to imply consent. In#orris v#urray, the pilot was so obviously drun$ that the claimant was found to have accepted the
ris$.
>ection (H1 of the Road Traffic +ct (1 states that any acceptance of ris$ by the passenger
is invalid volenti is never a defence.
The defence of volentiwill rarely succeed in claims by employees against employers %mith v
Baker! employees dont really have free choice to accept or decline instructions.
Rescuers a rescuer acting to rescue persons or property endangered by the defendants
negligence, acting under a compelling legal, social or moral duty, whose conduct was
reasonable and a natural and probable conse:uence of the defendants negligence, will not be
found to have voluntarily assumed any ris$ Haynes v Har-oo&!.
Illegality e( turpi causa non oritur actio! a complete defence. The fact that the claimant
was involved in an illegal enterprise at the time may be a defence Ashton v *urner!. "ut
there must be a very close connection between the illegal activity of the claimant and the
harm which he suffers Pitts v Hunt!, e.g. driving a getaway car too fast and crashing it.
'ontributory 9egligence carelessness on the claimants part which contributes to the
damage he suffers. The claimants damages will be reduced pursuant to the 5aw Reform
'ontributory 9egligence! +ct (1H6! according to his share of responsibility for the damage.
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The claimant needs to have contributed to the damage, not the accident itself. Thus, even
where the defendant was fully responsible for a car accident, there may be a finding of
contributory negligence, if the claimant was not wearing a seatbelt, and this fact contributed
to the harm he suffered Froom v Butcher BJ reduction if injuries would have been
avoided, (J if less severe!. The same principle and calculation applies to crash helmets for
motorcyclists Capps v #iller!. +ccepting a lift from a drun$ driver will constitute
contributory negligence, even if the claimant was too drun$ to notice O-ens v Brimmell!.
'ontributory negligence is the failure to ta$e reasonable care for ones own safety the same
standard of care as is e)pected of a defendant against a 9egligence claim the reasonable
man test Blyth!!.
The same considerations apply regarding children; the younger they are, the less li$ely they
are to have been contributorily negligent "ough v *horne!.
Rescuers conduct will be judged against the standard of conduct of a reasonable rescuer=
they will have to have shown *wholly unreasonable disregard for their own safety to befound contributorily negligent Baker v * 2 Hopkins 6 %on Lt&!.
+ claimant who is faced with the sudden need to save himself may not be found
contributorily negligent even if he chooses the less safe course of action 0ones v Boyce!. "ut
the action ta$en must still be a reasonable response to the level of danger %ayers v Harlo-!.
'hapter B.4
imited ituations the $ind of loss suffered by a claimant may entail that no duty of
care is owed to them. This is because the relationship between claimant and defendant doesnot show the re:uired pro)imity Caparo! to establish a duty of care.
!ure "cono#ic $oss
ure economic loss is generally not recoverable a defendant does not owe any duty to a
claimant not to cause pure economic loss.
7conomic loss which results from damage to property or personal injury is 9@T pure
economic loss, but rather conse!uential economic loss, which is fully recoverable.
7)amples of ure 7conomic oss
+c:uiring a defective product the cost of replacing a defective product cannot be recovered
in tort #urphy v Brent-oo& $C!, only in contract.
7conomic loss caused by damage to the property of a third party in %partan %teel 6 Alloys
Lt& v #artin 6 Co 3Contractors. Lt&, only the cost of physical damage to the claimants
property the current melt! and the conse:uential economic loss resulting from that damage
the loss of profit on the current melt! were recoverable, not the economic loss resulting from
damage to the property of a third party the electricity suppliers cable!.
7conomic loss where there is no physical damage can occur via negligent actions Weller 6
Co v Foot an& #outh $isease )esearch nstitute! or statements He&ley Byrne v Heller!.
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&owever, the court may find that there is a special relationship between claimant and
defendant, where the defendant has assumed a responsibility towards the claimant. In He&ley
Byrne v Heller, the *special relationship was defined as; an assumption of responsibility by
the defendant, and reasonable reliance by the claimant.
3or a defendant to have assume& responsibilitytowards a claimant, four criteria must besatisfied; (! the adviser $new the purpose for which the advice was re:uired= B! $new it
would be communicated to the claimant= 4! $new that the claimant was li$ely to act on it
without independent in:uiry= H! the advice was acted upon to the claimants detriment. These
criteria were established in Caparo n&ustries Plc v $ickman.
There can generally be no assumption of responsibility in relation to advice given in a social
situation Chau&ry v Prabhakar!.
%pring v "uar&ian Assurance plce)tends the principle inHe&ley Byrneto negligent
statements made to third parties, where the defendant nevertheless has assumed a
responsibility towards the claimant e.g. to provide a reference!.
White v 0ones e)tends the principle to pure economic loss caused by the negligent provision
of professional services, where there has been an assumption of responsibility. &ere, the
assumption of responsibility went beyond the client to the potential beneficiaries of the will
the solicitor had been instructed to draw up.
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rimary victims a primary victim is someone who was actually involved in the incident. er
Page v %mith, a primary victim *was in the actual area of danger, or reasonably believed that
he was in danger. + secondary victim *witnesses injury to someone else, or fears for the
safety of another person. + primary victim is owed a duty of care in respect of his pure
psychiatric harm, provided that the ris$ of physical injury was foreseeable= it is not necessary
for the ris$ of psychiatric harm to be foreseeable.
>econdary victims not all secondary victims are owed a duty of care. Alcock v Chief
Constable of %outh Yorkshire Policeestablished the criteria which a secondary victim must
satisfy in order for a duty of care to be owed; foreseeability of psychiatric harm, pro)imity of
relationship, pro)imity in time and space, and pro)imity of perception.
3oreseeability *was it reasonably foreseeable that a person of normal fortitude in the
claimants position would suffer a psychiatric illnessF
ro)imity of relationship the claimant must have a close relationship of love and affection
with the person who is endangered. erAlcock, a close relationship is presumed betweenparent and child, husband and wife, and fiancK and fiancKe, but outside these categories the
claimant mustproveit e)isted. The defendant can adduce evidence to rebut the presumption
of love and affection in the above categories.
ro)imity of time and space the claimant must be present at the accident or its immediate
aftermath= and must see or hear the accident, or its immediate aftermath, with his own senses.
"ut#cLoughlin v O1Brianshows that *immediate is a somewhat fle)ible term the fact that
the victims were still in the same condition was enough, and it was only an hour later!. In
Alcock, hours later did not constitute the *immediate aftermath.
ro)imity of perception the shoc$ must come to the claimant *through sight or hearing ofthe event or of its immediate aftermath= a claimant cannot be compensated if the event is
communicated by a third party #cLoughlin!. InAlcock, no duty of care was owed to those
watching on TA, because no individuals could be identified, so the court decided that what
the claimants did see was not e:uivalent to seeing or hearing the event or its immediate
aftermath. + broadcast showing individuals would constitute a novus actus interveniens.
Rescuers no special status or duty of care is owed to employees or rescuers White v Chief
Constable of %outh Yorkshire Police!. + rescuer who is a secondary victim is clearly very
unli$ely to meet the *pro)imity of relationship test.
'ausation the *egg-shell s$ull proviso for remoteness of damage does not interfere withre:uirement of the foreseeability of psychiatric harm to a person of *normal fortitude for
secondary victims. The first hurdle relating to duty! must be passed first a person of
*normal fortitude would have sufferedsomepsychiatric harm. Then the claimant can rely on
the *egg-shell s$ull proviso to recover full damages even if greater than a person of *normal
fortitude!.
Unit & 'e#edies in Tort (e)ce*t $and+
/here a claimant has not suffered any harm e.g. in an *actionable per se tort!, the court mayaward nominal damages in order to establish the claimants legal rights.
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+ claimant should ta$e all reasonable steps to mitigate his loss, e.g. by see$ing alternative
employment if injury has prevented him continuing with his previous job= replacing a
damaged vehicle which he needs for wor$= or accepting medical care.
The court must award one lump sum to cover both past and future losses.
>pecial damages losses capable of being calculated precisely at the time of trial e.g. cost of
care, loss of earnings!.
Leneral damages losses not capable of being calculated precisely at the time of trial e.g.
pain and suffering, and loss of future earnings!.
ecuniary losses loss capable of calculation in money terms, either pre- or post-trial e.g.
loss of earnings, cost of medical care!.
9on-pecuniary losses loss not capable of calculation in money terms e.g. pain and
suffering, loss of amenity!.
9on-pecuniary losses
ain and suffering covers past, present and future pain= physical and mental anguish= fear of
future surgery= anguish of $nowing your life has been shortened 5+dministration of Mustice
+ct (1B, s ((!b!!. + subjective test a claimant must be aware of his injuries to recover
for pain and suffering Wise v 'aye!.
oss of amenity covers loss of enjoyment of life a wide area!. +n objective test the
claimant doesnt have to be conscious in order to recover West v %hephar&!.
The :uantum of non-pecuniary damages will be assessed with reference to practitioner te)ts
li$e *Eemp and Eemp on . "ut a claimant who uses the 9&> cannot recover what he would have paid
a private doctor.
oss of earnings pre-trial net earnings for the period off wor$ ta), national insurance,
pension contribution deducted= bonuses, overtime, per$s added!.oss of earnings post-trial #ultiplicand; the court will ta$e the claimants gross annual loss
including possible promotions! at the time of trial, deduct ta), national insurance and
pension contributions, and this net annual loss is the multiplican&. #ultiplier; this reflects
how long the claimant will be off wor$ could be the time until retirement age!. "ut in order
to factor in the possibility of earning interest on the lump sum award, the court will use the
@gden table to calculate a lower multiplier.
oss of earnings; the lost years reduced life e)pectancy! the claimant may have dependants
for which he wishes to provide after his death. The claimant can recover loss of future
earnings for lost years Pickett v British )ail 2ngineering!. "8T the amount the claimant
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would have spent on himself must be deducted; BJ for person who is married with
dependent children, and 44J for a married person without dependent children.
oss of earnings; children this is very difficult to calculate= the court might consider his
parents earnings, or the national average earnings, or particular potential shown by the child.
>ervices provided to the claimant the claimant can recover the cost of help with housewor$,
shopping, nursing care etc. %chnei&er v 2isovitch!. This applies whether the carer is a
professional or a family member. If a relative has given up paid employment, that loss of
wages can be compensated "8T @9N up to the commercial rate of the services he%she is
now providing. +n unemployed relative who provides services may not e)pect the full
commercial rate to be compensated.
oss of earning capacity a claimant can be compensated if the judge feels there is a real ris$
of him losing his job %mith v #anchester Corporation!. This is only relevant where the
claimant is still in his original pre-accident job.
ocial >ecurity Recovery of
"enefits! +ct (11G, >tate benefits will be deducted from the claimants damages so as not to
over-compensate him!, and then the defendant will be re:uired to pay this amount bac$ to the
>tate. @nly benefits for lost earnings, cost of care and loss of mobility are deductible not
pain and suffering, or loss of amenity!.
rovisional damages if there is a small chance that the claimants condition will deteriorate,
the court may ma$e a provisional award on the basis of no deterioration, with the provision
for further damages if it does deteriorate 5>enior 'ourts +ct (1(, s 4B+!.
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ection 44! and H provide that the possibility of remarriage, and of inheriting money,
respectively, are not ta$en into account when calculating dependency.
"ereavement the spouse or civil partner, or the parents of an unmarried minor, can claim=
the award is O(B,12.
3uneral e)penses can be claimed if the dependants have paid for them.
Unit , -*ecial $ia.ility 'egi#es
"#*loyers/ $ia.ility
#ost employers are re:uired by statute 57mployers iability 'ompulsory Insurance! +ct
(1016! to ta$e out insurance against claims by their employees.
9egligence
+ duty of care is owed only to employees, not independent contractors. The duty was
established in Wilsons 6 Cly&e Coal Co Lt& v 2nglishas comprising 4 elements; duty to
provide competent staff= ade:uate material i.e. plant, e:uipment, machinery!= and a proper
system of wor$ and supervision. InLatimer v A2C Lt&, a fourth duty *to ta$e reasonablesteps to provide a safe place of wor$ was added. The duty of care is non/&elegable.
'ompetent staff this is the duty to provide competent fellow wor$ers. erHu&son v )i&ge
#anufacturing Co Lt&, the employer must have $nown, or ought reasonably to have $nown,
about the ris$ that the incompetent employee was posing to fellow staff. This was confirmed
in Waters v Commissioner of Police for the #etropolis, in which psychological harm was also
included e.g. bullying!. If an employer does not ade:uately train or supervise his staff, he
ought reasonably to $now that they will be incompetent.
+de:uate material covers anything provided by an employer for the purposes of its
business= either defective e:uipment, or insufficient e:uipment. The 57mployers iabilityafe system of wor$ an employer must not only devise a safe system of wor$, but also ta$e
reasonable steps to ensure that it is complied with.
>afe place of wor$ though an employer would also owe a duty to his employees under the
5@ccupiers iability +ct (1G6, his common law duty is more onerous in two ways; it is
non-delegable whereas under the +ct he could delegate his duty to an independent
contractor! and applies wherever the employees are sent in the course of their wor$ not just
the employers premises! "eneral Cleaning Contractors v Christmas!.
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>tress at wor$ safe system of wor$! stress as a result of wor$ is covered Walker v
+orthumberlan& County Council!. The guidelines for what is covered are laid down in
Hatton v %utherlan&; *was the injury to health through stress at wor$ reasonably foreseeableF
This depends on two considerations; the nature and e)tent of the wor$ long, hard, fre:uent
absences!= and signs from the employee himself e)cept the employer could assume an
employee was up to the normal pressures of the job, and ta$e at face value what the employee
told him!.
'ontributory negligence may be a partial defence, but the courts will ma$e allowance for
employees wor$ing in noisy conditions, doing repetitive wor$ Cas-ell v Po-ell $uffryn
Associate& Collieries Lt&!.
0icarious $ia.ility
3or an employer to be vicariously liable for the tort of an employee; the wor$er must be an
employee not an independent contractor!= the employee must have committed a tort= in the
course of his employment. + claimant can sue the employee, or the employer, or both.
"e an employee an employee is employed under a contract @3 service, whereas an
independent contractor is employed under a contract 3@R services. +n employee performs a
service for just one person the employer!. +n employee receives a wage, rather than being
self-employed. The test for marginal cases is set down in)ea&y #i(e& Concrete 3%outh 2ast.
Lt& v #inister of Pensions an& +ational nsurance; an employee agrees to provide a service
in return for a wage= that they will be subject to another persons control= they do not provide
their own tools, hire their own helpers, or assume the financial ris$ of the enterprise.
In the 'ourse of 7mployment an employer is liable for *a wrongful act authorised by the
master, or a wrongful and unauthorised mo&eof doing some act authorised by the master
applied inLister v Hesley Hall!.
rotecting the employers property might fall within the course of employment Polan& v
Parr!, but retaliation would not Warren v Henleys Lt&!. >mo$ing whilst unloading oil
Century nsurance v + )oa& *ransport Boar&! would be an unauthorised mo&eof
conducting an authorised act.
+cts prohibited by the employer can be *in the course of employment if furthering
employers business )ose v Plenty- mil$man!. Living a lift to a hitch-hi$er did not further
business *-ine v Bean1s 2(press!, and was therefore outside the course of employment.
Intentional torts an employer can be vicariously liable if the wrongful act by the employee
stemmed from an act which the employer had authorised him to do Lloy& v "race!. +n
intentional wrongful act, committed purely for the employees benefit, can fall within *the
course of employment if there is a sufficient connection between the wor$ he had been
employed to do and the acts committed Lister v Hesley Hall!. '.f. also#aga v Birmingham
Arch&iocese of the )oman Catholic Churchpriest never *off duty!.
*@n a frolic of his own 0oel v #orison! the :uestion is whether a deviation from an
authorised route constitutes a *frolic. The court will consider the e)tent of the deviation a
new journey vs a minor detour! and the purpose of the deviation whether he was still
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conducting his employers business!. In Hilton v *homas Burton, by visiting a relative in
hospital, the employee was not doing anything he was employed to do. In Harvey v ) "
O1$ell Lt&, stopping for lunch was held to be reasonably incidental to ones wor$.
There is a gentlemans agreement that employers liability insurers do not pursue an
indemnity from the employee, as is their right Lister v )omfor& ce!, unless there is evidenceof wilful misconduct, or collusion between employee and claimant.
ccu*iers/ $ia.ility
*Things done or omitted to be done @ccupiers iability +ct (1G! is generally ta$en to
refer only to actions related to the state of the property. @ther actions would be governed by
simple 9egligence though the difference between a claim under @+ and 9egligence is very
small!.
Re:uirements for a claim under @+ (1G
7stablish that loss was suffered due to the state of the premises= identify the *occupier of the
*premises= prove that he is a visitor= show that the occupier failed to ta$e reasonable care for
his safety.
/ho is an *occupierF someone who has *a sufficient degree of control over the premises
Wheat v 2 Lacon 6 Co Lt&!. #anagers and lodgers could be occupiers Wheat!. There can
be multiple occupiers e.g. brewery company and pub managers in Wheat!. +n independent
contractor could be an occupier provided he has the re:uisite level of control.
remises includes vessels, vehicles and aircraft= and open land.
/ho is a visitorF a dinner guest, a decorator, a theatre-goer, a fireman who enters your
house etc. Aisitors are those persons who have e)press or implied permission by contract or
law! to be on the occupiers land.
+ visitor may becomea trespasser and hence be covered by @+ (1H! if he e)ceeds his
permission to be on the premises e.g. a salesperson who ignores a sign, a hotel guests who
enters a *>taff @nly door!. ermission can relate to location or purpose going behind a
counter to steal would violate both!.
'ommon duty of care see section BB! of @+ (1G. The duty to ta$e *reasonable careD to
see that the visitor is reasonably safe in using the premises for the purpose for which he ispermitted to be there.
"reach of the common duty; >tandard of 'are the court will ta$e into account the nature of
the danger, purpose of the visit, seriousness of injury ris$ed, magnitude of ris$, cost and
practicability of ta$ing precautions, how long the danger had been there, any warning of the
danger, and the type of visitor.
Type of visitor children re:uire a higher degree of care s B4!a!! and professionals a lower
degree of care in respect of dangers arising from the defect they have been called to repair s
B4!b!! see)oles v +athan.
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'hildren occupiers should ta$e e)tra care in respect of concealed dangers which represent
*allurements to children "lasgo- Corporation v *aylor- berries!. "8T occupiers will have
complied with their duty to very young children if they have made their premises safe for a
child accompanied by a guardian Phipps v )ochester Corporation!.
/arnings for a warning to absolve an occupier from liability it must enable the visitor to be*reasonably safe s BH!a!!. The warning should be specific to the precise danger, more so if
the danger is hidden, and should ta$e into account the age of the visitor a child may not obey
a written warning!.
7)clusion notices act as a defence rather than as proof that there has been no breach of duty
as a warning does!.
'hec$ing the wor$ of an independent contractor s BH!b!! an occupier is only e)pected to
ma$e such chec$s as are reasonable. 'hec$ing a lift installation is too technical to chec$
Hasel&ine v $a-!, whereas chec$ing an icy step is not Woo&-ar& v #ayor of Hastings!.
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+nyone who can establish that they have suffered damage, caused by a defect in a product s
B(!!. 8nli$e in 9egligence, the claimant does not need to be a foreseeable victim.
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rivate 9uisance
rivate 9uisance is *an unlawful interference with a persons use or enjoyment of land, or
some right over, or in connection with it.
/hat is an interferenceF
4 types nuisance by encroachment on a neighbours land= nuisance by direct physical injury
to a neighbours land= nuisance by interference with a neighbours :uiet enjoyment of his
land Hunter v Canary Wharf!.
The latter must affect *ordinary comfort, not *elegant or dainty modes of living Walter v
%elfe!. oss of a view Al&re&1s Case!, and TA reception Hunter v Canary Wharf! are not
actionable interferences.
/hat is unlawfulF
*8nlawful means *substantial and unreasonable, rather than *criminal. The test is *what isreasonable according to the ordinary usages of man$ind living in society %e&leigh/$enfiel&
v O1Callaghan!. 7ncroachment e.g. overhanging tree branches! is automatically unlawful.
The court will consider; the fre:uency and timing of the interference= how long the
interference has e)isted= the level of the interference e.g. intensity of smell%noise!= the cause
of the interference.
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'reator of the nuisance he remains liable even if the land is now occupied by someone else.
'urrent @ccupier of the land liable for nuisance he creates or fails to repair, or those created
by his employees, independent contractors where the creation of nuisance was inevitable!, or
visitors%trespassers provided he adopts or continues it!.
andlord where the nuisance is the inevitable result of the letting *etley v Chitting race
trac$!, or it e)isted at the start of the letting and the landlord $new or ought to have $nown, or
has promised, but fails, to repair the nuisance.
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Tres*ass to $and
The *intentional direct interference with the claimants possession of land= actionable per se.
+ person may have implied permission to be on land, e.g. in a front garden while conducting
lawful business )obson v Hallett police officers!.
Types of Trespass
7ntering upon the claimants land.
+cting in e)cess of your permission to be on the claimants land if as$ed to leave and
failing to do so, or doing something outside the scope of your permission.
"ringing anything into direct contact with the land.
igns 'elsen v mperial
*obacco! and cranes Anchor Bre-house v Berkeley House! which hang over a claimants
land have been actionable in trespass.
Intentional +ct
It is not the trespass that must be intentional, or any harm that may result from it, but the +'T
itself.
Trespass can very occasionally be committed negligently League Against Cruel %ports Lt& v
%cott! if it was practically certain that trespass would be the result of the negligence. This was
more important because it allowed the granting of an injunction unavailable in 9egligence!.
/ho can sueF
+ claimant must be in possession of the land an owner-occupier, tenant, s:uatters e)cept
no claim against the actual owner!, "8T 9@T a lodger or hotel guest.
'ausation and Remoteness usual *but for test and 9I+ rules. Remoteness is governed by
the *direct conse:uences test in )e Polemis, where the defendant is liable for all the
conse:uences of his tort, even if unforeseeable. P)e Polemistest also applies to Trespass tothe ersonQ.
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