Tuesday 19 September

The first lecture … We began by looking at some general principles that are relevant to all torts:

A tort is a civil wrong in the sense that it is committed against an individual (including companies) rather than against the State.

The gist of tort law is that a person has certain interests which are protected by law. These interests can be protected by a court awarding a sum of money (damages) for infringement of a protected interest. Alternatively by the issue of an injunction, an order from a court to a defendant to either do or refrain from doing something. The protected interests include (i) personal security (ii) interest in property and (iii) economic interests.

Certain torts do not require fault, they are known as torts of strict liability, including defamation, trespass and Rylands v Fletcher:.

Sometimes the act or omission does not give rise to a cause of action, even though the defendant causes damage, for example, Tesco opens next door to a corner shop

The role of insurance is paramount. Without it the tort system would simply cease to operate

The two main objectives of tort law are compensation and deterrence. The deterrence can be towards an individual or of a more general nature.

Any one may sue in tort, providing that they have the legal capacity to do so. A minor may bring an action through a litigation friend, but his/her position as a defendant is less likely as they would not normally be able to satisfy a judgment.

Some people enjoy full or partial immunity form being sued, including:

The Queen – immune from suit.

Judges – acting within their legal capacity they are immune.

Corporations – companies can sue and be sued in their registered name. Unincorporated associations (e.g. golf clubs) generally lack legal personality, and you must, therefore, sue the individual.

Minors – a minor may bring an action through a litigation friend, but his/her position as a defendant is less likely as they would not normally be able to satisfy a judgment.

Husband and Wife – the LAW REFORM (HUSBAND and WIFE) ACT 1962 allows spouses to sue each other, but only at the discretion of the court.

Mentally ill – are liable except if the tort requires malice as an ingredient. He will not be liable if his actions are involuntary.

Joint Tortfeasors – each participant is separately liable for different injuries. Where there is but one injury the claimant can sue all or any, and each is liable for the full extent of the harm:

There is a tort/rule of strict liability. It is related to the tort of nuisance, but there is no need to prove fault. In 1994 it received its strongest attack yet, and only time will tell whether it retains its effect in English law.

Rylands v Fletcher [1868] – the defendant employed independent contractors to build a reservoir on his land, to supply water to his mill. The contractors discovered some disused mineshafts which, unknown to them, were connected to shafts on the claimants land. The contractors did not seal the shafts off, and when the reservoir filled water flowed down the mineshafts and flooded the claimants’ mine.

It was found that the defendant was not negligent, but Judge Blackburn stated:

“The person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape.”

The House of Lords approved this statement, but added a qualification that in order to be liable the defendant must have put his land to a non– natural use.

Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] – the House of Lords held that if there were an escape liability would arise only if the defendant knew or ought reasonably to have foreseen that damage would be caused if there were to be an escape.

The following were held not to have been liable:

Giles v Walker [1890] – thistle seeds (self sown)
Read v Lyons [1947] – injury in a munitions factory (no escape)
Smith v Kenrick [1849] – escape from a lake (naturally there)

Latest case is Transco plc v Stockport MBC [2004] – claimant alleged that escape of water from a pipe owned by the defendants damaged the claimant’s high pressure gas main. The pipe was abnormally large as it supplied a block of flats, and had leaked for quite a while, causing a build up of water which affected the gas main. The House of Lords unanimously decided to retain the rule as a special cause of nuisance covering isolated escapes, although there was no breach here as it wasn’t a non-natural use of land.

Does the rule extend to personal injury? Hale v Jennings [1938] suggests yes – ‘chair-o-plane’ case, whilst Transco plc v Stockport MBC [2004] (House of Lords) suggests otherwise.

Defences to Rylands v Fletcher include:

ACT OF A STRANGER over whom the defendant has no control.

Perry v Kendricks Transport [1956] – the defendant parked a coach on their car park and drained the petrol tank. The claimant was crossing land adjacent to the park when he was injured by an explosion caused by a small boy who had thrown a lit match into the petrol tank. An unknown person had removed the cap.

Rickards v Lothian [1913] – water from defendant’s premises flooded floor below, damaging goods. Escape caused by stranger turning tap on deliberately, so no liability

CONSENT of the claimant. He expressly or impliedly consents to the presence of the thing on the defendant’s property; there will be no liability unless negligence can be proved.

Peters v Prince of Wales Theatre (Birmingham) Ltd [1943] – the claimant leased a shop from the owners of the theatre, and it adjoined the theatre itself. The claimant’s shop flooded when sprinklers burst during the cold weather. It was held that there is an implied consent at the time the claimant took the lease.

ACT OF GOD. The escape is caused by natural forces and in circumstances which no human foresight can provide against.

Nichols v Marsland [1876] – the defendant had three artificial lakes on land caused by damming a natural stream. A thunderstorm accompanied by unprecedented rain caused the bank of a lake to burst, and the water destroyed four bridges belonging to the claimant. This was held to be an Act of God.

This has been since criticised in:

Greenock Corporation v Caledonia Railway [1917] – the application should be strictly limited and may apply in case of earthquakes, lightning or tornadoes.

STATUTORY AUTHORITY. Whether a statute confers a defence under Rylands v Fletcher is a question of construction of the statute – usually public utilities for the supply of water and electricity.

GENERAL DEFENCES
These apply generally, and are not restricted to Rylands v Fletcher. In reality, only volenti and contributory negligence are worth remembering.

MISTAKE. Generally not a defence, as mistake as to law or fact will not usually exclude a defendant from liability.

It is not a defence to trespass to land for a defendant to argue that he mistakenly thought that the land was his. It is the same in medical negligence, a defendant doctor cannot claim that he was mistaken in diagnosing a condition if the mistake amounted to negligence.

INEVITABLE ACCIDENT. An accident is inevitable if it was not intended by the defendant and could not be avoided by use of reasonable care. As it is for the claimant to establish fault, it is not really a defence.

Stanley v Powell [1891] – the claimant was a beater in a shooting party and was injured by a shot which had ricocheted off a tree. As there was no intention and no negligence there was no liability.

NECESSITY. It is usually raised in connection with actions for interference with persons or property. The defence is essentially that the defendant’s actions were necessary to prevent greater damage to the defendant or a third party.

Cope v Sharp [1912] – the defendant entered the claimant’s land to build a fire break to stop fire spreading to his bosses land where pheasants were sitting. The fire was extinguished before it reached the fire break and the owner sued for damages for trespass. The defence succeeded.

The courts are hesitant about allowing a defence of necessity as loss is inflicted on the claimant. For example:

Southwark London Borough Council v Williams [1971] – necessity is not a defence to squatting.

ACT OF STATE. An act is committed by a servant of the Crown which comes within his duties and upon which he is being sued.

Buron v Denman [1848] – the captain of a British warship set fire to a depot holding slaves in West Africa. The slaves escaped and the trader sued for trespass. As the captain’s instructions were to suppress the slave trade, the actions were within his duties and were later approved of by the Crown. There was no liability.

STATUTORY AUTHORITY. You can defend a tort by showing that there was a statutory authority permitting the wrong.

SELF DEFENCE. To defend one’s self, family or property. Only reasonable force may be used.