Tuesday 31 October 2006

We began by looking at the rules on VICARIOUS LIABILITY. Whilst the person who is actually responsible for the tort is always liable, policy dictates that sometimes another may be liable although he has not committed it. BOTH ARE LIABLE AS JOINT TORTFEASORS.

This is the doctrine of vicarious liability, and is most commonly seen in employer/employee relationships – although not exclusively so. Two ingredients are required:

(image placeholder)     A relationship between the parties to justify an imposition of liability
(image placeholder)     The tort committed must be ‘reflective of the relationship’, i.e. committed during the course of the employment.

WHO IS AN EMPLOYEE?
As opposed to an independent contractor. It is because of the difference in liability between the two that courts continue to experience difficulty. Where employment does not fall into a traditional pattern even the parties may not be aware of their employment relationship, e.g. casual workers.

CONTROL TEST: Yewens v Noakes [1880] – “An employee was anyone subject to the command of the master as to the manner he shall do the work.”

BUSINESS INTEGRATION/ORGANISATION TEST: Stevenson, Jordan and Harrison Ltd v McDonald and Evans [1952] – “An employee is one who does his work as an integral part of the business.”

Whittaker v Ministry of Pensions [1967] a trapeze artist was an employee.

MULTIPLE TEST: Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] – look at all the circumstances of the case, rather than looking for one single factor. Judge McKenna said that there are three conditions for the existence of a contract of employment:

1. The employee agrees to provide work and skill in return for wage


2. The employee agrees expressly or impliedly to be subject of his employer’s control


3. Other terms of the contract are consistent with there being a contract of employment.

These three factors are not all the courts will look at. If the parties specify that a person will be self-employed and the terms of the contract reflect self-employed status, the contract is regarded as a contract for services.

Hall (Inspector of Taxes) v Lorimer [1994] – Lorimer was a freelance vision mixer, working under short term contracts for twenty television companies. All of the contracts were for one to ten days. He worked in their studios and used their equipment. He had no financial interest in the projects other than a fee for each contract. He was registered for VAT. The bookings were taken by telephone, and he kept all of the paperwork in an office at his home.

Is he an employee or an independent contractor? Look at the Ready Mixed Concrete case, which is what the House of Lords did to decide that he was an independent contractor. There is no single test to determine whether a tax payer is working under a series of contracts or is in business on his own account.

LENDING AN EMPLOYEE. Employer A lends employee B to employer C. B commits a tort within the course of his employment. Who is vicariously liable, A or C?: Mersey Docks and Harbour Board v Coggins and Griffiths (Liverpool) Ltd [1947] – the burden of proof is on the permanent employer (A) to show that he was not the employer. This is done by reference to:

• who pays the wages to B?


• who can sack B?


• was machinery hired with B?

Viasystems (Tyneside) v Thermal Transfer [2005] the first defendants were contracted to install air conditioning in the claimant’s factory. They contracted out some of the work to the second defendants (Darwell), who contracted with the third defendants (CAT) to provide the labour. CAT provided a fitter and a fitter’s mate, who worked under the general supervision of a senior fitter contracted to Darwell directly. A flood occurred through the negligence of the fitter’s mate, and the question was whether Darwell and/or CAT were vicariously liable. After a careful examination of the authorities (including the textbooks and several foreign decisions), May LJ said there was no reason in principle why both employers of a “loaned employee” should not be vicariously liable, if both had some measure of control over his activities: such was the case here. Rix LJ agreed, and said that in such cases the relevant employers (who might be liable without fault on their part) would automatically bear equal liability

The Court of Appeal has confirmed that a company can be vicariously liable for the acts of another company’s employee if it exercises sufficient control over the employee: Hawley v Luminar Leisure Limited and Others [2006].

X was employed as a door steward by a security company (ASE) which provided security services to Luminar at one its nightclubs.  The claimant was a member of the public and was assaulted by X outside the nightclub where X was working.  The claimant issued proceedings, alleging that Luminar and ASE were each vicariously liable for the negligent acts of X. The High Court found that Luminar was vicariously liable for the conduct of X and was liable to the claimant for the injuries caused.  Luminar appealed.

The Court of Appeal considered that although ASE employed, paid and had the power to dismiss X, Luminar acted as if it was the employer and exercised many of the powers of the general employer.  Luminar’s manager was in overall charge of security and Luminar exercised detailed control not only over what X did but also over how he did it.  X took his orders from Luminar’s manager and was subject to Luminar’s standards of service and code of conduct.

The Court of Appeal was quite satisfied that it had been open to the judge on the facts to find that Luminar had become X’s temporary deemed employer for the purposes of vicarious liability and was consequently liable to the claimant.

The Court of Appeal was also asked to make a finding that Luminar and ASE were both vicariously liable for X’s acts, following the Court of Appeal’s decision in Viasystems  v Thermal Transfer (above) that it is possible for two employers to be vicariously liable for the negligent act of an employee.  The Court of Appeal declined to make a finding of dual vicarious liability on the basis that the facts in this case were different from the Viasystems case.  In Viasystems both employers had men supervising the negligent employee.  In this case, ASE had no immediate or effective control over X.

IN THE COURSE OF HIS EMPLOYMENT.

Having established an employer/employee relationship we now have to decide whether the employee is acting in the course of the employment.

This has proved to be a very controversial area, with many cases. Each is a question of fact. The courts have often used a test suggested by Salmond. An act is in the course of employment if it is either:

• A wrongful act authorised by the employer, or


• A wrong and unauthorised mode of doing some act authorised by the employer.

What happens if an employee is told not to do an act, and then commits a tort? Is the employer responsible?

Limpus v London General Omnibus [1862] – the defendant prohibited drivers from racing or obstructing other buses. The defendant obstructed the claimant’s bus, an accident occurred and several passengers were injured. The defendant (employer) is liable as he was doing an authorised act (in an unauthorised manner) as (b) above. The driver is still doing what he is paid to do – drive a bus.

There are a lot of cases involving giving lifts to people.

Conway v George Wimpey and Co [1951] – the defendant provided transport for workers on a site. The driver was told not to give lifts to others. The claimant is one such ‘other’ and is injured due to the driver’s negligence. There is no vicarious liability, the act was unauthorised.

COMPARE

Rose v Plenty [1976] – the defendant expressly prohibited employees from permitting boys to ride on milk floats. The employee does so, and due to his negligence the boy is injured. The dairy are vicariously liable!

There is no real answer for this, except that in Conway there was no benefit to the employer whereas in Rose the claimant was helping with the milk deliveries.
DETOURS
A deviation from the authorised route is made, and an accident occurred. Still within the course of employment? Or on a frolic of their own?

Whitman v Pearson [1868] – an employee goes home for lunch with his horse and cart, against the employer’s instructions. The employer is vicariously liable for damage done by the horse, he is still within the course of his employment.

COMPARE

Storey v Ashton [1869] – after the deliveries had finished for the day the driver went to visit his brother– in– law. This was a new and independent journey. It had nothing to do with his employment and, therefore, he was outside the course of his employment.

GOING TO OR FROM WORK?

Smith v Stages [1989] – provided the employee is being paid for it or he is provided with company transport, an employer will be vicariously liable unless an alternative agreement exists. The general rule is that it is not within the course of employment.

The fact that an employee is doing his job NEGLIGENTLY doesn’t take him outside the course of his employment: Century Insurance Co v Northern Ireland Road Transport Board [1942] – a petrol tanker driver is filling a tanks when he throws down a lighted match! There was a fire and an explosion.

Where an employee INTENTIONALLY (as opposed to NEGLIGENTLY) does an unlawful act the courts adopt a much more restrictive approach: Heasmans v Clarity Cleaning [1987] – an employer was not vicariously liable where an employee made £1,500 worth of telephone calls while doing a night time cleaning job.

CRIMINAL ACTS
A criminal act by an employee is likely to take the form of an assault or dishonesty.

Assaults: the courts are reluctant to find an employer vicariously liable.

Dishonesty: if the act was committed for the employee’s benefit will not take him outside the course of his employment.

The questions to ask are:

• What was the employee paid to do?, and


• What was he doing at the time of the offence?

Lloyd v Grace Smith and Co [1912] – a solicitor’s clerk was held to have acted within the scope of his employment when he fraudulently induced a client to convey properties to him. As the clerk was paid to do conveyancing he was within the course of his employment.

Lister v Hesley Hall [2001] – a number of former pupils sued in respect of sexual abuse by the warden of a residential school. The House of Lords said there had been a close connection between the warden’s acts and his employment at the school, and it would not be unfair or unjust to hold the defendants vicariously liable.

As employers and employees are joint tortfeasors, a potential claimant will invariably choose to sue the employer and he has more money. The employer can sue the employee under s1(1) CIVIL LIABILITY (CONTRIBUTION) ACT 1978. This previously existed at common law in:

Lister v Romford Ice and Cold Storage [1957] – a father and son were fellow employees. The father was injured as a result of the son’s negligence. The father sued the employer in negligence, their insurers paid out and then sued the son to recover from him as he was in breach of his duty. This right of action is called subrogation, and it succeeded.

Can you spot the flaw? – The employer has paid a premium to an insurer to take a non– existent risk. Having your cake and eating it. A gentlemen’s agreement now exists, and the insurers do not attempt to recover money from the employee.

INDEPENDENT CONTRACTORS
The basic rule is that an employer is not liable as he has no control over him.

Morgan v Incorporated Council of the Girls Friendly Society [1936] – the claimant fell down a lift shaft left open by an independent contractor. The employer was held not to be liable, so what should the claimant do? Sue the contractor.

SITUATIONS WHERE THE EMPLOYER WILL BE LIABLE

• He negligently selects an independent contractor


• He authorises the independent contractor to commit a tort


• There is a non-delegable duty which cannot be discharged by entrusting the work to independent contractors, for example:


• Where the statute imposes a duty on an employer, e.g. Health and Safety at Work Act 1974

TRESPASS TO LAND

Trespass to land is an unjustifiable interference with possession of land.

Like other forms of trespass the injury must be direct and the tort is actionable per se. It is no defence that the defendant had lost his way or believed the land to be his. Trespass can be distinguished from nuisance as the interference in trespass must be direct whereas the interference in nuisance may be indirect or consequential.

Trespass by wrongful entry
The commonest form of trespass; the slightest crossing of the boundary will suffice, for example putting a hand through a window.

A person who uses a highway for any purpose other than that of passage, re-passage and related incidental uses becomes a trespasser against the owners of the subsoil: Hickman v Maisey [1900]. The highway was used by a racing tout to observe the performance of horses in training.

Where the defendant’s entry was by authority of law as opposed to the claimant’s authority and the defendant subsequently abuses that right then he becomes a trespasser ab initio: Six Carpenters Case [1610]. The subsequent act must be wrongful and the rule does not apply to an omission.

The modern application of the doctrine lies in the use of police search warrants, where modern cases have held that a partial abuse of an authority does not render everything done under it unlawful - Elias v Pasmore [1934].

As a general rule the person who owns the land also owns the sky above and the subsoil beneath. Trespass can therefore be committed by digging a tunnel under land or by interfering with the air space:

Kelsen v Imperial Tobacco Co. [1957] – it was held to be trespass to erect a sign on the defendant’s property which projected over the claimants property.

Bernstein v Skyviews Ltd [1978] – it was held not to be a trespass to fly an aircraft over land at such a height that would not cause unreasonable interference with any use to which the land might be put. Neither was it trespass to take photographs of the claimants property from a reasonable height.

Trespass by remaining on land
A person commits trespass if he remains on land when his right of entry has ceased. A reasonable time must be granted to the licensee to remove himself and his property from the land. If the licence is contractual, for example to enter a cinema and watch the showing of a film, then it is irrevocable until the purpose for which it was granted and paid for is achieved, unless the licensee breaks the terms of the contract.

Trespass by placing objects on land
It is a trespass to place any chattel on the claimants land. Trespass is continuing so long as the offending article remains on the land. Successive actions will lie from day to day until the article is removed:
     
Holmes v Wilson [1839] – the defendants erected buttresses to support a sinking road, necessitating trespass onto the claimant’s land. The claimant sued & recovered damages, and the defendants failed to remove the buttresses so the claimant sued again!

Possession
Only the person in possession of the land can bring the action.  Possession includes entitlement to immediate and exclusive possession. A landlord cannot therefore sue for trespass (as the tenant is the person in possession). A lodger or boarder could not bring the action.
     
DEFENCES
Licence - entering with express or implied permission. Any member of the public has an implied licence to approach premises with a legitimate enquiry, even if that enquiry has nothing to do with the occupier’s business or interests. In this respect a police officer without a search warrant is in the same position as a member of the public. This defence exists unless the defendant has exceeded the terms of the licence or the claimant has legally revoked the licence. Certain notices (Keep Out) or clear words used by the occupier will indicate that the licence has been revoked.
Justification by law. Acts which would otherwise be trespass are not so when justification is provided by law. For example, the police have powers under THE POLICE AND CRIMINAL EVIDENCE ACT 1984 to enter premises and search them.
Necessity. It is a defence to show that it was necessary for the defendant to enter the claimants land. In Rigby v Chief Constable Of Northampton [1985] – it was held that necessity was a defence provided that there was no negligence on the part of the defendant in contributing to the state of necessity, thus the action for trespass failed. The defendants had fired CS gas into the claimants shop and burnt the shop out. The defence of necessity failed in the negligence action as the police had been negligent in not having any fire fighting equipment standing by at the particular time when they chose to use the CS gas. (See also 20.6).

REMEDIES
Re-entry and self-help. The person entitled to possession can enter or re-enter the premises. He must do so in a peaceful manner, otherwise he may commit a criminal offence under s6 CRIMINAL LAW ACT 1977 - use/threat of violence to secure entry.

Ejectment. A person who has been dispossessed may bring an action for ejectment where he can establish an immediate right to possession. The defendant need only assert his possession, leaving the claimant to show that his title is better than the defendant’s.

Mesne profits. An action lies for the damage which the claimant has suffered through being out of possession of land. This includes profits taken by the defendant during his occupation and damages for deterioration and the reasonable costs of getting possession.

Distress damage feasant. Where a chattel is unlawfully on the claimants land and has caused actual damage, then the claimant may retain the chattel until the damage has been paid for. A football kicked through a window may be retained until the damaged window is paid for.

Injunction. In cases of threatened trespass or where the trespass is of a continuing nature the claimant may seek an injunction. The claimant is prima facie entitled to an injunction, but will be refused where the interference is trivial.

Damages. If the trespass is trivial the damages will be nominal. If damage is done to the land, then the measure of damages is usually the diminution in value of the land. The cost of reinstatement, for example rebuilding, will sometimes be the correct measure, because there is less flexibility in the market in land and buildings than in second-hand chattels, such as cars. Exemplary damages have been awarded in an appropriate case.

What follows is the questions I handed out for discussion:

Kate is an office cleaner employed by Larry. She is asked to clean the flat of Larry’s friend, Mike, for a month. Larry and Mike agree that Kate’s wages are to be paid by Mike but national insurance contributions are to be paid by Larry. The cleaning equipment to be used by Kate is provided by Mike. Kate carelessly leaves a bar of soap on Mike’s bathroom floor and a visitor, Norma, steps on it and is injured.

Advise Norma.


Jane, a television producer, used her home in Birmingham as an office but worked all over the country for television companies. Jane provided her own car but all the equipment she needed was provided by the companies; she could use staff facilities when on their premises; they fixed the rate of pay; contracts lasted from a few days to three months. Whilst on a contract with CBB television, Jane threw a lighted cigarette end into a rubbish bin, causing the rubbish to ignite and to burn Kevin, a cameraman, who was standing nearby. The CBB had a strict “no smoking” policy.

Advise Kevin about any claims he may have in tort against Jane or the CBB.


Cozihome Ltd are building a number of houses on a site surrounded by fencing. Just outside the entrance to the site there is a site office on which there is a notice stating:

“Warning: Dangerous Site.  No liability for injuries accepted. All visitors must report to the site office before entering site.”

Diana visits the site to try to sell her interior designs to the architect responsible for the houses. She sees the notice but, instead of reporting to the office, she asks Edward, who is driving an excavator, to give her a lift to where the architect is working. Edward agrees but drives carelessly into a large hole which Cozihome have forgotten to fence off. Diana suffers head injuries which would have been avoided if she had been wearing a safety helmet. A statutory regulation provides that an employer ‘must ensure that all workers on a building site wear safety helmets’.  Edward’s contract with Cozihome states that he is a self-employed excavator driver and that he must not give anyone a lift on an excavator.

Advise Diana who wishes to sue Cozihome Ltd for her injuries.

Next week we will then look at trespass to the person.

Tuesday 17 October 2006

OCCUPIERS LIABILITY
The law is governed by the OCCUPIERS LIABILITY ACTS 1957 and 1984 and can be divided into three areas:

Ø A liability of an occupier of premises to a visitor or a trespasser
Ø A liability of a landlord for defects in the premises
Ø A liability of a person involved in the construction process.

It concerns the duty of an occupier, whether or not he is the owner, towards all who enter on his land.

Lawful visitor – 1957 Act applies

Trespasser – 1984 Act applies

Neither statute provides a definition of an occupier, look for the person who CONTROLS the premises: Wheat v Lacon and Co [1966].

In Harris v Birkenhead Corporation [1976] the defendant issues a compulsory purchase order over a house, but when it was vacated they did nothing to board it up. The claimant (four years old) entered through an insecure front door and fell from a second floor window. The council was held to be the occupier, even though they weren’t in actual physical possession. The local authority had the legal right to control the premises to the exclusion of the former owner and were in the best position to avoid accidents.

The 1957 Act imposes a common duty of care in respect of all LAWFUL VISITORS:

“A duty to take such care as in all the circumstances of the case is reasonable to see that the visitor is reasonably safe in using the premises for which he is invited or permitted to be there.”

Who is the visitor?:

EXPRESSLY INVITED
IMPLIED INVITATION
CONTRACT WITH THE OCCUPIER
CONTRACT WITH A THIRD PARTY
RIGHT CONFERRED BY LAW

Limitation on Permission
“Come in, but don’t ...”

PART OF THE BUILDING ONLY
PARTICULAR TIME
PARTICULAR PURPOSE

The Common Duty of Care
The occupier owes a ‘common duty of care’ to all visitors, except where s2(1) stipulates that he is free to and does extend, restrict, modify or exclude the duty to the visitor by agreement or otherwise. Thus:

VISITOR must be safe.
TAKE CARE IS AS REASONABLE IN SUCH CIRCUMSTANCES.
FOR THE PURPOSES FOR WHICH HE WAS INVITED TO BE THERE.

Special Liability
The Act provides four specific cases where an appropriate standard of care will be required:

s2(3)(a)
CHILDREN
s2(3)(b)
EXERCISE OF A CALLING
s2(4)(a)
WARNING OF DANGER
s2(4)(b)
INDEPENDENT CONTRACTORS

CHILDREN:

“An occupier must be prepared for children to be less careful than adults. If the occupier allows a child to enter the premises, then the premises must be reasonably safe for a child of that age.”

Glasgow Corporation v Taylor [1922] – a seven-year old claimant died after eating poisonous berries from a tree in a park. It was not fenced in, and there was no warning. The defendant was held to be liable.

Phipps v Rochester Corporation [1955] – the very young should have parents to supervise them. Liability may be shared between the parents and the occupier.

British Rail v Herrington [1972] – the House of Lords decided that a duty of care was owed to child trespassers through a “basic duty of common humanity”.

Jolley v Sutton LBC [1998] – a small boat was abandoned in the grounds of a block of flats owned and occupied by the defendant local authority. The boat, which was left on a grass area where children played, became derelict and rotten. The claimant, a fourteen-year-old boy, attempted to renovate the boat with a friend, and jacked it up in order to repair the hull. He was under the boat when it fell on him, causing severe injuries. The House of Lords held that the ingenuity of children in finding ways of doing mischief to themselves or others should never be underestimated. For those reasons, the judge had been correct to describe the risks as being one that children would meddle with the boat at the risk of some physical injury. Moreover, his observation that play could take the form of mimicking adult behaviour was a perceptive one, and he was justified in holding that an accident of the type which had occurred was reasonably foreseeable.

EXERCISE OF CALLING:

“An occupier may expect that a person, in the exercise of their calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.”

Roles v Nathan [1963] – two chimney sweeps were killed by carbon monoxide poisoning whilst attempting to seal a sweep hole in the chimney of a boiler. There was no liability. An occupier can reasonably expect a sweep to be aware of the dangers arising from a fire.

WARNING OF DANGER:

“Where damage is caused to a visitor by a danger of which he has 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 their visitor to be reasonably safe.”

Roles – as above. The sweeps had been warned.

INDEPENDENT CONTRACTOR:

“Where damage is caused to a visitor by a danger due to faulty execution of any work or construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.”

Woodward v Mayor of Hastings [1945] – the claimant (a child) slipped on a snow covered step at school. It had been negligently swept by a cleaner. She was an independent contractor. She was held to be liable, as was the occupiers (the local authority) as they should have checked that the work had been properly done.

Haseldine v Daw [1941] – if the job is of a technical nature, for example lift maintenance, the occupier may have discharged the duty by entrusting it to a competent contractor. The claimant died when the lift hit the bottom of the shaft.

Avoiding Liability
An occupier can try to limit or exclude liability by a notice or term in a contract under s2(1) 1957 Act. However, the UNFAIR CONTRACT TERMS ACT 1977 will strike it out if it is not reasonable. You see them every day in car parks, shops, cinemas and restaurants.

Defences
The defences are:

Volenti
Contributory Negligence
OCCUPIERS LIABILITY ACT 1984
The common law was hostile to trespassers until 1972 – British Rail v Herrington [1972].

The 1984 Act applies to persons OTHER THAN VISITORS, s1(1)(a) –

Trespassers (including burglars)
Persons entering land under an access agreement
Persons lawfully exercising a right of way

The duty owed is if the occupier:

knows of the danger (or has reasonable grounds to know it exists),
that such persons are on or may come to his premises,
and the risk is one against which he may reasonably be expected to offer some protection[1]

The duty is to take such care as is reasonable in the circumstances to see that he doesn’t suffer injury on the premises by reason of the danger concerned.

Tomlinson v Congleton BC [2003] – an eighteen-year-old youth, the claimant, went to a park owned by the defendant council in which a disused quarry had been turned into a lake. There were warning signs around the lake, but the claimant ignored these and dived into the lake, striking his head on an underwater obstacle and suffering severe injuries. The Court of Appeal, by a 2-1 majority found that the defendant’s were liable in damages under the 1984 Act, subject to a two-thirds deduction for the claimant’s contributory negligence. Although they had forbidden swimming in the lake, had placed warning signs, and had park rangers who occasionally gave oral warnings, they knew (and had known for some ten years) that these warnings and prohibitions were often ignored. They had not taken reasonable steps to ensure that unauthorised bathers (of whom they knew) did not suffer injury by reason of the dangers (of which also they knew).

The House of Lords reversed the decision as the risk was an obvious one to an adult.

Ratcliffe v McConnell [1998] – claimant dived into an empty swimming pool at night, severely injuring himself. He had climbed over the gates of the open-air pool, and it was closed for the winter. It was held that there was no liability – he was also volenti.

Between 1972 (British Rail v Herrington) and 1984 no adult trespasser succeeded in a claim. The rules on warnings and volenti explain why.

DEFECTIVE PREMISES
For the sake of completeness, s4 DEFECTIVE PREMISES ACT 1972 outlines the duty of care owed by a landlord to his tenant, lawful visitors, trespassers and people outside the premises.

The duty is applicable where the landlord knows of the defect, or ought reasonably to have known of it, to take reasonable care to see that those who might reasonably be affected by the defects are reasonably safe from personal injury or damage to property.

The Act also refers to builders in not building defective premises likely to cause harm or injury.
THE TORT OF NUISANCE
There are two types:

PRIVATE – a tort
PUBLIC – a crime, always. It is a tort by virtue of a common law rule that a person who suffers SPECIAL DAMAGE may bring an action in tort.

Private Nuisance
The unreasonable interference with another’s enjoyment of his property, e.g.

Neighbour disputes
Noisy parties
Bonfires
Late night noise

The tort also extends to indirect damage caused to the property or things on it.

Who Can Sue?
The claimant must have an interest in the land: Malone v Laskey [1907] – the wife of a tenant was injured by a cistern dislodged by vibrations caused by the defendant. The action failed as she had no interest in the land.

Hunter and Others v Canary Wharf Ltd and London Docklands Development Corporation [1997] – the House of Lords confirmed the position of Malone v Laskey.

What Conduct amounts to a Nuisance?

This is a balancing act between the defendant’s right to use his land as he wishes, and the claimant’s right to enjoy his land without interference. Any list is merely arbitrary, and in Hunter and Others v Canary Wharf Ltd and London Docklands Development Corporation [1997] it was held that interference with a television signal is not actionable in nuisance.

Private nuisance is the tort of:

unlawful interference with someone else’s use or enjoyment of his land,
or indirect damage to his land or to the things on it.

The claimant must prove:

The distinction between nuisances causing material damage to property and those causing personal discomfort was drawn in the leading case of St Helen’s Smelting Co v Tipping [1865] in which Tipping sued successfully when his trees and plants were damaged by fumes from a copper smelting works.

The House of Lords stated that if material damage, rather than personal discomfort, is suffered, the locality is of less significance. If the claimant moves to an industrial area, and finds that the emissions from the local factory kill his plants or damage the brickwork of his house, it will not generally be a defence for the defendant to say that the claimant should have expected this in such an area. A landowner has a right to enjoy his property free of physical damage. If, on the other hand, he moves to a busy area and complains that he cannot sleep as well as he could in the quiet countryside, the court will take locality into account.

The interference was indirect. Direct interference, for example by putting something on someone’s land, is trespass rather than nuisance, although there is some overlap.

Kelsen v Imperial Tobacco Co Ltd [1957] – a sign which projected eight inches into the air space above the claimants shop was held to constitute a trespass as well as a nuisance. Nuisance, rather than trespass, generally occurs when the defendant does something on his own property that affects the claimants property, such as creating a noise or fumes.

In deciding what is reasonable, the following factors are taken into account:

Character of the neighbourhood.
Abnormal sensitivity
The existence of malice
Duration of the nuisance
Usefulness of the defendant’s conduct
Fault

CHARACTER OF THE NEIGHBOURHOOD

St Helens Smelting Co v Tipping [1865] – the claimant bought an estate near to the defendant’s copper smelting works. Fumes damaged trees and crops. The defendant claimed he isn’t liable as he operated in an industrial area. The House of Lords rejected the assertion.

Sturges v Bridgman [1879] – for more than twenty years a confectioner had used industrial pestle and mortars. There was no problem until the claimant (a doctor) built an extension consulting room, adjacent to the defendant’s premises. Noise and vibration were then a nuisance. The claimant succeeded in his action as the area was largely doctor’s consulting rooms. “That which is a nuisance in Belgravia wouldn’t necessarily be so in Bermondsey”.

That makes it difficult for those who live in an industrial area to succeed.

ABNORMAL SENSITIVITY

If the damage is due more to the sensitivity of the claimant’s property than to the defendant’s conduct, no nuisance is committed.

Robinson v Kilvert [1889] – the claimant occupied the ground floor of the defendant’s premises, and used it to store brown paper. Heat caused by the defendant’s manufacturing process damaged the paper. The action failed as the damage was due more to the sensitivity of the paper than the defendant’s activities.

McKinnon Industries v Walker [1951] – sulphur dioxide damaged the Crown Court’s orchids, but the claimant succeeds because it would have damage any plants.

MALICE

Bad motive or malice by a defendant may make otherwise reasonable conduct, unreasonable and a nuisance.

Christie and Davey [1893] – the claimant and defendant lived in adjoining houses. The claimant gave music lessons in his house to the annoyance of the defendant. His response was to bang tin trays together and shout during the lessons. The claimant gained an injunction due to the malice of the defendant.

Hollywood Silver Fox Farm v Emmett [1936] – silver foxes will not mate if it is noisy, and make a hell of a row themselves when they do mate! The defendant arranged for guns to be fired on his own land, close to the claimant’s farm. Malice ensured that the claimant’s action succeeded.

However, if you are doing what you are entitled to do, you can be as malicious as you like:

Bradford Corporation v Pickles [1895] – the defendant obstructed water percolating through his land in a deliberate attempt to stop it reaching a reservoir belonging to the corporation, with a view to forcing them to buy his land. As the corporation had no right to the water, the malicious act didn’t make it a nuisance.

DURATION OF NUISANCE

The longer the interference continues the more likely it is to be unreasonable and vice versa. It is a common argument in building work cases; ‘one off’s’ won’t do as the act complained of must be continuous.

Bolton v Stone [1949] – the cricket ball that was hit out of the ground only six times in seventeen years.

USEFULNESS OF THE DEFENDANT’S CONDUCT – (PUBLIC UTILITY)

The defendant’s conduct is useful to such an extent as to outweigh the nuisance caused. Rail or road repairs, for instance.

Miller v Jackson [1977] – cricket balls frequently went into the claimant’s garden from an adjacent cricket club, despite the best endeavours of the club. The Court of Appeal held 2– 1 that a nuisance was committed, but refused an injunction by 2– 1 on the grounds of public utility. The utility of the club outweighed the claimant’s interest.

FAULT

It is not necessary to show negligence on the part of the defendant, otherwise the tort of nuisance would become redundant.

Consider a hosuing estate built next to a factory that has the latest state-of-the-art pollution control

Foul smells, alleged by the housing residents to be a nuisance and/or negligence.

Negligence

# Has the defendant taken all reasonable care?
# Balance interests of parties using the tests just discussed.
# New equipment, properly maintained?
# Question to ask is whether the defendant has acted reasonably, not whether he used all reasonable care.
# Action fails

If court finds that the defendant’s activity was unreasonable an injunction in nuisance could be granted.

Who can be Sued?

The creator of the nuisance
An occupier of land
A landlord – occasionally

Defences
PRESCRIPTION. In an action for private nuisance it is a defence to show that the nuisance has been actionable for twenty years and the claimant was aware.

Sturges v Bridgman [1879] – the doctors consulting room case on locality. Unable to claim prescription as the nuisance hadn’t lasted that long; the nuisance had not begun until the doctor had extended his waiting room, and that was in 1873.

STATUTORY AUTHORITY. You are allowed to commit the nuisance by virtue of an Act or Parliament, providing you aren’t negligent. For example, railways causing noise by smoke, noise and vibration.

Planning permission – these operate through delegated powers within a statutory framework. Sometimes these permissions are strategic in their character. This means that the planning permission can alter the character of a neighbourhood to such an extent that what would previously have been a public nuisance may not be so after the change of use.

Other Issues – Not Defences
COMING TO THE NUISANCE – “I was here first”. The claimant is aware of the nuisance when he moved to the area. Not relevant.

Sturges v Bridgman [1879] – consulting room again.

Miller v Jackson [1977] – the cricket ball in the garden case (Public Utility).

USEFULNESS – not a defence. It is a question of public utility as a defence, rather than a factor towards reasonableness.

Adams v Ursell [1913] – the defendant opens a fish and chip shop in a ‘posh’ part of the street. An application for an injunction was made on nuisance grounds. The defendant argued that it would cause hardship to his business and the ‘less well off’. The claim was rejected, usefulness is not a defence.

Remedies
INJUNCTION. An equitable remedy where damages is of no use. It stops the nuisance.
DAMAGES. Where it isn’t possible to grant an injunction. The claimant shows that his property value has been diminished as a result of the nuisance. It cannot be too remote.
ABATEMENT. It is a form of self help. The claimant is given permission to abate the nuisance, e.g. lop off a branch of a tree and enter the defendant’s land in order to do so. Rarely given

PUBLIC NUISANCE
There is no need for a claimant to have an interest in land. It is always a crime capable of being punished, e.g. breach of the CLEAN AIR ACT 1956. Obstructing the free passage of a highway is an excellent example. A definition comes from:

Attorney General v PYA Quarries [1957] – quarrying operations conducted in such a way that residents were affected by dust and vibration from explosions. The case provides a definition:

“a public nuisance is one which materially affects the reasonable comfort and convenience of the life of a class of Her Majesty’s subjects”.

That’s the definition, but in order to sue you must show that you have suffered SPECIAL DAMAGE, i.e. over and above that suffered by the rest of that class of persons.

Castle v St Augustine Links [1922] – the claimant was driving his car when he was struck by a golf ball from the 15th tee of the defendant’s golf course. Balls often went over the highway. The siting of the tee amounted to a nuisance. The class of persons affected are highway users, the claimant has suffered special damages and, therefore, the defendant is liable.

The latest case of any importance is Wandsworth LBC v Railtrack plc [2001] – droppings from uninvited feral pigeons, roosting under a railway bridge, that created a hazard over the footpath and to pedestrians constituted a public nuisance. The owner of the bridge who had the knowledge of the nuisance and the resources to abate it but failed to do so was liable in nuisance. Council taxpayers were not to foot the bill of cleaning the fouling even if the proliferation of pigeons might have been encouraged by some local residents.

Tuesday 10 October 2006 (2)

The second occasion where the burden of proof is effectively reversed is RES IPSA LOQUITUR: the thing speaks for itself.

The best example comes from the case of:Scott v London and St Katherines Docks [1865] – the claimant was passing the defendant’s warehouse when six sacks of sugar fell on him, causing him injury. The Judge at first instance found for the defendant as there was a lack of evidence as to negligence, but the Court of Appeal ordered a new trial. The situation applies where:

Ø It is so improbable that the action could happen without the negligence of the defendant
Ø The defendant had control over the events
Ø The defendant had means of knowledge denied to the claimant

CAUSATION is the third ingredient of negligence. It occurs on two levels:

Causation in Law
Causation in Fact

THE “BUT FOR” TEST – FACTUAL

Whether the damage would have been caused but for the breach of duty.

Barnett v Chelsea and Kensington Hospital Management Committee [1969] – the husband of the claimant went to the hospital casualty department complaining of vomiting. The doctor refused to examine him and told him to visit his own doctor the following day. He died five hours later of arsenic poisoning. It is evident that:

Ø The doctor owed the deceased a duty of care
Ø The defendant had breached that duty by not examining him

Yet there was no liability. Even if the examination had taken place he would have died before diagnosis and treatment could have been carried out. As the deceased would have died regardless of the breach, the breach was not the cause of the death.

The problem of proving a breach of a duty where more than one defendant may have caused the damage complained of was the subject of the important House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd [2002]. In conjoined appeals covering a number of workers who had contracted mesothelioma during a time in which they had worked for more than one employer, the Court of Appeal said no liability attached to any of the employers as the claimants could not prove on the balance of probabilities the period of employment in which they inhaled the asbestos fibre which started the disease. The House of Lords said that the claimant can show that each employer’s negligence materially increased the risk of their contracting the disease. The injustice of denying a claimant a remedy outweighs any injustice caused by holding the defendant (who had been proven negligent) liable for injuries for which they might not have been responsible.

A later case was to reverse the decision, but it is restored to its present position by the Competition Act 2006, so the above decision is good law.

The test usually presents no difficulties, except:

PRE– EXISTING CONDITION. If damage is caused to the claimant due to a pre– existing condition rather than the negligence of the defendant, then the defendant is not liable for the full extent of the damage.

Cutler v Vauxhall Motors [1971] – the claimant grazed his ankle in an accident where the defendant was negligent. The claimant had a condition affecting the veins in his legs and an ulcer formed as a result. He was entitled to recover damages for the graze, but nothing further due to the pre-existing condition

OMISSIONS. Apparent in cases on industrial safety equipment.

McWilliams v Sir William Arrol and Co. Ltd [1962] – the claimant, a steel erector, fell to his death. He was not wearing his safety belt. The defendant gave evidence admitting a breach of their statutory duty in not supplying a safety belt, but submitted that the claimant would not have worn it in any event. The defendant was not liable as it was probable that the claimant would not have worn the belt and. therefore, would still have fallen. The burden of proof was on the claimant to show that the defendant’s breach of duty is a cause of death, and it was not established here.

MULTIPLE CAUSES. The claimant’s damage is as a result of more than one cause. The ‘but for’ test doesn’t provide an answer. For example:

A and B simultaneously fire guns, and C is struck by bullets from both guns. Applying the ‘but for’ test means that neither is liable. This is unjust, so both are liable.

Baker v Willoughby [1970] – the claimant took a new job after a road accident. In his new job he was subsequently shot in an armed robbery in the same (left) leg that was injured in the road accident. The leg was amputated. The defendant claimed that his liability was reduced towards the claimant because the amputation resulted from a shooting for which he could not be held responsible. The case went to the House of Lords. The argument was rejected as the claimant is being compensated not for the physical injury itself, but for the loss suffered as a result of that injury.

COMPARE

Jobling v Associated Dairies [1982] – the claimant suffers a back injury as a result of the defendant’s breach of duty. It had occurred in 1973. The claimant had to take a lower paid job, and his income had been reduced by fifty percent. Before the trial in 1979 the claimant was found to be suffering from an unrelated back disease, rendering him totally unfit to work from 1976. The House of Lords limited the defendant’s liability to the period before the onset of disease. They criticised the reasoning in Baker, but did not overrule it.

This can be explained by way of a graph:

Tort Committed
2nd tort committed
The defendant’s liability is not reduced

Tort Committed
2nd act – not a tort, e.g. illness
The defendant’s liability is reduced
RECOVERABLE LOSS
The third element, and policy considerations will affect the outcome as the court does not wish to impose too heavy a burden on the defendant or his insurers.

The basic test for remoteness of damage remained until 1961 and was then changed by a Privy Council decision. The cases are:

Re Polemis [1921] – still provides the remoteness test in other torts
Wagon Mound No. 1 [1961] – provides the remoteness test in negligence

Polemis – the charterers of a ship loaded it with benzine; this leaked and the ship was filled with vapour. A stevedore negligently dropped a plank into the ships hold, which caused a spark. The ship exploded. The ship owners sued the charterers for their servants’ negligence. The charterers claimed that the loss caused by the negligence was too remote to be recovered. The Court of Appeal disagreed – AS LONG AS SOME DAMAGE TO THE CLAIMANT IS FORESEEABLE THE DEFENDANT IS LIABLE FOR ALL DAMAGE THAT DIRECTLY RESULTS FROM THE NEGLIGENCE.

A different approach was taken in:

Wagon Mound – the defendant negligently discharged oil into Sydney harbour. The oil spread to the claimant’s wharf where welding was taking place. The claimant was assured that there was no danger of the oil catching fire. Two days later it did, damaging the wharf and ships under repair. Damage was also caused by fouling to the wharf. The claimant sued, the case ended with the Privy Council – the defendant is not liable for the fire damage as they couldn’t have foreseen the risk of damage by fire. The KIND OF DAMAGE MUST BE REASONABLY FORESEEABLE, although neither the extent of the damage nor the manner of its occurrence need be reasonably foreseen.

NOVUS ACTUS INTERVENIENS
An act or event that breaks the chain of causation. This can occur in three ways:

Ø The act of the claimant himself
Ø An act of a third party
Ø A naturally occurring event

The courts are reluctant to allow novus as the claimant is left with no-one to sue. For example, A lights a fire in his garden and a strong wind causes flames to spread to B’s house. The court would not allow the wind to break the chain of causation.

McKew v Holland and Hannen and Cubitts [1969] – the defendant negligently injured the claimant, and as a result his leg sometimes ‘gave way’. Whilst descending a steep set of stairs, the leg gave way. The House of Lords held that the moment he decided to walk down the stairs (which had no handrail) broke the chain of causation.

Sayers v Harlow UDC [1958] – the claimant was locked in a lavatory and tried to escape by standing on the toilet roll holder. This gave way and she was injured. The court said that this act was not sufficient to break the chain, but stated she was 25% contributorily negligent for her own injuries.

Stansbie v Troman [1948] – the defendant decorator left the claimant’s house unlocked, contrary to instructions. A thief entered the property and stole jewellery. The Court of Appeal held that the loss was due to the defendant’s negligence, the chain of causation was not broken.

NEGLIGENT MISSTATEMENT
This tort is based on negligence and covers statements of fact and opinion.

The tort of deceit is based on fraudulent misrepresentation and covers only statements of fact.

Candler v Crane Christmas and Co [1951] – the defendant accountants prepared the company accounts. They knew that they were to be given to the claimant to persuade him to invest money in the company. The claimant did invest and suffered loss due to the accounts having been negligently prepared, giving a false impression of the company. The claimant sued in negligence. The case was settled by the Court of Appeal who confirmed that there is no duty of care, as there is no contractual relationship.

The dissenting voice of Lord Denning should be remembered. He though that a duty of care should be owed towards:

A third party to whom the defendant shows the accounts, or
Any other person to whom they know their employer is going to show the accounts

so as to induce them to invest money, or take some other action on them.

He would not stretch the duty to include strangers of whom the defendant had heard nothing, and to whom their employer without their knowledge may choose to show their accounts.

All dissenting judgments are obiter, but it was to become the ratio of:

Hedley Byrne v Heller and Partners [1964] – the appellants were advertising agents who became doubtful about the financial position of a client, E Ltd. The appellant bankers enquired from E Ltd’s bankers (the respondents) as to the financial position of E Ltd. The defendant replied that E Ltd was a respectably constituted company, considered good for its ordinary business engagements. The advice was given with a disclaimer. Relying on the advice the appellants lost £17,000+ when E Ltd went bust. An action for negligent misstatement was begun, and ended at the House of Lords.

The action failed because of the disclaimer, but that is not important. The court stated that in appropriate circumstances a duty of care could arise to give careful advice and that failure to do so could give rise to liability for economic loss caused by negligent advice. The appellants had to overcome two barriers (apart from the disclaimer):

The judge in Hedley Byrne refused to apply the Donoghue duty of care because:

An ACT affects only a few people, but once a negligent misstatement is made people could be affected for a lengthy period of time.
Even prudent people make statements on social occasions which may influence others without taking the care that they might in a business situation.

The purpose of Hedley Byrne lies in the concept of a ‘SPECIAL RELATIONSHIP’. Without it there can be no duty of care. Look for:

A special skill
Reasonable reliance on it
The defendant being aware of the type of transaction that is to be based on the advice
SPECIAL SKILL
Mutual Life Assurance Co v Evatt [1971] – a three to two majority decision in the Privy Council, that an insurance company does not owe a duty of care in giving investment advice, their liability under Hedley Byrne does not, therefore, arise. The minority (Lords Reid and Morris) held that a duty would arise only where the claimant made it clear that he was seeking considered advice and intended to act on it in a specific way.

It is this minority view that has gained acceptance as it excludes advice given informally, e.g. on a social occasion, strangers chatting on a train etc.

Examples where this minority view have been followed:

Esso Petroleum v Mardon [1976] – the claimant relied on Esso as to the throughput of petrol at a garage.

Spring v Guardian Assurance PLC [1994] – concerning a reference.

Caparo Industries v Dickman [1990] – the accountants prepared the accounts in accordance with the Companies Act 1985 and the investor loses cash. To establish a duty of care a claimant must show:

REASONABLE RELIANCE
The advice must be given in circumstances which the reasonable person in the defendant’s position would appreciate that his advice would be likely to be relied on.

The House of Lords had said in Caparo Industries that the circumstances could differ infinitely, there can be no necessary assumption that those features found to create a relationship in one case will necessarily determine liability in another.

Chaudhry v Prabhaker [1988] – the claimant asked a friend who had some knowledge of cars to find a suitable one that had not been involved in an accident. The defendant found a car and recommended it to the claimant. She bought it, it had been in an accident and so she sued. A duty of care exists as per the Hedley Byrne principles.

What happens where the representor attempts to exclude liability knowing that reasonable reliance is to be made on the statement?

Smith v Bush [1989]
Harris v Wyre Forest District Council [1989]

Both decisions made simultaneously by the House of Lords. Valuations were carried out on properties for the claimant’s by the defendant’s. A disclaimer was inserted in the valuations. Three questions were answered on appeal:

(1) Was a duty of care owed to the claimant? Certainly yes to the claimant, but not subsequent purchasers because of proximity
(2) Did the disclaimer fall within the ambit of Sections 1, 11 and 13 UNFAIR CONTRACT TERMS ACT 1977? – although not relevant here
(3) Did the notice satisfy the requirement of reasonableness under S2(2)? The court looked at the bargaining power of the parties, could advice have been obtained from another source?, and the practical consequences of the decision.

The disclaimer was held not to be reasonable.

As someone has taken my notes I am aware that some of the above was not discussed in the class.

Tuesday 10 October 2006

If you were at the class you will already have a hard copy of this. Otherwise, you must be prepared to answer any of these questions next week.

Multiple Choice – Law of Tort

1. Eric works as a foreman in a food processing factory. Vats of chemicals are used to clean the machinery on a regular basis. Other cleaning materials are kept in asbestos containers in a separate part of the plant. During processing the lid of one of these containers falls into a vat near to Eric. He is splashed by the chemical and, before he can get away, the vat explodes following a reaction between the asbestos and the chemical previously unknown to science. Eric, barely alive after the explosion, brings a claim in tort against the employers. Will he succeed?


Splash
Explosion
a
No – too remote
No – too remote
b
Yes - foreseeable
Yes - foreseeable
c
Yes - foreseeable
No – too remote
d
No – too remote
Yes - foreseeable

2. In which of the following individual circumstances will a person who uses an independent contractor be liable for the contractor’s torts?

(i) If the operation performed is one for which strict liability exists
(ii) If the operation is one which is exceptionally risky
(iii) If the operation is one which creates a hazard in a public building
(iv)If the contractor is not competent to do the work entrusted to him

a. i & ii only b .iii & iv only
c i, ii and iii only d. all of the above

3. Amanda, a solicitor, is called to advise Emma in drawing up her will. She tells her that she wants her nephew, Paul, to receive a particular legacy. Owing to negligence on the part of Amanda the legacy fails. Can Paul bring an action, and if so, why?

a. No - he was not a party to the will and so has no cause of action against Amanda
b. No - the right to sue for negligence is Emma’s, not Paul’s (with whom Amanda has no privity of contract)
c. Yes - Paul as beneficiary inherits Emma’s right to sue Amanda for the tort of negligence
d. Yes - Amanda had a duty to Paul under the neighbour principle since he was actually known to Amanda at the time as being interested in the will.

4. To which of the following persons does an occupier of premises owe a duty of care?

i. To anyone
ii. To any person who enters the premises
iii. To any person who enters the premises under a legal right of entry
iv. To any person who enters the premises with the occupier’s actual or implied permission

a. i and ii only
b. iii and iv only
c. i, ii and iii only
d. ii, iii and iv only

5. If; in the tort of negligence, the defendant can show that the claimant was partly responsible for his own injuries

a. the claimant cannot recover any compensation from the defendant
b. the court will reduce the damages payable to the claimant
c. the court will take no account of the claimant’s actions so long as the defendant owes the claimant a duty of care
d. the court will prevent the claimant from proceeding with the case as there has been a novus actus interveniens

6. If, in the tort of negligence, the defendant is able to establish that his breach of the duty of care did not cause any loss or injury to the claimant;

a. the claimant may recover nominal damages only;
b. the claimant may recover damages in respect of physical injury but not financial loss;
c. the defendant is not liable;
d. the defendant is fully liable as he has broken his duty of care.

7. F is the auditor of H plc. As a general rule, F owes a duty of care to

a. H plc and its individual shareholders
b. H plc and its existing and potential shareholders
c. H plc only
d. anyone who relies on information published by F

8. G has sued H in the tort of negligence to recover compensation for personal injuries. G has proved that H owed and breached a duty of care. In the event G can recover compensation for

a. all injuries caused by H
b. physical but not mental injuries caused by H
c. all reasonably foreseeable physical and mental injuries caused by H
d. physical and mental injuries which are a direct consequence of H’s action

9. Which of the following is not an essential element of the tort of negligence?

a. The defendant must owe the claimant a duty of care
b. The defendant must have broken the duty of care
c. The defendant must have intended harm to the claimant
d. The defendant’s actions must have resulted in the loss or injury to the claimant

10. Heavy rain made a factory floor slippery with oil and water. Try as they might. the owners couldn’t keep it completely dry and someone slipped and was injured. Were the factory owners negligent?

a. yes
b. no

11. If, after being badly advised, you suffer financial loss, you may be able to recover the loss, so long as:

i. a special relationship exists (e.g. solicitor and client)
ii. the claimant relies on the defendant’s skill and knowledge
iii. it was reasonable for him to rely on the advice
iv. the main case in this area is Hedley Byrne v Heller & Partners 1964

a. i & ii only
b. iii & iv only
c. i, ii, and iii only
d. all of the above.

12. The type of damages caused by a negligent act is not always recoverable, especially in cases of:

(i) negligent misstatement
(ii) nervous shock
(iii) pure economic loss

a. i and ii only
b. iii only
c. i, ii and iii
d. ii and iii only

13. Remedies available in cases involving the tort of negligence are;

(i) damages
(ii) jail
(iii) specific performance
(iv) injunction

a. i and ii only
b. iii and iv only
c. i, ii and iii only
d. i, iii, and iv only.

FOUR ON NEGLIGENCE
1. Paul is killed whilst travelling in a vehicle driven by Bert. A tyre burst and the vehicle crossed the carriageway into the path of another vehicle. Police examination of the tyre revealed a large cut in the outer wall of the tyre, which could well have been discovered beforehand.

Does res ipsa loquitur apply to the situation?

2. Michelle and her eight year old son are passengers on a bus which collided with a lamppost. The boy suffered only minor injury, as did Michelle. However, owing to a pre-existing personality disorder she suffered hysterics and lasting nervous shock.

Can Michelle recover?

3. Charlie, who has a perforated eardrum, works in a very noisy factory. Ear defenders are not provided to the workforce. A particularly loud explosion one day causes Charlie to permanently lose his hearing.

Is a claim possible against his employer?

4. Bill spends seven weeks on remand in prison facing an allegation of robbery. At the next hearing the Crown Prosecution Service offer no evidence & Bill is released. He wants to bring an action against the Crown Prosecution Service because he states that if they had done their job properly he would have been released much earlier.

Advise him.

Tuesday 3 October 2006

We continued further with looking at whether or not the police are immune from being sued in negligence.

Orange v Chief Constable of West Yorkshire [2001] – a prisoner committed suicide in a police cell and his widow sued. Dismissing her claim, the Court of Appeal said the police have no general duty to prevent prisoners from committing suicide: they have a duty to assess the suicide risk, but the stronger duty arises only where they know such a risk exists.

Vellino v C.C. Greater Manchester Police [2001] – police officers who had arrested a suspect were not under a duty to take care that he was not injured in an attempt by him to escape from their custody.

Successful actions have been taken against the police in several cases, including:

Kirkham v Chief Constable of Greater Manchester [1990] – the police failed to pass on information relating to a suspect’s propensity to suicide.

Swinney and Another v Chief Constable of Northumbria Police [1996] – police officers may incur liability in the tort of negligence where innocent persons are adversely affected as a by-product of the way in which the investigations are conducted. The claimant supplied information to the police as to the identity of the driver of a vehicle which had killed a police officer who had tried to stop it. The suspect was notoriously violent, and the informant’s identity certainly needed to be kept secret. The information was recorded in documents left in a police vehicle which was stolen. The suspect discovered the claimant’s identity and threatened him with violence and arson, causing him psychological damage. The Court of Appeal remitted the case to the High Court, who held that there was no breach as the documents were stolen from a briefcase in a locked police car.

Leach v Chief Constable of Gloucester Constabulary [1998] – the claimant was asked to attend interviews with a suspect, as an appropriate adult. The suspect turned out to be Fred West and the claimant suffered post traumatic stress disorder. The claimant claimed she had not been warned about the nature of the case and had not been given counselling. In the Court of Appeal it was held that there should not be a general duty owed by the police to someone in such circumstances because the nature of police work often involved disturbing matters. But it was possible that a duty could be owed in respect of counselling.

Costello v Chief Constable of Northumbria Police [1998] – a police officer was attacked by a prisoner whom she was escorting to a cell and she was badly injured. A police inspector witnessed this but did nothing to help. The Court of Appeal said that the immunity of the police in negligence was not absolute and a duty could be owed to a particular individual. The inspector owed a duty to the police officer.

NB I have a feeling that I gave the defendant as the West Midlands Police. Sorry.

When bodies exercise a STATUTORY POWER there is a limited liability, and reference needs to be made to their statutory powers:

X v Bedfordshire County Council and Other Appeals [1995] – the mere assertion of the careless exercise of a statutory power or duty is not sufficient to found a cause of action flowing from the careless exercise of statutory powers or duties; instead, the claimant has to show that the circumstances are such as to raise a duty of care at common law. A straightforward breach of a statutory duty, whether the breach is careless or otherwise, will not support an action in negligence. In order to prove negligence it must be shown that either:

Ø the statutory duty gives rise to a common law duty of care owed to the claimant by the defendant to do or refrain from doing a particular act or,
Ø more often, that in the course of carrying out the statutory duty the defendant has brought about such a relationship between himself and the claimant as to give rise to a duty of care at common law.

Goodes v East Sussex County Council [2000] – the claimant was seriously injured when his car skidded on a patch of black ice. He claimed damages from the local authority, arguing that the duty to ‘maintain’ the highway (s4 HIGHWAYS ACT 1980) includes a duty to remove ice from the road. It was held that the local authority is under a duty to put the road in such a state of repair as to render it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition. However, this does not include a duty prevent the formation, or remove the accumulation, of ice and snow.

EMERGENCY SERVICES – under certain conditions the fire services will also enjoy an immunity against an action for negligence. The Court of Appeal considered a number of cases on this issue.

John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority and Others [1996] – the court decided that no sufficient proximity or special relationship existed between a fire brigade and the owner of premises which might be on fire, such as to impose upon the fire brigade, and vicariously the fire authority, a duty at common law to respond to a call of assistance. Considerations of public policy militated against the imposition of such a duty. Nor, merely by responding to an emergency call and visiting premises where a fire was burning, did the fire brigade put themselves into sufficient proximity to the building owner to impose a common law duty of care upon them, or assume a particular responsibility to those likely to be affected by the fire. A duty to the building owner might arise once they were fighting the fire because at that time they would have exclusive control of the fire fighting operation. If, during that time, they caused damage over and above that created by the original event, or they caused fresh damage, then they might become liable in negligence and would not escape liability on the ground of public policy.

Capital and Counties plc and Another v Hampshire County Council [1997] – a fire officer at the scene of a fire had ordered the shutting down of the sprinkler system serving the roof space of the burning premises. This decision led to a greater destruction of the premises than if the sprinkler system had been left on. As the officer concerned had no justification for making this decision, the fire authority was held to be negligent. The judge declared that the fire brigade’s exclusive control of its operation was a consideration against immunity on the ground of public policy and it was fair, just and reasonable that a duty of care to owners of burning buildings should exist.

Kent v Griffiths [1998] – the claimant suffered from asthma and was pregnant. She had an asthma attack and called her doctor, who examined her and called an ambulance. The ambulance did not arrive until nearly forty minutes later. The claimant suffered a miscarriage as a result and sued the ambulance service for negligence. The defendant claimed that there was no duty to answer an emergency call or to take care in dealing with such a call. The court said that accepting a call meant there was a duty to a named individual and therefore proximity. Although the ambulance service had budget restraints and problems of prioritising calls, once they had accepted a call the person needing help might rely on them. It was arguable that a duty existed.

DOCTORS have a duty of care in tort, and it was decided in Airedale NHS Trust v Bland [1993] that the duty to a patient was for treatment and care for the benefit of the patient. There was nothing to be gained by artificially preserving ‘life’ to which the patient did not consent and which conferred no benefit to him. The declaration was granted.

The CROWN PROSECUTION SERVICE enjoy immunity: Elguzouli– Daf v Metropolitan Police Commissioner [1995].

The Existence Of A Duty Of Care

• 
  The courts attitude will be considered in the following:
  
  Economic Loss
  Nervous Shock – including Hillsborough
  Omissions To Act
  Trespassers to land
  Negligent (Mis)statements
  
  Economic Loss
  
  The general principle is that economic loss is not recoverable for a negligent act, but may be recoverable for a negligent (mis)statement. The law of contract is where to seek redress for economic loss, where you will need:
  
  Offer
  Acceptance
  Consideration
  
  Thus, in Donoghue v Stevenson [1932] there existed:
  
  A duty of care (not to cause physical damage)
  A breach (the snail)
  Injury, as a result of the breach
  
  The claim is for the illness; the cost of the beer cannot be claimed as it is an economic loss. There is no contract to which she has privity as her friend bought the beer. In the area of defective products there is a distinction between:
  
  A dangerous product (tort)
  A defective product (contract)
  
  Weller and Co v Foot and Mouth Disease Institute [1965] – it was assumed that in consequence of a virus escape from premises used by the Institute for experimental work, and owned and occupied by them, cattle in the local vicinity became infected. An order was made closing cattle markets and the claimant (auctioneers) were unable to carry on their business and suffered loss. The claimant alleged that the defendant was negligent in allowing the escape and that the claimant’s loss was foreseeable. The defendant was not liable in negligence as the claimant was not the owner of the cattle, and the defendant didn’t owe them a duty of care (as opposed to the cattle owners) to avoid the escape.
  
  Cases have been allowed in some exceptions where a claimant suffers CONSEQUENTIAL economic loss:
  
  Spartan Steel and Alloys v Martin and Co [1973] – the defendant cut through a power cable leading to the claimant’s factory. The power was off for fourteen hours. The claimant could recover for the money lost in the smelting process, but not for the loss of profit for the rest of the day.
  
  Nervous Shock
  
  The claim is not for the ordinary grief and sorrow. It is established on the basis of medical evidence that the claimant has suffered a definite and identifiable psychiatric illness, so early cases failed due to the reluctance of the courts to find liability.
  
  Dulieu v White [1901] – a claim was allowed on behalf of a pregnant claimant who gave premature birth when a servant of the defendant negligently drove a horse van into a public house, as she had been in danger[1].
  
  Hambrooke v Stoke Brothers [1925] – the defendant left a lorry at the top of a hill, unattended and with its brakes off. It went downhill and crashed. The claimant’s wife had just left her children round a bend in the road saw the runaway lorry and feared for her children’s safety. She was told that a girl wearing spectacles had been injured, she thought it was her child, suffered nervous shock and died.
  
  Damages were awarded: she was in the foreseeable area of the impact but the shock was as a result of fearing for someone else’s safety. A new limitation was imposed; that shock should occur as a result of what the claimant had witnessed as a result of her own unaided senses, rather than as a result of what others had told her later[2].
  
  So, to recover for nervous shock you need not:
  
  Be in the area of the physical impact, or
  Fear for your own safety
  
  but nervous shock must be reasonably foreseeable.

THE HILLSBOROUGH DISASTER

On 15th April 1989 a semi final of the FA Cup was due to be played between Liverpool and Nottingham Forest at Hillsborough, Sheffield. There was a sell-out crowd. The television were there to record highlights. The match was halted after six minutes as the weight of numbers of people in the Leppings Lane pens created such pressure that spectators were trapped against wire separating pens from the pitch. Ninety-five people died, four hundred more needed hospital treatment. Thousands witnessed the scene from other parts of the ground, millions saw it on television or heard it on radio. Many who were watching or listening had loved ones at the match.

Sixteen test cases were brought to determine whether the Chief Constable owed them a duty of care, and were representative of a further one hundred and fifty further claims. Some claimants were at the ground, whilst others were watching television. All claimed to have suffered nervous shock. Before looking at the cases, let us look again at just what nervous shock is – an identifiable psychiatric illness, not just the ordinary grief and sorrow.

Jones v Wright [1991] (1st instance) – proximity is what it was about, relationship and geographical.

Relationship – Relatives other than spouses would be able to claim, they would foreseeably suffer nervous shock. These relatives would include brothers and sisters and grandparents bringing up a child from a baby.

Geographical – All those inside or immediately outside could claim, as could those who saw it on television, providing that the relationship issue was settled. Being told, or hearing of it on radio was not enough.

We are now left with:

Failed claimants in the High Court appealing to the Court of Appeal (best friends, perhaps?).
A cross appeal by the defendant Chief Constable, alleging that the Trial Judge had gone too far (granddad, television viewers?).

Alcock v Chief Constable South Yorkshire [1991] (Court Of Appeal) – the court severely criticised the decision of the trial judge and stated:

The television viewers claimants must fail as a television broadcast, whilst reasonably foreseeable that it would be broadcast, the intervention of a third party between the accident and a claimant meant that the television was not equivalent to the sight or sound of the accident.

Only the relationships that would have succeeded prior to McLoughlin should succeed, unless the defendant could prove that the claimant didn’t have a RELATIONSHIP OF LOVE AND CARE, or the claimant’s relationship is equivalent to a parent or spouse, e.g. a grandparent bringing up a child.

Leave to appeal to the House of Lords was granted to ten of the original claimants, and were unanimously dismissed.

Alcock v Chief Constable South Yorkshire [1991] (House of Lords) – requirements for a duty of care in nervous shock cases are:

Ø Harm was reasonably foreseeable.
Ø Proximity of relationship between the claimant and the victim. In spouse and parent-child relationships there is a rebuttable presumption, but it is open to other relationships to prove the existence of caring and loving relationships, e.g. Grandfather again, siblings, engaged couples.
Ø Proximity to the accident or its immediate aftermath must be sufficiently close in both terms of time and space.

SIGHT OR SOUND of the accident will continue to suffice, the law will not compensate shock brought about by a third party communicating it. Lord Jauncey stated that AS A MATTER OF PUBLIC POLICY THE SITUATION OF RESCUERS WOULD NOT BE AFFECTED.

White v C.C. South Yorkshire Police [1999] – the claimant officers had (i) carried dead bodies (ii) attempted resuscitation (iii) helped in the mortuary. The House of Lords held that they were secondary victims, and must satisfy Alcock. To allow a successful claim would open the floodgates, e.g. nurses and doctors.

Omission to Act

The general rule is that a pure omission is not actionable, if you want someone to act in a positive way on your behalf you must pay them.

Exceptions will include employer/employee relationships, and can also exist in relationships between an occupier/visitor and parent/child (omitting to send to school)

Breach Of Duty

The standard of conduct to be attained is that of the REASONABLE MAN as stated by Baron Alderson:

Blyth v Birmingham Water Works [1856]: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”.

Nettleship v Weston [1971] – a learner driver, on her third lesson, hits a lamp post and injures the claimant. A learner driver may be doing her best, but an incompetent best is not good enough. She must drive in as good a manner as a driver of skill, experience and care.

Glasgow Corporation v Muir [1943] – the appellants allowed a church picnic to use their tea room on a wet day. Members of the party had to carry a tea urn through a passage where children were buying ice cream. The urn was dropped, and children were scalded. By the standards of the reasonable man test there is no liability. Lord Macmillan said that a reasonable man is presumed to be free from over apprehension or over confidence.

Roe v Minister of Health [1954] – the claimant was paralysed after an injection in hospital, caused by a leakage of phenol getting into the syringe through invisible cracks. There was no liability. At the time of the accident, judged by the standards of a reasonable man, the accident could not be avoided. The court will not condemn a defendant with the benefit of hindsight.
A child of the same age is a reasonable man:

Mullins v Richards [1998] – two fifteen-year old girls sword-fighting with rulers.

Magnitude Of Risk

Though harm may be foreseeable, there may be no liability if the risk is so slight that the reasonable man is justified in disregarding it.

Bolton v Stone [1951] – the claimant was hit by a cricket ball from the defendant’s ground. It had been hit one hundred yards and cleared a seventeen foot fence. Evidence was brought to show that it had happened only six times in thirty years.

Latimer v AEC Ltd [1953] – a factory was flooded and oil was washed onto the floors. Sawdust was placed on the floor to mop it up, but it wasn’t enough for all areas. The claimant slipped on one of the uncovered areas and was injured. He sued the defendant, alleging that the factory should have been closed. The defendant did all he could. The precaution suggested was out of all proportion to the risk.

Other factors to take into account in establishing whether or not there has been a breach of duty:

(1) The court takes into account not only the risk of any damage to the claimant, but also the extent of the damage risked.

Paris v Stepney Borough Council [1951] – the claimant is a one-eyed mechanic in the defendant’s garage. Part of his job was welding, and goggles were not normally supplied to men in such work. A piece of metal fled into the claimant’s eye, rendering him totally blind. The council was liable, although they would not have been to a person with normal sight. There was a greater risk to the claimant, and greater precautions have to be taken.

(2) The court may be called on to assess the social utility of the defendant’s conduct in determining negligence.

Watt v Hertfordshire County Council [1954] – the claimant fireman, was on duty in an emergency when a woman was trapped under a car. A heavy jack was placed on a lorry not equipped to carry it, it slipped and injured the claimant. The action failed. The risk was not so great as to prohibit an attempt to save life.

(3) “We have always done it this way”, is good evidence on the part of a defendant that he is not negligent. This is very helpful to professional people, where a code of conduct usually exists.

Professional people are not judged by the standards of the reasonable man, he knows little of heart surgery, but by the standards of the reasonable person possessing those same skills:

Bolam v Friern Hospital Management Committee [1957] – a case involving electro– convulsion therapy.

Final points:

Children standards are judged against those of a similar age.

Gamon v Rotherham Borough Council [1991] – a fourteen-year old dives into the shallow end of the swimming pool and breaks his neck. Should have known better.

Sportsmen have different standards, dependent upon ability.

Where a defendant acts in an emergency or in the heat of the moment the standard is adjusted to take account of the dilemma.

Sayers v Harlow UDC [1958] – old lady stuck in lavatory.

Proving the Breach

On the balance of probabilities by the claimant showing that the defendant was negligent. There are two exceptions:

SECTION 11 CIVIL EVIDENCE ACT 1988 permits a claimant to produce evidence of any criminal offence arising out of the situation which led to the action for negligence. This shifts the burden to the defendant to show he was not negligent. It is difficult, but not impossible. Driving through a red traffic light is a criminal offence, but does not necessarily amount to negligence.

We will look at the second one – res ipsa loquitur – next week.