Tort law analysis

Tort Law

Introduction Negligence as a tort is a breach of a legal duty to take care which causes damage to the claimant that is not too remote.

DUTY OF CARE: In an attempt to find a general test to determine whether a duty of care exists Lord Atkin in Donoghue v Stevenson set out – a duty is owed to persons who are so closely and directly affected by defendant’s act/omission that he ought reasonably to have them in contemplation as being so affected. He described such people as defendant’s ‘neighbors’, accordingly his formulation came to be known as the neighbor principle.

There were many developments in the law of negligence in the years following that decision.

These led Lord Wilberforce to redefine the neighbour principle. He turned it into a two-stage test in Anns v Merton LBC. The first question was, whether there was a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the defendant carelessness on his part may be likely to cause damage to the claimant. If so, a prima facie duty of care arose.

The second question was, whether there were any considerations which ought to negative or reduce or limit the scope of the duty of care, or the class of persons to whom it was owed.

However, this test came under criticism in the following years as being too expansive and indeed the Anns case was itself overruled in 1991.

The basic test for a duty of care is now the one set down in Caparo v Dickman. The claimant has to show three things if there is to be a duty of care – It was reasonably foreseeable that the person in the claimant’s position would be injured.

There was sufficient proximity between the parties. It is just, fair and reasonable to impose liability.

Note, this test is to be applied only when the court is presented with a new factual situation which is significantly different from, or wider in scope than, any of the previously decided cases.

Where a duty of care has been imposed in an earlier analogous case a court will be more inclined to impose a duty on the facts of the case before it unless it is satisfied that the analogy is not properly drawn. Conversely, where the precedents are against the recognition of a duty of care a court will be reluctant to impose a duty unless it considers that the earlier

cases are not directly in point; or it is convinced that reasoning incrementally and by reference to the precedents, an extension of the scope of liability is justified. Thus, it appears that the tripartite test could be ousted in circumstances where an incremental step beyond existing authorities could be taken.

However, the courts have developed more detailed and more restrictive rules applying in certain type of cases – • • • • •

Where the damage caused is psychiatric, rather than physical.

Where the damage caused is purely economic loss.

Where the damage was caused by a failure to act.

Where the damage was caused by a third party.

Where the defendant falls within a range of groups who have become subject to special rules on policy grounds.

Scope of the duty of care: Even if the defendant owed a duty of care to some people, there remains the question of whether the particular claimant was within the scope of that duty. In order for a duty to exist, it must be reasonably foreseeable that damage or injury would be caused to the particular claimant in the case, or to a class of people to which he or she belongs, rather than just to people in general – (Bourhill v Young, Palsgraf v Long Island).

BREACH OF THE DUTY: A person breaches his duty of care if he does something which a reasonable person would not do, or if he does not do something which a reasonable person would do – (Blyth v Birmningham). Accordingly, if the defendant causes loss or injury to the claimant, but is able to show that he acted in a way that a reasonable person would have acted, no liability will arise – (Al-Sam v Atkins).

Lord Macmillan in Glasgow v Muir clarified – ‘the standard of foresight of the reasonable man is an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question’. However, Lord Macmillan did consider the test contains a subjective element in it. According to him, the standard of the reasonable man needs to be applied, to the facts of the case and to what the reasonable man in the position of the particular defendant ought to have foreseen.

As the test is objective, the particular defendant’s own characteristics are usually ignored.

However, there are a limited number of situations in which special characteristics of the defendant will be taken into account.

Professionals and special skill: Where someone holds himself out as having special skills or qualification, he is required to show the skill normally possessed by person doing that work – (Bolam v Friern: it was held that, a doctor failing to diagnose a disease cannot excuse himself by showing that he acted to the best of his skill, if a reasonable doctor would have diagnosed it). In Nettleship v Weston, it was irrelevant that the learner driver defendant was doing as well as she could, since a reasonable driver in her position would have done better.

It is immaterial if defendant does not in fact have that skill but yet engages himself in conduct usually done by person having that skill, the standard demanded is still that of those who actually do possess that skill – (Adams v Rhymney Valley). However, where someone has not held himself out as having special skill but who does in fact have that skill, he will not be in breach if his conduct falls below the standard of a reasonable person with that skill – (Wooldridge v Sumner).

In Shakoor v Situ, it was held that a practitioner of Chinese herbal medicine does not have to meet the standard of skill and care of a reasonably competent practitioner of orthodox medicine, he only have to meet the standard applicable to his practice; but he does have to take account of the reports relating to his practice in orthodox journals.

Interestingly in Phillips v Whiteley, it was argued that a jeweler who had pierced the claimant’s ears have to show the care of a reasonable surgeon. The court rejected this argument and held that, he would be judged by the standard of a reasonably competent jeweler carrying out that particular task.

Medical negligence: In assessing the standard of care to be expected in areas where the defendant is exercising special skill or knowledge, the courts have accepted that within a profession or trade there may be differences of opinion as to the best techniques and procedures in any situation. This type of situation frequently arises in case of medical practice.

Faced with a particular patient, one doctor might recommend surgery, but another might recommend treatment with drugs. The court do not insist that one of these approached must be right and the other wrong. What has to be shown is that, the defendant has acted in a way that would be supported by ‘a body of respectable medical opinion’. This is known as the Bolam test, since it was set out in that case. Note, it is no objection that only a small number of doctors would have supported the defendant’s conduct – (Defreitas v O’Brien).

It is then for then for the court to decide whether the medical experts opinion is reasonable, considering whether they had weighed up the risks and benefits and had a logical basis for their conclusion – (as explained in Bolitho v City and Hackney HA). In Bolitho it is suggested that, the fact that medical experts held a particular view, would in fact demonstrate its reasonableness; and it would only be in very rare cases that a court would reject such a view as unreasonable. Thus, it will rarely be necessary for a court to find that the views held by a competent medical expert are unreasonable, but it is nevertheless possible.

Duty to explain: Previously, it was sufficient to show that the standard of disclosure practiced by a doctor in respect of potential risk of damage associated to his treatment conformed to a practice of disclosure sanctioned by responsible medical opinion, as seen in Sidaway v Bethlam. This decision has been criticized for not recognizing a patient’s right to make informed consent and determining the sufficiency of disclosure from the doctor’s point of view. A different approach was adopted by the Australian court in Rogers’s v Whittaker – the standard of disclosure to be met is the one, which a reasonable patient would want to know.

Accordingly, the HL in Chester v Afshar stated, doctors not only have a duty to take reasonable steps to make sure their advice is right, but also to explain the advantages and disadvantages of a particular treatment, unless there is a good reason for not doing so.

Chester is also an interesting case on causation. In this case, the claimant did not show that she would probably (i.e. balance of probabilities) never have had the operation had the information been given; but she did show that she would have taken her time and consulted friends and therefore would not have had the actual operation on the particular day that she did have it. Surprisingly, this was held sufficient to establish causation.

In most cases, it will be that the individual doctor (or nurse, etc) is negligent, and that the health authority or private hospital is vicariously liable. However, in some cases it may be appropriate to consider arguing whether the health authority or hospital is negligent, e.g. by

entrusting a procedure to an inappropriately junior doctor, or by overworking its staff so that they are too tired and make mistakes.

Illness: Where the defendant’s conduct is affected by some kind of illness or other external factor, this will be taken into account while assessing the standard of care to be met – (Mansfield v Weetabix: Here the driver of a lorry was suffering from a disease which on the day in question caused hypoglycemic state (a condition in which the blood sugar falls so low that the brain’s efficiency becomes temporarily impaired). This affected his driving, with the result that he crashed into the claimant’s shop. The driver did not know that his ability to drive was impaired, and there was evidence that he would not have continued to drive if he had known. The CA said that the standard by which he should be measured was that of a reasonably competent driver who was unaware that he suffered from a condition which impaired his ability to drive; on this basis he was found not to be negligent. But the result would have been different if the driver had known that his ability to drive was impaired).

Knowledge: The defendant must be judged in the light of the state of scientific, technological or other expert knowledge which was available to him at the time of the alleged breach, rather than any latest advancement – (Roe v Minister of Health: medical witness in the case said that until the man’s accident occurred, keeping the ampoules in disinfectant was a standard procedure and there was no way of knowing that it was dangerous; it was only the injuries to the claimant that had revealed the risk. Therefore, the defendant was held not liable).

Special knowledge concerning the claimant: Where the defendant knows or ought to have known about particular characteristics of the claimant which increase the risk of harm, then more will be required of the defendant – (Haley v London Electricity Board: Here the HL held that a body conducting operations on a city highway should foresee that blind persons would walk along the pavement, and that it owes a duty to take those precautions reasonably necessary to protect them from harm. On the facts it was held liable although a person with normal visi8on would not have been injured in consequence of its operations).

Children: Where the defendant is a child, the standard of care is that of an ordinary careful and reasonable child of that age – (Mullin v Richards).

Some factors extraneous to the defendant is also considered to set the standard of care to be met in a particular case: Likelihood of harm: Although harm to someone may be foreseeable, the risk of that harm being inflicted may be so unlikely that the defendant will not be required to take any precautions against it happening – (Bolton v Stone).

In Bolton v Stone, Miss Stone was hit by a cricket ball struck from a cricket ground surrounded by a fence 17 feet above the level of the square. The batsman was 80 yards away.

The ball was only the 6th in about 30 years to be hit out of the ground. The HL held that there had been no breach of duty by the club in allowing cricket to be played without taking further precautions.

Lord Radcliffe stressed two points: first, the fact that the ball had to clear the fence which itself was a remote possibility and, secondly, that having cleared the fence the ball would then have to strike a passer-by, an even more remoter possibility. Lord Oakley said ‘an ordinarily careful man does not take precautions against every foreseeable risk…… life would be almost impossible if he were to attempt to take precautions against every risk’.

By contrast in Hilder v Associated Portland, the risk of injury to a road user from a football being kicked from a patch of open land was much greater, thus the defendant responsible for the land was held to be in breach of a duty of care.

Gravity of potential harm: Where the consequence of the harm which is likely to be done if the risk materializes is serious, then more will be required of the defendant – (Paris v Stepney BC: The claimant, who had one eye, was employed as a mechanic in the defendants’ garage.

Part of his job involved welding. It was not normal to supply goggles to men involved in such work. A piece of metal flew into the claimant’s eye with the result that he became completely blind. The defendants were held liable, although they would not have been liable to person with normal sight. The greater risk to the claimant meant the greater precautions than normal, had to be taken).

Practicality of protection: If the cost of eliminating the risk is out of proportion to the benefit obtained by its elimination, then it will not generally be negligent to fail to eliminate the risk – (Latimer v AEC Ltd: Flooding had occurred in a factory owned by the defendants, following an unusually heavy rainfall. This had left patches of the floor very slippery. The defendants had covered some of the wet areas with sawdust, but had not had enough to cover all of them. The claimant, a factory employee, was injured after slipping on the uncovered area, and sued alleging that the defendants had not taken sufficient precautions; in view of the danger, they should have closed the factory. The HL agreed that the only way to eradicate the danger was to close the factory, but held that given the level of risk, particularly bearing in mind that the slippery patches were clearly visible, such an onerous precaution would be out of proportion. The defendants were held not liable).

Potential benefit of the risk taking: Where the defendant takes some risks, his risk taking may be outweighed by the potential benefit his conduct is to achieve, then he will not be negligent by taking the risk – (Watt v Hertfordshire CC: The claimant was a firefighter. He was among others called to the scene of an accident where a woman was trapped under a car; a heavy jack was needed to rescue her. The vehicle in which the fire officers travelled to the scene was not designed to carry the jack, and the claimant injured when it slipped. He sued his employers, but the court held that the risk taken in transporting the jack was outweighed by the need to get there quickly in order to save the woman’s life).

It is important to appreciate that an emergency does not exonerate the defendant from displaying any level of care at all, it merely reduces the standard demanded – (Ward v London CC).

CAUSATION & REMOTENESS In order to establish negligence, it must be proved that the defendant’s breach of duty actually caused the damage suffered by the claimant, and that the damage caused was not too remote.

Causation is relevant to all torts in which proof of damage is essential, though very often it is discussed in the context of negligence.

The basic rule of causation is set out as ‘but for’ test. The test may be stated as: ‘if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage’ (per Denning LJ in Cork v Kirby). The burden of proof lies on the claimant. He has to show on the balance of probabilities that the damage would not have occurred but for the defendant’s breach of duty.

The application of this test can be seen in Barnett v Kingston and Chelsea Hospital: The defendant breached his duty towards the claimant by failing to examine him. However, he was not held liable, as there was evidence that, even if he had been examined it was too late for any treatment to save him.

In Bolitho v City and Hackney HA, the defendant was in breach of her duty by failing to attend a patient, but there was evidence that the action she in fact would have taken if she had attended, would not have saved the patient. Accordingly, she was not held liable.

In Mcwilliams v Sir William Arrol, the defendant employer failed to provide safety equipment for his employee, but there was evidence that the deceased employee would not have used it even if it had been provided. Accordingly, the defendant was not held liable.

Interestigly, in Chester v Afshar, the surgeon had advised the claimant to undergo surgery but in breach of duty failed to advice her of the risk. The claimant did not show that she would probably never have had the operation, but she did show that she would have taken her time and consulted friends and therefore would not have had the actual operation on the particular day that she did have it. The HL held that she had therefore established that the breach of duty was a cause of her injury.

The HL accepted that it was very difficult to prove causation on conventional principles, and said that this was a case where legal policy required a judge to decide whether justice required the normal approach to causation to be modified. In this case it did. To find otherwise would mean that only those claimants who could categorically say that they would not have had the surgery, would benefit from the existence of the duty of care; whereas those who needed time to think or more advice would not. This would leave the duty of care useless where it was needed most. On policy grounds therefore, the test of causation was satisfied and the claimant won her case.

In light of this Chester can be seen as a case, where the HL ha defectively abolished any meaningful requirement for factual causation. But the CA has since been keen to emphasize in cases like White v Paul (Chester inapplicable to solicitor’s negligent advice), Beary v Pallmall (Chester inapplicable to negligent advice regarding financial matters) that the result in Chester was an extraordinary one reached on policy grounds and it is confined to its own limited context: that is, cases involving a negligent failure to warn a patient of the dangers associated with a particular medical treatment or procedure. Whether, if the opportunity arises, the HL will be as keen to confine Chester v Afshar in this way remains to be seen. But for the present, it would appear wise to treat the decision as exceptional, and one that does not lay down any general rule capable of universal application.

CAUSATION SPECIAL PROBLEMS: MULTIPLE CAUSES: In a number of situations the application of the ‘but for’ test would lead to outcomes that would be absurd or arguably unjust. The courts have in some of these cases been prepared to abandon or modify that test.

Various causes of same damage: Where there are multiple causes of the same damage, the application of ‘but for’ test produces an absurd result; as it will be possible in each cases to argue that the damage would still have occurred in the absence of the one.

In Baker v Willoughby, the claimant was knocked down by the defendant while he was crossing the road. As a result of the accident the claimant suffered injuries to his left leg, which caused him some pain and discomfort and also detrimentally affected his earning

power. The claimant took up a new job after the accident, but while he was at work he was shot in the same leg during an armed robbery. As a result of this second incident the claimant’s left leg had to be amputated.

The defendant argued that his liability only extended to the point at which the armed robbery occurred, the damage he has caused would have been done in anyway (in addition to the additional injury) by the robbers. (Note, we are concerned with continuing liability for the consequence of the original injury, and not with liability for the additional consequences of the second injury; this will be discussed under remoteness). Thus, according to the ‘but for’ test, the defendant’s conduct should no longer be treated as a cause of the damage.

But, the HL in finding him liable refused to apply the ‘but for’ test on two grounds – The loss of earnings was a permanent state of affairs and had resulted from the original injury. The armed robbery and amputation of the leg had not altered this fact even though the eventual damage was different and worse.

Had the claimant sued the robbers, the robbers would have been able to take advantage of the rule that a tortfeasor takes his victim as he finds him, and so would only have been liable for the damage which they had caused to an already damaged leg. So, to refuse the claimant a remedy in respect of the damage done by the defendant would be to leave the claimant undercompensated because he would not be able to recover in respect of that damage from the robbers.

So, to do justice on the facts of the case, the defendant was held liable for the loss resulting from the original accident, the additional damage caused by the robbers was discounted.

A different result was however reached by the HL in the case of Jobling v Associated Dairies. Here, the claimant suffered injury to his back at work in 1973. This injury was caused by the defendants’ breach of statutory duty and the effect of the injury was to compel the claimant to take a less strenuous job, with the result that his earning capacity was reduced by 50%. Before the action against the defendants was tried in 1979, it was discovered in 1976 that the claimant was suffering from a crippling back disease named myelopathy. The effect of the latter disease was to render him totally unfit for work by the end of 1976. There was no connection between the myelopathy and the defendants’ negligence. It was held that the defendants were not liable for any loss of earnings suffered by the claimant after 1976 when the myelopathy rendered the claimant totally unfit for work.

The HL was critical of, but did not overrule, the earlier decision in Baker. Baker was criticised on the ground that it took no account of the vicissitudes of life. Thus, the House appeared to suggest that the contraction of another independent disease would count as a vicissitude and would have the effect of reducing the damages payable, but that the commission of another tor was not a vicissitude of life and so would not reduce the damages payable. But, Evans pointed out, ‘it is just as much a contingency of life that one might get knocked down by a negligently driven car as it is that one might suffer some disabling illness’. So, this distinction is hardly a satisfactory one.

Uncertainty of the facts: Where there are multiple causes each contributing to cause the onset of a disease, but uncertainty as to the proportion of contribution each made; causation is established if the claimant can show that the defendant’s breach of duty materially contributed to the disease being caused – (Bonnington v Wardlaw). In this scenario, the ‘but for’ test becomes ineffective since the claimant will not be able to show on the balance of

probability because of the uncertainty, that he would not be have suffered the harm but for any of those causes.

This principle was later extended in McGhee v NCB. Where there are various possible causes of a damage but uncertainty as to which cause is the culprit, causation is made out if the claimant can show that the defendant’s breach of duty had materially increased the risk of the injury occurring. This is another situation where ‘but for’ test would appear ineffective as it would be impossible to say that the damage probably would not have occurred but for the defendant’s breach of duty or it would probably still have happened without the defendant’s breach of duty.

Lord Wilberforce justified the McGhee conclusion on the ground that the defendants, by their negligence, had created the risk of a particular damage occurring and when that risk became reality they were not allowed, on grounds of policy to hide behind the evidential difficulty of showing what had caused the damage to the claimant.

But, in Wilsher v Essex AHA, the HL declined to follow this principle and insisted for strict ‘but for’ test. The HL found itself faced with this issue once again in Fairchild v Glenhaven, where it favoured the McGhee approach, but accepted that Wilsher was correctly decided on its own facts as there were a number of possible agents involved. It appears that, Fairchild principle applies only where there is one noxious agent involved. Thus, these two lines of authority can be summarized as – Where there are various possible causes each generating same agent that is likely to cause a damage on its own, but uncertainty as to which cause is the culprit, causation is established if the defendant’s breach of duty had materially increased the risk of the damage occurring – (Fairchild, McGhee).

Where there are various possible causes generating several agents that are likely to cause a damage on their own, but uncertainty as to which cause is the culprit, causation can only be proved if the claimant can show on the balance of probabilities that the defendant’s breach of duty caused the injury – (Wilsher).

It should be noted that, there remains no convincing answer as to why a case involving several agents should be treated differently from a case involving single agent. Fairchild was revisited in Barker v Corus where it was held that, a defendant may still be liable even though the other exposures were non-tortious, by natural cause, or by the act of the claimant himself.

REMOTENESS OF DAMAGE: Damages may be denied even where the claimant is able to establish a causal connection between the breach of duty and damage, on the ground that the damage is too remote.

Initially, the test of remoteness of damage in the tort of negligence was said to be – whether the damage was the direct consequence of the breach of duty – as laid down in Re Polemis.

Modern test is the one set out in The Wagon Mound (No.1) – Defendant is liable for damage only if it was the foreseeable consequence of the breach of duty. It is sufficient if the injury is of the type that could be foreseen, even if it came about in an unexpected way – (Jolley v Sutton LBC); or was much more severe than expected – (Hughes v Lord Advocate).

New & intervening causes: Where the damage caused by a torfeasor is worsened by an intervening event, which is afforded the stage to occur by the original tort, particular problem of remoteness arises. Clearly, the intervening event would not have occurred resulting in

additional damage, had the original tort not been committed. Therefore, the additional damage is in a factual sense caused by the original tort. But, the question is, is it recoverable from the original tortfesor? This additional damage cannot be recovered from the original tortfeasor where the intervening event renders them too remote, by breaking the chain of causation.

Intervening events may take one of three forms – Natural events: An act of nature will break the chain of causation where it is unforeseeable and independent of the defendant’s negligence – (Carslogie v Royal Norwegian Government).

Acts of third party: Act of third party will break the chain of causation if it is ‘something unwarrantable, a new cause that disturbs the sequence of events and something that can describe as either unreasonable or extraneous or extrinxic’ – (per Lord Wright in The Oropesa). Thus, the defendant will remain liable if the act of third party is not truly independent of the defendant’s negligence as was the case in Oropesa.

But even where the conduct of the third party is necessitated by the initial negligence of the defendant, it is still possible that the subsequent act will break the chain of causation as shown by Rahman v Arearose. It was held in Rahman v Arearose that, negligent medical treatment which intervenes between the breach and the damage will be treated as breaking the chain of causation, if it is serious and amounts to a completely inappropriate response to the patient’s condition.

In Knightley v Johns, Stepenson LJ stated ‘negligent conduct is more likely to break the chain of causation than conduct which is not’. He stated that the courts sought refuge in ‘common sense rather than logic on the facts and circumstances of each case’.

In Knightly v Johns, the defendant’s negligent driving caused an accident which had the effect of blocking a busy tunnel. The second defendant, a police officer, forgot to seal off the tunnel and, in breach of police standing orders, sent the claimant, a police motor cyclist, back into the tunnel against the flow of traffic. While travelling through the tunnel, the claimant was injured when he was involved in a collision with another driver. It was held that, the second defendant was negligent in not closing the tunnel when the initial accident occurred and so the first defendant was not liable for the injuries sustained by the claimant.

On the other hand, a different result was reached in the case of Rouse v Squires. The first defendant through his negligent driving caused an accident in which his lorry ‘jack-knifed’ across the road. A few minutes later the second defendant negligently collided with the vehicle involved in the first accident and killed the claimant. It was held that the first defendant’s negligence was an operative cause of the claimant’s death and so he was held to be 25% responsible for the claimant’s death. Here, the second accident was a natural and probable consequence of the first accident and was foreseeable; therefore it did not amount to break in the chain of causation.

Where the third party act consists of deliberate wrongful conduct, chain of causation will be broken only if it was something very likely to happen – (Home Office v Dorset Yacht), a mere foreseeable possibility is not enough – (Smith v Littlewoods).

Acts of the claimant: Where the intervening event is an unreasonable conduct perpetrated by the claimant himself, this will break the chain of causation – (McKew v Holland).

In Mckew v Holland, defendant’s negligence caused injury to claimant’s leg. Claimant later broke his ankle attempting, while still suffering from the effects of the first injury, to descend s steep staircase unaided. Claimant’s imprudent and unreasonable conduct constituted a fresh and separate cause of the second injury. Defendant was only liable for the initial injury.

By contrast, in Wieland v Cyril Lord Carpets, the claimant suffered neck injuries and had to wear a collar in consequence of the defendants’ negligence. She later fell downstairs because, as a result of the initial injury and the neck collar, she could not use her bifocal lenses with her usual skill. Her further injury was found to be attributable to the defendants’ original negligence. There was no unreasonable conduct on her part that could be taken to constitute a novus actus interveniens breaking the chain of causation.

Even if the claimant’s act may be viewed as unreasonable it will not break the chain of causation, where the defendant could foresee such an act and was under a duty to take care to prevent it occurring. Thus, in Reeves v Commissioner of Police, the fact that a prisoner was a known suicide risk combined with the fact that the defendants were under a duty to take care to prevent that suicide meant that the defendants were causally responsible when the prisoner did in fact commit suicide. By contrast, in Grieves v FT Everard where claimant’s anxiety about the onset of a long-term asbestos-related disease was foreseeable, it was held that there was no duty to take reasonable care to prevent claimant suffering such anxiety.

PSYCHIATRIC INJURY Where the claimant’s injuries are psychiatric and not physical, damages are recoverable only exceptionally. In the past, the courts were reluctant to award damages for psychiatric injury caused by the negligence (as apparent in Victoria Railways v Coultas) for various reasons.

They include the difficulties of putting a monetary value on such harm, the risk of fictitious claims and excessive litigations, and the problems of proving the link between the defendant’s negligence and the injury to the claimant. But, such claims are now entertained but are subject to a number of restrictions.

The first restriction is that, damages are available only for a recognized psychiatric illness; and not for grief, distress, sorrow etc (This was the reason why damages is not awarded in Nichols v Rushton). In exam questions, this should be assumed as satisfied.

Claimants who can prove such injury can only claim in negligence if they can establish that they are owed a duty of care by the defendant to avoid inflicting psychiatric injury (and of course that the defendant’s negligence actually caused the injury). The other restrictions apply in establishing this duty of care. Different sets of rules apply for different categories of claimant; that means, whether the claimant is a primary victim or a secondary one.

Primary victims are one who suffers psychiatric injury after being physically injured in an accident, or being put in danger of physical injury, or reasonably believing himself to be in danger of physical injury. In primary victim cases, reasonable foreseeability of physical injury to the claimant is sufficient to establish the duty of care in respect of the psychiatric injury, it is not necessary to show psychiatric injury as such was foreseeable – (Page v Smith). Although affirmed by the HL in Simmons v British Steel, Lord Neuberger in Corr v IBC Vehicles described Page as a ‘somewhat controversial decision’. In light of Page, damages for psychiatric injury will be recoverable even where the psychiatric damage is

suffered because of some susceptibility of the claimant to shock as long as physical injury is foreseen.

Secondary victims are one who are not put in danger of physical injury to themselves, but suffers psychiatric injury as a result of witnessing such injury to others. To succeed as a secondary victim following conditions deriving from McLoughlin v O’Brian and subsequently refined in Alcock v CC of South Yorkshire should be satisfied.

It was reasonably foreseeable that the claimant would suffer psychiatric injury, as his relationship of love and affection with the primary victim was sufficiently close.

So long as a bystander of normal fortitude would be likely to suffer psychiatric injury, it does not matter that, that psychiatric injury is made more serious by some characteristics personal to the claimant. But, if the psychiatric injury would not have occurred at all to someone without the claimant’s particular susceptibility, there will be no claim. Only some psychiatric injury has to be foreseeable, its precise form or severity need not be foreseen.

In cases of parents, children, and spouses – there relationship with the primary victim is presumed to be sufficiently close, though evidence might be brought to rebut the presumption. In all other cases, it must be established. Claims by brothers, sisters and brother-in-law are failed in Alcock while the claim on the part of a fiancée was allowed.

Curiously in Alcock, Lord Keith, Lord Ackner and Lord Oliver went so far as to say that the claim of a bystander was not ‘entirely excluded’ and they suggested that a claim may be brought by a bystander where a catastrophe occurs very close to him, which is particularly horrific. However, this expansive approach to the class of claimants has not been followed in a later CA case, named McFarlane v Caledonia. It was held that, a bystander to a horrific event could not recover on the grounds that, the basis of the decision on Alcock was that the test of proximity was not simply reasonable foreseeability but that there must be a sufficiently close tie of love and affection between the claimant and the victim. To extend that duty to those who have no such connection, would be to base the test on reasonable foreseeability alone.

But surprisingly, the necessary relationship can be with the claimant’s property – (Attia v British Gas plc (with house), Owens v Liverpool Corp (with favourite pet)). In Attia, the CA did not say what factors would be considered in deciding whether the psychiatric injury was foreseeable, but presumably it is the closeness of the relationship between the claimant and the ‘thing’ damaged.

Claimant’s proximity to the accident or its aftermath was sufficiently close both in terms of time and space. This means, the claimant must normally either witness the accident himself or come upon its immediate aftermath.

It is not clear what really constitutes ‘immediate aftermath’. In McLoghlin claimant’s arrival at the hospital after two hours of the accident and finding her family, was held to come within the meaning of immediate aftermath. While, in Alcock claimants’ arrival at the mortuary after some eight or nine hours to identify their relatives who had been the victim of Hillsborough tragedy was held insufficient to come within ‘immediate aftermath’.

One factor may be the state of the primary victim, and the purpose of the visit. In McLoughlin, the primary victims were still in the same state as they were after the accident.

In Alcock, the claimants’ went to the mortuary simply to identify the body. Lord Jauncey

opined that, this was very different from the case of a relative who goes within a short time of the accident to rescue or comfort the victim.

However, a more generous approach to this proximity requirement is apparent in recent cases. The CA in Galli-Atkinson v Seghal held that, aftermath of an accident can be made up of a number of components. The HL in W v Essex CC declined to strike out a parent’s claim on the basis that the parents had only been told of the abuse, without not actually witnessing it or its immediate aftermath. Although, a full discussion of this point must await the full trial of W v Essex CC (as it was only a striking-out case), it might be that, in certain circumstances, the strict time requirement that have been set in Alcock and McLoughlin might be relaxed.

The claimant suffered psychiatric injury as a result (an issue of causation) of sudden shock caused by seeing or hearing the accident or its immediate aftermath.

In Sion v Hampstead HA, the claimant had developed a stress related psychiatric illness as a result of watching his son slowly die intensive care as a result of negligent medical treatment.

It was held that as the father’s psychiatric injury had not been caused by a sudden shock, he could not recover damages for it.

A contrasting case is North Glamorgan NHS Trust v Walters. Here the claimant was the mother of a baby boy, who died after receiving negligent treatment for which the defendants were responsible. The baby was ill in hospital. Unknown to his mother at the time, the hospital had misdiagnosed his illness. She woke up to find him choking and coughing blood, and was told by the doctors that he was having a fit, but that he was very unlikely to have suffered any serious damage. Later that day, he was transferred to another hospital, where she was told – correctly – that he had in fact suffered severe brain damage and was in a coma; she was asked to consider switching off his life support machine. She and her husband agreed to this on the following day.

The events caused her to suffer a psychiatric illness, but the hospital argued that they were not liable for this as it was not caused by a sudden shock, but by a sequence of events that took place over 36 hours. The CA disagreed: it said that the ‘horrifying event’ could be made up of a series of events, in this case witnessing the fit, hearing the news that her son was brain damaged after being told that he was not, and then watching him die. Each had their own immediate impact, and could be distinguished from cases where psychiatric injury was caused by a gradual realization that a child was dying.

In many cases, causation will be difficult to prove, since in addition to the required shock, claimants will have experienced the grief of bereavement, which could equally well have caused their psychiatric injury. However, Vernon v Bosley (No.1) made it clear – provided psychiatric injury is partly caused by shock, the claimant can recover even if there were other causes.

As rightly rejected in Alcock a person watching simultaneous television would normally have no claim as the broadcasting guidelines prevent the showing of suffering by recognizable individuals. If such pictures were shown, then the transmission would normally be regarded as a novus actus interveniens. However, there may be cases where viewing simultaneous television may be treated as equivalent to sight and sound of the accident. An example was given of a televised hot air balloon event with children in the balloon, which suddenly burst into flames.

The claimant must suffer psychiatric injury as a result of directly hearing or seeing the accident or its immediate aftermath. There can be no liability where the claimant is merely told about the accident by a third party – (although in Ravenscroft & Hevican such a claim was entertained by the High Court, these were disapproved in Alcock and accordingly Ravenscroft has been overruled by the CA; but no appeal has been heard in Hevican yet).

But, the HL in W v Essex CC declined to strike out a parent’s claim on the basis that the parents had only been told of the abuse, without not actually witnessing it or its immediate aftermath. However, if a duty is to be recognised on such facts, this is best done by reference to the local authority’s assumption of responsibility to the claimants in placing the foster child with them, and not by dilution of the general requirement.

One further limitation in this area was added in Greatorex v Greatorex. Where the defendant himself is the primary victim he cannot owe a duty to secondary victim – (Greatorex v Greatorex). In this case, the defendant caused himself serious injury by negligent driving.

The claimant, his father, went to the scene as a member of the rescue service and suffered post-traumatic stress disorder as a result. He sued his son, in practice he was not suing his son, but the Motor Insurance Bureau, who compensate victims of uninsured drivers; had the son been insured, the defendant would have been his insurance company. But, the claim was dismissed on the ground that imposing a duty on people to take care of themselves so as not to shock others would impinge on the right of self-determination.

The need for reform in respect of secondary victim’s claim for psychiatric injury, has been identified by the Law Commission in its Report, Liability for Psychiatric Illness in 1998.

Their chief recommendations are – To retain the requirement of a close tie of love and affection to the primary victim in the case of secondary victims.

To remove the requirements for secondary victims to show proximity in time and space, and that the event has been witnessed by the claimant’s own unaided senses.

That the injury should be accepted even where not caused by sudden shock.

The proposals seem to be much fairer. However, it is not clear whether or not there is any likelihood of them becoming law. In light of recent response to Law Commission proposals it may be unlikely, at least in the near future.

Other cases – Rescuers: At one time it was thought that a rescuer who suffered psychiatric injury was the result of participating in distressing scenes could recover damages on policy grounds. This was the position taken in Chadwick v BRB. The policy behind this was that such selfless behavior should be encouraged and supported, and therefore should not be subject to stricter rules than those of ordinary personal injury.

But the HL in White v CC of South Yorkshire held that, in order for a rescuer to be able to recover for psychiatric damage some physical damage had to be foreseeable, so that he can claim as primary victim. He cannot claim as secondary victim as he will have no ties of love and affection with the primary victims. Thus, rescuers are not treated as a special category of secondary victims; and they are subject to normal rules on secondary victim as stated in Alcock.

Two main reasons were given for the ruling –

Once rescuer includes those who help without putting themselves in any physical danger, the line between rescuers and bystanders may become difficult to draw.

Police officers’ conditions of service (in White the rescuers were police officers) provided for them to be compensated in other ways for the psychiatric injury they had suffered. But this does not explain why volunteer rescuers should be treated in the same way as professional ones.

Other cases – Employees: The second argument made by the claimant in White was that, they were owed a duty of care as employees of the party whose negligence caused the shocking event.

The House stated that the employer’s duty to employees was not a separate tort with its own rules, but an aspect of the law of negligence, and therefore subject to the normal rules of negligence. This meant that where a type of injury was subject to special restrictions on when a duty of care would exist, these rules applied where the injury was caused by an employer to an employee, just as they would normally.

An attempt to widen employers’ liability for psychiatric injury caused by a shocking event was firmly rejected by the HL in French v CC of Sussex Police. Employees are therefore only able to claim for psychiatric injury caused by a shocking event where they can satisfy the rules on claims by secondary victims, or where they can be considered primary victims.

Other cases – Unwitting agent: Where the claimant through defendant’s negligence becomes the agent of another person’s injury or reasonably believe that he is about to do so, and suffers psychiatric injury as a result – he can recover damages if he can prove sufficiently close, both in terms of time and space, proximity to the accident or its immediate aftermath.

The leading authority is Dooley V Cammell. Here the claimant was operating a crane at the docks where he worked, when through no fault of his, it dropped a load into the hold of the ship being unloaded. He successfully claimed for psychiatric injury caused through fearing for the safety of a colleague working below. In Hunter v BCC the claim was rightly rejected as the claimant could not show the necessary proximity, he had reacted only to what he was told by a third party.

Other cases – Assumption of responsibility: Should a defendant be liable for causing psychiatric injury by carelessly passing on wrong information, or by passing on correct information in a carelessly insensitive way – is far from clear. However, there may emerge a principle in the light of few isolated cases with no clear principle (as yet) such as Allin v City & Hackney H, that a defendant should be liable if there is an assumption of responsibility to protect the claimant against psychiatric injury or if there is an ongoing relationship between the parties that entails such responsibility.

DEFAMATION Defamation has been succinctly defined by the leading tort expert Professor Winfield: ‘Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid that person’.

There are two types of defamation, libel and slander:

Libel covers statement made in some permanent form: this usually means printed or written words, but also covers film, pictures, statues and effigies. By statute it includes radio broadcasts (Sec. 1 Defamation Act 1952) and the performance of plays (Sec. 4(1) Theatres Act 1968).

Slander applies to statement made in a transitory form, such as spoken words or gestures.

But, the distinction is not always straight-forward. In Youssoupoff v MGM Pictures, the court had to consider the status of the spoken words in a permanent form, in the context of a film.

Slesser LJ held that the film pictures, being ‘a permanent matter to be seen by the eye’ could be regarded as libels. He also found the speech to be libel, but not simply because it too was permanent: in his view, it amounted to libel only because it was ‘part of one complex, common exhibition’. To him, it was because the sound recording was ‘ancillary’ to the visual image that it could be regarded as libel rather than slender: it was ‘an ancillary circumstance…… …….explaining that which is to be seen’.

Thus, where a sound recording exists independently of any visual image, Slesser LJ’s reasoning suggests that the liability would arise only in slander. Yet, this ignores the fact that although the words are merely heard, they are permanently recorded which, it is submitted, suggests that they should be considered libel.

Libel is actionable per se (means on its own or alone sufficient ground for bringing an action), but slander is only actionable where the claimant can show that he has suffered special damage; that is not too remote. However, there are few exceptional situations where the claimant is not required to prove special damage for slander. The exceptional cases are as follows – Where the imputation is that the claimant has committed a criminal offence punishable with imprisonment (as seen in Hellvig v Mitchell), Where the imputation is of un-chastity or adultery on the part of a woman or girl (Sec. 1 Slander of Women Act 1891, as seen in Kerr v Kennedy), Where it is imputed that the claimant is infected with a contagious or infectious disease likely to prevent others associating with the claimant (as seen in Taylor v Hall), Where the words impute unfitness, dishonesty or incompetence on the part of the claimant in relation to any offence, profession, calling, trade or business (Sec. 2 Defamation Act 1952).

ELEMENTS OF DEFAMATION: To succeed in an action for defamation, the claimant must prove three things – •

The statement is defamatory,

•

The statement refers to the claimant, and

•

The statement has been published to a third party.

Note, in the case of a libel merely committing the tort without a defence is sufficient for liability, but with slander a defendant will only be liable if the defamation has caused the claimant special damage (subject to the exceptions discussed above).

THE DEFAMATORY STATEMENT: To be defamatory, a statement must ‘tend to lower the claimant in the estimation of right thinking members of society generally’ – (Sim v Stretch), or lead to the claimant being shunned or avoided – (Youssoupoff v MGM Pictures). In the more recent case of Berkoff v Burchill, in which the claimant was described as ‘hideously ugly’, it was held by the CA that, although insults that did not diminish a person’s standing are not defamatory, a statement can be defamatory if it held up the claimant to contempt, scorn or ridicule, or tended to exclude him from society, even if the statement did not impute disgraceful conduct or any lack of business or professional skill.

In Byrne v Deane, the claimant was a member of a golf club, whose owners illegally kept gambling machines on the premises. Someone reported them to the police, and afterwards a poem was posted up in the club, implying that the claimant had been the informant. He sued, and won the original case, but on appeal the courts held that the suggestion was not defamatory, because a right-thinking member of society would not think less well of someone for telling the police about criminal activity. It did not matter that the claimant would be less well thought of by his fellow club members. So, the fact that, a section of the public with which the claimant has the closest contact thinks less of him is not enough, if the views are not shared by right-thinking members of the society.

The intention of the defendant in making the statement is wholly irrelevant – (Cassidy v Daily Mirror), although this may help to support a defence of unintentional defamation.

The judge has to be satisfied that the words are capable of being defamatory. The jury will then decide whether the words are in fact defamatory.

Defamation is not confined to direct attacks on the claimant’s reputation. To protect the claimant’s reputation defamation may also include implied or veiled attacks, which are generally known as ‘innuendo’. There are two types of innuendo: true (or legal) and false (or popular).

A true innuendo is one where the statement contains nothing of a defamatory nature, but when combined with some special facts and circumstances known to the readers of the publication appears defamatory. In Tolley v Fry, the claimant was the English amateur golf champion and he was featured, without giving his consent, on a poster advertising the defendant’s chocolate bar. The text of the poster compared the excellence of the chocolate bar with the excellence of the claimant’s swing. The claimant alleged that this constituted an innuendo, because it implied that he had agreed to feature in the poster for personal gain and that he had flouted the rules relating to his amateur status. It was held that the poster was capable of being defamatory and the jury indeed found that he had been defamed.

Another example is Cassidy v Daily Mirror. Here, a picture was published which showed Mr. Cassidy with a young lady under a heading which stated that she and Mr. Cassidy had just announced their engagement to be married. The claimant was Mr. Cassidy’s wife, and this was generally known to be the case even though they led separate lives. She was unable to prove that several people believed, as a result of the publication, that she was ‘living in sin’ with Mr. Cassidy; a serious problem for her in the 1920s. It was held that the words were capable of being defamatory and, once a jury considered the issue, it was decided that the defendant was liable.

A false innuendo is one where a reasonable person guided by general knowledge considers the statement to be defamatory from the natural and ordinary meaning of the words. In Lewis v Daily Telegraph, a paragraph in the newspaper had stated that the Fraud Squad were investigating the affairs of a company and its chairman, Mr. Lewis. This was in fact true, but it was claimed that the paragraph contained an innuendo: that the company was being operated in a fraudulent and dishonest way. The HL stated that a reasonable person might infer from the paragraph that the company and Lewis were suspected of fraud, but would not assume that Lewis and the company were guilty of such conduct. As there was no evidence of some special facts to support the claim as a true innuendo, it was rejected by the HL. The court will not allow a claimant to point a particular sentence in isolation, but will examine the statement in its whole context. Accordingly, in Charleston v NGN where two well known actors had their faces superimposed in pornographic photographs in a newspaper, and the accompanying text stated that they were innocent and unknowing participants, no action in defamation lay. It was argued that a significant proportion of readers skimming through the newspaper would only read the headlines and look at the photographs, and would come to the wrong conclusions. The court refused to approach the case in this way.

‘Defamatory’ was judged by the standard of the ordinary reasonable person, who would have taken the trouble to discover what the article was about. It was therefore irrelevant that the newspaper may have some readers who only read the headlines.

In Charleston v NGN, the HL held that, an explanation can neutralize defamatory statements only if it is obvious to the reader. So, the decision of Charleston would have been different had the explanatory texts were given further down the article or on a continuation page.

REFERENCE: A claimant will only be able to bring an action for defamation if he or she can show that the words in the statement referred to him or her. Otherwise, the claimant would not have standing to sue.

This is not a problem where the claimant is individually named, for example, ‘David cannot be trusted’. Difficulty arises when the defendant makes general statements – such as, ‘politicians cannot be trusted’; or does not name the claimant expressly – such as, ‘the man with blue eyes cannot be trusted’. The claimant will have to prove that an ordinary reasonable person with knowledge of all the circumstances would recognise that the person referred to is the claimant.

As with the question of defamatory meaning; the defendant need not have intended the statement to refer to the claimant – (Hulton v Jones, Newstead v London Express).

Accordingly, where a defamatory statement is intended to refer to a fictitious character – (Hulton v Jones), or to someone other than the claimant – (Newstead v London Express), the defendant will be liable for defamation of the claimant, if a reasonable person with knowledge of all the circumstances would think the statement referred to the claimant.

Whether cases like these can now withstand the passage of the Human Rights Act 1998 is highly questionable, as there is arguably an infringement of the Art-10 right to freedom of expression. In O’Shea v MGM Ltd. (2001) an advert for an adults-only internet site contained a picture of a well known glamour model. It was alleged that the picture was look a like of the claimant and was defamatory of her as it suggested that she was promoting a pornographic website. However, Morland J concluded that:

“The strict liability principle should not cover the ‘look-alike’ situations. To allow it to do so would be an unjustifiable interference with the vital right of freedom of expression disproportionate to the legitimate aim of protecting the reputations of ‘look-alikes’ and contrary to Article 10”.

But, whether this first instance decision can be confined to cases involving ‘look-alike’ photographs, or whether it ought (logically) to be extended to cases where articles alone are printed in newspapers with no accompanying photographs, will be for future courts to decide.

Perhaps, Morland J simply felt obliged to confine his judgment to cases involving photographs because Hulton v Jones and Newstead v London Express were decisions of the HL and CA respectively. At the very least, it is clear that the courts are increasingly concerned, in general terms, about infringement of Article 10 (e.g. Jameel v Dow Jones (2005), Steel & Morris v UK (2005)).

It is not necessary that there should be any ‘peg or pointer’ in the defamatory words, but only that reasonable person with knowledge of all the circumstances might understand the words as referring to the claimant – (Morgan v Odhams: A newspaper article alleged that a girl had been kidnapped by a dog-doping gang and kept at a house in Finchley. No one was mentioned by name in the article except the girl. At the relevant time the girl had been voluntarily staying with the claimant in Willesden. The claimant sued for libel and called six witnesses who though the article referred to the claimant. The HL held there need be no key or pointer in the words themselves, and that the claimant can introduce extrinsic evidence to show that he was referred to. On these facts there was sufficient material to leave to the jury).

Criticism of group of individuals will not support an action for defamation, unless the group is so small that a reasonable person would believe that every member of it is targeted, or there are some particular reference in the statement which a reasonable person would find singling the claimant out – (Knuppfer v London Express: The article in question had criticized the young Russian political party Mlado Russ, which had a small British branch of 24 members of which Knuppfer was the head. He claimed that his position as head was enough to single him out from the group. The HL disagreed. There was not even a reference to the British branch in the article, but concerned the party generally. A reasonable person would therefore not have found Knuppfer to be singled out in the article). In Aspro v Owners Abroad Group, the CA accepted that the defamatory statement about the conduct of the affairs of a small family company could be understood as referring to each of the company directors.

PUBLICATION: Publication is communication of the libel or slander to a third party. This is obviously satisfied by the printing of an article in a newspaper or book or shouting a remark in front of other people, provided the words are intelligible to the third party.

Problem arises when the defendant alleges that he did not intend to publish the statement, or it was meant to be a private remark between the claimant and the defendant. As with other elements, intention is irrelevant.

If it is reasonably foreseeable that the statement might come to the knowledge of a third party, publication will exist. In Theaker v Richardson, the defendant was liable for sending a defamatory letter to a married woman, which had been opened by her husband; on the ground that it was foreseeable that the husband would open the letter. By contrast, in Huth v Huth, a letter was sent in an unsealed envelope by the defendant to the claimant. The butler secretly

read the letter without the claimant’s permission. This was not treated as a publication, as the defendant could not have foreseen the butler’s behavior, so he was not liable for defamation.

Original defamer will remain liable for the re-publication by the third party, where the original defamer actually knew what he said was likely to be reported and repeated, or where a reasonable person in his position would have known this – (McManus v Beckham).

DEFENCES: Justification: It is a defence for the defendant to prove that the words alleged to be defamatory were true. Notice that the burden of proof here is on the defendant to prove that the words are true, rather than on the claimant to show that they were untrue.

To achieve this, the defendant may also raise matters with a ‘common sting’ in support of his or her claim of justification – (Williams v Reason: a Welsh amateur rugby player sued in respect of an article which accused him of writing a book for profit, contrary to his amateur status. The defendants claimed justification and were permitted to allege in support of the article that the player had previously taken money for wearing a particular brand of boots.

The sting of the defamatory words was that Williams had compromised his amateur status (so called ‘shamateurism’) and the evidence of the boot money went to justify that charge).

The defence will not fail if the statement is substantially true, inaccuracy on minor points of detail are disregarded – (Alexander v North Eastern Rly: Defendants published notice that claimants had been sentenced to a fine of £1 with the alternative of three weeks’ imprisonment: in fact the alternative was only two weeks’ imprisonment; Sec. 5 Defamation Act 1952).

Where an innuendo has been pleaded the truth of that must also be proved, proving the truth of main allegation is not sufficient – (Wakley v Cooke: The defendant called the claimant a ‘libellous journalist’. He proved that a judgment against the claimant for libel had once been obtained; but because the defamatory statement complained of, implied that the journalist habitually libelled people, the defendant ultimately failed to justify his remark).

It is irrelevant that the defendant’s intention was malicious. The only exception to this can be found in Sec. 8(5) Rehabilitation of Offenders Act 1974; a spent conviction may be proved for the purpose of establishing the defence of justification, fair comment or qualified privilege; unless the publication is proved to have been made with malice.

In practice justification is rarely pleaded, because if it fails damages may be higher than they would otherwise have been, to mark the fact that the defamer has persisted in the untruth.

Fair comment: For the defence of fair comment to succeed, the defendant must prove the following – •

The statement was on a matter of public interest,

•

The statements was a comment based on a true set of facts, and

•

The statement was honest and fair.

Public interest: Whether a matter is one of public interest is a question to be decided by the judge, but the courts have chosen to define it very widely.

Public interest does not translate into any topic which the public is interested in, but matters in which people generally are legitimately interested or concerned – (London Artists v Littler). The case itself concerned a letter published by the defendant which alleged that the claimant had plotted to bring a successful play to an end by enticing the four principal performers to terminate their contracts. The defendant pleaded fair comment as a defence on the ground that the closure of a successful play was a matter of public interest. It was held, applying the test noted above, that people were legitimately interested in what went on in the theater and that people in the show business industry welcomed publicity and so the matter was one of public interest.

Comment on public conduct of people in public offices, but not their private conduct is within the defence. Matters of government and public administration, including local government are also within its scope. The management of institutions of substantial public concern, such as the media itself or religious institutions is also a matter for fair comment.

Anything submitted to the public for its appraisal is of public interest. Books, articles in periodicals and newspapers, plays, and radio broadcasts (themselves being film criticisms) are examples. The work of an architect and the performance of actors in public entertainments are also within the defence. Indeed, any circumstances that may fairly be said to invite comment are within its scope.

Comment: What is a comment and what is a statement of fact, is not always easy to determine. In Kemsley v Foot, the defendant published an article which referred to one of the Beverbrook newspaper under the heading ‘Lower than Kemsley’. Kemsley was the owner of another group of newspapers. This appeared to be a statement of fact. But the HL decided that, as the conduct of the Kemsley press was the fact upon which the statement was made the defence of fair comment was available.

This case establishes, it is not necessary that the facts on which the comment is based should be stated in the comment itself, as long as it is capable of being inferred from the comment.

In Kemsley, the heading sufficiently indicated the facts upon which the comment was made.

However, a more restrictive approach is apparent in Telnikoff v Matusevitch.

In Telnikoff v Matusevitch, claimant wrote an article in the Daily Telegraph criticising the BBC Russian service for over-recruiting from Soviet ethnic minorities. The defendant published a reply in the same paper accusing the claimant of racism. The majority of the HL held that in considering whether a statement in the defendant’s letter was fact or comment, the letter must be considered without reference to the original article for context. Their Lordships reasoned that many readers of the letter would not have read the article or have limited recollection of its contents. It should therefore be judged in isolation. The majority argued that, the facts upon which the alleged comment was made had to be stated in the statement.

Thus, it establishes – words contained in one publication have to be considered solely in the context of that publication, they cannot be looked at in the context of other publications upon which the defendant claims to make the statement. (For a structure as to how these two cases should be used in an exam question, see: Subject Guide, Activity 12.6 (page 186) along with the Feedback 12.6 (page 198)).

At common law, the defendant was required to establish the truth of each and every factual matter upon which the publication purported to comment. But, by virtue of Sec. 6 Defamation Act 1952, the defendant needs no longer prove that every factual allegation is

true, so long as such allegations as are proved to be true form a sufficient basis for his comment.

Honest and fair: It is for the jury to decide on an objective basis, whether the opinion however exaggerated, obstinate or prejudiced was honestly held by the person expressing it – (Reynolds v Times Newspaper, Branson v Bower (No.2)).

However, the defence will not be available if the claimant can show that the defendant acted out of malice – (Thomas v Bradbury Agnew).

Qualified Privilege (at common law): At common law, the traditional definition of where qualified privilege will apply comes from Adam v Ward in which Lord Atkinson explained that – ‘A privileged occasion is ………. An occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential’.

In view of the importance given to freedom of expression it has been questioned whether the media should always be able to claim qualified privilege for any story they publish, especially when they concern political information. In Reynolds v Times Newspaper, the HL firmly rejected any general head of qualified privilege. They held that the traditional test of duty in disseminating the information and interest to receive it should continue to apply.

The correlative ‘duty and interest’ aspect is generally missing in such cases – for the public at large can but rarely claim a genuine interest in the disclosure of information. However, occasionally an item of information will be of genuine public interest; and where this is so and a media acts responsibly in publishing the item in the form it does, it may claim a qualified privilege. A somewhat lengthy test for establishing whether a media has acted in this fashion was set out by Lord Nicholls in the HL in Reynolds v Times Newspapers. He said: Depending on the circumstances, the matters to be taken into account include the following – • • • • • • • • • •

The seriousness of the allegation; The nature of the information and the extent to which the subject matter is of the public interest; The source of the information; The steps taken to verify the information; The status of the information; The urgency of the matter; Whether comment was sought from the claimant; Whether the article contained the gist of the claimant’s story; The tone of the article; and The circumstances of the publication, including timing.

(For an example as to how these criteria should be used in an exam question, see: Subject Guide, Activity 12.7 (page 189) along with the Feedback 12.7 (page 198)).

The test is one of responsible journalism, and it is for the media with reference to the 10 criteria listed above, to demonstrate to the court that they deserve the defence of qualified privilege.

The court said in Reynolds that this list was not necessarily exclusive and other factors might also be taken into account; the weight given to different factors would also vary from case to case. They also stated that, in weighing up these factors, the courts should have regard to the importance of freedom of expression, and should be slow to conclude that a publication was not in the public interest, especially where information was already in the field of public discussion. This potentially gives the media a high degree of protection for important stories which are fairly handled.

In the Reynolds case itself, the HL agreed that the subject was one of legitimate public concern. On the other hand, the allegation made was a serious one yet the paper had not mentioned Mr. Reynold’s explanation for the events concerned, even though this was available to them. As a result, they found that the story was not covered by qualified privilege.

In Bonnick v Morris, the defendant paper published a story about a state-owned Jamaican company, JCTC, entering into two contracts with another company Prolacto. The claimant worked for JCTC but had left shortly after the second contract was entered. The newspaper report stated that the contracts were unusually advantageous to Prolacto, and that the claimant had left JCTC just after the second contract had been arranged. The claimant argued this was defamatory of him, in that a reasonable person would think he had acted improperly in arranging the contracts and had had to leave as a result.

The PC considered that the subject was a matter of public interest and the story was not one which was obviously defamatory (it was defamatory by implication), so the newspaper might not have thought at the time it published that the story could be defamatory. The newspaper pointed out that they had approached the JCTC for which the claimant worked but they had been unwilling to answer, and they had also approached the claimant who had explained that there was nothing suspicious about the contracts and there was no connection between them and his leaving the company.

But in Loutchansky v Times Newspaper, the standard of responsible journalism had not been met as: some of the sources were unsafe, while the allegations were vague and the paper had not made enough effort to check them. The paper had tried to contact Mr. Loutchansky, but the judge said that, they should have tried harder, and although the story stated that Mr. Loutchansky had repeatedly denied the allegations, this bare statement did not amount to giving his side of the story.

Failure to comply with all of these ten points will not be fatal, where the journalism appears responsible – (Jameel v Wall Street Journal). The HL held that these criteria were merely intended to be used as guidelines for judging whether a story should be protected by the defence; they were not specific tests that the media had to pass in order to claim the defence.

Responsible journalism is something which should be instinctively recognised, according to Lord Hoffman is “as objective and no more vague than standards such as ‘reasonable care’ which are regularly used in other brances of law”.

In Jameel, a wealthy Saudi Arabian businessman sued the Wall Street Journal after it published a story stating that the Saudi Arabian government had monitored the bank accounts of a number of prominent Saudi citizens, including Mr. Jameel, at the request of US government, to ensure that they were not providing money to terrorist groups, either knowingly or unknowingly. Mr. Jameel claimed that the article was defamatory, because it implied there were reasonable grounds to suspect he was involved in funding terrorism.

The paper could not satisfy all ten of the Reynolds criteria, as they were requested to delay the publication for 24hrs, so that the claimant who was abroad could comment, but this was not accepted. Despite this, they afforded the defence. The paper had taken adequate steps to verify the story, and it was unlikely that the claimant would have made any comment that would have made a difference to what was published. Furthermore, the existence of covert surveillance by the highly secretive Saudi authorities would be impossible to prove by evidence in an open court.

Notably, a journalist’s failure to make further inquiries after an anonymous tip-off, or to include the claimant’s side of the story, would surely constitute irresponsible journalism where he expressly alleged the claimant to have done something wrong, but would not necessarily do so where the defamatory imputation arose only by implication – (Jameel v Wall Street Journal, Bonnick v Morris).

Book publishers and authors may also rely on this species of qualified privilege of responsible journalism – (Chairman v Orion).

Where a statement is made with malice, the defence of qualified privilege cannot apply – (Horrocks v Lowe).

Innocent dissemination: Every repetition of defamatory words is a fresh publication and creates a fresh cause of action against each successive publisher. Some of them may have no knowledge of the defamation. To mitigate the hardship to such publishers a defence is provided by Sec. 1 Defamation Act 1996.

It is now defence to show that – • • •

The defendant is not the author, editor or commercial publisher of the statement, The defendant took reasonable care in relation to the publication, and The defendant did not know, or had no reason to believe, that what he or she did, caused or contributed to the publication of a defamatory statement.

The defence was tested in Godfrey v Demon Internet: the defendant was an internet service provider, and the statement complained of was part of a message posted to an internet newsgroup by an unknown person. The message made an untrue allegation about the claimant, who asked the defendant to remove it; they failed to do so and the claimant sued for libel. The defendant claimed that they were covered by the defence of innocent dissemination, because they were not the publisher of the statement, and they had no reason to believe that they had contributed to the publication of a defamatory statement. The court agreed that, for the purpose of the defence, they were not the author, editor or publisher of the statement, but said that they could not meet the requirement of taking reasonable care with regard to its publication, because they failed to remove it once they knew it was there.

Unintentional defamation (Offer of amends): This is not in strict terms a defence, but a form settlement introduced by Sec. 2-4 of Defamation Act 1996, whereby the defendant publishes an apology and correction and pays an agreed sum of compensation to the claimant. If a defendant chooses this defence, he must make the offer before putting forward any other defences – (Sec. 2(5)).

The offer of amends defence is available only to those defendants who did not know, or had no reason to believe that the statement in question referred to the claimant and was untrue and defamatory of him – (Sec. 4(3)).

The defence may only be invoked where the offer to make amends is in writing and states that it is such an offer under 1996 Act – (Sec. 2(3)). In addition, the offer must satisfy three further prerequisites: it must contain a correction to, and apology for, the original statement; it must state a willingness to publish that correction and apology; it must make clear that the publisher consents to pay to the aggrieved party such sum as may be agreed between them, or as may be determined judicially – (Sec. 2(3),(4)).

If the offer is accepted, Sec. 3(2) prohibits the aggrieved party from subsequently bringing or continuing defamation proceedings. On the other hand, if the offer is not accepted, it will serve as significant mitigation by virtue of Sec. 4(5) as seen in Nail v NGN Ltd.; unless the claimant can show that the defendant knew or had reason to believe that the statement referred to the claimant and was false and defamatory of him – (Sec. 4(3) as applied in Milne v Express Newspapers (No.1), Horrocks v Lowe).

Any defendant wishing to use this defence is debarred from resorting to any other defence (such as justification) – (Sec. 4(4)). This means he is forced to choose between: (1) definitely paying moderate damages (either agreed with the claimant, or judicially determined); and (2) risking paying damages in full if another defence – such as justification – should be held not to be available.

REMEDIES: There are two main remedies for defamation – damages & injunctive relief. Damages for defamation may simply compensate for the claimant’s loss; or may be exemplary, designed to punish the publisher. Exemplary damages will only be awarded where the claimant can prove that the defendant knew that a tort was being committed (or was reckless on this point) and even so went ahead on the basis that the profits to be made from the publication would far exceed any damages which might be payable.

In the past there has been much concern at the size of the awards of the damages in defamation cases. The level of damages has been essentially an issue for the jury and in a string of high-profile cases, juries awarded what appeared to be excessively high damages.

Sec. 8 of the Courts and Legal Services Act 1990 gives the CA the right to overturn a jury decision on the amount of damages and substitute ‘such sum as appears to the court to be proper’. The CA used this power in John v MGN Ltd. But, Kiam v MGN Ltd. makes it clear that ‘court should not interfere with the jury’s award unless it regards it as substantially exceeding the most that any jury could reasonably have thought appropriate’.

In John v MGN Ltd. it was held that damages might permissibly be controlled in two further ways. First, by the court drawing the jury’s attention to the levels of award made in personal injuries cases (while recognizing that no direct analogy can be drawn because of the different nature of the injury involved) and secondly, by allowing the court and counsel to mention to the jury what they consider to be an appropriate award and its appropriate bracket.

Injunction: a claimant may also seek an injunction, either where a defamatory statement has already been published to prevent it being published again, or where the claimant knows that the defendant plans to publish a defamatory statement to prevent this happening. Where the claimant is seeking to prevent initial publication, they will be asking for an interlocutory injunction, which means one that is granted without the issue actually being tried by the court.

This would amount to a restriction of freedom of speech without the benefit of full consideration by the court. For this reason, the courts have always been reluctant to grant interlocutory injuctions in defamatory cases; in Bonnard v Perryman it was stated that they should only do so in the clearest cases, where it was obvious that any reasonable jury would say the statement concerned was libellous.

This traditional principle has been further strengthened by Sec. 12 of HRA 1998, which provides that, interim injunctions in cases affecting freedom of expression should not be granted unless the court is satisfied , if the case go to trial, the claimant is likely to be able to establish that publication should not be allowed.

The result is that, interim injunctions in libel cases are only likely to be granted where the claimant can convince the court that the defendant is planning to publish defamatory stories which are obviously untrue; and there is no arguable defence, or a defence put forward is certain to fail.

WHO CAN SUE: Any human being can sue, but the claim does not survive death – (Sec. 1(1) Law reform (Miscellaneous Provisions) Act 1934). It is only a living person who can bring an action in defamation. A dead person cannot be defamed, no matter how distressing the defendant’s statement is to the deceased’s relatives.

Companies which are deemed to have business reputation can also sue for defamation. But a governmental body – (Derbyshire CC v Times Newspapers Ltd.) or political parties – (Goldsmith v Boyruh) cannot. It is considered to be contrary to freedom of expression in a parliamentary democracy to allow such bodies to bring actions which might discourage criticisms of their actions. However, this does not prevent individual councilors or MPs from suing.

NUISANCE & RYLANDS v FLETCHER PRIVATE NUISANCE: Winfield and Jolowicz define private nuisance as an ‘unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection, with it’.

Three type of private nuisance can arise in practice: Physical injury to land (for example, by flooding or noxious fumes), Substantial interference with the enjoyment of the land (for example, smell, dust and noise), Encroachment on a neighbour’s land (for example by spreading roots or overhanging brances, which is of minor significance).

WHO CAN SUE: Only those with interest in land (this will include landowners and tenants, but exclude licensees) or exclusive possession of the land will be able to sue – (Malone v Lasky, Hunter v Canary Wharf). In Khorasandijan v Bush, a daughter was permitted to sue in private nuisance to obtain an injunction to stop persistent telephone calls to her parent’s home where she lived.

But after Hunter, it is not enough to live with one’s parents. Accordingly the HL in Hunter held that Khorasandijan was wrong. However it should be noted that the HL was influenced

by the introduction of the protection afforded by Harassment Act 1997, which imposes criminal & civil liability for harassing behaviours.

Notwithstanding, the fact that Hunter is decision of the HL, it is now highly questionable in the light of the HRA 1998 whether this rule will survive for very long. The English courts are now required to develop the common law in a manner that is consistent with the rights embodied in the ECHR, and Article 8(1) of that Convention affords all citizens an equal respect for their private lives. Since this right is not contingent upon a proprietary interest in the land affected by the disturbance complained of it is arguable that the common law’s insistence on such an interest is now inconsistent with the right to respect for privacy afforded by Article 8.

This was accepted in McKenna v British Alumunium, though this is a weak authority being a striking-out case. Notably, a restrictive approach is taken by the HL in Marcic v Thames Water which employed the approach taken by the ECtHR in Hatton v UK. Thus, the potential effect of the HRA 1998 remains to be seen.

BRINGING THE ACTION: Where a person’s use of land causes unreasonable interference with another person’s use or enjoyment of his land, or some right over or in connection, with it; then it is likely to regarded by the court as unlawful, and therefore a private nuisance. Accordingly in Southwark LBC v Mills, Baxter v Camden LBC it was held that, the activity complained of must result in interference which is more than the inevitable result of ordinary life.

In deciding whether interference is unreasonable, the court will take into account all the circumstances and in particular the following factors: Damage to property or personal discomfort: The courts are more willing to find a nuisance where physical damage to property has been caused. Personal discomfort will normally have to be substantial to merit a response – (Walter v Selfe, St. Helen’s Smelting Co. v Tipping).

Whether the interference is substantial is to be determined on a case-by-case basis. Loss of a single night’s sleep has been held sufficient in Andrea v Selfridge; so is using adjoining premises for the purpose of prostitution in Thompson-Schwab v Costaki.

The nature of the locality: Nuisance will be judged according to the area in which it occurs.

For example, emission of smoke from a factory will not be considered a nuisance in an industrial estate, but would be likely to be found to be nuisance in a largely residential area.

Thesiger LJ stated classically in Sturges v Bridgeman: ‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’. Note, where actual physical damage is caused as a result of the activity, the issue of the locality is not relevant – (St. Helen’s Smelting Co. v Tipping).

Planning permission will not by itself provide immunity from a nuisance action – (Wheeler v JJ Saunders) unless it changes the character of the locality – (Gillingham BC v Medway Dock Co). In Gillingham, planning permission was granted to convert a naval dockyard into a commercial port with the result that there was a substantial increase in heavy traffic, especially at night. It was held that no nuisance was committed on the basis that the character of the locality had changed. On the other hand, in Wheeler, planning permission granted to a farmer to build two pig housing units on land next to that owned by the claimant was not held to have changed the nature of the entire locality. Thus, whether a planning permission changes the character of a neighbourhood seems to be a question of fact.

Duration and frequency: The longer and more frequent the interference continues, the more likely it will be found to be a nuisance – (De Keyser’s royal Hotel v Spicer Bros Ltd).

This does not mean transitory or isolated incident cannot be nuisance. A one-off or isolated event that arose from a dangerous state of affairs on the defendant’s land is actionable – (S.C.M. (UK) Ltd. v W.J. Whittal); but in such cases claimant is more likely to sue under the rule in Rylands v Fletcher.

Similarly, the fact that interference is transitory does not mean that it cannot amount to a nuisance. The question frequently arises in connection with building works. The courts have laid down a principle that – provided these are carried with reasonable skill and care and interference is minimised, then no nuisance is committed – (Andrea v Selfridge).

Utility of the defendant’s conduct: Defendant’s conduct can amount to nuisance even if it is for the public benefit – (Bellew v Cement Co Ltd, Adams v Ursell). Because, private nuisance is concerned with the result of the defendant’s conduct on the claimant and not on the community as a whole.

However, this may influence the court in exercising its equitable jurisdiction whether to grant an injunction – (Miller v Jackson). Most claimants in nuisance want an injunction, which orders the defendant to stop the activity which is causing the nuisance. In cases of public benefit, the courts may refuse an injunction and order damages instead; or grant only a partial injunction, so that the activity does not have to stop, but the interference with the claimant’s rights is reduced, as in Kennaway v Thompson.

Abnormal sensitivity: A claim will not succeed where the claimant’s abnormal sensitivity to interference exacerbates the effect of defendant’s activity, which would not have affected a person with normal sensitivity – (Robinson v Kilvert, Heath v Mayor of Brighton). On the other hand, as soon as the claimant has proved that a claimant of ordinary sensitivity would have been able to found a nuisance action in respect of the interference complained of, he will be compensated in full for all the damages he suffered – (McKinnon v Walker).

Malice: Where a defendant acts with malice that may make what would have been reasonable conduct, unreasonable – (Christie v Davey, Hollywood Silver Fox v Emmett).

In Christie, the claimant was a music teacher, and held musical parties in his house. The defendant, his next-door neighbour, deliberately tried to disturb both lessons and parties by blowing whistles, banging trays, shrieking and hammering on the wall. The court held that this malicious motive made the defendant’s conduct unreasonable and a nuisance. Had he no been trying to disturb the lessons, he might have had the right to make a noise, just as the claimant did with his lessons and parties.

WHO CAN BE SUED? Depending on the circumstances of the case, a claimant affected by nuisance could traditionally sue the owner of the land on which the nuisance originates, the occupier of that land or the person who created the nuisance.

The creator: Anyone who creates a nuisance by some act (rather than an omission) can be sued for nuisance, regardless of whether that person owns or occupies the land from which the nuisance originates.

The occupier: As we noted above, the occupier of premises will be liable in respect of nuisance that he has himself created. But, he may also be liable in other circumstances too.

Nuisance created by independent contractor: An occupier is vicariously liable for nuisance created by his employees in the course of employment. But as regards, nuisance created by independent contractor, an occupier can only be liable where the act done is one which in its very nature involves a special danger of nuisance being complained of – (Matania v NPB).

Thus, liability will only arise where the activities of the contractor is extra-hazardous.

Nuisance created by trespasser or act of nature: An occupier is liable for nuisance caused by a trespasser or act of nature where he has adopted or continued the state of affairs – (SedleighDenfield v O’Callaghan (case involving trespasser), Goldman v Hargrave (an Australian case tried at PC involving act of nature, an English case being Leakey v National trust)).

An occupier of land ‘continues’ a nuisance if with actual or presumed knowledge of the state of affairs, he fails to take reasonable steps to bring it to an end. The reasonableness of the defendant’s conduct will be judged subjectively – (Goldman v Hargrave). If therefore the defendant is poor, and abatement will require vast expense, the defendant will not be considered negligent. Equally less will be expected of the infirm than of the able-bodied. An occupier of land ‘adopts’ a nuisance where he uses the state of affairs for his own purpose.

The landlord: A landlord will be liable where he has expressly or impliedly authorized the nuisance. Where the nuisance is a necessary consequence of the letting, the landlord is taken to impliedly authorizing the nuisance – (Tetley v Chitty). But in Smith v Scott, a local authority was not found to have authorized the nuisance caused by a family they housed even when they were known to be a ‘problem family’ as it had inserted in their tenancy agreement a clause expressly prohibiting the commission of such acts.

In Hussain v Lancaster CC, a local authority was not found liable for the racial harassment campaign of its tenants, for two reasons: The local authority’s standard form tenancy agreement had included a clause instructing the tenant ‘not to discriminate against or harass any residents or visitors’. So, the council could not be said to have authorized these acts; as seen in Smith v Scott and Mowan v Wandsworth LBC. The tenant’s action did not involve a use of their land, which was said to be required to render the nuisance actionable.

In Lippiatt v South Gloucestershire CC, the local council was held liable for the acts of its licensees, such as causing havoc by trespassing, dumping rubbish and other acts of vandalism on neighbouring land. Hussain was distinguished on two grounds: The council was more likely to be liable for the acts of trespassers and licensees than tenants (as in Hussain). While tenants have statutory protection, it is easier to evict trespassers and licensees from land. By failing to do so within a reasonable period of time, the council found itself liable.

Here the travelers had used the land to commit the nuisance by using it as a ‘launching pad’ to commit acts of nuisance on neighbouring properties.

It is not clear, whether the acts complained of must occur on the defendant’s land for a liability to arise. It should be noted that, two relevant cases were not cited in Hussain; AG v

Corke & Thomposon-Schwab v Costaki, each of which support the argument that it is not necessary that the acts complained of occur on the defendant’s land. Recent rejection to this approach is apparent in L. E. Jones v Portsmouth CC (2003). J. O. Sullivan in ‘Nuisnace, Local Authorities and Neighbours from hell’ (2000) described – “nuisance is universally defined simply as unlawful interference with the plantiff’s enjoyment of his property, whether or not it derives from defendant’s use of his property”.

It is not clear, whether claimants in cases such as Hussain should be able to invoke Article 8 of the ECHR against local authorities to force them to stop their tenants creating a nuisance.

Deborah Rook concedes that, provided the local authority adopts a decision-making process which satisfies proportionality and does not impose a disproportionate burden on the persons concerned, it may escape liability. Hussain is however on appeal to the ECtHR. DEFENCES: Statutory authority: There will be no liability in the absence of negligence where a statute orders something to be done and doing that thing inevitably creates a nuisance.

The activity complained of may be expressly or impliedly authorized. In the absence of express authorization, the courts will interpreted the Act to ascertain whether the authorization is implied – (Allen v Gulf Oil Refining Ltd).

In Allen, residents in the area where the defendants were operating an oil refinery brought an action claiming that the refinery was causing a nuisance. The company pleaded in their defence that, the nuisance was an inevitable result of operating the refinery, which they had power under statute to do. The relevant Act only gave express permission to the company to compulsorily purchase land and to build the refinery, but did not expressly give them power to operate it. However, the courts said that it must have been Parliament’s intention that they should also operate the refinery, so such a power could be inferred. As Lord Diplock pointed out: “Parliament can hardly be supposed to have intended the refinery to be nothing more than visual adornment to the landscape in an area of natural beauty. Clearly the intention of Parliament was that the refinery was to be operated as such ……”.

Since the alleged nuisance was an inevitable consequence of the operation of the refinery arising from its ordinary working, the defence of statutory authority succeeded and an injunction against the operation of the refinery was refused.

But, the defendant must use all due diligence in performing the activity authorised by statute, if he fails to do so statutory authority will offer him no defence – (Tate v Greater London Council). Moreover, some statute may contain a ‘nuisance clause’ which specifically states that, nothing in the Act shall exonerate the undertaker from liability for the nuisance. In such a case, defendant remains liable, as seen in Department of Transport v N.W. Water Authority.

Prescription: Defendant will not be liable where the nuisance has interfered with the claimant’s interest in land for more than 20 years. Two points should be noted: it does not apply to public nuisance; and time will only start from the moment the claimant is aware of the nuisance – (Sturges v Bridgeman).

Act of a stranger: Defendant will not be liable for the nuisance caused by a third party unless he adapted or continued it – (Sedleigh-Denfield v O’Callaghan).

INEFFECTIVE DEFENCES: Coming to the nuisance: This is no defence to show that the claimant was aware of the nuisance being there before he arrived at the premises – (Bliss v Hall, Miller v Jackson).

Utility: Defendant’s conduct can amount to nuisance even if it is for the public benefit – (Bellew v Cement Co. Ltd, Adams v Ursell). However, this may influence the court exercising its equitable jurisdiction whether to grant an injunction – (Miller v Jackson).

Due to many: Where the nuisance is caused by a number of persons it is not a defence for the defendant to show that his contribution alone would not have amounted to nuisance – (Lambton v Mellish).

REMEDIES: There are three main remedies for nuisance: injunction, abatement and damages. In most cases, claimant will want to stop the nuisance. Thus, his remedy lies in an injunction. Where the nuisance is no longer continuing or where the claimant’s land has been damaged by the nuisance he or she would no doubt be seeking damages.

Injunction: This is a discretionary remedy and the claimant has no right to an injunction.

Thus, the court may decide to give damages ‘in lieu’ of an injunction – (Sec. 50 Supreme Court Act 1981). The principles governing the exercise of the court’s discretion in the exercise of this power were set out by Smith LJ in the leading case of Shelfer v City of London. There it was stated that the court has jurisdiction to grant damages ‘in lieu’ where (1) the injury to the claimant is small, (2) it is quantifiable in money, (3) it is capable of being adequately compensated in money, and (4) it would be oppressive to the defendant to grant an injunction.

Abatement: This is a remedy of limited utility and realistically only worth considering in relation to minor problems such as encroaching roots and branches. This remedy involves self-help, and allows the claimant to take steps to end the nuisance, for example by trimming back overhanging foliage. Where the claimant needs to enter the defendant’s land for this purpose, notice must be given; if it is not, the abettor will become a trespasser.

Damages: Damages will be awarded for the diminution in the value of the land or the lesser enjoyment of the use of land or its fixtures – (Hunter v Canary Wharf). In Bone v Seale, damages were awarded for personal injury. But the HL in Hunter held, claimant may obtain damages for interferences with his or her interest in land, be it physical or non-physical, but not for personal injury; as nuisance is a tort against land and not against the person.

The rule of remoteness is the same as used in negligence. That means, damages which can reasonably be foreseen is recoverable only.

PUBLIC NUISANCE: ‘Any nuisance is public which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects’ – (Romer LJ in AG v P.Y.A. Quarries). Examples include: picketing on a road (Thomas v NUM), blocking a canal (Rose v Miles), obstructing a highway by queuing on it – (Lyons v Gulliver), causing noise and disrupting traffic through a badly organized pop festival – (AG of Ontario v Orange Productions), and making obscene telephone calls to large number of women – (R v Johnson).

A claimant must prove two things to succeed in an action of public nuisance – 1. The nuisance affected a ‘class of Her Majesty’s subject’, and

2. He suffered special damage.

The issue of whether the number of people affected by a nuisance amounts to a class is a question of fact to be determined in each case – (AG v P.Y.A. Quarries). Special damage consists of damage in excess of that suffered by the public at large, as long as it is direct and substantial. It has been held to cover personal injury (Castle v St. Augustine’s Links), property damage – (Halsey v Esso Petroleum), loss of custom or business – (Benjamin v Storr). So, too, have causing inconvenience and delay, provided that the harm thereby caused to the claimant is substantial and appreciably greater in degree than any suffered by the general public – (Walsh v Ervin).

If the individual cannot prove special damage, the only other basis on which an action may be brought in tort is in the name of the Attorney General by means of a relator action – (AG v P.Y.A. Quarries) or by a local authority under Sec. 222 of the Local Government Act 1972; as seen in Wandsworth LBC v Railtrack Plc. Sec. 222(1) of the Act enables a local authority to institute civil legal proceedings in its own name where it considers it expedient to do so for the promotion or protection of the interests of the inhabitants of its area.

RYLANDS v FLETCHER: A person who for his own purposes brings on his lands 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 – (Blackburn LJ at CA in Rylands v Fletcher). The HL approved this decision subject to the addition of the requirement that the defendant’s user of his land should be non-natural.

Cambridge Water v Eastern Counties makes it clear that, in order to succeed in a claim under Rylands v Fletcher the claimant must prove the following: • • • •

The defendant brought something likely to do mischief on his land, In the course of some non-natural use of the land, Which escaped, and Caused foreseeable harm.

The rule in Rylands v Fletcher applies only in respect of things which are brought on to the land by the defendant, not to things which are naturally on the land.

The defendant must bring ‘something likely to do mischief’ on his land. In Transco v Stockport this has been interpreted to mean – defendant must bring some dangerous thing onto his land which poses an exceptionally high risk to neighbouring property should it escape.

Defendant must have brought the thing in the course of some non-natural use of his land.

Lord Moulton in Rickards v Lothian defined non-natural use as “some special use bringing with it increased danger to others, it must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community”. In Cambridge Water v Eastern Counties it was stated that, the storage of chemicals on industrial premises was a ‘classic case of non-natural use’. Just because the activity benefited the community in that it created employment did not render such use of the land natural.

The latest HL’s view on this issue was delivered in Transco v Stockport where Lord Bingham said that the rule should only apply where the defendant’s use of land was ‘extra-ordinary and unusual’. Lord Bingham also stated that the question of whether the defendant’s use of land

was of benefit to the community was not relevant, which suggests that the approach used in Rickards is definitely no longer in favour.

There must be an escape from a place where the defendant has occupation of, or control over land, to a place which is outside his occupation or control – (Read v Lyons). It is necessary that the escape takes place from land of which defendant is in occupation or control – (Smith v Scott). In Read v Lyons, the claimant was employed in the defendant’s munitions factory and was injured when a shell exploded in the factory. It was held that the Rylands principle was not acceptable, as there had been no escape of the thing causing injury from the defendant’s land. This rule creates an unfortunate distinction between those outside the premises and those inside.

Only foreseeable harm would be recoverable – (Cambridge Water v Eastern Countries). This means the defendant must have foreseen or ought reasonably to have foreseen that those things might cause damage, if they escaped.

WHO CAN SUE: Previously, there were cases like – Shiffman v Order of the Hospital of St. John of Jerusalem, and Perry v Kendrick Transport – which permitted non-occupiers of land to sue for damages.

But now, although Transco v Stockport does not specifically refers to this question, the statement that Rylands is to be seen as an aspect of nuisance law seems to confirm that an interest in land is required here, as it is nuisance itself.

DEFENCES: Contributory negligence and default of the claimant: No liability will arise if the escape is completely the fault of the claimant – (Ponting v Noakes). Where the claimant contributes to causing the escape, damages will be reduced by virtue of Sec. 1 Law Reform (Contributory Negligence) Act 1945.

Unforeseeable act of third party: Defendant will not be liable where the damage is done by a third party over whom the defendant has no control – (Ribee v Norrie); but the third party’s action must be unforeseeable – (Northwestern Utilities v London Guarantee).

Act of God: Defendant will not be liable where the escape is due solely to natural causes in circumstances where no human foresight or prudence could reasonably recognise the possibility of such an occurrence and provide against it – (Greenock v Caledonian Rly).

The issue is not whether the event could reasonably have been anticipated (as thought in Nichols v Marsland), but whether or not human foresight and prudence could reasonably recognise the possibility of such an event and guarded against it. Given that, exceptionally heavy rainfall (or any such occurrence) takes place in England few times over a year, it is hard to say that the possibility of such rainfall cannot be reasonably recognised. Thus, this defence will rarely be successful.

Statutory authority: There will be no liability in the absence of negligence where a statute imposes a duty (as opposed to mere permission as seen in Charing Cross v Hydraulic Co) on the defendant to accumulate the things which has escaped – (Green v Chelsea Waterworks).

Whether the statute imposes a duty or merely gives permission is a question of statutory interpretation.

If the reason for the escape is the defendant’s negligence the presence of statutory duty to accumulate the things will not afford him a defence.

Consent: If the claimant has permitted the defendant to accumulate the thing escape of which is complained of, then he cannot sue if it escapes. For the purpose of this defence, consent can be express or implied. Consent will be implied where the presence of the thing offers some benefit to the claimant, provided the escape occurs without negligence on the defendant’s part – (Kiddle v City Business).

DAMAGES FOR PERSONAL INJURY: Although damages have been awarded for personal injury in the past (e.g. Hale v Jennings, Shiffman v Order of the Hospital of St. John of Jerusalem, and Perry v Kendricks Transports), Lord Bingham in Transco v Stockport affirmed that ‘the claim cannot include a claim for death or personal injury, since such a claim does not relate to any right in or enjoyment of land’. The same rule applies for all forms of private nuisance.

OCCUPIERS LIABILITY For well over a century, the law has recognised that people who occupy land (including buildings on land) have a duty towards the safety of others who come onto the land. This duty developed through the common law, but in 1957 it began to be regulated by statute with the introduction of the Occupiers’ Liability Act 1957 (OLA 1957), which laid down rules about the duty of occupiers towards his ‘lawful visitors’. This was followed by the Occupiers’ Liability Act 1984 (OLA 1984), which set out the duty owed by occupiers towards those who are not ‘lawful visitors’, often termed as trespassers. The modern duty of occupiers of land is now contained in these two pieces of legislation.

The Acts are concerned only with liability to people physically in the premises. The occupier may also be liable to people outside the premises but in other torts.

OCCUPIERS’ LIABILITY ACT 1957: SCOPE Whether the Act applies only to injuries resulting from the dangerous state of premises (‘occupancy duty’), or does it also apply to injuries resulting from activity carried out on the premises (‘activity duty’) – is not clear.

Sec. 1(1) OLA 1957 states that the Act shall apply ‘in respect of dangers due to the state of the premises or to thing done or omitted to be done on them’. This could be interpreted as meaning that the Act applies to the activity duty as well. However, Sec. 1(2) OLA 1957 provides that the Act shall ‘regulate the nature of the duty imposed by law in consequence of a person’s occupation or control of the premise. This appears to include only occupancy duty.

The modern tendency seems to be to apply the Act only to occupancy duty, as seen in Ferguson v Welsh. The distinction is unlikely to make much difference as the standard of care owed at common law and the standard of care owed under the 1957 Act is almost the same (in any case, injury resulting from activities on the premises is nevertheless covered by the ordinary rules of negligence).

WHAT CAN BE OCCUPIED? Most cases involve the occupation of premises such as houses, offices, schools and so forth.

But the Act also applies to any fixed or movable structure including any vessel, vehicle or aircraft; by virtue of Sec. 1(3)(a) OLA 1957. Interestingly, in Wheeler v Copas the claimant who was constructing a house on the defendant’s land, borrowed a ladder from the defendant, without asking whether the ladder was suitable for his purpose. The ladder was not suitable for his purpose and he fell, and was injured. It was held that the defendant was not liable to the claimant under Sec. 1(3)(a) because, although the Act might in appropriate circumstances apply to a ladder, it could not be said that in this case the defendant was still the occupier of the ladder once he handed it to the claimant. The defendant was, however, liable to the claimant in negligence.

WHO IS AN OCCUPIER? The Act does not provide any definition of an occupier; instead it states in Sec. 1(2) that an occupier is a person who would be treated as such under common law. Thus, an occupier is a person who has sufficient degree of control over the premises, that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there – (Wheat v E. Lacon).

Proprietary interest in land is not necessary in order to be an occupier; and neither is physical possession – (Harris v Birkenhead Corp). The key factor is whether a person exercised a sufficient degree of control.

It follows from Wheat that, there can be more than one occupier at the same time. For example, the owner of premises and building contractors carrying out extensive works may both be occupiers in respect of aspects of the safety of premises.

WHO IS A LAWFUL VISITOR? The duty owed by an occupier under the 1957 Act is owed to those who are his ‘lawful visitors’.

A person invited by the occupier onto the premises is a ‘lawful visitor'.

A person may have an implied permission to be on the premises. Normally people may be entitled to walk up the front path to ring the door bell and make enquiries of the occupier.

Before 1984, the courts were very willing to use fictional devices in order to afford implied permission to some claimants (e.g. children), so that they would have some statutory protection. Thus, if there were alluring things on the land for children to play on, the courts treated these as in a sense inviting the children on to the land (as seen in Jolley v Sutton LBC).

Again if an occupier knew that people were in the habit of walking across his land, perhaps as a short-cut, and did nothing effective to deter them he was treated as having given them a licence to use the land (as seen in Lowery v Walker). Since 1984, trespassers have had enhanced rights under the OLA 1984, and the courts may therefore be much less willing to use such fictions.

An invitation to enter the premises may be issued by someone other than the occupier, such as the son or daughter or an employee of the occupier. There is no problem if they have the occupier’s permission to issue the invitation. But, where the occupier has forbidden them to

do so, a sensible solution would be to ask whether the visitor would expect the person issuing the invitation normally to have authority to do so – (Ferguson v Welsh, Stone v Taffe).

A person who enters under a right conferred by law is treated as lawful visitor, whether or not they have the occupier’s express permission to enter – (Sec. 2(6) OLA 1957). Policeman, firemen, and employees of public utility companies come into such a category; provided they do not exceed their power of entry. But, a person who is exercising a private right of way (Holdon v White) or a public right of way – (McGeown v NI Housing) are not treated as such.

It should be borne in mind that, the occupier may limit the permission he gives to a visitor to enter the premises regarding space – (The Calgrath), or the purpose of the visitor’s visit – (R v Smith and Jones), or the time of the visit – (Stone v Taffe). But the occupier must make clear the limits of the permission. Permission may normally be revoked, but the visitor must be given a reasonable time to leave.

Where there is more than one occupier, it is possible for a person to be a ‘lawful visitor’ in relation to one occupier, and a trespasser to another – (Ferguson v Welsh).

NATURE OF THE DUTY: Sec. 2(2) OLA 1957 provides that ‘occupiers have a duty towards visitors to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises, for the purposes for which he is invited or permitted to be there’. This is known as the common duty of care. Notably, it is the visitor and not the premises that have to be reasonably safe, e.g. by giving a sufficient warning of the existence of the danger.

A person entering premises under a contractual right is also owed common duty of care even where there is no express contractual duty of care, unless the contract expressly provides for a higher standard of care – (Sec. 5(1) OLA 1957).

Sec. 2(2) duty is a flexible duty depending on the circumstances including the purposes for which the visitor is on the premises. Examples of relevant circumstances are given in the following two sub-sections, Sec. 2(3)&(4) OLA 1957; but these are indeed only examples.

Thus, although the Act mentions the special position of children, other visitors such as the elderly or disabled (not specially mentioned in the Act) might also raise similar problem for the occupier.

The four examples given by the Act are: Children: Sec. 2(3)(a) OLA 1957 states ‘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’. This demonstrates again that, it is the visitor that must be kept safe. The reasoning is perfectly logical, what may pose no threat to an adult may nevertheless be very dangerous to a child.

In Glasgow Corp v Taylor, a child aged seven died after eating poisonous berries which he had picked off a bush in a public park. The berries resembled blackberries and were very tempting to the child. The bush was not fenced off in any way, nor was there any warning of the dangerous nature of the berries. It was held that the defendants were liable.

However, an occupier will not be liable for dangers that are obvious, even to children – (Liddle v Yorkshire (North Riding) CC). Furthermore, an occupier is entitled to assume that

very young children will be accompanied by his parents or other adult to look after them, and that may reduce the degree of care expected from the occupier – (Phipps v Rochester).

In Phipps v Rochester, the claimant was a boy aged five, who was picking blackberries with his seven year old sister. They crossed some open land where the defendants were building houses. The land was commonly used by local children as a play area, and although the defendant knew this, they made no attempt to keep the children out.

In the centre of the land, the defendants had dug a long deep trench, and the claimant fell into this, breaking his leg. An adult would have seen the danger immediately. The defendants were held not liable, because they could presume that no sensible parent would allow such young children to enter the area in question alone, without at least checking first for dangers themselves. Although the defendant’s failure to try to keep children out meant that the claimant had implied permission to be on the land, giving rise to a duty of care, the defendants were not in breach of that duty.

Courts do often face an argument that the injury to the children was not foreseeable, as to often children show considerable ingenuity in finding ways to put themselves in danger, so no liability should arise. There will be no liability on the occupier if the damage or injury suffered is not foreseeable. But, as with negligence, it is the type of damage that must be foreseen, rather than the way in which it occurs – (Jolley v Sutton LBC).

Person entering to exercise a calling: Sec. 2(3)(b) OLA 1957 states ‘an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so’. This means, where a risk normally arises in the course of a person’s work, the occupier need not take special precautions to protect that person against such a risk, so long as they allow the person to take their own precautions.

In Roles v Nathan two chimney sweeps were killed by carbon monoxide gas while working on a chimney of a coke-fired boiler, which was alight at that time. The occupier were not held liable, because they could expect sweeps to be aware of this particular danger and these sweeps had in fact also been warned of the danger. As Lord Denning pointed out, the result would have been different if the sweeps had been killed because the stairs leading to the basement had given way; only a risk relevant to the trade in question can allow the occupier to escape liability.

This does not mean that the occupier owes no duty to the skilled professional. It depends on whether the normal safeguards associated with the trade would have been sufficient to avert the loss or injury – (Salmon v Seafarer Restaurants, Ogwo v Taylor).

In Ogwo v Taylor, the defendant negligently set fire to his house. The claimant was a firefighter who was called to the house to put out the fire and he was injured while doing so.

The blaze was such that no amount of care by the claimant could have protected him, so the defendant could not rely on Sec. 2(3) to avoid liability.

Warning: Under Sec. 2(4)(a) OLA 1957 a warning will not absolve the occupier of liability unless ‘ …… in all the circumstances it was enough to enable the visitor to be reasonably safe’. What amounts to sufficient warning then will be a question of fact in each case.

An example was given by Lord Denning in Roles v Nathan. Where a house has a river in front of it and a bridge across the river with a sign saying the bridge is dangerous, this is not an adequate warning, as any visitor has no choice as to whether to use the bridge. If there

were two bridges and one of them said: ‘Danger, use other bridge’, then a person injured using the dangerous bridge would have no claim.

The warning must indicate its nature in sufficient detail for enabling the visitor to take reasonable care for their own safety. A simple notice saying ‘Danger’ will not discharge the duty. In Tomlinson v Congleton DC, the placing of signs on a beach stating ‘Dangerous water, no swimming’ which had been seen and ignored by the claimant was held sufficient.

Where an unusual danger exists, the visitor should not only be warned, but a barrier or additional should also be placed to show the immediacy of the danger – (Roe v Mars UK, Moon v Garrett). In Roe v Mars UK, here a warning notice was used in respect of a deep pit inside the entrance of a dark shed with no artificial lighting. The occupier was held liable because the pit was immediately inside the entrance and so the warning was insufficient to safeguard the visitor from the danger.

Independent contractor: An occupier is not liable for damage caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, provided – It was reasonable for the occupier to entrust the work to an independent contractor, He took reasonable steps to ensure that the contractor, to whom he entrusted the work, is competent to carry out the work, and He took reasonable steps to check, where possible, that the work had been properly done.

– (Sec 2(4)(b) OLA 1957).

If the sub-section bars the claimant from suing the occupier, they may still be able to proceed against the contractor, either as an occupier or under the common law negligence rules.

This sub-section has been liberally interpreted as regards the phrase ‘work of construction, maintenance or repair’. In AMF International v Magnet Bowling work incidental to construction was held to be covered by the phrase. Further in Ferguson v Welsh it was held that, construction included demolition.

Requirement (a): This means it must be reasonable for the occupier to hire an independent contractor in the first place. It is not obvious what this entails, for it is difficult to envisage a situation in which the court would expect the occupier to have performed those works himself in preference to an independent contractor. Nevertheless it sis submitted that, it is reasonable for an occupier to engage a contractor wherever the work to be done requires special skill (as in Haseldine v Daw) or equipment not possessed by the occupier (as in Maguire v Sefton MBC); or it is commercial practice to engage an independent contractor in the circumstances, e.g. office cleaning.

Requirement (b): among other things, the fact that the contractor fails to carry insurance for the activity is a fair indication to the occupier that the contractor is not competent – (Bottomley v Todmorden CC). Accordingly, in respect of appointing a competent contractor the occupier has a duty to check whether the independent contractor is insured or not – (Gwilliam v West Hertfordshire).

Requirement (c): Although the sub-section requires the occupier to check that the work had been properly done; it was held in Ferguson v Welsh that, the sub-section can also apply where the work was still in progress and had not been completed.

The wording of the sub-section contemplates that checking the work is not necessary in all circumstances. The guideline used by the court is that the more technical the work, the less reasonable it is to require the occupier to check it. So, in Haseldine v Daw, it was held that an occupier need not check the work of a firm of lift repairers; whereas in Woodward v Mayor of Hastings, it was held that the work of a cleaner should be checked.

DEFENCES: Contributory negligence: Sec. 2(3) OLA 1957 specifies that in considering whether an occupier has breached the common duty of care, the courts may take into account the degree of care a reasonable visitor can be expected to show for their own safety. Thus, a visitor who has failed to use reasonable care for their own safety and that failure was a cause of their damage, will have their damages reduced. In Stone v Staffe the claimant’s damages were reduced by 50% on the ground of contributory negligence.

Volenti non fit injuria: A defence of volenti non fit injuria is provided by Sec. 2(5) OLA 1957. The common duty for care does not impose upon an occupier any obligation willingly accepted as his by the visitor. The claimant must act voluntarily, so any person who has no choice as to whether they enter premises is not volenti – (Burnett v BWB).

Mere knowledge of the risk is insufficient, it must actually be accepted by the visitor, and the knowledge must be sufficient to make the visitor safe – (White v Blackmore: general knowledge that ‘jalopy racing’ was a dangerous activity did not mean that the claimant had accepted inadequate safety arrangements. The court held the occupier liable). Accordingly, a visitor will not be deemed to have accepted a risk merely because the occupier displays a notice to that effect (see warning above).

Exclusion of liability: Sec. 2(1) OLA 1957 allows an occupier to exclude his duty by contract or by notice, in so far as he is free to do so. This appears to overlap with Sec. 2(4)(a) which concerns warning. A warning is however different from an exclusion clause. The latter simply seeks to exclude liability on the happening of a specified event, while the former seeks to inform the visitor of a danger so that he can take steps to avoid it.

The occupier is however, restricted in his ability to exclude his duty in a number of ways – A major restriction on the freedom of the occupier to do this is contained within the Unfair Contract Terms Act 1977 (UCTA 1977). The 1977 Act controls, inter alia, the exclusion of liability for negligence and by Sec. 1(1)(c) this includes the common duty of care imposed by the OLA 1957.

However, the Act will only apply where the premises are used for business purposes. It is the purpose that the premises are being used for, rather than the purpose of the visitor, that is important.

The occupier cannot exclude liability for death or personal injuries caused by negligence – (Sec. 2(1) UCTA 1977). Any attempt to exclude liability for property damage will be subjected to a test of reasonableness – (Sec. 2(2) UCTA 1977). The fact that, a person was aware of an exclusionary term or notice does not in itself mean that he has voluntarily accepted the risk – (Sec. 2(3) UCTA 1977).

The notice must be clear, both in the sense of legibility and in the sense of its intended scope, and it must reasonably be drawn to the visitor’s attention before entry – (White v Blackmore).

The notice cannot exclude liability to those required and permitted by law to enter.

It has been suggested, though never decided, that the occupier’s duty cannot be reduced below the level of the duty owed to a trespasser. It would be surprising if the occupier could owe a higher duty to a person who had been forbidden to enter the property, than to a person who had permission subject to an exclusion of liability clause.

DAMAGES UNDER OLA 1957: Sec. 1(3) OLA 1957 provides that a claim can be made for personal injuries and damage to property.

OCCUPIERS LIABILITY ACT 1984: Originally an occupier owed no duty at all to those who were not lawfully on his land, as seen in Addie v Dumbreck; other than possibly to refrain from – deliberately or recklessly inflicting damage or injury. Those persons are usually referred to as a trespasser, but the category is wider than those who commit the tort of trespass to land: it includes those involuntarily on the land.

But British Railaways v Herrington, recognised an occupier owe a duty to act with common humanity to such persons when the occupier knew of the danger and of the likelihood of the trespass, and had the skill, knowledge and resources to avoid the accident.

This duty would obviously operate in fairly limited circumstances and was not without criticism or difficulties. Because of some of the impracticalities of the rule, the 1984 Act was passed.

Sec. 1(2) OLA 1984 follows the same pattern as to who is an occupier and the kind of premises covered by the Act. A trespasser has been defined by Lord Dunedin in Addie v Dumbreck as – a person who goes on to land without invitation, and whose presence is either unknown to the occupier or, if known, is objected to.

Sec. 1(3) OLA 1984 provides that, an occupier will only owe a duty to a trespasser if – He is aware of the danger or has reasonable grounds to believe that it exists, He knows or has reasonable grounds to believe that the other (i.e. trespasser) is in the vicinity of the danger or may come into the vicinity, and The risk is one against which, in all of the circumstances, he may reasonably be expected to offer the other (i.e. trespasser) some protection.

Requirement (a): Placing warning notice is sufficient to indicate occupier’s awareness of the danger involved – (Woolins v British Celanese, Rhind v Astbury Water, Keown v Coventry Healthcare).

Requirement (b): It was argued in White v St. Albans that the very presence of a warning notice showed that the occupier had reason to suspect someone was likely to come into the vicinity of the danger, but this was rejected by the CA. According to Sec. 1(4) OLA 1984, the duty is to ‘………… take such care as is reasonable in all the circumstances’ to prevent injury to the trespasser ‘by reason of the danger concerned’.

Occupier owes no duty to trespasser as regards that are obvious – (Donoghue v Folkestone, Tomlinson v Congleton). Occupier owes no duty to trespasser where the injury is caused by the trespasser indulging in dangerous activities, rather than the state of the premises or thing done or omitted to be done on them – (Donoghue v Folkestone, Tomlinson v Congleton).

It should also be noted, like the 1957 Act, Sec. 1(5) OLA 1984 provides that an occupier of premises discharges their duty to a trespasser ‘by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk’. As a general rule, the existence of a warning sign is not enough, it must be sufficiently clear to ensure that the risk is obvious.

The case of Revill v Newbery suggests that contributory negligence is also a defence to actions brought by trespassers. However it should be noted that Revill was a case decided on the basis of general negligence, rather than statutory occupiers’ liability; however CA used the 1984 Act to determine the scope of the duty owed, and so their finding on defences are likely be relevant to cases of true occupiers’ liability.

Further, under Sec. 1(6) OLA 1984, it is a defence that the trespasser willingly accepted the risk. In the case of a trespasser, the courts have adopted an objective rather than subjective test of agreement. Where the claimant is an adult, then knowledge of the risk accompanied by entry on the land will render the claimant volenti – (Titchener v BRB).

The 1984 Act does not state whether the duty under it can be excluded by the occupier. It is sometimes suggested that this implies exclusion is possible, since it is not forbidden nor made subject to any special rules under the Act. If exclusion is possible, then such exclusions would not be subject to the UCTA 1977, which is stated to apply only to the old common law and the 1957 Act; the result would be that occupiers would have a wide opportunity to exclude their liability, thus weakening the Act considerably.

An alternative view is that the duty imposed by the 1984 Act cannot be excluded, because it was designed to uphold the old common law ‘duty to common humanity’, which was unexcludable because it was a minimum standard below which the law would not allow occupiers to fall, no matter how unwelcome the visitor. Unfortunately, there is no authority on this point.

One major difference between OLA 1957 & OLA 1984 is that the latter only allows claims for death or personal injury; unlike ‘lawful visitors’, trespassers cannot claim for damages to property – (Sec. 1(8) OLA 1984). In that case, British Railways v Herrington still has a role to play.

EMPLOYERS LIABILITY An employer injured at work has three possible actions against his employer: An action in negligence for breach of the employer’s personal duty of care owed to his employee.

An action for breach of statutory duties imposed by Parliament on the employer.

The employer may also be vicariously liable for the torts committed by another employee.

We are concerned with the first of the above mentioned actions in this chapter.

An employer has a duty to take reasonable care for the safety of his employees. However, this is a non-delegable duty, not in the sense that the employer cannot delegate performance of the duty (for example, to a manager); but in the sense that liability of it cannot – (McDermid v Nash).

In Wilsons v English this duty has been defined to comprised of – ‘the provision of a competent staff of men, adequate material, and a proper system and effective supervision’.

Later cases have included a requirement to provide a safe place of work.

It is probably not accurate to regard the employer’s duty as a series of separate obligations, but rather as a single duty to take reasonable care for the safety of employees. For the sake of exposition, the duty will be analysed here in four parts. However, when the courts are considering new situations, they will not be constrained by trying to fit them into existing categories.

Notably, the employer’s personal duty is only owed to employees, and not to independent contractors who may be in the workplace, or to visitors to it (though other duties may be owed to such individuals under the normal law of negligence, or in some cases occupiers’ liability).

Competent staff: Employers have a duty to take reasonable care in selecting competent employees – (Black v Fife Coal). In Hudson v Ridge, knowingly employ a workman continually indulging in horseplay, was held to violate this duty. However, the position may be different where the employer has no casue to know that the employee has such tendencies.

In modern times action using this basic common law duty are rare because of the principles of vicarious liability. But it is still valuable in situations where vicarious liability does not apply, such as where the injury was not caused by any specific employee, or where the employee causing the injury was acting outside the course of employment as seen in Hudson v Ridge.

Adequate material: Employers have a duty to take reasonable care to provide their workers with necessary equipments and to take reasonable care to maintain it in proper condition – (Smith v Baker).

At common law, the employer did not guarantee the safety of the equipment and could not be held liable for latent defects in the equipment which could not be discovered with reasonable care, as seen in Davie v New Merton. But now Sec. 1(1) Employer’s Liability (Defective Equipment) Act 1969, provides that if employees are injured in the course of their employment as a result of defective equipment provided by their employer, and the defect is

due to the fault of a third party, the employer may be held liable, even if they are in no way to blame.

Equipment is defined by Sec. 1(3) as including any plant and machinery, vehicle, aircraft and clothing. It has been held in Cottman v Bibby that a ship is equipment. It comes within the definition of machinery or plant. In Knowles v Liverpool CC, even a flagstone was held to be an equipment.

Proper system of work and effective supervision: An employer is under a duty to take reasonable care to provide his employee with a proper system of work – (General Cleaning v Christmas), and to ensure that the system is followed accordingly – (Pape v Cumbria CC).

This duty includes such matters as organisation of work, the manner and order in which it is to be carried out, the number of employees needed for specific tasks and what each person is actually to do, safety precautions and special instructions, warnings and notices particularly to inexperienced employees.

Where an employer’s practice is in line with that generally followed in their trade or industry, the claimant is unlikely to succeed in a claim that such a practice is negligent unless it displays serious lack of concern for employees’ health and safety – (Thompson v Smith).

Safe place for work: Employer must take reasonable steps to ensure a safe place of work; but this does not mean that every foreseeable risk must be eliminated, if doing so would be unreasonably onerous – (Latimer v AEC).

Duty of care remains even where the place of work in not in the employer’s control, but the standard of care required may be lower – (Wilson v Tyneside). In Cook v Square the duty was discharged by satisfying themselves that the controller of the premises were both reliable companies and aware of their responsibility for the safety of the workers on the site.

PSYCHIATRIC INJURY SUFFERED BY THE EMPLOYEES: Walker v Northumberland CC held that, employers’ duty to take reasonable steps to ensure his employees’ safety can include – a duty not to cause psychiatric injury.

An employer owes a duty not to cause psychiatric injury to an employee resulting from workrelated stress where the psychiatric injury to that particular employee is reasonably foreseeable – (Hatton v Sutherland, Barber v Somerset BC). It should be noted that, when an employee suffers psychiatric injury as a result of witnessing a shocking event for which their employer is responsible, they must bring themselves within the normal rules which apply to claims for psychiatric injury. The claimant must either be a primary victim or satisfy the rules of secondary victims – (White v CC of South Yorkshire Police).

VICARIOUS LIABILITY Vicarious liability means that one person (even though otherwise not a tortfeasor) is liable for a tort committed by someone else. The only clear example in English law is the liability of employers for the torts committed by their employees in the course of employment.

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To succeed in a claim based on vicarious liability, the claimant has to establish that:

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The alleged tortfesor was an employee,

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The employee committed a tort, and

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The employee committed the tort in the course of employment.

ESTABLISHING THE EMPLOYEE RELATIONSHIP: As vicarious liability arises from the employment relationship and not from the relationship of employer and independent contractor, it is important to distinguish between an employee and an independent contractor. This distinction may seem an obvious one, but it has caused the courts great difficulties.

A number of tests have been used to attempt to draw a distinction. For a time the ‘control test’ originated in Yewens v Noakes was popular. If the employer retained control over the work and told a person how to do it, that person was an employee. The test reflected a society where ownership of the means of production coincided with the possession of technical knowledge and skill. The typical employer would be the Victorian engineer who knew all aspects of the work done in his firm. As so many employees are now skilled, the employer may be able to tell them what to do but not how to do it. The computer specialist, lawyer, accountant employed by a firm does not fit the control test.

The problems with the control test led the courts to search for alternatives. One suggestion was the ‘business integration test’ put forward by Lord Denning (Stevenson v McDonald and Evans). A person would be an employee if their work was an integral part of the business. An independent contractor would work for the business, but as an accessory rather than an integral part of it. On this basis it would be possible to distinguish between a chauffeur and a taxi driver, and a staff reporter and a newspaper contributor. In practice the test proved too vague too apply, as did a variation of whether the person was in business in their own account (Market Investigations v Minister of Social Sercurity).

The courts have now abandoned the search for any single factor to act as a test and will look at all the circumstances of the particular case. An early example of this is the case of Ready mixed v Minister of Pensions, where MacKenna J laid down three conditions for the existence of a contract of employment: The employer agrees to provide his work and skill to the employer in return for a wage or other remuneration, The employee agrees expressly or impliedly to be directed as to the mode of performance to such a degree as to make the other his employer, and The other terms of the contract are consistent with there being a contract of employment.

It should not be thought, however, that the courts confine themselves to these three factors.

The courts will in fact consider a wide range of factors including: The ownership of tools, plant or equipment – clearly an employee is less likely to own the plant and equipment with which he works.

The method of payment – again a self-employed person is likely to take a price for a whole job where an employee will usually receive regular payments for a defined pay period.

Tax – an employee usually has tax deducted out of wages while a self-employed person will usually pay tax annually.

Self-description – a person may describe himself as one or the other, and this will usually, but not always, be an adequate description. Level of independence – probably one of the acid

tests of status as self-employed is the extra degree of independence in being able to take work from whatever source and turn work down.

A recent addition is to determine who has the benefit of any insurance cover that might be available (British Telecommunications v James).

All of these are useful in identifying the status of the worker but none of them are an absolute test or are definitive on their own.

The courts may find that a person is an employee even in the face of an express contractual term describing them as self-employed – (Ferguson v Dawson).

Loan of an employee: Where an employer lends another the services of an employee he remains the employer and thus vicariously liable for any tort committed by the employee in the course of employment, unless he can show that it is the hirer who had control over the employee – (Mersey v Coggins: This is the position even when the terms of the contract between the two employer states that he is to be regarded as the employee of the hirer).

However, when both the general employer and the employer to whom the employee has been loaned have control over the employee, both employers can be held vicariously liable in respect of the employee’s torts – (Viasystems v Thermal Transfer).

An attempt to exclude such liability by a contractual term is caught by UCTA – (Phillips v Hyland). However an attempt to transfer such liability to the hirer employer by a contractual term is not caught by UCTA – (Thompson v T. Lohan).

Loan of a car: An owner of a vehicle will be vicariously liable for any tort committed by the driver where the driver is driving with the owner’s permission and at least to some extent for the owner’s purpose – (Ormond v Crosville Motors).

An employment agency will be regarded as the employer of the staff they provide and thus vicariously liable for any tort committed by the staff only if there is a mutuality of obligation between the staff and agency – (Dacas v Brook Street).

THE EMPLOYEE MUST COMMIT A TORT: The employer is liable vicariously liable only if the employee has committed a tort. Thus, the employer can take advantage of any substantive defence available to the employee – (ICI Ltd v Shatwell). However, where the employer has committed a tort, but cannot be sued because of some procedural bar, the employer cannot take advantage of such a defence – (Broom v Morgan: The claimant and tortfeasor were husband and wife. At that time, spouses could not sue each other, but that did not prevent the husband and wife’s employer vicariously).

IN THE COURSE OF EMPLOYMENT: The employer will only be liable for torts which the employee commits ‘in the course of employment’.

Courts have often used a test suggested by Sir John Salmond known as ‘Salmond test’, that is – an act is in the course of employment even if unauthorized, provided that it is so connected with an act authorized to be done that it may be rightly regarded as modes – although improper modes – of doing them.

In Century Insurance v N.I. Road Traffic Board, the driver of a petrol lorry, while transferring petrol from the lorry to an underground tank at a petrol station, struck a match in order to light a cigarette and then threw it, still alight, on the floor. An explosion and a fire ensued. His employers were held vicariously liable for the damage caused: as it was an unauthorized way of doing what he was actually employed to do.

In Bayler v Manchester Railway Co a railway porter employed by the defendants thought the claimant was on the wrong train and, meaning to be helpful, pulled him off it by force. The defendants were held vicariously liable, because the porter was trying to do what he was authorized to do, in helping a passenger to get to his destination, even though he was doing it so badly as to have completely the opposite effect.

Employees travelling to and from their place of work are regarded as acting outside their course of employment, unless the travel is part of the work or paid for – (Smith v Stages).

Express prohibition: Question arises as to whether an employee is acting in the course of employment where the act is expressly prohibited by the employer.

An employer who expressly prohibits an act will not be liable if an employee commits that act. However, the employer may be liable if the prohibition can be regarded as applying to the way in which the job is done, rather than the job itself – (Limpus v London General Omnibus).

In Limpus, the defendants expressly prohibited their drivers from racing with, or obstructing, other buses. Their driver, however, obstructed the claimant’s bus to pick up two passengers and in so doing caused a collision in which several passengers were injured. It was held that the defendants were vicariously liable for the tort of their driver because at the time of the accident he was simply doing an authorised act (driving a bus) in an unauthorised manner or mode.

On the other hand, in Conway v George, defendants provided transport for their employees on a construction site. The drivers were specifically told not to give lifts to employees of other companies. However, one of their drivers gave a lift to the claimant who was employed by another company (although the driver was unaware of this fact). The claimant was injured as a result of the negligence of the driver and he sued the defendants. The CA held that the defendants were not vicariously liable for the tort of the driver because at the time of the accident the driver was doing an unauthorized act (driving his van with an unauthorized passenger on board) and that it was not simply a case of him doing an authorized act in an unauthorized mode.

This seems fine in theory, but it leaves us with a difficult practical problem. The problem is how do the courts define the ‘act’ which the employee is employed to do? For example, we could reverse the results in Limpus and Conway by redefining the act which the employee was employed to do. If in Limpus we said that the act which the employee was employed to do was drive buses and that at the time of the accident he was ‘racing or obstructing other buses’ then the driver would have been doing an unauthorized act. On the other hand, if in Conway we defined the act which the driver was doing at the time of the accident as driving the bus, then he would have been doing an unauthorized act, albeit in an unauthorized manner. It can be argued that the courts have so much discretion in defining the scope of the act that they can decide the case the way they want it to go and then select the appropriate label to justify their decision.

‘Frolic of his own’: An act is not in the course of employment where it is so unconnected with the authorized act that it has to be regarded as an independent act. Where the employee acts outside the course of employment he is sometimes said to act on a ‘frolic of his own’. It is now necessary to consider what constitutes a ‘frolic of his own’.

In Storey v Ashton, the defendant employers were held not liable when their employee, after completing his deliveries, went on a detour to visit the brother-in-law. It was held that this was a new and independent journey which had nothing to do with his employment and so was outside the course of his employment.

In Williams v Hemphill, a driver had gone on a considerable detour when driving boys home, because the boys wanted to follow some girl guides who had been camping in a nearby field.

While on this detour the bus was involved in an accident and some of the boys were injured.

The driver was held to be within the course of his employment.

Lord Pearce said that it was a question of fact in each case whether the employer had gone on a ‘frolic of his own’. He considered Storey and said that had the driver been carrying, at the time of the accident, some important cargo belonging to the employer then the result might have been different. In Williams the continued presence of the boys on the bus made it impossible to say that this was a frolic of the driver’s own. This latter case suggests that it is only a new and independent journey, which is solely undertaken for the selfish purpose of the employee, which will constitute a ‘frolic of his own’.

‘Lister test’: In the cases considered so far, the employee had committed the tort of negligence. It is however, more difficult to apply vicarious liability where the employee commits deliberate wrongful conduct. Because, on the basis of Salmond definition alone it is difficult to think of many situations in which committing a crime could be described as just a different way of doing one’s job.

When we talk about vicarious liability for criminal acts committed by employees, we do not mean that the employer is prosecuted for the crime instead of the employee. The cases referred to in this section concern situation where an employee has done something which is both a crime and a tort. He or she will have been prosecuted for the crime by the state but, if their actions also fall within the definition of a particular tort, the employer can also be sued by the victim.

Until recently, the courts would only find vicarious liability where the employee was acting for the benefit of the employer – (Lloyd v Grace); or stole property that he was employed to clean – (Morris v Martin). But now, vicarious liability can be implied for deliberate wrongful conduct of the employee, where there is sufficient connection between what the employee had done and what he was supposed to do as his job – (Lister v Helsey Hall).

In this case, the employer was held vicariously liable for a series of sexual abuses perpetrated by a warden, who’s job was to care for the pupils of a residential school. There would have been no vicarious liability if the abuse had been perpetrated by a caretaker or handyman at the school, whose duties involve looking after the property rather than the pupils.

EMPLOYER’S INDEMNITY: The employer is entitled to recover from the employee the amount of any damages paid to the claimant – (Lister v Romford). The effect of the rule is that where the employer is insured, the insurance company can recover the amount it has paid under the insurance policy. Allowing insurers effectively to reclaim money from the employee means that the employers are

paying premiums for a risk which may cost the insurance company nothing. In fact, since Lister v Romford was decided, companies providing insurance to employers have informally agreed that they will not pursue their rights under the Lister principle.

DAMAGES The object of damages is to place the claimant in the position he or she would have been in, if the tort had not been committed; as far as this can be done by an award of damages.

GENERAL PRINCIPLES APPLICABLE IN PERSONAL INJURY CASES: In seeking to compensate a claimant in a personal injury case (personal injury covers both physical and psychiatric harm), the damages which may be awarded by the courts can be divided into two categories: 1. Pecuniary loss, and 2. Non-pecuniary loss.

PECUNIARY LOSS: Loss of earnings: Damages for loss of earnings come in two categories – the claimant can recover damages for his loss of earnings to the date of the trial, as well as for the loss of future earnings.

Difficulty arises in relation to loss of future earnings, as there is no real way of knowing what the future would have held for the claimant, if the accident had not happened: they might have been promoted or might have been unemployed.

The first stage in calculating future loss of earnings is to take the claimant’s net annual loss, i.e. the difference between what they would have earned and what they are earning. This is known as the multiplicand. The court will then adjust this figure to take into account factors such as promotion prospects; that are known as ‘loss of chance’ cases, where the claimant alleges that there was a significant chance that his financial position would have improved in future.

An example is Doyle v Wallace. In this case, the claimant was badly injured in a road accident and was unable to work. She had been planning to train as a drama teacher if she could get the necessary qualifications and if not she planned to get a clerical job. Her income would have been substantially higher as a teacher than as a clerk, but at the time of the accident it was too early to know whether she would have obtained the necessary qualifications. The trial judge found that she had a 50% chance of qualifying as a drama teacher, and calculated the damages for loss of future earnings on the basis of an income that was half-way between that of a drama teacher and that of a clerical worker. The CA upheld this approach.

The loss of a chance approach is generally used in cases where there is a fairly high degree of uncertainty as to whether the claimant’s financial prospects would have improved if the accident had not happened; where it is fairly obvious that they would have improved, there is no need for loss of a chance calculations. In Herring v Ministry of Defence, a part-time soldier was badly injured during a parachute jump. He had intended to apply to join the police force, and therefore claimed damages for loss of future earning on the basis of the typical police officer’s salary. The defendants argued that as it was not clear whether he

would have been accepted into the police force, the claim should be assessed on the basis of loss of a chance, but the CA disagreed. On the evidence, it was clear that even if the claimant had not got into the police force, he would have got a job with similar earning power. His damages could therefore be calculated on the basis of a police officer’s salary, with a small reduction for what are called the ‘vicissitudes of life’.

The second stage is to apply the multiplier to this figure. The multiplier is calculated by working out the number of years that the disability is likely to last. This figure is then reduced to take into account the contingencies of life, i.e. the claimant might not have liver or worked until retirement age; and the fact that they have received a capital sum which can be invested and make money, which would otherwise not be available to them.

Simply to multiply the first figure by the second would actually over-compensate the claimant. If we take, for example, an annual loss of £10,000, to be payable over 20 years, simple multiplication of these figures gives us £200,000. But, a claimant does not actually need a lump sum of £200,000 to produce an annual income of £10,000 over 20 years, because the assumption is that the lump sum is invested and so makes more money during the 20 years, with the result that the claimant would end up over-compensated. To avoid this, the court assumes that the investment will earn a particular rate of return (called the discount rate), and reduces the damages to one which on the basis of the assumed rate of return will provide the right rate of compensation, nothing more and nothing less.

Within these calculations, the rate of return on investments that the court assumes is very important – the higher the assumed rate of return, the smaller the damages; and if for some reason the claimant in practice is unable to achieve this rate of return on their investment, they will be under-compensated.

Until recently, the courts generally assumed a rate of interest of 4-5% per year. This practice was criticised by the Law Commission in its 1995 Report, which provided an unusual recommendation as well. The Damages Act 1996 responded to this recommendation by providing that the Lord Chancellor can prescribe a rate of interest for the purpose of calculating multipliers; and in June 2001 the rate was set at 2.5% by a statutory instrument.

The court appeared to be extremely reluctant to hear that a different rate would be appropriate.

Lost years: One problem which may evolve in calculating damages for future loss of earnings is the so called ‘lost years’.

Where the claimant’s life expectancy is reduced by the tort, loss of earnings remains recoverable even for the reduced period of life (called ‘lost years’), but a deduction will be made for the amount that the claimant would have spent on himself during the lost years – (Pickett v BREL).

Other pecuniary losses: A claimant can recover as damages those medical, nursing and hospital expenses which he has reasonably incurred up to the date of the trial, as well as those expenses that might be required for his future treatment.

Where the claimant has received private health care or plans to arrange future treatment privately, the possibility that the claimant could have avoided these expenses by using the facilities of the NHS is to be disregarded – (Sec. 2(4) Law Reform (Personal Injuries) Act 1948).

If claimant does make use of the NHS, he cannot recover what he would have had to pay if he had private treatment – (Lim Poh Choo v Camden and Islington AHA). But, if the claimant is treated by the NHS, then the expenses which he saves will be set off against his loss of earnings – (Sec. 5 Administration of Justice Act 1982).

Where the burden of caring for the claimant is largely shouldered by relatives or friends, the claimant can recover for such care as well, whether they are actually paid for or not – (Donelly v Joyce). But, where a wife provided gratuitous assistance in running her injured husband’s business, no damages was awarded for this in Hardwick v Hudson.

NON-PECUNIARY LOSS: Loss of amenity: Loss of amenity describes the situation where an injury results in the claimant being unable to enjoy life to the same extent as before. It may include an inability to enjoy a sport or any other pastime the claimant enjoyed before the injury, impairment of sight, hearing, touch, taste or smell, reduction in the chance of finding a marriage partner, and impairment of sexual activity or enjoyment.

Damages for loss of amenity are not affected by whether the claimant is actually aware of the loss; so unconscious claimants may claim damages as if they had not been unconscious as seen in West v Shephard.

Calculation of these damages is based on a tariff laid down by the CA, though the tariff figure can be adjusted to take into account the claimant’s individual circumstances.

Pain and suffering: Damages will be awarded for any pain and suffering which results from the injury itself, or from medical treatment of that injury. The claim may cover pain which the claimant can expect to suffer in the future, and mental suffering arising from the knowledge that life expectancy has been shortened – (Sec. 1(1)(b) Administration of Justice Act 1982), or that the ability to enjoy life has been reduced by disability resulting from the injury.

Where the injury has caused a period of unconsciousness, that period will be excluded from any claim for pain and suffering – (Wise v Kaye). But, no damages will be awarded for mere grief or sorrow - (Kerby v Redbridge HA).

The Law Commission had argued that damages were too low for non-pecuniary loss in personal injury cases, and this was accepted by the CA in Heil v Rankin with respect to the most serious cases but not for those awards assessed at under £10,000.

Damages are calculated under various headings (among others few are discussed above) and then added together, taking care that the same sum is not counted in twice.

DEDUCTION: A victim of an accident may receive money from sources other than tort damages for suffering the injury. The claimant may be entitled to state benefits as a result of their injuries and may also have private insurance or become entitled to payments by their employer.

The philosophy employed by the court is not to punish a thrifty claimant. On this basis, personal accident insurance money is generally non-deductible; as are pensions – (Parry v Cleaver). If an employee has received sick pay or wages from an employer, then this will be deducted, unless the sick pay has to be repaid out of any damages received.

There has been considerable controversy over whether social security benefits should be deductible from tort damages for personal injuries. The law is now contained in the Social Security (Recovery of Benefits) Act 1997. This provides that the value of social security benefits received by the claimant should be deducted from the compensation ordered by the court, and paid back to the state.

The Act treats compensation as having three elements – loss of earnings, cost of care and loss of mobility – and the value of benefits received can only be set off against the corresponding element in the damages awarded. Accordingly, any damages for pain and suffering are effectively protected from recoupment. For example, attendance allowance is taken into account against the heading ‘loss of care’, and income support is set against ‘loss of income’.

EFFECT OF DEATH ON AN AWARD OF DAMAGES FOR PERSONAL INJURIES: When a victim of a tort dies as a result of the tort, the claim he would have had against the tortfeasor passes to his estate – (Sec. 1 Law Reform (Miscellaneous Provisions) Act 1934).

His estate may claim damages according to the usual principles, for the period between when the cause of action arose and the death. So, if for example, someone is injured in an accident and dies six months later, the estate can claim damages for pecuniary and non-pecuniary losses, based on the usual principles for that six months period. But, no damages can be recovered by the estate for the loss of earnings in the lost years – (Sec. 1(2)(a) Law Reform (Miscellaneous Provisions) Act 1934).

Damages awarded to his estate shall be calculated without reference to any loss or gain to his estate consequent on his death – (Sec. 1(2) Law Reform (Miscellaneous Provisions) Act 1934). One exception to this rule is that the court may award the estate any funeral expenses incurred.

In addition the Fatal Accidents Act 1976 establishes two further claims: a claim by the dependants of the deceased for financial losses and a claim for the bereavement suffered.

Under the Fatal Accidents Act 1976, dependants can claim for financial losses to themselves caused by the death, including earnings spent on the dependants, savings made for their future use, non-essential items such as holidays, and the value of services rendered. However, dependants will only have a claim if the deceased would have had one; and any defence which could have been used against the deceased can be used against them.

A definition of dependants is given in Sec. 1(3) of the Act. The normal action will be brought by the surviving spouse and children, but parents and other ascendants, siblings, uncles and aunts and their issue are included. One category which deserves special mention is cohabitees. If the claimant had lived with the deceased as husband or wife for a period of at least two years, then that person is classed as dependants.

The second claim allowed by the Fatal Accidents Act 1976 is for a fixed award of 10,000 damages for bereavement, which is designed to provide some compensation for the nonpecuniary losses associated with bereavement. It is only available to the husband or wife of the deceased; or if the deceased was unmarried and a minor, to the parents. Unfortunately, it does not give children a claim for the death of a parent.