UNIT 13 – LAW OF TORT
SUGGESTED ANSWERS - JUNE 2012
Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the June 2012 examinations. The suggested answers set out a response that a
good (merit/distinction) candidate would have provided. The suggested answers
do not for all questions set out all the points which students may have included
in their responses to the questions. Students will have received credit, where
applicable, for other points not addressed by the suggested answers.
Students and tutors should review the suggested answers in conjunction with
the question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.
SECTION A
Question 1
The notion of a ‘duty of care’ originated from Donoghue v Stevenson (1932)
where Lord Atkin stated that we must take reasonable care to avoid injury to our
neighbours. He then defined neighbours as ‘persons who are so closely and
directly affected by my act that I ought reasonably to have them in
contemplation as being affected when I am directing my mind to the acts or
omissions which are called in question’. The test the neighbour principle sets
out requires proof of:
1. Reasonable foresight of harm
2. A relationship of proximity
The first of these requirements asks whether a reasonable person would or
should have foreseen the risks of his carelessness causing harm to another. If it
is reasonably foreseeable that a person’s action or inaction could cause harm to
another then he will owe a duty -Dorset Yacht Company v Home Office (1970).
This test is relatively straightforward when contrasted with the requirement for a
relationship of proximity.
In the everyday sense proximity refers to geographical closeness, however
proximity, in the legal sense, means that there must be some relationship
between the defendant and the claimant. According to Lord Atkin, proximity was
dependent upon having the party in mind when you commit a particular act or
omission and combined with the foresight of harm this would give rise to a duty
of care. In cases of personal injury and damage to property, a relationship that
gives rise to a duty of care is still established where the defendant is deemed to
have foreseen harm, however in cases of special losses, such as psychiatric
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injury and pure economic loss, closer relationships between the parties will be
necessary to establish liability.
In 1977 the case of Anns v London Borough of Merton saw the development of a
two stage test by Lord Wilberforce. He stated that there must a sufficiently
proximate relationship between the parties to give rise to a duty of care and
where this is satisfied the next question must be whether ‘there are any
considerations which ought to negative, or to reduce or limit the scope of the
duty or the class of person to whom it is owed or the damages to which a breach
of it may give rise’. This essentially required the defendant party to put forward
policy arguments to negate liability. Essentially the first stage of the test was the
neighbour test, but the second was designed to address fears regarding
floodgates, and equipped defendants with the ability to escape liability where
there were policy reasons to justify doing so. While this was an attempt to limit
the application of the original test, it failed to offer any clarification of the
definition of ‘proximity’ and in application was causing difficulty for professionals.
Anns confirmed the position in Dutton v Bognor Regis Urban District Council
(1972) where the claimant was able to sue the local authority successfully as it
was deemed they owed a duty of care based on the principle of Donoghue v
Stevenson and that it was just and reasonable on the facts that the defendants
were liable to the claimant.
Because the principles in Anns had begun to expand into professional liability it
was overruled by Murphy v Brentwood (1990). The court indicated that the
problem lay in Lord Wilberforce’s broad statements as to the duty of care. If the
case had been left as good law then its principles would not have been confined
to the local authority situation.
Subsequent cases saw a further retreat and the case of Caparo V Dickman
(1990) set out the position which remains today. The case developed a three
stage test for establishing a new duty situation. Once again, the test required
the element of proximity (along with foreseeability and that it be fair, just and
reasonable to impose a duty). It is clear that the first two stages are taken from
the neighbour test and the final stage a reversal of the second requirement in
Anns, requiring the claimant to put forward policy arguments that there ought to
be a duty owed rather than a duty arising once foreseeability and proximity had
been established which then needed to be negated by policy factors.
The Caparo test is clearer in setting out that there must be a relationship of
proximity however, subsequent case law has nevertheless failed to clarify where
such a relationship will exist. In the case of Capital and Counties v Hants CC
(1997) it was held that a fire brigade owes no duty of care to the owner of a
burning building to turn up at the fire or even to perform competently when it is
actually at the scene of the fire although there is a sufficiently proximate
relationship between individual fire officers and the owner/occupier to give rise
to a duty of care on their part when performing their duties at the scene.
Furthermore, in the case of OLL v Secretary of State for Transport (1997) it was
held that the coastguards were not liable when four children died after a failure
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to organise an effective rescue attempt and that liability would only arise where
the coastguard actually made the situation worse. This is difficult to reconcile
with the notion of proximity of relationship.
In contrast in the case of Watson v British Boxing Board (2001) the defendants
were held liable for failing to provide resuscitation equipment at the ringside as
here there was sufficient proximity since injury to boxers was foreseeable.
In some instances however, the degree of proximity required is closer than that
of mere foreseeability. These situations are known as the ‘non-proximate
claimant’ and apply in situations of nervous shock and negligent misstatement.
In Bourhill v Young (1943) a woman could not be compensated for nervous
shock (psychiatric injury) as, on the facts of the case, it was held that a person
of reasonable fortitude would not have suffered nervous shock. Although the
law has developed since and liability for psychiatric injury has been extended,
the courts have sought to limit the scope of liability for psychiatric illness by
using the concept of foreseeability in an artificially restricted sense and by
making the existence of duty of care depend also upon the satisfaction of
various requirements of proximity.
Pure economic loss is another situation where proximity has been problematic.
In Hedley Byrne v Heller & Partners (1964)it was held for proximity to be
satisfied there must be a ‘special relationship’ – usually fiduciary. It is clear that
in instances of psychiatric illness and negligent misstatement proximity in the
sense of reasonable foreseeability of damage is not enough and therefore
additional control mechanisms have been imposed, and even within these
additional controls there appears to be little consistency.
The use of foreseeability and proximity tests are still relevant in establishing the
duty of care, and when a new duty situation arises the test set out in Caparo v
Dickman will apply. This does require that there be a proximity of relationship
between the parties. However, in some situations additional requirements are
imposed and therefore it is difficult to know what the law will regard as
‘sufficiently proximate’. Proximity can relate to a number of things, including
geographical proximity to determine the proximity of relationship. The law is not
sufficiently clear to establish a clear definition of proximity and it is therefore
sometimes difficult to predict whether a duty of care will exist in new duty
situations.
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Question 2
The law of tort is designed to protect individuals from and offer redress to
victims of civil wrongs. Claims are arguably most common in negligence but
torts also protecting individuals’ rights to enjoy their property or to protect their
reputations are also common. However, claims for trespass to the person are
relatively uncommon and so it is arguable that this area of law is of little
relevance.
A trespass is defined as a direct and immediate interference with the protected
interest of the claimant – this can be their land (trespass to property) or, in the
case of trespass to the person, their body. A trespass requires that the action is
committed intentionally. If someone is physically harmed unintentionally or
indirectly then the more appropriate claim is in negligence, as established in
Letang v Cooper (1964). Trespass to the person is actionable per se – meaning
there is no proof of actual damage required for there to be a viable claim. All the
claimant need show is that the trespass actually occurred, however, the level of
harm suffered will determine the remedy and so if no harm can be demonstrated
the scope of remedies available may be limited.
Prior to the decision in Letang v Cooper a trespass could be committed
negligently however the law now requires that there be intention behind the
defendant’s act. In the context of ‘horseplay’ it was said that without the
intention to cause injury or sufficient carelessness or recklessness to amount to
negligence there was no tort, despite harm occurring - Blake v Galloway (2004).
Because a person’s bodily integrity and personal security is paramount, as long
as the claimant can show that a trespass occurred then they will have an action,
even where no harm is suffered. Most other torts require that the claimant show
he suffered some damage as a result of the tortfeasor’s actions. For example
claims in negligence require that not only harm be demonstrated but that that
harm is not too remote. The fact that the claimant’s actions in trespass to the
person are intentional and direct and against a person’s physical self may
account for this.
A defendant’s action must be direct as well as intentional. However, there is
also the analogous tort established in Wilkinson v Downton [1897], which relates
to the intentional infliction of harm. Where a party is caused to suffer physical or
mental harm as a result of another’s outrageous, willingly performed conduct,
they will have a claim. This principle was approved in the case of Janvier v
Sweeney (1919).
The tests for remoteness in claims for trespass to the person is not the usual
test of foreseeability of damage but rather the rule found in Re Polemis [1921].
A defendant will be liable for all the direct consequences of his intentional act,
not simply those consequences that were foreseeable. A claimant will therefore
be compensated for all non-remote financial losses, such as damage to clothing
or loss of earnings, as a result of the trespass to the person, even if these losses
were not foreseeable see Allan v New Mount Sinai Hospital (1980).
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Actions for personal injury deriving from intentional trespass to the person fall
within s. 11 of the Limitation Act 1980 and are therefore subject to the same
limitation period as claims for compensation for personal injury in negligence, as
a result of the decision in A v Hoare (2008). The decision relied on the Law
Commission report Limitation of Actions (Law Com No 270) which recommended
a uniform regime for personal injuries, whether the claim was made in
negligence or trespass to the person.
There are three categories of trespass to the person. The first of these, battery,
requires a direct application of force to another person without there being any
lawful justification. This force can be applied be either the claimant’s own body
or by an external instrument. It was stated in Cole v Turner (1704) that ‘the
least touching of another in anger is battery’. However, such a widely drawn
principle must inevitably be subject to exceptions. In the case of Wilson v Pringle
(1987) the Court of Appeal controversially suggest that there must be an
element of hostility but this has since been overruled in several cases. Lord Goff
clearly displayed doubt in Re F (1989) that the touching must be hostile, and
further said that this requirement was not reconcilable with the definition of
battery, which is that without lawful excuse the touching of another’s body is
capable of amounting to a battery. In R v Brown (1993) the House of Lords went
as far as to suggest that if an act was unlawful it was hostile.
The second category of trespass to the person is assault. This is where the
defendant has caused the claimant to apprehend the infliction of immediate,
unlawful force on his person - Collins v Wilcock (1984). As example of an assault
is where a person makes a violent gesture, such as waving a clenched fist, but is
prevented from actually reaching the claimant due to the interference of third
parties - Stephens v Myers (1830). It was once thought that the use of words
could not amount to an assault - R v Meade & Belt (1823). However, in the case
of R v Ireland (1997) the House of Lords held that an assault can be committed
by words alone, as was also the case in R v Wilson (1955). The use of silent
telephone calls have also been categorised as assault in the criminal law, under
s.47 Offences Against the Person Act 1861 (R v Ireland). The fact that the
criminal law deals with assault and battery may explain the relatively few claims
that are brought under trespass to the person.
A number of defences apply to both assault and battery. Collins v Wilcock
established that a person is deemed to consent to a reasonable degree of
physical contact as a result of social interaction – it would be impossible for a
person to use public transport for instance, without being subject to some
physical contact. Furthermore, taking part in sport is also regarded as
consenting to a degree of physical contact (within the rules of the sport) and in
some cases, even to the risk of being unintentionally injured. However there can
be no consent to deliberate acts of violence, as stated in R v Billinghurst (1978).
In addition to the defence of consent the defendant may also claim they were
acting in self-defence or the defence of others. It is a long established principle
that a person may use reasonable force to defend himself, others or his
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property. What constitutes reasonable force will be a question of fact in each
individual case.
Furthermore, the defence of necessity may exist where there is no consent. A
person will not be legally culpable where the action was necessary. However, the
line between necessary action and assault and battery is very fine, but, for
instance, where a person’s life is in immediate danger, the necessity of the
surgeon’s operating overrides any other requirement for consent. Necessity
might also apply in cases where it relates to a need to defend your own interests
or your own health, just as it might apply with respect to the need to protect the
interests of others. In such cases, there is clearly an overlap with the defence of
self-defence.
The final category of trespass to the person if that of false imprisonment, which
is the unlawful imposition of constraint upon another’s freedom of movement
from a particular place, or an infliction of bodily restraint that is not authorised
by law, as per Lord Steyne in Governor of Brockhill Prison ex parte Evans (no.2)
(2000). There can be no escape route available to the person as the restraint
must be total - Bird v Jones (1845). Furthermore, it is possible for a person to
be falsely imprisoned without his knowledge - Murray v Ministry of Defence
([1998), although if he has not been harmed he may only recover nominal
damages, confirming the obiter comments made in Meering v Graham White
Aviation (1919).
The main defence to false imprisonment is that of lawful arrest.
Victims of trespass to the person, particularly assault and battery, will usually
see justice done in the criminal courts, rather than seeking redress through the
civil courts, which may account for the relatively few actions brought under this
tort.
Question 3
(a)
The defence of volenti non fit injuria, also referred to as a voluntary assumption
of risk, roughly translates as ‘to one who is willing no harm is done’. Essentially,
the defence suggests that where a claimant consents to risk by word or action
this displaces any duty owed by the defendant to the claimant. In order to rely
on this defence the defendant must show that the claimant made a voluntary
choice, which amounts to an agreement to accept the legal risk of harm, with full
knowledge of the nature and extent of the risk.
Although the courts once took an expansive view of the scope of this defence, it
is now rare for the defence to be successful in a negligence action in the absence
of an express prior agreement.
There are three requirements for the defence. Firstly, the choice must be
voluntary. If the claimant is not in a position to exercise free choice, the defence
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will not succeed. This element is most commonly seen in relation to employment
relationships, rescuers and suicide. The claimant must be aware of all the
circumstances and in a position to make a voluntary choice.
The case of Bowater v Rowley Regis Corporation (1944) demonstrates a
restrictive conception of the defence in the employment context, in which
Goddard LJ stated ‘For this maxim to apply it must be shown that a servant who
is asked or required to use dangerous plant is a volunteer in the fullest sense;
that knowing of the danger, he expressly or impliedly said he would do the job
at his own risk, and not that of his master…’. This follows Smith v Charles Baker
& Sons (1891) in which the majority held that simply because an employee was
aware of the risk this did not mean he had consented to a lack of care.
Further to the limitation the law now puts on the availability of this defence in
the employment context, policy dictates that that some people such as rescuers
will expose themselves to risk of injury because of a social or moral duty rather
than because they have assumed the risk of injury. In Haynes v Harwood (1935)
Roche LJ said the plaintiff ‘…knew nothing of what had been done or by whom,
and there was no material for choice or consent such as is contemplated and
required by the maxim.’ Thus the claimant did not give his consent.
Finally full knowledge of the nature and extent of the risk is needed for the
defence to apply. In Nettleship v Weston (1971) Lord Denning said:
"Knowledge of the risk of injury is not enough. Nothing will suffice short of
an agreement to waive any claim for negligence. The plaintiff must agree
expressly or impliedly to waive any claim for any injury that may befall
him due to the lack of reasonable care by the defendant: or more
accurately due to the failure by the defendant to measure up to the duty
of care which the law requires of him".
This knowledge test is however subjective not objective, and in the case where
there is an intoxicated claimant, the question is whether the claimant was so
intoxicated that he was incapable of appreciating the nature of the risk. In Morris
v Murray (1990) the defence was allowed as the actions of the claimant in
accepting a ride in an aircraft from an obviously heavily intoxicated pilot was so
glaringly dangerous that he could be taken to have voluntarily accepted the risk
of injury and so waived the right to compensation.
Accepting a lift from a drunken driver is one example of where the defence may
apply. In Dann v Hamilton the claimant who accepting a lift from a drunk driver
was entitled to damages after the defence failed, however, in situations where
the claimant is “engaging in an intrinsically and obviously dangerous occupation”
the court will show preference to the complete defence inherent in volenti non fit
injuria as opposed to a partial defence of contributory negligence, as applied in
Owens v. Brimmell. This is the position the court has continued to take, as seen
in the previously discussed case of Morris v Murray (1990).
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Tan has suggested that the defence should be refreshed as an assessment of the
plaintiff’s conduct and so, although the traditional elements of knowledge of the
risk, agreement, voluntariness and the degree of risk of the defendant’s activity
would remain relevant, they would not be determinative and rather other factors
should be considered, for example, where the claimant was a rescuer or
committing a crime or trespass and their willingness to participate in the
dangerous activity. Arguably this would allow the defence to adapt to changes
in social policy; for example the increasing recognition of the social evil of
driving under the influence of alcohol or drugs.
(b)
Ex turpi causa non oritur actio is a Latin maxim that translates as no action can
be founded upon a wicked act. It is the defence of illegality and is grounded in a
general policy objection to allowing those engaged in an illegal activity to receive
compensation when injured in its course. There is some difficulty in assessing
the circumstances in which illegality will bar a claim as not all illegal acts will
prevent a claimant from recovering in negligence – for instance, while a driver
may face criminal liability for driving with a broken headlight he may not be
prevented from recovering damages for injury caused by another’s negligence.
Where the maxim is successfully applied it operates as a complete bar to
recovery and although referred to as the illegality defence, it also applied to
immoral conduct as well, as seen in Kirkham v CC Greater Manchester Police
(1990).
The defence is primarily based on public policy rather than any legal principle, as
per Lord Hoffman:
"The maxim ex turpi causa expresses not so much a principle as a policy.
Furthermore, that policy is not based upon a single justification but on a group
of reasons, which vary in different situations"- Gray v Thames Trains (2009).
The public policy factor often cited for the defence is that it is wrong for a person
guilty of illegal conduct to profit from his crime. This is difficult to reconcile in
tort where the claimant is seeking compensation for a loss rather than trying to
make a gain.
In the case of Revill v Newberry (1996) where the claimant was shot by the
defendant whilst burgling his shed, the illegality defence failed because of the
fact that the Occupiers’ Liability Act 1984 provided protection to non-visitors. It
was assumed that Parliament's intention was not to preclude recovery for
burglars who suffered injury. However, although allowed to recover, the
claimant’s damages were reduced by virtue of contributory negligence under the
Law Reform (Contributory Negligence) Act 1945.
Whilst the Occupiers’ Liability Act 1984 has prevented the defence being used in
some situations where the claimant has been guilty of criminal conduct it is clear
that joint criminal enterprise is a complete bar to recovery. The court held in
Ashton v Turner (1981) that as a matter of policy the court will not recognise a
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duty of care owed by one participant in a crime to another, as was also seen in
the case of Pitts v Hunt (1990).
Several principles on which the defence is based have emerged, however these
are not always consistently applied. The first of these principles is the reliance
test. This is also known as the Bowmakers Principle and looks at whether the
claimant has to plead the illegality. Where the claimant has to plead the illegality
to found their claim, the courts will not allow them to succeed. Conversely,
where the claimant does not need to rely on the illegality to make their claim, it
may succeed, as was the case in Bowmakers Ltd v Barnet Instruments Ltd
[1945].
Similar to the reliance test is the inextricably linked test, so where it is not
necessary for the claimant to plead the illegality, the claim may be defeated if
it is inextricably linked to the cause of action. As Beldam LJ explained in Cross v
Kirkby (2000), “In my view the principle applies when the claimant's claim is so
closely connected or inextricably bound up with his own criminal or illegal
conduct that the court could not permit him to recover without appearing to
condone that conduct”.
Another principle is known as the no benefit principle and stems from the policy
consideration that no criminal should benefit from his crime. In Murphy v
Culhane (1977) it was said that a man who takes part in a criminal affray may
well be said to have been guilty of such a wicked act as to deprive himself of a
cause of action.
The next principle to be considered is the proportionality test. It was considered
in the cases of Lane v Holloway (1967) and Saunders v Edwards (1987) and
asks whether the defendant's actions were out of all proportion to those of the
claimant, for instance, a man who produces a weapon in a fist fight acts out of
all proportion and so the defence will fail.
Next the public conscience test will be considered which looks at whether in all
the circumstances it would be an affront to the public conscience to allow
the claimant to succeed. However, this test was criticised and rejected in favour
of the reliance test in Tinsley v Milligan.
And finally the courts may be influenced by statutory policy objectives. For
instance, as previously discussed, the 1984 Occupier’s Liability Act was viewed
as not passed to preclude recovery to burglars who suffered injury (Revill v
Newberry).
Whilst these principles seem clear they are not always consistently applied and
in some instances are in conflict with one another, particularly when statutory
policy objectives are recognised.
In Vellino v Chief Constable of Greater Manchester (2002)the claimant brought
an action against the police arguing that having arrested him, they owed him a
duty of care to prevent him injuring himself. The Defendant denied owing a duty
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of care and also raised the defence of ex turpi causa in that it was a criminal
offence for an arrested person to abscond. Sir Murray Stuart-Smith identified
four principles relating to the maxim which show a conflict with some of the
preceding case law and thus leads to confusion as to where the maxim ought to
apply.
The Law Commission has considered the defence and found it inconsistent and
uncertain. But in it’s most recent Consultation Paper the Commission has
decided against legislative reform preferring development by the courts. In
addition to this some commentators have argued that apportionment of
damages is preferable in these types of cases rather than allowing for a
complete bar to recovery.
Question 4
(a)
It is possible that a person who is engaged in a rescue attempt, where the
dangerous situation arose as a result of another’s negligence, will suffer
psychiatric harm as a result. In such situations the law has struggled to
establish certain criteria to determine whether such a person will be able to
recover damages for the psychiatric harm he has suffered.
In Chadwick v British Railways Board (1967) the claimant took part in the rescue
of victims of a train crash, caused by the defendant’s negligence. The claimant
was a lay person who was engaged in assisting at the scene for several
harrowing hours and it was held that the negligent defendant owed him a duty
of care in respect to the psychiatric harm he suffered, namely, nervous shock.
Furthermore, the Court of Appeal recognised those police officers who assisted
at the Hillsborough incident as primary victims, which allowed them to claim for
psychiatric harm, Frost v Chief Constable of North (1997). Where psychiatric
harm is suffered by those classified as ‘secondary victims’ there are obstacles to
claiming which must be overcome, and so classifying the recuing police officers
as primary victims was an essential element in their successful action.
However the House of Lords in White and Others v Chief Constable of Police
(1999) a new test of proximity was laid down in which rescuers must
demonstrate actual or apprehended danger to satisfy proximity.
This
demonstrated a shift away from the position in Chadwick in which it was said
that rescuers should be classified as primary victims as they ought to be
encouraged and not deterred. The effect of White is that rescuers are not given
favourable treatment when it comes to claiming. In order to be successful the
rescuer claimant must show that he objectively exposed himself to danger or
reasonably believed he was in the zone of foreseeable physical danger, however,
he need not show that psychiatric harm was a foreseeable risk as a result of
this. The shift away from classifying rescuers as primary victims was on the
basis that they are not necessarily in the zone of foreseeable physical danger
and thus their psychiatric harm was caused by witnessing or participating in the
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aftermath of accidents which caused death or injury to others. While the
majority took this view, Lord Goff, dissenting, expressed concern that a new
control mechanism was being introduced by the majority of the House of Lords.
This being a reaction to the alleged public distaste that police officers were being
compensated when relatives of those killed and injured in the Hillsborough
disaster were unable to recover in Alcock, due to the strict requirements in place
for secondary victims, the category that those related to the injured parties fell.
The case of McFarlane v EE Caledonia (1994) demonstrates that the fear of
physical danger must be reasonably held. The claimant was unable to recover
damages as a primary victim as he was never actually in the vicinity of physical
danger and thus the fear for his life was unreasonable.
The legal status of fellow workers also causes confusion in claims for psychiatric
injury. In Dooley v Cammell Laird (1951) the claimant suffered psychiatric
damage as a result of the belief the crate that fell from the crane he was driving,
injured his fellow workers, whom he believed were working in the hold of the
ship. However, in light of the decision of White, which, as discussed, suggests
the claimant must be in the zone of foreseeable physical danger to recover for
psychiatric harm, it is likely this case would be decided differently today.
In Duncan v British Coal Corporation (1997) the claimant was not geographically
proximate to the accident when it occurred and neither he nor the primary victim
were in any continuing danger. It was therefore held that a person of reasonable
fortitude would not have suffered psychiatric damage and therefore his claim
was unsuccessful. It is thus clear that in cases of psychiatric harm the usual ‘egg
shell skull rule’ does not apply and the claimant must show that a person of
‘reasonable fortitude’ would have suffered psychiatric harm in the circumstances.
The law on psychiatric injury has developed gradually over a number of years
and decisions have clearly been influenced by public policy factors. Because the
law has been based on policy rather than strict legal principles it is likely that it
will continue to develop in a way that is inconsistent and uncertain, rendering
the legal status of these categories of claimants as uncertain and confused.
(b)
It is believed that the Law Commission’s recommendations would make a great
deal of difference to the law on psychiatric damage which is currently made up
of a number of somewhat incoherent principles. However the recommendations
that secondary victims would not need to be proximate in time and space and
witness events with their own unaided senses and the psychiatric harm need not
result from the sudden sight or sound of a horrifying event are in fact of limited
application.
The Law Commission do not think it necessary to completely codify the law on
psychiatric damage but propose a statutory duty of care regarding psychiatric
damage which would co-exist with the common law.
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Secondary victims are required to satisfy three tests in order to bring a
successful claim - colloquially termed ‘nearness, hearness and dearness’. The
legal tests require the victim show proximity in time, place and affection for the
victim. If the Law Commission’s proposals are followed the test in Alcock v Chief
Constable of North Yorkshire which determines when a secondary victim can
claim damages would remain. The test says that the claimant must have close
ties of love and affection to the victim.
Furthermore, the report proposes to include a statutory list which would detail
those who are automatically included – they will be presumed to have a close tie
of love and affection with the victims and those outside the list would have to
prove a close tie of love and affection with the victim as they do now following
the test set out in Alcock.
However the tests which exist today to determine secondary victims’ eligibility in
terms of proximity in time and space and witnessing events with their own
unaided senses would no longer apply. The proposals affect the criteria that the
shock must be induced by the sudden sight or sound of a horrifying event. This
would no longer be a necessary criterion and consequently those relatives, who
suffer trauma after the ‘horrifying event’, for instance as a result of caring long
term for an injured victim, would be able to claim.
The claimant would still need to show that a person of reasonable fortitude
would suffer psychiatric illness in a similar situation, for unlike other areas of
tort, the so-called ‘egg-shell skull’ rule does not apply. Also, the Commission
decided that a duty of care should not be imposed on the defendant unless it is
reasonable to do so. For instance where the injured victim was volenti it might
not be reasonable to impose a duty on the defendant.
Furthermore, the Law Commission does not propose to alter the position of
bystanders – they would still not be able to claim and the position of rescuers
would be unchanged – they would still be dealt with under common law and
must satisfy the various tests relating to, amongst other things, being in the
realm of immediate physical danger.
In McLoughlin v O’Brien Lord Wilberforce stated “…because shock in its nature is
capable of affecting so wide a range of people, a real need for the law to place
some limitation upon the extent of admissible claims.” His observations and
concerns are clearly still in the minds of those at the Commission. It is
commonly recognised that the law governing psychiatric harm is unsatisfactory
and often unpredictable and it is questionable whether these proposals, if
implemented, would rectify the situation to any great extent.
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SECTION B
Question 1
A defamatory statement was defined in Sim v Stretch (1936) by Lord Atkin as
‘Words which tend to lower a person in the estimation of right thinking members
of society generally’’. Defamation has also been defined as: ‘The publication of a
statement which reflects on a person’s reputation and tends to lower him in the
estimation of right thinking members of society generally or tends to make them
shun or avoid him’ (Winfield & Jolowicz ‘On Tort’). In English law any defamatory
accusation is presumed to be false; motivated by malice; and injurious to the
reputation of the victim.
Defamation can be categorised as libel (words written) and slander (words spoken)
and there are several elements that must be considered in an action for defamation.
It must be established that the meaning of the statement is in fact defamatory and
refers to the claimant and that the claimant is not one of a prohibited class.
Furthermore, they must prove that the defendant is responsible for the publication
and finally that none of the several defences to defamation claims apply. The
defences that could be raised include: Innocent dissemination, Justification, Fair
Comment, Absolute Privilege and Qualified Privilege (statutory and common law).
Mary Stuart
We will firstly consider whether or not politician, Mary Stuart has a possible
claim in defamation against the Southwood Gazette for the comments it
published about her. Firstly we must ask whether or not the comments
published carry any defamatory meaning, which in Berkoff v Burchill [1996] was
said to be any statement which resulted in the claimant being subject to
contempt, scorn or ridicule and in Parmiter v Coupland (1840) a statement was
said to be defamatory where it was “Calculated to injure the reputation of
another, by exposing him to hatred, contempt or ridicule.” The statement must
tend to lower the claimant in the eyes of right thinking members of society
generally. On the basis of these criteria we must establish whether or not the
statement that Mary is trying to trying to pass herself off as something she is
not and has had cosmetic surgery to make her look glamorous is defamatory. It
is possible that that this statements may be capable of subjecting Mary to ‘scorn
or ridicule’ even thought it does not impute disgraceful conduct or lack of
personal skill, as per Berkoff v Burchill [1996].
Establishing that the defamatory statement refers to the claimant is not
problematic where the claimant is referred to directly by name. Mary is also not
a claimant form a prohibited class. Furthermore, the statements are published
in the Southwood Gazette and thus they, as the defendant, are responsible for
the publication of the defamatory statement.
Norman Hunter
Next we will ask whether or not Norman has a claim against Southwood Gazette
for the comments published about him. Firstly we must ask does publication
13
carry a defamatory meaning? The statement made is that he is the most boring
politician with a dull delivery and makes inconsequential comments. The Court of
Appeal established that the approach to deciding if such comments are capable
of being defamatory must be that of a hypothetical reader who is neither naïve
nor unduly suspicious but who might read between the lines. On this basis it is
therefore arguable that readers may be influenced in their decision to vote on
the basis that Norman does not have the appropriate qualities to be a politician.
As with Mary, Norman has clearly been identified and so there is no question as
to whether the defamatory statement refers to him. Also, the statements are
published in the Southwood Gazette and thus they, as the defendant, are
responsible for the publication of the defamatory statement.
Oliver Crane
The question as to whether the publication carries a defamatory meaning with
regard to Oliver is somewhat more problematic. The published photo of him
with the young girl and the accompanying words imply that he is having a
relationship with the young girl. In this situation innuendo applies, where the
words are not prima facie defamatory but by implication have a defamatory
meaning. There are two types of innuendo – true and false. A true innuendo
requires involves the existence of extraneous facts which the claimant must
prove as in Tolley v Fry (1931). A false innuendo is where the words have a
secondary meaning either because there are several meanings or there is a
slang meaning as in Allsop v Church Of England Newspapers (1972). The hidden
meaning in innuendo must be one that could be understood from the words
themselves by people who knew the claimant: Lewis v Daily Telegraph (1964).
Oliver would have to directly plead innuendo.
It would appear that the photo and accompanying words would cause readers
who did not continue to read the full story to believe Oliver is having a
relationship with the young woman, however, because the full story is located on
another page and the reader is directed to that page it is likely that the
publication would not be regarded as defamatory as the House of Lords has
previous said that potentially defamatory statements must be considered in their
entirety and not judged on just one part -Charleston v News group Newspapers
(1995).
Defences
As previously stated, a number of defences exist in relation to claims for
defamation. We will consider the relevant defences possibly available to
Southwood Gazette in relation to each potential claimant.
Mary Stuart
In relation to any claim brought by Mary Southwood Gazette may raise the
defence of qualified privilege. This defence essentially applies to fair and
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accurate reports of judicial or parliamentary proceedings, however, in Turkington
& Others v Times Newspapers (2000)the House of Lords made it clear that any
information passed onto a journalist after a meeting is not protected.
Qualified privilege may also apply where statements are made in protection of
public interests, arguable here as Mary is a person standing for election,
although it has been stated that this defence should not extend to journalists by
the Court of Appeal, in Baldwin V Rushbridger (2001). However, in Reynolds v
Times Newspapers (1999) although the House of Lords rejected the special
category of ‘political information’ as a genus of qualified privilege requiring
specific protection, Lord Nicholls identified the ten factors, which though not
exhaustive, should be taken into account in determining whether qualified
privilege should apply. These factors are the seriousness of the allegation, the
nature of the information, the source of the information, the steps taken to
verify the information, the status of the information, the urgency of the matter,
whether the claimant was invited to comment, whether the article contained the
gist of the claimant’s story, the tone of the article and the circumstances and
timing of the publication. Although it is only relevant to the media, the Reynolds
test for responsible journalism applies to any matter of public interest.
Applying these criteria it is unlikely that the defence would be successful.
Norman Hunter
Similarly, Southwood Gazette could raise a defence to any action brought by
Norman. They may raise the defence of fair comment. The defence applies
where the potentially defamatory statement is on a matter of public interest.
The very nature of opinion means that it cannot be proved to be true or false.
The defence cannot be used to justify unsubstantial or dishonestly held views
and therefore there a number of requirements in place that limit its scope.
Firstly, the comment in question must be on a matter of public interest. Two
classes of what might amount to public interest were discussed in London Artists
v Littler (1969). The first example given was in instances where the public in
general may have a legitimate interest, for instance in the conduct of politicians
and public servants and the second included instances such as theatre
productions.
In Spiller v Joseph (2010) the Supreme Court altered the defence of fair
comment by reducing the burden formerly placed on defendants to identify facts
they are commenting on with ‘sufficient particularity’. The defence also renamed as “honest comment” (as opposed to Court of Appeal in BCA v Singh
(2010), which favoured “honest opinion”). The Gazette would need to establish
that the comments made regarding Normal were of legitimate public interest.
Diplock J (as he then was) in Silkin v. Beaverbrook Newspapers Ltd. and Another
(1958) said “Would a fair-minded man holding strong views, obstinate views,
prejudiced views, have been capable of making this comment? If the answer to
that is yes, then your verdict in this case should be a verdict for the defendants.
…”.
15
Malice will destroy the defence, which in the context is defined as a statement
made out of spite or with evil intent. In the case of Thomas v Bradbury, Agnew
& Co (1906) the defendant’s claim that his very critical review of the plaintiff’s
book was fair comment failed because of his malice and so if the author/Gazette
can be said to have made the comments out of malice, the defence will fail.
Question 2
Ivor v Georgio
Ivor has suffered injuries during the course of his employment. This is a
question of negligence and employer’s liability. As a question of negligence Ivor
must show that he was owed a duty of care by Georgio, that Georgio breached
that duty and that this breach of duty has resulted in harm that is not too
remote.
As an employer Georgio has a non delegable duty to take reasonable care for
the safety or his employees.
According to Wilson & Clyde Coal v English
([1938) this duty is to provide competent staff, adequate materials, a proper
system of work and adequate supervision. The van used by Ivor is equipment
and as such should be of a safe standard.
The question of whether or not Georgio has breached his duty of care owed to
Ivor is whether he has fallen below the required standard of care. It is stated
that the engineer’s report found that the brakes had never been serviced. This is
clearly below the expected standard and therefore Georgio has breached his
duty of care.
Next it must be established that Ivor has suffered damage that is not too remote
as a result of Georgio’s breach of duty. Applying the ‘but for’ test we can say
that but for Georgio’s failure to have the brakes serviced Ivor would not have
suffered his injuries.
However, there is the added element of Janet’s
involvement in the incident and whether or not her negligent act amounts to a
novus actus intereviens, breaking the chain of causation. Turning to the case of
Rouse v Squires and Others (1973) in which there were multiple negligent acts
in a road traffic incident which resulted in the claimant’s death it was held that
‘where the party guilty of the prior negligence has created a dangerous situation,
and the danger is still continuing to a substantial degree at the time of the
accident, and the accident would not have happened but for this continuing
danger, he is responsible for the accident as well as the party who was
subsequently negligent’. It is therefore clear that both Janet and Georgio will
share a portion of the blame as their acts amount to multiple causes. The
damage suffered by Ivor as a result of Georgio’s negligence is not too remote to
claim.
As Ivor was not wearing his seatbelt, as required by law, Georgio could raise the
defence of contributory negligence, under the Law Reform (Contributory
Negligence) Act 1945 arguing that has Ivor been wearing his seatbelt his injuries
would not have been so severe, as seen in Froom v Butcher (1976), where
16
damages were reduced by 25% due to the contributory negligence of the
claimant.
Whilst Georgio is liable to Ivor he may also be able to recover a contribution
from Janet under the Civil Liability Contribution Act 1978 if it can be established
that Janet is liable to Ivor in negligence. The Act’s aim is where there is a
claimant liable in negligence but is not himself entirely to blame for the
claimant's loss, he can seek a contribution towards the damages from any other
party that is partly to blame.
Furthermore, Georgio may also be vicariously liable to Ivor for the negligence of
Harry, who was the mechanic who failed to service the brakes. Vicarious liability
is a form of secondary liability and is strict. Harry is an employee of Georgio and
he is guilty of negligence, for a reasonable mechanic would have serviced the
brakes and therefore Harry has fallen below the standard expected. The tort was
committed during the course of Harry’s employment and therefore as his
employee Georgio is vicariously liable.
Ivor v Harry
Ivor could also bring a claim against Harry who will have owed him a duty as a
fellow employee. In failing to service the brakes he has fallen below the
standard of a reasonable mechanic and has therefore breached his duty owed to
Ivor. The failure of the brakes and consequent injuries suffered by any driver is
a foreseeable consequence of this breach and the injuries suffered as a result
are not too remote. Again, whilst Harry is liable to Ivor, Ivor may be able to
recover a contribution from Janet under the Civil Liability Contribution Act 1978.
Ivor v Janet
Ivor will also have a claim against Janet if she is liable to him in negligence. As
always the first step is to determine that Janet owes Ivor a duty of care. The
duty owed by a driver to other road users is an established duty as in Donoghue
v Stevenson [1932]. In order to establish breach of duty it must be shown that
Janet has failed to reach the standard of a reasonably competent driver, as seen
in Nettleship v Weston [1971]. Janet is clearly in breach of her duty as her
driving was ‘careless’ and thus below the expected standard. As discussed
above, both Harry and Janet’s negligence cause Ivor’s injuries and they will
therefore share a portion of the blame. If Ivor brings a successful action against
Janet she may be able to recover a contribution from Harry and/or Georgio
under the Liability Contribution Act 1978. Whilst Ivor can sue any of the
negligent parties he will only be able to recover his loss once.
Harry v Georgio
Harry may wish to bring a claim against Georgio for the nervous breakdown he
has suffered. Claims for psychiatric harm are notoriously difficult and Harry will
have to satisfy a number of tests in order to successfully bring a claim.
17
Firstly Harry must show that he has suffered an actual psychiatric injury, which a
nervous breakdown amounts to.
Next establish that he was owed a duty of care. In White v CCSY [1999] a
majority in the House of Lords held an employee should be in no better position
than a non employee to claim damages for psychiatric damage.
In Hatton v Sutherland (2002) the Court of Appeal laid down guidance as to how
the County Court and the High Court should deal with negligence claims made
against employers by employees with psychiatric injury.
The Court of Appeal focused on the key issues of:
a)
when a psychiatric injury could be said to have been reasonably
foreseeable;
b)
what an employer could reasonably be expected to do to prevent such
psychiatric injury; and
c)
the difficulty of ascertaining the cause of such psychiatric injury.
The Court of Appeal stated that an employer will escape liability for an
employee's psychiatric injury unless it was reasonably foreseeable that the
employee in question would suffer such an injury as a result of the employer‘s
failure of the duty of care. The question is, was Harry’s nervous breakdown
reasonably foreseeable?
Furthermore in Barber v Somerset County Council (2004) the House of Lords
held that an employer has a duty to do all that a reasonable prudent employer
would do, taking positive action for the safety of his employees in the light of
what he knows or ought to know. In this case Georgio knows that Harry is overworked and it is impacting on his well-being, for Harry has told him so. It was
said in Walker v. Northumberland County Council (1995) “Where it was
reasonably foreseeable to an employer that an employee might suffer a nervous
breakdown because of stress and pressures of his workload, the employer was
under a duty of care, as part of the duty to provide a safe system of work, not to
cause the employee psychiatric damage by reason of the volume or character of
the work which the employee was required to perform."
In the case Hartman V South Essex Health and Community Care NHS Trust
(2005) it was held that the employee’s history of nervous breakdowns could not
be a factor in determining the forseeability of her psychiatric injury for such
information was held in confidence by the doctor. Where the cause of a
breakdown is the workload put upon the employee, mitigating factors such as
the availability of counselling will not discharge the employer’s duty for they do
not reduce the cause of the breakdown, namely, the stress of the workload as
seen in Daw v Intel Corporation (2007).
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In order to establish whether Georgio has breach his duty toward Harry we must
ascertain whether he has fallen below the standard of a reasonable employer.
As previously discussed, in the cases of Hatton and Barber it was decided that
for the employer to be liable the possibility of work related stress must be
foreseeable. The question is whether or not Georgio failed to take reasonable
precautions once there was a foreseeable risk of stress related injury. As
already noted, Harry informed Georgio that he was feeling stressed and
complained that this stress was making him ill, but despite this continued to
work anyway. Was it therefore reasonably foreseeable that Harry would suffer a
stress related injury?
Harry maintains it is the stress that caused his
breakdown, however, if it can be determined that the incident with the failed
brakes was in fact the cause, this may be viewed as not to be reasonably
foreseeable.
Finally, if it is established that Georgio has breached his duty toward Harry it
seems as though causation is satisfied. But for the breach, Harry would not have
suffered the breakdown. There are no intervening acts and the damage is not
too remote.
Question 3
This question raises issues of private and public nuisance, and liability under the
rule in Rylands v Fletcher.
(a)
Jenny v Victor
Jenny has a potential claim in private nuisance against Victor. A private
nuisance is defined as a continuous, unlawful and indirect interference with a
person’s use or enjoyment of land and a claimant must establish that the
defendant has committed one of the three kinds of private nuisance, as set out
by Lord Lloyd in Hunter v Canary Wharf (1997). As an owner occupier Jenny
has relevant capacity to sue in private nuisance – Hunter v Canary Wharf
(1997). Jenny will bring an action against Victor as the creator of the nuisance.
Jenny must show that there has been a continuous interference with the
enjoyment of her land over a period of time -De Keyser's Royal Hotel v Spicer
Bros Ltd (1914), as only in exceptional circumstances will a single event amount
to a nuisance, as seen in British Celanese v Hunt (Capacitors) Ltd (1969).
Secondly, to be regarded as unlawful the defendant’s conduct must be shown to
have been unreasonable. In order to establish whether or not the defendant’s
conduct was unreasonable the courts will take into account a number of factors.
The first of these if the locality of the land for what may be considered a
nuisance in one location will not be in another (Sturges v Bridgman (1879)).
The fact Wilcombe is a village of outstanding natural beauty and the house is a
magnificent country house is important in determining whether Victor’s use of
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his field is reasonable however, the noise complained of by Jenny has not caused
any tangible damage. Also, in determining if the use of land was unreasonable
the duration and frequency of the noise is important. The facts state that the
car boot sales are held twice a month on a Sunday and presumably only during
the spring and summer suggests that this may be a reasonable use of the field.
Also, Jenny is complaining her Sunday lunch parties are being disturbed. It may
be arguable that she should hold them in another part of the house.
Next, the courts will consider the sensitivity of the claimant for the standard of
tolerance is that of a ‘normal neighbour’ and no allowance is made for an
abnormally sensitive claimant as per Robinson v Kilvert (1889). There is no
evidence to suggest Jenny is abnormally sensitive however it is arguable that
holding lavish Sunday parties is not the norm.
The court will then enquire as to the utility of the defendant’s conduct and finally
any malice. It is unlikely that the courts will find that an activity amounts to
nuisance if it useful to the local community as a whole taking into account all the
surrounding circumstance. It is arguable that the car boot sales may have a
useful community purpose in times of recession. There is no evidence of any
malice by Victor.
The give and take principle is relevant and as Jenny lives in a large country
house she is entitled to her privacy but there is a balance of convenience
between neighbours.
It would seem unlikely that Jenny would have a good case against Victor in
private nuisance as the car boot sales will probably amount to a reasonable use
of Victor’s land and that Jenny should be expected to tolerate the twice-monthly
sales which are beneficial to the local community.
In the unlikely event that it is determined that Victor’s conduct does amount
nuisance there appears to be no defences available. The remedies available for
nuisance are damages and or an injunction.
Dennis v Victor
Dennis may bring an action against Victor in public nuisance. This can be
defined as an act or omission which materially affects the reasonable comfort
and convenience of a class of her majesty’s subjects, per Romer LJ in A-G v PYA
Quarries (1957). They would have to prove that a sufficient number of people
have been affected by the parked cars to constitute a class and Dennis would
have to show he has suffered particular damage - either different in extent or
greater than the class. It is possible to show other residents have been affected
and as Dennis is unable to get out of his house to visit his relatives as his
driveway is continually blocked, he has been disturbed to a greater extent than
the other residents. It would appear that Dennis is able to establish an
actionable claim and that Victor has no available defences.
20
In light of a finding of nuisance caused by Victor to Jenny the remedies available
would be damages, to compensate Jenny for the reduction in amenity value of
his home. There is also a possibility that the courts could impose an injunction
restricting Victor from continuing to undertake the activities which cause the
nuisance, namely the use of his field for car boot sales -Miller v Jackson (1977);
Kennaway v Thompson (1981). Similar remedies of damages and an injunction
are available in the event of a finding of public nuisance.
(b)
Potential Liability of Moira
Nat & Olive v Moira
Nat and Olive may have an action against Moira in private nuisance. Their
eligibility to claim derives from their exclusive right to occupy as tenants of the
property. They will bring their claim against Moira as the creator of the
nuisance.
As discussed in relation to claims against Victor the claimants will have to
establish a number of factors in order to successfully bring their claim. They can
show that there has been a continual and substantial interference of their
enjoyment of the land, and as a cottage in a quiet village the locality is
important. However, it is arguable that they are overly sensitive as claimants.
Would a ‘normal neighbour’ have complained of the noise of smell of onions? As
Olive is trying to write a novel in peace it is likely she is overly sensitive to noise
and a ‘normal neighbour’ would not have been affected by the noise levels.
Furthermore, it is also unlikely that a ‘normal neighbour’ would be particularly
concerned about the smell of onions on a twice-monthly basis. Therefore, it is
unlikely Moira’s conduct will amount to a private nuisance in the eyes of the
court.
If it were found to be a nuisance then, as discussed above, the remedies
available would be damages and an injunction to prevent Moira from continuing
to run her burger van.
Jenny v Moira
Moira may also face liability for the burst oil drums which have caused damage
to Jenny’s land and fish. The liability arises under the rule found in Ryland v
Fletcher (1868). Liability under Rylands is strict. The requirements for a
successful action under this tort are:
1.
2.
3.
4.
That the defendant brought something onto his land;
That the defendant made a non-natural use of his land;
That things was something likely to do mischief if it escaped; and
The thing did escape and cause damage.
21
The first requirement distinguishes between things that grow or occur naturally
on land. It is clear that the oil drums are something Moira has brought onto her
land. It was said in Rickards v Lothian [1913] AC 263 to amount to a nonnatural use of land it must be a special use which brings with it increased danger
as opposed to an ordinary use of the land – storing oil drums does bring with it
an increased danger. The oil has of course escaped and done damage and so it
can be said that it is clear that oil is ‘likely to do mischief’ as it has actually
resulted in the damage.
In addition to the above requirements, there is now the further requirement that
harm of the relevant type must have been foreseeable, as set out by the House
of Lords in Cambridge Water v Eastern Counties Leather [1994].
It is
reasonably foreseeable that if the oil were to escape that the lake would be
badly affected and the fish in the lake would be killed.
Whilst liability is strict it is not absolute. There are defences available to Moira
under this tort, including ‘acts of God’. For example where the Defendant has
something on their property which is harmless but a sudden unpredictable
natural event causes it to escape. For example if in Rylands a sudden rainfall
had caused the dam to overflow it would not have been the defendant's fault. It
is however unlikely that the sun would be viewed as a ‘sudden unpredictable
natural event’ unless there were some kind of unpredictable heat wave. Further
defences available include contributory negligence, which as liability is strict will
avoid most claims, Volenti (consent to the danger), interferences from third
parties, statutory authority and mutual benefit. It would seem that none of
these apply.
Moira will therefore be liable for all foreseeable harm resulting from the leaked
oil drums.
Question 4
Ursula has suffered an injury whilst in a shop occupied by Susie (as per the
control test found in Wheat v Lacon (1966), which states an occupier is any
person who has a sufficient degree of control over the premises in question.).
Susie’s claim will be brought under the Occupier’s Liability Act 1957. She is
regarded as a visitor, as per S.1 (2) of the Act, as she is ‘invited’ onto the
premises as a customer of the shop.
Under s.2(2) of the act Susie is under a duty ‘to … take such care as in all the
circumstances of the case are reasonable to see that the visitor will be
reasonably safe in using the premises for the purpose for which he is invited or
permitted to be there.’ The standard set is that of a reasonable occupier, and is
Susie falls below this standard she will be in breach of this duty. Had Susie
warned customers of the loose floor tile, she could have relied on the warning
provision found in s.2 (4) (b). We are not informed that this is the case so we
will assume that Susie has not given any warning.
Susie may however argue that the danger was created by an independent
contractor, Linx Carpet Fitters. Whilst an occupier will not normally be liable for
22
any damage caused by the negligence of persons who were carrying out work on
his premises, such as independent contractors, they must show that act
reasonably in: (i) entrusting the work to an independent contractor; (ii) ensuring
that Linx Carpet Fitters were competent; and (iii) ensuring the work was
competently done, otherwise she still may be liable under s.2 (4) (b) of the Act.
It is quite probable that (i) and (ii) are satisfied, however, checking the quality
of the work done by Linx Carpet Fitters would not have required technical skill
and so it is possible that Susie did not act reasonably in failing to check the work
was competently done, as in Woodward v Mayor of Hastings (1945). If checking
their work had required some technical skill she would not be liable where she
has not checked the work of someone who is apparently competent as in
Haseldine v Daw [1941].
Next we turn to the issue of causation and remoteness. Applying ‘but for’
causation we can say but for the loose floor tile Ursula would not have slipped
and fell onto the display stand and then through the pane of glass in the shop
causing the cuts and bruises to her hands when the glass pane shattered. The
cuts and bruises are a direct result and are therefore not too remote.
It would not appear that Susie has any defence to raise for failing to comply with
her statutory duty and not checking the work was completely done to the
required standard.
Nick v Susie
Nick has suffered an injury whilst in a shop occupied by Susie (as per the control
test found in Wheat v Lacon [1966], which states an occupier is any person who
has a sufficient degree of control over the premises in question.). Nick comes
into the shop despite there being a sign stating no school children are allowed at
the time he entered.
A visitor is someone who has express or implied
permission from the occupier to be on the premises and anyone who enters the
premises without such permission is classed as a trespasser whose rights are
governed by the 1984 Occupier’s Liability Act. Therefore, Nick’s claim will have
to be brought under the OLA 1984 as he does not have permission to be inside
the shop and is thus a trespasser.
As a trespasser Nick must prove that Susie owed him a duty under OLA 1984.
Susie will only owe Nick a duty of care if the three conditions in s1 (3) OLA 1984
are satisfied. Section 1(3) provides that a duty will be owed by the occupier if:
(a) he is aware of the danger or has reasonable grounds to believe that it exists;
(b) he knows or has reasonable grounds to believe that the other is in the
vicinity of the danger concerned or that he may come into the vicinity of the
danger;and
(c) the risk is one against which, in all the circumstances of the case, he may
reasonably be expected to offer the other some protection.
23
It is clear that Susie was certainly aware that the shop window had been broken
the previous day and consequently there may be fragments of glass left on the
floor. The second test is satisfied if Susie knew that schoolchildren ignored the
sign on the shop door. The question whether or not Susie had seen Nick in that
shop that day is important. If she had or for any other reason had grounds to
believe that Nick or others like him might come be near the broken glass the
second test will be satisfied. With regard to the final test, it is arguable the risk
of being hurt by broken glass is a risk against which Nick should be offered
protection.
Once Nick has established that Susie owed him a duty of care, he must then
prove that Susie was in breach of this duty. As per Section 1(4) of the 1984 Act
the duty is to take such care as is reasonable in all the circumstances of the case
to see that he does not suffer injury on the premises. In determining whether
there is a breach the court will look to several factors, including the type of
trespasser, for instance, whether or not they are a child, the magnitude of the
risk, the seriousness of the injury, and the nature of the danger. It is likely that
there is evidence of a breach here as Susie has not cleared away the glass
properly and it would be reasonable to expect her to do so in these
circumstances to prevent Nick from being injured as it would seem that Susie
could have done more to ensure that all the broken glass had been properly
disposed of.
However, there is a possibility that Susie could raise the defence of contributory
negligence, as governed by the Law Reform (Contributory Negligence) Act 1945.
A finding of contributory negligence will result in Nick’s damages being reduced
proportionately to the extent of his responsibilities for his injuries.
24