Tort Revision

7/25/2019 Tort Revision

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Tort Revision

Unit 1 Introduction to Tort

Introduction to Tort i-tutorial

Types of harm personal injury, property damage, interference with use or enjoyment of

land, damage to reputation.

Types of tort assault and battery, negligence, private nuisance, defamation, defective

products, defective buildings, trespass to land.

Its better to sue in contract than in tort e.g. in the case of a defective product!, because its

easier to prove and you may receive more compensation.

"ut you might not be able to sue the retailer in contract if you were not the buyer of the

product, or if the retailer has gone out of business.

#otorists and employers are obliged to ta$e out insurance so that a crash victim% employee

will always receive compensation. There is even the #otor Insurers "ureau which pays the

compensation if a driver has failed to ta$e out insurance. &ome insurance would cover injury

to guests on your property.

'hapter (

It is advisable to sue in both contract and tort if possible, in case one claim fails.

The main function of tort is compensation, but it can also function as a deterrent eitherfinancial if uninsured! or reputational or in terms of having to pay increased insurance

premiums!.

Tort law only provides a remedy for types of harm recognised by the e)isting law of tort. This

does not necessarily have to be tangible some torts e.g. trespass to the person! are

*actionable per se, and the harm is simply the infringement of the claimants legal rights.

Osman v Ferguson it would be against public policy to impose a duty on the police to

suppress crime which included liability for any harm caused by criminals whom they could

have apprehended. This duty would e)ist only if there was a *special relationship between

the claimant and the investigating police officers principle established in Hill v ChiefConstable of West Yorkshire!.

+nyone can sue, or be sued by, anyone. + minor under (! will conduct litigation through a

*litigation friend e.g. a parent or guardian!. arents are not legally or financially liable for

the torts of their children, so it is often not worth suing a child defendant.

imited companies and partnerships can be sued as entities.

/hen a person dies, any claim in tort e)cept defamation! continues and is conducted by his

personal representatives.

The time limit for bringing a claim in tort is generally 0 years from when the cause of action

the harm! arose pursuant to the imitation +ct (12!. 3or defamation the claim must be


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brought within a year of publication, and personal injury claims within 4 years of the injury.

The limitation period for a minor does not start until he is ( years of age.

Trespass to the ersonLetang v Cooper if the defendants actions are only careless, the claimant should sue in

negligence.

Trespass to the person is *actionable per se the claimant does not need to prove any

tangible physical harm to bring a claim.

Battery 5the intentional direct application of unlawful force to another person6.

Assault 5an intentional act by the defendant that causes another person to reasonably

apprehend the immediate infliction of a battery upon him6.

7lements of "attery

8nlawful force physical interference with another persons body which falls within *a

general e)ception embracing all physical contact which is generally acceptable in the

ordinary conduct of everyday life F v West Berkshire Health Authority! is not unlawful and

does not constitute battery. 9.". a policewoman grabbing someones arm to :uestion them

constitutes battery Collins v Wilcock!.

Intentional conduct Wilson v Pringle; *it is the act and not the injury which must be

intentional.!bal v Prison Officers Association; intention includes subjective rec$lessness,

where the defendantforeseesthat their actions will result in the application of unlawful force

e.g. throwing a stone in a crowded area!. "ibbon v Pepper if you push someone into

someone else, youve committed a battery on both people.Livingstone v #inistry of $efence

*transferred intent; if you try to hit someone and accidentally hit someone else its still

*intentional.

teyn said in) v relan&that *immediate could cover something

which would happen in a minute or so. *homas v +ational ,nion of #iners the stri$e-


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brea$ing miners were in vehicles and separated from the stri$ers by a police cordon, so there

was no immediacy. *uberville v %avage words can *negative an assault; *if it were not

assi?e-time, I would not ta$e such language from you.

Wilkinson v Downton tort

The defendant told the claimant, as an evil jo$e, that her husband had been badly injured in

an accident. The claimant suffered severe shoc$ and other permanent physical conse:uences.

There was no assault or battery, but the court allowed the claim thereby creating a new cause

of action! on the grounds that the defendant inten&e&to cause shoc$ to the claimant, who

suffered some tangible damage as a result. ater cases have shown that this tort is not

*actionable per se the claimant must suffer some recognised illness or injury. *ee alsoBlake v "allo-ay boys throwing twigs at each other as a game;

implied consent. 3or medical procedures, the consent must be *real Chatterton v "erson.

the patient must have been informed of the broad nature of the procedure.

awful arrest an officer who arrests someone pursuant to a valid warrant, and uses only

reasonable force, does not commit a battery.


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3or a claim to succeed, the information must be private the claim had a reasonable

e)pectation of privacy in relation to the information disclose!, and there must not be a

legitimate public interest in the disclosure of the information.

#atters relating to health, se)ual activities, personal relationships, financial affairs, and

covertly-ta$en photographs in a private place are all li$ely to be considered *private.

7)amples of public interest; the claimant had previously lied about the information= the

claimant had done something illegal= the information pertains to the public role of political

figures.

Unit 2 Negligence

'hapter B.(

Negligence 5a breach of a legal duty of care owed to a claimant that results in harm to theclaimant, undesired by the defendant6.

7lements of 9egligence; duty of care, breach of duty, causation, defences.

Duty of Care

7stablished duty situations; one road user to another including pedestrians! +ettleship v

Weston!, doctor to patient Pippin v %heppar&!, employer to employee, manufacturer to

consumer $onoghue v %tevenson narrow rule!, teacher to pupil Carmarthenshire County

Council v Le-is!, solicitor to client "room v Crocker!, anyone who creates a dangerous

situation owes a duty of care to a potential rescuer Baker v Hopkins!.

9eighbour principle wide rule! in$onoghue v %tevenson 5you must ta$e reasonable care

to avoid acts or omissions which you can reasonably foresee would be li$ely to injure your

neighbourD persons who are so closely and directly affected by my actions that I ought

reasonably to have them in my contemplation6.

Caparo n&ustries plc v $ickman three part test; (! reasonable foresight of harm to the

claimant= B! sufficient pro)imity of relationship between the claimant and the defendant= 4!

fair, just and reasonable to impose a duty of care.

3oreseeability inBourhill v Youngmiscarriage after seeing aftermath of traffic incident!

there was not reasonable foresight of harm.

ro)imity duty of care may be limited in cases such as; omissions to act e.g. local

authoritys failure to carry out road repairs!= pure economic loss= pure psychiatric harm.

3air, just and reasonable #arc )ich v Bishop )ock #arine Co Lt&; not fair, just and

reasonable to impose a duty of care on 9EE, a non-profit ma$ing entity, created and

operating for the sole purpose of promoting safety at sea.

Hill v Chief Constable of West Yorkshire no general duty to apprehend criminals, and no

duty to members of the public who might be harmed by them, e)cept if there were *an

e)ceptional added ris$, e.g. if the claimant had suffered threats which the police $new about.


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"ut even in %mith v Chief Constable of %usse(, where e)tensive evidence of threats was

presented to police, no duty of care was found.

'irkham v Chief Constable of "reater #anchester Police the police had assumed

responsibility for the prisoner, so a duty of care was owed.

iability for @mission to +ct no general duty to prevent harm %tovin v Wise failure of

highway authority to redesign junction!. @nly e)ceptions would be in the case of a special

relationship lifeguard, driving instructor, teacher, parent etc.!.

There would only be liability when a person chose to act if they positively made the situation

worse 2ast %uffolk )ivers Catchment Boar& v 'ent!.

>pecial relationships also confer a duty to prevent their charges causing harm to third parties

Home Office v $orset Yacht Co Lt&= Carmarthenshire County Council v Le-is!. If there is

no special relationship %mith v Little-oo&s Organisation Lt& vandals! then no duty of care

is owed.

Breac of Duty

>tandard of 'are

Blyth v Birmingham Water-orks 59egligence is the omission to do something which a

reasonable man would do, or doing something which a reasonable man would not do6.

This is an objective test "lasgo- Corp v #uir!, but it will be modified based on the

capabilities of the defendant.

The >$illed $illed


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#agnitude of ris$; inBolton v %tone, there was a very low li$elihood of injury, whereas in

#iller v 0ackson, it was high. InParis v %tepneyone-eyed claimant!, an injury to his

remaining good eye would entail a much more serious injury, and so a higher standard of care

would be e)pected unless the defendant had been unaware of the disability!.

racticality of ta$ing precautions; inLatimer v A2C Lt&, the cost of ta$ing precautionsclosing down part of the factory! was high compared to the relatively small ris$ of injury.

ac$ing the financial resources to ta$e precautions is not an e)cuse.


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#ultiple causation in Wilsher v 2sse( AHA, there were multiple possible causes of the

harm, and the defendant failed to establish that the defendants negligence had caused or

contributed to the harm.

#aterial contribution the claimant does not need to show that the defendants breach of

duty was the only cause of the damage, or even the main cause, merely that it materiallycontributed to the damage Bonnington Castings Lt& v War&la-!. It is possible that the courts

have e)tended this principle to include the creation of a material increase in the riskof injury

#c"hee v +ational Coal Boar&!.


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+ovus Actus nterveniensby the claimant this depends on whether the claimant acted

reasonably Wielan& v Cyril Lor& Carpets Lt& nec$ brace, stairs fall! or unreasonably

#c'e- v Hollan& wea$ leg, stairs fall!.

Remoteness of imilar in Type Rule 5provided that the type of injury is reasonably foreseeable, it is

not necessary to foresee the precise way in which the injury is caused6 Hughes v Lor&

A&vocate!. In *remain v Pike, the injury suffered /eils disease! was not foreseeable,

whereas rat bites would have been.

The *7gg-shell >$ull Rule *you ta$e your victim as you find him )obinson v Post Office!.

If the claimant has a particular disability or condition, he may recover in full from the

defendant for his losses, even though the defendant could not have foreseen the full e)tent of

the claimants loss. This also applies to high salary earners the defendant must still

compensate in full.

Defences

Aoluntary +ssumption of Ris$ volenti non fit in5uria! a complete defence. + defendant

must establish that the claimant; a! had full $nowledge of the nature and e)tent of the ris$,

+9< b! willingly consented to accept the ris$ of being injured due to the defendants

negligence +ettleship v Weston!. In$ann v Hamilton, though the passenger $new that the

driver had been drin$ing, that $nowledge was not sufficient to imply consent. In#orris v#urray, the pilot was so obviously drun$ that the claimant was found to have accepted the

ris$.

>ection (H1 of the Road Traffic +ct (1 states that any acceptance of ris$ by the passenger

is invalid volenti is never a defence.

The defence of volentiwill rarely succeed in claims by employees against employers %mith v

Baker! employees dont really have free choice to accept or decline instructions.

Rescuers a rescuer acting to rescue persons or property endangered by the defendants

negligence, acting under a compelling legal, social or moral duty, whose conduct was

reasonable and a natural and probable conse:uence of the defendants negligence, will not be

found to have voluntarily assumed any ris$ Haynes v Har-oo&!.

Illegality e( turpi causa non oritur actio! a complete defence. The fact that the claimant

was involved in an illegal enterprise at the time may be a defence Ashton v *urner!. "ut

there must be a very close connection between the illegal activity of the claimant and the

harm which he suffers Pitts v Hunt!, e.g. driving a getaway car too fast and crashing it.

'ontributory 9egligence carelessness on the claimants part which contributes to the

damage he suffers. The claimants damages will be reduced pursuant to the 5aw Reform

'ontributory 9egligence! +ct (1H6! according to his share of responsibility for the damage.


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The claimant needs to have contributed to the damage, not the accident itself. Thus, even

where the defendant was fully responsible for a car accident, there may be a finding of

contributory negligence, if the claimant was not wearing a seatbelt, and this fact contributed

to the harm he suffered Froom v Butcher BJ reduction if injuries would have been

avoided, (J if less severe!. The same principle and calculation applies to crash helmets for

motorcyclists Capps v #iller!. +ccepting a lift from a drun$ driver will constitute

contributory negligence, even if the claimant was too drun$ to notice O-ens v Brimmell!.

'ontributory negligence is the failure to ta$e reasonable care for ones own safety the same

standard of care as is e)pected of a defendant against a 9egligence claim the reasonable

man test Blyth!!.

The same considerations apply regarding children; the younger they are, the less li$ely they

are to have been contributorily negligent "ough v *horne!.

Rescuers conduct will be judged against the standard of conduct of a reasonable rescuer=

they will have to have shown *wholly unreasonable disregard for their own safety to befound contributorily negligent Baker v * 2 Hopkins 6 %on Lt&!.

+ claimant who is faced with the sudden need to save himself may not be found

contributorily negligent even if he chooses the less safe course of action 0ones v Boyce!. "ut

the action ta$en must still be a reasonable response to the level of danger %ayers v Harlo-!.

'hapter B.4

imited ituations the $ind of loss suffered by a claimant may entail that no duty of

care is owed to them. This is because the relationship between claimant and defendant doesnot show the re:uired pro)imity Caparo! to establish a duty of care.

!ure "cono#ic $oss

ure economic loss is generally not recoverable a defendant does not owe any duty to a

claimant not to cause pure economic loss.

7conomic loss which results from damage to property or personal injury is 9@T pure

economic loss, but rather conse!uential economic loss, which is fully recoverable.

7)amples of ure 7conomic oss

+c:uiring a defective product the cost of replacing a defective product cannot be recovered

in tort #urphy v Brent-oo& $C!, only in contract.

7conomic loss caused by damage to the property of a third party in %partan %teel 6 Alloys

Lt& v #artin 6 Co 3Contractors. Lt&, only the cost of physical damage to the claimants

property the current melt! and the conse:uential economic loss resulting from that damage

the loss of profit on the current melt! were recoverable, not the economic loss resulting from

damage to the property of a third party the electricity suppliers cable!.

7conomic loss where there is no physical damage can occur via negligent actions Weller 6

Co v Foot an& #outh $isease )esearch nstitute! or statements He&ley Byrne v Heller!.


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&owever, the court may find that there is a special relationship between claimant and

defendant, where the defendant has assumed a responsibility towards the claimant. In He&ley

Byrne v Heller, the *special relationship was defined as; an assumption of responsibility by

the defendant, and reasonable reliance by the claimant.

3or a defendant to have assume& responsibilitytowards a claimant, four criteria must besatisfied; (! the adviser $new the purpose for which the advice was re:uired= B! $new it

would be communicated to the claimant= 4! $new that the claimant was li$ely to act on it

without independent in:uiry= H! the advice was acted upon to the claimants detriment. These

criteria were established in Caparo n&ustries Plc v $ickman.

There can generally be no assumption of responsibility in relation to advice given in a social

situation Chau&ry v Prabhakar!.

%pring v "uar&ian Assurance plce)tends the principle inHe&ley Byrneto negligent

statements made to third parties, where the defendant nevertheless has assumed a

responsibility towards the claimant e.g. to provide a reference!.

White v 0ones e)tends the principle to pure economic loss caused by the negligent provision

of professional services, where there has been an assumption of responsibility. &ere, the

assumption of responsibility went beyond the client to the potential beneficiaries of the will

the solicitor had been instructed to draw up.


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rimary victims a primary victim is someone who was actually involved in the incident. er

Page v %mith, a primary victim *was in the actual area of danger, or reasonably believed that

he was in danger. + secondary victim *witnesses injury to someone else, or fears for the

safety of another person. + primary victim is owed a duty of care in respect of his pure

psychiatric harm, provided that the ris$ of physical injury was foreseeable= it is not necessary

for the ris$ of psychiatric harm to be foreseeable.

>econdary victims not all secondary victims are owed a duty of care. Alcock v Chief

Constable of %outh Yorkshire Policeestablished the criteria which a secondary victim must

satisfy in order for a duty of care to be owed; foreseeability of psychiatric harm, pro)imity of

relationship, pro)imity in time and space, and pro)imity of perception.

3oreseeability *was it reasonably foreseeable that a person of normal fortitude in the

claimants position would suffer a psychiatric illnessF

ro)imity of relationship the claimant must have a close relationship of love and affection

with the person who is endangered. erAlcock, a close relationship is presumed betweenparent and child, husband and wife, and fiancK and fiancKe, but outside these categories the

claimant mustproveit e)isted. The defendant can adduce evidence to rebut the presumption

of love and affection in the above categories.

ro)imity of time and space the claimant must be present at the accident or its immediate

aftermath= and must see or hear the accident, or its immediate aftermath, with his own senses.

"ut#cLoughlin v O1Brianshows that *immediate is a somewhat fle)ible term the fact that

the victims were still in the same condition was enough, and it was only an hour later!. In

Alcock, hours later did not constitute the *immediate aftermath.

ro)imity of perception the shoc$ must come to the claimant *through sight or hearing ofthe event or of its immediate aftermath= a claimant cannot be compensated if the event is

communicated by a third party #cLoughlin!. InAlcock, no duty of care was owed to those

watching on TA, because no individuals could be identified, so the court decided that what

the claimants did see was not e:uivalent to seeing or hearing the event or its immediate

aftermath. + broadcast showing individuals would constitute a novus actus interveniens.

Rescuers no special status or duty of care is owed to employees or rescuers White v Chief

Constable of %outh Yorkshire Police!. + rescuer who is a secondary victim is clearly very

unli$ely to meet the *pro)imity of relationship test.

'ausation the *egg-shell s$ull proviso for remoteness of damage does not interfere withre:uirement of the foreseeability of psychiatric harm to a person of *normal fortitude for

secondary victims. The first hurdle relating to duty! must be passed first a person of

*normal fortitude would have sufferedsomepsychiatric harm. Then the claimant can rely on

the *egg-shell s$ull proviso to recover full damages even if greater than a person of *normal

fortitude!.

Unit & 'e#edies in Tort (e)ce*t $and+

/here a claimant has not suffered any harm e.g. in an *actionable per se tort!, the court mayaward nominal damages in order to establish the claimants legal rights.


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+ claimant should ta$e all reasonable steps to mitigate his loss, e.g. by see$ing alternative

employment if injury has prevented him continuing with his previous job= replacing a

damaged vehicle which he needs for wor$= or accepting medical care.

The court must award one lump sum to cover both past and future losses.

>pecial damages losses capable of being calculated precisely at the time of trial e.g. cost of

care, loss of earnings!.

Leneral damages losses not capable of being calculated precisely at the time of trial e.g.

pain and suffering, and loss of future earnings!.

ecuniary losses loss capable of calculation in money terms, either pre- or post-trial e.g.

loss of earnings, cost of medical care!.

9on-pecuniary losses loss not capable of calculation in money terms e.g. pain and

suffering, loss of amenity!.

9on-pecuniary losses

ain and suffering covers past, present and future pain= physical and mental anguish= fear of

future surgery= anguish of $nowing your life has been shortened 5+dministration of Mustice

+ct (1B, s ((!b!!. + subjective test a claimant must be aware of his injuries to recover

for pain and suffering Wise v 'aye!.

oss of amenity covers loss of enjoyment of life a wide area!. +n objective test the

claimant doesnt have to be conscious in order to recover West v %hephar&!.

The :uantum of non-pecuniary damages will be assessed with reference to practitioner te)ts

li$e *Eemp and Eemp on . "ut a claimant who uses the 9&> cannot recover what he would have paid

a private doctor.

oss of earnings pre-trial net earnings for the period off wor$ ta), national insurance,

pension contribution deducted= bonuses, overtime, per$s added!.oss of earnings post-trial #ultiplicand; the court will ta$e the claimants gross annual loss

including possible promotions! at the time of trial, deduct ta), national insurance and

pension contributions, and this net annual loss is the multiplican&. #ultiplier; this reflects

how long the claimant will be off wor$ could be the time until retirement age!. "ut in order

to factor in the possibility of earning interest on the lump sum award, the court will use the

@gden table to calculate a lower multiplier.

oss of earnings; the lost years reduced life e)pectancy! the claimant may have dependants

for which he wishes to provide after his death. The claimant can recover loss of future

earnings for lost years Pickett v British )ail 2ngineering!. "8T the amount the claimant


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would have spent on himself must be deducted; BJ for person who is married with

dependent children, and 44J for a married person without dependent children.

oss of earnings; children this is very difficult to calculate= the court might consider his

parents earnings, or the national average earnings, or particular potential shown by the child.

>ervices provided to the claimant the claimant can recover the cost of help with housewor$,

shopping, nursing care etc. %chnei&er v 2isovitch!. This applies whether the carer is a

professional or a family member. If a relative has given up paid employment, that loss of

wages can be compensated "8T @9N up to the commercial rate of the services he%she is

now providing. +n unemployed relative who provides services may not e)pect the full

commercial rate to be compensated.

oss of earning capacity a claimant can be compensated if the judge feels there is a real ris$

of him losing his job %mith v #anchester Corporation!. This is only relevant where the

claimant is still in his original pre-accident job.

ocial >ecurity Recovery of

"enefits! +ct (11G, >tate benefits will be deducted from the claimants damages so as not to

over-compensate him!, and then the defendant will be re:uired to pay this amount bac$ to the

>tate. @nly benefits for lost earnings, cost of care and loss of mobility are deductible not

pain and suffering, or loss of amenity!.

rovisional damages if there is a small chance that the claimants condition will deteriorate,

the court may ma$e a provisional award on the basis of no deterioration, with the provision

for further damages if it does deteriorate 5>enior 'ourts +ct (1(, s 4B+!.


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ection 44! and H provide that the possibility of remarriage, and of inheriting money,

respectively, are not ta$en into account when calculating dependency.

"ereavement the spouse or civil partner, or the parents of an unmarried minor, can claim=

the award is O(B,12.

3uneral e)penses can be claimed if the dependants have paid for them.

Unit , -*ecial $ia.ility 'egi#es

"#*loyers/ $ia.ility

#ost employers are re:uired by statute 57mployers iability 'ompulsory Insurance! +ct

(1016! to ta$e out insurance against claims by their employees.

9egligence

+ duty of care is owed only to employees, not independent contractors. The duty was

established in Wilsons 6 Cly&e Coal Co Lt& v 2nglishas comprising 4 elements; duty to

provide competent staff= ade:uate material i.e. plant, e:uipment, machinery!= and a proper

system of wor$ and supervision. InLatimer v A2C Lt&, a fourth duty *to ta$e reasonablesteps to provide a safe place of wor$ was added. The duty of care is non/&elegable.

'ompetent staff this is the duty to provide competent fellow wor$ers. erHu&son v )i&ge

#anufacturing Co Lt&, the employer must have $nown, or ought reasonably to have $nown,

about the ris$ that the incompetent employee was posing to fellow staff. This was confirmed

in Waters v Commissioner of Police for the #etropolis, in which psychological harm was also

included e.g. bullying!. If an employer does not ade:uately train or supervise his staff, he

ought reasonably to $now that they will be incompetent.

+de:uate material covers anything provided by an employer for the purposes of its

business= either defective e:uipment, or insufficient e:uipment. The 57mployers iabilityafe system of wor$ an employer must not only devise a safe system of wor$, but also ta$e

reasonable steps to ensure that it is complied with.

>afe place of wor$ though an employer would also owe a duty to his employees under the

5@ccupiers iability +ct (1G6, his common law duty is more onerous in two ways; it is

non-delegable whereas under the +ct he could delegate his duty to an independent

contractor! and applies wherever the employees are sent in the course of their wor$ not just

the employers premises! "eneral Cleaning Contractors v Christmas!.


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>tress at wor$ safe system of wor$! stress as a result of wor$ is covered Walker v

+orthumberlan& County Council!. The guidelines for what is covered are laid down in

Hatton v %utherlan&; *was the injury to health through stress at wor$ reasonably foreseeableF

This depends on two considerations; the nature and e)tent of the wor$ long, hard, fre:uent

absences!= and signs from the employee himself e)cept the employer could assume an

employee was up to the normal pressures of the job, and ta$e at face value what the employee

told him!.

'ontributory negligence may be a partial defence, but the courts will ma$e allowance for

employees wor$ing in noisy conditions, doing repetitive wor$ Cas-ell v Po-ell $uffryn

Associate& Collieries Lt&!.

0icarious $ia.ility

3or an employer to be vicariously liable for the tort of an employee; the wor$er must be an

employee not an independent contractor!= the employee must have committed a tort= in the

course of his employment. + claimant can sue the employee, or the employer, or both.

"e an employee an employee is employed under a contract @3 service, whereas an

independent contractor is employed under a contract 3@R services. +n employee performs a

service for just one person the employer!. +n employee receives a wage, rather than being

self-employed. The test for marginal cases is set down in)ea&y #i(e& Concrete 3%outh 2ast.

Lt& v #inister of Pensions an& +ational nsurance; an employee agrees to provide a service

in return for a wage= that they will be subject to another persons control= they do not provide

their own tools, hire their own helpers, or assume the financial ris$ of the enterprise.

In the 'ourse of 7mployment an employer is liable for *a wrongful act authorised by the

master, or a wrongful and unauthorised mo&eof doing some act authorised by the master

applied inLister v Hesley Hall!.

rotecting the employers property might fall within the course of employment Polan& v

Parr!, but retaliation would not Warren v Henleys Lt&!. >mo$ing whilst unloading oil

Century nsurance v + )oa& *ransport Boar&! would be an unauthorised mo&eof

conducting an authorised act.

+cts prohibited by the employer can be *in the course of employment if furthering

employers business )ose v Plenty- mil$man!. Living a lift to a hitch-hi$er did not further

business *-ine v Bean1s 2(press!, and was therefore outside the course of employment.

Intentional torts an employer can be vicariously liable if the wrongful act by the employee

stemmed from an act which the employer had authorised him to do Lloy& v "race!. +n

intentional wrongful act, committed purely for the employees benefit, can fall within *the

course of employment if there is a sufficient connection between the wor$ he had been

employed to do and the acts committed Lister v Hesley Hall!. '.f. also#aga v Birmingham

Arch&iocese of the )oman Catholic Churchpriest never *off duty!.

*@n a frolic of his own 0oel v #orison! the :uestion is whether a deviation from an

authorised route constitutes a *frolic. The court will consider the e)tent of the deviation a

new journey vs a minor detour! and the purpose of the deviation whether he was still


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conducting his employers business!. In Hilton v *homas Burton, by visiting a relative in

hospital, the employee was not doing anything he was employed to do. In Harvey v ) "

O1$ell Lt&, stopping for lunch was held to be reasonably incidental to ones wor$.

There is a gentlemans agreement that employers liability insurers do not pursue an

indemnity from the employee, as is their right Lister v )omfor& ce!, unless there is evidenceof wilful misconduct, or collusion between employee and claimant.

ccu*iers/ $ia.ility

*Things done or omitted to be done @ccupiers iability +ct (1G! is generally ta$en to

refer only to actions related to the state of the property. @ther actions would be governed by

simple 9egligence though the difference between a claim under @+ and 9egligence is very

small!.

Re:uirements for a claim under @+ (1G

7stablish that loss was suffered due to the state of the premises= identify the *occupier of the

*premises= prove that he is a visitor= show that the occupier failed to ta$e reasonable care for

his safety.

/ho is an *occupierF someone who has *a sufficient degree of control over the premises

Wheat v 2 Lacon 6 Co Lt&!. #anagers and lodgers could be occupiers Wheat!. There can

be multiple occupiers e.g. brewery company and pub managers in Wheat!. +n independent

contractor could be an occupier provided he has the re:uisite level of control.

remises includes vessels, vehicles and aircraft= and open land.

/ho is a visitorF a dinner guest, a decorator, a theatre-goer, a fireman who enters your

house etc. Aisitors are those persons who have e)press or implied permission by contract or

law! to be on the occupiers land.

+ visitor may becomea trespasser and hence be covered by @+ (1H! if he e)ceeds his

permission to be on the premises e.g. a salesperson who ignores a sign, a hotel guests who

enters a *>taff @nly door!. ermission can relate to location or purpose going behind a

counter to steal would violate both!.

'ommon duty of care see section BB! of @+ (1G. The duty to ta$e *reasonable careD to

see that the visitor is reasonably safe in using the premises for the purpose for which he ispermitted to be there.

"reach of the common duty; >tandard of 'are the court will ta$e into account the nature of

the danger, purpose of the visit, seriousness of injury ris$ed, magnitude of ris$, cost and

practicability of ta$ing precautions, how long the danger had been there, any warning of the

danger, and the type of visitor.

Type of visitor children re:uire a higher degree of care s B4!a!! and professionals a lower

degree of care in respect of dangers arising from the defect they have been called to repair s

B4!b!! see)oles v +athan.


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'hildren occupiers should ta$e e)tra care in respect of concealed dangers which represent

*allurements to children "lasgo- Corporation v *aylor- berries!. "8T occupiers will have

complied with their duty to very young children if they have made their premises safe for a

child accompanied by a guardian Phipps v )ochester Corporation!.

/arnings for a warning to absolve an occupier from liability it must enable the visitor to be*reasonably safe s BH!a!!. The warning should be specific to the precise danger, more so if

the danger is hidden, and should ta$e into account the age of the visitor a child may not obey

a written warning!.

7)clusion notices act as a defence rather than as proof that there has been no breach of duty

as a warning does!.

'hec$ing the wor$ of an independent contractor s BH!b!! an occupier is only e)pected to

ma$e such chec$s as are reasonable. 'hec$ing a lift installation is too technical to chec$

Hasel&ine v $a-!, whereas chec$ing an icy step is not Woo&-ar& v #ayor of Hastings!.


19/23


20/23

+nyone who can establish that they have suffered damage, caused by a defect in a product s

B(!!. 8nli$e in 9egligence, the claimant does not need to be a foreseeable victim.


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rivate 9uisance

rivate 9uisance is *an unlawful interference with a persons use or enjoyment of land, or

some right over, or in connection with it.

/hat is an interferenceF

4 types nuisance by encroachment on a neighbours land= nuisance by direct physical injury

to a neighbours land= nuisance by interference with a neighbours :uiet enjoyment of his

land Hunter v Canary Wharf!.

The latter must affect *ordinary comfort, not *elegant or dainty modes of living Walter v

%elfe!. oss of a view Al&re&1s Case!, and TA reception Hunter v Canary Wharf! are not

actionable interferences.

/hat is unlawfulF

*8nlawful means *substantial and unreasonable, rather than *criminal. The test is *what isreasonable according to the ordinary usages of man$ind living in society %e&leigh/$enfiel&

v O1Callaghan!. 7ncroachment e.g. overhanging tree branches! is automatically unlawful.

The court will consider; the fre:uency and timing of the interference= how long the

interference has e)isted= the level of the interference e.g. intensity of smell%noise!= the cause

of the interference.


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'reator of the nuisance he remains liable even if the land is now occupied by someone else.

'urrent @ccupier of the land liable for nuisance he creates or fails to repair, or those created

by his employees, independent contractors where the creation of nuisance was inevitable!, or

visitors%trespassers provided he adopts or continues it!.

andlord where the nuisance is the inevitable result of the letting *etley v Chitting race

trac$!, or it e)isted at the start of the letting and the landlord $new or ought to have $nown, or

has promised, but fails, to repair the nuisance.


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Tres*ass to $and

The *intentional direct interference with the claimants possession of land= actionable per se.

+ person may have implied permission to be on land, e.g. in a front garden while conducting

lawful business )obson v Hallett police officers!.

Types of Trespass

7ntering upon the claimants land.

+cting in e)cess of your permission to be on the claimants land if as$ed to leave and

failing to do so, or doing something outside the scope of your permission.

"ringing anything into direct contact with the land.

igns 'elsen v mperial

*obacco! and cranes Anchor Bre-house v Berkeley House! which hang over a claimants

land have been actionable in trespass.

Intentional +ct

It is not the trespass that must be intentional, or any harm that may result from it, but the +'T

itself.

Trespass can very occasionally be committed negligently League Against Cruel %ports Lt& v

%cott! if it was practically certain that trespass would be the result of the negligence. This was

more important because it allowed the granting of an injunction unavailable in 9egligence!.

/ho can sueF

+ claimant must be in possession of the land an owner-occupier, tenant, s:uatters e)cept

no claim against the actual owner!, "8T 9@T a lodger or hotel guest.

'ausation and Remoteness usual *but for test and 9I+ rules. Remoteness is governed by

the *direct conse:uences test in )e Polemis, where the defendant is liable for all the

conse:uences of his tort, even if unforeseeable. P)e Polemistest also applies to Trespass tothe ersonQ.

Documents

Tort Revision