Introduction
Negligence as a tort is a breach
of a legal duty to take care which causes damage to the claimant that is not
too remote.
DUTY
OF CARE:
In an attempt to find a general
test to determine whether a duty of care exists Lord Atkin in Donoghue v Stevenson set out – a duty is
owed to persons who are so closely and directly affected by defendant’s
act/omission that he ought reasonably to have them in contemplation as being so
affected. He described such people as defendant’s ‘neighbors’, accordingly his
formulation came to be known as the neighbor principle.
There were many developments in
the law of negligence in the years following that decision. These led Lord
Wilberforce to redefine the neighbour principle. He turned it into a two-stage
test in Anns v Merton LBC.
The first question was, whether
there was a sufficient relationship of proximity or neighbourhood such that in
the reasonable contemplation of the defendant carelessness on his part may be
likely to cause damage to the claimant. If so, a prima facie duty of care
arose. The second question was, whether there were any considerations which
ought to negative or reduce or limit the scope of the duty of care, or the
class of persons to whom it was owed.
However, this test came under
criticism in the following years as being too expansive and indeed the Anns case was itself overruled in 1991.
The basic test for a duty of care
is now the one set down in Caparo v
Dickman. The claimant has to show three things if there is to be a duty of
care –
It was reasonably foreseeable
that the person in the claimant’s position would be injured. There was
sufficient proximity between the parties. It is just, fair and reasonable to
impose liability.
Note, this test is to be applied
only when the court is presented with a new factual situation which is
significantly different from, or wider in scope than, any of the previously
decided cases.
Where a duty of care has been
imposed in an earlier analogous case a court will be more inclined to impose a
duty on the facts of the case before it unless it is satisfied that the analogy
is not properly drawn. Conversely, where the precedents are against the
recognition of a duty of care a court will be reluctant to impose a duty unless
it considers that the earlier cases are not directly in point; or it is
convinced that reasoning incrementally and by reference to the precedents, an
extension of the scope of liability is justified. Thus, it appears that the
tripartite test could be ousted in circumstances where an incremental step
beyond existing authorities could be taken.
However, the courts have
developed more detailed and more restrictive rules applying in certain type of
cases –
·
Where
the damage caused is psychiatric, rather than physical.
·
Where
the damage caused is purely economic loss.
·
Where
the damage was caused by a failure to act.
·
Where
the damage was caused by a third party.
·
Where
the defendant falls within a range of groups who have become subject to special
rules on policy grounds.
Scope of the duty of care: Even
if the defendant owed a duty of care to some people, there remains the question
of whether the particular claimant was within the scope of that duty. In order
for a duty to exist, it must be reasonably foreseeable that damage or injury
would be caused to the particular claimant in the case, or to a class of people
to which he or she belongs, rather than just to people in general – (Bourhill v Young, Palsgraf v Long Island).
BREACH
OF THE DUTY:
A person breaches his duty of
care if he does something which a reasonable person would not do, or if he does
not do something which a reasonable person would do – (Blyth v Birmningham). Accordingly, if the defendant causes loss or
injury to the claimant, but is able to show that he acted in a way that a reasonable
person would have acted, no liability will arise – (Al-Sam v Atkins).
Lord Macmillan in Glasgow v Muir clarified – ‘the standard
of foresight of the reasonable man is an impersonal test. It eliminates the
personal equation and is independent of the idiosyncrasies of the particular
person whose conduct is in question’. However, Lord Macmillan did consider the
test contains a subjective element in it. According to him, the standard of the
reasonable man needs to be applied, to the facts of the case and to what the
reasonable man in the position of the particular defendant ought to have
foreseen.
As the test is objective, the
particular defendant’s own characteristics are usually ignored. However, there
are a limited number of situations in which special characteristics of the
defendant will be taken into account.
Professionals and special skill:
Where someone holds himself out as having special skills or qualification, he
is required to show the skill normally possessed by person doing that work – (Bolam v Friern: it was held that, a
doctor failing to diagnose a disease cannot excuse himself by showing that he
acted to the best of his skill, if a reasonable doctor would have diagnosed
it). In Nettleship v Weston, it was
irrelevant that the learner driver defendant was doing as well as she could,
since a reasonable driver in her position would have done better.
It is immaterial if defendant
does not in fact have that skill but yet engages himself in conduct usually
done by person having that skill, the standard demanded is still that of those
who actually do possess that skill – (Adams
v Rhymney Valley). However, where someone has not held himself out as
having special skill but who does in fact have that skill, he will not be in
breach if his conduct falls below the standard of a reasonable person with that
skill – (Wooldridge v Sumner).
In Shakoor v Situ, it was held that a practitioner of Chinese herbal
medicine does not have to meet the standard of skill and care of a reasonably
competent practitioner of orthodox medicine, he only have to meet the standard
applicable to his practice; but he does have to take account of the reports
relating to his practice in orthodox journals.
Interestingly in Phillips v Whiteley, it was argued that
a jeweler who had pierced the claimant’s ears have to show the care of a
reasonable surgeon. The court rejected this argument and held that, he would be
judged by the standard of a reasonably competent jeweler carrying out that
particular task.
Medical negligence: In assessing
the standard of care to be expected in areas where the defendant is exercising
special skill or knowledge, the courts have accepted that within a profession
or trade there may be differences of opinion as to the best techniques and
procedures in any situation. This type of situation frequently arises in case
of medical practice.
Faced with a particular patient,
one doctor might recommend surgery, but another might recommend treatment with
drugs. The court do not insist that one of these approached must be right and
the other wrong. What has to be shown is that, the defendant has acted in a way
that would be supported by ‘a body of respectable medical opinion’. This is known
as the Bolam test, since it was set
out in that case. Note, it is no objection that only a small number of doctors
would have supported the defendant’s conduct – (Defreitas v O’Brien).
It is then for then for the court
to decide whether the medical experts opinion is reasonable, considering
whether they had weighed up the risks and benefits and had a logical basis for
their conclusion – (as explained in Bolitho
v City and Hackney HA). In Bolitho
it is suggested that, the fact that medical experts held a particular view,
would in fact demonstrate its reasonableness; and it would only be in very rare
cases that a court would reject such a view as unreasonable. Thus, it will
rarely be necessary for a court to find that the views held by a competent
medical expert are unreasonable, but it is nevertheless possible.
Duty to explain: Previously, it
was sufficient to show that the standard of disclosure practiced by a doctor in
respect of potential risk of damage associated to his treatment conformed to a
practice of disclosure sanctioned by responsible medical opinion, as seen in Sidaway v Bethlam. This decision has
been criticized for not recognizing a patient’s right to make informed consent
and determining the sufficiency of disclosure from the doctor’s point of view.
A different approach was adopted by the Australian court in Rogers’s v Whittaker – the standard of
disclosure to be met is the one, which a reasonable patient would want to know.
Accordingly, the HL in Chester v Afshar stated, doctors not
only have a duty to take reasonable steps to make sure their advice is right,
but also to explain the advantages and disadvantages of a particular treatment,
unless there is a good reason for not doing so.
Chester is also an interesting case on
causation. In this case, the claimant did not show that she would probably
(i.e. balance of probabilities) never have had the operation had the
information been given; but she did show that she would have taken her time and
consulted friends and therefore would not have had the actual operation on the
particular day that she did have it. Surprisingly, this was held sufficient to
establish causation.
In most cases, it will be that
the individual doctor (or nurse, etc) is negligent, and that the health
authority or private hospital is vicariously liable. However, in some cases it
may be appropriate to consider arguing whether the health authority or hospital
is negligent, e.g. by entrusting a procedure to an inappropriately junior
doctor, or by overworking its staff so that they are too tired and make
mistakes.
Illness: Where the defendant’s
conduct is affected by some kind of illness or other external factor, this will
be taken into account while assessing the standard of care to be met – (Mansfield v Weetabix: Here the driver of
a lorry was suffering from a disease which on the day in question caused hypoglycemic
state (a condition in which the blood sugar falls so low that the brain’s
efficiency becomes temporarily impaired). This affected his driving, with the
result that he crashed into the claimant’s shop. The driver did not know that
his ability to drive was impaired, and there was evidence that he would not
have continued to drive if he had known. The CA said that the standard by which
he should be measured was that of a reasonably competent driver who was unaware
that he suffered from a condition which impaired his ability to drive; on this
basis he was found not to be negligent. But the result would have been
different if the driver had known that his ability to drive was impaired).
Knowledge: The defendant must be
judged in the light of the state of scientific, technological or other expert
knowledge which was available to him at the time of the alleged breach, rather
than any latest advancement – (Roe v
Minister of Health: medical witness in the case said that until the man’s
accident occurred, keeping the ampoules in disinfectant was a standard
procedure and there was no way of knowing that it was dangerous; it was only
the injuries to the claimant that had revealed the risk. Therefore, the
defendant was held not liable).
Special knowledge concerning the
claimant: Where the defendant knows or ought to have known about particular
characteristics of the claimant which increase the risk of harm, then more will
be required of the defendant – (Haley v
London Electricity Board: Here the HL held that a body conducting
operations on a city highway should foresee that blind persons would walk along
the pavement, and that it owes a duty to take those precautions reasonably
necessary to protect them from harm. On the facts it was held liable although a
person with normal visi8on would not have been injured in consequence of its
operations).
Children: Where the defendant is
a child, the standard of care is that of an ordinary careful and reasonable
child of that age – (Mullin v Richards).
Some factors extraneous to the
defendant is also considered to set the standard of care to be met in a
particular case:
Likelihood of harm: Although harm
to someone may be foreseeable, the risk of that harm being inflicted may be so
unlikely that the defendant will not be required to take any precautions
against it happening – (Bolton v Stone).
In Bolton v Stone, Miss Stone was hit by a cricket ball struck from a
cricket ground surrounded by a fence 17 feet above the level of the square. The
batsman was 80 yards away. The ball was only the 6th in about 30
years to be hit out of the ground. The HL held that there had been no breach of
duty by the club in allowing cricket to be played without taking further
precautions.
Lord Radcliffe stressed two
points: first, the fact that the ball had to clear the fence which itself was a
remote possibility and, secondly, that having cleared the fence the ball would
then have to strike a passer-by, an even more remoter possibility. Lord Oakley
said ‘an ordinarily careful man does not take precautions against every
foreseeable risk…… life would be almost impossible if he were to attempt to
take precautions against every risk’.
By contrast in Hilder v Associated Portland, the risk
of injury to a road user from a football being kicked from a patch of open land
was much greater, thus the defendant responsible for the land was held to be in
breach of a duty of care.
Gravity of potential harm: Where
the consequence of the harm which is likely to be done if the risk materializes
is serious, then more will be required of the defendant – (Paris v Stepney BC: The claimant, who had one eye, was employed as
a mechanic in the defendants’ garage. Part of his job involved welding. It was
not normal to supply goggles to men involved in such work. A piece of metal
flew into the claimant’s eye with the result that he became completely blind.
The defendants were held liable, although they would not have been liable to
person with normal sight. The greater risk to the claimant meant the greater
precautions than normal, had to be taken).
Practicality of protection: If
the cost of eliminating the risk is out of proportion to the benefit obtained
by its elimination, then it will not generally be negligent to fail to
eliminate the risk – (Latimer v AEC Ltd:
Flooding had occurred in a factory owned by the defendants, following an
unusually heavy rainfall. This had left patches of the floor very slippery. The
defendants had covered some of the wet areas with sawdust, but had not had
enough to cover all of them. The claimant, a factory employee, was injured
after slipping on the uncovered area, and sued alleging that the defendants had
not taken sufficient precautions; in view of the danger, they should have
closed the factory. The HL agreed that the only way to eradicate the danger was
to close the factory, but held that given the level of risk, particularly
bearing in mind that the slippery patches were clearly visible, such an onerous
precaution would be out of proportion. The defendants were held not liable).
Potential benefit of the risk
taking: Where the defendant takes some risks, his risk taking may be outweighed
by the potential benefit his conduct is to achieve, then he will not be
negligent by taking the risk – (Watt v
Hertfordshire CC: The claimant was a firefighter. He was among others
called to the scene of an accident where a woman was trapped under a car; a
heavy jack was needed to rescue her. The vehicle in which the fire officers
travelled to the scene was not designed to carry the jack, and the claimant
injured when it slipped. He sued his employers, but the court held that the
risk taken in transporting the jack was outweighed by the need to get there
quickly in order to save the woman’s life).
It is important to appreciate
that an emergency does not exonerate the defendant from displaying any level of
care at all, it merely reduces the standard demanded – (Ward v London CC).
CAUSATION
& REMOTENESS
In order to establish negligence,
it must be proved that the defendant’s breach of duty actually caused the
damage suffered by the claimant, and that the damage caused was not too remote.
Causation is relevant to all
torts in which proof of damage is essential, though very often it is discussed
in the context of negligence.
The basic rule of causation is
set out as ‘but for’ test. The test may be stated as: ‘if the damage would not
have happened but for a particular fault, then that fault is the cause of the
damage; if it would have happened just the same, fault or no fault, the fault
is not the cause of the damage’ (per Denning LJ in Cork v Kirby). The burden of proof lies on the claimant. He has to
show on the balance of probabilities that the damage would not have occurred
but for the defendant’s breach of duty.
The application of this test can
be seen in Barnett v Kingston and Chelsea
Hospital: The defendant breached his duty towards the claimant by failing
to examine him. However, he was not held liable, as there was evidence that,
even if he had been examined it was too late for any treatment to save him.
In Bolitho v City and Hackney HA, the defendant was in breach of her
duty by failing to attend a patient, but there was evidence that the action she
in fact would have taken if she had attended, would not have saved the patient.
Accordingly, she was not held liable.
In Mcwilliams v Sir William Arrol, the defendant employer failed to
provide safety equipment for his employee, but there was evidence that the
deceased employee would not have used it even if it had been provided.
Accordingly, the defendant was not held liable.
Interestigly, in Chester v Afshar, the surgeon had
advised the claimant to undergo surgery but in breach of duty failed to advice
her of the risk. The claimant did not show that she would probably never have
had the operation, but she did show that she would have taken her time and
consulted friends and therefore would not have had the actual operation on the
particular day that she did have it. The HL held that she had therefore
established that the breach of duty was a cause of her injury.
The HL accepted that it was very
difficult to prove causation on conventional principles, and said that this was
a case where legal policy required a judge to decide whether justice required
the normal approach to causation to be modified. In this case it did. To find otherwise
would mean that only those claimants who could categorically say that they
would not have had the surgery, would benefit from the existence of the duty of
care; whereas those who needed time to think or more advice would not. This
would leave the duty of care useless where it was needed most. On policy
grounds therefore, the test of causation was satisfied and the claimant won her
case.
In light of this Chester can be seen as a case, where the
HL ha defectively abolished any meaningful requirement for factual causation.
But the CA has since been keen to emphasize in cases like White v Paul (Chester
inapplicable to solicitor’s negligent advice), Beary v Pallmall (Chester
inapplicable to negligent advice regarding financial matters) that the result
in Chester was an extraordinary one
reached on policy grounds and it is confined to its own limited context: that
is, cases involving a negligent failure to warn a patient of the dangers
associated with a particular medical treatment or procedure. Whether, if the
opportunity arises, the HL will be as keen to confine Chester v Afshar in this way remains to be seen. But for the
present, it would appear wise to treat the decision as exceptional, and one
that does not lay down any general rule capable of universal application.
CAUSATION
SPECIAL PROBLEMS: MULTIPLE CAUSES:
In a number of situations the
application of the ‘but for’ test would lead to outcomes that would be absurd
or arguably unjust. The courts have in some of these cases been prepared to
abandon or modify that test.
Various causes of same damage:
Where there are multiple causes of the same
damage, the application of ‘but for’ test produces an absurd result; as it will
be possible in each cases to argue that the damage would still have occurred in
the absence of the one.
In Baker v Willoughby, the claimant was knocked down by the defendant
while he was crossing the road. As a result of the accident the claimant
suffered injuries to his left leg, which caused him some pain and discomfort
and also detrimentally affected his earning power. The claimant took up a new
job after the accident, but while he was at work he was shot in the same leg
during an armed robbery. As a result of this second incident the claimant’s
left leg had to be amputated.
The defendant argued that his
liability only extended to the point at which the armed robbery occurred, the
damage he has caused would have been done in anyway (in addition to the
additional injury) by the robbers. (Note, we are concerned with continuing
liability for the consequence of the original injury, and not with liability
for the additional consequences of the second injury; this will be discussed
under remoteness). Thus, according to the ‘but for’ test, the defendant’s
conduct should no longer be treated as a cause of the damage.
But, the HL in finding him liable
refused to apply the ‘but for’ test on two grounds –
The loss of earnings was a
permanent state of affairs and had resulted from the original injury. The armed
robbery and amputation of the leg had not altered this fact even though the
eventual damage was different and worse.
Had the claimant sued the
robbers, the robbers would have been able to take advantage of the rule that a
tortfeasor takes his victim as he finds him, and so would only have been liable
for the damage which they had caused to an already damaged leg. So, to refuse
the claimant a remedy in respect of the damage done by the defendant would be
to leave the claimant under-compensated because he would not be able to recover
in respect of that damage from the robbers.
So, to do justice on the facts of
the case, the defendant was held liable for the loss resulting from the
original accident, the additional damage caused by the robbers was discounted.
A different result was however
reached by the HL in the case of Jobling
v Associated Dairies. Here, the claimant suffered injury to his back at
work in 1973. This injury was caused by the defendants’ breach of statutory
duty and the effect of the injury was to compel the claimant to take a less strenuous
job, with the result that his earning capacity was reduced by 50%. Before the
action against the defendants was tried in 1979, it was discovered in 1976 that
the claimant was suffering from a crippling back disease named myelopathy. The
effect of the latter disease was to render him totally unfit for work by the
end of 1976. There was no connection between the myelopathy and the defendants’
negligence. It was held that the defendants were not liable for any loss of
earnings suffered by the claimant after 1976 when the myelopathy rendered the
claimant totally unfit for work.
The HL was critical of, but did
not overrule, the earlier decision in Baker.
Baker was criticised on the ground
that it took no account of the vicissitudes of life. Thus, the House appeared
to suggest that the contraction of another independent disease would count as a
vicissitude and would have the effect of reducing the damages payable, but that
the commission of another tor was not a vicissitude of life and so would not
reduce the damages payable. But, Evans
pointed out, ‘it is just as much a contingency of life that one might get
knocked down by a negligently driven car as it is that one might suffer some
disabling illness’. So, this distinction is hardly a satisfactory one.
Uncertainty of the facts: Where
there are multiple causes each contributing to cause the onset of a disease,
but uncertainty as to the proportion of contribution each made; causation is
established if the claimant can show that the defendant’s breach of duty
materially contributed to the disease being caused – (Bonnington v Wardlaw). In this scenario, the ‘but for’ test becomes
ineffective since the claimant will not be able to show on the balance of
probability because of the uncertainty, that he would not be have suffered the
harm but for any of those causes.
This principle was later extended
in McGhee v NCB. Where there are
various possible causes of a damage but uncertainty as to which cause is the
culprit, causation is made out if the claimant can show that the defendant’s
breach of duty had materially increased the risk of the injury occurring. This
is another situation where ‘but for’ test would appear ineffective as it would
be impossible to say that the damage probably would not have occurred but for the
defendant’s breach of duty or it would probably still have happened without the
defendant’s breach of duty.
Lord Wilberforce justified the McGhee conclusion on the ground that the
defendants, by their negligence, had created the risk of a particular damage
occurring and when that risk became reality they were not allowed, on grounds
of policy to hide behind the evidential difficulty of showing what had caused
the damage to the claimant.
But, in Wilsher v Essex AHA, the HL declined to follow this principle and
insisted for strict ‘but for’ test. The HL found itself faced with this issue
once again in Fairchild v Glenhaven,
where it favoured the McGhee
approach, but accepted that Wilsher
was correctly decided on its own facts as there were a number of possible
agents involved. It appears that, Fairchild principle applies only where there
is one noxious agent involved. Thus, these two lines of authority can be
summarized as –
Where there are various possible
causes each generating same agent that is likely to cause a damage on its own,
but uncertainty as to which cause is the culprit, causation is established if
the defendant’s breach of duty had materially increased the risk of the damage
occurring – (Fairchild, McGhee).
Where there are various possible
causes generating several agents that are likely to cause a damage on their
own, but uncertainty as to which cause is the culprit, causation can only be
proved if the claimant can show on the balance of probabilities that the
defendant’s breach of duty caused the injury – (Wilsher).
It should be noted that, there
remains no convincing answer as to why a case involving several agents should
be treated differently from a case involving single agent. Fairchild was revisited in Barker
v Corus where it was held that, a defendant may still be liable even though
the other exposures were non-tortious, by natural cause, or by the act of the
claimant himself.
REMOTENESS
OF DAMAGE:
Damages may be denied even where
the claimant is able to establish a causal connection between the breach of
duty and damage, on the ground that the damage is too remote.
Initially, the test of remoteness
of damage in the tort of negligence was said to be – whether the damage was the
direct consequence of the breach of duty – as laid down in Re Polemis. Modern test is the one set out in The Wagon Mound (No.1) – Defendant is liable for damage only if it
was the foreseeable consequence of the breach of duty. It is sufficient if the
injury is of the type that could be foreseen, even if it came about in an
unexpected way – (Jolley v Sutton LBC);
or was much more severe than expected – (Hughes
v Lord Advocate).
New & intervening causes:
Where the damage caused by a torfeasor is worsened by an intervening event,
which is afforded the stage to occur by the original tort, particular problem
of remoteness arises. Clearly, the intervening event would not have occurred
resulting in additional damage, had the original tort not been committed.
Therefore, the additional damage is in a factual sense caused by the original
tort. But, the question is, is it recoverable from the original tortfesor? This
additional damage cannot be recovered from the original tortfeasor where the
intervening event renders them too remote, by breaking the chain of causation.
Intervening events may take one
of three forms –
Natural events: An act of nature
will break the chain of causation where it is unforeseeable and independent of
the defendant’s negligence – (Carslogie v
Royal Norwegian Government).
Acts of third party: Act of third
party will break the chain of causation if it is ‘something unwarrantable, a
new cause that disturbs the sequence of events and something that can describe
as either unreasonable or extraneous or extrinxic’ – (per Lord Wright in The Oropesa). Thus, the defendant will
remain liable if the act of third party is not truly independent of the
defendant’s negligence as was the case in Oropesa.
But even where the conduct of the
third party is necessitated by the initial negligence of the defendant, it is
still possible that the subsequent act will break the chain of causation as
shown by Rahman v Arearose. It was
held in Rahman v Arearose that,
negligent medical treatment which intervenes between the breach and the damage
will be treated as breaking the chain of causation, if it is serious and
amounts to a completely inappropriate response to the patient’s condition.
In Knightley v Johns, Stepenson LJ stated ‘negligent conduct is more
likely to break the chain of causation than conduct which is not’. He stated
that the courts sought refuge in ‘common sense rather than logic on the facts
and circumstances of each case’.
In Knightly v Johns, the defendant’s negligent driving caused an
accident which had the effect of blocking a busy tunnel. The second defendant,
a police officer, forgot to seal off the tunnel and, in breach of police
standing orders, sent the claimant, a police motor cyclist, back into the
tunnel against the flow of traffic. While travelling through the tunnel, the
claimant was injured when he was involved in a collision with another driver.
It was held that, the second defendant was negligent in not closing the tunnel
when the initial accident occurred and so the first defendant was not liable
for the injuries sustained by the claimant.
On the other hand, a different
result was reached in the case of Rouse v
Squires. The first defendant through his negligent driving caused an
accident in which his lorry ‘jack-knifed’ across the road. A few minutes later
the second defendant negligently collided with the vehicle involved in the
first accident and killed the claimant. It was held that the first defendant’s
negligence was an operative cause of the claimant’s death and so he was held to
be 25% responsible for the claimant’s death. Here, the second accident was a
natural and probable consequence of the first accident and was foreseeable;
therefore it did not amount to break in the chain of causation.
Where the third party act
consists of deliberate wrongful conduct, chain of causation will be broken only
if it was something very likely to happen – (Home Office v Dorset Yacht), a mere foreseeable possibility is not
enough – (Smith v Littlewoods).
Acts of the claimant: Where the
intervening event is an unreasonable conduct perpetrated by the claimant
himself, this will break the chain of causation – (McKew v Holland).
In Mckew v Holland, defendant’s negligence caused injury to claimant’s
leg. Claimant later broke his ankle attempting, while still suffering from the
effects of the first injury, to descend s steep staircase unaided. Claimant’s
imprudent and unreasonable conduct constituted a fresh and separate cause of
the second injury. Defendant was only liable for the initial injury.
By contrast, in Wieland v Cyril Lord Carpets, the
claimant suffered neck injuries and had to wear a collar in consequence of the
defendants’ negligence. She later fell downstairs because, as a result of the
initial injury and the neck collar, she could not use her bifocal lenses with
her usual skill. Her further injury was found to be attributable to the
defendants’ original negligence. There was no unreasonable conduct on her part
that could be taken to constitute a novus
actus interveniens breaking the chain of causation.
Even if the claimant’s act may be
viewed as unreasonable it will not break the chain of causation, where the
defendant could foresee such an act and was under a duty to take care to
prevent it occurring. Thus, in Reeves v
Commissioner of Police, the fact that a prisoner was a known suicide risk
combined with the fact that the defendants were under a duty to take care to
prevent that suicide meant that the defendants were causally responsible when
the prisoner did in fact commit suicide. By contrast, in Grieves v FT Everard where claimant’s anxiety about the onset of a
long-term asbestos-related disease was foreseeable, it was held that there was
no duty to take reasonable care to prevent claimant suffering such anxiety.
PSYCHIATRIC
INJURY
Where the claimant’s injuries are
psychiatric and not physical, damages are recoverable only exceptionally. In
the past, the courts were reluctant to award damages for psychiatric injury
caused by the negligence (as apparent in Victoria
Railways v Coultas) for various reasons. They include the difficulties of
putting a monetary value on such harm, the risk of fictitious claims and
excessive litigations, and the problems of proving the link between the
defendant’s negligence and the injury to the claimant. But, such claims are now
entertained but are subject to a number of restrictions.
The first restriction is that,
damages are available only for a recognized psychiatric illness; and not for
grief, distress, sorrow etc (This was the reason why damages is not awarded in Nichols v Rushton). In exam questions,
this should be assumed as satisfied.
Claimants who can prove such
injury can only claim in negligence if they can establish that they are owed a
duty of care by the defendant to avoid inflicting psychiatric injury (and of
course that the defendant’s negligence actually caused the injury). The other
restrictions apply in establishing this duty of care. Different sets of rules
apply for different categories of claimant; that means, whether the claimant is
a primary victim or a secondary one.
Primary victims are one who
suffers psychiatric injury after being physically injured in an accident, or
being put in danger of physical injury, or reasonably believing himself to be
in danger of physical injury. In primary victim cases, reasonable
foreseeability of physical injury to the claimant is sufficient to establish
the duty of care in respect of the psychiatric injury, it is not necessary to
show psychiatric injury as such was foreseeable – (Page v Smith). Although affirmed by the HL in Simmons v British Steel, Lord Neuberger in Corr v IBC Vehicles described Page
as a ‘somewhat controversial decision’. In light of Page, damages for psychiatric injury will be recoverable even where
the psychiatric damage is suffered because of some susceptibility of the
claimant to shock as long as physical injury is foreseen.
Secondary victims are one who are
not put in danger of physical injury to themselves, but suffers psychiatric
injury as a result of witnessing such injury to others. To succeed as a
secondary victim following conditions deriving from McLoughlin v O’Brian and subsequently refined in Alcock v CC of South Yorkshire should be
satisfied.
It was reasonably foreseeable
that the claimant would suffer psychiatric injury, as his relationship of love
and affection with the primary victim was sufficiently close.
So long as a bystander of normal
fortitude would be likely to suffer psychiatric injury, it does not matter
that, that psychiatric injury is made more serious by some characteristics
personal to the claimant. But, if the psychiatric injury would not have
occurred at all to someone without the claimant’s particular susceptibility,
there will be no claim. Only some psychiatric injury has to be foreseeable, its
precise form or severity need not be foreseen.
In cases of parents, children,
and spouses – there relationship with the primary victim is presumed to be
sufficiently close, though evidence might be brought to rebut the presumption.
In all other cases, it must be established. Claims by brothers, sisters and
brother-in-law are failed in Alcock
while the claim on the part of a fiancée was allowed.
Curiously in Alcock, Lord Keith, Lord Ackner and Lord Oliver went so far as to
say that the claim of a bystander was not ‘entirely excluded’ and they
suggested that a claim may be brought by a bystander where a catastrophe occurs
very close to him, which is particularly horrific. However, this expansive
approach to the class of claimants has not been followed in a later CA case,
named McFarlane v Caledonia. It was
held that, a bystander to a horrific event could not recover on the grounds
that, the basis of the decision on Alcock was that the test of proximity was
not simply reasonable foreseeability but that there must be a sufficiently
close tie of love and affection between the claimant and the victim. To extend
that duty to those who have no such connection, would be to base the test on
reasonable foreseeability alone.
But surprisingly, the necessary
relationship can be with the claimant’s property – (Attia v British Gas plc (with house), Owens v Liverpool Corp (with favourite pet)). In Attia, the CA did
not say what factors would be considered in deciding whether the psychiatric
injury was foreseeable, but presumably it is the closeness of the relationship
between the claimant and the ‘thing’ damaged.
Claimant’s proximity to the
accident or its aftermath was sufficiently close both in terms of time and
space. This means, the claimant must normally either witness the accident
himself or come upon its immediate aftermath.
It is not clear what really
constitutes ‘immediate aftermath’. In McLoghlin
claimant’s arrival at the hospital after two hours of the accident and finding
her family, was held to come within the meaning of immediate aftermath. While,
in Alcock claimants’ arrival at the
mortuary after some eight or nine hours to identify their relatives who had
been the victim of Hillsborough tragedy was held insufficient to come within
‘immediate aftermath’.
One factor may be the state of
the primary victim, and the purpose of the visit. In McLoughlin, the primary victims were still in the same state as
they were after the accident. In Alcock,
the claimants’ went to the mortuary simply to identify the body. Lord Jauncey
opined that, this was very different from the case of a relative who goes
within a short time of the accident to rescue or comfort the victim.
However, a more generous approach
to this proximity requirement is apparent in recent cases. The CA in Galli-Atkinson v Seghal held that,
aftermath of an accident can be made up of a number of components. The HL in W v Essex CC declined to strike out a
parent’s claim on the basis that the parents had only been told of the abuse,
without not actually witnessing it or its immediate aftermath. Although, a full
discussion of this point must await the full trial of W v Essex CC (as it was only a striking-out case), it might be
that, in certain circumstances, the strict time requirement that have been set
in Alcock and McLoughlin might be relaxed.
The claimant suffered psychiatric
injury as a result (an issue of causation) of sudden shock caused by seeing or
hearing the accident or its immediate aftermath.
In Sion v Hampstead HA, the claimant had developed a stress related
psychiatric illness as a result of watching his son slowly die intensive care
as a result of negligent medical treatment. It was held that as the father’s
psychiatric injury had not been caused by a sudden shock, he could not recover
damages for it.
A contrasting case is North Glamorgan NHS Trust v Walters.
Here the claimant was the mother of a baby boy, who died after receiving
negligent treatment for which the defendants were responsible. The baby was ill
in hospital. Unknown to his mother at the time, the hospital had misdiagnosed
his illness. She woke up to find him choking and coughing blood, and was told
by the doctors that he was having a fit, but that he was very unlikely to have
suffered any serious damage. Later that day, he was transferred to another
hospital, where she was told – correctly – that he had in fact suffered severe
brain damage and was in a coma; she was asked to consider switching off his
life support machine. She and her husband agreed to this on the following day.
The events caused her to suffer a
psychiatric illness, but the hospital argued that they were not liable for this
as it was not caused by a sudden shock, but by a sequence of events that took
place over 36 hours. The CA disagreed: it said that the ‘horrifying event’
could be made up of a series of events, in this case witnessing the fit,
hearing the news that her son was brain damaged after being told that he was
not, and then watching him die. Each had their own immediate impact, and could
be distinguished from cases where psychiatric injury was caused by a gradual
realization that a child was dying.
In many cases, causation will be
difficult to prove, since in addition to the required shock, claimants will
have experienced the grief of bereavement, which could equally well have caused
their psychiatric injury. However, Vernon
v Bosley (No.1) made it clear – provided psychiatric injury is partly
caused by shock, the claimant can recover even if there were other causes.
As rightly rejected in Alcock a person watching simultaneous
television would normally have no claim as the broadcasting guidelines prevent
the showing of suffering by recognizable individuals. If such pictures were
shown, then the transmission would normally be regarded as a novus actus interveniens. However, there
may be cases where viewing simultaneous television may be treated as equivalent
to sight and sound of the accident. An example was given of a televised hot air
balloon event with children in the balloon, which suddenly burst into flames.
The claimant must suffer
psychiatric injury as a result of directly hearing or seeing the accident or its
immediate aftermath. There can be no liability where the claimant is merely
told about the accident by a third party – (although in Ravenscroft & Hevican such
a claim was entertained by the High Court, these were disapproved in Alcock and
accordingly Ravenscroft has been
overruled by the CA; but no appeal has been heard in Hevican yet). But, the HL in W
v Essex CC declined to strike out a parent’s claim on the basis that the
parents had only been told of the abuse, without not actually witnessing it or
its immediate aftermath. However, if a duty is to be recognised on such facts,
this is best done by reference to the local authority’s assumption of
responsibility to the claimants in placing the foster child with them, and not
by dilution of the general requirement.
One further limitation in this
area was added in Greatorex v Greatorex.
Where the defendant himself is the primary victim he cannot owe a duty to
secondary victim – (Greatorex v Greatorex).
In this case, the defendant caused himself serious injury by negligent driving.
The claimant, his father, went to the scene as a member of the rescue service
and suffered post-traumatic stress disorder as a result. He sued his son, in
practice he was not suing his son, but the Motor Insurance Bureau, who compensate
victims of uninsured drivers; had the son been insured, the defendant would
have been his insurance company. But, the claim was dismissed on the ground
that imposing a duty on people to take care of themselves so as not to shock
others would impinge on the right of self-determination.
The need for reform in respect of
secondary victim’s claim for psychiatric injury, has been identified by the Law
Commission in its Report, Liability for
Psychiatric Illness in 1998. Their chief recommendations are –
To retain the requirement of a
close tie of love and affection to the primary victim in the case of secondary
victims.
To remove the requirements for
secondary victims to show proximity in time and space, and that the event has
been witnessed by the claimant’s own unaided senses.
That the injury should be
accepted even where not caused by sudden shock.
The proposals seem to be much
fairer. However, it is not clear whether or not there is any likelihood of them
becoming law. In light of recent response to Law Commission proposals it may be
unlikely, at least in the near future.
Other cases – Rescuers: At one
time it was thought that a rescuer who suffered psychiatric injury was the
result of participating in distressing scenes could recover damages on policy
grounds. This was the position taken in Chadwick
v BRB. The policy behind this was that such selfless behavior should be
encouraged and supported, and therefore should not be subject to stricter rules
than those of ordinary personal injury.
But the HL in White v CC of South Yorkshire held that,
in order for a rescuer to be able to recover for psychiatric damage some
physical damage had to be foreseeable, so that he can claim as primary victim.
He cannot claim as secondary victim as he will have no ties of love and
affection with the primary victims. Thus, rescuers are not treated as a special
category of secondary victims; and they are subject to normal rules on
secondary victim as stated in Alcock.
Two main reasons were given for
the ruling –
Once rescuer includes those who
help without putting themselves in any physical danger, the line between
rescuers and bystanders may become difficult to draw.
Police officers’ conditions of
service (in White the rescuers were
police officers) provided for them to be compensated in other ways for the
psychiatric injury they had suffered. But this does not explain why volunteer
rescuers should be treated in the same way as professional ones.
Other cases – Employees: The
second argument made by the claimant in White
was that, they were owed a duty of care as employees of the party whose
negligence caused the shocking event.
The House stated that the
employer’s duty to employees was not a separate tort with its own rules, but an
aspect of the law of negligence, and therefore subject to the normal rules of
negligence. This meant that where a type of injury was subject to special
restrictions on when a duty of care would exist, these rules applied where the
injury was caused by an employer to an employee, just as they would normally.
An attempt to widen employers’
liability for psychiatric injury caused by a shocking event was firmly rejected
by the HL in French v CC of Sussex Police.
Employees are therefore only able to claim for psychiatric injury caused by a
shocking event where they can satisfy the rules on claims by secondary victims,
or where they can be considered primary victims.
Other cases – Unwitting agent:
Where the claimant through defendant’s negligence becomes the agent of another
person’s injury or reasonably believe that he is about to do so, and suffers
psychiatric injury as a result – he can recover damages if he can prove
sufficiently close, both in terms of time and space, proximity to the accident
or its immediate aftermath.
The leading authority is Dooley V Cammell. Here the claimant was
operating a crane at the docks where he worked, when through no fault of his,
it dropped a load into the hold of the ship being unloaded. He successfully
claimed for psychiatric injury caused through fearing for the safety of a
colleague working below. In Hunter v BCC
the claim was rightly rejected as the claimant could not show the necessary
proximity, he had reacted only to what he was told by a third party.
Other cases – Assumption of
responsibility: Should a defendant be liable for causing psychiatric injury by
carelessly passing on wrong information, or by passing on correct information
in a carelessly insensitive way – is far from clear. However, there may emerge
a principle in the light of few isolated cases with no clear principle (as yet)
such as Allin v City & Hackney H,
that a defendant should be liable if there is an assumption of responsibility
to protect the claimant against psychiatric injury or if there is an ongoing
relationship between the parties that entails such responsibility.
DEFAMATION
Defamation has been succinctly
defined by the leading tort expert Professor
Winfield: ‘Defamation is the publication of a statement which tends to
lower a person in the estimation of right-thinking members of society generally,
or which tends to make them shun or avoid that person’.
There are two types of
defamation, libel and slander:
Libel covers statement made in
some permanent form: this usually means printed or written words, but also
covers film, pictures, statues and effigies. By statute it includes radio
broadcasts (Sec. 1 Defamation Act 1952)
and the performance of plays (Sec. 4(1)
Theatres Act 1968).
Slander applies to statement made
in a transitory form, such as spoken words or gestures.
But, the distinction is not always
straight-forward. In Youssoupoff v MGM
Pictures, the court had to consider the status of the spoken words in a
permanent form, in the context of a film. Slesser LJ held that the film
pictures, being ‘a permanent matter to be seen by the eye’ could be regarded as
libels. He also found the speech to be libel, but not simply because it too was
permanent: in his view, it amounted to libel only because it was ‘part of one
complex, common exhibition’. To him, it was because the sound recording was
‘ancillary’ to the visual image that it could be regarded as libel rather than
slender: it was ‘an ancillary circumstance…… …….explaining that which is to be
seen’.
Thus, where a sound recording
exists independently of any visual image, Slesser LJ’s reasoning suggests that
the liability would arise only in slander. Yet, this ignores the fact that
although the words are merely heard, they are permanently recorded which, it is
submitted, suggests that they should be considered libel.
Libel is actionable per se (means on its own or alone
sufficient ground for bringing an action), but slander is only actionable where
the claimant can show that he has suffered special damage; that is not too
remote. However, there are few exceptional situations where the claimant is not
required to prove special damage for slander. The exceptional cases are as
follows –
Where the imputation is that the
claimant has committed a criminal offence punishable with imprisonment (as seen
in Hellvig v Mitchell),
Where the imputation is of un-chastity
or adultery on the part of a woman or girl (Sec.
1 Slander of Women Act 1891, as seen in Kerr
v Kennedy),
Where it is imputed that the
claimant is infected with a contagious or infectious disease likely to prevent
others associating with the claimant (as seen in Taylor v Hall),
Where the words impute unfitness,
dishonesty or incompetence on the part of the claimant in relation to any
offence, profession, calling, trade or business (Sec. 2 Defamation Act 1952).
ELEMENTS OF DEFAMATION: To
succeed in an action for defamation, the claimant must prove three things –
- The
statement is defamatory, - The
statement refers to the claimant, and - The
statement has been published to a third party.
Note, in the case of a libel
merely committing the tort without a defence is sufficient for liability, but
with slander a defendant will only be liable if the defamation has caused the
claimant special damage (subject to the exceptions discussed above).
THE
DEFAMATORY STATEMENT:
To be defamatory, a statement
must ‘tend to lower the claimant in the estimation of right thinking members of
society generally’ – (Sim v Stretch),
or lead to the claimant being shunned or avoided – (Youssoupoff v MGM Pictures). In the more recent case of Berkoff v Burchill, in which the
claimant was described as ‘hideously ugly’, it was held by the CA that,
although insults that did not diminish a person’s standing are not defamatory,
a statement can be defamatory if it held up the claimant to contempt, scorn or
ridicule, or tended to exclude him from society, even if the statement did not
impute disgraceful conduct or any lack of business or professional skill.
In Byrne v Deane, the claimant was a member of a golf club, whose
owners illegally kept gambling machines on the premises. Someone reported them
to the police, and afterwards a poem was posted up in the club, implying that
the claimant had been the informant. He sued, and won the original case, but on
appeal the courts held that the suggestion was not defamatory, because a
right-thinking member of society would not think less well of someone for
telling the police about criminal activity. It did not matter that the claimant
would be less well thought of by his fellow club members. So, the fact that, a
section of the public with which the claimant has the closest contact thinks
less of him is not enough, if the views are not shared by right-thinking
members of the society.
The intention of the defendant in
making the statement is wholly irrelevant – (Cassidy v Daily Mirror), although this may help to support a
defence of unintentional defamation.
The judge has to be satisfied
that the words are capable of being defamatory. The jury will then decide
whether the words are in fact defamatory.
Defamation is not confined to
direct attacks on the claimant’s reputation. To protect the claimant’s
reputation defamation may also include implied or veiled attacks, which are
generally known as ‘innuendo’. There are two types of innuendo: true (or legal)
and false (or popular).
A true innuendo is one where the statement
contains nothing of a defamatory nature, but when combined with some special
facts and circumstances known to the readers of the publication appears
defamatory. In Tolley v Fry, the
claimant was the English amateur golf champion and he was featured, without
giving his consent, on a poster advertising the defendant’s chocolate bar. The
text of the poster compared the excellence of the chocolate bar with the
excellence of the claimant’s swing. The claimant alleged that this constituted
an innuendo, because it implied that he had agreed to feature in the poster for
personal gain and that he had flouted the rules relating to his amateur status.
It was held that the poster was capable of being defamatory and the jury indeed
found that he had been defamed.
Another example is Cassidy v Daily Mirror. Here, a picture
was published which showed Mr. Cassidy with a young lady under a heading which
stated that she and Mr. Cassidy had just announced their engagement to be
married. The claimant was Mr. Cassidy’s wife, and this was generally known to
be the case even though they led separate lives. She was unable to prove that
several people believed, as a result of the publication, that she was ‘living
in sin’ with Mr. Cassidy; a serious problem for her in the 1920s. It was held
that the words were capable of being defamatory and, once a jury considered the
issue, it was decided that the defendant was liable.
A false innuendo is one where a
reasonable person guided by general knowledge considers the statement to be defamatory
from the natural and ordinary meaning of the words. In Lewis v Daily Telegraph, a paragraph in the newspaper had stated
that the Fraud Squad were investigating the affairs of a company and its
chairman, Mr. Lewis. This was in fact true, but it was claimed that the
paragraph contained an innuendo: that the company was being operated in a
fraudulent and dishonest way. The HL stated that a reasonable person might
infer from the paragraph that the company and Lewis were suspected of fraud,
but would not assume that Lewis and the company were guilty of such conduct. As
there was no evidence of some special facts to support the claim as a true
innuendo, it was rejected by the HL.
The court will not allow a
claimant to point a particular sentence in isolation, but will examine the
statement in its whole context. Accordingly, in Charleston v NGN where two well known actors had their faces
superimposed in pornographic photographs in a newspaper, and the accompanying
text stated that they were innocent and unknowing participants, no action in
defamation lay. It was argued that a significant proportion of readers skimming
through the newspaper would only read the headlines and look at the
photographs, and would come to the wrong conclusions. The court refused to
approach the case in this way. ‘Defamatory’ was judged by the standard of the
ordinary reasonable person, who would have taken the trouble to discover what
the article was about. It was therefore irrelevant that the newspaper may have
some readers who only read the headlines.
In Charleston v NGN, the HL held that, an explanation can neutralize
defamatory statements only if it is obvious to the reader. So, the decision of Charleston would have been different had
the explanatory texts were given further down the article or on a continuation
page.
REFERENCE:
A claimant will only be able to
bring an action for defamation if he or she can show that the words in the
statement referred to him or her. Otherwise, the claimant would not have
standing to sue.
This is not a problem where the
claimant is individually named, for example, ‘David cannot be trusted’.
Difficulty arises when the defendant makes general statements – such as,
‘politicians cannot be trusted’; or does not name the claimant expressly – such
as, ‘the man with blue eyes cannot be trusted’. The claimant will have to prove
that an ordinary reasonable person with knowledge of all the circumstances
would recognise that the person referred to is the claimant.
As with the question of
defamatory meaning; the defendant need not have intended the statement to refer
to the claimant – (Hulton v Jones, Newstead v London Express). Accordingly,
where a defamatory statement is intended to refer to a fictitious character – (Hulton v Jones), or to someone other than
the claimant – (Newstead v London Express),
the defendant will be liable for defamation of the claimant, if a reasonable
person with knowledge of all the circumstances would think the statement
referred to the claimant.
Whether cases like these can now
withstand the passage of the Human Rights
Act 1998 is highly questionable, as there is arguably an infringement of
the Art-10 right to freedom of expression. In O’Shea v MGM Ltd. (2001) an advert for an adults-only internet site
contained a picture of a well known glamour model. It was alleged that the
picture was look a like of the claimant and was defamatory of her as it
suggested that she was promoting a pornographic website. However, Morland J
concluded that:
“The strict liability principle
should not cover the ‘look-alike’ situations. To allow it to do so would be an
unjustifiable interference with the vital right of freedom of expression
disproportionate to the legitimate aim of protecting the reputations of
‘look-alikes’ and contrary to Article 10”.
But, whether this first instance
decision can be confined to cases involving ‘look-alike’ photographs, or
whether it ought (logically) to be extended to cases where articles alone are
printed in newspapers with no accompanying photographs, will be for future
courts to decide. Perhaps, Morland J simply felt obliged to confine his
judgment to cases involving photographs because Hulton v Jones and Newstead v
London Express were decisions of the HL and CA respectively. At the very
least, it is clear that the courts are increasingly concerned, in general
terms, about infringement of Article 10 (e.g. Jameel v Dow Jones (2005), Steel
& Morris v UK (2005)).
It is not necessary that there
should be any ‘peg or pointer’ in the defamatory words, but only that
reasonable person with knowledge of all the circumstances might understand the
words as referring to the claimant – (Morgan
v Odhams: A newspaper article alleged that a girl had been kidnapped by a
dog-doping gang and kept at a house in Finchley. No one was mentioned by name
in the article except the girl. At the relevant time the girl had been
voluntarily staying with the claimant in Willesden. The claimant sued for libel
and called six witnesses who though the article referred to the claimant. The
HL held there need be no key or pointer in the words themselves, and that the
claimant can introduce extrinsic evidence to show that he was referred to. On
these facts there was sufficient material to leave to the jury).
Criticism of group of individuals
will not support an action for defamation, unless the group is so small that a
reasonable person would believe that every member of it is targeted, or there
are some particular reference in the statement which a reasonable person would
find singling the claimant out – (Knuppfer
v London Express: The article in question had criticized the young Russian
political party Mlado Russ, which had
a small British branch of 24 members of which Knuppfer was the head. He claimed
that his position as head was enough to single him out from the group. The HL
disagreed. There was not even a reference to the British branch in the article,
but concerned the party generally. A reasonable person would therefore not have
found Knuppfer to be singled out in the article). In Aspro v Owners Abroad Group, the CA accepted that the defamatory
statement about the conduct of the affairs of a small family company could be
understood as referring to each of the company directors.
PUBLICATION:
Publication is communication of
the libel or slander to a third party. This is obviously satisfied by the
printing of an article in a newspaper or book or shouting a remark in front of
other people, provided the words are intelligible to the third party.
Problem arises when the defendant
alleges that he did not intend to publish the statement, or it was meant to be
a private remark between the claimant and the defendant. As with other
elements, intention is irrelevant.
If it is reasonably foreseeable
that the statement might come to the knowledge of a third party, publication
will exist. In Theaker v Richardson,
the defendant was liable for sending a defamatory letter to a married woman,
which had been opened by her husband; on the ground that it was foreseeable
that the husband would open the letter. By contrast, in Huth v Huth, a letter was sent in an unsealed envelope by the
defendant to the claimant. The butler secretly read the letter without the
claimant’s permission. This was not treated as a publication, as the defendant
could not have foreseen the butler’s behavior, so he was not liable for
defamation.
Original defamer will remain
liable for the re-publication by the third party, where the original defamer
actually knew what he said was likely to be reported and repeated, or where a
reasonable person in his position would have known this – (McManus v Beckham).
DEFENCES:
Justification: It is a defence
for the defendant to prove that the words alleged to be defamatory were true.
Notice that the burden of proof here is on the defendant to prove that the
words are true, rather than on the claimant to show that they were untrue.
To achieve this, the defendant
may also raise matters with a ‘common sting’ in support of his or her claim of
justification – (Williams v Reason: a
Welsh amateur rugby player sued in respect of an article which accused him of
writing a book for profit, contrary to his amateur status. The defendants
claimed justification and were permitted to allege in support of the article
that the player had previously taken money for wearing a particular brand of
boots. The sting of the defamatory words was that Williams had compromised his
amateur status (so called ‘shamateurism’) and the evidence of the boot money
went to justify that charge).
The defence will not fail if the
statement is substantially true, inaccuracy on minor points of detail are
disregarded – (Alexander v North Eastern
Rly: Defendants published notice that claimants had been sentenced to a
fine of £1 with the alternative of three weeks’ imprisonment: in fact the
alternative was only two weeks’ imprisonment; Sec. 5 Defamation Act 1952).
Where an innuendo has been
pleaded the truth of that must also be proved, proving the truth of main
allegation is not sufficient – (Wakley v
Cooke: The defendant called the claimant a ‘libellous journalist’. He
proved that a judgment against the claimant for libel had once been obtained;
but because the defamatory statement complained of, implied that the journalist
habitually libelled people, the defendant ultimately failed to justify his
remark).
It is irrelevant that the
defendant’s intention was malicious. The only exception to this can be found in
Sec. 8(5) Rehabilitation of Offenders Act
1974; a spent conviction may be proved for the purpose of establishing the
defence of justification, fair comment or qualified privilege; unless the
publication is proved to have been made with malice.
In practice justification is
rarely pleaded, because if it fails damages may be higher than they would
otherwise have been, to mark the fact that the defamer has persisted in the
untruth.
Fair comment: For the defence of
fair comment to succeed, the defendant must prove the following –
- The
statement was on a matter of public interest, - The
statements was a comment based on a true set of facts, and - The
statement was honest and fair.
Public interest: Whether a matter
is one of public interest is a question to be decided by the judge, but the
courts have chosen to define it very widely.
Public interest does not
translate into any topic which the public is interested in, but matters in
which people generally are legitimately interested or concerned – (London Artists v Littler). The case
itself concerned a letter published by the defendant which alleged that the
claimant had plotted to bring a successful play to an end by enticing the four
principal performers to terminate their contracts. The defendant pleaded fair
comment as a defence on the ground that the closure of a successful play was a
matter of public interest. It was held, applying the test noted above, that
people were legitimately interested in what went on in the theater and that
people in the show business industry welcomed publicity and so the matter was
one of public interest.
Comment on public conduct of
people in public offices, but not their private conduct is within the defence.
Matters of government and public administration, including local government are
also within its scope. The management of institutions of substantial public
concern, such as the media itself or religious institutions is also a matter
for fair comment.
Anything submitted to the public
for its appraisal is of public interest. Books, articles in periodicals and
newspapers, plays, and radio broadcasts (themselves being film criticisms) are
examples. The work of an architect and the performance of actors in public
entertainments are also within the defence. Indeed, any circumstances that may
fairly be said to invite comment are within its scope.
Comment: What is a comment and
what is a statement of fact, is not always easy to determine. In Kemsley v Foot, the defendant published
an article which referred to one of the Beverbrook newspaper under the heading
‘Lower than Kemsley’. Kemsley was the owner of another group of newspapers.
This appeared to be a statement of fact. But the HL decided that, as the
conduct of the Kemsley press was the fact upon which the statement was made the
defence of fair comment was available.
This case establishes, it is not
necessary that the facts on which the comment is based should be stated in the
comment itself, as long as it is capable of being inferred from the comment. In
Kemsley, the heading sufficiently
indicated the facts upon which the comment was made. However, a more
restrictive approach is apparent in Telnikoff
v Matusevitch.
In Telnikoff v Matusevitch, claimant wrote an article in the Daily
Telegraph criticising the BBC Russian service for over-recruiting from Soviet
ethnic minorities. The defendant published a reply in the same paper accusing
the claimant of racism. The majority of the HL held that in considering whether
a statement in the defendant’s letter was fact or comment, the letter must be
considered without reference to the original article for context. Their
Lordships reasoned that many readers of the letter would not have read the
article or have limited recollection of its contents. It should therefore be
judged in isolation. The majority argued that, the facts upon which the alleged
comment was made had to be stated in the statement.
Thus, it establishes – words
contained in one publication have to be considered solely in the context of
that publication, they cannot be looked at in the context of other publications
upon which the defendant claims to make the statement. (For a structure as to
how these two cases should be used in an exam question, see: Subject Guide, Activity 12.6 (page 186) along with the Feedback 12.6 (page 198)).
At common law, the defendant was
required to establish the truth of each and every factual matter upon which the
publication purported to comment. But, by virtue of Sec. 6 Defamation Act 1952, the defendant needs no longer prove
that every factual allegation is true, so long as such allegations as are
proved to be true form a sufficient basis for his comment.
Honest and fair: It is for the
jury to decide on an objective basis, whether the opinion however exaggerated,
obstinate or prejudiced was honestly held by the person expressing it – (Reynolds v Times Newspaper, Branson v Bower (No.2)).
However, the defence will not be
available if the claimant can show that the defendant acted out of malice – (Thomas v Bradbury Agnew).
Qualified Privilege (at common
law): At common law, the traditional definition of where qualified privilege
will apply comes from Adam v Ward in
which Lord Atkinson explained that –
‘A privileged occasion is ………. An
occasion where the person who makes a communication has an interest or a duty,
legal, social or moral, to make it to the person to whom it is made, and the
person to whom it is so made has a corresponding interest or duty to receive
it. This reciprocity is essential’.
In view of the importance given
to freedom of expression it has been questioned whether the media should always
be able to claim qualified privilege for any story they publish, especially
when they concern political information. In Reynolds
v Times Newspaper, the HL firmly rejected any general head of qualified
privilege. They held that the traditional test of duty in disseminating the information
and interest to receive it should continue to apply.
The correlative ‘duty and interest’
aspect is generally missing in such cases – for the public at large can but
rarely claim a genuine interest in the disclosure of information. However,
occasionally an item of information will be of genuine public interest; and
where this is so and a media acts responsibly in publishing the item in the
form it does, it may claim a qualified privilege. A somewhat lengthy test for
establishing whether a media has acted in this fashion was set out by Lord
Nicholls in the HL in Reynolds v Times
Newspapers. He said:
Depending on the circumstances,
the matters to be taken into account include the following –
·
The
seriousness of the allegation;
·
The
nature of the information and the extent to which the subject matter is of the
public interest;
·
The
source of the information;
·
The
steps taken to verify the information;
·
The
status of the information;
·
The
urgency of the matter;
·
Whether
comment was sought from the claimant;
·
Whether
the article contained the gist of the claimant’s story;
·
The
tone of the article; and
·
The
circumstances of the publication, including timing.
(For an example as to how these
criteria should be used in an exam question, see: Subject Guide, Activity 12.7 (page 189) along with the Feedback 12.7 (page 198)).
The test is one of responsible
journalism, and it is for the media with reference to the 10 criteria listed
above, to demonstrate to the court that they deserve the defence of qualified
privilege.
The court said in Reynolds that this list was not
necessarily exclusive and other factors might also be taken into account; the
weight given to different factors would also vary from case to case. They also
stated that, in weighing up these factors, the courts should have regard to the
importance of freedom of expression, and should be slow to conclude that a
publication was not in the public interest, especially where information was
already in the field of public discussion. This potentially gives the media a
high degree of protection for important stories which are fairly handled.
In the Reynolds case itself, the HL agreed that the subject was one of
legitimate public concern. On the other hand, the allegation made was a serious
one yet the paper had not mentioned Mr. Reynold’s explanation for the events
concerned, even though this was available to them. As a result, they found that
the story was not covered by qualified privilege.
In Bonnick v Morris, the defendant paper published a story about a
state-owned Jamaican company, JCTC, entering into two contracts with another
company Prolacto. The claimant worked for JCTC but had left shortly after the
second contract was entered. The newspaper report stated that the contracts
were unusually advantageous to Prolacto, and that the claimant had left JCTC
just after the second contract had been arranged. The claimant argued this was
defamatory of him, in that a reasonable person would think he had acted
improperly in arranging the contracts and had had to leave as a result.
The PC considered that the
subject was a matter of public interest and the story was not one which was
obviously defamatory (it was defamatory by implication), so the newspaper might
not have thought at the time it published that the story could be defamatory.
The newspaper pointed out that they had approached the JCTC for which the
claimant worked but they had been unwilling to answer, and they had also
approached the claimant who had explained that there was nothing suspicious
about the contracts and there was no connection between them and his leaving
the company.
But in Loutchansky v Times Newspaper, the standard of responsible
journalism had not been met as: some of the sources were unsafe, while the
allegations were vague and the paper had not made enough effort to check them.
The paper had tried to contact Mr. Loutchansky, but the judge said that, they
should have tried harder, and although the story stated that Mr. Loutchansky
had repeatedly denied the allegations, this bare statement did not amount to
giving his side of the story.
Failure to comply with all of
these ten points will not be fatal, where the journalism appears responsible –
(Jameel v Wall Street Journal). The
HL held that these criteria were merely intended to be used as guidelines for
judging whether a story should be protected by the defence; they were not
specific tests that the media had to pass in order to claim the defence.
Responsible journalism is something which should be instinctively recognised,
according to Lord Hoffman is “as objective and no more vague than standards
such as ‘reasonable care’ which are regularly used in other brances of law”.
In Jameel, a wealthy Saudi Arabian businessman sued the Wall Street
Journal after it published a story stating that the Saudi Arabian government
had monitored the bank accounts of a number of prominent Saudi citizens, including
Mr. Jameel, at the request of US government, to ensure that they were not
providing money to terrorist groups, either knowingly or unknowingly. Mr.
Jameel claimed that the article was defamatory, because it implied there were
reasonable grounds to suspect he was involved in funding terrorism.
The paper could not satisfy all
ten of the Reynolds criteria, as they
were requested to delay the publication for 24hrs, so that the claimant who was
abroad could comment, but this was not accepted. Despite this, they afforded
the defence. The paper had taken adequate steps to verify the story, and it was
unlikely that the claimant would have made any comment that would have made a
difference to what was published. Furthermore, the existence of covert
surveillance by the highly secretive Saudi authorities would be impossible to
prove by evidence in an open court.
Notably, a journalist’s failure
to make further inquiries after an anonymous tip-off, or to include the
claimant’s side of the story, would surely constitute irresponsible journalism
where he expressly alleged the claimant to have done something wrong, but would
not necessarily do so where the defamatory imputation arose only by implication
– (Jameel v Wall Street Journal, Bonnick v Morris).
Book publishers and authors may
also rely on this species of qualified privilege of responsible journalism – (Chairman v Orion).
Where a statement is made with
malice, the defence of qualified privilege cannot apply – (Horrocks v Lowe).
Innocent dissemination: Every
repetition of defamatory words is a fresh publication and creates a fresh cause
of action against each successive publisher. Some of them may have no knowledge
of the defamation. To mitigate the hardship to such publishers a defence is
provided by Sec. 1 Defamation Act 1996.
It is now defence to show that –
·
The
defendant is not the author, editor or commercial publisher of the statement,
·
The
defendant took reasonable care in relation to the publication, and
·
The
defendant did not know, or had no reason to believe, that what he or she did,
caused or contributed to the publication of a defamatory statement.
The defence was tested in Godfrey v Demon Internet: the defendant
was an internet service provider, and the statement complained of was part of a
message posted to an internet newsgroup by an unknown person. The message made
an untrue allegation about the claimant, who asked the defendant to remove it;
they failed to do so and the claimant sued for libel. The defendant claimed
that they were covered by the defence of innocent dissemination, because they
were not the publisher of the statement, and they had no reason to believe that
they had contributed to the publication of a defamatory statement. The court
agreed that, for the purpose of the defence, they were not the author, editor
or publisher of the statement, but said that they could not meet the
requirement of taking reasonable care with regard to its publication, because
they failed to remove it once they knew it was there.
Unintentional defamation (Offer
of amends): This is not in strict terms a defence, but a form settlement
introduced by Sec. 2-4 of Defamation Act
1996, whereby the defendant publishes an apology and correction and pays an
agreed sum of compensation to the claimant. If a defendant chooses this
defence, he must make the offer before putting forward any other defences – (Sec. 2(5)).
The offer of amends defence is
available only to those defendants who did not know, or had no reason to
believe that the statement in question referred to the claimant and was untrue
and defamatory of him – (Sec. 4(3)).
The defence may only be invoked
where the offer to make amends is in writing and states that it is such an
offer under 1996 Act – (Sec. 2(3)).
In addition, the offer must satisfy three further prerequisites: it must
contain a correction to, and apology for, the original statement; it must state
a willingness to publish that correction and apology; it must make clear that
the publisher consents to pay to the aggrieved party such sum as may be agreed between
them, or as may be determined judicially – (Sec.
2(3),(4)).
If the offer is accepted, Sec. 3(2) prohibits the aggrieved party
from subsequently bringing or continuing defamation proceedings. On the other
hand, if the offer is not accepted, it will serve as significant mitigation by
virtue of Sec. 4(5) as seen in Nail v NGN Ltd.; unless the claimant can
show that the defendant knew or had reason to believe that the statement
referred to the claimant and was false and defamatory of him – (Sec. 4(3) as applied in Milne v Express Newspapers (No.1), Horrocks v Lowe).
Any defendant wishing to use this
defence is debarred from resorting to any other defence (such as justification)
– (Sec. 4(4)). This means he is
forced to choose between: (1) definitely paying moderate damages (either agreed
with the claimant, or judicially determined); and (2) risking paying damages in
full if another defence – such as justification – should be held not to be
available.
REMEDIES:
There are two main remedies for
defamation – damages & injunctive relief. Damages for defamation may simply
compensate for the claimant’s loss; or may be exemplary, designed to punish the
publisher. Exemplary damages will only be awarded where the claimant can prove
that the defendant knew that a tort was being committed (or was reckless on
this point) and even so went ahead on the basis that the profits to be made
from the publication would far exceed any damages which might be payable.
In the past there has been much
concern at the size of the awards of the damages in defamation cases. The level
of damages has been essentially an issue for the jury and in a string of
high-profile cases, juries awarded what appeared to be excessively high
damages. Sec. 8 of the Courts and Legal Services Act 1990 gives
the CA the right to overturn a jury decision on the amount of damages and
substitute ‘such sum as appears to the court to be proper’. The CA used this
power in John v MGN Ltd. But, Kiam v MGN Ltd. makes it clear that
‘court should not interfere with the jury’s award unless it regards it as
substantially exceeding the most that any jury could reasonably have thought
appropriate’.
In John v MGN Ltd. it was held
that damages might permissibly be controlled in two further ways. First, by the
court drawing the jury’s attention to the levels of award made in personal
injuries cases (while recognizing that no direct analogy can be drawn because
of the different nature of the injury involved) and secondly, by allowing the
court and counsel to mention to the jury what they consider to be an
appropriate award and its appropriate bracket.
Injunction: a claimant may also
seek an injunction, either where a defamatory statement has already been
published to prevent it being published again, or where the claimant knows that
the defendant plans to publish a defamatory statement to prevent this
happening. Where the claimant is seeking to prevent initial publication, they
will be asking for an interlocutory injunction, which means one that is granted
without the issue actually being tried by the court.
This would amount to a
restriction of freedom of speech without the benefit of full consideration by
the court. For this reason, the courts have always been reluctant to grant
interlocutory injuctions in defamatory cases; in Bonnard v Perryman it was stated that they should only do so in the
clearest cases, where it was obvious that any reasonable jury would say the
statement concerned was libellous.
This traditional principle has
been further strengthened by Sec. 12
of HRA 1998, which provides that,
interim injunctions in cases affecting freedom of expression should not be
granted unless the court is satisfied ,
if the case go to trial, the claimant is likely to be able to establish that publication
should not be allowed.
The result is that, interim
injunctions in libel cases are only likely to be granted where the claimant can
convince the court that the defendant is planning to publish defamatory stories
which are obviously untrue; and there is no arguable defence, or a defence put
forward is certain to fail.
WHO
CAN SUE:
Any human being can sue, but the
claim does not survive death – (Sec. 1(1)
Law reform (Miscellaneous Provisions) Act 1934). It is only a living person
who can bring an action in defamation. A dead person cannot be defamed, no
matter how distressing the defendant’s statement is to the deceased’s
relatives.
Companies which are deemed to
have business reputation can also sue for defamation. But a governmental body –
(Derbyshire CC v Times Newspapers Ltd.)
or political parties – (Goldsmith v
Boyruh) cannot. It is considered to be contrary to freedom of expression in
a parliamentary democracy to allow such bodies to bring actions which might
discourage criticisms of their actions. However, this does not prevent individual
councilors or MPs from suing.
NUISANCE & RYLANDS v FLETCHER
PRIVATE
NUISANCE:
Winfield and Jolowicz define private nuisance as an ‘unlawful interference with
a person’s use or enjoyment of land, or some right over, or in connection, with
it’.
Three type of private nuisance
can arise in practice:
Physical injury to land (for
example, by flooding or noxious fumes),
Substantial interference with the
enjoyment of the land (for example, smell, dust and noise),
Encroachment on a neighbour’s
land (for example by spreading roots or overhanging brances, which is of minor
significance).
WHO
CAN SUE:
Only those with interest in land (this will
include landowners and tenants, but exclude licensees) or exclusive possession
of the land will be able to sue – (Malone
v Lasky, Hunter v Canary Wharf).
In Khorasandijan v Bush, a daughter
was permitted to sue in private nuisance to obtain an injunction to stop
persistent telephone calls to her parent’s home where she lived. But after Hunter, it is not enough to live with
one’s parents. Accordingly the HL in Hunter held that Khorasandijan was wrong. However it should be noted that the HL was
influenced by the introduction of the protection afforded by Harassment Act 1997, which imposes
criminal & civil liability for harassing behaviours.
Notwithstanding, the fact that Hunter is decision of the HL, it is now
highly questionable in the light of the HRA
1998 whether this rule will survive for very long. The English courts are
now required to develop the common law in a manner that is consistent with the
rights embodied in the ECHR, and Article
8(1) of that Convention affords all citizens an equal respect for their
private lives. Since this right is not contingent upon a proprietary interest
in the land affected by the disturbance complained of it is arguable that the
common law’s insistence on such an interest is now inconsistent with the right
to respect for privacy afforded by Article
8.
This was accepted in McKenna v British Alumunium, though this
is a weak authority being a striking-out case. Notably, a restrictive approach
is taken by the HL in Marcic v Thames
Water which employed the approach taken by the ECtHR in Hatton v UK. Thus, the potential effect
of the HRA 1998 remains to be seen.
BRINGING
THE ACTION:
Where a person’s use of land
causes unreasonable interference with
another person’s use or enjoyment of his land, or some right over or in
connection, with it; then it is likely to regarded by the court as unlawful,
and therefore a private nuisance. Accordingly in Southwark LBC v Mills, Baxter
v Camden LBC it was held that, the activity complained of must result in
interference which is more than the inevitable result of ordinary life.
In deciding whether interference
is unreasonable, the court will take into account all the circumstances and in
particular the following factors:
Damage to property or personal
discomfort: The courts are more willing to find a nuisance where physical
damage to property has been caused. Personal discomfort will normally have to
be substantial to merit a response – (Walter
v Selfe, St. Helen’s Smelting Co. v
Tipping). Whether the interference is substantial is to be determined on a
case-by-case basis. Loss of a single night’s sleep has been held sufficient in Andrea v Selfridge; so is using
adjoining premises for the purpose of prostitution in Thompson-Schwab v Costaki.
The nature of the locality:
Nuisance will be judged according to the area in which it occurs. For example,
emission of smoke from a factory will not be considered a nuisance in an
industrial estate, but would be likely to be found to be nuisance in a largely
residential area. Thesiger LJ stated classically in Sturges v Bridgeman: ‘What would be a nuisance in Belgrave Square
would not necessarily be so in Bermondsey’. Note, where actual physical damage
is caused as a result of the activity, the issue of the locality is not
relevant – (St. Helen’s Smelting Co. v
Tipping).
Planning permission will not by
itself provide immunity from a nuisance action – (Wheeler v JJ Saunders) unless it changes the character of the
locality – (Gillingham BC v Medway Dock
Co). In Gillingham, planning
permission was granted to convert a naval dockyard into a commercial port with
the result that there was a substantial increase in heavy traffic, especially
at night. It was held that no nuisance was committed on the basis that the
character of the locality had changed. On the other hand, in Wheeler, planning permission granted to
a farmer to build two pig housing units on land next to that owned by the
claimant was not held to have changed the nature of the entire locality. Thus,
whether a planning permission changes the character of a neighbourhood seems to
be a question of fact.
Duration and frequency: The
longer and more frequent the interference continues, the more likely it will be
found to be a nuisance – (De Keyser’s
royal Hotel v Spicer Bros Ltd).
This does not mean transitory or
isolated incident cannot be nuisance. A one-off or isolated event that arose
from a dangerous state of affairs on the defendant’s land is actionable – (S.C.M. (UK) Ltd. v W.J. Whittal); but in
such cases claimant is more likely to sue under the rule in Rylands v Fletcher.
Similarly, the fact that interference
is transitory does not mean that it cannot amount to a nuisance. The question
frequently arises in connection with building works. The courts have laid down
a principle that – provided these are carried with reasonable skill and care
and interference is minimised, then no nuisance is committed – (Andrea v Selfridge).
Utility of the defendant’s
conduct: Defendant’s conduct can amount to nuisance even if it is for the
public benefit – (Bellew v Cement Co Ltd, Adams v Ursell). Because, private
nuisance is concerned with the result of the defendant’s conduct on the claimant
and not on the community as a whole.
However, this may influence the
court in exercising its equitable jurisdiction whether to grant an injunction –
(Miller v Jackson). Most claimants in
nuisance want an injunction, which orders the defendant to stop the activity
which is causing the nuisance. In cases of public benefit, the courts may
refuse an injunction and order damages instead; or grant only a partial
injunction, so that the activity does not have to stop, but the interference
with the claimant’s rights is reduced, as in Kennaway v Thompson.
Abnormal sensitivity: A claim
will not succeed where the claimant’s abnormal sensitivity to interference
exacerbates the effect of defendant’s activity, which would not have affected a
person with normal sensitivity – (Robinson
v Kilvert, Heath v Mayor of Brighton).
On the other hand, as soon as the claimant has proved that a claimant of
ordinary sensitivity would have been able to found a nuisance action in respect
of the interference complained of, he will be compensated in full for all the damages he suffered – (McKinnon v Walker).
Malice: Where a defendant acts
with malice that may make what would have been reasonable conduct, unreasonable
– (Christie v Davey, Hollywood Silver Fox v Emmett).
In Christie, the claimant was a music teacher, and held musical
parties in his house. The defendant, his next-door neighbour, deliberately
tried to disturb both lessons and parties by blowing whistles, banging trays,
shrieking and hammering on the wall. The court held that this malicious motive
made the defendant’s conduct unreasonable and a nuisance. Had he no been trying
to disturb the lessons, he might have had the right to make a noise, just as
the claimant did with his lessons and parties.
WHO
CAN BE SUED?
Depending on the circumstances of
the case, a claimant affected by nuisance could traditionally sue the owner of
the land on which the nuisance originates, the occupier of that land or the
person who created the nuisance.
The creator: Anyone who creates a
nuisance by some act (rather than an omission) can be sued for nuisance,
regardless of whether that person owns or occupies the land from which the
nuisance originates.
The occupier: As we noted above,
the occupier of premises will be liable in respect of nuisance that he has
himself created. But, he may also be liable in other circumstances too.
Nuisance created by independent
contractor: An occupier is vicariously liable for nuisance created by his
employees in the course of employment. But as regards, nuisance created by
independent contractor, an occupier can only be liable where the act done is
one which in its very nature involves a special danger of nuisance being
complained of – (Matania v NPB).
Thus, liability will only arise where the activities of the contractor is
extra-hazardous.
Nuisance created by trespasser or
act of nature: An occupier is liable for nuisance caused by a trespasser or act
of nature where he has adopted or continued the state of affairs – (Sedleigh-Denfield v O’Callaghan (case
involving trespasser), Goldman v Hargrave
(an Australian case tried at PC involving act of nature, an English case being Leakey v National trust)).
An occupier of land ‘continues’ a
nuisance if with actual or presumed knowledge of the state of affairs, he fails
to take reasonable steps to bring it to an end. The reasonableness of the
defendant’s conduct will be judged subjectively – (Goldman v Hargrave). If therefore the defendant is poor, and
abatement will require vast expense, the defendant will not be considered negligent.
Equally less will be expected of the infirm than of the able-bodied. An
occupier of land ‘adopts’ a nuisance where he uses the state of affairs for his
own purpose.
The landlord: A landlord will be
liable where he has expressly or impliedly authorized the nuisance. Where the
nuisance is a necessary consequence of the letting, the landlord is taken to
impliedly authorizing the nuisance – (Tetley
v Chitty). But in Smith v Scott,
a local authority was not found to have authorized the nuisance caused by a
family they housed even when they were known to be a ‘problem family’ as it had
inserted in their tenancy agreement a clause expressly prohibiting the
commission of such acts.
In Hussain v Lancaster CC, a local authority was not found liable for
the racial harassment campaign of its tenants, for two reasons:
The local authority’s standard
form tenancy agreement had included a clause instructing the tenant ‘not to
discriminate against or harass any residents or visitors’. So, the council
could not be said to have authorized these acts; as seen in Smith v Scott and Mowan v Wandsworth LBC.
The tenant’s action did not
involve a use of their land, which was said to be required to render the
nuisance actionable.
In Lippiatt v South Gloucestershire CC, the local council was held
liable for the acts of its licensees, such as causing havoc by trespassing,
dumping rubbish and other acts of vandalism on neighbouring land. Hussain was distinguished on two
grounds:
The council was more likely to be
liable for the acts of trespassers and licensees than tenants (as in Hussain). While tenants have statutory
protection, it is easier to evict trespassers and licensees from land. By
failing to do so within a reasonable period of time, the council found itself
liable.
Here the travelers had used the
land to commit the nuisance by using it as a ‘launching pad’ to commit acts of
nuisance on neighbouring properties.
It is not clear, whether the acts
complained of must occur on the defendant’s land for a liability to arise. It
should be noted that, two relevant cases were not cited in Hussain; AG v Corke &
Thomposon-Schwab v Costaki, each of
which support the argument that it is not necessary that the acts complained of
occur on the defendant’s land. Recent rejection to this approach is apparent in
L. E. Jones v Portsmouth CC (2003). J. O. Sullivan in ‘Nuisnace, Local Authorities and Neighbours from hell’ (2000)
described – “nuisance is universally defined simply as unlawful interference
with the plantiff’s enjoyment of his property, whether or not it derives from
defendant’s use of his property”.
It is not clear, whether
claimants in cases such as Hussain
should be able to invoke Article 8 of
the ECHR against local authorities to force them to stop their tenants creating
a nuisance. Deborah Rook concedes
that, provided the local authority adopts a decision-making process which
satisfies proportionality and does not impose a disproportionate burden on the
persons concerned, it may escape liability. Hussain
is however on appeal to the ECtHR.
DEFENCES:
Statutory authority: There will
be no liability in the absence of negligence where a statute orders something
to be done and doing that thing inevitably creates a nuisance.
The activity complained of may be
expressly or impliedly authorized. In the absence of express authorization, the
courts will interpreted the Act to ascertain whether the authorization is
implied – (Allen v Gulf Oil Refining Ltd).
In Allen, residents in the area
where the defendants were operating an oil refinery brought an action claiming
that the refinery was causing a nuisance. The company pleaded in their defence
that, the nuisance was an inevitable result of operating the refinery, which
they had power under statute to do. The relevant Act only gave express permission
to the company to compulsorily purchase land and to build the refinery, but did
not expressly give them power to operate it. However, the courts said that it
must have been Parliament’s intention that they should also operate the
refinery, so such a power could be inferred. As Lord Diplock pointed out:
“Parliament can hardly be
supposed to have intended the refinery to be nothing more than visual adornment
to the landscape in an area of natural beauty. Clearly the intention of
Parliament was that the refinery was to be operated as such ……”.
Since the alleged nuisance was an
inevitable consequence of the operation of the refinery arising from its
ordinary working, the defence of statutory authority succeeded and an
injunction against the operation of the refinery was refused.
But, the defendant must use all
due diligence in performing the activity authorised by statute, if he fails to
do so statutory authority will offer him no defence – (Tate v Greater London Council). Moreover, some statute may contain
a ‘nuisance clause’ which specifically states that, nothing in the Act shall
exonerate the undertaker from liability for the nuisance. In such a case,
defendant remains liable, as seen in Department
of Transport v N.W. Water Authority.
Prescription: Defendant will not
be liable where the nuisance has interfered with the claimant’s interest in
land for more than 20 years. Two points should be noted: it does not apply to
public nuisance; and time will only start from the moment the claimant is aware
of the nuisance – (Sturges v Bridgeman).
Act of a stranger: Defendant will
not be liable for the nuisance caused by a third party unless he adapted or
continued it – (Sedleigh-Denfield v
O’Callaghan).
INEFFECTIVE
DEFENCES:
Coming to the nuisance: This is
no defence to show that the claimant was aware of the nuisance being there
before he arrived at the premises – (Bliss
v Hall, Miller v Jackson).
Utility: Defendant’s conduct can amount
to nuisance even if it is for the public benefit – (Bellew v Cement Co. Ltd,
Adams v Ursell). However, this may influence the court exercising its
equitable jurisdiction whether to grant an injunction – (Miller v Jackson).
Due
to many: Where
the nuisance is caused by a number of persons it is not a defence for the
defendant to show that his contribution alone would not have amounted to
nuisance – (Lambton v Mellish).
REMEDIES: There are three main remedies
for nuisance: injunction, abatement and damages. In most cases, claimant will
want to stop the nuisance. Thus, his remedy lies in an injunction. Where the
nuisance is no longer continuing or where the claimant’s land has been damaged
by the nuisance he or she would no doubt be seeking damages.
Injunction: This is a discretionary remedy
and the claimant has no right to an injunction. Thus, the court may decide to
give damages ‘in lieu’ of an injunction – (Sec.
50 Supreme Court Act 1981). The principles governing the exercise of the
court’s discretion in the exercise of this power were set out by Smith LJ in
the leading case of Shelfer v City of
London. There it was stated that the court has jurisdiction to grant
damages ‘in lieu’ where (1) the injury to the claimant is small, (2) it is
quantifiable in money, (3) it is capable of being adequately compensated in
money, and (4) it would be oppressive to the defendant to grant an injunction.
Abatement: This is a remedy of limited
utility and realistically only worth considering in relation to minor problems
such as encroaching roots and branches. This remedy involves self-help, and
allows the claimant to take steps to end the nuisance, for example by trimming
back overhanging foliage. Where the claimant needs to enter the defendant’s
land for this purpose, notice must be given; if it is not, the abettor will
become a trespasser.
Damages: Damages will be awarded for the
diminution in the value of the land or the lesser enjoyment of the use of land
or its fixtures – (Hunter v Canary Wharf).
In Bone v Seale, damages were awarded
for personal injury. But the HL in Hunter held, claimant may obtain damages for
interferences with his or her interest in land, be it physical or non-physical,
but not for personal injury; as nuisance is a tort against land and not against
the person.
The rule of remoteness is the
same as used in negligence. That means, damages which can reasonably be
foreseen is recoverable only.
PUBLIC
NUISANCE: ‘Any
nuisance is public which materially affects the reasonable comfort and
convenience of life of a class of Her Majesty’s subjects’ – (Romer LJ in AG v P.Y.A. Quarries). Examples include:
picketing on a road (Thomas v NUM),
blocking a canal (Rose v Miles),
obstructing a highway by queuing on it – (Lyons
v Gulliver), causing noise and disrupting traffic through a badly organized
pop festival – (AG of Ontario v Orange
Productions), and making obscene telephone calls to large number of women –
(R v Johnson).
A claimant must prove two things
to succeed in an action of public nuisance –
- The
nuisance affected a ‘class of Her Majesty’s subject’, and - He
suffered special damage.
The issue of whether the number
of people affected by a nuisance amounts to a class is a question of fact to be
determined in each case – (AG v P.Y.A.
Quarries). Special damage consists of damage in excess of that suffered by
the public at large, as long as it is direct and substantial. It has been held
to cover personal injury (Castle v St.
Augustine’s Links), property damage – (Halsey
v Esso Petroleum), loss of custom or business – (Benjamin v Storr). So, too, have causing inconvenience and delay,
provided that the harm thereby caused to the claimant is substantial and
appreciably greater in degree than any suffered by the general public – (Walsh v Ervin).
If the individual cannot prove
special damage, the only other basis on which an action may be brought in tort
is in the name of the Attorney General by means of a relator action – (AG v P.Y.A. Quarries) or by a local
authority under Sec. 222 of the Local Government Act 1972; as seen in Wandsworth LBC v Railtrack Plc. Sec.
222(1) of the Act enables a local authority to institute civil legal
proceedings in its own name where it considers it expedient to do so for the
promotion or protection of the interests of the inhabitants of its area.
RYLANDS
v FLETCHER:
A person who for his own purposes
brings on his lands and collects and keeps there anything likely to do mischief
if it escapes, must keep it in at his peril, and if he does not do so, is prima
facie answerable for all the damage which is the natural consequence of its
escape – (Blackburn LJ at CA in Rylands v
Fletcher). The HL approved this decision subject to the addition of the
requirement that the defendant’s user of his land should be non-natural.
Cambridge
Water v Eastern Counties
makes it clear that, in order to succeed in a claim under Rylands v Fletcher
the claimant must prove the following:
·
The
defendant brought something likely to do mischief on his land,
·
In
the course of some non-natural use of the land,
·
Which
escaped, and
·
Caused
foreseeable harm.
The rule in Rylands v Fletcher applies only in respect of things which are
brought on to the land by the defendant, not to things which are naturally on
the land.
The defendant must bring
‘something likely to do mischief’ on his land. In Transco v Stockport this has been interpreted to mean – defendant
must bring some dangerous thing onto his land which poses an exceptionally high
risk to neighbouring property should it escape.
Defendant must have brought the
thing in the course of some non-natural use of his land. Lord Moulton in Rickards v Lothian defined non-natural
use as “some special use bringing with it increased danger to others, it must
not merely be the ordinary use of the land or such a use as is proper for the
general benefit of the community”. In Cambridge
Water v Eastern Counties it was stated that, the storage of chemicals on
industrial premises was a ‘classic case of non-natural use’. Just because the
activity benefited the community in that it created employment did not render
such use of the land natural.
The latest HL’s view on this
issue was delivered in Transco v
Stockport where Lord Bingham said that the rule should only apply where the
defendant’s use of land was ‘extra-ordinary and unusual’. Lord Bingham also
stated that the question of whether the defendant’s use of land was of benefit
to the community was not relevant, which suggests that the approach used in Rickards is definitely no longer in
favour.
There must be an escape from a
place where the defendant has occupation of, or control over land, to a place
which is outside his occupation or control – (Read v Lyons). It is necessary that the escape takes place from
land of which defendant is in occupation or control – (Smith v Scott). In Read v
Lyons, the claimant was employed in the defendant’s munitions factory and
was injured when a shell exploded in the factory. It was held that the Rylands principle was not acceptable, as
there had been no escape of the thing causing injury from the defendant’s land.
This rule creates an unfortunate distinction between those outside the premises
and those inside.
Only foreseeable harm would be
recoverable – (Cambridge Water v Eastern
Countries). This means the defendant must have foreseen or ought reasonably
to have foreseen that those things might cause damage, if they escaped.
WHO
CAN SUE:
Previously, there were cases like
– Shiffman v Order of the Hospital of St.
John of Jerusalem, and Perry v
Kendrick Transport – which permitted non-occupiers of land to sue for
damages. But now, although Transco v
Stockport does not specifically refers to this question, the statement that
Rylands is to be seen as an aspect of
nuisance law seems to confirm that an interest in land is required here, as it
is nuisance itself.
DEFENCES:
Contributory negligence and
default of the claimant: No liability will arise if the escape is completely
the fault of the claimant – (Ponting v
Noakes). Where the claimant contributes to causing the escape, damages will
be reduced by virtue of Sec. 1 Law Reform
(Contributory Negligence) Act 1945.
Unforeseeable act of third party:
Defendant will not be liable where the damage is done by a third party over
whom the defendant has no control – (Ribee
v Norrie); but the third party’s action must be unforeseeable – (Northwestern Utilities v London Guarantee).
Act of God: Defendant will not be
liable where the escape is due solely to natural causes in circumstances where
no human foresight or prudence could reasonably recognise the possibility of
such an occurrence and provide against it – (Greenock v Caledonian Rly).
The issue is not whether the event
could reasonably have been anticipated (as thought in Nichols v Marsland), but whether or not human foresight and
prudence could reasonably recognise the possibility of such an event and
guarded against it. Given that, exceptionally heavy rainfall (or any such
occurrence) takes place in England few times over a year, it is hard to say
that the possibility of such rainfall cannot be reasonably recognised. Thus,
this defence will rarely be successful.
Statutory authority: There will
be no liability in the absence of negligence where a statute imposes a duty (as
opposed to mere permission as seen in Charing
Cross v Hydraulic Co) on the defendant to accumulate the things which has
escaped – (Green v Chelsea Waterworks).
Whether the statute imposes a duty or merely gives permission is a question of
statutory interpretation.
If the reason for the escape is
the defendant’s negligence the presence of statutory duty to accumulate the
things will not afford him a defence.
Consent: If the claimant has
permitted the defendant to accumulate the thing escape of which is complained
of, then he cannot sue if it escapes. For the purpose of this defence, consent
can be express or implied. Consent will be implied where the presence of the
thing offers some benefit to the claimant, provided the escape occurs without
negligence on the defendant’s part – (Kiddle
v City Business).
DAMAGES
FOR PERSONAL INJURY:
Although damages have been awarded for
personal injury in the past (e.g. Hale v
Jennings, Shiffman v Order of the
Hospital of St. John of Jerusalem, and Perry
v Kendricks Transports), Lord Bingham in Transco v Stockport affirmed that ‘the claim cannot include a claim
for death or personal injury, since such a claim does not relate to any right
in or enjoyment of land’. The same rule applies for all forms of private
nuisance.
OCCUPIERS
LIABILITY
For well over a century, the law
has recognised that people who occupy land (including buildings on land) have a
duty towards the safety of others who come onto the land. This duty developed
through the common law, but in 1957 it began to be regulated by statute with
the introduction of the Occupiers’
Liability Act 1957 (OLA 1957), which laid down rules about the duty of
occupiers towards his ‘lawful visitors’. This was followed by the Occupiers’ Liability Act 1984 (OLA
1984), which set out the duty owed by occupiers towards those who are not
‘lawful visitors’, often termed as trespassers. The modern duty of occupiers of
land is now contained in these two pieces of legislation.
The Acts are concerned only with
liability to people physically in the premises. The occupier may also be liable
to people outside the premises but in other torts.
OCCUPIERS’
LIABILITY ACT 1957:
SCOPE Whether the Act applies
only to injuries resulting from the dangerous state of premises (‘occupancy duty’), or does it also apply to
injuries resulting from activity carried out on the premises (‘activity duty’)
– is not clear.
Sec.
1(1) OLA 1957 states that the Act shall apply
‘in respect of dangers due to the state of the premises or to thing done or
omitted to be done on them’. This could be interpreted as meaning that the Act
applies to the activity duty as well. However, Sec. 1(2) OLA 1957 provides that the Act shall ‘regulate the nature
of the duty imposed by law in consequence of a person’s occupation or control
of the premise. This appears to include only occupancy duty.
The modern tendency seems to be
to apply the Act only to occupancy duty, as seen in Ferguson v Welsh. The distinction is unlikely to make much difference
as the standard of care owed at common law and the standard of care owed under
the 1957 Act is almost the same (in any case, injury resulting from activities
on the premises is nevertheless covered by the ordinary rules of negligence).
WHAT
CAN BE OCCUPIED?
Most cases involve the occupation
of premises such as houses, offices, schools and so forth. But the Act also
applies to any fixed or movable structure including any vessel, vehicle or
aircraft; by virtue of Sec. 1(3)(a) OLA
1957. Interestingly, in Wheeler v
Copas the claimant who was constructing a house on the defendant’s land,
borrowed a ladder from the defendant, without asking whether the ladder was
suitable for his purpose. The ladder was not suitable for his purpose and he
fell, and was injured. It was held that the defendant was not liable to the
claimant under Sec. 1(3)(a) because,
although the Act might in appropriate circumstances apply to a ladder, it could
not be said that in this case the defendant was still the occupier of the
ladder once he handed it to the claimant. The defendant was, however, liable to
the claimant in negligence.
WHO
IS AN OCCUPIER?
The Act does not provide any
definition of an occupier; instead it states in Sec. 1(2) that an occupier is a person who would be treated as such
under common law. Thus, an occupier is a person who has sufficient degree of
control over the premises, that he ought to realise that any failure on his
part to use care may result in injury to a person coming lawfully there – (Wheat v E. Lacon).
Proprietary interest in land is
not necessary in order to be an occupier; and neither is physical possession –
(Harris v Birkenhead Corp). The key
factor is whether a person exercised a sufficient degree of control.
It follows from Wheat that, there can be more than one
occupier at the same time. For example, the owner of premises and building
contractors carrying out extensive works may both be occupiers in respect of
aspects of the safety of premises.
WHO
IS A LAWFUL VISITOR?
The duty owed by an occupier under the 1957
Act is owed to those who are his ‘lawful visitors’.
A person invited by the occupier
onto the premises is a ‘lawful visitor’.
A person may have an implied
permission to be on the premises. Normally people may be entitled to walk up
the front path to ring the door bell and make enquiries of the occupier.
Before 1984, the courts were very
willing to use fictional devices in order to afford implied permission to some
claimants (e.g. children), so that they would have some statutory protection.
Thus, if there were alluring things on the land for children to play on, the
courts treated these as in a sense inviting the children on to the land (as
seen in Jolley v Sutton LBC). Again
if an occupier knew that people were in the habit of walking across his land,
perhaps as a short-cut, and did nothing effective to deter them he was treated
as having given them a licence to use the land (as seen in Lowery v Walker). Since 1984, trespassers have had enhanced rights
under the OLA 1984, and the courts
may therefore be much less willing to use such fictions.
An invitation to enter the
premises may be issued by someone other than the occupier, such as the son or
daughter or an employee of the occupier. There is no problem if they have the
occupier’s permission to issue the invitation. But, where the occupier has
forbidden them to do so, a sensible solution would be to ask whether the
visitor would expect the person issuing the invitation normally to have
authority to do so – (Ferguson v Welsh,
Stone v Taffe).
A person who enters under a right
conferred by law is treated as lawful visitor, whether or not they have the
occupier’s express permission to enter – (Sec.
2(6) OLA 1957). Policeman, firemen, and employees of public utility
companies come into such a category; provided they do not exceed their power of
entry. But, a person who is exercising a private right of way (Holdon v White) or a public right of way
– (McGeown v NI Housing) are not
treated as such.
It should be borne in mind that,
the occupier may limit the permission he gives to a visitor to enter the
premises regarding space – (The Calgrath),
or the purpose of the visitor’s visit – (R
v Smith and Jones), or the time of the visit – (Stone v Taffe). But the occupier must make clear the limits of the
permission. Permission may normally be revoked, but the visitor must be given a
reasonable time to leave.
Where there is more than one
occupier, it is possible for a person to be a ‘lawful visitor’ in relation to
one occupier, and a trespasser to another – (Ferguson v Welsh).
NATURE
OF THE DUTY:
Sec.
2(2) OLA 1957
provides that ‘occupiers have a duty towards visitors to take such care as in
all the circumstances of the case is reasonable to see that the visitor will be
reasonably safe in using the premises, for the purposes for which he is invited
or permitted to be there’. This is known as the common duty of care. Notably, it is the visitor and not the premises that
have to be reasonably safe, e.g. by giving a sufficient warning of the
existence of the danger.
A person entering premises under
a contractual right is also owed common duty of care even where there is no
express contractual duty of care, unless the contract expressly provides for a
higher standard of care – (Sec. 5(1) OLA
1957).
Sec.
2(2) duty is a
flexible duty depending on the circumstances including the purposes for which
the visitor is on the premises. Examples of relevant circumstances are given in
the following two sub-sections, Sec.
2(3)&(4) OLA 1957; but these are indeed only examples. Thus, although
the Act mentions the special position of children, other visitors such as the
elderly or disabled (not specially mentioned in the Act) might also raise
similar problem for the occupier.
The four examples given by the
Act are:
Children: Sec. 2(3)(a) OLA 1957 states
‘an occupier must be prepared for children to be less careful than adults. If
the occupier allows a child to enter the premises then the premises must be
reasonably safe for a child of that age’. This demonstrates again that, it is
the visitor that must be kept safe. The reasoning is perfectly logical, what
may pose no threat to an adult may nevertheless be very dangerous to a child.
In Glasgow Corp v Taylor, a child aged seven died after eating
poisonous berries which he had picked off a bush in a public park. The berries
resembled blackberries and were very tempting to the child. The bush was not
fenced off in any way, nor was there any warning of the dangerous nature of the
berries. It was held that the defendants were liable.
However, an occupier will not be
liable for dangers that are obvious, even to children – (Liddle v Yorkshire (North Riding) CC). Furthermore, an occupier is
entitled to assume that very young children will be accompanied by his parents
or other adult to look after them, and that may reduce the degree of care
expected from the occupier – (Phipps v
Rochester).
In Phipps v Rochester, the claimant was a boy aged five, who was
picking blackberries with his seven year old sister. They crossed some open
land where the defendants were building houses. The land was commonly used by
local children as a play area, and although the defendant knew this, they made
no attempt to keep the children out.
In the centre of the land, the
defendants had dug a long deep trench, and the claimant fell into this,
breaking his leg. An adult would have seen the danger immediately. The
defendants were held not liable, because they could presume that no sensible
parent would allow such young children to enter the area in question alone,
without at least checking first for dangers themselves. Although the
defendant’s failure to try to keep children out meant that the claimant had
implied permission to be on the land, giving rise to a duty of care, the
defendants were not in breach of that duty.
Courts do often face an argument
that the injury to the children was not foreseeable, as to often children show
considerable ingenuity in finding ways to put themselves in danger, so no
liability should arise. There will be no liability on the occupier if the
damage or injury suffered is not foreseeable. But, as with negligence, it is
the type of damage that must be
foreseen, rather than the way in
which it occurs – (Jolley v Sutton LBC).
Person entering to exercise a
calling: Sec. 2(3)(b) OLA 1957 states
‘an occupier may expect that a person, in the exercise of his calling, will
appreciate and guard against any special risks ordinarily incident to it, so
far as the occupier leaves him free to do so’. This means, where a risk
normally arises in the course of a person’s work, the occupier need not take
special precautions to protect that person against such a risk, so long as they
allow the person to take their own precautions.
In Roles v Nathan two chimney sweeps were killed by carbon monoxide
gas while working on a chimney of a coke-fired boiler, which was alight at that
time. The occupier were not held liable, because they could expect sweeps to be
aware of this particular danger and these sweeps had in fact also been warned
of the danger. As Lord Denning pointed out, the result would have been
different if the sweeps had been killed because the stairs leading to the
basement had given way; only a risk relevant to the trade in question can allow
the occupier to escape liability.
This does not mean that the
occupier owes no duty to the skilled professional. It depends on whether the
normal safeguards associated with the trade would have been sufficient to avert
the loss or injury – (Salmon v Seafarer
Restaurants, Ogwo v Taylor).
In Ogwo v Taylor, the defendant negligently set fire to his house. The
claimant was a firefighter who was called to the house to put out the fire and
he was injured while doing so. The blaze was such that no amount of care by the
claimant could have protected him, so the defendant could not rely on Sec. 2(3) to avoid liability.
Warning: Under Sec. 2(4)(a) OLA 1957 a warning will not
absolve the occupier of liability unless ‘ …… in all the circumstances it was
enough to enable the visitor to be reasonably safe’. What amounts to sufficient
warning then will be a question of fact in each case.
An example was given by Lord
Denning in Roles v Nathan. Where a
house has a river in front of it and a bridge across the river with a sign
saying the bridge is dangerous, this is not an adequate warning, as any visitor
has no choice as to whether to use the bridge. If there were two bridges and
one of them said: ‘Danger, use other bridge’, then a person injured using the
dangerous bridge would have no claim.
The warning must indicate its
nature in sufficient detail for enabling the visitor to take reasonable care
for their own safety. A simple notice saying ‘Danger’ will not discharge the
duty. In Tomlinson v Congleton DC,
the placing of signs on a beach stating ‘Dangerous water, no swimming’ which
had been seen and ignored by the claimant was held sufficient.
Where an unusual danger exists,
the visitor should not only be warned, but a barrier or additional should also
be placed to show the immediacy of the danger – (Roe v Mars UK, Moon v Garrett).
In Roe v Mars UK, here a warning
notice was used in respect of a deep pit inside the entrance of a dark shed
with no artificial lighting. The occupier was held liable because the pit was
immediately inside the entrance and so the warning was insufficient to
safeguard the visitor from the danger.
Independent contractor: An
occupier is not liable for damage caused to a visitor by a danger due to the
faulty execution of any work of construction, maintenance or repair by an
independent contractor employed by the occupier, provided –
It was reasonable for the
occupier to entrust the work to an independent contractor,
He took reasonable steps to
ensure that the contractor, to whom he entrusted the work, is competent to
carry out the work, and
He took reasonable steps to
check, where possible, that the work had been properly done.
– (Sec
2(4)(b) OLA 1957).
If the sub-section bars the
claimant from suing the occupier, they may still be able to proceed against the
contractor, either as an occupier or under the common law negligence rules.
This sub-section has been
liberally interpreted as regards the phrase ‘work of construction, maintenance
or repair’. In AMF International v Magnet
Bowling work incidental to construction was held to be covered by the
phrase. Further in Ferguson v Welsh
it was held that, construction included demolition.
Requirement (a): This means it
must be reasonable for the occupier to hire an independent contractor in the
first place. It is not obvious what this entails, for it is difficult to envisage
a situation in which the court would expect the occupier to have performed
those works himself in preference to an independent contractor. Nevertheless it
sis submitted that, it is reasonable for an occupier to engage a contractor
wherever the work to be done requires special skill (as in Haseldine v Daw) or equipment not possessed by the occupier (as in Maguire v Sefton MBC); or it is
commercial practice to engage an independent contractor in the circumstances,
e.g. office cleaning.
Requirement (b): among other
things, the fact that the contractor fails to carry insurance for the activity
is a fair indication to the occupier that the contractor is not competent – (Bottomley v Todmorden CC). Accordingly,
in respect of appointing a competent contractor the occupier has a duty to
check whether the independent contractor is insured or not – (Gwilliam v West Hertfordshire).
Requirement (c): Although the
sub-section requires the occupier to check that the work had been properly
done; it was held in Ferguson v Welsh
that, the sub-section can also apply where the work was still in progress and
had not been completed.
The wording of the sub-section
contemplates that checking the work is not necessary in all circumstances. The
guideline used by the court is that the more technical the work, the less
reasonable it is to require the occupier to check it. So, in Haseldine v Daw, it was held that an
occupier need not check the work of a firm of lift repairers; whereas in Woodward v Mayor of Hastings, it was
held that the work of a cleaner should be checked.
DEFENCES:
Contributory negligence: Sec. 2(3) OLA 1957 specifies that in
considering whether an occupier has breached the common duty of care, the
courts may take into account the degree of care a reasonable visitor can be
expected to show for their own safety. Thus, a visitor who has failed to use
reasonable care for their own safety and that failure was a cause of their
damage, will have their damages reduced. In Stone
v Staffe the claimant’s damages were reduced by 50% on the ground of
contributory negligence.
Volenti
non fit injuria:
A defence of volenti non fit injuria
is provided by Sec. 2(5) OLA 1957.
The common duty for care does not impose upon an occupier any obligation
willingly accepted as his by the visitor. The claimant must act voluntarily, so
any person who has no choice as to whether they enter premises is not volenti – (Burnett v BWB).
Mere knowledge of the risk is
insufficient, it must actually be accepted by the visitor, and the knowledge
must be sufficient to make the visitor safe – (White v Blackmore: general
knowledge that ‘jalopy racing’ was a dangerous activity did not mean that the
claimant had accepted inadequate safety arrangements. The court held the
occupier liable). Accordingly, a visitor will not be deemed to have accepted a
risk merely because the occupier displays a notice to that effect (see warning
above).
Exclusion of liability: Sec. 2(1) OLA 1957 allows an occupier to
exclude his duty by contract or by notice, in so far as he is free to do so.
This appears to overlap with Sec. 2(4)(a)
which concerns warning. A warning is however different from an exclusion
clause. The latter simply seeks to exclude liability on the happening of a
specified event, while the former seeks to inform the visitor of a danger so
that he can take steps to avoid it.
The occupier is however,
restricted in his ability to exclude his duty in a number of ways –
A major restriction on the
freedom of the occupier to do this is contained within the Unfair Contract Terms Act 1977 (UCTA 1977). The 1977 Act controls, inter alia, the exclusion of liability
for negligence and by Sec. 1(1)(c)
this includes the common duty of care imposed by the OLA 1957.
However, the Act will only apply
where the premises are used for business
purposes. It is the purpose that the premises are being used for, rather
than the purpose of the visitor, that is important.
The occupier cannot exclude
liability for death or personal injuries caused by negligence – (Sec. 2(1) UCTA 1977). Any attempt to
exclude liability for property damage will be subjected to a test of
reasonableness – (Sec. 2(2) UCTA 1977).
The fact that, a person was aware of an exclusionary term or notice does not in
itself mean that he has voluntarily accepted the risk – (Sec. 2(3) UCTA 1977).
The notice must be clear, both in
the sense of legibility and in the sense of its intended scope, and it must
reasonably be drawn to the visitor’s attention before entry – (White v Blackmore).
The notice cannot exclude
liability to those required and permitted by law to enter.
It has been suggested, though
never decided, that the occupier’s duty cannot be reduced below the level of
the duty owed to a trespasser. It would be surprising if the occupier could owe
a higher duty to a person who had been forbidden to enter the property, than to
a person who had permission subject to an exclusion of liability clause.
DAMAGES
UNDER OLA 1957:
Sec.
1(3) OLA 1957
provides that a claim can be made for personal injuries and damage to property.
OCCUPIERS
LIABILITY ACT 1984:
Originally an occupier owed no
duty at all to those who were not lawfully on his land, as seen in Addie v Dumbreck; other than possibly to
refrain from – deliberately or recklessly inflicting damage or injury. Those
persons are usually referred to as a trespasser, but the category is wider than
those who commit the tort of trespass to land: it includes those involuntarily
on the land.
But British Railaways v Herrington, recognised an occupier owe a duty
to act with common humanity to such persons when the occupier knew of the
danger and of the likelihood of the trespass, and had the skill, knowledge and
resources to avoid the accident.
This duty would obviously operate
in fairly limited circumstances and was not without criticism or difficulties.
Because of some of the impracticalities of the rule, the 1984 Act was passed.
Sec.
1(2) OLA 1984
follows the same pattern as to who is an occupier and the kind of premises
covered by the Act.
A trespasser has been defined by
Lord Dunedin in Addie v Dumbreck as –
a person who goes on to land without invitation, and whose presence is either
unknown to the occupier or, if known, is objected to.
Sec.
1(3) OLA 1984
provides that, an occupier will only owe a duty to a trespasser if –
He is aware of the danger or has
reasonable grounds to believe that it exists,
He knows or has reasonable
grounds to believe that the other (i.e. trespasser) is in the vicinity of the
danger or may come into the vicinity, and
The risk is one against which, in
all of the circumstances, he may reasonably be expected to offer the other
(i.e. trespasser) some protection.
Requirement (a): Placing warning
notice is sufficient to indicate occupier’s awareness of the danger involved –
(Woolins v British Celanese, Rhind v Astbury Water, Keown v Coventry Healthcare).
Requirement (b): It was argued in
White v St. Albans that the very
presence of a warning notice showed that the occupier had reason to suspect
someone was likely to come into the vicinity of the danger, but this was rejected
by the CA.
According to Sec. 1(4) OLA 1984, the duty is to ‘………… take such care as is
reasonable in all the circumstances’ to prevent injury to the trespasser ‘by
reason of the danger concerned’.
Occupier owes no duty to
trespasser as regards that are obvious – (Donoghue
v Folkestone, Tomlinson v Congleton).
Occupier owes no duty to trespasser where the injury is caused by the
trespasser indulging in dangerous activities, rather than the state of the
premises or thing done or omitted to be done on them – (Donoghue v Folkestone, Tomlinson
v Congleton).
It should also be noted, like the
1957 Act, Sec. 1(5) OLA 1984 provides
that an occupier of premises discharges their duty to a trespasser ‘by taking
such steps as are reasonable in all the circumstances of the case to give
warning of the danger concerned or to discourage persons from incurring the
risk’. As a general rule, the existence of a warning sign is not enough, it
must be sufficiently clear to ensure that the risk is obvious.
The case of Revill v Newbery suggests that contributory negligence is also a
defence to actions brought by trespassers. However it should be noted that Revill was a case decided on the basis
of general negligence, rather than statutory occupiers’ liability; however CA
used the 1984 Act to determine the scope of the duty owed, and so their finding
on defences are likely be relevant to cases of true occupiers’ liability.
Further, under Sec. 1(6) OLA 1984, it is a defence that
the trespasser willingly accepted the risk. In the case of a trespasser, the
courts have adopted an objective rather than subjective test of agreement.
Where the claimant is an adult, then knowledge of the risk accompanied by entry
on the land will render the claimant volenti
– (Titchener v BRB).
The 1984 Act does not state
whether the duty under it can be excluded by the occupier. It is sometimes
suggested that this implies exclusion is possible, since it is not forbidden
nor made subject to any special rules under the Act. If exclusion is possible,
then such exclusions would not be subject to the UCTA 1977, which is stated to
apply only to the old common law and the 1957 Act; the result would be that
occupiers would have a wide opportunity to exclude their liability, thus
weakening the Act considerably.
An alternative view is that the
duty imposed by the 1984 Act cannot be excluded, because it was designed to
uphold the old common law ‘duty to common humanity’, which was unexcludable
because it was a minimum standard below which the law would not allow occupiers
to fall, no matter how unwelcome the visitor. Unfortunately, there is no
authority on this point.
One major difference between OLA
1957 & OLA 1984 is that the latter only allows claims for death or personal
injury; unlike ‘lawful visitors’, trespassers cannot claim for damages to
property – (Sec. 1(8) OLA 1984). In
that case, British Railways v Herrington
still has a role to play.
EMPLOYERS
LIABILITY
An employer injured at work has
three possible actions against his employer:
An action in negligence for
breach of the employer’s personal duty of care owed to his employee.
An action for breach of statutory
duties imposed by Parliament on the employer.
The employer may also be
vicariously liable for the torts committed by another employee.
We are concerned with the first
of the above mentioned actions in this chapter.
An employer has a duty to take
reasonable care for the safety of his employees. However, this is a
non-delegable duty, not in the sense that the employer cannot delegate
performance of the duty (for example, to a manager); but in the sense that
liability of it cannot – (McDermid v Nash).
In Wilsons v English this duty has been defined to comprised of – ‘the
provision of a competent staff of men, adequate material, and a proper system
and effective supervision’. Later cases have included a requirement to provide
a safe place of work.
It is probably not accurate to
regard the employer’s duty as a series of separate obligations, but rather as a
single duty to take reasonable care for the safety of employees. For the sake
of exposition, the duty will be analysed here in four parts. However, when the
courts are considering new situations, they will not be constrained by trying
to fit them into existing categories.
Notably, the employer’s personal
duty is only owed to employees, and not to independent contractors who may be
in the workplace, or to visitors to it (though other duties may be owed to such
individuals under the normal law of negligence, or in some cases occupiers’
liability).
Competent staff: Employers have a
duty to take reasonable care in selecting competent employees – (Black v Fife Coal). In Hudson v Ridge, knowingly employ a
workman continually indulging in horseplay, was held to violate this duty.
However, the position may be different where the employer has no casue to know
that the employee has such tendencies.
In modern times action using this
basic common law duty are rare because of the principles of vicarious
liability. But it is still valuable in situations where vicarious liability
does not apply, such as where the injury was not caused by any specific
employee, or where the employee causing the injury was acting outside the
course of employment as seen in Hudson v
Ridge.
Adequate material: Employers have
a duty to take reasonable care to provide their workers with necessary
equipments and to take reasonable care to maintain it in proper condition – (Smith v Baker).
At common law, the employer did
not guarantee the safety of the equipment and could not be held liable for
latent defects in the equipment which could not be discovered with reasonable
care, as seen in Davie v New Merton.
But now Sec. 1(1) Employer’s Liability
(Defective Equipment) Act 1969, provides that if employees are injured in
the course of their employment as a result of defective equipment provided by
their employer, and the defect is due to the fault of a third party, the
employer may be held liable, even if they are in no way to blame.
Equipment is defined by Sec. 1(3) as including any plant and
machinery, vehicle, aircraft and clothing. It has been held in Cottman v Bibby that a ship is
equipment. It comes within the definition of machinery or plant. In Knowles v Liverpool CC, even a flagstone
was held to be an equipment.
Proper system of work and
effective supervision: An employer is under a duty to take reasonable care to
provide his employee with a proper system of work – (General Cleaning v Christmas), and to ensure that the system is
followed accordingly – (Pape v Cumbria CC).
This duty includes such matters
as organisation of work, the manner and order in which it is to be carried out,
the number of employees needed for specific tasks and what each person is
actually to do, safety precautions and special instructions, warnings and
notices particularly to inexperienced employees.
Where an employer’s practice is
in line with that generally followed in their trade or industry, the claimant
is unlikely to succeed in a claim that such a practice is negligent unless it
displays serious lack of concern for employees’ health and safety – (Thompson v Smith).
Safe place for work: Employer
must take reasonable steps to ensure a safe place of work; but this does not
mean that every foreseeable risk must be eliminated, if doing so would be
unreasonably onerous – (Latimer v AEC).
Duty of care remains even where
the place of work in not in the employer’s control, but the standard of care
required may be lower – (Wilson v
Tyneside). In Cook v Square the
duty was discharged by satisfying themselves that the controller of the
premises were both reliable companies and aware of their responsibility for the
safety of the workers on the site.
PSYCHIATRIC
INJURY SUFFERED BY THE EMPLOYEES:
Walker v Northumberland CC held
that, employers’ duty to take reasonable steps to ensure his employees’ safety
can include – a duty not to cause psychiatric injury.
An employer owes a duty not to
cause psychiatric injury to an employee resulting from work-related stress
where the psychiatric injury to that particular employee is reasonably foreseeable
– (Hatton v Sutherland, Barber v Somerset
BC). It should be noted that, when an employee suffers psychiatric injury
as a result of witnessing a shocking event for which their employer is
responsible, they must bring themselves within the normal rules which apply to
claims for psychiatric injury. The claimant must either be a primary victim or
satisfy the rules of secondary victims – (White
v CC of South Yorkshire Police).
VICARIOUS
LIABILITY
Vicarious liability means that
one person (even though otherwise not a tortfeasor) is liable for a tort
committed by someone else. The only clear example in English law is the
liability of employers for the torts committed by their employees in the course
of employment.
- To
succeed in a claim based on vicarious liability, the claimant has to
establish that: - The
alleged tortfesor was an employee, - The
employee committed a tort, and - The
employee committed the tort in the course of employment.
ESTABLISHING
THE EMPLOYEE RELATIONSHIP:
As vicarious liability arises
from the employment relationship and not from the relationship of employer and
independent contractor, it is important to distinguish between an employee and
an independent contractor. This distinction may seem an obvious one, but it has
caused the courts great difficulties.
A number of tests have been used
to attempt to draw a distinction. For a time the ‘control test’ originated in Yewens v Noakes was popular. If the
employer retained control over the work and told a person how to do it, that
person was an employee. The test reflected a society where ownership of the
means of production coincided with the possession of technical knowledge and
skill. The typical employer would be the Victorian engineer who knew all
aspects of the work done in his firm. As so many employees are now skilled, the
employer may be able to tell them what to do but not how to do it. The computer
specialist, lawyer, accountant employed by a firm does not fit the control
test.
The problems with the control
test led the courts to search for alternatives. One suggestion was the
‘business integration test’ put forward by Lord Denning (Stevenson v McDonald and Evans). A person would be an employee if
their work was an integral part of the business. An independent contractor
would work for the business, but as an accessory rather than an integral part
of it. On this basis it would be possible to distinguish between a chauffeur
and a taxi driver, and a staff reporter and a newspaper contributor. In
practice the test proved too vague too apply, as did a variation of whether the
person was in business in their own account (Market Investigations v Minister of Social Sercurity).
The courts have now abandoned the
search for any single factor to act as a test and will look at all the
circumstances of the particular case. An early example of this is the case of Ready mixed v Minister of Pensions,
where MacKenna J laid down three conditions for the existence of a contract of
employment:
The employer agrees to provide
his work and skill to the employer in return for a wage or other remuneration,
The employee agrees expressly or
impliedly to be directed as to the mode of performance to such a degree as to
make the other his employer, and
The other terms of the contract
are consistent with there being a contract of employment.
It should not be thought,
however, that the courts confine themselves to these three factors. The courts
will in fact consider a wide range of factors including:
The ownership of tools, plant or
equipment – clearly an employee is less likely to own the plant and equipment
with which he works.
The method of payment – again a
self-employed person is likely to take a price for a whole job where an
employee will usually receive regular payments for a defined pay period.
Tax – an employee usually has tax
deducted out of wages while a self-employed person will usually pay tax
annually.
Self-description – a person may
describe himself as one or the other, and this will usually, but not always, be
an adequate description. Level of independence – probably one of the acid tests
of status as self-employed is the extra degree of independence in being able to
take work from whatever source and turn work down.
A recent addition is to determine
who has the benefit of any insurance cover that might be available (British Telecommunications v James).
All of these are useful in
identifying the status of the worker but none of them are an absolute test or
are definitive on their own.
The courts may find that a person
is an employee even in the face of an express contractual term describing them
as self-employed – (Ferguson v Dawson).
Loan of an employee: Where an
employer lends another the services of an employee he remains the employer and
thus vicariously liable for any tort committed by the employee in the course of
employment, unless he can show that it is the hirer who had control over the
employee – (Mersey v Coggins: This is
the position even when the terms of the contract between the two employer
states that he is to be regarded as the employee of the hirer).
However, when both the general
employer and the employer to whom the employee has been loaned have control
over the employee, both employers can be held vicariously liable in respect of
the employee’s torts – (Viasystems v
Thermal Transfer).
An attempt to exclude such liability by a contractual
term is caught by UCTA – (Phillips v
Hyland). However an attempt to transfer
such liability to the hirer employer by a contractual term is not caught by
UCTA – (Thompson v T. Lohan).
Loan of a car: An owner of a vehicle
will be vicariously liable for any tort committed by the driver where the
driver is driving with the owner’s permission and at least to some extent for
the owner’s purpose – (Ormond v Crosville
Motors).
An employment agency will be
regarded as the employer of the staff they provide and thus vicariously liable
for any tort committed by the staff only if there is a mutuality of obligation
between the staff and agency – (Dacas v
Brook Street).
THE
EMPLOYEE MUST COMMIT A TORT:
The employer is liable vicariously
liable only if the employee has committed a tort. Thus, the employer can take
advantage of any substantive defence available to the employee – (ICI Ltd v Shatwell). However, where the
employer has committed a tort, but cannot be sued because of some procedural
bar, the employer cannot take advantage of such a defence – (Broom v Morgan: The claimant and
tortfeasor were husband and wife. At that time, spouses could not sue each
other, but that did not prevent the husband and wife’s employer vicariously).
IN
THE COURSE OF EMPLOYMENT:
The employer will only be liable
for torts which the employee commits ‘in the course of employment’.
Courts have often used a test
suggested by Sir John Salmond known
as ‘Salmond test’, that is – an act
is in the course of employment even if unauthorized, provided that it is so
connected with an act authorized to be done that it may be rightly regarded as
modes – although improper modes – of doing them.
In Century Insurance v N.I. Road Traffic Board, the driver of a petrol
lorry, while transferring petrol from the lorry to an underground tank at a
petrol station, struck a match in order to light a cigarette and then threw it,
still alight, on the floor. An explosion and a fire ensued. His employers were
held vicariously liable for the damage caused: as it was an unauthorized way of
doing what he was actually employed to do.
In Bayler v Manchester Railway Co a railway porter employed by the
defendants thought the claimant was on the wrong train and, meaning to be
helpful, pulled him off it by force. The defendants were held vicariously
liable, because the porter was trying to do what he was authorized to do, in
helping a passenger to get to his destination, even though he was doing it so
badly as to have completely the opposite effect.
Employees travelling to and from
their place of work are regarded as acting outside their course of employment,
unless the travel is part of the work or paid for – (Smith v Stages).
Express prohibition: Question
arises as to whether an employee is acting in the course of employment where
the act is expressly prohibited by the employer.
An employer who expressly
prohibits an act will not be liable if an employee commits that act. However,
the employer may be liable if the prohibition can be regarded as applying to
the way in which the job is done, rather than the job itself – (Limpus v London General Omnibus).
In Limpus, the defendants expressly prohibited their drivers from
racing with, or obstructing, other buses. Their driver, however, obstructed the
claimant’s bus to pick up two passengers and in so doing caused a collision in
which several passengers were injured. It was held that the defendants were
vicariously liable for the tort of their driver because at the time of the
accident he was simply doing an authorised act (driving a bus) in an
unauthorised manner or mode.
On the other hand, in Conway v George, defendants provided
transport for their employees on a construction site. The drivers were
specifically told not to give lifts to employees of other companies. However,
one of their drivers gave a lift to the claimant who was employed by another
company (although the driver was unaware of this fact). The claimant was
injured as a result of the negligence of the driver and he sued the defendants.
The CA held that the defendants were not vicariously liable for the tort of the
driver because at the time of the accident the driver was doing an unauthorized
act (driving his van with an unauthorized passenger on board) and that it was
not simply a case of him doing an authorized act in an unauthorized mode.
This seems fine in theory, but it
leaves us with a difficult practical problem. The problem is how do the courts
define the ‘act’ which the employee is employed to do? For example, we could
reverse the results in Limpus and Conway by redefining the act which the
employee was employed to do. If in Limpus
we said that the act which the employee was employed to do was drive buses
and that at the time of the accident he was ‘racing or obstructing other buses’
then the driver would have been doing an unauthorized act. On the other hand,
if in Conway we defined the act which
the driver was doing at the time of the accident as driving the bus, then he
would have been doing an unauthorized act, albeit in an unauthorized manner. It
can be argued that the courts have so much discretion in defining the scope of
the act that they can decide the case the way they want it to go and then
select the appropriate label to justify their decision.
‘Frolic of his own’: An act is
not in the course of employment where it is so unconnected with the authorized
act that it has to be regarded as an independent act. Where the employee acts
outside the course of employment he is sometimes said to act on a ‘frolic of
his own’. It is now necessary to consider what constitutes a ‘frolic of his
own’.
In Storey v Ashton, the defendant employers were held not liable when
their employee, after completing his deliveries, went on a detour to visit the
brother-in-law. It was held that this was a new and independent journey which
had nothing to do with his employment and so was outside the course of his
employment.
In Williams v Hemphill, a driver had gone on a considerable detour
when driving boys home, because the boys wanted to follow some girl guides who
had been camping in a nearby field. While on this detour the bus was involved
in an accident and some of the boys were injured. The driver was held to be
within the course of his employment.
Lord Pearce said that it was a
question of fact in each case whether the employer had gone on a ‘frolic of his
own’. He considered Storey and said
that had the driver been carrying, at the time of the accident, some important
cargo belonging to the employer then the result might have been different. In Williams the continued presence of the
boys on the bus made it impossible to say that this was a frolic of the
driver’s own. This latter case suggests that it is only a new and independent
journey, which is solely undertaken for the selfish purpose of the employee,
which will constitute a ‘frolic of his own’.
‘Lister test’: In the cases considered so far,
the employee had committed the tort of negligence. It is however, more
difficult to apply vicarious liability where the employee commits deliberate
wrongful conduct. Because, on the basis of Salmond
definition alone it is difficult to think of many situations in which
committing a crime could be described as just a different way of doing one’s
job.
When we talk about vicarious
liability for criminal acts committed by employees, we do not mean that the
employer is prosecuted for the crime instead of the employee. The cases
referred to in this section concern situation where an employee has done
something which is both a crime and a tort. He or she will have been prosecuted
for the crime by the state but, if their actions also fall within the
definition of a particular tort, the employer can also be sued by the victim.
Until recently, the courts would
only find vicarious liability where the employee was acting for the benefit of
the employer – (Lloyd v Grace); or
stole property that he was employed to clean – (Morris v Martin). But now, vicarious liability can be implied for
deliberate wrongful conduct of the employee, where there is sufficient
connection between what the employee had done and what he was supposed to do as
his job – (Lister v Helsey Hall).
In this case, the employer was
held vicariously liable for a series of sexual abuses perpetrated by a warden,
who’s job was to care for the pupils of a residential school. There would have
been no vicarious liability if the abuse had been perpetrated by a caretaker or
handyman at the school, whose duties involve looking after the property rather
than the pupils.
EMPLOYER’S
INDEMNITY:
The employer is entitled to
recover from the employee the amount of any damages paid to the claimant – (Lister v Romford). The effect of the
rule is that where the employer is insured, the insurance company can recover
the amount it has paid under the insurance policy. Allowing insurers
effectively to reclaim money from the employee means that the employers are
paying premiums for a risk which may cost the insurance company nothing. In
fact, since Lister v Romford was
decided, companies providing insurance to employers have informally agreed that
they will not pursue their rights under the Lister
principle.
DAMAGES
The object of damages is to place
the claimant in the position he or she would have been in, if the tort had not
been committed; as far as this can be done by an award of damages.
GENERAL
PRINCIPLES APPLICABLE IN PERSONAL INJURY CASES:
In seeking to compensate a
claimant in a personal injury case (personal injury covers both physical and
psychiatric harm), the damages which may be awarded by the courts can be
divided into two categories:
- Pecuniary
loss, and - Non-pecuniary
loss.
PECUNIARY
LOSS:
Loss of earnings: Damages for
loss of earnings come in two categories – the claimant can recover damages for
his loss of earnings to the date of the trial, as well as for the loss of future
earnings.
Difficulty arises in relation to
loss of future earnings, as there is no real way of knowing what the future
would have held for the claimant, if the accident had not happened: they might
have been promoted or might have been unemployed.
The first stage in calculating
future loss of earnings is to take the claimant’s net annual loss, i.e. the
difference between what they would have earned and what they are earning. This
is known as the multiplicand. The court will then adjust this figure to take
into account factors such as promotion prospects; that are known as ‘loss of
chance’ cases, where the claimant alleges that there was a significant chance
that his financial position would have improved in future.
An example is Doyle v Wallace. In this case, the
claimant was badly injured in a road accident and was unable to work. She had
been planning to train as a drama teacher if she could get the necessary qualifications
and if not she planned to get a clerical job. Her income would have been substantially
higher as a teacher than as a clerk, but at the time of the accident it was too
early to know whether she would have obtained the necessary qualifications. The
trial judge found that she had a 50% chance of qualifying as a drama teacher,
and calculated the damages for loss of future earnings on the basis of an
income that was half-way between that of a drama teacher and that of a clerical
worker. The CA upheld this approach.
The loss of a chance approach is
generally used in cases where there is a fairly high degree of uncertainty as
to whether the claimant’s financial prospects would have improved if the
accident had not happened; where it is fairly obvious that they would have
improved, there is no need for loss of a chance calculations. In Herring v Ministry of Defence, a
part-time soldier was badly injured during a parachute jump. He had intended to
apply to join the police force, and therefore claimed damages for loss of
future earning on the basis of the typical police officer’s salary. The defendants
argued that as it was not clear whether he would have been accepted into the
police force, the claim should be assessed on the basis of loss of a chance,
but the CA disagreed. On the evidence, it was clear that even if the claimant
had not got into the police force, he would have got a job with similar earning
power. His damages could therefore be calculated on the basis of a police
officer’s salary, with a small reduction for what are called the ‘vicissitudes
of life’.
The second stage is to apply the
multiplier to this figure. The multiplier is calculated by working out the
number of years that the disability is likely to last. This figure is then
reduced to take into account the contingencies of life, i.e. the claimant might
not have liver or worked until retirement age; and the fact that they have
received a capital sum which can be invested and make money, which would
otherwise not be available to them.
Simply to multiply the first
figure by the second would actually over-compensate the claimant. If we take,
for example, an annual loss of £10,000, to be payable over 20 years, simple
multiplication of these figures gives us £200,000. But, a claimant does not
actually need a lump sum of £200,000 to produce an annual income of £10,000
over 20 years, because the assumption is that the lump sum is invested and so
makes more money during the 20 years, with the result that the claimant would
end up over-compensated. To avoid this, the court assumes that the investment
will earn a particular rate of return (called the discount rate), and reduces
the damages to one which on the basis of the assumed rate of return will
provide the right rate of compensation, nothing more and nothing less.
Within these calculations, the
rate of return on investments that the court assumes is very important – the
higher the assumed rate of return, the smaller the damages; and if for some
reason the claimant in practice is unable to achieve this rate of return on
their investment, they will be under-compensated.
Until recently, the courts
generally assumed a rate of interest of 4-5% per year. This practice was
criticised by the Law Commission in its 1995 Report, which provided an unusual
recommendation as well. The Damages Act
1996 responded to this recommendation by providing that the Lord Chancellor
can prescribe a rate of interest for the purpose of calculating multipliers;
and in June 2001 the rate was set at 2.5% by a statutory instrument. The court
appeared to be extremely reluctant to hear that a different rate would be appropriate.
Lost years: One problem which may
evolve in calculating damages for future loss of earnings is the so called
‘lost years’.
Where the claimant’s life
expectancy is reduced by the tort, loss of earnings remains recoverable even
for the reduced period of life (called ‘lost years’), but a deduction will be
made for the amount that the claimant would have spent on himself during the
lost years – (Pickett v BREL).
Other pecuniary losses: A
claimant can recover as damages those medical, nursing and hospital expenses
which he has reasonably incurred up to the date of the trial, as well as those
expenses that might be required for his future treatment.
Where the claimant has received
private health care or plans to arrange future treatment privately, the possibility
that the claimant could have avoided these expenses by using the facilities of
the NHS is to be disregarded – (Sec. 2(4)
Law Reform (Personal Injuries) Act 1948).
If claimant does make use of the
NHS, he cannot recover what he would have had to pay if he had private
treatment – (Lim Poh Choo v Camden and
Islington AHA). But, if the claimant is treated by the NHS, then the
expenses which he saves will be set off against his loss of earnings – (Sec. 5 Administration of Justice Act 1982).
Where the burden of caring for
the claimant is largely shouldered by relatives or friends, the claimant can
recover for such care as well, whether they are actually paid for or not – (Donelly v Joyce). But, where a wife
provided gratuitous assistance in running her injured husband’s business, no
damages was awarded for this in Hardwick
v Hudson.
NON-PECUNIARY
LOSS:
Loss of amenity: Loss of amenity
describes the situation where an injury results in the claimant being unable to
enjoy life to the same extent as before. It may include an inability to enjoy a
sport or any other pastime the claimant enjoyed before the injury, impairment
of sight, hearing, touch, taste or smell, reduction in the chance of finding a
marriage partner, and impairment of sexual activity or enjoyment.
Damages for loss of amenity are
not affected by whether the claimant is actually aware of the loss; so
unconscious claimants may claim damages as if they had not been unconscious as
seen in West v Shephard.
Calculation of these damages is
based on a tariff laid down by the CA, though the tariff figure can be adjusted
to take into account the claimant’s individual circumstances.
Pain and suffering: Damages will
be awarded for any pain and suffering which results from the injury itself, or
from medical treatment of that injury. The claim may cover pain which the
claimant can expect to suffer in the future, and mental suffering arising from
the knowledge that life expectancy has been shortened – (Sec. 1(1)(b) Administration of Justice Act 1982), or that the
ability to enjoy life has been reduced by disability resulting from the injury.
Where the injury has caused a
period of unconsciousness, that period will be excluded from any claim for pain
and suffering – (Wise v Kaye). But,
no damages will be awarded for mere grief or sorrow – (Kerby v Redbridge HA).
The Law Commission had argued
that damages were too low for non-pecuniary loss in personal injury cases, and
this was accepted by the CA in Heil v
Rankin with respect to the most serious cases but not for those awards
assessed at under £10,000.
Damages are calculated under
various headings (among others few are discussed above) and then added
together, taking care that the same sum is not counted in twice.
DEDUCTION: A victim of an
accident may receive money from sources other than tort damages for suffering
the injury. The claimant may be entitled to state benefits as a result of their
injuries and may also have private insurance or become entitled to payments by
their employer.
The philosophy employed by the
court is not to punish a thrifty claimant. On this basis, personal accident
insurance money is generally non-deductible; as are pensions – (Parry v Cleaver). If an employee has
received sick pay or wages from an employer, then this will be deducted, unless
the sick pay has to be repaid out of any damages received.
There has been considerable
controversy over whether social security benefits should be deductible from
tort damages for personal injuries. The law is now contained in the Social Security (Recovery of Benefits) Act
1997. This provides that the value of social security benefits received by
the claimant should be deducted from the compensation ordered by the court, and
paid back to the state.
The Act treats compensation as
having three elements – loss of earnings, cost of care and loss of mobility –
and the value of benefits received can only be set off against the
corresponding element in the damages awarded. Accordingly, any damages for pain
and suffering are effectively protected from recoupment. For example,
attendance allowance is taken into account against the heading ‘loss of care’,
and income support is set against ‘loss of income’.
EFFECT
OF DEATH ON AN AWARD OF DAMAGES FOR PERSONAL INJURIES:
When a victim of a tort dies as a
result of the tort, the claim he would have had against the tortfeasor passes
to his estate – (Sec. 1 Law Reform
(Miscellaneous Provisions) Act 1934). His estate may claim damages
according to the usual principles, for the period between when the cause of
action arose and the death. So, if for example, someone is injured in an
accident and dies six months later, the estate can claim damages for pecuniary
and non-pecuniary losses, based on the usual principles for that six months
period. But, no damages can be recovered by the estate for the loss of earnings
in the lost years – (Sec. 1(2)(a) Law Reform (Miscellaneous Provisions) Act
1934).
Damages awarded to his estate
shall be calculated without reference to any loss or gain to his estate
consequent on his death – (Sec. 1(2) Law
Reform (Miscellaneous Provisions) Act 1934). One exception to this rule is
that the court may award the estate any funeral expenses incurred.
In addition the Fatal Accidents Act 1976 establishes two
further claims: a claim by the dependants of the deceased for financial losses
and a claim for the bereavement suffered. Under the Fatal Accidents Act 1976, dependants can claim for financial losses
to themselves caused by the death, including earnings spent on the dependants,
savings made for their future use, non-essential items such as holidays, and
the value of services rendered. However, dependants will only have a claim if
the deceased would have had one; and any defence which could have been used
against the deceased can be used against them.
A definition of dependants is
given in Sec. 1(3) of the Act. The normal action will be brought by the
surviving spouse and children, but parents and other ascendants, siblings,
uncles and aunts and their issue are included. One category which deserves
special mention is cohabitees. If the claimant had lived with the deceased as
husband or wife for a period of at least two years, then that person is classed
as dependants.
The second claim allowed by the Fatal Accidents Act 1976 is for a fixed
award of 10,000 damages for bereavement, which is designed to provide some
compensation for the non-pecuniary losses associated with bereavement. It is
only available to the husband or wife of the deceased; or if the deceased was
unmarried and a minor, to the parents. Unfortunately, it does not give children
a claim for the death of a parent.