Tort Law




Negligence (definition) - A breach of legal duty to take care which results in damage to the claimant.

This definition of negligence can be broken down into the four component parts that a claimant must prove to establish negligence. The legal burden of proving each of these elements falls upon the claimant.

  • The claimant was owed a Duty of care
  • There was a Breach of that duty of care
  • The claimant suffered damage as a result of that breach (Causation)
  • The damage suffered was not too Remote
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Duty of Care - What is it?

This concerns the relationship between the defendant and the claimant, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the claimant in all circumstances of the case.

There are two ways in which a duty of care may be established:

  • the defendant and claimant are within one of the 'special relationships'; or
  • outside of these relationships, according to the principles developed by case law.

Examples of established duty situations (special relationships) are:

one road-user to another, employee to employee, manufacturer to consumer (Donoghue v Stevenson), doctor to patient and solicitor to client.

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Duty of Care - The Neighbour Principle

Outside of these catergories of established duty, a duty of care will be determined on the basis of individual circumstances. The 'neighbour principle' formulated by Lord Atkin in  Donoghue v Stevenson was initially used to determine whether a duty of care existed between defendant and claimant.

Neighbor principle is a principle of English law which says that a person should take reasonable care to avoid acts or omissions that s/he can reasonably foresee as likely to cause injury to the neighbor. Neighbor includes all persons who are so closely and directly affected by the act that the actor should reasonably think of them when engaging in the act or omission in question. The standard was set by Lord Atkins in the famous English case Donoghue v Stevenson. The neighbor principle is based on the Christian principle of "loving your neighbor."

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Duty of Care - The Neighbour Principle (Cases)

Donoghue v Stevenson

Concerning: duty of care between manufacturer and ultimate consumer
Facts – Mrs Donoghue and a friend visited a café. Mrs Donoghue's friend bought her a bottle of ginger beer. The bottle was made of opaque glass. When filling Mrs Donoghue's glass, the remains of a decomposed snail - which had somehow found its way into the bottle at the factory - floated out. Mrs Donoghue developed gastroenteritis as a result.

Legal principle – Lord Atkin explained the narrow rule as follows:. . . a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care. 

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Duty of Care - The Neighbour Principle (Cases)

Caparo v Dickman

Concerning: duty of care

Facts – The case considered the liability of an auditor for financial loss suffered by investors. However, it also set out the three points which a court must consider to establish whether a duty of care exists.

Legal principle – The three points are:
• reasonable foresight of harm;
• sufficient proximity of relationship;
• that it is fair, just and reasonable to impose a duty.

Effectively redefined the neighbour principle such that it adds the requirement that there must be a relationship of sufficient proximity and that the imposition of a duty of care must be fair, just and reasonable.

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Duty of Care - Liability for failing to act.

If you see someone in peril, you act not obliged to try and rescue them., and if you fail to do so you cannot be liable in negligence for not acting positively. May feel a moral obligation, but there is NO LEGAL OBLIGATION.

If an individual does choose to intervene, you are still not liable, unless they make matters worse... (East Suffolk Rivers Catchment Board v Kent and another)

D the Board who had statutory powers to repair a breach in the sea wall. C whose land was flooded during a very high tied breaching the wall.

D carried out the repairs so inefficiently that the flooding continued for 178 days, instead of 14 days. C's pasture land was seriously damaged.

Held: D was under no obligation to repair the wall or to complete the work after having begun it, so they were under no liability to C, the damage suffered by them being due to natural causes. Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise the power. So long as the authority exercises its discretion honestly, it can determine the method by which, and the time during which, the power shall be exercised.

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Duty of Care - Liability for failing to act EXCEPT

There is a duty to act positively if there is a special relationship or a relationship of power/control between the parties. Examples include...

  • Prison officers and Prisoners (Home Office v Dorset Yacht Co)
  • Employer and Employee (Employers Liability)
  • Occupier and Visitor (Occupier's Liability)
  • Parent and Child (Carmarthenshire County Council v Lewis)

Carmarthenshire CC v Lewis

D a Local Authority employed a teacher who left a 4-year-old child alone for about ten minutes while she did other things. The child left the classroom onto a busy road, where he caused a lorry driver to swerve and collide with a telegraph pole. The lorry driver was killed and his widow sued the education authority.

Held: The education authority had taken charge of the child and had a duty to take reasonable care to prevent him from causing harm to others.

C won.

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Duty of Care - Liability for failing to act EXCEPT

There is a duty to act positively if there is a special relationship or a relationship of power/control between the parties. Examples include...

  • Prison officers and Prisoners (Home Office v Dorset Yacht Co)
  • Employer and Employee (Employers Liability)
  • Occupier and Visitor (Occupier's Liability)
  • Parent and Child (Carmarthenshire County Council v Lewis)

Carmarthenshire CC v Lewis

D a Local Authority employed a teacher who left a 4-year-old child alone for about ten minutes while she did other things. The child left the classroom onto a busy road, where he caused a lorry driver to swerve and collide with a telegraph pole. The lorry driver was killed and his widow sued the education authority.

Held: The education authority had taken charge of the child and had a duty to take reasonable care to prevent him from causing harm to others.

C won.

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Duty of Care - Special Protection

The law of negligence has NO STATUATORY BASIS. Developed through cases, meaning that when considering whether or not a duty of care exists, the courts have flexibility to take public policy considerations into account and steer the evolution of the tort of negligence accordingly. This flexibility has also allowed the courts to protect certain classes of defendant from liability in negligence and also to provide additional help to certain classes of claimant bringing an action.

  • Unborn Children - Burton v Islington Health Authority (Held that a duty of care is owed to an unborn child and is actionable on birth) & Congenital Disabilities (Civil Liability) Act 1976 - gives a right of action to any child who is born alive and disabled in respect of the disability, if it is caused by an occurence which affected the mother during pregnancy, or the mother or child during labour, causing disabilities which would have otherwise not been present.
  • Police, Rescuers and Public Authorities - No general duty of care, would open the floodgates. Been extended to fire service. In regards to ambulance service, there is no general duty to respond to a call, although once a call has been answered, the service owes a duty to the named individual at a specific address. Hill v Chief Constable of West Yorkshire (Yorkshire Ripper). Capital and Counties plc v Hampshire County Council (fire service). Kent v Griffiths, Roberts and London Ambulance Service (Ambulance).
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Breach of Duty - What is it?

The second element of negligenceis breach of duty. Having established that a duty of care exists in law and in the particular situation, the next step in establishing liability is to decide whether the defendant is in breach of that duty - in other words, whether the defendant has not come up to the standard of care required by the law.

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Breach of Duty - Standard of Care

This was generically defined in Blyth v Birmingham Water Works...

Concerning: standard of care

Facts – A wooden plug in a water main became loose in a severe frost. The plug led to a pipe which in turn went up to the street. However, this pipe was blocked with ice, and the water instead flooded the claimant's house. The claimant sued in negligence.

Legal principle – Alderson B defined negligence as: The omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do (emphasis added). 

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Breach of Duty - The Reasonable Person?

Depicted in Hall v Brooklands Auto-Racing Club by Greer LJ as...

  • The man in the street.
  • The man on the Clapham omnibus.
  • The man who takes the magazines home, and in the evening pushes the lawn mower in his shirt sleeves.

The reasonable man is NOT PERFECT, but AVERAGE! In deciding whether or not an individual has breached the duty of care, the court applies an objective test. Therefore the courts ask not what a 'reasonable person' would have done, but 'what did this particular defendant forsee in this particular situation?'

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Breach of Duty - Special Standards of Care

Certain situations in which the courts apply a different standard of care from that of a reasonable person since the application of the general standard of care as that of the reasonable person would not be suitable...

  • Where the defendant has a particular skill - Standard of care applied to professionals with a particular skill or expertise is that of the reasonable person with the same skill or expertise. For example, a doctor would show more skill than a reasonable man (Bolam v Friern Hospital Management Committee & Bolitho v City and Hackney Health Authority)
  • Where the defendant has a particular lack of skill - Otherwise no allowance is made for the inexperience or lack of skill of the defendant (Nettleship v Weston)
  • Where the defendant is a child - Expected to reach standard of care reasonably expected of ordinary children of the same age (Mullin v Richards)
  • Where the defendant is competing in or watching a sporting event - Spectators and competitors in sporting events may be owed a lower standard of care than the general standard (Wooldridge v Sumner
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Breach of Duty - Other Relevant Factors

Other factors may include...

  • The magnitude of the risk - determined by the likelihood of it occuring and the seriousness of the potential injury. Bolton v Stone and Miller v Jackson, more frequent cricket balls, therefore more likely to occur. With seriousness of injury, the defendant may be aware that a specific individual is at risk of suffering greater damages than normal, therefore a higher standard of care is required. Paris v Stepney Borough Council, individual became completely blind as he was not provided with goggles. 
  • The cost and practability of precautions - The court will take into account what (if any) measuers the defendant could have taken to avoid the risk of injury, the cost of those measures and the ease with which they could have been implemented. Latimer v AEC, even though closing is more costly, would have prevented accidents in the factory.
  • The social value of the defendant's activities - If in public interest, there is a lower standard of care. For example, whilst emergency services may run red lights, they must warn other road users using lights and sirens. 
  • What the reasonable person would have forseen - The standard of care is predicated upon what the reasonable person would have forseen. This depends upon the probability of the consequence. Harris v Perry, constant supervision of children on a bouncy castle viewed as unreasonable (Court of Appeal against Divisional Court)
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Breach of Duty - Proving a breach of duty?

The legal burden of proving breach of duty is on the claimant. This must be established 'on balance of probabilities'. However there are certain circumstances in which the claimant may have some assistance...

Where res ipsa loquiyur (the thing speaks for itself) applies courts will be prepared to find a breach of duty against the defendant without hearing detailed evidence and therefore prima facie negligence. Scott v London & St Katherine Docks Co, the claimant was injured by a sack of sugar which fell from a crane operated by the defendants.Legal principle – A claimant will be assisted by res ipsa loquitur if:

  • the thing causing the damage is under the control of the defendant or someone for whose negligence the defendant is responsible;
  • the cause of the accident is unknown;
  • the accident is such as would not normally occur without negligence. 

Where Section 11 of the Civil Evidence Act 1968 applies11 Convictions as evidence in civil proceedings...(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or by a court-martial there or elsewhere -(a) he shall be taken to have committed that offence unless the contrary is proved... 

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Causation - What is it? Factual Causation?

The claimant must show a causal link between the defendant's act or omission and the loss or damage suffered. Otherwise known as the chain of causation. 

Factual causation - the breach of duty must be the factual cause of the damage. The general test used by the courts to determine factual causation (known as 'the but for' test!

Cork v Kirby Maclean (Lord Denning) - 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.


Proof of damage is essential within negligence. Rothwell v Chemical & Insulating Co Ltd, the House of Lords held that symptomless problems and risk of future illness/anxiety are not able to gain compensatable damages. None were provable/actionable either!

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Causation - Problems with proving it?

Difficult to prove factual causation when there is/are...

  • Multiple causes of damage - More than one possible cause of harm, Bonnington Castings Ltd v Wardlaw when the claimant inhaled dust causing pneumoconiosis, one dust was required by law to be removed, 'materially contributed' to the damage.
  • A 'lost chance' of recovery - Courts extremely reluctant to impose liability where the negligence of the defendant caused the claimaint to lose a chance, Hotson v East Berkshire Area Health Authority a boy fractured his hip and through misdiagnosis developed a deformity. If diagnosed had a 25% chance of not developing disformity so awarded damages for lost chance. REVERSED as it did not satisfy the balance of probabilities (over 50%).
  • Multiple consecutive causes of damage - Where there are consecutive causes for the damage, the application of the 'but for' test is applied to the original defendant, Performance Cars Ltd v Abraham, both drivers are liable, but only the first defendant liable for cost of respray, as it was already damaged before the second collision.
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Causation - Novus Actus Interveniens

An intervening act may break the chain of causation between the defendant's breach of duty and the loss or damage suffered by the claimant. If the novus actus interveniens is sufficient to break the chain, then the defendant may not be liable despite being in breach of the duty of care. May be...

  • a third-party act - The original defendant will be liable where the intervening act does not cause the loss. The original defendant will be responsible for 'injury and damage which are the natural and probable results of the [initial] wrongful act'. Knightley v Johns [1982]
  • an act of the claimant - Viewed as contributory negligence, in which the claimant has not taken care in order to prevent further injury. McKew v Holland & Hannen & Cubitts Ltd [1969] - Claimant did not use handrail walking down stairs despite already injuring his leg, fell and therefore suffered further serious injuries. 
  • an act of nature - Intervening acts of nature will not generally break the chain of causation. However, the defendant will not normally be liable where the intervening act of nature is unforseeable and separate from the initial negligent act or omission. Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] - Claimant's ship was damaged further during a storm, not liable as it was unforseeable and quite separate.
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Negligence - Remoteness

The final element required in establishing negligence is the extent of the damage suffered by the claimant which should be attributable to the defendant. Remoteness is often referred to 'legal causation' or 'causation in law'.

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (THE WAGON MOUND) [1961]Concerning: remoteness of damage

Facts – The defendants negligently leaked a quantity of bunkering oil into Sydney Harbour from a tanker. This oil drifted into the claimant's wharf where it mixed with assorted detritus including cotton wadding. Welding was taking place in the wharf. The claimants sought (and received) assurances that it was safe for them to continue welding. However, sparks from the welding ignited the oily wadding which caused fire to spread to two ships, damaging them. The wharf was also fouled.

Legal principle – At first instance, the trial judge applied the principles from Re Polemis, finding that the defendants were liable for the fire damage, since the fouling to the wharf was a foreseeable consequence of the leakage. On appeal, the Privy Council reversed the decision, holding that the correct test for remoteness is reasonable foreseeability of the kind or type of damage in fact suffered by the claimant. 

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Negligence - 'Egg-shell skull' rule

If the type of injury is forseeable, but the severity of the injury is not, due to some pre-existing special condition on the part of the claimant, then the defendant remains liable for all the losses.

Smith v Leech Brain & Co Ltd [1962]

Concerning: remoteness; the 'egg-shell skull' rule

Facts – The claimant was splashed by molten metal as a result of his employer's negligence and suffered a burn to his lip. This burn triggered cancer, from which the claimant died. The claimant's lip was pre-malignant at the time of the incident.

Legal principle – Some form of harm from the burn was foreseeable although the particular type of harm in the particular circumstances was not. However, despite the fact that death from cancer was not a foreseeable consequence of the burn, the employers remained liable in negligence for the full extent of the damage. 

In essence, the 'egg-shell skull' rule means that defendants must take their victims as they find them.

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Negligence - The Impecunious Claimant

One particular situation where the 'egg-shell skull' rule has been held not to apply is in cases where the losses result from the claimant's lack of means. 

In Liesboch Dredger v ** Edison [1933], the claimant's dredger sank due to the defendant's negligence. The claimant could not afford to replace the lost dredger. In order to fulfil its contractual obligations, the claimant hired a dredger at an exorbitant rate. The House of Lords held that the claimant could not recover the high rental charges since these were a result of its own lack of means and not 'immediate physical consequences' of the negligent act. 

Lagden v O'Connor [2004]

Facts – The defendant struck the claimant's car. The impecunious claimant had to hire a car from a car hire company that charged more for the credit involved because the claimant could not afford to pay in advance.

Legal principle – The defendant was liable for the costs incurred. The observations of the House of Lords in the Liesbosch Dredger, despite the eminence of their source, can no longer be regarded as authoritative. They must now be regarded as overtaken by subsequent developments in the law. 

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Special Duties - Economic Loss

Financial losses which are not attributable to physical harm caused to the claimant or his property. It includes loss of profits, loss of trade or loss of investment revenue.

There is a separate set of rules relating to economic loss because the courts have felt the need to ensure that a defendant does not attract limitless liability as a result of his actions. Most conduct that amounts to a tort affects a finite number of people and gives rise to largely detriminate harm. The sorts of situations that fall within pure economic loss tend to lack these limiting factors so a defendant could be lianle to a large number of claimants on the basis of a single incident. 

Pure economical loss which is not consequential on physical damage to the claimant's property is not recoverable in tort. Therefore, most cases turn on whether or not the particular loss suffered is pure economic loss. Economic losses can be caused by ...

  • Damage to property
  • Acquisition of defective goods or property
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Special Duties - Economic Loss

Damage to property - Economic loss which is a direct consequence of physical damage is an exception to the general rule that economic loss is not recoverable in tort. 

Spartan Steel & Alloys Ltd v Martin & Co Ltd [1973] 

Facts – The claimants manufactured stainless steel alloys at a factory 24 hours a day. The defendants' employees, who were working on a nearby road, damaged the electrical supply cable to the factory. The electricity board shut off the power supply to the factory for 14 1⁄2 hours until the cable was mended. The claimants scrapped a 'melt' in the furnace, reducing its value by £368. If the supply had not been cut off, they would have made a profit of £400 on the melt, and £1767 on another four melts, which would have been put into the furnace. They claimed damages from the defendants in respect of all three sums.

Legal principle – The claimants could recover the damage to the melt in progress and the loss of profit on that melt. They could not recover for the loss of profit during the time that the electricity was switched off. The damage to the melt in progress was physical damage and the loss of profit on it was a direct consequence of the physical damage. The further loss of profit was pure economic loss and not recoverable. 

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Special Duties - Economic Loss

Acquisitionof defective goods or property - The general position in relation to the claimant acquiring defective goods or property is the same as for other cases of economic loss: the loss is not recoverable in tort. However, there has been a series of cases in which this position was relaxed.

Anns v Merton London Borough Council [1978] Facts – The claimants were tenants of a block of flats built in accordance with plans approved by the council. The foundations were too shallow. The tenants sued for the cost of making the flats safe on the basis that the council either negligently approved inadequate plans or failed to inspect the foundations during construction. Legal principle – A duty of care was owed by the council and that if their inspectors did not exercise proper care and skill then the council was liable even though the loss suffered was economic loss. 

Murphy v Brentwood District Council [1991] Facts – A council approved plans for a concrete raft upon which properties were built. The raft moved and caused cracks in the walls of a property which was sold for £35,000 less that it would have done had it not been defective. Legal principle – The House of Lords overruled Anns and held that the council was not liable in the absence of physical injury. 

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Special Duties - Negligent Misstatement

Liability in tort is based upon the defendant's conduct or, occasionally, his failure to act. It was long accepted that negligent or unintentional statements, however inaccurate or misleading, could not provide the basis for an action to recover financial loss caused by reliance on that statement.

Hedley Byrne v Heller & Partners Ltd [1964] - Restricted negligent misstatements to those of a special relationship. The term “special relationship” which must be between plaintiff and defendant before there can be liability was not fully defined but for its existence seems to be:

A, a reliance by the claimant on the defendants specialist skill and judgment;
B, reasonable expectation of knowledge on the part of the defendant, that the claimant would be relying on that statement;
C, it was reasonable for the plaintiff to rely on the defendant;
D, there had to be an assumption, either explicit or implicit, of responsibility on behalf of the defendant.

Third Parties - Where the defendant makes a statement which is communicated to the claimant by a third party and the claimant suffers loss, there still may be sufficient proximity for liability to arise for the defendant's negligent misstatement as long as there is a special relationship between defendant and claimant (Spring v Guardian Assurance Plc [1995])

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Special Duties - Psychiatric Injury

To limit the number of claims made in psychiatric injury, the injury suffered must be medically recognised conditions. These can post-traumatic stress disorder (PTSD), pathological grief, personality disorder or miscarriage.

In addition, the psychiatric damage must be caused by a 'sudden event'. Alcock v Chief Constable of South Yorkshire [1992] - Lord Ackner stated that 'Shock...involves the sudden appreciation by sight or sound of a horrifying sight/sound or event, which violently agitates the mind. 

Secondary Victims must satisfy the tests...

  • There must be a close relationship of love and affection with the primary victim.
  • Ordinary passers-by may be able to claim if the incidentwas 'particularly horrific'.
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Vicarious Liability

Vicarious liability arises as a result of the relationship between the person who commits the tort and a third party. Relationships may be...

  • employee and employer
  • principal and agent
  • business partners
  • vehicle owners and delegated drivers

General principles of establishing a vicarious liability are...

  • a relationship that is recognised as giving rise to a vicarious liability
  • a tort must have been committed by the relevant party to that relationship
  • the tort must have been committed as part of the dealings of that relationship

For employee/employee...

  • the person who commits the tort must be an employee as opposed to an independent contractor
  • the employer must have committed a tort
  • the tort must have been committed in the course of employment
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Vicarious Liability - Tests

Control Test - Distinguishes an employee and an independent contractor on the basis of whether the employee had the right to control the nature of the work done and most importantly, how it must be done. Yewen v Noakes [1880]

The Organisation or Intergration Test - Makes a distinction between a contract of service whereby 'a man is employed as part of a business and his work is done as an integral part of the business' and a contract for services whereby 'work, although done for the business, is not integrated into it but is only accessory to it'. Stevenson, Jordan and Harrison Ltd v McDonnell and Evans [1952]

Economic Reality Test - Sometimes called the 'multiple' or 'pragmatic test'. In Ready Mixed Concrete Ltd v Minister of Pensions [1968] it was held that there were three conditions that had to be met before a worker would be considered to be an employee:

1 The employee must provide work or skill for the employer in return for payment of a wage or some other remuneration.
2 The employee agrees, expressly or impliedly, that they will work under the control of the employer.
3 All other circumstances are consistent with the situation being characterised as a contract of employment. (
Payment/Tax/Working Hours/Equipment/Independence)

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Vicarious Liability - Has a tort been committed?

There can be no vicarious (secondary) liability if there is no direct (primary) liability. If the employee does not satisfy the requirements of a tort, the employer cannot be held vicariously liable. 

If the employee has committed a criminal offence, this may give rise to liability if the elements of a tort were also satisifed. For example, an employee who attacks a customer will also have satisfied the requirements of the tort of battery, so the situation may give rise to vicarious liability. 

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Vicarious Liability - The Course of Employment

An employer is not liable for all torts commited by an employee, only those which take place during the course of employment. Rather than timing or location of the employment, it is accepted that course of employment is more concerned with the duties of employment: what the employee is employed to do. There are two situations which are accepted as falling within the scope of course of employment...

  • acts by the employee that are authorised by the employer;
  • acts which, although not authorised by the employer, are so closely connected with what the employee was supposed to be doing that they can be considered as carrying out an authorised act in an unauthorised, or wrongful, manner.

If an employer has explicitly prohibited an employee from acting in a particular manner or taking on a certain task, you might expect that acting contrary to these instructions would take the employee outside the course of employment. However, this is not always the case as the courts have made a distinction between prohibitions relating to the manner (how the employee should do the job) and scope (what the employee should do).

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Figure 4.2


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Vicarious Liability - Unlawful Acts

The deliberate commission of a criminal act by an employee may not automatically be taken outside the course of employment, as the courts have developed a test to determine whether an employer will be vicariously liable for intentional wrongful acts of employees.

Lister and Others v Hesley Hall Ltd

Concerning: intentional wrongful acts

Facts – The claimants were residential students at a school for difficult children owned by the defendant. One of the wardens employed by the defendant was sexually abusing the children in his care and was eventually subjected to criminal proceedings. The claimants sought to hold the defendant vicariously liable for the harms they suffered as a result of the abuse.
Legal principle – The House of Lords adopted the 'closeness of connection' to determine whether an intentionally wrongful act by an employee would fall within the course of employment. Here, the sexual abuse occurred on the employer's premises whilst the employee was engaged in performing his duties of caring for the children. As such, there was a close connection between the employment and the abuse so the employer would be vicariously liable. This was particularly so as there was an obvious risk of sexual abuse in the circumstances so the employer should have been alert for it. 

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Vicarious Liability - Closeness of connection

The closeness of the connection test requires an assessment of the link between the employee's wrongful act and the tasks that he was supposed to be carrying out. This picks up on the established position of finding vicarious liability if the situation can be characterised as an unauthorised way of carrying out an authorised task.

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Vicarious Liability - Employer's Indemnity

As vicarious liability only arises if the employee has committed a tort, the employer and employee are regarded as joint tortfeasors. This means that the employer may be able to recover some of the cost of paying damages to the claimant from the employee. There are two ways in which this could occur...

  • Civil Liability (Contribution) Act 1978 - Section 1 (1) allows a defendant who has paid damages to a claimant to recover a contribution from any other defendant who is responsible for the harm or loss caused (whether liability is joint or several). The quantification of the contribution is decided on the basis of what is 'just and equitable' in the circumstances of the case, section 2 (1), but could cover the whole amount of damages paid to the claimant if the court felt that the employer, although vicariously liable for the employee's tort, was entirelt blameless.
  • Common Law Indemnity - In Lister v Romford Ice & Cold Storage, the House of Lords held that an employer could obtain an indemnity (the full cost of the damages paid to the claimaint) if the loss or injury had been caused by the employee's breach of contract (in this case, breach of the implied duty to exercise reasonable care and skill). An employer cannot claim an indemnity at common law unless he is in no way to blame for the employee's conduct.
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Employers' Liability

An employer has a common law duty to take reasonable care to ensure the safety of his employees. This is a personal and non-delegable duty which means that the employer cannot escape the liability by claiming to have passed the responsibility for the employee's safety to another party, i.e. an independent contractor. Employer's liability reflects the ordinary principles of negligence in that only injuries that have been sustained by a failure to to take reasonable care will give rise to liability...

  • the duty to provide safe premises and a safe place to work - Safe premises is concerned with the building itself and structural aspects of it such as the floors (Latimer v AEC Ltd). Safe equipment  is where the employer must provide safe and appropriate equipment and ensure that it is properly maintained. This duty is supplemented by the Employers' Liability (Defective Equipment) Act 1969, defining equipment as 'any plant and machinery, vehicle, aircraft and clothing' (Knowles v Liverpool County Council). 
  • the duty to provide safe plant, materials and equipment
  • the duty to provide a safe system of work and safe working practices - Safe system of work, four features need to be covered - physical layout of job, sequence of work, provision of warnings/notices & need to improve in response to particular circumstances (Speed v Thomas Swift)
  • the duty to provide a competent staff as colleagues.
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Employers' Liability - Breach of statutory duty

The most commonly encountered statutory duties arise from the Health and Safety at Work etc. Act 1974, although there are others. Claims for breach of statutory duty therefore must commonly arise in the context of employment. If an employer breaches his statutory duty and this results in injury to the employee, then this may give rise to a civil claim. Not all statutes give tise to a civil claim if breached! A few statutes expressly state that a claim in tort will be allowed if they are breached...

  • Consumer Protection Act 1987
  • Misrepresentation Act 1967
  • Mineral Workings (Offshore Installations) Act 1971

However, most statutes are silent as to whether an action in tort arises in the event of a breach. The courts will first look to see if there has been a precedent set in case law deciding the issue of civil liability. If there is no precedent, the court will consider a range of factors in deciding Parliament's intention in enacting the statute. Most importantly, if the statute was designed to protect a limited class of individuals, then it is more likely that a claim in tort will be allowed. The courts will also look to see whether the statute provides a remedy for its breach. If the statute providing protection to a limited class of individuals provides no remedy for its breach then the courts are likely to infer that Parliament intended for a civil claim to lie - otherwise, those protected by statute would have no remedy at all in respect of the protection that the statute offered.

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Employers' Liability - Element's of the tort

  • statutory duty owed to the claimant - If the statute protects a limited class of people, then the claimant must establish that they are a member of that class. Hartley v Mayoh & Co Facts – The defendants were in breach of the Factory and Workshop Acts 1901, 1907 and 1908 by negligently miswiring electrical switches at a factory. A fireman, called to a fire at the factory, was electrocuted. Legal principle – The claim, brought by the deceased fireman's widow, failed. The fireman was outside the protected class, since the statutes protected factory workers, not visitors to the factory. 
  • breach of duty by the defendant - The claimant must establish that the defendant was in breach of duty which is determined by the wording of the statute. Some statutes impose strict liability. The statute will impose an absolute requirement which, if unmet, will be a breach of duty even if the breach is not the defendant's fault. John Summers & Sons Ltd v Frost - Facts – The claimant, a maintenance fitter, was employed by the defendants in a steel works. While working on a power-driven grinding machine, his thumb was injured. He brought an action for damages for breach of statutory duty under section 14(1) of the Factories Act 1937. Legal principle – The Act provided that 'Every dangerous part of any machinery, other than prime movers and transmission machinery, shall be securely fenced . . .'. The defendants argued that it would be impracticable to fence their machinery. However, the House of Lords refused to accept this. Liability was strict. 
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Employers' Liability - Element's of the tort

  • damage - The damage suffered by the claimant must be of the type which the statute was intended to protect. Gorris v ScottFacts – The defendant, a ship-owner, undertook to carry the claimant's sheep from a foreign port to England. On the voyage some of the sheep were washed overboard by reason of the defendant's failure to take a precaution made under section 75 of the Contagious Diseases (Animals) Act 1869. Legal principle – The Act was designed to prevent the loss of livestock through contagious diseases. Since the loss suffered was different, the claim did not succeed. 
  • causation - the final element in the tort is that there must be a causal link between the defendant's breach of duty and the claimant's loss. Where the breach of statutory duty is not the only cause of the defendant's injuries, it is long enough that it materially contributed to it.
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Employers' Liability - Defences

An employer could seek to limit or avoid liability by relying on the defences of:

  • consent (volenti non fit injuria) - the defence of consent is not available to an employer who is in breach of his own statutory duty. This is a matter of public policy. However, consent is available where an employee sues an employer for being vicariously liable for a colleague's breach of statutory duty. With the exceptions in mind, the defence of consent will be generally be available where there has been a breach of statutory duty.
  • contributory negligence - this is generally available. However, in relation to factory workers, the courts are more reluctant to find contributory negligence against an employee.
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Occupiers' Liability

Prior to the Occupiers' liability Act 1957 statute, the extent of liability owed by an occupier depended upon the nature of the relationship with the person injured. The OLA 1957 abolished this in favour of two categories :

  • lawful visitors, who were protected by the Act
  • all others, who were not protected (most of these are now protected by OLA 1984)

Section 1 (1): The purpose of the Act is to 'regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them'. 

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Occupiers' Liability

Definition of an occupier comes from common law, being a person who exercises an element of control over premises. As there are varying degrees of control that can be exercised, this means that there can be more than one occupier. This includes physical control of premises and legal control of premises. Liability falls upon the person who is in control of the land.

The definition of premises is wide nd covers not only land and buildings but also 'any fixed or moveable structure, including vessel, vehicle or aircraft' (Section 1 (3)(a))

There are three types of visitors...

  • those with express permission - the occupier has the right to limit the way in which a visitor behaves whilst on his premises, and a visitor who deviates from this will be a trespasser, not a lawful visitor (OLA 1984)
  • those with implied permission - a person who enters premises wishing to speak to the occupier or to make a delivery has implied permission to do so. If an occupier knows that his land is used by trespassers but does nothing to prevent them from entering his land, this may amount to implied permission to enter (Lowery v Walker)
  • those with a right to enter - the law gives rights of entry to certain categories of people which render them within the definitionof lawful visitor irrespective of the wishes of the occupier of the land, e.g. police officers entering under warrant.
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Occupiers' Liability - Duty of Care

Section 2 (2) : The common duty of care is ... to take such care in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in the using the premises for the purposes for which he is invited or permitted by the occupier to be there.

Although there is similarity with the standard of cafre in negligence, there is also an important distinction as an occupier is empowered by statute to determine the boundaries of his liability. Section 2 (1), OLA 1957 provides that an occupier may extend, restrict, modify or exclude his duty to visitors by agreement or otherwise. As the occupier controls the extent of the permission to enter, a visitor who acts in a manner contrary to that permission becomes a trespasser. 

The duty is to ensure that the visitor is not injured whilst on the premises. This is not the same as a duty to ensure that the premises are safe so the duty may be satisfied if the occupier displays warning signs or cordons off areas that are dangerous.

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Occupiers' Liability - Duty of Care


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Occupiers' Liability - Warning Signs

Section 2 (4)(A): Where damage is caused to a visitor by a dnager of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.

The following factors should be taken into account when considering whether a warning sign was 'enough to enable the visitor to be reasonably safe':

  • How specific was the warning? The warning should be sufficiently precise so that the visitor knows what risk he is facing.
  • How obvious was the danger? Hidden dangers necessitate greater efforts to call attention to them than readily apparent risks.
  • Is the sign combined with other safety measures? The use of fencing or barriers emphasises the need for safety.
  • What sort of visitor is targeted? Something more than a sign may be needed to guard against risks that are linked to children.
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Occupiers' Liability - Independent Contractors

Section 2 (4)(b), OLA 1957 specifies three circumstances in which an occupier is liable for harm caused to a visitor by the work of an independent contractor:

  • If it is unreasonable to entrust the work to an independent contractor, i.e. if it was work that the occupier could, in the circumstances, have carried out himself.
  • If the occupier failed to take reasonable steps to ensure that the contractor was competent.
  • If the occupier failed to take reasonable care to ensure that the work was carried out to an appropriate standard.

The occupier is only expected to do what is reasonable to check the quality of work and this will vary according to the complexity and the technical intricacy of the work...

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Occupiers' Liability - Defences

The following are ways in which an occupier could seek to limit or avoid liability:

  • Volenti non fit injuria: this asserts that the visitor consented to the risk of injury as he knew of and understood and accepted the risk of injury (Section 2(5), OLA 1957)
  • Reliance on exclusion or limitation of liability by the use of notices.
  • Contributory negligence: under the Law Reform (Contributory Negligence) Act 1945, damages awarded to the claimant will be reduced to the extent that the court accepts that he is responsible for his own injuries or loss.

Contributory negligence and volenti non fit injuria (consent) are general defences which are available to most torts in addition to occupier's liability.

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Occupiers' Liability (1984)

OLA 1984 extended the protection of the law to cover:

  • trespassers
  • people lawfully exercising private rights of way
  • visitors to land covered by section 60 of the National Parks and Access to the Countryside Act 1949 and 'right to roam' legislation.

The scope of the protectionis narrower than OLA 1957 in relation to lawful visitors as, according to Section 1(1), OLA 1984, an occupier may be liable for injuries only and not damage to property. Other than this and its application to trespassers, the provisions of OLA 1984 mirror OLA 1957.

There is no statutory definition of a trespasser, but case law has formulated a definition which has been generally accepted. A trespasser is 'someone who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to'.

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Occupiers' Liability (1984)

Section 1(3) OLA 1984 outlines three conditions that must be satisfied for a duty to arise:

  • the occupier must be aware of the danger or have reasonable grounds to believe that it exists (subjective);
  • he knows or has reasonable grounds to believe that a trespasser is in the vicinity of the danger (subjective);
  • the risk is one against which, in all the circumstances, he may reasonably be expected to offer some protection (objective: based on the reasonable occupier).
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Nuisance - Private Nuisance

'The very essence of private nuisance ... is the unreasonable use of man of his land to the detriment of his neighbour'.

Private nuisance focuses around interference with land or property that stems from neighbouring land or property. This can take several forms (residential areas, flats, activities/nature, factory, public places). This emphasises that the two central characteristics of private nuisance are:

  • protection of land or property
  • from unreasonable interference

As private nuisanceis concerned to protect interests in and enjoyment of land, it was considered fundamental that a person could only enjoy the protection of this tort if he had the right to exclusive possession of the land, e.g. the owner or leaseholder. This placed limitations on the availability of an action in private nuisance as visitors, lodgers and family members were not entitled to claim.

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Nuisance - Private Nuisance (Unreasonable use of l

An actionable nuisance requires that the use of the land which is the source of the nuisance is unreasonable. Forseeability is an element of reasonableness so that interference with the claimant's quiet enjoyment of land that is a forseeable result of the defendant's use of his/her own land will be unreasonable. The courts have taken the following factors into account when determining whether or not particular use of land is unreasonable:

  • character of the neighbourhood - only a consideration if the nuisance complained concerns inconvenience to the claimant (loss of sleep, enjoyment of property etc)
  • sensitivity of the claimant - the existence of the nuisance is determined by considering the effect on a reasonable person and ordinary land use. If the claimant was unusually sensitive or was using his land for an unusual purpose that made it particularly sensitive to disruption, not able to rely on nuisance.
  • duration of the nuisance - nuisance must be continuous (every night or week, etc)
  • public benefit - the greater the utility of the defendant's actions, the less likely it is that it will amount to an actionable nuisance.
  • malice of the defendant - one of the rare occasions in law where malice on the part of the defendant contributes to liability. If the defendant acts out of hostility or spite, his actions are likely to fall within private nuisance even though they would not otherwise amount to an unreasonable use of land.
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Nuisance - Private Nuisance

Private nuisance is not actionable per se, thus the claimant must suffer some harm, injury or damage in order to succeed with a claim.

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Nuisance - Public Nuisance

There are two requirements which must be satisfied...

  • the nuisance has affected a class of people; and
  • the claimant has suffered special damage.

The distinction betwwen private and public nuisance is based upon the effecgt of the nuisance, not the nature of the nuisance itself. It is because a class of people is affected that public nuisance overlaps in terms of civil and criminal activity, hence, many actions are initiated by th Attorney-General. This element of injury and/or disturbance to a group is the key feature that characterises public nuisance. (Attorney-General v PYA Quarries). Examples of classes of people include...

  • local communities
  • groups of individuals with a common interest
  • users of a public highway
  • small groups of people with common characteristics
  • indirect impact on the community.
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Nuisance - Public Nuisance

Although public nuisance requires inconvenience to a class of people, an action can only be brought of a particular individual (or individuals) suffer damage over and above the general inconvenience caused to the class. This requirement limits the multitude of claims that would succeed if public nuisance was actionable on the basis of interference only (just as private nuisance is limited by the requirement of a proprietary interest). The following kinds of damage fall within the scope of public nuisance...

  • personal injury, discomfort or inconvenience
  • damage to property
  • economic loss.
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Nuisance - Defences

In addition to general defences, the following defences are applicable to both public and private nuiscance except prescription which is applicable to private nuisance only...

  • effective defences: prescription, statutory authority
  • ineffective defences: coming to the nuisance, public benefit, acts of others.

Effective defences...

  • Prescription - a claim that the defendant has acquired the right to act in a way that constitutes a private nuisance because he has done so for 20 years without interruption. (Sturges v Bridgman - from the start of nuisance not act!)
  • Statutory authority - defendant's conduct was authorised by statute, it is likely to provide a defence (planning permission, etc)

Ineffective defences...

  • Coming to the nuisance - unless prescription authorises the nuisance, it is no defence to argue that it has carried on for a long time without attracting complaint.
  • Public benefit - Benefits the public!
  • Actions of others - if acting alone not a nuisance, but together a nuisance.
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Nuisance - Remedies

The principal remedies for nuisance are damages and injunctions. Damages are available to compensate a claimant for physical damageto his land and in relation to personal discomfort and inconvenience. Generally, an injunction will not be granted if damages are awarded. Given the need to balance the interests of the claimant and defendant, an injunction may reflect this by limiting the nuisance rather than prohibiting it entirely.

Abatement, or self-help, involves the removal of the nuisance by the claimant. In other words, the claimant rectifies the nuisance himself. As this usually involves the entry of the claimant onto the defendant's land, it generally requires prior notification unless there is an emergency situation (or if the situation can be abated without entry onto the defendant's land). If the criteria for the defence are not satisfied, the claimant may be liable for trespass to land if he enters the defendant's property.

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Rylands v Fletcher

Facts - The defendant engaged independent contractors to construct a resevoir to supply water to his mill. This was built over abandoned mine shafts which collapsed due to the weight of the water, causing water to flood into the claimant's colliery. The defendant had not been negligent and there was no basis for a claim in private nuisance as the defendant had taken reasonable care to select a competent and experienced independent contractor.

Legal Principle - The defendant's liability was established on the basis that 'the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it 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'. This was approved on appeal to the House of Lords with Lord Cairns describing the required use of land an 'non-natural use'.

This principle can be broken down into its composite elements:

  • collecting and keeping on land
  • non-natural use of land
  • likely to do mischief if it escapes
  • escapes and causes harm to property.
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Rylands v Fletcher - Collecting and Keeping

In R v F, the defendant collected water on his land and kept it there in a reservoir. The principle requires that something be brought onto the land by the defendant: liability cannot be established if something that occurs naturally on the land escapes and causes harm. 

It is important that the thing that is collected and kept on the land might be the thing that escapes but that this is not a requirement for liability. It may be the thing that is collected and kept on the land that causes something else to escape.

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Rylands v Fletcher - Non-natural use of land

The non-natural use of land in R v F was the construction of a reservoir. The meaning of 'non-natural use' has been explored in case law. 

Transco plc v Stockport MBC Concerning: non-natural use of land, contemporary circumstances

Facts – Escape of water from a pipe owned by the defendant local authority caused an embankment to collapse, which exposed a gas pipe, thus necessitating expensive emergency remedial work by the claimant.

Legal principle – The House of Lords did not accept that this fell within the scope of Rylands v. Fletcher on the basis that the supply of water through pipes was normal and routine and not something that presented a particular hazard. The risk presented by any particular activity had to be considered by contemporary standards. As the pipe carried no more risk of fracture leading to the escape of water than any other pipe, it could not be considered a non-natural use of land. Lord Hoffmann noted that damage to property caused by leaking water was a risk against which insurance was available, which supported the conclusion that this situation did not meet the high threshold of exceptional risk arising from non- natural use that is required if a claim under Rylands v. Fletcher is to succeed. 

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Rylands v Fletcher - Likely to do mischief if it e

This requirement emphasises that the thing collected and kept on land needs not to be dangerous in itself provided that it is likely to cause harm if it escapes. In R v F, the water was not dangerous when it was contained in the reservoir but it was dangerous when it escaped.

Crowhurst v Amersham Burial Board - yew trees were planted in the defendant's cemetery but the branches hung into a neighbouring field and were eaten by the claimant's horse which died.

Jones v Festiniog Railway - a passenger train emitted sparks which set fire to the claimant's haystack.

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Rylands v Fletcher - Escapes and Causes harm

If the thing that has been brought onto the defendant's land escapes and causes harm, liability under R v F will be complete (unless the defendant can rely upon a defence) provided that harm is caused to the claimant's property.

There was case law that suggested that a claimant could recover under R v F for personal injury but it is now generally accepted that such claims should be brought under negligence and that R v F should only be used in relation to claims for damage to interests in property.

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Rylands v Fletcher - Forseeability

One aspect of the requirement that the escpae causes harm that needs to be addressed is whether the potential for harm needs to be forseeable. In R v F, it was clear that the tort was intended to be one of strict liability, i.e. if something escaped from land and caused harm, the defendant would be liable even if this was not something that he coudl have predicted or guarded against.

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Rylands v Fletcher - Defences

  • Contributory negligence - if the claimant was partly to blame for the damage to his property, e.g. failing to take proper precautions against the sort of harm which occurred, any award of damages may be reduced to reflect this.
  • Consent - if the claimant expressly or impliedly consented to the collecting and keeping of the thing that escaped, he cannot then hold the defendant liable for the consequences of the escape.
  • Act of God - this relates to unforeseeable natural circumstances that cause the escape. For example, if heavy flooding had caused the water to escape in R v F, there would have been scope to argue that the flooding was caused by an act of God.
  • Acts of a stranger - if an unknown third party takes action which leads to the escape, then the defendant will avoid liability.
  • Statutory authority - it may be that the defendant's actions are authorised by statute, in which case he will not be liable, provided that he has acted in line with statutory requirements.
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Rylands v Fletcher - Relationship to other torts.


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Trespass To Land

A direct and 'unjustified interference with the possession of land... whether or not the entrant knows that he is trespassing'.

There are four elements which require further exploration:

  • there must be direct interference with the land - this is a key means of differentiating between trespass to land and other torts (private nuisance/negligence/etc)
  • the interference must be voluntary - a person who is pushed or thrown onto land is not there voluntarily so cannot be liable but the person who pushed him there may be liable.
  • the defendant need not be aware that they are trespassing - there is no requirement that the defendant is aware that he is trespassing by doing so. This gives rise to the possibility of innocent trespass if the defendant is mistaken about the ownership of land or about the availability of permission.
  • there is no requirement for harm or damage - trespass to land is actionable per se (without any requirement for harm). This is because it is a tort which protects land against interference by allowing the owner to exclude other people and property rather than compensating for damage caused to property.
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Trespass To Land - Manifestations

There are three concepts that must be understood in order to appreciate the scope of trespass to land and to ensure that you recognise it when it arises:

  • the meaning of 'land' - 'soil' and 'property' are commonly used synonyms for 'land' but the definition adopted in relation to trespass is far broader. It includes not only the soil itself and any property built upon it as well as temporary structures and plants but also, with limits, the airspace above the land and the subsoil below the ground.
  • the interest in land which is protected - it is common to refer to the owner of the land in relation to trespass but the tort actually protects against interference with the possession of land, rather than ownership (although the two may frequently coincide). If there is a division in ownership and possession, i.e. landlord and tenant, the interest that is protected is the party who is entitled to exclusive possession.
  • trespass ab initio - a person who has permission to enter land is not a trespasser. However, an initially lawful entry becomes an actionable trespass if the defendant abuses their permission to enter the land. This is trespass ab initio (from the beginning) as the abuse of permission negates it from the point of entry onto the land. 
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Trespass To Land - Defences

  • Consent - a person who has permission to enter is not a trespasser. Ensure that the defendant has not exceeded the limits of his permission.
  • Contractual licence - such as payment of an entry feww or purchase of tickets for a sporting event.
  • Lawful authority - particular people may have permission to enter particular premises in particular circumstances such as court bailiffs and the police (Police and Criminal Evidence Act 1984).
  • Necessity - this justifies trespass in emergency situations to deal with a perceived threat. It does not matter if the threat is real provided that the defendant believes that it is real.
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Trespass To Land - Remedies

In addition to damages and injunction, there are two remedies or particular importance to trespass to land...

  • Self-help - a landowner may use reasonable force to repel or expel trespassers provided that the trespasser has not obtained full possession of the land, i.e. force cannot be used to evict to evict squatters. Self-help can also be used to remove objects placed on land, e.g. a landowner can cut branches from trees that are enroaching onto his land, although he must ensure that the property (the cut branches) is returned to the possession of its owner.
  • Possession orders - if a trespasser has full possession of land, an order for possession must be obtained to restore the land to its rightful owner.
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Trespass To Person - Battery

Battery is the intentional and direct application of force on another person.

  • Intentional use of force - requires that the defendant intentionally makes contact with the body or clothing of the claimant. (Letang v Cooper)
  • Direct application of force - requires that force is applied directly to the body of the claimant as a result of the defendant's intentional act. This requirement of directness has been interpreted by the courts as contact by a third party, contact made indirectly & direct contact with the wrong person.
  • Level of force - Reference to 'force' to describe the contact required between defendant and claimant is misleading. There is no requirement that battery causes harm, indicating that the level of force may be extremely low. The reference to anger has been interpreted to mean that the contact must be 'hostile' which has in turn been interpreted to mean that actions were 'unlawful' in the sense of being con-sensual.
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Trespass To Person - Assault

An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person. It requires no physical contact, unlike battery.

  • Intentional act - assault requires a deliberate act by the defendant. Although historically, 'no words or singing can amount to an assault', it is now clear that assault can be committed by words as well as conduct.
  • Reasonable fear - the conduct must cause the claimant reasonable fear that attack is imminent. The reasonableness is judged according to the claimant's perceptions of the defendant's actions. The claimant must believe that the threatened attack is possible and will be carried out.
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Trespass To Person - Defences

  • Lawful authority - certain interferences with the person are authorised by statute such as the Police and Criminal Evidence Act 1984 which entitles police to use reasonable force in furtherance of an arrest and the Mental Health Act 1983 which authorises the compulsory detention and treatment of those suffering from specified mental disorders.
  • Self-defence - a person may use such force as is reasonable to protect against an actual or perceived threat of harm against themselves or another person. The force used must be proportionate to the threat, i.e. it must be no more than is necessary to repel the threat. Force which is disproportionate will not fall within self-defence.
  • Parental authority - the right of a parent to use physical force to chastise a child is hugely debated topic and one which is increasingly cited as involving human rights issues due to the possibility of contravention of Article 3 of the ECHR (freedom from inhumane and degrading treatment). The use of force in punishing a child may amount to battery if the level of force is disproportionate to the child's behaviour or if the child does not understand the purpose of the punishment.
  • Consent - if a person has consented to the application of force to their body a claim for battery will be defeated. Consent may be express or implied. Consent must be given freely by a person who has mental capacity to exercise choice and to give or withhold consent.
  • Necessity - intereference with another person may sometimes be necessary to protect them from a greater evil (stop them falling off a cliff).
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Trespass to Person - False Imprisonment

Focuses on situations in which the claimant's liberty or movement is constrained whether this is by arrest, detention or other confinement.

Itrequires total restraint of the claimant's movements:

  • It is not enough that the defendant cannot go where he wants provided that he can go somewhere.
  • If there is reasonable means of escape, there is no false imprisonment. (Bird v Jones, could leave by going back)
  • Restraint need not be physical. A person who is told not to leave and complies with this instruction suffers a total loss of freedom. 

An action for false imprisonment may arise if the claimant was not aware that he was being detained at the time of detention (Murray v Ministry of Defence, claimant unaware if she could leave whilst house was being searched).

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Trespass to Person - False Imprisonment

  • Reasonable condition for release - if the defendant's detention of the claimant is contingent upon the performance of a reasonable condition, i.e. payment of a toll or delay based on the need to wait for appropriate transport, but the claimant refuses to comply, his continued detention will be considered voluntary.
  • Lawful arrest - an arrest that is made properly according to the requirements of the Police and Criminal Evidence Act 1984 (as amended) will not amount to false imprisonment nor will a detention made in furtherance of the common law right to affect a citizen's arrest.
  • Medical detention - there are circumstances when a person requires protection from their own behaviour and thus detention may be authorised by the provisions of the Mental Health Act 1983. Individuals suffering from particular contagious diseases may be detained against their will according to the Public Health (Control of Disease) Act 1984.
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Trespass To Person - Wilkinson v Downton

Concerning: indirect harm
Facts – The defendant told the claimant that her husband had been seriously injured in an accident. This was untrue and had been meant as a practical joke. The claimant suffered a serious shock which led her to suffer adverse physical symptoms for a period of time.
Legal principle – It was held that a person who has 'wilfully done an act calculated to cause physical harm to the plaintiff - that is to say, to infringe her legal right to safety, and has in fact thereby caused physical harm to her' has provided a good cause of action (per Wright J). 

Despite its obvious potential, particularly as it pre-dated the development of cases concerning nervous shock, this case was rarely used in this jurisdiction. The requirements for liability were clarified in Wong v Parkside NHS Trust:

  • There must be actual harm (physical harm or recognised psychiatric illness). This differentiates this tort from other forms of trespass as they are actionable per se.
  • The defendant must have acted intentionally.
  • The conduct must be of such degree that it is calculated to cause harm so that the defendant cannot say he did not mean to cause it.
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Trespass To Person - Harassment

Prior to the enactment of the Protection from Harrassement Act 1997 (PFHA), Wilkinson v Downton was one of a variety of means used to impose tortious liability on those who caused distress and anxiety to others. The introduction of a statutory tort of harassment under section 3 PFHA obviated the need for creative use of other torts.

Section 1 - Harassment is defined as the pursuit of a course of conduct that the defendant knows or ought to know amounts to harassment of another.

There is no requirement that the claimant suffers physical or psychological harm as a result of the harassment. The tort is satisfied if the claimant experiences alarm or distress as a consequence of the defendant's actions, something which will vary according to the character of the victim (some people are more easily distressed than others). Once harassment is established, the claimant may obtain an injunction to prevent further harassment.

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Liability for Defective Products

Defective products can give rise to liability in a variety of ways. Claims may arise in contract law or consumer law involving statutory devices including the Sales of Goods Act 1979, the Sale and Supply of Goods Act 1994, the Supply of Goods and Services Act 1982, the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contract Regulations 1999.

There is a distinction between causes of action in contract and tort in relation to defective products. In relation to tort, liability can arise...

  • under the common law in negligence; and/or
  • under the Consumer Protection Act 1987
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Liability for Defective Products

The basis of the common law position can be found in the 'narrow rule' from Donoghue v Stevenson.

Concerning: duty of care between manufacturer and ultimate consumer
Facts – Mrs Donoghue and a friend visited a café. Mrs Donoghue's friend bought her a bottle of ginger beer. The bottle was made of opaque glass. When filling Mrs Donoghue's glass, the remains of a decomposed snail - which had somehow found its way into the bottle at the factory - floated out. Mrs Donoghue developed gastroenteritis as a result.

Legal principle – Lord Atkin explained the narrow rule as follows:. . . a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.

There are a number of elements to this rule: manufacturer, products, ultimate consumer and intermediate examination

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Liability for Defective Products

Manufacturer - a manufacturer has been held to include any party who creates the danger inherent in the goods such as: assemblers, installers, service engineers/repairers, retailers and suppliers.

Products - although Donoghue v Stevenson concerned drinks, a 'product' is considered to be anything manufactured which is capable of causing damage including such diverse articles as underpants, lifts and hair dye. It extends to the packaging, labelling and safety instructions.

Ultimate Consumer - the 'ultimate consumer' of a product is construed very widely. It includes anyone who may forseeably be affected by the defective product.

Intermediate examination - this area is linked to causation in negligence. In essence, if an intermediary is reasonably expected to make an examination of the product which would (or should) have revealed the defect and then fails to do so, then this may be sufficient to break the chain of causation. However, if the intermediate examination of the product is only forseeable (rather than likely), thiss will not be sufficient to absolve the manufacturer from liability (Griffiths v Arch Engineering Co). However, if the intermediate inspection reveals a defect, the manufacturer will probably avoid liability. This will also be the case if the intermediary ignores a clear warning to examine the product before use. A manufacturer who had no reason to believe that an intermediate examination will take place will be potentially liable.

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Liability for Defective Products

The Consumer Protection Act 1987

Any supplier of defective products within in the EU (even products which are imported from outside the EU) is strictly liable in tort if the defect causes damage.

Section 2(1), Liability for defective products:

(1) Subject to the following provisions of this part, where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage.

Therefore, the claimant is not required to show that the defendant is at fault or has been careless. All the claimant needs to do is prove that a defect in the product resulted in injury.

Damage includes loss of or damage to personal property provided that it exceeds £275 in value (section 5(4)). However, this £275 minimum only applies to property damage not to personal injury (section 5(1); section 5(4)). It does not include the cost of repairing or replacing the product itself (section 5(2)). Damage caused to business property is outside the scope of the Act (section 5(2)).

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Liability for Defective Products

The meaning of defect is defined in Section 3:

  • (1) Subject to the following provisions of this section, there in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes 'safety', in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.
  • (2) In determining for the purposes of subsection (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including -
  • (a) the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;
  • (b) what might reasonably be expected to be done with or in relation to the product; and
  • (c)the time when the product was supplied by its producer to another;

In essence, defective products are 'unsafe': the Act applies to dangerous products as oppposed to products which are simply defective.

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Liability for Defective Products

'Product' is widely defined in section 1(2) as including: any goods, electricity, a product which is compromised in another product (whether by virtue of being a component part or raw material or otherwise).

'Goods' are further defined in section 45(1) as including: substances, growing crops, things comprised in land by virtue of being attached to it, any ship, aircraft or vehicle.

Section 2(2) (WHO IS LIABLE?) 

  • the producer of the product;
  • any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product, has held himself out to be the producer of the product;
  • any person who has imported the product into a Member State from a place outside the Member States in order, in the course of any business of his, to supply it to another.

The producer of the product is usually its manufacturer. However, 'producer' also includes the manufacturers of the component parts of the product. Therefore, if a component is faulty, both the manufacturer of the part and the whole product are liable.

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Liability for Defective Products

Liability is joint and several (section 2(5)) and may not be excluded (section 7). Below are the defences.

  • Section 4(1)(a) - The defect was attributable to compliance with legal requirements.
  • Section 4(1)(b) - The defendant did not supply the product to another (applies to be stolen or counterfeit goods).
  • Section 4(1)(c) - The defendant did not supply the product in the course of a business.
  • Section 4(1)(d) - The defect did not exist in the product at the time it was supplied (covers wear and tear, misuse and 'best before' dates on perishable foodstuffs or medical supplies).
  • Section 4(1)(e) - This is the 'development risks' (or 'state of the art') defence - the defendant must prove that the state of scientific or technical knowledge was such that the defect was unknown and unforseeable when the product was circulated.
  • Section 4(1)(f) - The manufacturer of component parts is not liable for a defect in the finished product which is wholly attributable to the design of the finished product or to compliance with the instructions given by the manufacturer of the finished product.

There is also a limitation period of 10 years from when the product was circulated by the defendant. Within those 10 years, the defendant must claim within 3 years from injury or damage. These restrictions do not apply to common law liability.

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Defamation - Slander and Libel

'Defamation is the publication of a[n untrue] statement which reflects on a person's reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him'.

Slander and libel are both forms of defamation that differ in two ways:

  • the manner in which the statement is publicised;
  • the consequences that are required before damages are paid.

In relation to slander, there are four exceptions to the requirement for special damage to be shown. Slander is actionable per se if the imputation is that the claimant:

  • has committed a serious criminal offence;
  • is unchaste or has committed adultery (female claimants only);
  • has a contagious or infectious disease that prevents others from associating with him; or
  • is unfit, dishonest or incompetent in relation to his trade, profession or business.

Libel must be permanent, and is actionable per se. Slander is non-permanent but requires special damage.

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Defamation - Availability

  • The dead cannot bring or defend an action for defamation; both parties must be alive.
  • There is a right to trial by jury if the case is not too complex: section 69, Supreme Court Act 1981. This may be waived if both parties agree.
  • Claims must be brought within 12 months: section 4A, Limitation Act 1980.
  • There is no public funding for defamation, hence, the tort favours those who can afford to protect their reputations.
  • Defamation involvesan unusual two-stage process. The judge determines whether the facts are capable of amounting to defamation whilst the jury decides whether the facts actually do defame the claimant.
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Defamation - Elements

  • The statement must be defamatory.
  • The statement must be about the claimant.
  • The statement must be published (libel).

The claimant must establish that the defamation refers to him. This is usually obvious if he is named or otherwise identified in the statement. A claimant may also have an action if a statement does not refer to him but there are grounds upon which others might think that it did (Newstead v London Express Newspaper Ltd)

The claimant need not be named provided that there is sufficient information from which he can be identified, even wrongly with the statement. It is relevant that the publisher intended to refer to someone else other than the claimant and did not know that the claimant existed or that others would think that the statement referred to him.

A statement which is defamatory to a broad class of persons; e.g. university lecturers, cannot be relied upon by individuals within that class unless they are specifically identified. Only if the class are defined sufficiently narrowly, e.g. lecturers in a particular subject at a specific university, so that it could be seen as referring to them as individuals, can it form the basis of defamation.

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Defamation - Defences

Absolute privilege - covers statements made during judicial and Parliamentary proceedings where there is an interest in ensuring that parties are able to speak freely without fear of legal proceedings. Any statements covered by absolute privilege cannot be relied upon in legal proceedings and so cannot be used as the basis for a defamation claim.

Qualified privilege - covers situations in which there is a moral or legal duty to disclose information even if it is unfavourable to the claimant, such as an employment reference. Disclosures covered by qualified privilege can only be the basis of a defamation claim if the defendant acted with malice in the making of the defamatory statement.

The Reynolds defence - considered qualified privilege for publication of defamatory statements in the public interest. (Reynolds v Times Newspaper - no explanations from original arguments etc). There is certain criteria to meet in order to qualify for the Reynolds defence.

Innocent publication - it is not defamation for a person, who is not the author, editor or publisher of the material, to reproduce the material that they did not believe contained defamatory comment provided that they took reasonable care in publishing the statement (Section 1, Defamation Act 1996).

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Defamation - Defences

Consent - a person who consents to publication cannot subsequently bring an action for defamation.

Justification - a statement which is true in relation to the claimant cannot be defamatory so the defendant may rely on the defence of justification if he is able to establisd the accuracy of the statement. The law requires only that he establishes that the central defamatory thrust of the statement is true; justification will still provide a defence if there are peripheral inaccuraciees in the statement (section 5 DA)

Fair comment - this defence applies to critical comment based upon true facts. It generally involves media comments about matters of public interest and the defence regards that the person making the comment must believe it to be based in truth and must not be acting maliciously. It is, in effect, opinion based upon true statements.

Offer of amends - this is not a defence, strictly speaking, as it allows a defendant to pre-empt legal proceedings. Defendant must make a suitable correction and apology, publishes these in a reasonable manner and pays compensation to the claimant. (section 2 DA).

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Defamation - Remedies

Damages - the primary remedy for a successful claimant is damages which, unusually, are determined by the jury following the issue of guidelines by the judge about the likely impact of their decision. The Courts and Legal Services Act 1990 provides the quantum of damages can be reassessed by the Court of Appeal if the award by the jury is inappropriate, such as the reduction from £250,000 to a smaller amount.

Injunction - there are two roles in defamation cases...

  • an interlocutory injunction can be obtained to prevent publication of defamatory material if the claimant is aware that this is likely.
  • an injunction can be sought after a successful defamation claim if the claimant can establish that there is a real risk of repetition of the publication.
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Defamation - Privacy or Freedom of expression?

Defamation focuses attention on the debate about the appropriate balance between an individual's right to privacy and the conflicting right to freedom of expression.

A v B plc

Concerning: privacy; freedom of expression
Facts – A professional footballer sought to prevent publication of 'kiss and tell' revelations on the basis that they interfered with his right to a private life. Legal principle – It was held that scurrilous stories of casual sexual encounters deserved little protection so the right of the other party involved and the newspaper to freedom of expression should prevail. The Court of Appeal was clear that the newspapers should be free to publish without constraint provided they were within the Press Complaints Commission Code.

The story in this case was true so the claimant could not rely on defamation to prevent publication; the case merely demonstrates the tension between privacy and freedom of expression. 

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Consent (volenti non fit injuria) - the basis of this defence is that a person who consents to harm or consents to an activity which carries a risk of harm should not be able to hold the perosn who caused that harm liable in tort. Consent is a complete defence; if it is argued successfully, the defendant will not be liable for the claimant's loss. Defendant must show that the claimant has knowledge of the risk involved and that they willingly accepted that risk. Illegality (ex turpi causa non oritur actio - there must be a close connection between the injury sustained by the claimant and the criminal enterprise in which he is involved. For example, if two theives were on their way to commit a burglary and one punched the other, there would be no defence of illegality to prevent a claim in tort for trespass to the person because the attack was unconnected with the planned criminal enterprise. Contributory negligence - unlike consent and illegality, contributory negligence is not a complete defence but a partial defence that reduces the level of damages payable to the claimant. It applies when the claimant's carelessness has in some way caused, or contributed to, his own injuries.

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Standard of care - the standard of care is that of the reasonably prudent person. In other words, a defence of contributory negligence will succeed if it can be established that the claimant failed to recognise that he was jeopardising his own safety if this would have been obvious to the ordinary person.

Apportionment of blame - if a defendant establishes contributory negligence, the court will look at the contribution of both parties to the harm suffered by the claim and apportion a percentage of responsibility to each party. The claimant's damageswill then be reduced by that percentage. There are two factors to take into account when deciding how to apportion blame: causation and culpability.

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Remedies - Damages

Primary remedy available in tort. The principle is that the award of damages should return the claimant to the position that they would have been in had the tort not occurred. This is not always straightforward as some tortious harms are less amenable to quantification than others.

Mitigation of loss - a claimant who suffers loss as a result of the defendant's tort is entitled to an award of damages to ensure that they are not 'out of pocket'.

Nominal damages - these damages are awarded when the claimant's rights have been infringed but little harm has been caused. This type of damages is frequently awarded in relation to torts which are actionable per se and cases in which the primary aim of the claimant was to obtain an injunction.

Contemptuous damages - these damages are also awarded when the level of harm caused is low. They differ from nominal damages in that the court feels that the action should not have been brought (even though the claimant has been successful in establishing the elements of a tort). To reflect the court's view that the claimant was wrong to bring a claim, an award of contemptuous damages is extremely low (1p).

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Remedies - Damages

Aggravated damages - these damages are awarded overand above the damages that are necessary to return the claimant to the position that he would have been in had the tort not occurred. They are additional sums of money to reflect that the initial harm was made worse by some aggravating factor, often injury to feelings or anxiety and distress caused by the defendant. (INJURY OR FEELINGS CAUSED BY THE DEFENDANT'S CONDUCT)

Exemplary damages - there is often some confusion about the distinction between aggravates damages and exemplary damages as the latter is also an additional award that reflects the court's disapproval of the defendant's conduct. (DEFENDANT'S CONDUCT , IRRESPECTIVE OF WHETHER IS INJURES THE CLAIMANT'S FEELINGS)

Damages for personal injury - the quantification of damages in personal injury cases is particularly complex due to the wide range of heads of damage that may arise. (wages, personal property, pain and suffering, private medical care etc).

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Remedies - Injunctions

An injunction is a discretionary remedy which takes the form of a court order that requires that the defendant behave in a particular way. This can take two forms:

Prohibitory: the most common form of injunction which requires the defendant to refrain from doing something; in other words, to stop committing the tort that he is committing.

Mandatory: these compel the defendant to take a particular action to rectify the situation that has arisen due to his tortious behaviour. As they require positive action, they are considered to be an onerous burden to impose opon the defendant and are relatively uncommon and in strictly limited circumstances.

Quia timet injunction - this is an injunction which is obtained prior to the comission of a tort in order to prevent its occurence. 

Interim injunction - this is also known as an interlocutory injunction and may be granted once an action has been commenced pending the full hearing of the issue. In other words, if a claimant initiates an action in nuisance, there will be a lapse of time before the claim is heard so the claimant may seek an interim injunction.

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Remedies - Injunctions

Final injunction - the usual remedy in tort is damages and a claimant will not be granted an injunction unless he is able to establish that damages would not be an adequate remedy.

Equitable maxims - as injunctions are equitable remediesm their availability is limited by general equitable principles. Therefore, claimants must ensure that the circumstances of their case do not offend against key equitable maxims (equity does nothing in vain, delay defeats equity and he who seeks equity must do equity).

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Thanks so much

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