Intro to Tort Lecture 1

What is a tort?
● French word meaning ‘wrong’. A Tort is basically a civil wrong/harm/injury that
attracts a remedy in law

“A tort is simply a ‘wrong’ and tort law is the law of ‘wrongdoing’ or perhaps of
‘wrongs’” - C. Harlow, Understanding Tort Law (3 rd ed., 2005), Ch. 1.

● Tort Law is concerned with civil liability for wrongfully inflicted harm/injury.

“Where the claimant sues the defendant for a tort, the claimant is complaining of a
wrong suffered at the defendant’s hands. The remedy claimed is usually a money
payment.” - S. Hedley, Tort (6th ed., 2008), Ch. 1.

● Two private parties: a defendant and claimant, claimant sues D

● Remedy is usually damages (money)

Interests protected
by tort law: ● Tort Law consists of stories of civil (or sometimes criminal) wrongdoing and how
the courts decide to deal with them and why
● Civil liability can sometimes be pursued in a criminal matter

Personal integrity:
● Freedom from interference with persons body (injury) and mental well-being
(psychiatric injury) through negligence, intentional trespass to the person such as
battery, assault, false imprisonment and the doctrine in Wilkinson v Downton [1897]
● Harassment Act is also included here.
Property:
● Interests in land, damage to property like possessions through negligence and land
Causes of Action related tort e.g. nuisance, trespass to land and occupiers liability.
(Principal Torts): Reputation:
● By torts such as deformation, this is an injury to a person’s reputation
Financial Interests:
● To some extent protected by tort law, but they do present a problem in torts like
negligence
● Financial interests are the types of loss/damages that can be recovered in tort law

● How the interests above can be protected i.e. with a variety of causes of action

● (Not actually known as Group 1, 2, 3 etc. just for learning purposes):

● They express different kinds of concerns

Group 1
● Negligence & Product Liability

● Similar because product liability evolved out of negligence

● Both torts are about the achievement of a certain standard of care in actions or
omissions to ensure that they do not negatively affect somebody else
Group 2
● Trespass to Person (assault, battery, false imprisonment, Rule in Wilkinson v
How do you
establish whether a Downton, Harassment).
certain liability ● This is its own category, from a very long time ago tort law came about in order to
exists in tort?
● resolve conflicts regarding wrongful injury, actual physical injury
Historical Group 3
Development of
Tort: ● Concerned with the use and enjoyment of land

● Trespass to Land

● Nuisance
Duty of Care Lecture 2
Negligence and the
● Negligence is the “Failure to take proper care over something.”
Duty of Care:
● Similar: carelessness. (as to the way you act or omission)

“A man is entitled to be as negligent as he pleases to the whole World if he owes

no duty to them” and that would not attract liability in the law. Brett MR in Le Lievre
v Gould [1893]
DOC:

● The Duty of Care defines situations where carelessness becomes actionable, i.e.
where liability is recognized in law

Examples
1. An elderly woman visits her local leisure centre for a swim. Before she gets the chance to do
so, she slips over a wet floor and breaks her hip.

Can she sue the facility?

● There is an existing duty of care to keep the poolside safe for users (keeping the floors dry is a
positive act but can be an omission because they failed to do so)
● which was breached (D was not acting reasonably) unless they put a wet floor sign or provided
an option to not walk on wet floor
● There is harm suffered (broken hip/physical injury) negligence is not actionable without damage

● Damage was not too remote (causation) i.e. proof of breach of duty caused the injury

● Any defences? Floors bound to be wet by a swimming pool – C accepted risk of injury

2. An actress goes to the hairdressers to get her hair done before a play in which she has the
lead role starts. A trainee hairdresser botches the bleach job. The actress develops a scalp burn,
loses her hair and is no longer able to appear in the play.

● Trainee held to the same standard as professional (Nettleship v Weston)

● Economic loss (if linked to physical harm) means there is no question that you can claim for it.
Pure economic loss (unconnected to the personal injury or harm) difficult to claim
● Depression (psychological harm) requires certain conditions but because it is connected to
physical injury, she can recover
● Reasonably foreseeable that if you botch a bleach job this will cause irritation

3. Police interviews a suspect over a series of linked murders that took place over a particular
period of time. Following the interview, the suspect is allowed to leave the station mainly
because, according to the interviewing officer, “he is a married man and father of two young
children.” The interviewing officer fails to check the suspect’s alibi. A few days later, the senior
detective on the case ties the suspect to the murders and acquires a warrant for his arrest.
However, by that time the suspect has already kidnapped his last victim (a witness in the case)
and possibly killed her as far as the police could tell.

● Liability? Could there be a liability in negligence in this case? No, public bodies are
not protected by liability but some cases where police would not be liable for
omissions Hill
● For policy (public interest) reasons it’s not fair, just and reasonable to hold the
Current Law:
police liable in negligence
● the police would be diverting resources away from investigating crime to defending
claims
● Claims may be too much and paid out of taxes (undue burden on the system) of
taxpayer
● To what extent is the Court better placed to tell police officers how to prioritize
certain things, should be in the domain of police officers and the bosses to see how
they run their day to day
Development of the
DOC concept:
● In order to establish negligence, the Claimant has to prove:
(1) A Duty of Care is owed by D to C.

(2) D breached his duty - the test is simply whether D acted reasonably in the
circumstances.

(3) C suffered damage as a result of D’s breach which is not too remote – factual
and legal causation.

● Can the Defendant rely on any Defences to defeat the negligence claim.

● DOC began to be recognised only in very limited circumstances e.g., control of a

dangerous thing = DOC (Langridge v Levy [1837]) and in particular relationships
● Over time these ‘pockets’ began to join up and judges were beginning to move
towards a broader DOC principle:

Heaven v Pender [1883]

● Pre-Donoghue

● Facts: Pender owns a dry dock, Heaven was a ship painter who was using some
rope to support himself as he painted. The ropes had previously been damaged
and they were unfit for use. Painter was injured.
● Held: there was a DOC. But see significance of Brett MR minority cf neighbour
principle:
“Whenever one person is by circumstances placed in such a position with regard to
another (…) a duty arises to use ordinary skill and avoid such danger. Tort law
should assume a broad view of this area. If any person with ordinary sense
realises that if they did not exercise proper care and skill, damage could be
occasioned to another or another's property from their actions, they should be held
liable”

Winterbottom v Wright [1842]

● Facts: Winterbottom (C) was contracted by a Postmaster to drive a mail coach.
Wright (D) had been contracted by the Postmaster to make sure the coach was
safe. Coach collapses and injures Winterbottom.
● Held: because there is no contract between the D and C the case had to fail

Donoghue v Stevenson [1932] achieved the following:

● Established the duty owed by manufacturers to users of defective products (now
product liability governed by statute, but common law remains)
● A remedy is available where injury or loss is caused to the injured party by the
wrongdoer’s failure to keep a legal duty to take reasonable care
● Rejected the privity of contract principle followed in Winterbottom v Wright that
DOC does not extend beyond contracting parties as relationships only arise from
contract so you can only sue on this basis

● Facts: Mrs Donoghue’s friend buys her a ginger beer. When Mrs D pours out half
the contents a snail came out. Mrs D suffered personal injury as a result and began
a claim against the manufacturer (who she did not have a contract with nor was
there an exceptional circumstance e.g. inherently dangerous product. She could
not sue the café owner as she did not have a contract with them, her friend did)
● Held: Successful. Case established modern law of negligence and the first widely
used formulation of a general principle (the neighbour principle) per Lord Atikin
regarding reasonable foreseeability of harm for negligent behaviour:
“You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbor. Who, then, in law is my neighbor? (…)
The answer seems to be persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question.”

● Donoghue and the broad ‘neighbour’ principle which completely opened up the
‘pockets’ of liability was not widely used but was applied in

Dorset Yacht v Home Office [1970]

● Facts: Young offenders were left unsupervised and escaped the island with a
stolen boat which collided with a Yacht owned by the claimant
● Held: Home Office owed a DOC for their omission to supervise as they were in a
position of control over the 3rd party (young offenders) who caused the damage,
and it was foreseeable that harm would result from their inaction – foreseeable that
youths would try to escape and would cause damage to neighbours’ property in the
process
● Like in Donoghue, even though the act did not come from D but a 3rd party, liability
could be found as it was foreseeable and there was sufficient control/special
relationship for the officers supervising the young people (control is an exception to
the rule that the act must stem from the D)
● Applying the ‘but for’ test, but for the D’s inaction, C would not have caused the
damage

● By the 70s there was ‘an ocean of liability for carelessly causing foreseeable harm,
dotted with islands of non-liability, rather than as a crowded archipelago of
individual responsibility of individual duty situations’ (Ibbetson pp 192-3) – i.e.
rather than a gradual widening of specific duties, the courts appeared to be
operating from a (perhaps excessively) broad principle pf (almost) default liability
whenever harm was caused by a D’s careless conduct e.g. McLoughlin v O’Brian
[1982] (mother recovered for the pure psychiatric harm caused by witnessing the
aftermath of a negligently caused accident involving her family), Bernard v
Kettering HA [1988] (claimants were awarded damages for the costs of bringing
up a child, including private school fees where a child was born after a negligently
performed sterilisation procedure) and:

Anns v Merton London Borough Council [1978] (overruled)

● Facts: a block of flats suffered from damaged foundations. The Council had been
responsible for inspecting it and overseeing construction. The defected foundations
eventually led to damage like cracking walls and sloping floors leading tenants to
seek damages.
● Held: HL awarded damages holding that the harm constituted “material damage to
property” and posed “a present or imminent danger to the health and safety of
persons occupying it.” This was in spite of the traditional rule that property damage
could only occur after purchase whereas the foundations had been defected before
the claimants had bought the property (therefore their losses were PEL).
● Lord Wilberforce explicitly advocated a two-stage test for negligence to see if a
duty of care is owed by D to C attempting to build on Lord Atkins ‘neighbour’
principle

(1) a relationship of proximity between D and C so that damage to C is reasonable

foreseeable, and this means that a duty of care exists - theN what you have is a
prima facie duty (i.e., this will likely prove proximity and automatically give ruse to
DOC unless there is no justification for not making it a duty) unless
(2) there is no justification for not imposing a duty

● The test was discredited in Yuen Kun Yeu v A-G for Hong Kong [1988]

● Claimant invested in someone who was regulated by the Commissioner (AG). He

lost the money when the person went insolvent. He said the regulator (AG) was
responsible
● Held: failed, according to statute their job is to regulate and see no fraudulent
transactions are carried out – that’s all. Lack of satisfaction of the test (Anns) which
should not be imposed all the time, it didn’t provide any means to restrict liability.
Lord Atkins had wanted to control negligence liability so that it was not imposed all
the time. Anns didn’t do that, it was too easily satisfied.

Murphy v Brentwood [1991]

● Facts: The defendant local authority had negligently approved plans for the footings
of a house (a task which fell within its responsibility in accordance with the
provisions of the Public Health Act 1936). The claimant purchased the property, but
some time afterwards it began to subside as a result of defects in the footings. The
claimant was unable to afford the required repairs and was forced to sell the
property as a loss. He also claimed damages for the health and safety risk which
the defects had caused to himself and his family during the time they lived at the
property.
● Held: Declining to follow its previous ruling in Anns v Merton LBC, the HL held that
as the damage suffered by the claimant was neither material nor physical but
purely economic, the defendant was not liable in negligence. It was decided that to
allow the claimant to recover damages for the money which he had lost on the sale
of the property, or for the cost of repairing it, would result in an unacceptably wide
liability which would effectively amount to judicial legislation introducing product
liability and transmissible warranties for defective building. This a job for the
legislative to cater to this and it is not the job of the judiciary to step into the domain
of the legislative.

● The judicial retrenchment of the 1990s however has gradually been relaxed and
allowed increasingly for the expansion of negligence liability into a number of new
situations – for example, in relation to the ‘messed up lives’ claims e.g. Phelps v
Hillingdon LBC 2001 (negligent failure to diagnose dyslexia); W v Essex CC 2000
(abuse foster child). How long this period of cautious expansion will continue is
unclear. In the latest cases, we see the SC reasserting the importance of the law
developing incrementally see Michael v Chief Constable of South Wales Police
and Robinson v Chief Constable of West Yorkshire [2018] which could yet be
the first signs of a new period of retrenchment
● In the late 1990s a ‘compensation culture’ was emerging, increasingly being argued
that too many people were being held liable in too many situations. Thus, in the 80s
and 90s there was a general retrenchment of the tort of negligence cutting down on
situations where a DOC was held to arise, greater caution in imposing liability and
only where there is clear precedent or in small incremental steps

Caparo Industries plc v Dickman [1991] (courts are currently re-examining this)
● Caparo (investors) bought shares in a company in reliance on some accounts
which did not adequately state the company’s financial position. Caparo brought an
action against the auditors claiming they had been negligent
● Held: No DOC – not sufficient proximity between investors and the auditors as the
auditors were not aware of the existence of Caparo or the purposes that the
accounts would be used for. Investors were too wide of a class and this would
place a huge burden on auditors – proximity is a clear way to limit liability
● A three-stage test was advocated by Lord Bridge as the route to finding a DOC in
cases where there is no established category
● First they established the two approaches which should be taken:

● Look at precedent and see if there is a precedent. If no precedent and the situation
is novel develop the law incrementally and by analogy (by comparing the situation
to a similar situation)
● The three-stage test

● It was in Caparo that they said the incremental approach, not the three-stage test
approach which should be preferred

The three-stage test:

● Was it reasonably foreseeable for the defendant that their failure to take care (their
negligence) could cause damage to the claimant (reasonable foreseeability like in
Donoghue) and
● Is there a sufficiently proximate relationship between the claimant and the
defendant? (giving proximity some actual meaning unlike in Anns) And
● Is it fair, just and reasonable that the law recognises a duty on the D to take
reasonable care not to cause that damage to the claimant i.e. to impose a duty?
(the judges have a reserved discretion to use policy reasons to deny liability in
certain cases)

● Lord Oliver did however stress the impossibility of finding any single test which
could be used to find a DOC (at 632) He also said that the three stages were
‘merely facets of the same thing’ (at 633)
● Lord Bridge even denied the utility of the concepts of ‘proximity’ and ‘fairness,
justice and reasonableness’ in practicality – they’re just useful labels (618)
● See page 69-70 on criticisms of the test and how it actually doesn’t mean much

● Examples of foreseeability:

Haley v London Electrical Board [1965]

● Facts: Blind claimant tripped over a hammer which had been placed on the
pavement by D to prevent pedestrians walking on the pavement as they carried out
their work. C from the injury becomes almost totally deaf.
● Held: D had a duty to take reasonable care not to act in a way that endangered
others who could reasonably be expected to walk on the pavement (i.e. even blind
people)

Reasonable foreseeability is not usually an issue in cases of physical damage

(personal injury/property damage) however Bourhill v Young [1943] is an example of
injury that was not reasonably foreseeable.
● Facts: pregnant C hears the sound of a collision (which was caused by negligence)
and later walked past the scene. The body was gone but there was a lot of blood.
She went into shock and her baby was stillborn
● Held: no DOC between D and C, no proximity when the incident occurred, not
reasonably foreseeable that negligence would cause that injury to her
● Examples of proximity:

● Features in problematic areas of liability:

● Pure economic loss - assumption of responsibility with the requirements of Hedley

Byrne establishes proximity which can allow for PEL
● Omissions (Kent v Griffith, Dorset Yacht and Hill) These are exceptions as it is
not a positive act, English law does not generally attract liability for omissions.
● Psychiatric illness (test for primary vs secondary victims is to establish proximity)

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963]

● Facts: Hedley Byrne is an advertising agency sought to employ the services of
Heller & Partners to determine the creditworthiness of one of their customers. The
claimants relied on the misleading statements made which resulted in the loss of
£17,000. This loss was a PEL in having no link to physical damage to person or
property. The case however created an exception to the general rule that PEL is
non-recoverable subject to four requirements: 1) that a special relationship existed
between the claimant and defendant, 2) that the defendant possessed a special
skill or knowledge, 3) that the defendant voluntarily assumed this responsibility, and
4) that the claimant could be said to have reasonably relied on the statement
provided. Heller argued that there was no DOC regarding the statements and in
any case that liability was excluded
● Held: the relationship between the parties was sufficiently proximate as to create
a duty of care. It was reasonable for them to have known that the information that
they had given would likely have been relied upon for entering into a contract of
some sort. This would give rise to a special relationship in which D would have to
take sufficient care in giving advice to avoid negligence liability. However, on the
facts, the disclaimer on the letter of "without responsibility on the part of this bank"
was found to be sufficient to discharge any duty created: “A man cannot be said
voluntarily to be undertaking a responsibility if at the very moment when he is said
to be accepting it he declares that in fact he is not
● Lord Morris: ‘I consider that it follows and that it should now be regarded as settled
that if someone possessing special skill undertakes, quite irrespective of contract,
to apply that skill for the assistance of another person who relies upon such skill, a
duty of care will arise. The bank in the present case, by the words which they
employed, effectively disclaimed any assumption of a duty of care. They stated that
they only responded to the inquiry on the basis that their reply was without
responsibility. If the inquirers chose to receive and act upon the reply, they cannot
disregard the definite terms upon which it was given. They cannot accept a reply
given with a stipulation and then reject the stipulation. Furthermore, within accepted
principles... the words employed were apt to exclude any liability for negligence.’

Kent v Griffith [2000]

● Facts: The claimant was having an asthma attack. Her doctor attended her home
and called for an ambulance at 16:25. The ambulance, which was only 6 miles
away, did not arrive until 17.05. Two phone calls had been made to enquire why
the ambulance had not arrived and the operator confirmed that it was on its way
the claimant suffered respiratory arrest. The doctor gave evidence that had she
known of the delay she would have advised the Claimant’s husband to drive her to
the hospital.
● Held: In negligence cases, the C must prove that the D owed them a duty of care
that this duty was breached and that the injuries for which the claimant is
seeking damages were a consequence of this breach. It was reasonably
foreseeable that the claimant would suffer further illness if an ambulance did not
arrive promptly. The claimant and defendant were sufficiently proximate once the
call was accepted and an ambulance was dispatched – a specific duty of care was
established. There was no good reason for it failing to arrive within a reasonable
time, this duty was breached

● Examples of Fair, Just and Reasonable (policy consideration):

● Kent v Griffith: it was fair, just and reasonable to allow for a DOC to exist between
an ambulance service and its patients with regards to promptness of pickup (and
presumably, return to the hospital) where no good reason for delay is offered. C
was told that the ambulance was sent to them, if they weren’t told they would have
been able to see other means but the assumption of responsibility for the wellbeing
this created a proximity. The London Ambulance Service appealed not because
there wasn’t a breach of duty, foreseeability or proximity but that establishing DOC
would be against public policy considerations which in previous cases had limited
the duty of care of the police, fire brigade and coastguard on the grounds that it
would divert their resources
● Appeal rejected:

● Unlike the police and the fire brigade, the ambulance service is part of the
healthcare service where a duty of care to patients normally exists

● Public policy grounds do not preclude the existence of duty of care to the patients
on behalf of the ambulance service

(3) The ambulance had been called for the patient alone and is not having to act
with concern to protect the public generally unlike the fire and police services.

Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) [1996]
● Facts: During a voyage a ship cracked. The ship owners requested a society to
inspect the damage. An employee of the society advised that the ship should be
placed at a dry dock for repair. However, after the shipowner complained it would
be expensive the advice was altered, and temporary repairs were carried out. The
ship sank and cargo lost. C recovered from the ship owner and sought to recover
the remainder from the society.
● Held: No DOC between C and the society. Whilst the first two limbs of the test were
satisfied, it was not fair, just and reasonable to disturb the contractual allocation of
risks between the claimant cargo holders and the shipowner (who was not party to
the action) and which might threaten to undermine the terms on which International
trade was conventionally conducted. The society also undertook for free an
expense that otherwise would be taken on by states – not fair, just, reasonable to
impose a DOC on it.
● Lord Steyn (with majority): Though there is no evidence to support a charitable
Current Law – the society having a general immunity from prosecution, it’s public benefit should make
Demise of The one hesitant about imposing duties on it. Liability would expose societies to too
Caparo Test: great a risk. Furthermore, since it was the ship-owner’s who decided to use the
society to comply with rules on protecting the cargo and NOT the stockowners
(who had no idea of the involvement of the society initially), it would be unfair to
make the society liable to claimants.

XA v YA [2010]
● Facts: adult son seeks damages from his mother in respect to assault by both
parents
● Held: Novel DOC being suggested by the son. Not fair just and reasonable to
impose a DOC on a mother to prevent her son being assaulted by her husband
over a period of years and to judge her retrospective decisions on how to ensure a
secure upbringing for her children

● What is fair, just and reasonable arguably leaves the courts with an inevitable
‘residual discretion as to whether or not a duty of care should be recognised’
(Witting 2005 pg. 62)
● What is fair, just and reasonable may also change over time – see Michael v Chief
Constable of South Wales Police [159] – [161]
● What is ‘fair, just and reasonable’ and ‘sufficiently proximate’ involves a number of
factors including:
● Whether the courts would be flooded by cases similar to C’s if the law recognised
their claim (floodgate argument, comes up a lot with economic loss) the law at large
better to regulate it through contract
● The insurance position of D (?)

● The fallout of imposing a duty on D (what is going to happen to the system at large)

● Whether it might result in defensive practices (Hill v Chief Constable of West

Yorkshire, and Smith v Ministry of Defence [2005]) deterring people from
rescuing those in trouble e.g. doctors who are better off covering themselves from
liability rather than looking for the best treatment for their patients

Smith and others v Ministry of Defence [2013]

● Facts: series of claims by families of troops killed in Iraq as a result of explosive
devices. Mrs Smith argued that the MoD was in breach of Art 2 ECHR to safeguard
her son’s life by failing to provide a suitably armoured vehicle. Other families
argued the MoD didn’t provide suitable equipment
● Held: The Court must be cautious not to impose duties that are unrealistic or
excessively burdensome to decision-makers in the battlefield (para. 99) and it must
have regard to the public interest, the unpredictable nature of armed conflict and
the inevitable risks it entails when balancing was is fair, just and reasonable. The
army might be more concerned with claims rather than their function

McFarlane v Tayside Health Board [2000]

● Facts: Husband had a vasectomy and was told his sperm count was 0 by D(1) - the
husbands doctor who performed the operation. His wife, got pregnant and they
sued D (1) for pain during childbirth and loss of earnings from the pregnancy, and
(2) for the costs of bringing up the child.
● Held: Claim fails. they cannot sue for damages to bring up a child we are not going
to do this because having a healthy child is not damage. This is going to send a
terrible message about having children, as the benefits will always outweigh at
being able to experience parenthood so we will not allow for liability to arise in
having to bring up a healthy child since it was not “fair, just and reasonable”. So,
the parents joint claim (2) was dismissed. However, the mothers claim for suffering
pain during the pregnancy and giving birth in regard to the context of wrongful
conception was allowed to go through in negligence and you can claim damages
for it
● Distributive justice means we have to consider the correct allocations of
burdens and costs in society. Most people would say that the parents of a child
(wanted or not) ought to pay for that burden, and this comes from “inarticulate
moral” feelings that society holds (Lord Steyn)
● The real motivation for this case, which all the judges deny, is a desire to avoid

● bankrupting the health authority

● The application of Caparo in Robinson v Chief Constable of West Yorkshire

[2018] led to denial of duty in established category (positive act causing personal
injury) and in Michael v Chief Constable of South Wales [2015] to recognition of
duty in a novel situation (an omission)
● As per Lord Toulson in Michael:

● Caparo does not lay down a general test

● The correct approach is to look at established cases for precedent

● In novel situations, the law is to be developed incrementally and by analogy

● In this stage, regard can be made to policy considerations for novel situations only

● As per Lord Reed in Robinson:

● Discussions of policy considerations “are not a routine aspect of deciding cases in

the law of negligence and are unnecessary when existing principles provide a clear
basis for the decision”

● Established Duty Categories:

● Duty owed by drivers to other road users e.g., buses, cars, bikes (Bourhill v
Young and Nettleship v Weston)
● Duty owed by employers to employees to not cause them physical harm (Paris v

● Stepney)

● Duty owed by health providers to patients when they check in (Darnley v Croydon

● Health Services).

● A duty of care not to cause physical harm to claimant by a positive act (Robinson
v Chief Constable of West Yorkshire)
● A doctor owes a duty of care to his patient (Pippin v Sheppard [1822])

● A solicitor owes a duty of care to his client (Groom v Crocker [1939])

● Manufacturer to consumer (Donoghue v Stevenson [1932])

● Banker to client (Woods v Martins Bank Ltd [1959])

● In some cases, it is clear that no duty is owed:

● The ship classification society owes no duty to cargo owners for financial loss
(Marc Rich v Bishop Rock [1996])
● Company auditors to outside investors for financial losses (Caparo Industries v
Dickman [1990])

● In other cases, it is unclear whether or not duty is owed:

● E.g. Whether or not a self-inflicted accident victim owes a duty to rescuers

(Greatorex v Greatorex [2000])

● An example of the application of the current position:

Darnley v Croydon Health Services [2018]
● Facts: C presents himself at a hospital seeking treatment. He leaves shortly after
the receptionist wrongly informs him, he needs to wait for a long time to be seen.
His condition deteriorates overnight and he suffers permeant injury.
● CA say it is not fair, just or reasonable
● Held: HL: This is an established duty category and not a novel case. Caparo is not
needed. Even if novel, by analogy with Kent v Griffith, a duty of care exists not to
provide false information about waiting time. DOC also exists for patients (Barnett
v Chelsea & Kensington Hospital Management Committee [1969]: Dr
negligently failed to properly examine a man complaining of stomach-ache. He was
turned away and later died of arsenic poisoning. Case only failed at causation,
there was definitely a DOC though) – thus analogy can be drawn. The issue of the
receptionist not being medically qualified is regarding breach not establishing a
DOC.

Michael v Chief Constable of South Wales [2015]

● Facts: Ms Michael had phoned police from home just before half past two in the
morning on 5 August 2009. However, her mobile phone signal was picked up
across the county border by Gwent Police, rather than South Wales Police. Ms
Michael informed the Gwent Police operator that her ex-partner had found her with
someone else, bitten her and threatened to hit her and was going to come back
and kill her (but there was an issue as to whether the operator heard this). The
operator told Ms Michael that the call would be passed to South Wales Police, who
would call her back. The operator then spoke to her counterpart, Mr Gould, in the
emergency control room at South Wales Police and said that the ex-partner had
threatened to hit Ms Michael but did not mention the threat to kill. The information
was sent to officers on mobile patrol by 2.30am but it had not been graded as
needing an immediate response. It was alleged that the decision to downgrade the
priority level was made by Mr Gould. At 2.43am, Gwent Police received another
call from Ms Michael. Screaming was heard but it stopped. The call was graded as
needing an immediate response but when officers arrived at 2.51am, Ms Michael
had already been murdered. Ms Michael’s ex-partner pleaded guilty to murder and
was sentenced to life imprisonment Her call not directed to the right police station
and by the time it did not directed as urgent and when it did it was too late and she
was murder
● Held: HL refused to find liability. Lord Toulson went on to state that English law
does not as a general rule impose liability on a defendant for injury caused to the
claimant by a third party, subject to two exceptions:

● Where the defendant was in a position of control over the third party and should
have foreseen the likelihood of the third party causing damage to somebody in
close proximity if the defendant failed to take reasonable care in the exercise of
that control (i.e. Home Office v Dorset Yacht Co Ltd [1970]); or

● Where the defendant assumes a positive responsibility to safeguard the claimant

under the Hedley [1964] principle.

As a result, the claim in negligence had rightly been dismissed.

● Lord Reed stated that discussions of policy considerations “are In this case, the
defendant was neither in a position of control over the ex-partner, nor had there on
the facts been any assumption of responsibility towards the claimant (i.e., in the
form of an assurance given about the time of response). not a routine aspect of
deciding cases in the law of negligence and are unnecessary when existing
principles provide a clear basis for the decision.”

Robinson v Chief Constable of West Yorkshire [2018]

● Facts: Pedestrian gets hurt when police were arresting a suspect

● At first instance accepted that the police officers had been negligent in carrying out
their duties. However, the precedent set by Hill v Chief Constable of West
Yorkshire precluded any successful claims in negligence against the police for
damage caused in the course of apprehending a suspect. CA found no DOC owed
and no breach.
● Held: Lord Reed embarked on a thorough analysis of the duty of care principle.
Specifically, he sought to dispel the belief that the existence of a duty should
always depend on applying the formulaic approach posited by Lord Bridge
in Caparo. Indeed, Lord Reed clarified that Lord Bridge had not intended for his
questions to become a test that should be used in each case before a court. On the
contrary, the correct approach is to identify and compare novel situations with any
established precedents and thereby allow for the law to develop ‘incrementally and
by analogy with established authorities’ [para 21]. It is important to recognise that
the police have always owed a duty where harm is directly caused through their
positive actions. Where a third party causes harm to an individual that is because
of police involvement though, the law has veered away from imposing liability on
the police. The case of Hill is a prime example. However, Hill concerned an
omission on the part of the police, not a positive act like we had here– there has
always been liability in tort for injury caused by positive act! No need to consider
Caparo. On the facts, Lord Reed found the result to have been reasonably
foreseeable as a result of the actions of the police. By attempting an arrest in public
and on a busy street it was foreseeable that members of the public may be caught
up in the ensuing struggle, which itself was probable to occur as the suspect was
highly likely to try and resist arrest. Additionally, Lord Reed thought there to be
sufficient causation and that the suspect’s attempted escape did not break the
chain.
● Appears to be clear authority for the proposition that the police will owe a duty of
care to individuals who suffer harm caused by a third party as a result of a positive
action on their behalf

● Negligence law has gone round in a circle – return to restrictive approach of claims
working from pockets of liability: Michael and Robinson appear to limit the use of
Caparo

● Caparo test Proximity relationship exceptions:

- Pure economic loss

- Omissions
- Third party actions
- Psychiatric harm
Summary:

D v East Berkshire Community NHS Trust [2005]: Lord Rodger: “ The world is full of harm for which the law
furnishes no remedy” [100]

 Horsey and Rackley, Kinder’s Casebook on Torts, 15th edition, 2019, Ch 2 (or M. Lunney, D
Nolan & K. Oliphant, Tort Law: Text and Materials (6th edition, 2017), Ch 3.
 J Steele, Tort Law: Texts, Cases and Materials, 4th edition, 2017, p. 145-169 (Important and will
be provided as a scanned copy on moodle page)
 Donoghue v. Stevenson [1932] AC 562
 Home Office v Dorset Yacht [1970] UKHL 2
 C Witting. "Duty of care: an analytical approach." (2005), 25.1 Oxford Journal of Legal
Studies 25.1, pp. 33-63.
 G Cameron. "Negligence and the Duty of Care; the Demise of the Caparo Test; and Police
Immunity Revisited: Robinson v Chief Constable of West Yorkshire." (2019) 23
EdinLLR, pp 82-88.
 D Nolan “Deconstructing the Duty of Care” (2013) 129 LQR, pp. 559-588
Special DOC Lecture 3
Problems I:
Omissions and 3rd
Party Liability
Pure Omissions: the The general principle: No duty/tortious liability for pure omissions (i.e. not within an
basics existing pre-tort relationship that requires positive action e.g. teacher/student) unless:
1. A assumed a responsibility to look after B (Assumption of responsibility)
2. A put B in danger of suffering harm (creation of danger)
3. A was in control of a dangerous thing/person that posed a foreseeable threat to B
(control)

Acts v Omissions:  Sutradhar v Natural Environment Research Council [2006] – no DOC, omission

 Acts: D makes a C worse off by doing sth positive

 Omission: C is no worse off than she would have been had the D done nothing
 Think about it in relation to the result, not if the act done was positive act or not
 Starting position of omission is presumption of no duty of care

 Falling Sign Problem: scenario 1 is a positive act because the sign that was not
secured/fell over positively made someone worse off by causing an obstruction on
the road - less safe. Scenario 2 is an omission because the local authority did not
make people worse off – they simply could not warn drivers of the existing black ice

Why does the law

 Stovin v Wise [1996]: “There are sound reasons why omissions require different
draw a distinction
treatment from positive conduct. It is one thing for the law to say that a person who
between acts and
undertakes some activity shall take reasonable care not to cause damage to
omissions?
others. It is another thing for the law to require that a person who is doing nothing
in particular shall take steps to prevent another from suffering harm from the acts of
third parties or natural causes.” – Lord Hoffman
 Also highlighted reasons that the law will generally not find duties in omission
cases:
 Political – preventing law being intrusive: invasion of an individual’s personal
freedom by imposing a duty to actively rescue
 Moral: why pick on me argument, (not mentioned by judge but: people don’t want to
be forced to be good, will make them reluctant)
 A duty to prevent harm to others or render assistance to person in danger may
apply to a large and indeterminable class of people – why should one be more
liable than another? Drowning person would be able to sue anyone he wants for
not saving him - why pick me on me?
 Economic: with positive acts liability, the cost of negligence is a deterrent which
also prevents the cost to society (i.e. passers-by who omit helping), reducing
externalities (chain of negative consequences e.g. liability being spread to even
more people). But there is no similar justification for requiring a person who is not
doing anything to spend money on behalf of someone else

 Yuen Kun Yeu v AG of Hong Kong [1988]: no duty to even rescue anyone about to
injure themselves accidentally or warn them – contrasts with civil law systems e.g.
Article 223-6 of French Code Penal makes it a criminal offence to not try and assist
someone in danger (as long as it would not mean you taking undue risks yourself)
 Rescuer Anxiety/Deterring rescue: fear that if you intervene and try to help you may
end up liable for not being able to save/protect the person – inaccurate – at law you
are only liable if you personally make the situation worse but the risk of being sued
might deter people from helping
 Gorringe v Calderdale [2004]: Revisits Stovin v Wise – whether public law statutory
duty automatically gives rise to common law duty depends on parliament’s intention
 Yetkin v London Borough of Newham [2010]: distinguished from Gorringe –
positive act of obstructing the view

Exception 1: Exception 1: Assumption of Responsibility (not the same as naturally arising, pre-
existing responsibility arising out of relationships e.g. parent-child) for C’s welfare.
Usually arise out of a contract or employment relationship:
Takes one of 2 forms:
1. A will have indicated to B that B can rely on A to look after B’s interests with a
reasonable degree of care and skill and B will have relied on A to do this. (e.g. dr-
patient – patient relies on Dr’s medical skill/care to treat on disease)
 E.g. Costello v CC of the Northumbria Police [1999]

2. A will have indicated to B that B can rely on A to take reasonable steps to protect B
from some kind of harm and B will have relied on A to do this
- E.g. of no duty: Michael v CCSWP [2015]: call handler made no promise as to how
quickly they would respond
 E.g. of duty owed:
 Stansbie v Troman [1948]
 Swinney v CC of the Northumbria Police [1997]
 Densmore v Whitehorse [1986]
 Barrett v MOD [1995]
 Unconscious man problem:

Exception 2: Creation or Adoption of Danger

Exception 2:
 If A knows or ought to know that he has done something to put B in danger of
suffering some kind of harm (even accidentally), A may owe B a positive duty to
take reasonable steps to protect B from that danger.
 Hardy v Brooks [1961]
 Note: it is different from A has wrongfully put B in danger of suffering some kind of
harm. Must be innocent when putting someone in danger
Difficult to know where to draw the line between conduct that creates a danger and
conduct that has merely provided an occasion for danger to arise
 Kane v New Forest DC [2002]
 Watson v British Broad of Boxing Control [2001]
 Capital & Counties plc v Hampshire County Council [1997] – made situation.
worse
 Goldman v Hargrave [1967] “adopting” of risks – though he didn’t create the fire, in
deciding to take no further steps to extinguish it he adopted the risk of spreading it
 Mitchell v Glasgow CC [2009]: Council had not done enough for it to be correct to
say that it had created a danger to Mitchell.
Further requirements?
 Mitchell v Glasgow CC [2009]:
- Lord Hope: “as a general rule … a duty to warn other person that he is at risk of
loss, injury or damage as the result of the criminal act of a third party will arise only
where the person who is said to be under that duty has by his words or conduct
assumed responsibility for the safety of the person who is at risk”.
- Lord Rodger: there could be no duty unless A acted wrongfully in putting B in
danger.
- “The D’s act which provides the opportunity for the 3rd party to injury the C is itself
wrongful… that is not enough to make for liability.. For the harm which a 3rd party
subsequently deliberately chooses to inflict. But it is, at least, a start. “

Exception 3:  Exception 3: Control – situations where D should owe a duty of care/positive duty
to prevent harm because D exercises a high degree of control over C or have
express responsibility for them
 E.g. parent or guardian of a child has a responsibility to help them if drowning
 A is in control of a human being C and it is foreseeable that someone like B will be
harmed if that human being C escapes A’s control. In order not to dilute C’s
responsibility, the courts will only find that A owed B a duty of care to control C if B
was in special danger of being harmed (proximity) by C if C escaped A’s control.
- Reeves v Commissioner of Police for the Metropolis [2000], In Orange v Chief
Constable of West Yorkshire Police [2001] a drunk man committed suicide but the
CA clarified that the Reeves duty was only to take reasonable steps to assess
whether a prisoner posed a suicide risk and act accordingly – not to take away
items from all prisoners that might pose a risk. There was no real reason here to
think that this prisoner would attempt suicide. This distinction was approved by the
ECHR in Keenan v UK [2001] – “For a positive obligation to arise, it must be
established that the authorities knew or ought to have known at the time of the
existence of a real and immediate risk to the life of an identified individual from the
criminal acts of a third party and that they failed to take measures within the scope
of their powers which, judged reasonably, might have been expected to avoid that
risk”, in Savage v South Essex Partnership NHS Trust [2008] the HL also found
that a positive duty based on Art.2 an “operational” obligation on health authorities
and staff to do all that is reasonably expected to prevent suicide if the staff know or
ought to know of a real and immediate risk of fsuicide
- Carmarthenshire CC v Lewis [1955]
- Dorset Yacht Co Ltd v Home Office [1970]
- K v Secretary for State for the Home Dept [2002]
- Palmer v Tees HA [1999]
Liability for acts of
3rd parties  Same rule as omissions: no general duty to prevent other people causing damage.
 Overlapping rules: the courts do not seriously differentiate omissions and third-
party liability
- Fine line between the consideration of a 3rd party’s actions as a causation/novus
actus intervenius issue or as a duty issue - Dorset Yacht Co Ltd v Home Office
[1970] provides some guidance:
- “must have been something very likely to happen if it is not to be regarded as
novus actus interveniens breaking the chain of causation. I do not think that a mere
foreseeable possibility is or should be sufficient, for then the intervening human
action can more properly be regarded as a new cause than as a new cause than as
a consequence of the original wrongdoing”
 Exceptional situations. Lord Goff (Smith v Littlewoods [1987]) suggested that a duty
can arise in 4 circumstances:
- Where there is a special relationship between D and C (creating proximity
basically) /basically assumption of responsibility – e.g. contractual relationship
(Stansbie v Troman [1948]) which means that there was a duty to prevent a 3 rd
party burgling the home), e.g. promise by D not to do something to endanger C
(Swinney v Chief Constable of Northumbria Police [1989] – duty not to leak
confidential information), implied duties (Costello – to assist another if under
attack), but it must be a direct undertaking by D e.g. Palmer, Hill, Osman – no
direct / special undertaking of duty of D to specific V – no promise express or
implied, just towards general public. Where V is unidentifiable to D will mean no
duty of care will arise. Duty of care will even not arise where V is known unless a
special undertaking has been given (Mitchell “duty to warn (…) of 3rd party will only
arise where the person who is said to be under that duty has by his words or
conduct assumed responsibility for the safety of the person who is at risk”. See also
Selwood v Durham County Council and Others [2012] - ? NHS worker was
successful because someone had made the threat but she wasn’t told and got
stabbed – inferred assumption of responsibility because there was proximity, she
was one of a few workers and because her employer owed a duty
- Where there is a special relationship between D and 3rd Party; (Dorset Yacht Co
Ltd v Home Office [1970])
- Where someone creates a source of danger that may be sparked by 3rd Party
(Haynes v Harwood [1936], needs to be special source of danger e.g. not found in
Topp v London Country Bus [1993])
- Where there is a failure to take steps to abate a known danger created by 3rd Party
D created a known danger that could be ‘sparked’ by a 3rd party (i.e. D should
therefore do something e.g. because its on his property) but D does nothing to
abate it. (Smith v Littlewoods failed because this was not satisfied – the danger (of
vandals coming and starting a fire) was not known or foreseeable – only then would
a duty arise. The only thing that could’ve been done was hire round-the-clock
security which would be disproportionate to the level of risk – they already had
some security and had some taken some precautions against trespassers as
reasonably expected. On similar facts where there was indication that damage
would be caused as 3rd parties had lit fires before on the premises, liability was
found (Clark Fixing Ltd v Dudley Metropolitan Borough Council [2001]).
Summary: There are pre-tort relationships that give rise to a positive obligation to act where inaction would
give rise to a positive obligation to act e.g. contractual relationship, teacher and pupil – isn’t this voluntary
assumption of responsibility? Or is a breach of this duty dealt with under a different category of law like
criminal? Outside of specific pre-tort relationships, positive duties are generally not present in tort law and
judges unwilling to create them

Duty of Care: Omissions and 3rd Party Liability

case significance facts held

Haynes v 3rd party liability D leaves horses untethered on a busy D owed officer a duty of care as
Harwood exception: creating street, they bolted when some children he created a source of danger
[1936]) a special source of threw stones at them. A police officer that was ‘sparked’ by 3rd parties
danger that may be injured trying to control them
sparked by 3rd party

Needs to be special
danger e.g. Topp v
London Country
Bus [1993] failed
because a bus in a
parking lot left
unlocked did not
pose any special
risk of being driven
recklessly by
someone and killing
someone compared
to any other vehicle
there
Stansbie Assumption of Troman (D) is decorating C’s house. Assumption of responsibility
v Troman responsibility House owner left D to do his job. D despite it being an omission –
[1948] accidently leaves door unlocked when duty of care arose
going to the shop – during that interval
house gets robbed £10k. C sues D for
not looking after house
Hardy v Creation of danger D (Brooks) driving along highway when D owed C a duty to take
Brooks a cow wandered into his path. Cow gets reasonable steps to protect him
[1961] hit and dies. Cow carcass left in middle from the danger that he had
of road. D did not inform the local created. Crashing into cow was
authority/upcoming traffic, simply an innocent act, but did not
proceeded. C crashes into car and inform anyone
seriously injury
Goldman Creation of danger / Tree catches on fire on D’s land after D liable for the naturally
v Adopting the risk being struck by lightning. D cut it down occurring danger that arose on
Hargrave but decided to let it burn out by itself his land as he was aware of the
[1967] and took no further precaution to danger and adopted it by taking
prevent the fire spreading – fire no further steps to prevent it
reignites because of hot weather spreading. Duty of care found in
damaging neighbour’s property relation to adopted dangers on
one’s land when that danger
could spread onto a neighbour’s
land

Barrett v Assumption of A pilot stationed on a remote base Senior officers did not owe a
MOD responsibility where drunkenness had become duty of care related to failure to
[1995] commonplace was celebrating his discourage/prevent drinking –
birthday and a promotion when he adults should be responsible for
became so drunk he collapsed. The their own drinking. A duty did
officer on duty ordered that he be taken exist to have someone stationed
to bed – no one checked on him and he to watch over Barrett whilst he
choked on his own vomit and died. At slept because responsibility had
first instance it was ruled that the senior been assumed for his safety by
officers had breached their duty to the officer concerned. Also
prevent irresponsible drinking – reduced damages and
damages reduced by 25% to account increased acknowledgement of
for Barrett’s own contributory Barrett’s contributory negligence
negligence
Carmarth Control – 4 year-old child attended nursing school Duty of care owed / arose as it
enshire reasonably and wandered off the premises and was foreseeable that someone
CC v foreseeable that onto the road. C’s husband who was could be in harm if the children
Lewis child wandering driving along the road swerved to avoid were not under control – the
[1955] onto road could the child crashed and died. C’s family road was very close to the
injure someone sue claiming that D school owned by school which made the
local council owed the husband a duty relationship between the child
to keep control of the children at the and injured C proximate
school.
Dorset Control – special Young offenders on an island were Yes reasonably foreseeable that
Yacht Co danger required (C under the supervision of officers someone would suffer harm if
Ltd v in special danger if employed by the Home Office. The the boys escaped officer’s
Home A came out of B’s Officers went to sleep while on the job. control. But this was enough to
Office control – proximity) The young men escaped by boat and give rise to a duty of care – had
[1970] crashed into/caused damage to a yacht to show that C was particularly
in the process of escaping. The yacht at risk of suffering harm
owner sued the Home Office for because of the boat or because
negligence – officers owed duty of care they were in that harbour, C in
special danger – proximity

Boats were only way to escape

island so yes foreseeable that
they’d use the boat
Smith v Situations of 3rd D purchased a cinema with purpose of All law lords took different lines
Littlewoo party liability demolition/changing into a supermarket. of reasoning to conclude that
ds [1987] exceptions Before her did this someone set fire to it there’s no liability
and the fire spread to 2 adjacent
Owners do not owe properties – one of which had to be If cinema is treated as a source
duty of care to demolished. D sued for the property of danger – it is just not
neighbouring damage. foreseeable that someone would
properties which set fire to it.
eventually
damaged another No breach of duty – can’t expect
property due to the someone to have 24/7 watch of
acts of a 3rd party place

Here there was no No assumption of responsibility

failure to abate a
known danger – no - Where there is a special
way of knowing of it. relationship between D and
In Clark Fixing Ltd v C (created proximity) – e.g.
Dudley Metropolitan contractual relationship,
Borough Council promise by D not to do
[2001] there were something to endanger C
similar facts but it - Where there is a special
was known that fires relationship between D and
were started on the 3rd Party;
premises, Cs - Where someone creates a
themselves had source of danger that may
even complained of be sparked by 3rd Party
it – liability therefore - Where there is a failure to
found. take steps to abate a known
danger created by 3rd Party
Sandhu Menswear (Smith v Littlewoods)
Co Ltd v
Woolworths [2006]
– Ds left piles of
flammable clothing
around an industrial
estate. Which
caused damage
when set alight.
Though unlike Clark
the fire wasn’t lit by
3rd parties the Court
held that it was
foreseeable that the
fire could be lit by
trespassers so a
duty could arise
Stovin v Authority for pure Stovin injured when knocked off his Public law duty of care does not
Wise omissions (i.e. in motorcycle by a car driven by Wise. She automatically transfer into to tort
[1996] context of no had pulled out of a junction where law so wouldn’t give rise to
existing pre-tort visibility of traffic was obstructed due to cause of action.
duty): law shall not a bank of earth. The council knew there
punish omission – was an obstruction but hadn’t removed The council were not liable as
general rule = no it in time. liability related to an omission.
duty of care They did not positively make the
Mrs Wise argued they had a duty to situation worse.
Public law duty remove obstructions under the Highway
does not = a Code (public law duty). The Council
common law (tort) appealed.
duty. Moving on
from this point, the The trial judge held that Mrs Wise was
Council did not 70% to blame for the accident and that
positively make the the Council were 30% to blame
situation worse and because they knew the junction was
would not be liable dangerous and had been negligent in
for an omission not taking steps to make it safe.
Densmor Assumption of D fire department told the claimant Owed duty of care to take
ev responsibility whose house was on fire that a fire reasonable steps to get the fire
Whitehor engine was on its way to put the fire out. engine to her house – had been
se [1997] As a result, the claimant did not bother relied on
to take any steps to save the contents
of her house. The house burnt to the
ground as a fire engine did not come
Swinney Assumption of C gives police a tip on a someone who Police owed duty of care to keep
v CC of responsibility (but killed an officer. C thought they would C’s identity secret – but there
the no breach) remain anonymous. Perpetrator found was no breach as it was
Northum out C’s identity by breaking into the unforeseeable that the
bria police car and reading some perpetrator would break into the
Police documents. C threatened by the car
[1997] perpetrator and consequently suffers
psychiatric illness. C sues police for not
keeping the promise of keeping her
identity secure.
Capital & Creation of Danger A fire broke out in the building owned by A fire service, as a public body
Counties the claimant. The fire brigade arrived will only owe a duty to a
plc v and turned off the sprinkler system. property owner where it either
Hampshir They then had difficulty in locating the creates the danger in the first
e County fire during which time the fire became place or where its positive
Council out of control. They then reactivated the actions upon responding to an
[1997] sprinkler system however, by now it was emergency make the situation
so damaged as to not work effectively. worse which they did
Entire building was completely
destroyed causing loss of £16M
Costello Assumption of Female constable attacked by a CoA agree – officers assume
v CC of responsibility prisoner – she called for help from a responsibility to ‘watch each
the police inspector in the vicinity who did other’s backs’. Where a police
Northum not come. Costello alleged that the officer’s omission might lead to
bria inspector had a duty to assist a fellow avoidable harm being suffered
Police officer when in trouble by a police officer, a positive
[1999]: duty to act would be imposed.
Thus, failing to act, the police
inspector breached the duty and
the police constable was liable
Palmer v Control – but no V (little girl) kidnapped, sexually No special danger – the health
Tees HA special danger (1) assaulted and murdered. The authority did not owe C or the V
[1999] perpetrator was an out-patient of the D a duty of care – level of
Specific undertaking hospital – mental disorder + dangerous, proximity did not exist
required had admitted to sexual feelings towards
children and threatened to abduct and “it is not open to the courts to
murder a child. C argued that D owed extend the accepted principles
the girl a duty to take reasonable steps of proximity simply because the
to diagnose the person and treat his facts of a given case are
tendency to sexually assault children particularly horrifying or heart-
rendering”
Reeves v Control Man commits suicide whilst in police Police duty to prisoners
Commiss custody. His partner claims police had extended to a positive duty to
ioner of owed him a duty of care to prevent this take reasonable steps to assess
Police for happening. Previous case law had the suicide risk of all prisoners –
the established that a duty of care existed in this was justified by the degree
Metropoli respect to suicide attempts of prisoners of control exercised over
s [2000] if they were known to be mentally ill but prisoners in custody and the
the man was considered of sound mind known high risk of suicide even
by a doctor. Police argued no duty of if there is no known mental
care because of this + he died at his illness. Court did however take
own hands even though the opportunity account of contributory
only arose out of their own carelessness negligence and reduced
damages to 50%

Later decisions as approved in

Keenan v UK [2001] stated that
the duty did not exist for all
prisoners. The duty in Reeves
was only to take reasonable
steps to assess the risk of
suicide and act accordingly –
must have a reason to have
been aware of suicide risk, not a
presumption that all prisoners
risk suicide
Watson v Creation of Danger / Boxer spends lots of time in wheelchair D owed player a duty to take
British Creation of and coma after a brutal match. After the reasonable steps to protect him
Broad of opportunity for match there is meant to be a routine from danger
Boxing danger medical check – in this case this was
Control not arranged, he was left unattended.
[2001] Sues D organiser of match
Kv Control – no special Man in prison for sexual assault and No special danger towards her
Secretary danger/specific burglary – detained awaiting deportation more than anyone else so no
for State undertaking – he was released. He raped C. C sues duty of care – insufficient
for the home secretary for negligence claiming proximity
Home that they had a duty of care towards her
Dept not to release the man – Home Office
[2002] acted unreasonably, reasonably
foreseeable that if he was released he’d
reoffend
Kane v Where is the line D Council created a right of way across Authority had foreseen dangers
New between conduct the main road. C gets hit by a car and when granting permission for
Forest creating danger and sought damages saying that the council development of right of way but
DC merely providing an had allowed for vegetation to grow to an had failed to make it safe when
[2002] occasion for the extent that it was impossible to be seen complete. Creation of danger –
danger to arise they constructed the footpath
Gorringe Reaffirms ratio of Claimant driving on country roads and Revisit Stovin v Wise – whether
v Stovin sees bus coming towards her in the public law statutory duty
Calderdal opposite direction – thinking that bus automatically gives rise to
e [2004] was driving on her side of the road she common law duty depends on
brakes sharply and her car gets into the parliament’s intention
bus lane – she gets injured. She argued
that Council should’ve/failed to put the
slow sign on the road and had a duty to
under the Highway Act 1980 S39
Sutradha Typical omission Largest and Mass poisoning. Omission: Decided that they
rv case: question of Bangladesh govt has sought to provide didn’t do anything to make the
Natural did D do something water via wells and encouraged citizens situation worse. HoL believed
Environm that positively made to use them to access underwater water that D did not do something that
ent C worse off than supply. The Research Council were would’ve saved the claimant
Research they would’ve been commissioned to conduct research to from being ill, case fails. The
Council had D done nothing test for toxins. Result was that generally research council did not have
[2006] the water was not contaminated by this positive duty to check for
Didn’t make toxins, but it was poisoned with arsenic arsenic
situation worse. The – could be fatal. Claimants in this case
people were already Sutradhar (someone who drank the
drinking it. They just water and was poisoned). They drank it
failed to prevent because they relied on the research
people from drinking results given out in pamphlets and
it argued that the Research Council had a
positive duty to check for arsenic
Mitchell v Not enough action A neighbour (Perpetrator) attacks and Council not liable. Council had
Glasgow for council to have kills C. Long history and violent threats not done enough for it to be
CC created the danger from P to C. P facing possible eviction correct to say that it had created
[2009] as a result. C’s family claim council a danger for Mitchell
liable for negligence for not informing C
of possible retaliation by P who had No duty of care to warn C that
been shown evidence of his own violent he might be in danger
conduct filmed by C at his meeting
about possible eviction with the council No assumption of responsibility
the day that C was killed + for renting
out flat to dangerous neighbour
Yetkin v Act not an omission Yetkin knocked over by driver whilst she Distinguished from Gorringe:
London – distinguished from crossed a carriageway. There was a this was a positive act – injury
Borough Stovin and Gorringe central reservation which at the time because council planted shrubs
of was made up of a flowerbed, bushes, obscuring the view – had they
Newham plants restricting pedestrian’s view of not done this likely would be no
[2010] the road – she crossed without waiting accidents
for her crossing light and was hit. She
argued that the council created a
hazard restricting her view and had a
duty to take steps to promote road
safety under the Road Traffic Act 1988
Michael v No assumption of Ms Michael called 999 as her ex- No award of damages. No duty
CCSWP responsibility, no boyfriend was being aggressive and – call handler did not assume
[2015]: duty of care – bitten her ear when he saw her with responsibility and promise as to
omission so no another man. He said he would return how quickly they would respond
liability any minute to hit her. It could also be
heard that he would “kill” her. The call
handler gave evidence that she had
heard “hit you” rather than “kill you”. The
call was graded to require an immediate
response and the call handler
summarised the conversation to the
police station without mentioning the
threat to kill. The Police labelled it so
that officers should respond in 60
minutes. 15 mins later Ms Michael
called again and following a scream the
line went dead. She had been stabbed
and killed by her ex-boyfriend. Family of
Ms Michael claim damages against the
police for negligence under HRA Article
2 (right to life) and said police operator
assumed responsibility to help

Special DOC Lecture 4

Problems II:
Public Bodies
● 2 approaches to whether or not a public body owes a C a DOC for an omission
(Diceyan approach vs policy approach)
● General exclusionary rule for public bodies which prevents DOC arising in most
cases because court assumes policy reasons to justify exemption. Exceptions:
making situation worse for example
Recap: ● Landmark cases

● Issues in relation to HRA 1998

Diceyan v Policy
● Acts vs Pure Omissions, exceptions: Assumption of responsibility, Creation of
Danger, Control

Diceyan approach:
● ’Equality before the law, or the equal subjection of all classes to the ordinary law of
the land administered by the ordinary law courts; the ’rule of law’ in this sense
excludes the idea of any exemption of officials or others from the duty of
obedience to the law which governs other citizens or from the jurisdiction of the
ordinary tribunals.’ (Albert Venn Dicey, 1908)
● A public body should not be held to have owed a C a duty of care to save from
Fire Brigade
some harm unless a private person, equivalently situated, would have owed such
duty of care.
● Diceyan approach associated closely by Lord Hoffmann approach

● ‘Public bodies owe no duty of care by virtue only of the fact that they have statutory
powers or public law duties’ (Lord Hoffmann)
Capital & Counties plc v Hampshire CC [1977] (DOC found, positive act)
● CA: ‘In our judgment, the fire brigade are not under a common law duty to answer
the call for help, and are not under a duty to take care to do so. If, therefore, they
fail to turn up, or fail to turn up in time, because they have carelessly
misunderstood the message, got lost on the way or run into a tree, they are not
liable’.
● Facts: A fire broke out in the building owned by the claimant. The fire brigade
arrived and turned off the sprinkler system. They then had difficulty in locating the
fire during which time the fire became out of control. They then reactivated the
sprinkler system however, by now it was so damaged as to not work effectively.
Entire building was completely destroyed causing loss of £16M
● Held: DOC owed, a public body will only owe a duty to a property owner where it
either creates the danger in the first place or where its positive actions upon
responding to an emergency make the situation worse (following East Suffolk)
which they did. Reasoning pg 155-156
● No duty of care to fight fires effectively or even turn up to fight them after having
accepted 999 call, no duty to even respond

John Munroe v London Fire Brigade – Diceyan Approach

● Facts: A technician caused an explosion on wasteland which adjoined the
Claimant’s land which contained Industrial premises. Small fires break out. Fire
brigade called and extinguished the fires on the wasteland but failed to check the
Claimant’s premises.
● Held: No duty of care was owed this was an omission and in tort if private
individuals are not under a DOC to act in omissions then public bodies should not
either.

Church of Jesus Christ v West Yorkshire Fire

● Facts: A fire broke out in a classroom adjoining the Chapel. The fire services were
called but were unable to fight the fire due to lack of water supply. Four of the
hydrants surrounding the church were faulty and a further three were not located in
time to fight the fire. Classroom and chapel destroyed. C brought action for breach
of statutory duty based on the Fire Services failure to inspect the hydrants.
● Held: No DOC for not checking the fire hydrants. They were not liable as they didn’t
do anything at the scene (omission) so not ‘fair just and reasonable’ to impose duty

Policy approach:
Policy/Operations
Distinction: ● Courts will find public body DOC to save from harm unless there is some reason of
Justiciability public policy why it would be undesirable to
● Why the reluctance? Separation of powers, not wanting to interfere with statutory
provisions and impose duties/allow remedies that law did not prescribe, policy
reasons e.g. making PBs pay for their actions comes out of taxpayer money etc
● Historically public bodies had general immunity from suit but this changed in
Mersey Docks and Harbour Board Trustees v Gibbs [1866] and confirmed in
Geddis v Proprietors of the Bann Reservoir [1878] where Lord Blackburn said
that while no action could be taken for harms caused by an agent of the Crown in
doing what they were authorized by statute to, if the harm was caused by
negligence an action may exist
● Little reluctance to find DOC in relation to personal injury and property damage
caused by negligence however e.g. a council van causing damage to property
● Exclusionary rule tends to apply where the harm is not easily recognized and not
direct or making the situation worse

● This is a preliminarily hurdle, if the answer is negative the court will not inquire on if
there is a DOC: an exhaustive review first on if the public bodies are justiciable in
the cases brought before them.
● Distinction between judges making a policy decision: (deciding on public body’s
statutory obligation i.e. within domain/discretion of PB, SOP should not adjudicate
e.g. resource allocation)
● Operational decision e.g. the way they do their job outside PB discretionary power,
may be justiciable by court
● ‘The distinction does not provide a touchstone of liability, but rather is expressive of
the need to exclude altogether those cases in which the decision under attack is of
Policy Approach such a kind that a question whether it has been made negligently is unsuitable for
judicial resolution, of which notable examples are discretionary decisions on the
allocation of scarce resources of the distribution of risks...’ (Rowling v Takaro
Properties Ltd [1988] AC 473, per Lord Keith)
● The policy/operations dichotomy (difference) is the mechanism by which the
justiciability of a particular case is determined.
● Examples of non-justiciability decisions are discretionary decisions on the
allocation of scarce resolution or the distribution of risks.
● Rigby v Chief Constable of Northampton [1985]: Police sued for causing
damage to C’s shop where they used inflammable CS gas to try and drive out a
burglar hiding there – policy decision to arm themselves with CS gas as opposed to
a non-flammable alternative, but the decision/action to do so without the equipment
to fight a resulting fire was foreseeable and an operational matter so a duty could
arise
● Knightly v Jones [1982]: instruction of police inspector for constable to drive
against the flow of traffic in a tunnel where police were dealing with an accident –
DOC found – the way they carry out the action
● Henry v Thames Valley Police [2010]: Police officer tries to create a barricade
with the police car to prevent a suspect escaping, but he did so in a way which was
dangerous and could foreseeably cause harm. DOC found

Anns v Merton LBC [1978] (overruled by Caparo v Dickman)

● ‘First one has to ask whether, as between the alleged wrongdoer and the person
who has suffered damage there is a sufficient relationship of proximity of
neighborhood such that, in the reasonable contemplation of the former,
carelessness on his part may be likely to cause damage to the latter – in which
case a prima facie duty of care arises. Secondly, if the first question is answered
affirmatively, it is necessary to consider whether there are any consideration which
ought to negative, or to reduce or limit the scope of the duty or the class of person
to whom it was owed or the damages to which a breach of it may give rise…(per
Lord Wilberforce)
● Facts: a block of flats suffered from damaged foundations. Council had been
responsible for inspecting it and overseeing construction. The defected foundations
Current Approach: eventually led to damage like cracking walls and sloping floors leading tenants to
seek damages.
Local Authorities (1) ● Held: HL awarded damages holding that the harm constituted “material damage to
property” and posed “a present or imminent danger to the health and safety of
persons occupying it.” Council had DOC to inspect foundations with reasonable
skill and care
● Anns test overruled by Murphy, proximity being equated to foreseeability dismissed
in Caparo

Hill v CC of West Yorkshire Police [1989] (HL)

● Facts: Hill was killed by the Yorkshire Ripper. Mother made a claim against the
Chief Constable on the grounds that the police had been negligent in their
detection and detention of Sutcliffe. D applied to have the claim struck out on the
grounds that there was no cause of action since no duty of care was owed by the
police in the detection of crime.
● Held: No DOC. General omission rule (so also Diceyan) ‘No special characteristics
or ingredients beyond reasonable foreseeability of likely harm which may result in
civil liability for failure to control another man to prevent his doing harm to a third…
that is sufficient for the disposal of the appeal.’ (Per Lord Keith of Kinkel)
● + Policy reasons why it would be undesirable to allow police to be sued for failing to
catch criminals: adds nothing to incentivize police to do a good job, defensive
practices in investigating crimes, courts incompetence to deal with police matters
and decide whether they acted correctly or not – SOP, resources: take up a great
deal of police’s time and money.

● Division of 2 approaches

● Public bodies liable if their negligence makes things worse, policy considerations

Local Authorities:
X v Bedfordshire CC [1995] (no longer good law but still a good case for policy
approach)
● ‘The public policy consideration which has first claim on the loyalty of the law is that
wrongs should be remedied and that very potent counter-considerations are
required to override that policy…however, in my judgment, there are such
considerations in this case.’ (Per Lord Browne-Wilkinson, para 749)
● Facts: Three joint cases but consider the facts of one of them: Children victim to
horrific neglect and mistreatment over several years, brought to council attention by
teachers, relatives, social workers. Children when older sue for refusing to put the
children on the protection register and putting them in care
M (A Minor) v Newham BC, E (A Minor) v Dorset CC [1995]
● The other joint cases in Bedfordshire

● Facts: sexually abused child tells psychologist and doctor that she is abused by
someone called John (her mother’s boyfriend’s name). They separate her from her
mother when it was actually a cousin who stayed with them who committed the
abuse. She sues for psychiatric harm to herself and mother due to the separation
and wrongfully putting her into care

● Held: Unanimous no DOC towards parents for policy reasoning: Child protection is
an interdisciplinary system of statutory protection – why single out the council if it
also involves police, education authorities etc, delicate family situations – Council
makes the call its too delicate of a situation to introduce a legal duty, defensive
practices and investigating every little fact before removing a child – risk, diversion
of resources to defend themselves
● The only duty owed was to not cause harm to child during physical examination.
Child in care has no right to bring a private law action against a local authority for
failure to discharge statutory duties under childcare legislation or for negligence in
discharging its duties.

● This next chunk from M’s notes not lec?:

● Therefore: The Breach of statutory duty by itself not sufficient to give rise to private
law cause of action. Just because a public body has a duty under legislation and
they don’t do it, this is not enough to amount to tort liability.
● Plaintiff would have to show the circumstances gave rise to a DOC being owed by
authority so would need to prove the decision was outside ambit of authority’s
discretion. Here Since it was for the authority and not the courts to comment on the
exercise a statutory discretion conferred on it by Parliament, nothing the authority
did within ambit of the discretion which could be actionable at common law.
● However, if decision was so unreasonable that it fell outside ambit of the discretion
conferred (unreasonable in the Wednesbury sense) then this could give rise to
common law liability.
● Even if decision is outside ambit of authority’s discretion, will be no common
law duty of care relating to the taking of decisions involving policy matters,
since these decisions are non-justiciable. [Often termed the ‘policy vs operations’
distinction]
● Once these hurdles are passed, claimant must then satisfy three requirements
in Caparo v Dickman namely – here it failed in it being fair, just and reasonable

Barrett v Enfield LBC [2001]

● Facts: A boy suffered from various psychiatric illnesses after many years of life with
a number of adoptive parents.
● Without a proper hearing of the facts the HL said it was impossible to say whether
the actions of the council in respect of the boy’s upbringing were policy decisions
(conferred via a statutory power) and therefore not justiciable, or operational
decisions which would be justiciable and could therefore give rise to a duty of care.
Thus child able to pursue claim until the Court was certain it wasn’t actionable (he
just needs to bring the facts and evidence). While a decision to take a child into
care pursuant to a statutory power was not justiciable, it did not follow that, having
taken a child into care, a local authority could not be liable for what it or its
employees did in relation to the child. The importance of this distinction required,
except in the clearest cases, an investigation of the facts, and whether it was just
and reasonable to impose liability for negligence had to be decided on the basis of
what was proved.

● Summary:

● X v Bedforeshire CC [1995]: no duty to save children from being abused because

important they should be left free to decide how to deal with such cases without
threat of being sued hanging over them
River Authority:
● D v East Berkshire NHS Trust and other cases [2004]:

● Facts: Mother wrongly suspected of harming daughter. In MAK (joint case) man’s
daughter taken away based on him apparently abusing her. RK (joint case) couple
wrongly accused of abuse and child taken. In each case the local authority argue
that because of X they didn’t owe a DOC regarding decisions on whether to take
children into care (see the reasoning they’d given above e.g. defensive practices).
X and finding of no duty overturned. CA said that HRA must now be considered as
citizens now have the right to sue public bodies for violating rights and failing to
fulfil public obligations – domestic courts can no longer make decisions impinging
Commissioner: on these guaranteed rights – its therefore now fair just and reasonable. Thus
Council can be sued if they wrongfully take or don’t take child in. However this duty
is owed to the child not the parents. Healthcare professionals and social service
professionals do not owe a duty of care to parents in their decision making with
regards to matters affecting a child. To impose a duty would be an extension of
situations in which a duty was owed. It would be impractical to impose a duty in
relation to the suspected perpetrator of a crime and the duty would conflict with that
of the victim. Where there is suspicion of abuse there’s a duty towards the child to
ensure this is properly and sensitively investigated
● JD - C was wrongly accused of having Munchausens Syndrome by proxy and
making her child ill. The child in fact suffered from multiple severe allergies
● RK – C wrongly accused of sexually abusing his daughter. The daughter had
injured herself riding her bicycle and she also had Schamberg’s disease which
involves purple patches on the skin.
● MK – C wrongly accused of physically abusing her daughter resulting in a broken
Highway/Local
leg. The daughter suffered brittle bones.
Authority
● No duty towards parents rules refined: an absolute rule was not laid down, the rule
is that no duty will be owed to those suspected of abuse parents or otherwise
(Tydfil County BC v C [2010])
● CN and another v Poole BC [2016]: DOC owed to two brothers – negligently
failed to take necessary steps to safeguard the boys from abuse by placing them in
accommodation they knew was near an antisocial family member which caused
foreseeable and physical and psychological harm. But they rejected there being a
DOC for social services and children
● Phelps v Hillingdon LBC [2001]: Negligent assessment of child’s learning difficulties
which affected educational development/employment as adult, Wrong advice given
by council on diagnosis, Correct equipment for learning difficulty not provided,
Inadequate education damaged her. HL: Council may have assumed responsibility
regarding educational services pg. 179 blah blah more about educational 180
● See page 181 for authorities owing DOC to prospective parents making promises
not to provide certain types of children with e.g. mental health issues to adoptive
Ambulance Service: parents, not providing blanket immunity to local authorities

● Division of 2 approaches: Diceyan

East Suffolk Rivers Catchment Board v Kent [1941]
● Facts: River authority takes on the job of repairing a sea wall. Took really long
causing flooding to C’s land
● Held: HL find no duty to repair the wall expeditiously to famers whose land will be
flooded until the sea wall is repaired or even to complete the work once started.
Public bodies do not owe a common law duty just because they have a statutory
power to act (rather than a duty). Thus, could exercising power negligently attract a
common law (private). DOC? No – public bodies only liable for negligent exercise
where they make matters worse – current position

Yuen Kun Yeu v AG for HK [1988]

● Facts: HK – Defendant Commissioner, Depositer – C. C deposited money with a
Police:
licensed deposit taker, regulated by the Commissioner. He lost his money when the
deposit taker went into insolvent liquidation. He said the regulator was responsible
as it should have known of the difficulties.
● Held: claim fails, the Commissioner owed to them no specific duty of care in
exercising his statutory powers (to refuse/grant registration and revoke/suspend it
once granted) i.e. no duty to ensure that only well-run banks are on the register
● The requirements for a DOC were foreseeability of harm, a close and direct
proximity. Commissioner had no day-to-day contact with the deposit taker, no
special proximity to the plaintiff, and lacked the resources to control day-to-day
management of the company. It was not reasonable or justifiable for the plaintiffs to
rely on the fact of registration as a guarantee of the soundness of the company, nor
could the defendant be expected to know of such reliance. In the circumstances, no
duty of care was owed to the plaintiffs.

Stovin v Wise [1996]

● Facts: Stovin injured when knocked off motorcycle by a car driven by Wise. She
had pulled out of a junction where visibility of traffic was obstructed due to a bank
of earth. The council knew there was an obstruction but hadn’t removed it in time.
Mrs Wise argued they had a duty to remove obstructions under the Highway Code
(public law duty). The Council appealed.
● Held: Public law duty of care does not automatically transfer into to tort law so
wouldn’t give rise to cause of action. No duty on highway authority to flatten
roadside bank of earth that obscured line of vision at junction. This had been the
only accident in 3 years.

Gorringe v Calderdale MBC [2004]

● Facts: C driving on country roads and sees bus coming towards her in the opposite
direction – thinking that bus was driving on her side of the road brakes sharply and
her car gets into the bus lane – she gets injured. Argued that Council should’ve
/failed to put the slow sign on the road, had duty to under Highway Act 1980 S39
● Held: no duty on highway authority to tell motorists to slow down at bend in the
road), they did nothing to make it worse

● Division of 2 approaches: Policy

Kent v Griffiths [2001]
● Facts: The claimant was having an asthma attack. Her doctor attended her home
and called for an ambulance at 16:25. The ambulance, which was only 6 miles
away, did not arrive until 17.05. Two phone calls had been made to enquire why
the ambulance had not arrived and the operator confirmed that it was on its way
the claimant suffered respiratory arrest. The doctor gave evidence that had she
known of the delay she would have advised the Claimant’s husband to drive her to
the hospital. London Ambulance Service apply to have claim struck out based on
Capital and Counties
● Held: It was reasonably foreseeable that the claimant would suffer further illness if
an ambulance did not arrive promptly. There was no good reason for it failing to
arrive within a reasonable time, this duty was breached. DOC exists for an
ambulance service that has accepted 999 call to take patient to hospital reasonably
quickly. Ambulance and fire service distinguishable based on the service provided:
Ambulance service is an extension of NHS which does have a duty to individuals
e.g. doctor patient relationship so its fair and reasonable for a DOC to exist once
they accept the call to respond (assumption of responsibility).

Hill v CCWYP [1989]

● Facts: see above: Hill was killed by the Yorkshire Ripper. Mother made a claim
against the Chief Constable on the grounds that the police had been negligent in
their detection and detention of Sutcliffe.
● Held: No DOC. General omission rule (so Diceyan), no duty for police to investigate

● More cases based on policy approach:

Van Colle v CC of Hertfordshire Police [2008]
● Facts: Claim brough by parents of Van Colle who was shot days before he was due
to give evidence in a criminal trial. In the lead up, the murderer was alleged to have
intimidated witnesses (police knew or ought to have known). Colle was harassed
and told the police who did not arrange the meeting they said they would to arreast
the shooter. Mr Van Colle's parents brought an action against the police alleging
violation of Art 2 HRA rather than under negligence.
● Held: According to Osman v UK a positive obligation to prevent death arises for
public authorities only where the authority knew, or ought to have known, of the
existence of a real and immediate risk to life. Whilst Van Colle was to be a witness
and therefore within the class of persons to whom a duty to protect might arise, the
crime for which he was a witness was of a minor nature (theft) and the shooter did
not have a history of violence. The threats were intimidating but not sufficiently
serious to suggest that Colle's life was endangered. Therefore, no obligation arose
to take reasonable steps to prevent the killing and thereby no violation of Art 2.
● The court themselves noted that a negligence claim against police would be
‘fraught with difficulty’ i.e. would be likely to have failed. They did however frame
their arguments in terms of negligence precedents and policy reasoning and the
CA said that it was for those very reasons that the police should be obligated to
protect witnesses. The HL however said no violation of Art.2 because there was no
‘direct or immediate threat’ to his life
● ECtHR reaffirm the HL and the Osman v UK test/threshold

Smith v CC of Sussex Police [2009]

● Facts: Smith lived with his lover. Relationship ended and partner assaults him. Ex
sends abusive and threatening texts which included death threats. Smith contacted
the police several times in relation to the threats and told them of the previous
violence. Ex attacks with a hammer causing three fractures to the skull and brain
damage. Smith brought an action against the police for their failure to provide
adequate protection.
● Held: No duty of care was owed same reasons as Hill v CC Yorkshire. Finding such
Army Policy duty would unduly bias police towards prioritizing cases where an identified person
approach claimed they might be victim of violence over other cases
● Lord Bingham dissent on why Hill considerations aren’t important here pg 163

Brooks v Commissioner of Police for the Metropolis [2005]

● Facts: Brooks was present at the notorious racist killing of his friend Stephen
Lawrence and had himself been subject to abuse and attacks. He brought a claim
against the Commissioner for the failure to provide him adequate protection,
support and assistance which was generally afforded to victims of serious crimes.
He suffered PTSD which he claimed was exacerbated by the treatment he received
from the police (when they conducted their investigation and suspected him?). The
Commissioner applied to have the case struck out on the grounds that there was
no reasonable cause of action.
● Held: The case of Hill v CC Yorkshire precluded (prevented) the imposition of a
duty of care.
● As a matter of public policy, the police owe no general duty of care to victims and
witnesses in respect of their activities when investigating suspected crimes. Such a
duty would cut across the freedom of action the police should have when
investigating serious crime.

Michael v Chief Constable of South Wales [2015]

● Facts: Ms Michael had phoned police from home just before half past two in the
morning on 5 August 2009. However, her mobile phone signal was picked up
across the county border by Gwent Police, rather than South Wales Police. Ms
Michael informed the Gwent Police operator that her ex-partner had found her with
someone else, bitten her and threatened to hit her and was going to come back
and kill her (but there was an issue as to whether the operator heard this). The
operator told Ms Michael that the call would be passed to South Wales Police, who
would call her back. The operator then spoke to her counterpart, Mr Gould, in the
emergency control room at South Wales Police and said that the ex-partner had
threatened to hit Ms Michael but did not mention the threat to kill. The information
was sent to officers on mobile patrol by 2.30am but it had not been graded as
needing an immediate response. It was alleged that the decision to downgrade the
priority level was made by Mr Gould. At 2.43am, Gwent Police received another
call from Ms Michael. Screaming was heard but it stopped. The call was graded as
needing an immediate response but when officers arrived at 2.51am, Ms Michael
had already been murdered. Ms Michael’s ex-partner pleaded guilty to murder and
was sentenced to life imprisonment Her call not directed to the right police station
and by the time it did not directed as urgent and when it did it was too late and she
was murder
● Held: HL refused to find liability. Lady Hale dissent saying that on the facts DOC
should arise – imposing liability would be good to deal with domestic violence
Re-examining Hill,
Diceyan approach is Robinson v CC of West Yorkshire Police [2018]
clearly favoured
● Facts: Facts: Pedestrian gets hurt when police were arresting a suspect

● At first instance accepted that the police officers had been negligent in carrying out
their duties. However, the precedent set by Hill v Chief Constable of West
Yorkshire precluded any successful claims in negligence against the police for
damage caused in the course of apprehending a suspect. CA found no DOC owed
and no breach.
● Held: Lord Reed sought to dispel the belief that the existence of a duty should
always depend on applying Caparo. Indeed, Lord Reed clarified that Lord Bridge
had not intended for his questions to become a test that should be used in each
case before a court. It is important to recognise that the police have always owed a
duty where harm is directly caused through their positive actions. Where a third
party causes harm to an individual that is because of police involvement though,
the law has veered away from imposing liability on the police. The case of Hill is a
prime example. However, Hill concerned an omission on the part of the police, not
a positive act like we had here – the present case features established principles of
negligence no need to consider fair just and reasonable. Result was reasonably
foreseeable. By attempting an arrest in public and on a busy street it was
foreseeable that members of the public may be caught up in the ensuing struggle,
which itself was probable to occur as the suspect was highly likely to try and resist
arrest.
● Appears to be clear authority for the proposition that the police will owe a duty of
care to individuals who suffer harm caused by a third party as a result of a positive
action on their behalf – personal injury

Smith v MOD [2014]

● Facts: The Supreme Court dealt with several claims arising from incidents involving
British soldiers serving in Iraq. One group of claims (‘the Challenger claims’) a
British Challenger II tank mistakenly fired two high explosive shells at another
British Challenger II tank: someone was killed and two people injured. The second
group of claims (‘the Snatch Land Rover claims’) arose out of the deaths of two
privates who were each killed by an improvised explosive device (IED) whilst they
were driving lightly-armoured Snatch Land Rovers. Each group relied on different
legal arguments
● Group 1: relied on common law tort of negligence and alleged that the Ministry of
Defence had been negligent in failing to ensure that the tanks were equipped with
technology that would confirm the identity of targets and improve situational
awareness, and negligent in failing to provide adequate target-recognition training.
● Group 2: claimants invoked the Human Rights Act 1998 and alleged that there had
been breaches of the two Private’s rights to life under Art.2 of the ECHR due to the
MOD’s failure to ensure better-armoured and equipped vehicles. One of the Snatch
Land Rover claims also included allegations of common law negligence on the part
of the Ministry of Defence
● Held: negligence: The majority judgment discussed whether the claims should be
struck out because of a doctrine of ‘combat immunity’, which ensures that tort
obligations do not interfere with decisions and actions on the battlefield, and
whether they should be struck out because it would not be ‘fair, just and
reasonable’ to treat the Ministry of Defence as owing a duty of care to the soldiers
with regard to the quality of equipment and training for active service.
● Thus the Court of Appeal’s decision not to strike out the negligence claims was
upheld, though the majority emphasized that the judge who decides what is ‘fair,
Why the Diceyan just and reasonable’ at trial will have to be very careful to avoid recognising any
Approach? duty which is ‘unrealistic or excessively burdensome’
● The Supreme Court unanimously held that the claims under the Human Rights Act
1998 should not have been struck out on the basis of the soldiers being outside the
jurisdiction of the United Kingdom under the ECHR. The Court split, however, on
the question whether it was sufficiently arguable that there had actually been a
breach of the article 2 rights of the soldiers concerned.
● There was general agreement between the Supreme Court Justices that in working
out what article 2 demands from a state that is planning for or conducting military
operations in situations of armed conflict a court must avoid imposing unrealistic or
disproportionate positive obligations
Acts and Omissions
under the ECtHR ● Summary: policy concerns about courts dictating military spending/training do not
make it unarguable that military owed duty to soldiers injured due to alleged lack of
proper armor or training
● Barrett v MOD [1995]: No DOC of superior officer to drunken officer until he
stepped in to help him back to his room and assumed responsibility
● Assumption of responsibility idea seems only to extend to civilian circumstances: in
Mulcahy v MOD [1996] it was found that ‘common sense’ and policy reasons eg
defensive practices meant the army should not owe a DOC to soldiers in battle
conditions even though C was hurt by his own sergeant in friendly fire

● The refusal of the courts to impose a private law duty on the police to exercise
reasonable care to safeguard victims or potential victims of crime, except in cases
where there has been a representation and reliance, does not involve giving
special treatment to the police. It is consistent with the way in which the common
law has been applied to other authorities vested with powers or duties as a matter
of public law for the protection of the public. […] The question is therefore not
whether the police should have a special immunity, but whether an exception
should be made to the ordinary application of common law principles which would
cover the facts of the present case.
● The most important aspect of Lord Keith’s speech in Hill is that, in the words of
Lord Toulson (Michael, para 37), “he recognized that the general law of tort applies
as much to the police as to anyone else”.
● Lord Keith: “There is no question that a police officer, like anyone else, may be
liable in tort to a person who is injured as a direct result of his acts or omissions.
So, he may be liable in damages for assault, unlawful arrest, wrongful
imprisonment and malicious prosecution, and also for negligence.” (p 59)
● The words “like anyone else” are important. They indicate that the police are
subject to liability for causing personal injury in accordance with the general law of
tort. That is as one would expect (this is how a private individual like you and me
would be treated if we hurt someone or their property), given the general position of
public authorities as explained in paras 32-33 above. (Lord Reed, Para 45,
Robinson v CC of South Yorkshire Police [2018] UKSC 4)
● The case of Hill is not, therefore, authority for the proposition that the police enjoy a
general immunity from suit in respect of anything done by them in the course of
investigating or preventing crime.
● Lord Keith spoke of an “immunity”, meaning the absence of a duty of care, only in
relation to the protection of the public from harm through the performance by the
police of their function of investigating crime. (Lord Reed, Para 55, Robinson v CC
of South Yorkshire Police [2018] UKSC 4)
● Immunity clearly doesn’t exist: Swinney v Chief Constable of Northumbria
Police [1997]: C gives police a tip on a someone who killed an officer. C thought
they would remain anonymous. Perpetrator found out C’s identity by breaking into
the police car and reading some documents. C threatened by the perpetrator and
consequently suffers psychiatric illness. C sues police for not keeping the promise
of keeping her identity secure.
● Police owed duty of care to keep C’s identity secret – but there was no breach as it
was unforeseeable that the perpetrator would break into the car. Distinguished from
Hill because it was clearly known by the police who might be harmed by their
negligence whereas in Hill the victim was unknown, thus police here assumed
responsibility. They found that the policy reasons for finding a DOC here
outweighed the policy reasons against e.g. informants deserve protection, they
perform a public duty and wouldn’t do so if they weren’t protected
● See also cases from last lecture e.g. DOC to suicidal prisoners and colleagues
(Reeves, Costello) where they assumed responsibility. Waters v Commissioner
of Police for the Metropolis [2000]: policy reasoning for employer negligently
failing to prevent her harassment by colleagues after she was raped. How would it
be for the public if police could not handle rape cases themselves?
● Orthodox rules of tort law are applicable to public authorities just as much as they
are to a private person, with only certain limited exceptions
● Public authorities generally owe no duty of care towards individuals to confer a
benefit upon them by protecting them from harm (omission principle). The police
can be liable for negligently causing physical damage to others (a positive act e.g.
Robinson case). They owe a DOC just like any other individual would
● The Caparo test is now only to be applied in novel situations, and not to create or
deny duties of care which have previously been found by the courts. (Michael). This
provided contractions (limits) of the policy test, to now only new situations. C
should look at existing authorities when deciding cases that come by (similar fact
previous cases) and if not then only use Caparo
● Same rationale as omissions

● Intrusiveness (law should not impose a duty to confined what people should do)

● Moral crowding out (allow people to feel good and V feels entitlement to deprive the
person of goodness)
● Deterring rescue (not to rescue people in case you are taken to court)

● Unfairness (‘why pick on me?’)

● It would be wrong to treat public bodies worse than it does private persons –
punishing the state for trying to do good

● Coastguard page 171

● Summary of emergency services and when DOC is owed page 172

● ‘Failures to act’ are treated as ‘acts’ for the purpose of determining whether it has
acted in a way which is incompatible with a convention right (HRA 1998, s6 (6))
● So the HRA does not regard the UK omissions law, they will treat omissions as
acts!
● Osman v UK [1999]: ECtHR ruled that Art. 2 imposed a positive obligation on a
state to protect an individual whose life was at risk from criminal acts. Article 6
(right to a fair trial) and article 13(right to a remedy) are violated.
Osman v UK
● Facts: Mrs O and son alleged that the police were negligently in failing to prevent
an attack on the family in which the dad was killed and child was hurt.
● Held: based on Hill (and the blanket immunity created for the police) found that
they found no DOC could be imposed so they appealed to European Court of
Human Rights. Was in breach of Art 6 of the European Convention of Human
Rights which provides that in determination of civil rights every person is entitled to
a hearing by an independent and impartial tribunal established by law.
● Held ECHR: says this is fundamentally wrong and the decision of the court have
violated art 2 right to life art 6 and 13.
● The blanket immunity provided by Hill v CC Yorkshire constituted a
disproportionate restriction on the applicant's right of access to a court or tribunal.
● Article 6 (right to a fair trial) and article 13 (right to a remedy) are violated.

Z v UK [2001] and TP and KM v UK [2001]:

● Facts of Z v UK: The applicants, four siblings, Z, were all British nationals. In
October 1987, the applicants’ family was referred to the social services by its health
visitor because of concerns about the children, including reports that Z was stealing
food. Over the next four-and-a-half years, the social services monitored the family
and provided various forms of support to the parents. During that period, problems
continued. In October 1989, when investigating a burglary, the police found the
children’s rooms in a filthy state, the mattresses being soaked with urine. In March
1990, it was reported that Z and A were stealing food from bins in the school. In
September 1990, A and B were reported as having bruises on their faces. On a
number of occasions, it was reported that the children were locked in their rooms
and were smearing excrement on the windows. Finally, on June 10, 1992, the
children were placed in emergency foster care on the demand of their mother who
said that, if they were not removed from her care, she would batter them. The
consultant psychologist who examined the children found that the older three were
showing signs of serious psychological disturbance and noted that it was the worst
case of neglect and emotional abuse she had seen. The Official Solicitor, acting for
the applicants, commenced proceedings against the local authority claiming
damages for negligence on the basis that the authority had failed to have proper
regard for the children’s welfare and to take effective steps to protect them.
● Held: claims were struck out based on ‘X and Others v Bedfordshire County
Council 1995’. Lord Browne-Wilkinson held that public policy considerations were
such that local authorities should not be held liable in negligence in respect of the
exercise of their statutory duties safeguarding the welfare of children under the
Children Act 1989.
● The siblings took this to the ECRIH – on violation of article 3 (freedom from torture
(mental or physical) or inhuman or degrading treatment or punishment
● Article 6 – right to fair trial

● Article 8 – right to respect your private family without interference by government

(authority argued this)
● Article 13 – if people’s rights are violated they should be able to access effective
remedy
● Held ECHR: Article 6 – not been violated, Article 8 – no issues arose here so no
violation, Article 3 - that individuals within their jurisdiction (UK) were not subject to
inhuman or degrading treatment, including such ill-treatment administered by
private individuals. This included reasonable steps to prevent ill-treatment of which
the authorities had or ought to have had knowledge: see, mutatis mutandis, Osman
v UK. There was no dispute that the neglect and abuse suffered by the four child
applicants reached the threshold of inhuman and degrading treatment.
● Thus, the state failed in its positive obligation under article 3 to provide them with
adequate protection against inhuman and degrading treatment as they were under
a statutory duty and had the powers to do so after it being brought to their attention
● The children were however only taken into emergency care, at the insistence of
their mother, on April 30, 1992. Over the intervening period, they had been
subjected in their home to what the child consultant psychiatrist who examined
them referred to as horrific experiences.
● NOTE: this means that there was a BREACH under the HRA but not in negligence.

● Public bodies can be routinely sued under the Human Rights Act 1998 if they
carelessly fail to save an identified individual who they know or ought to know is in
imminent danger of being killed or injured or being subjected to inhuman or
degrading treatment.
● Claims based on serious defects in the performance of the investigatory duty under
HRA 1998 can succeed if defects are all of a purely operational nature. (can be
now sued as they are under no longer under the protects of omission, as tort law
and European law are two different regions (Commissioner of Police of the
Metropolis v DSD and another [2018] UKSC 11)
● Facts: Between 2003 and 2008, John Worboys, the driver of a black cab in London,
committed a legion of sexual offences on many women. Victims brought
proceedings against the Commissioner of the Metropolitan Police Service (MPS)
for the alleged failure of the police to conduct effective investigations into Worboys’
crimes, which resulted in many more women being abused before he was arrested
(a long delay before this happened). The claims were brought under sections 7 and
8 of the Human Rights Act 1998 (HRA). The combined effect of these provisions
(so far as this case is concerned) is to allow a person who claims that a public
authority has acted in a way which is incompatible with their rights under the
European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) to bring proceedings against the public authority and to be
awarded damages.
● The kernel of DSD and NBV’s claims is that the police failures in the investigation
of the crimes committed by Worboys constituted a violation of their rights under
article 3 of ECHR. This provides that “[n]o one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
● Held UKSC: ‘The English cases make a clear distinction between the objectives
served by a tortious duty to compensate and a Convention-based duty to uphold
the prohibition on inhuman or degrading treatment. […] In substance, the
Convention-based duty is not aimed at compensation but at upholding and
vindicating minimum human rights standards. It is, substantially, to insist on
performance of a public duty. […] One cannot both uphold the distinction and
effectively eliminate it by employing a Convention claim to serve substantially the
same purpose as an action in tort.’ (Per Lord Hughes, para 136)
● Court made distinction between public bodies based on negligence and HRA.

● The convention-based duty is not a compensation but rather to uphold fundamental

human rights and discharge basic HR. HRA they are to reassure whether HR
standards have been breached or not. Negligence focuses on compensation by
deciding if a person is liable by breach of DOC
● Held: confirms that the police can be liable in proceedings for a breach of
ECHR, art 3’s prohibition on inhuman and degrading treatment (and possibly art 4’s
prohibition on slavery) where they fail to perform an adequate criminal investigation
into alleged serious ill-treatment.

Summary:

Special DOC Lecture 5

Problems III:
Psychiatric Injury
● Negligence:

● Duty: omissions, psychiatric injury, PEL

● Breach: standard of care

Introduction ● Causation: In fact, in law

Is it a damage in ● Defences: Contributory negligence, Volenti, Ex turpi

psych injury?
● A problematic area of the duty of care (psychiatric injury)

● 3 particular concepts:
Bereavement
● FAA 1976, s1A. Fatal Accident Act

● People who have suffered loss of husband or wife or kids entitled to a fixed number
of compensation (we don’t cover this)
Mental distress (anxiety, worry, grief etc.)
● Medically recognised psychiatric harm (not mere negative emotion), can’t recover
for mere grief, anxiety or distress (Hicks v Chief Constable of South Yorkshire
Police [1992], Brock v Northampton General Hospital NHS Trust [2014]
● White v Chief Constable of South Yorkshire Police [1998]: “The law cannot
compensate for all emotional suffering even if it is acute and truly debilitating”
pure psychiatric injury (or nervous shock, severe psychological harm)
● has to be medically recognised as a PI e.g. post traumatic mental order, paranoia,
schizophrenic, depression
● and secondly has to be pure PI not just Consequential:

● Consequential is like e.g. someone negligently injured arm so, and you couldn’t find
a job which caused stress and PI.
● Pure is not suffered from physical injury just PI from the negligence e.g. depression
Mental Distress:
Unprotected Legal ● Consequential mental harm recoverable under the head of ‘pain, suffering and loss
Interest
of amenity’ (non-pecuniary damages)
● Some have argued that the rules surrounding PI are problematic, contradictory with
inadequate theoretical foundations (Conaghan & Mansell p36) “all of these
outcomes can be explained in terms of the web of rules which have been spun
round cases of psychiatric harm but that does not make them any more defensible
when placed side by side and considered in terms of justice and basic common
sense” e.g. Attia v British Gas [1998]: house owner can recover from PI caused by
witnessing fire which damaged his home, but Alcock v Chief Constable of South
Yorkshire Police [1992] brother who saw sibling crushed to death cannot.
McLoughlin v O’Brien [1982] mother who sees family in hospital a few hours after
an accident able to recover but Sion v Hampstead Health Authority [1994] father
who watched son slowly die over 14 days from medical negligence couldn’t.
Walker v Northumberland County Council [1995] social worker with traumatic
workload which causes nervous breakdown can recover but in White the police
officers traumatised by Hillsborough couldn’t
● Claims for psych harm as a result of negligently inflicted personal injury is
straightforward (Corr v IBC Vehicles Ltd [2009])
Corr v IBC Vehicles Ltd [2009]
● Facts: Mr Corr was injured whilst repairing a machine and lost his ear from which
he suffered PTSD, depression, suicidal. He eventually commits suicide. He had
begun proceedings against his employer for the psychological and physical harm
for their negligence and not fulfilling their duty to take reasonable care to protect
him
● Held: Company liable for the suicide
Primary victims v
Secondary victims
● Unactionable

● Fear-of-the-future claimants:

● C.f. Johnston v NEI International Combustion Ltd [2007]; Rothwell v Chemical

and Insulating Co Ltd [2008] (pleural plaques could potentially develop cancer)
● Group of cases in 70s. Asbestos widely used in construction but is harmful
chemical - fibres likely to develop cancer, in cases C didn’t develop cancer but just
a physical warning (pleural plaque = sign of lungs) suggested likely to develop
cancer causing PI. Held: people who have developed PP is not physical injury. C
worried about developing cancer is not actionable not a legally protected injury
● D v East Berkshire NHS (2005): Council falsely and negligently take children away
from parents. Held: Council only owe DOC to children not parents + stress suffered
by parents is not legally protected (anxiety and stress)
● ‘The world is full of harm for which the law furnishes no remedy’, per Lord Rodger.

● Different rules apply for each

● Distinction created in Alcock between those ‘involved either mediately or

immediately as a participant’ and those who are ‘passive and unwilling witness of
injury of others’
● Primary victim: A victim whose physical safety is imperiled or one who reasonably
believes s/he was imperiled by D’s negligence, two party situation between just a V
and D
● Two types: ‘zone-of-danger’ primary victim and the ‘guilt-ridden’ primary victim

● Primary requirements: physical injury must be foreseeable, doesn’t have to be PI

(Page), C doesn’t need to have ‘ordinary fortitude’ i.e. eggshell can apply (Page)

Zone-of-Danger Victims
● A caused an accident as a result of carelessly doing X, and B was almost injured
physically and as a result B developed a psychiatric illness
● Long established that C able to recover from psych injury stemming from actual
injury or reasonable fear or apprehension of danger to physical safety (Dulieu v
White [1901]) but expanded in:
Page v Smith [1996]:
● Facts: Page not physically harmed in car accident but had a medical condition
which was revived from the accident and became permanent, he loses job. ME was
the only injury from the accident
● Held: Claim for PI successful provided he can show that A owed him a duty to take
care not to do x based on the fact that A’s doing x would result in B’s being
physically injured. HL equate PI to physical injury, should be treated the same i.e.,
if physical injury is foreseeable then so is psychiatric injury. The V was in the zone
of physical danger. Thin skull rule (the specific condition). Restrictive approach in
allowing primary victims only where there is foreseeable physical danger, but later
cases show willingness to widen the class
● Johnston v NEI International Combustion Ltd [2007]; Rothwell v Chemical
and Insulating Co Ltd [2008] failed despite relying on Page to say that since it
was reasonably foreseeable that Ds negligence might put him at risk of physical
injury, he was a primary V. His reaction was unforeseeable, no evidence that
finding out you had pleural plaque (i.e., not even the actual cancer) would cause
such a serious reaction to become mentally ill. “the category of primary V should be
confined to persons who suffer PI caused by fear or distress resulting from
involvement in an accident caused by the D’s negligence in its immediate
aftermath”. The C’s PI caused by fear that something might happen in future fell
into an “entirely different category” (Lord Hope). Lord Hoffman confined Page to PI
caused by events that had actually occurred “it would be an unwarranted extension
of the principle in Page to apply it PI caused by … the possibility of an unfavourable
event which had not actually happened”
● One area where the law will allow for recovery even though there is no accident is
a clinical setting where a mother sustains psychiatric injury due to negligence due
to the management of labour before the child is born: Wild v Southend University
Hospital NGS Foundation Trust [2014]; Wells and Smith v University
Hospital Southampton NHS Foundation Trust [2015], RE and others v
Calderdale & Huddersfield NHS Foundation Trust [2017], Yah v Medway NHS
Trust [2018] “it flows from that principle that the mother is a primary V is so far as
she suffers personal injury consequent on the negligence which occurs before the
baby is born.” It was not necessary to demonstrate Alcock shock, the C endured a
longer and more stressful birth that she should have done as a result of Ds
negligence…see page 111 textbook
Young v Charles Church Ltd [1997]:
● Facts: C is builder and was holding a scaffolding pole for his co-worker which fell.
Co-worker dies and wasn’t injured himself but experienced PI from watching co-
worker be electrocuted and die
● Held: C was a primary victim as he was in the area of physical danger created by
D’s negligent system of work in allowing scaffolding to be erected near ‘live’
powerlines

The ‘Guilt-Ridden’ Victims

● Usually involves a family situation
W v Essex CC [2001]
● Facts: Parents unknowingly bring a foster child who was a danger to children in
their house and their children get abused. Develop PI. Claim against council for
false record that the foster child did not have a record of sexual abuse
● Held: C was a potential primary victim, unwilling participant by bringing the children
together. DOC owed to parents
Hillsborough
Disaster ● Secondary victim: A secondary victim was a person who was not at risk of
physical injury but suffers psychiatric injury as a result of witnessing someone
Prior
being harmed.
● Three party situation which involves an additional secondary victim. Essentially
there are two victims who have suffered e.g. person who is killed, injured or
imperiled by the D (immediate V), the secondary V who is a bystander to the
suffering (Secondary V) – are they owed a DOC? Made more complicated after
Hillsborough
● Recovery in these cases is limited by policy by control mechanisms

● Generally, there is no DOC because they are not reasonably foreseeable Vs unless
C shows ‘something more’ which were 3 exceptions (no longer good law).
Hillsborough is good law

● The first control mechanism is the principle of ‘normal fortitude’: ‘a person of

ordinary phlegm’ which comes from Bourhill v Young [1943]
● Invoked as a means of assessing the validity of a claimants emotional reactions in
the face of trauma.”
● Means if an ordinary person would have been expected to withstand any
associated trauma in witnessing x then there is no DOC owed to the secondary V
Bourhill v Young [1942]:
● Facts: On train heard car accident, did not see the accident just blood and heard a
noise. Has a miscarriage and sues D who negligently caused the accident.
● Held: She’s an unforeseeable claimant, D can’t reasonably expect that she would
suffer, claim fails. Outside area of impact and as unknown to motorcyclist involved
in accident, outside area of foresight of shock.
● Lords held that ordinary people should be expected to withstand any associated
trauma when witnessing an injury of a stranger.
● Thus, if a secondary V suffers PI in circumstances the ordinary person wouldn’t, D
Post Hillsborough won’t be liable. However, once some PI is foreseeable the D will, based on thin
skull, be liable in full even if a particular vulnerability or susceptibility means the C
suffers much greater harm than anticipated (Bryce v Brown [1984])

● Football fans crushed because police did not manage the crowd and let in too
many people, 96 people died and 400 injured. This changed PI in tort law
● Prior: 3 exceptions to saying there is no DOC to a secondary victim (old law) we
now apply Hillsborough case law
1) Family situation: where it can be found there is a DOC to secondary V
McLoughlin v O'Brian [1983]
● Facts: M had 4 kids and on one occasion her husband took kids out, car accident
all injured. Someone phoned M and told her they were taken to hospital. She went
immediately and saw family covered in blood and one of her kids died = suffered PI
so sued the D driver who caused the accident
● Held: able to show close relationship between her and the victim these being her
kids and husband = family. Went to hospital ASAP = proximity in time and space.
Because of this family situation allowed the claim to go forward
● a) relationship between C and injured victims

● b) proximity of C in time and space – “immediate aftermath” P must be present

at incident or immediate aftermath

2) Employment responsibility situation:

Dooley v Cammell Laird & Co Ltd [1951]
● Facts: Crane driver loading material when rope snaps due to D’s negligence. Driver
thinks he has crushed a colleague below and develops PI
● Held: D had owed C a duty to take care not to cause the accident that had occurred
on the ground. PI reasonably foreseeable consequence of D employer’s negligence

3) Rescuers:
Chadwick v British Transport Commission [1967]
● Facts: Chadwick is window cleaner, one night there was a train crash about 200
yards from his house, he heard the noise and went to help Vs for 12hrs non-stop.
Afterwards suffered severe PI and passed away, his wife sued the British railway
who caused the accident.
● Held: British Transport owed him a duty not to cause a crash because if it occurred
it was likely that a rescuer would suffer PI
● A rescuer has no relationship with the D but this rule was based on policy to
encourage a good citizens to intervene and help out. There should be a DOC
towards a good Samaritan to get some compensation if need be
● We no longer have these requirements. Hillsborough has significantly modified the
pattern of the law in this area…
2 classes established:
● Alcock v CCSY [1999] family and relatives who have seen what happened
broadcast on TV and lost loved ones
● White (Frost) v CCSY [1999]

1st class: Alcock control mechanisms for secondary victims

● Facts: Friends and family of Vs who had either been on the ground when the
incident occurred or seen or heard on TV/radio (not directly involved i.e. in physical
danger so not primary Vs). They argued their PI were caused by what they saw
happen to and/or feared had happened to their loved ones making them secondary
V and police owed them DOC. Police admitted negligence but argued against
owing a DOC
● This was a TEST case: if decided in favour of C then more cases would be made

● Held: HL fail: lack of proximity between the Cs and police meant no DOC and the
PI was unforeseeable
● Lord Oliver sets out some guidelines called Alcock control mechanisms as to when
proximity will be established as to allow for DOC to secondary Vs:

1) Relationship of proximity with immediate V: normal ones like parent and child,
spouses but no longer limited to family and open to others as long as there is a
‘close tie of love and affection’ – it will be presumed for parents etc but it can be
rebutted, and other classes like siblings and other relatives must bring evidence to
prove the ties
2) Spatial and temporal proximity (the event or the immediate aftermath): the PI was
developed immediately via direct perception or after the immediate aftermath of the
incident (e.g. going to the hospital and seeing the injured person immediately,
blood, bruises – use McLoughlin v O’Brien – mother sees within the hour), usually
requires C to witness the accident unfold in front of them e.g. you were there when
someone got killed (at the event for PI to develop). Cs in this case could not prove
they saw it with their own eyes and ears/direct perception – they watched it through
the TV or radio.

Requirement confirmed in Taylor v A Novo (UK) Ltd [2013] where CA say that there
was no proximity for a daughter who witnessed her mother’s death three weeks
after an accident – judges say this would be too far a stretch in proximity. She was
not present at the accident or immediate aftermath but was still trying to sue the
employers

Galli-Atkinson v Seghal [2003]: immediate aftermath accepted to relate to mother’s

PI claim when she visited the scene of the accident and hospital morgue

Barisha v Stone Superstore Ltd [2014]: claimant arrived in hospital 5 hours after
her partner’s accident at work. He was on life support and she after staying with
him for 36 hours had to decide to turn off life support. Judges say there’s nothing
unusual about this situation and having to make these decisions. She ‘neither
witnessed the accident, not attended the scene, nor witnessed a continuation of the
scene, nor the immediate aftermath of the accident nor did she participate in a
seamless tale beginning with the accident’

Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015]: this

restrictive approach confirmed especially in cases of clinical negligence. Whilst
McLoughlin is an ‘aftermath’ case, Tomlinson LJ observed that ‘it could properly be
said that Mrs McLoughlin came upon the accident, albeit transposed into the
setting of the hospital’

3) Shock: PI must be caused by ‘shock’, a single episode rather than a continuous

process of responding to events. ‘A sudden assault on the nervous system’.

Lord Ackner in Alcock: ‘'Shock', in the context of this cause of action, involves the
sudden appreciation by sight or sound of a horrifying sight or sound or a horrifying
event, which violently agitates the mind. It has yet to include psychiatric illness
caused by the accumulation over a period of time of more gradual assaults on the
nervous system’ (the latter prevented a DOC in Alcock. No liability if you are merely
told about shocking event by 3rd party including via newspaper and television
broadcast, left open possibility of watching a live broadcast if it is clear Vs died e.g.
Nolan LJ says if a hot air balloon carrying children exploded on TV. However where
false but distressing news is communicated with intention of causing shock or
harm, the teller of falsehoold is liable for physical and PI Wilkinson v Downton
[1897] confirmed Wainwright v Home Office [2003], Farrell v Avon Health
Authority [2001] DOC owed to father who was mistakenly told his son had died
during birth and he held for 20 minutes a baby which wasn’t even his

Lord Ackner: the law gives no damages if the psychiatric injury was not induced by
shock. Psychiatric illnesses caused in other ways, such as from the experience of
having to cope with the deprivation consequent upon the death of a loved one,
attracts no damages...

Sion v Hampstead HA [1992]: Father who watched son die (after an accident)
over a period of 14 days while becoming increasingly aware of the hospital’s
negligent treatment was unable to recover. Held: if C prepared himself for this to
happen, it does not satisfy the shock requirement. The father was aware that son
would die and had a gradual mental wear down and had prepared himself

North Glamorgan NHS Trust v Walters [2002]: ‘seamless tale with an obvious
beginning and equally obvious end’, seamless shock. mother able to recover for PI
she suffered after hospital negligence causing leading to baby’s death. Court held
that such a shocking event was not confined to a single moment in time and, taking
a realistic approach to the facts, the 36-hour period prior to her son’s death could
be classed a single horrifying event. Terrible climax when baby held in her arms.
Lord Ward refers to Lord Wilberforce in McLoughlin ‘one looks to the totality of the
circumstances which bring the claimant into proximity in both time and space to the
accident. It seems to me, therefore to be implicit’ that Wilberforce did not intend to
confine the event ‘to a frozen moment in time’

Wild v Southend Hospital NHS Trust [2014]: father could not claim for foetus
which died and was delivered stillborn as a result of D’s negligence because it
didn’t equate to watching a horrific ‘event’, he experienced growing anxiety from the
moment they failed to find a heartbeat. Event started at the realisation that the
foetus had already died

Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015]:

Facts: C’s wife suffered complications after hysterectomy as D Hospital due to
negligence. C suffered PI as a result of watching wife’s rapid deterioration over 36
hours
Held: there was no ‘shock’, rather ‘a series of events which gave rise to an
accumulation during that period of gradual assaults on the C’s mind … the C was
conditioned for what he was about to perceive’, her deterioration was part of a
‘continuum’ ‘the story had many weeks and months to run’ – I think it was just the
fact that in 24 hours she got attached to drip machines and got swollen up etc.

RE (A minor by her mother and Litigation Friend LE) and others v Calderdale
& Huddersfield NHS Foundation Trust [2017]: grandmother could recover after
PI being present at daughter’s chaotic and distressing labour and delivery, had
hospital not been negligent RE would not have suffered harm (they thought he was
dead). They found grandmother and daughter had a relationship of ‘close love and
affection’ and that in being present at the birth she was proximate in time and
space. Regarding shock they agreed that PTSD from the first 15 minutes following
delivery triggered the PTSD – so childbirth can apparently be shocking
Requirement criticised by law commission pg 120 textbook

4) Normal fortitude see above (do this requirement first as preliminary, must be
foreseeable to cause PI). Objective that PI would be suffered, not subjective taking
vulnerabilities into account. Liverpool Women’s Hospital NHS Foundation Trust v
Ronayne [2015] also said that what he witnessed was not objectively horrifying, yes
she had an alarming and distressing appearance but what he saw would be
ordinarily expected of a person in the context, not a ‘sudden violent agitation of the
mind’. If this case had been allowed, it would’ve hugely increased the ambit for
claims against NHS – for any people who see loved ones in hospital setting due to
clinical negligence

2nd class: Rescuers

White v CCSY [1999]
● Facts: Police argued that they were owed a DOC by employer (D) so as employees
or because they were rescuers, Cs suffered PI from what happened on that day by
witnessing people getting injured and taking out bodies from the stadium
● Held: succeeded in CA and damage was awarded, the Sun newspaper made a big
case saying that it was the police’s fault the tragedy happened and they got
compensation, but the families did not. Public outcry and media influenced the case
to go to HL who held that Alcock mechanisms for secondary Vs must be satisfied,
not Chadwick primary V requirements. Modified the rescuers rule and held that
Chadwick related to primary victims whilst the police were secondary Vs/rescuers
● Chadwick v British Railways Board [1967] distinguished (two-party situation, in a
dangerous zone). C spend hours trying to get people out of that wreckage, he
placed himself there, in the stadium police were not in a dangerous situation as all
they were under a contract to be there
● HL: Police claim declined

● Whilst an employer owes a duty of care to employees not to cause them physical
harm and there is some authority supporting claims for psychiatric injury caused by
excessive stress imposed by the employer, there is no authority to support a finding
of liability for psychiatric injury caused by witnessing horrific injuries to others. With
regards to rescuers, their status as rescuers does not automatically place them as
primary victims. To amount to a primary victim, even a rescuer must demonstrate
that they ‘objectively exposed himself to danger or reasonably believed he was
doing so’ i.e. in the zone of physical danger. Since the claimants were not
themselves at risk of physical injury, their claims could not succeed.
● This case is often explained on the grounds of policy, in that it would be repugnant
to allow the police officers to recover where relatives had been denied
compensation. This is supported by the following comments:
● Lord Steyn: “it is common ground that police officers who are traumatized by
something they encounter in their work have the benefit of statutory schemes which
permit them to retire on pension. In this sense they are already better off than
bereaved relatives who were not allowed to recover in Alcock. The claim of the
police officers on our sympathy, and the justice of the case, is great but not as
great as that of others to whom the law denies redress.”
● Lord Hoffman: “But I think that such an extension would be unacceptable to the
ordinary person because (though he might not put it this way) it would offend
against his notions of distributive justice. He would think it unfair between one class
of claimants and another, at best not treating like cases alike and, at worst,
favouring the less deserving against the more deserving. He would think it wrong
that policemen, even as part of a general class of persons who rendered
assistance, should have the right to compensation for psychiatric injury out of
public funds while the bereaved relatives are sent away with nothing.”
● Dissent: thinks that it was ‘inconsistent’ to require foreseeability of physical injury a
necessary condition for PI – Lord Goff
● Suppose that there was a terrible train crash and that there were two Chadwick
brothers living nearby, both of them small and agile window cleaners distinguished
by their courage and humanity. Mr. A. Chadwick worked on the front half of the
train, and Mr. B. Chadwick on the rear half. It so happened that, although there was
some physical danger present in the front half of the train, there was none in the
rear. Both worked for 12 hours or so bringing aid and comfort to the victims. Both
suffered PTSD in consequence of the general horror of the situation. According to
the decision of the majority, Mr. A would recover but Mr. B would not. To make
things worse, the same conclusion must follow even if Mr. A was unaware of the
existence of the physical danger present in his half of the train. This is surely
unacceptable. (Per Lord Goff, dissenting) i.e. even if A didn’t know of danger
because it was foreseeable to D his claim would be successful and they both did
and saw the same things

Post Hillsborough: Employer Responsibility

● Hunter v British Coal Corp [1999]

● Facts: C employed by D to work in coal mine, C began driving vehicle and became
aware that there was a water hydrant, he tried to maneuver the vehicle around this
hydrant (negligence) but the track was too narrow (negligence) and caused the
water to flow everywhere. C stops vehicle and tries to stop water with co-worker. C
goes to get water hose. Big explosion and C told that co-worker killed. C
immediately felt responsible for the death and this guilt feeling caused him a
pathological depressive illness. He brought an action against the employee for the
psychiatric injury suffered
● Held CA: D did not owe a DOC, because C is a secondary victim has to satisfy the
Alcock rules. C was not a primary victim as he was not within physical proximity at
the time of the explosion and heard of the death 10 minutes later. As a secondary
victim he did not satisfy the criteria set out by Lord Oliver in Alcock

Dooley v Cammell Laird and Co Ltd [1951]:

● Facts: The claimant was a crane operator working for Cammell Laird. He was
loading material when the rope carrying the load snapped due to employer’s
negligence. The load dropped where the claimant knew workers were situated. The
claimant could not see into the hold and where the workers were standing. In fact,
nobody was injured. However, the claimant suffered shock at the thought that
workers could have been injured due to his actions. The shock aggravated his pre-
existing neurasthenia and he was unable to return to work as a crane driver.
● Held: He was entitled to recover damages for the psychiatric injury. The defendant
had provided too weak a rope for the task and the claimant’s psychiatric injury was
a foreseeable consequence of their failure.
● Involuntary participants – primary V, no need to be in physical danger, you can be
a primary V from being a ‘participant’ in the accident, ‘in the position of being or
believing that he is, has been, or is about to be the involuntary cause of another;s
death or injury’ rather than in physical danger
● See page 131 textbook for more about this point

Stress-at-work situation (an example of assumption of responsibility cases)

● Generally, no duty (see White); because C is a unforeseeable claimant and that
type of duty is too remote because the logic is that if you are paid to do some work
then you are assumed you have the capacity to do so unless:
● The normal fortitude rule (unless D knew C is particular vulnerable)

● Employers assume the C has the mental capacity

● Foreseeability is OBJECTIVLY assessed: if the employer assumes that C has the

metal capacity do so then you cannot have a claim unless D (employer) know C is
particular vulnerable to stress
● Reasonable foreseeability: D knew that C is vulnerable to stress-induced illness

● It is objectively foreseeable; the psychiatric injury could foreseeably result from the
task and thus the C would have a case to be owed a DOC

Walker v Northumberland CC [1995]

● Facts: C employed by council, social service work responsible for managing a
team. Got stressed and took leave due to his work. When he came back he found
that there was a big backlog waiting for him to complete, so doubled his workload
and then had 2nd break down made him stop working completely. Sued Council for
loss of earnings.
● Held: D council owned him DOC because they know he had a breakdown, so this
made his second breakdown foreseeable, they assumed responsibility to ensure C
avoided reasonably foreseeable PI
● If employer was able to foresee C mental stress, the case will succeed

● Examples where assumption of responsibility said to be found: Occupational stress

claims Walker, Employer/Employee Waters v Commissioner of Police for the
Metropolis [2000], bookmaker and gambler Calvert v William Hill Credit [2008],
Doctor and patient AB v Leeds Teaching Hospital NHS Trust [2005], Police and
Police informant Swinney v Chief Constable of Northumbria Police [1997],
Prison Officer and prisoners Butchard v Home Office [2006]: C who prison
authorities knew was suicidal was housed with someone else suicidal who commits
suicide. C wakes up and sees the other person hung himself and suffers sever
shock. Later told cellmate committed suicide because of his fault. Held: DOC to
ensure health and safety of prisoners which extends to minimising or preventing
risk of a vulnerable prisoner suffering PI due to being placed in a cell with a suicidal
prisoner
● Assumption of responsibility cases don’t require apprehension of physical danger
or impact, the PI stems from direct pressure or stress as employees
● Hatton v Sutherland [2002] confirms Walter (Hatton reported in Barber v
Somerset County Council [2004]) ‘unless he knows of some particular problem or
vulnerability, an employer is entitled to assume that his employee is up to the
normal pressures of the job’. The threshold question was whether the kind of harm
was reasonably foreseeable. Foreseeability should take into account individual
characteristics of employees, requirements made by them by their employer
including but not limited to the nature and extent of the work being undertaken, the
signs of stress shown by the employee themselves, the size and scope of the
business and the availability of resources.

Self Harm by D
● Can D be liable for putting themselves at risk at their own autonomy but this
causing PI to others? No it’s against public policy, people should be free to incur
personal risks. Self-infliction makes it against public policy
● Greatorex v Greatorex [2000]: Court refuse to hold D liable for C’s (firefighter and
D’s father) PI due to their negligent driving which caused an axxident
Summary:

Pure Economic Lecture 6

Loss
Liability for
● No liability in negligence for causing pure economic loss that is not a consequence
Economic Loss:
General Rule of property damage or physical injury to the Claimant or damage to the Claimant’s
property
Pure Economic Loss
Example One ● D cuts the main power cable to a neighbourhood in Kensington known for its coffeeshops and
restaurants. The power-cut happens at noon and lasts for 24 hours. C owns a restaurant and is unable
to open that day because of the power-cut. As a result, he calls his fresh sea-food provider to cancel
an existing order for that day as he will not be able to either cook or store the consignment. A regular
client of the restaurant has booked to come in at 1pm for a lunch meeting. The restaurant calls him to
cancel the reservation 20 minutes before he is due to arrive. He has no time to rebook a suitable place
for lunch and loses his prospective business opportunity.
- Cutting off of power not related to claimant
- What C suffered was pure economic loss - loss of profit he could have made
from closing restaurant. If he was unable to cancel the order from the supplier
and had to keep the seafood and pay, this would also be pure economic loss.
Supplier losing order is also pure economic loss (loss of a 3rd party), client has
lost on prospects for business opportunity
Pure Economic Loss - Because of the idea that so many people could be affected by D’s actions,
Example 2 there is a reluctance to allow for liability in negligence for pure economic loss

● D is the manufacturer of a vehicle that breaks down in a busy motorway and causes traffic to almost
stop. C1 owns a bus company and a few of his buses are caught in the traffic causing delays from 2-3
hours on estimated arrival times for more than 40 passengers. C1 has a policy for compensating
passengers for delays of more than 1 hour. C2 is stuck in a vehicle nearby unable to get to an
important business meeting and ends up losing the client. C3 misses a flight and has to rebook his
ticket at more than £500.
- If liability in negligence were allowed for recovery of pure economic loss
(unconnected to property damage/personal injury), it’s likely to involve multiple
claimants and an indeterminate sum of money

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

● D’s employees damaged a power cable owned and operated by a 3rd party which
supplied C’s stainless-steel factory with electricity. Power was out for 14 hours to fix
the cable. C had to remove a “steel melt” (steel halfway through being produced)
from the furnace to avoid it solidifying and damaging the furnace and the factory
was temporarily non-operational. C claimed for (1) the reduction of value in (the
steel) melt which had to be removed; (2) loss of profits C would have made from
the ”now damaged” melt if there was no power-cut and (3) the loss of profit on 4
other melts C would have processed if not for the power-cut.
● Held: C can recover for (1) and (2), but (3) is pure economic loss for which there is
no liability. Courts decided that a line had to be drawn somewhere and this is where
● Case different from classical examples of negligence because the D somewhat is
removed from the claimant: D wronged the 3rd party but 3rd party didn’t suffer any
losses, which were suffered by 3rd party’s clients. Client had no relationship with D
● Lord Denning on why recovery for PEL in Spartan Steel should not be allowed:
“This is a hazard which we all run…And when it happens, it affects a multitude
of persons: not as a rule by way of physical damage to them or their property, but
by putting them to inconvenience, and sometimes to economic loss…Such hazard
is regarded by most people as a thing they must put up with…Some…install a
stand-by system. Others seek refuge by taking out an insurance policy against
breakdown in the supply. But most people are content to take the risk on
themselves…They try to make up the economic loss by doing more work next
day. This is a healthy attitude which the law should encourage.” (at 38).
● He also said: “…the risk of economic loss should be suffered by the whole
community who suffer the losses… rather than on the one pair of shoulders, that is,
on the contractor on whom the total of them, all added together, might be very
heavy.” (at 39)
Reasons for the ● DOC only owed in respect to financial losses directly caused by D’s negligence
exclusion of Pure
Economic Loss ● Essentially talking about the policy reasons for why there shouldn’t be liability for
pure economic loss

● The risk of liability to indeterminate number of claimants (e.g. defective car causing
traffic to stop in tunnel) - floodgate argument. (Unlike physical damage or personal
injury)
● The risk of liability for indeterminate amounts damages for economic loss (e.g. loss
of profits- floodgates. a) not certain how much profit would have been made. If you
have indeterminate number of claimants asking for loss of profits, liability is too
Pure v. burdensome on D’s
Consequential ● The Party at risk of loss could just/may be better placed to assess the risks that
Economic Loss: may arise from negligence and purchase insurance - better solution than burden D.
Effect of the
operation of General ● Loss distribution (between many victims it is better to spread the loss amongst the
Rule as illustrated community who suffered, asked to bear the risk rather than placing burden on just
by Spartan Steel one D to bear it)
● Liability for economic loss can be addressed in contract law - 3rd party supplying
Spartan Steel with electricity, not the D. 3rd party does so via a contract. These
contracts can be negotiated to allow for recovery of economic loss in the event of
disruption of services

Conarken Group Ltd v Network Rail Infrastructure Ltd [2011]:

● Facts: The Defendants caused physical damage to Network Rail’s railway lines
and, in consequence, disruptions in service resulted. Physical damage to a railway
property by the negligent tortfeasor caused the Network Rail who attempt to sue for
(a) the costs of repair and (b) the financial loss caused as a result of the disruption
and (c) the resulting liability for Network Rail in contract to 3rd parties (i.e., which
were consequential economic losses – an estimate of reduced revenue in future)
● Held: Court allowed for C to recover for all losses occasioned by D damaging its
railway track (i.e. consequential economic loss) including compensation C had to
pay to 3rd party companies for loss of profits from inability to use tracks - Idea that
pure economic losses can be catered for in contract which creates a 3rd party link
● Difference between this and Spartan Steel is that here there was property damage
which creates a link with that 3rd party, no remoteness. D damaged C’s property
and C was able to recover the losses occasioned by this (consequential) but also
pure economic losses incurred by the 3rd party company that was in contractual
agreement with C to use the tracks. Here the 3rd party company was able to
negotiate contracts that allowed for the recovery of pure economic losses from the
track operator company in the case of a disruption of services
Exception to the Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd [1985]:
General Rule: The
Hedley Byrne ● Facts: C contracted to buy a cargo to be shipped on D vessel. At the time of
Principle damage to the cargo, C was not the owner or possessor of the cargo, but under the
terms of the purchase contract he had assumed the risk of the damage to the cargo
● Held: application of the rule that liability only for consequential not pure economic
loss sometimes leads to absurd results: C unable to recover because title in goods
did not vest in C until they reached C (i.e., pure economic loss).
● Despite situation meaning that C had to take the risk of damaging the goods they
still didn’t have title, courts clear that this meant non recovery

● Only exception to the General Rule that pure economic loss is not recoverable in
negligence: In certain circumstances, negligent misstatement could attract liability
● As per Lord Morris: “'If, in the ordinary course of business or professional affairs, a
person seeks information or advice from another, who is not under contractual or
fiduciary obligation to give the information or advice, in circumstances in which a
reasonable man so asked would know that he was being trusted, or that his skill or
judgment was being relied on, and the person asked chooses to give the
information or advice without clearly so qualifying his answer as to show that he
does not accept responsibility, then the person replying accepts a legal duty to
exercise such care as the circumstances require in making his reply; and for a
failure to exercise that care an action for negligence will lie if damage results.”
● DOC arises if someone with a skill or knowledge undertakes to apply that skill for
Hedley Byrne
someone who will rely on it
Principle- Required
conditions ● In Hedley Byrne, the courts applied this principle to negligently provided advice on
the basis that “words” are not to be distinguished from actions
Hedley Byrne v Heller [1964]:
● Facts: an advertising agency sought to employ the services of Heller & Partners to
determine the creditworthiness of one of their customers. The claimants relied on
the statements made which resulted in the loss of £17,000. This loss was a PEL in
having no link to physical damage to person or property. It was stated on the credit
reference that it was supplied “without responsibility”.
● Held: No liability mainly due to the denial of responsibility however the Hedley
Byrne Principles created:
1) A special (or ‘fiduciary’) relationship of trust and confidence between C and D -
comes from the idea that before this case, this type of liability would only arise
in contractual situations or situations involving fiduciary obligations
2) D must be possessed of a special skill or knowledge
3) Voluntary assumption of responsibility/risk on part of D for C (express or
implied)
4) Reliance on part of C had been reasonable

A Special Relationship and Special Skills

● The existence of a special relationship often depends on voluntary assumption of
responsibility and reliance.
● However, we know that giving advice in a social context will not give rise to liability
(Chaudhry v Prahakar: C gets advice from a friend regarding buying a secondhand
car - this situation could give rise to Hedley liability because the friend knew/had
experience in buying cars from auctions. But it was advanced that social contexts
won’t give rise to liability).
● We also know that D has to be in the business of doing what is complained of as
having been done negligently (Mutual Life and Citizens Assurance Co Ltd v
Evatt: C asked for assurance from a company about the credit worthiness of one of
its subsidiaries. Then it was decided that they’re not in the business of providing
such information)
● Esso Petroleum Co Ltd v Mardon [1976]: Employee of Esso whose job it was to
assess the potential of a petrol station advised a potential leaser of a petrol station
negligently. The C leaser suffered pure economic loss. Held: there was a special
relationship formed because in making the statement the employee had undertaken
a responsibility to C based on his expertise. C reasonably relied on this

Assumption of Responsibility and Reasonable Reliance

● The test for assumption of responsibility is objective and it can be implied. There is
an argument for considering the purpose for which the advice/service was provided
e.g. was the C likely to use the advice/look at it? If so, assumption of responsibility
● Reliance must be reasonable in the circumstances e.g. In Caparo v Dickman,
there was no basis to conclude that reliance by the Claimant on the auditor's report
was reasonable.
● In general, these determinations depend on facts

● Goodwill v British Pregnancy Advisory Service [1996]: D sued for negligently

advising C’s partner that vasectomy had been successful which caused the couple
to stop using contraception and C gave birth. Claim for costs of upbringing. Held:
yes there is a relationship of ‘trust and confidence’ they said the risks of making a
negligent statement hadn’t been assumed especially to the wife so she was not
entitled to rely on it. Damages for economic loss not recoverable

● Examples of situations giving rise to Hedley Byrne application (in red bold):
Henderson v Merret [1995]
● Liability not restricted to negligent misstatements and in fact go beyond, to the
provision of professional and quasi-professional services. - Hedley not just to
cover pure economic loss from negligent misstatements but also liability for the
provision of services (tort + contract - concurrent liability) i.e. activity of a D.
Murphy however curtailed this expansion and closed the doors on claims for PEL
relating to defective products or buildings
● Facts: Lloyds of London is an insurance market organised into syndicates (groups
who share business, risk, reward, policies etc). The syndicate offers both insurance
and investment opportunities. The active business of a syndicate is run by
underwriting agents. The liability of investors is unlimited, they share profits but are
also exposed to unlimited liability in the event of losses. Hurricanes caused
unprecedented losses for investors. Lloyds called upon the investors to cover the
losses for insurers. The investors sued the people running the underwriting agents
for negligent management of the investment fund. Henderson was one of the
investors, Merrett was one of the underwriting agents.
● Held: the agents had a duty to exercise due care and skill but could the agenda be
liable to indirect investors (behind the syndicate)? There was a contract between
the syndicate managers and direct members but not with the members of the sub-
syndicate. This led to the question of whether a duty could arise in tort/whether
there was an assumption of responsibility
Lennon v Commissioner of Police of the Metropolis [2004]:
● Facts: police officer negligently advised by personnel officer about the impact of
transferring from one police force to another on his employment contract resulting
in him losing his housing entitlement.
● Held: there had been an express assumption of responsibility by the personnel
officer regarding C’s transfer and the advice regarding housing allowance based on
this which C relied upon was reasonably expected
Customs & Excise Commissioners v Barclays Bank [2006]:
● Facts: Customs officers obtained ‘freezing orders’ on bank accounts of two
companies in debt. Barclays was therefore legally obliged not to let payments leave
the bank accounts, but they negligently did so. Customs wanted to recover the
money by suing Barclays. Argued that once a freezing order was made a bank
assumed responsibility for the loss of payments which left the accounts
● Held: no assumption of responsibility because the responsibility assumed couldn’t
be said to be voluntary – they were obliged by law to accept the order. Claim fails
● HL reasoning: said that the assumption of responsibility concept is an imprecise
tool to determine liability for economic loss. It’s interpreted flexibly and changes
based on facts and policy considerations in each case. Its presence or absence
doesn’t necessarily provide the answer in all cases (so it seems that in future it will
be more loosely relied upon in future and can be overridden by policy
considerations
Sebry v Companies House the Registrar of Companies (Rev 1) [2015]:
● Facts: Employee at Companies erroneously altered a status of company to show
that it had gone into liquidation. As a result many creditors withdrew and it actually
ended up in administration suffering a £9m loss
● Held: Companies House had assumed responsibility towards the company to
maintain accurate records (though this didn’t extend to others like the creditors)
Banca Nazionale del Lavoro SPA v Playboy Club London Ltd [2018]:
● Facts: Playboy asks a company (Burlington) to get a credit reference from their
bank for a man gambling who required more funds. Burlington ask the bank about
the man’s finances without mentioning Playboy. Bank confirms the man had a
trustworthy record and account trustworthy for up to £1.6m per week. Relying on
this Playboy grant the man a cheque-cashing facility £1.25m. After accumulating
winnings of £427,400 the man returned home to Lebanon. His cheques were
returned unpaid and it transpire that the bank opened his account two days after
providing the reference. The account was closed shortly after having never held
any funds
● Held: Playboy had not been entitled to rely on the reference, bank only owed DOC
to the addressee (Burlington) and there was no assumption of responsibility to
Playboy who they were unaware of

● Surveyors providing property evaluations owe a duty (and therefore can be

liable) to a purchase who have not commissioned them under Hedley:
Smith v Eric S Bush
● Facts: Surveyor commissioned by the mortgagor, but the purchaser of the property
knew that it would be commissioned and also contributed to the fee paid to the
surveyor
● Held: even though the contractual relationship between the surveyor and mortgagor
existed, the purchaser owed a DOC in negligence because the report was provided
negligent - liability found for the losses resulting from buying the property without
understanding the defects in it.
● This case is interesting - contrast to:
Murphy and Brentwood
● Facts: the claimant’s house suffered from foundational defects leading to
damage to walls and pipes. Instead of being repaired the claimant sold the
house below market value and claimed against the council for their reliance on
negligent advice as to the foundations which led to “imminent danger to the
health and safety of the plaintiff.”
● Held: Anns was overruled in this loss being purely economic and therefore not
warranting damages. No liability for defective foundations even if it causes
financial loss (i.e. house purchased at more than its value)
● But further contrast to Eric:
D&F Estates Ltd v Church Commissioners for England and Wales [1989]
● Facts: negligently done plastering on property

● Held: No liability owed by builders for defective properties because of the general
rule regarding pure economic loss following Murphy v Brentwood.
● But in Smith, surveyors providing property valuations are held liable for providing
them negligently and liable for the losses in buying defective property. Court in
Smith’s reasoning involved balance of power between service provider and the little
man (purchaser) (someone without the knowledge/expertise/recourse to order their
own valuation - thus obvious they’d rely on the report provided)
● The writer of a reference might owe a duty of care to the subject of the
reference (Spring v Guardian Assurance) - interesting as there is no relationship
in a sense between C and D - logical obligation ought to be owed to the person
requesting the reference and not the subject of the reference but this case tells us
otherwise
● Company auditors providing report to C knowing the purpose that the report
is intended for C (to regulate these firms and make sure that they’re credit worthy
and not fraudulent) (Law Society v KPMG – cf Caparo v Dickman). - bc of this
knowledge of the purpose there was liability
● Caparo v Dickman: reliance had not been reasonable given the context that the
Hedley Byrne
Liability Can be statement was made: Caparo was considering a takeover of another company and
Excluded so looked at information provided by the company’s auditors (Dickman) which it
was already receiving because they already had existing shares in the company.
The information showed that the company was doing well and Caparo launch
takeover, but they weren’t doing well. C sues D alleging negligence in preparing the
The Issue with audit. No DOC because it wasn’t reasonable for Caparo to have relied on. The
Hedley Byrne information when preparing for takeover. The audits weren’t even intended for
potential investors who would be an indeterminable sized class: the audits could
foreseeably be relied upon anyone, they were in general regulation so a DOC
shouldn’t be owed to everyone. Preparation of information for one purpose cannot
reasonably be relied upon for another purpose (confirmed in Reeman v Dept of
Transport [1997] where a certificate of seaworthiness was held to have been for the
purpose of enhancing maritime safety, not establishing commercial value of boats
so should be relied upon in this way). Clearly no assumption of responsibility. No
reasonable reliance meant no special relationship.
● Law Society v KPMG: D accountants for a firm of solicitors fails to discover that a
senior partner was defrauding clients. Law Society had to sue after over 300 clients
claimed compensation from them via a no-fault compensation fund established
exactly for this purpose. Law Society sue KPMG to recover these costs for the
negligent accounts. KMPG relying on Caparo argue that their duty was only to the
solicitor’s firm and not for anyone else relying on the accounts. Law Soc argue the
duty extended to them as firms had to have their accounts prepared annually for
the soc and it was known by the accountants that the soc would rely on this
information. CA agrees: bc accountants knew the purpose for which the accounts
were prepared it was foreseeable that a failure to correctly prepare them would lead
to claims being made against the fund – duty ought to be imposed, like in Smith
● Professionals providing services to 3rd party which benefit the Claimant
(White v Jones – solicitor negligently preparing will forgetting to prepare a new will
in accordance to wishes of the deceased. As a result, the beneficiaries of the to-be
will suffered, courts decided that they could recover in this case). In this situation
the C is far removed from D, D providing service not the C but to a 3rd party. Only
applies where the testator and beneficiary’s interests are the same/don’t conflict
● More on will-drafting 209-211

● Problem with these cases is that there’s no clear way of categorising/classifying

them so no way of understanding how they belong to the same category
● Steel and Another v NRAM Ltd: SC: generally not the case that a solicitor will owe
a DOC to the other side unless it was reasonable for the latter to have relied on
what the solicitor said and the solicitor could reasonably have foreseen that they
would do so. Ultimately fails as it wasn’t reasonable for D other side to rely on the
solicitor’s statement, this information could easily be checked and not reasonable
for its accuracy to not be checked

● As in Hedley Byrne itself for example

● Exclusion Clause must be in line with/satisfy s. 2(2) of the Unfair Contract Terms
Act (1977) requiring that the exclusion is reasonable in all circumstances.
● This only applies to situations involving businesses providing service to individuals
(consumer contracts not business to business contacts).

● the articulation of the rule can be deemed irrational as we have seen

Reasons for the
exclusion of Pure ● Jane Stapleton (this weeks reading) suggests that the reason for this jumble of
Economic Loss
cases is that the principle in Hedley Byrne itself was not articulated well or by
reference to the correct anchor - there was too much focus on the idea that words
can cause damage and not a lot of emphasis on the main problem in economic loss
(That pure economic loss is not recoverable under English law bc of certain policy
considerations , there was no addressing why Hedley was a different kind of case).
To inject some order into this focus should be put on policy reasons since this is
what prevented the recognition of liability for pure economic loss in order to allow
exceptions. Talks about cases like Smith v Eric not fitting with the idea that pure
economic loss will result in indeterminable no. of claimants and indeterminate
amount of damages. Purchasing of defective premises is a specific kind of situation
of economic loss which is not likely to be subject to this floodgate argument. Cases
that don’t like each other are being grouped together
● But you can understand why there is a readiness to use the case in a number of
cases that might not look anything alike. Arise because of the idea that Hedley is
the only exception to the exclusion on recovery for pure economic loss, its
application to cases does not provide clear principles. So, in any situation of pure
economic loss the tenancy is to immediately go to Hedley as it’s the only case that
would allow recovery
● Spartan Steele not an exception to the general rule, it’s an application of the
general rule - C only allowed to claim for consequential economic loss, not pure
● It has given rise to liability in situations where there cannot be assumption of
responsibility and/or reliance (e.g. surveyors to home purchasers – Eric Smith v
Bush; solicitors to beneficiaries of wills – White v Jones, Educational experts to
children Phelps v Hillingdon LBC) Problem in these cases is the inability to see how
there was an assumption of responsibility given how removed the C is from D. so
maybe in Smith the problem is not with assumption of responsibility but idea of
reasonable reliance, more obvious in White and Jones. Eric goes in complete
opposition with two cases regarding defective premises (Murphy and D&F estates).
In White v Jones there is no way you can argue there that the solicitor assumed
responsibility towards the C, its obvious that the responsibility is owed towards a
3rd party (client who wanted will prepared) and not necessarily to the beneficiaries -
but we have seen Hedley being applied to justify liability in these cases
● Phelps v Hillingdon: assumption of responsibility was said to hold the possibility of
liability owed by educational experts and psychologists towards the children
they were assessing a child removed from D? Makes more sense to say that D
owes a responsibility towards their client i.e. the school or the local authority
● So, Phelps and Merritt and all these cases are treated as an extension of Hedley on
the basis that Hedley is only concerned with negligent misstatements.
● In a sense Hedley Byrne was carved out of a bigger principle about a D with
particular skill or knowledge who undertakes to assist C knowing that/ought to have
known that C would rely on it - general idea of liability owed by professionals
providing services to claimants
● Recovery is allowed for negligent misstatements subject to Hedley requirements
but not activity-based losses i.e. what D has done in the context of a fiduciary
relationship. However, this distinction between what is said and done is hard to
distinguish sometimes

● Floodgates (But s there evidence for this? Some jurisdictions allow for pure
economic loss in certain circumstances and there doesn’t seem to be evidence that
this will lead to indeterminate no. of claims / amounts. But also then why some
claims and not others e.g. Liability for the loss of fees in Hedley Byrne as a result of
banks negligence but not in cases like Murphy v Brentwood for loss occasioned by
defective premises or loss of profits for negligent reports on property) - pure
economic loss can be excluded but we need clear lines of exceptions not just
Hedley which doesn’t do this -
● The Party at risk of loss can purchase insurance (Creates moral hazard issues
where there is no incentive to avoid negligent acts and do the right thing) but there
are arguments against employment of insurance to take care of liability that can be
taken care of in tort. the argument that tort law provides for deterrence doesn't
work. In this context if you take insurance and substitute it for tortious liability you
might end up with a situation where nobody exerts effort to avoid negligent
professional services - inefficient system
● Liability for economic loss can be addressed/catered for in contract (see e.g.
railway case, Cattle v Stockton Waterworks [1875] – C was contracted to tunnel
on 3rd party land but flooding from D’s pipeline delayed the works and C lost profits
because of delays. Contract which could provide for clauses which cater for
situations of disruption of work e.g. if work is disrupted not because of Cs actions
but actions of a 3rd party - e.g. that if this happens then the countdown till finish
date would stop and resume once resolved).

Summary:

Breach 23/Nov/20 Lecture 7

What qualifies as Example:
breach of duty? Music company X was engaged by Seedy Sounds Inc to promote their music festival which was
scheduled to take place on an Island off the coast of Spain. X’s campaign represented the
offerings of the festival as including luxury-accommodation, world-class cuisine and top-billed
music talent. Instead, festival goers were housed in disaster relief tents and were given pre-
packaged sandwiches. And because of unfolding issues regarding booking artists, the festival
was eventually cancelled leaving a number of festival goers stranded on the Island under these
conditions. X was closely involved with Seedy Sounds Inc in the project planning and execution
phases and was kept up to date with progress up to the point of launching their campaign three
months prior to the date of the festival. If X owes a duty of care to festival goers with respect to
their economic loss, did the company breach that duty?
● Hedley Byrne wrongful misstatement - say there is DOC to take care to make
sure arrangements being advertised are possible or underway - was this
breached? To reach a verdict, you have to consider whether the actions taken
were reasonable or not

What is breach? ● The law of negligence requires that conduct does not fall below a certain level
of care.

“You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour”, Lord Atkin in Donoghue v Stevenson
[1936]

“Negligence is 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.”, Blyth v
Birmingham Waterworks [1856]

Two initial questions to determine breach:

(1) How would the “reasonable man/person” act in a particular situation? (Objective
test – level of care expected)
(2) How did the Defendant act? (subjective question of fact)
The Reasonable
Man Test The Reasonable Man Test Three Questions to ask:

1. What are the characteristics of the reasonable man? (who is the reasonable
man?)
2. Could the reasonable man have foreseen the harm to C from his
acts/omissions? (reasonable foreseeability)
3. If the reasonable man could foresee the harm, how much care would he have
taken?
Who is the
reasonable man? ● So, in the first example, the question is, what would the reasonable marketing
team have done? I.e. can promises be delivered, keeping an eye out etc. Could
they have foreseen harm to Cs who are expecting certain things?
● The reasonable man is an abstract concept used as a vehicle for achieving
justice
● There’s feminist critique of the reasonable man p218

“The man on the Clapham omnibus”, Greer LJ in Hall v Brooklands Auto-Racing Club
[1933], “Traveller on the London underground”, Lord Steyn in McFarlane v Tayside
Health Board [1999] - not imbued with any particularly prudent qualities but also not
overly careless. Just the average person

We know the Courts will not look at the specific characteristics of the Defendant:
● Nettleship v Weston [1971] – learner driver held to standards of qualified
drivers. “The standard of care … is to be measured objectively by the care to be
expected of an experienced, skilled and careful driver” (as per Lord Denning
MR). Driver panics and loses control and hits something resulting in the
instructor's injury. Courts did not decide based on what the learner
drive/reasonable learner driver is expected to do. Courts will not take into
account the level of SKILL
● Birch v Paulson [2012]: D not liable for serious injuries suffered by a drunk
pedestrian who stepped in front of her car. Yes it was easy for her to have
driven in the middle of the road or reduced speed the standard of. Care
expected is not perfection, just needs to be reasonable care. Nothing here to
require D to as a reasonably careful driver to act in any way other than the way
she did in the situation she was in at the time
● Roberts v Ramsbottom [1980] – driver held liable despite having suffered
stroke prior to taking the wheel (Cf. Mansfield v Weetabix [1998] - driver went
into unconsciousness bc of a disease to do with his blood sugar levels - courts
find no liability - distinguished from Ramsbottom - he had no knowledge of what
would happen whereas in Ramsbottom D knew he suffered a stroke and
continued to take the wheel) - idea of insurability, driver already insured - if
courts did not assign liability to D then C would not be able to get insurance
● Wilsher v Essex Area Health Authority [1987] - junior doctor held to standard
of ordinary skilled doctor. Objective test, not subjective. Blindness in an infant
which was possibly result of 5 diff medical causes during the birth involving Jr
Dr - Courts won’t consider the level of skill, the same harm is being caused.
You are judged based upon the post you were occupying at the time of the
alleged breach and what a reasonably competent person occupying such a
post would do. The Jr Dr was held to the standards of the more senior post they
were occupying at the time regardless of the fact that it was part of their training

Cases where the Courts seem to have taken note of characteristics:

● Phillips v William Whitely [1938] – standard of care by jeweller piercing ears

is not standard expected of surgeon. Infection following ear piercing by a
jeweller. If C expected standard of care expected by surgeons she ought to
have gone to a hospital
● Wells v Cooper [1958] – standard of care expected of amateur DIY carpenter
is not that of professionals. Someone got injured for pulling a door handle that
was not well fitted - it was fitted by owner of the establishment and not a
professional carpenter - owner shouldn’t be held to same standards of a
carpenter - seems to be a detraction from the Jr Dr/driver but you can see that
this relates to a different set of Ds - not Ds dealing with the same type of
training/professional requirements - Ds here doing something removed from the
professional context
● Mullins v Richard [1998] – the standard of care required of children is the
standard of care expected of a child of “that age” - children won’t be held to
standard of care of adults. In this case teenagers fighting with rulers - one
injures one as a splinter from one got into kids eye causing major injury. Courts
decided to look at the behaviour involved from reference point of a child of that
age when deciding standard of care/negligence. Standard of care still objective
but scaled according to what can be ‘objectively expected of a child of that age’
(Orchard v Lee [2009]: two 13-year old boys playing tag. D was running
backwards and ran into C lunchtime supervisor who suffered injury. Court hold
that a child will only be held liable in negligence if their conduct is careless to a
very high degree or falls significantly outside the norm for a child of their age –
assessed based on a reasonable 13-year-old boy would have reasonably
foreseen significant personal injury from his actions – no
● General rule - reference point is objective unless its amateur doing job of
professional or situation of children

Accepted practice in a profession:

● The principal of the level of care expected is stated in Bolam v Friend

Hospital Management Committee [1957] as that a professional does not
breach his duty if “… he exercises the ordinary skill of an ordinary competent
man exercising that particular art … [and acts] in accordance with a practice
accepted as proper by a responsible body of medical men skilled in that
particular art” (per McNair J) - patient treated using electric shock but without
using the constraint / muscle relaxant - bc the Dr did not use the things in that
particular case, the use of electric shock resulted in a broken him. Courts didn’t
find liability/breach because evidence was advanced that whilst some people
would have restrained and used muscle relaxant, others wouldn’t have. Who
are judges to decide if something which has different medical opinion is good or
not?
● Applied to other professions in Arthur Hall v Simmons [2002]: Bolam extends
to other professionals/responsible bodies skilled in that art
● Facts: In the first case, in a protracted dispute for a building, the plaintiff’s
solicitors acted for the opposite side. In the second case, during matrimonial
ancillary relief proceedings, the plaintiff’s solicitors failed to provide her with
proper advice on the valuation and division of the proceeds of a sale and
lodged a minute of order which recorded an inaccurate valuation. In the third
case, during matrimonial ancillary relief proceedings, the plaintiff’s solicitors
advised her on the appropriate level of periodical payments and on the
possibility of contributions from the husband’s cohabitee, but on the day of the
trial, a different counsel persuaded the plaintiff to settle at a lower level of relief
on the incorrect assumption that the husband’s relationship with the cohabitee
had ended.
● Held: the legal profession does not have immunity from suit. The liability of
advocates for misleading their clients will not diminish the standards of
advocacy as courts are able to judge between errors of judgement, which are
inevitable, and true negligence. Thus, the floodgates for negligence claims
against solicitors will not be open.
● Provided D has evidence that professionals within the profession would have
acted in the same way, he is likely to not be found in breach
● Moy v Pettman Smith [2005]: Baroness Hale approves Arthur Hall

Accepted practice in a profession – qualification?

● Courts try to qualify the ideas of self-regulation a little bit, glossing Bolam back
a bit and vest control back into the courts: Bolitho v City and Hackney Health
Services [1998]: “In the vast majority of cases the fact that distinguished
experts in the field are of particular opinion will demonstrate the
reasonableness of that opinion…But if in a rare case it can be demonstrated
that the professional opinion is not capable of withstanding logical analysis, the
judge is entitled to hold that the body of opinion is not reasonable or
responsible” (as per Lord Brown-Wilkinson) - so what kind of evidence would
need to be provided?
● Facts: In Bolitho young boy with respiratory problems suffers brain damage and
cardiac arrest - alleged breach in decision of Dr not to intubate the patient who
eventually dies. When the nurses called the Dr she was not available. But in
order to argue there was no negligence, Dr said that even if they found her, she
would not have intubated the boy and a no. of Drs agreed. Courts injected the
idea that they will be able to decide whether a professional opinion is logical or
not - in a sense makes sense to reserve some discretion for judging if
something is reasonable bc there could be practices that dont make sense. - no
liability for Dr
● Can now be explained to have changed the test to:
● 1) Has the Dr acted in accordance with a practice accepted as proper by a
respectable body of medical opinion? 2) If yes, is the practice itself ‘reasonable’
and ‘logical’
● Note: its not for the Court to decide that one expert medical opinion is better
than another

Accepted practice in a profession – Informed Consent

● Issue involving Bolam and accepted practice in medical profession seeped into
a consideration of cases involving informed consent e.g.
● Following Montgomery v Lanarkshire Health Board [2015], and regardless of
medical opinion regarding the disclosure of a particular risk of treatment, a
doctor breaches his duty of care to a patient if he fails to disclose a material risk
of injury from a treatment. Did Dr and hospital breach DOC because they didn’t
inform a woman in labour of a risk of dislocation - small woman, diabetic, her
vaginal delivery would involve risk of dislocating baby’s shoulders - eventually it
resulted in brain damage to baby - she argued she was owed DOC to inform
her of the risk - D argued that other Drs wouldn’t have revealed the risk either -
apparently idea is that Drs like to encourage women to deliver without C
section. If we tell patients this is a risk most will want a C section - they want to
discourage it because it has something to do with the material instinct? very
patriarchal. Courts said cases of informed consent of this nature don’t belong to
Could the Bolam
reasonable man ● In cases like this, the question of whether a particular risk exists might be
have foreseen the decided with reference to the particular body. E.g. if Dr says there is no risk in
harm? doing this type of delivery but there is an actual risk, there would be breach
because risk exists and reasonable responsible Drs would know about it.
● In Duce v Worcestershire Acute Hospitals NHS Trust [2018] Hamblen LJ
suggested this involved a two-stage test:
● Case divides issue of consent into 2 steps: 1) ask, is there a risk of doing a
particular treatment that were or should have been known to the medical
professional in question? answer by reference to professional body (reasonable
Dr) 2) Should the patient have been told? disclosing risk or not has nothing to
do with the question of reasonable Dr - All Drs ought to disclose a risk so that
there is informed consent, bodily autonomy. This is a question of law and for
How much care the Court to determine, not subject to Bolam
would a reasonable ● If the risk involved is material (material test = ‘whether, in the circumstances of
man take to avoid the particular case, a reasonable person in the patients position would be likelt
the injury? to attach significance to the risk, or the Dr is or should reasonably be aware that
the particular patient would be likely to attach significance to it’ per
Montgomery but its unclear how relevant some subjective elements are: that
patient’s medical condition and severity, pain tolerance might be known but
what patient needing to be back at work etc. pg 233), it doesn’t matter if 100
Drs wouldn’t disclose it, you MUST disclose it - this is not subject to
professional opinion - Drs decide whether there is a risk, not whether it ought to
be disclosed
● Test applied in A v East Kent Hospitals University NHS Foundation Trust
[2015] – C argues that she should’ve been warned about her foetus potentially
suffering a type of abnormality. It was common ground that if that type of
abnormality was ‘material’ it ought to have been raised with her. Held: whilst a
risk ‘somewhere between the region of 1-3%’ is material in this context,
Montgomery isn’t authority that medical practitioners need to warn about risks
which are theoretical or background as was the case here
● Pg 234: Bolam informs both stages of Montgomery test (there are case
examples), Montgomery is also not limited to consent cases as originally
thought, has also been applied to cases where treatment in general is in
question to the duty to inform patients of the need for follow up treatment, and
outside the medical context too where a private bank had to warn consumers of
investment risks

Could the reasonable man have foreseen the harm? And what did D do (only if you can
foresee something you can act to avoid it)
● In Roe v Ministry of Health [1954], a man was poisoned/paralyzed when a
phenol solution seeped into an ampule containing anaesthetic with which he
was injected during operation. The cracks in the ampule were not discoverable
at the time. Held: no breach - at the time when the injury happened, these
cracks were not detected and there was no knowledge to say that these
ampules should not be kept in fennel solutions. The test applied was the
standard of medical knowledge at the time of the injury (not with hindsight). -
foreseeability of harm cannot be done without hindsight - reference point is the
time of the breach - would a reasonable man have foreseen the harm in order
to do something about it

How much care would a reasonable man take to avoid the injury?
● This depends on all the circumstances of the case:

1. The likelihood of injury: Bolton v Stone [1951] – cricket ball hit outside the
fence only 6 times in 30 years. This time it hit someone. No liability - it would be
unforeseeable. More likely the injury, more likely breach will be found.
Perry v Harris [2008]: it is foreseeable that children on a bouncy castle might
cause an injury but not foreseeable that it would be as severe as it was
Remember the foreseeable severity is judged at the time of the alleged breach,
test of foresight not hindsight (see Roe which was confirmed in Williams v
University of Birmingham [2011] ‘we must not look at what happened (…) in
1974 through 2009 or 2011 spectacles’
2. The seriousness of injury: Paris v Stepney BC [1951] – there is breach when
employers failed to provide safety goggles to employee blind in one eye. More
serious = more likely court will impose liability / breach. D should have known to
have taken care to prevent injury to the person - employee working with welding
equipment, piece of metal injured them in their only good idea - failure to
provide employee with goggles was breach because of the seriousness of the
situation if this employee were to lose his second eye
3. The cost of taking precautions: Latimer v AEC Ltd [1953] – slip and fall on wet
floor in factory. Factory where following rainfall floors covered with mixture of oil
and rain - owners spread sawdust to prevent slippage, C hurt anyway. Should
factory have been closed? The lesser the costs to preventing injury, more likely
there would be breach - easy to prevent injury in this particular case
However reluctance to interfere with budgetary decisions of public authorities
p238
4. Social value of the activity: Watt v Hertfordshire CC [1954] – fireman injured
by heavy lifting equipment on way to accident site. Incident required rescuing of
woman trapped under vehicle. Fire services sent vehicle for that purpose.
There was heavy equipment to help life the vehicle on top of the women. C
suffered injury and was hit by this equipment in the vehicle - no liability because
of the social value of this equipment/activity
In sports events the standard of care usually lower (but not eliminated p240)
because of the heat of the moment and people focussed on trying to win and
not on being careful. This was extended to cases of ‘horseplay’ Blake v
Galloway [2004]: teenager injured while playing a game throwing twigs at each
other. No breach, what happened was at its highest ‘an error of judgment or
lapse of skill’, just an unfortunate accident. Generally Vs of such accidents
won’t be able to recover unless they can show the injury was caused by failure
to take care which amounts to recklessness or very high carelessness or
deliberate harm caused (i.e. intent)

● How much care would a reasonable man take to avoid the injury?
The Learned Hand Formula in US v Carrol Towing Co [1947]:
● If B < PL (a reasonable man would take precautions to prevent injury).
● If B > PL (a reasonable man would no take precautions)

● (where P is the probability of injury, L is the seriousness of injury and B is the

cost of precautions added to the value of the activity). PL = probability of injury
x magnitude of injury, B = cost of precautions + social value – which is more
important – would it be efficient for the reasonable man to take precautions to
prevent injury?
● The more likely injury to result + more serious it is = more likely that liability will
be found in that particular case
● However, courts won’t look at these factors in isolation with other factors - will
be balanced with other factors that are oppositional - i.e. costs of taking
precautions e.g. factory in Latimer - if this cost is little and the activity in
question doesn’t provide any social value, more likely that courts will find
liability e.g. like in Latimer - nothing would happen if you closed the factory for a
day. In Tomlinson v Congleton BC [2003]: Lord Hoffman says that the
question of what amounts to reasonable care in the circumstances will consider
all the 4 factors which balance against each other
● So if value of social activity is little and courts don’t feel restrained by requesting
that factory stops for a while / costs are minimum - they’ll find liability but if
there’s a situation where probability and magnitude is high but the social value
of activity inquisition is high but cost is also high, courts likely to find that
reasonable man not advised to take precautions in that case
● In Watt found social value too high - a reasonable firefighting service is not
going to prevent people with riding with heavy equipment because it’s too
important
● Social value of activity - the good/benefit that it does e.g. value of playing sports
● Weigh cost / benefits

What did the Defendant do? – the second important question

● Once you have decided what the reasonable man would have done you
compare it to what D actually did – do analysis here in exam – discuss what D
did in the circumstances and compare to all these things
● Question of fact. Must argue that the Defendant did/failed to do what a
reasonable man would have not done/done.
● Doctrine of Res Ipsa Loquita (means the thing speaks for itself) may assist in
situations where C is unsure/it is not clear how exactly the accident happened
e.g. people falling out of trains because doors aren’t locked (Scott v London &
St Katherine Docks Co [1895]: injury occasioned by falling sack of flour/sugar)
■ In order to raise it Two conditions:
● The thing causing the accident must be in the sole management/control of
Defendant; and
● In the absence of negligence, Accident would not happen in the absence of
negligence. So even if C isn’t able to say xyz dropped the flower, they could
raise the doctrine to say there is an obvious duty
● See further requirements of this pg 246-7

Summary:
SARAH Act 2015 pg 243-244
If PQ is on road traffic accident see pg 246

Factual Causation Lecture 8

● Outline

● Factual Causation: ”But for” Test

● Problem Areas:

● Multiple Potential Causes

- Wilsher v Essex Area Health Authority
- Variations on the General Rule:
(1) Material Contribution to Harm - Bonnington Castings Ltd v. Wardlaw.
(2) Material Increase in Risk of Harm – McGhee v. National Coal Board
(3) The Mesothelioma Cases – Fairchild v Glenham Funeral Services

Negligence: ● Multiple Sufficient Causes

● Loss of Chance

● Miscellaneous

Negligence
● 1) Defendant (D) owes a duty of care
Causation:
● 2) D was in breach of that duty

● 3) Claimant (C) suffered damages caused by D’s breach of duty … which are
not too remote (Causation)
● 4) There are no defences available to D that would either defeat the claim or
reduce the amount of damages
Factual Causation:
● There are two essential ingredients to prove causation in negligence:
1) Factual Causation: Would the Claimant have suffered harm if not for the
negligence of the Defendant? (but for test)
2) Legal Causation: or remoteness of damage – basically whether or not we
should allow the Claimant to recover for the harm he suffered because of the
Defendant’s negligence. Is it a good idea to hold D liable for the harm, whether
the law ought to allow C a claim. We’ll look at this next week

Problem areas with ● Factual causation is proved through the “But for” test:
the test:
● But for the Defendant’s negligence, would the Claimant have suffered the harm
complained of?
● Barnett v Chelsea & Kensington Hospital Management Committee [1969]: Dr
failed to properly examine a man complaining of stomach ache. He was turned
away and later died of arsenic poisoning. Dr admitted negligence but argued that
he had not caused the death as the man would have died anyway even if the Dr
had responded properly as it was too late
● Held: Dr not liable. But for (Dr’s negligence test) did failed

A) Multiple Potential Causes

● Difficult when you can't say with certainty whether a particular reason was the
cause of the harm e.g. lack of scientific evidence, medical situations, multiple
vehicle accidents
Wilsher v Essex Area Health Authority [1988]
● A baby born prematurely suffered a retinal condition that left him blind on one eye.
Problem in the case was that the condition could have been caused by a number of
reasons including the doctor’s negligence in giving him too much oxygen, could
also have been caused because of the premature birth + three more potential
causes each equally probably (so 20% each)
● Held: No liability as all the causes are equally probable (i.e. you cannot show the
doctor’s negligence caused the blindness on the balance of probabilities). C could
not prove that on the balance of probabilities (+50%) that it was the Dr’s negligence
that caused harm to the baby
● Balance of probability is the evidentiary standard in civil cases - has to be more
probable than not ie over 50%

● However, courts did vary the ”but for” test to reach results that are considered just
in certain scenarios:
● Began with industrial disease cases
1) ”Material Contribution to Harm” Variation:
● Bonnington Castings Ltd v. Wardlaw [1958]: D’s liability was decided on D’s
material contribution to the harm C who developed a lung condition working in a
factory where he was exposed to silica dust (both as a result of D’s negligence
(guilty dust) as well as the inevitable nature of the job i.e. couldn’t be helped
(innocent dust) - But for won’t work
● Held: Even though some of the dust C was exposed to was “innocent”, D’s
properly ventilate the facility materially (more than negligible (minimal) “In a case
where medical science cannot establish the probability that 'but for' an act of
negligence the injury would not have happened but can establish that the
contribution of the negligent cause was more than negligible, the 'but for' test is
modified, and the claimant will succeed.” Bailey v Ministry of Defence 2008)
contributed to C’s injury. Decided in this way bc there was medical evidence that
the disease was caused progressively and cumulatively - so the more exposure to
dust, the more likely. Even if the innocent dust did it, the guilty dust contributed to
allow for the disease to materialise
● This approach appears to be confined to diseases contracted as a result of
cumulative exposure to toxins, dust, poisons etc.
● In Holtby v Brigham & Cowan (Hull) Ltd [2000]: C developed asbestos related
condition (different from Fairchild) caused by employment at several facilities.
● Held: liability should be apportioned based on Bonnington, each employer liable
but liability apportioned in accordance to the time spent in each employment - can't
tell exactly which one it was that was the trigger but they all contributed - each of
them materially contributed
● In Bailey v MoD [2009]: the deceased’s death resulted both from a condition she
had and the hospital’s (D) negligence in administering the wrong treatment. It
could not be said with certainty that it was their poor care that led to Miss Bailey's
weakness (and choking leading to brain damage), because her weakness was also
a result of the pancreatitis that Miss Bailey developed (and that was not the MoD
hospital's fault). Counsel for Miss Bailey argued that the MoD hospital was
nevertheless liable because although the brain damage would not, strictly, have
been caused "but for" the substandard care, the substandard care had materially
increased the risk of harm.
● Held: D was liable. The material increase in risk to Miss Bailey created by the
Ministry of Defence's hospital made for a sufficient causal connection to be liable in
negligence and materially contributed to her state
● Where the "but for" test of causation cannot be satisfied because of some
uncertainty, it is relaxed and a claimant will succeed in getting compensation if the
defendant materially contributed to the cause of the injury.
● In Rahman v Arearose Ltd [2001]: 2 causes of the same psych injury. C got
jumped at work and sustained injury as result of attack. And then at hospital they
administered wrong treatment causing him to lose sight in one eye. These
combined caused him to have PTSD.
● Held: employer and hospital should be liable, damages would be apportioned.

● Case criticised
When there’s more
than one negligent ● Synergy of causes
D but neither can
be proved to be the 2) “Material Increase in Risk of Harm” Variation - less lucid than contribution
cause of the harm to harm:
suffered, this is
sometimes known ● Mcghee v National Coal Board [1993]: C contracted dermatitis as a result of
as “indeterminate exposure to dust in a brick factory. Dust being there could not be helped but D had
cause” i.e. we don’t negligently failed to provide washing facilities and C had to cycle home with the
know which single dust on his skin. Like Bonnington, scientific evidence could not determine whether
fibre entered the it was the innocent or guilty causes that were the factual cause of the condition -
body the dust was innocent at work but became guilty after work if it stayed on longer
than it should
● Held: Unlike Bonnington, this condition was not a cumulative condition - could have
been triggered by a single exposure so the guilty dust (from D not providing
washing facilities) didn’t materially contribute to the harm itself but it did increase
the risk of the harm occurring as it prolonged exposure. D liable.
● BoP switched - shifted to D who had to show that there was another, more likely,
cause than their negligence. When this can’t be done (as in the case), D remains
liable

B) Unjust results

3) The Mesothelioma (cancer) Cases:

● Fairchild v Glenham Funeral Services [2002] - about contracting a particular
type of cancer
● C contracted mesothelioma (fatal type of lung cancer) as a result of exposure to
asbestos dust during his employment. He was employed at a number of facilities
where the exposure occurred. This was not a disease caused by prolonged
exposure, a single fibre could cause it, so which employer is responsible (as all, for
exposure to asbestos acted negligently)
● Held: The but for test would produce an unjust result - Though no one employer
could be held solely liable for causing the disease, all employers are jointly and
severally liable as per McGhee and material increase of risk (each of the employers
increased risk)
● joint and several liability may arise where A and B act independently to cause C the
same damage - in such a case, C is entitled to sue all or any of them for the full
amount of its loss. If C sues A but not B, it is open to A to seek a contribution from
B, in respect of its relative responsibility under S1(1) of the Civil Liability
(Contribution) Act 1978.
● Distinguished from Wilshire which was correctly decided: Fairchild was an
exception to normal causation rules. In Fairchild they knew with certainty what the
(one) cause was, just not which definitely negligent employer it was from. In
Wiltshire there were 5 possible causes and uncertain
● Court decided between injustice for C and injustice for negligent D’s - chose justice
for C allowing recovery regardless of how accurate blameworthiness was.
● Principle: All Ds that negligently expose employees to asbestos which causes this
cancer will be liable
● Six conditions necessary for liability (Lord Bingham):

1) C was employed at differing periods by both A and B C employers

2) A and B C (all employers) were both subject to duty to take reasonable care to
prevent C inhaling asbestos dust

3) Both A and B were in breach of that duty to prevent exposure

4) C suffers from mesothelioma caused by asbestos

5) Any other cause of C’s lung cancer at work can be discounted

6) C cannot prove (on BoP balance of probabilities) that his cancer is due to
inhaling asbestos dust while in A’s employment (in one specific employers place)
than in B’s employment
● The CA had argued that it would be a “leap over the evidential gap” to find any of
the Ds liable and that it would lead to “unjust results” by allowing Cs who couldn’t
prove a culprit to recover. HL disagree and say that there’s a policy reason for
holding employers liable: more just to hold employers who regardless of actual
blame breached a DOC which has the potential to cause incurable cancer (i.e.
fatal) than to leave a victim without damages because of a lack of scientific
evidence
● It’s mostly the industrial cases that don't fit into the but for test

● Barker v Corus [2006]

● C suffered from mesothelioma which he could have contracted from two employers
(one was bankrupt) or a period of self-employment too - so 3 possible periods
● Held: C’s damages reduced by 20% for contributory negligence and damages
apportioned in accordance with the actual proportional contributions of D’s
negligent exposure. One of the employers was bankrupt and the court decided that
finding joint and several liability would be unfair as it would all have to be paid by
the non-insolvent employer.
● Thus HOL depart from idea that all employers joint and severally liable -
compensation should be based on period of time, intensity of exposure, type of
asbestos etc i.e. the contribution. This issue was not raised in Fairchild
● Thus, if one employer is bankrupt, their proportion of damages owed won’t be
recoverable by the C as joint and several liability won’t work
● Tried to reduce burden on employers who may not be the ultimate cause of injury

● Compensation Act s. 3 reversed Barker. Why? Asbestos cancer (fatal, no cure)

arise after a lapse of time - by the time claims come, some Ds are bankrupt or
untraceable. Thus, full damages are unlikely to be recovered
● S3 says that all employers are responsible for 100% so so jointly and severally
liable if they meet the Fairchild requirements but damages may be reduced for C’s
own contributory negligence (S3(3b))

● Sienkiewiczv Greif Ltd [2011]: C contracted Mesothelioma as a result of

exposure at work or because of ordinary environmental conditions/exposure.
● Held: Employer materially increased risk of contracting disease (by 18%) which is
sufficient under the Compensation Act 2006. According to the act, all employers
exposed to asbestos would be liable if they are liable in common law (i.e. Fairchild
will still apply even if there’s only one employer).

● Heneghan v Manchester Dry Docs Ltd and others [2016] - Fairchild also applies to
lung cancer caused by exposure to asbestos
4) Informed Consent Cases
● Chester v Afshar [2005]: C suffers spinal condition as result of surgery
undergone. Action against Dr who failed to inform C of 1-2% chance of the
condition as result of operation even if there was no negligence. C argued that had
she known she would have sought other options, maybe would have picked the
operation in the end in future (but would’ve ended up been an informed decision)
● Held: D liable even if C underwent operation and consented to it in future. D
breached DOC to disclose the risks and therefore caused the injury.
● Arguably still “but for” test: But for the negligent advice, Ms Chester would have
avoided injury (on the balance of probabilities) as she would not have had the
operation at all or even if she did another day, her chances might have been
different
● “Her right of autonomy and dignity can and ought to be vindicated by a narrow and
modest departure from traditional causation principles” Lord Steyn
● Correia v University Hospital of North Staffordshire NHS Trust [2017], confirmed in
Duce v Worcestershire Acute Hospitals NHS Trust [2018]: if Chester is to be relied
upon it must be proved that C, if correctly warned of the risk, would have declined
or deferred the operation

Multiple Sufficient Causes

● Where Ds pass the but for test but one of their actions comes later than the others.
OR the later action may be non-tortious but still capable of giving rise to the harm
● Does the second party’s action (negligent or not) absolve the original D of blame?
I.e. should the original D remain liable after unrelated actions of another?
● Baker v Willoughby [1970]: C suffered injury to leg as a result of D’s negligent
driving. He therefore had to find a new job. Before this case went to trial, he was
shot in the same leg by robbers and it had to be amputated. Long period between
the negligence and the robbers
● Issue: Does D1 (driver) pay the compensation for his negligence for the rest of C’s
life or did the injury he caused get obliterated by actions of the robbers?
● Held: D liable for damages for pain and loss of amenity for the entire period of C’s
life regardless of the robbery. This was because if the robbers were to be sued,
they'd only be liable for any additional suffering/pain and amenity and not any of
the continuing effects of the first injury if there were any - this would lead to a gap in
damages.
● What if the later event is non-tortious or naturally occurring?:

● Jobling v Associated Dairies Ltd [1982]: C sustained a back injury at work which
led to reduced earnings/less ability to work. But Before the case went to trial he
suffered from an unrelated back disease which rendered him unemployable.
● Held: Employer liable for damages up to the point of the onset of the disease. If
decided like Baker, D would be responsible for damages forever including for
anything naturally occurring (would have happened anyway) - here the second
event actually obliterated the first so the damages reflected that
● The two cases usually contrasted by Jobling usually distinguished that this is a
case of damages whereas baker is a case of liability in tort (bc the second injury bc
of tort) whereas jobling was the natural onset of disease, courts talked about life n
all that natural stuff
● Thus, Baker is very specific to its facts and Murrell v Healy [2001] suggests that it
has not survived - damages owed may pause at the beginning of a superseding
event or be reflected in the damages ordered to be paid
Loss of Chance Cases - novel approach. Loss of chance cases for medical cases are
treated rigidly by but for test
● Where we cannot say that the actual cause increased the risk, just bad luck

● Hotson v East Berkshire Health Authority [1987]: C (child) suffered a broken hip
after a fall from a tree. The doctors negligently failed to diagnose vascular necrosis
(death of blood vessels) until it was too late. If it was diagnosed in time, C would
have had a 25% chance of recovery. Instead he suffered paralysis.
● Held: No liability since even with the diagnosis there was a 75% chance of no
recovery (balance of probabilities) - fails but for.
● The lower courts interestingly viewed the harm differently and as a loss of chance -
he lost a chance of 25% of not having the condition and this harm was caused (on
the balance of probabilities) by the negligence. Because of this, they awarded him
25% of the total damages he would have received in his original full claim
● HOL reject and say that the question was whether Hotson had been ‘doomed’ from
the start when he came to the hospital in a similar way to Barnett/ it was 75% likely
that he had been doomed from the start and would not recover. Thus on the
balance of probabilities, the treatment makes no difference - thus no chance of
recovery
● Would he be liable if the chance was 75% chance survival or over 50%? Depends.
If you can show Ds reduced chance of survival by 50% or more and the harm
happened, then yes you could
● Gregg v Scott [2005]: C’s diagnosis with cancer was missed by 9 months. He
argued that if it was done promptly/at the time he would have had a 42% chance of
recovery. Instead his chance of recovery was reduced to 25% bc it was diagnosed
late
● Held: HoL said that C had to show that negligence made it more likely than not
(50% +) that D’s negligence meant C would be incurable. Since C was 58% likely
to die anyway, he could not prove this. Thus fails ‘but for D’s negligence, C could
not be cured’
● Thus, loss of chance in medical cases unlikely

● Miscellaneous cases:
Miscellaneous:
● Fitzgerald v Lane: C hit by a negligent driver and shortly afterwards by another
causing disability
● Held: each D liable following McGhee material increase of risk - interesting as
McGhee applied outside industrial disease cases

Summary:
- What are the facts of the situation?
- On the balance of probabilities. Did the breach cause the harm alleged (but for the negligence, would
the harm have been suffered)?
- If not, have the courts created an exception

Legal Causation Lecture 9

● Outline

● Legal Causation: Remoteness + Intervening Acts

● Remoteness: Re Polemis [1921] vs the Wagon Mound No (1) [1961]

● Application of Wagon Mound.

● Thin (Egg-shell) Skull Rule.

● Intervening Acts

Negligence
1) Defendant (D) owes a duty of care
2) D was in breach of that duty
Legal Causation 3) Claimant (C) suffered damages caused by D’s breach of duty … which are not
too remote
4) There are no defences available to D that would either defeat the claim or
reduce the amount of damages

● What is the operative cause of C’s harm and is imposing liability justifiable?
Remoteness
● Two Components:
1) Novus Actus Interveniens.
2) Remoteness.
● [We will consider them in reverse order though]

Re Polemis [1921] CoA

● Facts: A chartered vessel was unloading in Casablanca. The stevedoers
(unloaders) dropped a wooden plank in the hold. Part of the cargo is benzine in tins
which had leaked. There was a rush of flames and the ship was destroyed.
● Held (CoA): D is liable for all direct consequences of his act provided he can
foresee any damage to C – dropping wood would be presumed to cause some
damage.
● This test was good for a number of years, easily applicable, certainty

● Scrutton LJ on Direct Consequences

● “To determine whether an act is negligent, it is relevant to determine whether any

reasonable person would foresee that the act would cause damage; if he
would not, the act is not negligent. But if the act would or might probably cause
damage, the fact that the damage it in fact causes is not the exact kind of
damage one would expect is immaterial, so long as the damage is in fact directly
traceable to the negligent act, and not due to the operation of independent
causes having no connection with the negligent act, except that they could not
avoid its results. Once the act is negligent, the fact that its exact operation
(result) was not foreseen is immaterial.”
● “In the present case[,] it was negligent in discharging cargo to knock down the
planks of the temporary staging, for they might easily cause some damage
either to workmen, or cargo, or the ship. The fact that they did directly produce
an unexpected result, a spark in an atmosphere of petrol vapour which
caused a fire, does not relieve the person who was negligent from the
damage which his negligent act directly caused.”
● Remoteness: to what extent is the damage linked to the D based on reasonable
foreseeability

The Wagon Mound No (1) [1961]: test revisited

● In Privy Council but has been held as good law ever since
● Facts: D were charters in charge of an oil burning vessel moored at Sydney Harbor
for refuelling. D’s employees negligently spilled fuel on water, it formed a thin layer
and spread to C’s Wharf where C’s employees were welding the ship to prepare a
ship docked there. A spark from the welding caused the oil in the water to catch fire
and there was extensive damage to C’s wharf and the ship the Corrimal.
● Could some damage be foreseen? Yes congealed oil in water causes some sort of
property damage - but quite trivial
● But under the test this minor damage would find for the claimant

● Held: Damage by fire was unforeseeable as oil on water in hard to ignite. Test of
remoteness is “Was the kind of damage suffered by C foreseeable?” - damage of
fire was unforeseeable and the old test is not right. Fire in water is not foreseeable -
test turned back to was this specific damage to C foreseeable.
● Parts of the judgment that explains why Wagon Mound’s situation was particular
and significant in explaining why Re Polimous might lead to absurd results

● There was evidence of other physical damage where the oil got slipways and
congealed them. But it was insignificant compared to fire damage.
● Damage was Consequence of improbable events - loads of links

Application of
Wagon Mound:
● Opinion of trial judge on what happened:

● Only the foresight of reasonable man and not the probability based on hindsight
should determine liability - its would the man see it foreseeable at the time of
breach is the correct test
● Critical of Polimus: Polimus had substituted direct for reasonably foreseeable
consequences. Oil and water should not reasonably ignite
● Wagon Mound No (1) Conclusion: Re Polemis no longer good law.

● Modifies test of remoteness from direct consequence to a test of whether the

specific kind damage was reasonably foreseeable or not - ik some previous notes
might say that Polemis made it reasonably foreseeable but sorry this isnt correct -
THIS test made it reasonably foreseeable at time of breach before it was
foreseeable with HINDISGHT
● Lord Viscount Simmonds “It does not seem consonant with current ideas of justice
or morality that for an act of negligence, however slight or venial, which results in
some trivial foreseeable damage the actor should be liable for all consequences
however unforeseeable and however grave, so long as they can be said to be
direct.”
● Appears that judgement in Wagon mound was concerned with justice for the D

Application of Wagon Mound

● problems: inconsistency. Some cases don’t consider type of damage

● Neither extent of damage nor manner of infliction need to be reasonably

foreseeable. Hugh v Lord Advocate [1963]
● Facts: Post office workers left a manhole open. They covered it with a tent and
surrounded it by paraffin lamps. A boy took a lamp into a tent, knocked it into hole,
paraffin vapor exploded, and the boy fell in and suffered serious burns.
● Held: burns were reasonably foreseeable even if sequence of events and lamp
explosion wasn’t.
● Held: even though type of injury that is reasonably foreseeable would be limited to
burns from lamps themselves, the court decided that so long as the burns were
reasonably foreseeable even if they happened outside the manhole but followed
from someone falling into the hold, liability will have to follow. Though the way that
the damage happened was not foreseeable, serious burns themselves were
foreseeable and this caused liability
● Good application of the case - made sense

Jolley v Sutton LBC [2000] (HoL)

● Facts: D failed to remove an old boat from their land. Risk was child might climb in
and fall through the rotten planks. C and a friend instead embarked on restoring the
boat and while working underneath it, boat fell on C and broke his back.
● Held: Accident (damage to back) was foreseeable given the “ingenuity of children.”
even though the more logical risk would be risk of falling through the rotten planks.
But bc the damage was personal injury it didn’t matter how it happened - took into
account creativeness of children when playing
● see also ST v Maidstone and Tunbridge Wells NHS Trust [2015]

Tremain v Pike [1969]

● Facts: Employee contracted rare Weil’s disease caused by Rat urine. D allowed
his farm to fall into this unreasonable state flooded by rats. One of his employees
got the disease caused by rat’s urine specifically
● Held: even though Rat bite or poisoning is foreseeable bc of the state of the farm,
Weil’s disease is not.
● Interpreted restrictedly, looking at that disease v specifically rather than personal
injury caused by rats - Wagon not applying v well

● In personal injury cases in cases like Page v Smith Wagon will not be considered
to restrict specific harm too much e.g. in that case for remoteness purposes too:
psych injury was equated with physical injury - not too burdensome with the test
● Now: Page v Smith [1996]: Physical injury and psychiatric injury is same for
remoteness purposes.
● Thus take the bad cases with a pinch of salt

● Injustice to C or D - if liability too tied to the damage (Wagon) it’s harder for Cs to
prove remoteness. Polimus makes it harder for the Ds. - Lord Viscount

Daughty v Turner Manufacturing Company

● Facts: worker drops asbestos lid into chemicals by accident - led to explosion
leading to burns.
● Held: though some burns from the chemicals touching employee were reasonably
foreseeable bc the reaction between the lid and chemical was not foreseeable no
Novus Actus liability - shows that Wagon may be too restrictive
Interveniens
(intervening acts) ● Remember in personal injury cases they’re more lenient

Was it operative? + policy considerations

● Thin Skull Rule:

● If C’s initial injury is of kind reasonably foreseeable, it does not matter that
consequences of that were of unforeseeable and/or different kind.
Smith v Leech Brain & Co Ltd [1962]
● Facts: C suffered a burn on lips because of D’s negligence. The burn flares a pre-
malignant condition which led cancer to develop and C to die.
● Held: D liable for all consequences including cancer which was not foreseeable. - D
had to take C as he found him

Reaney v University Hospital of North Staffordshire NHS Trust [2014]

● Followed the above approach but CA clarified the correct approach was objectively
determining whether the C’s needs before and after the negligently caused injury
were ‘quantitively’ or ‘qualitatively’ different. If quantitatively different (i.e. more of
the same) then D is only liable for additional needs flowing from their negligent act.
If qualitatively different (i.e. different in kind) then a C can recover in full
● ???

● Lagden v O’Connor [2003]: confirmed that egg shell skull principle also applies to
economic harms so if a C suffers heightened economic loss due to an already
weak economic circumstance, D will be liable for the full extent of the loss

- How does thin skull reconcile with Wagon? With thin skull you have to divorce
yourself from the eventual consequences.
- Exception to the remoteness test in wagon - if you have a C with particular
characteristics BEFOREHAND who with the initial injury has something going on, D
will be liable, but initial injury has to defo still be foreseeable
- Only applies to personal injury

Robinson v Post Office [1974]:

● Facts: C slips bc of D and gets cut and get givens treatment which he is allergic to.

● Held: D is liable for C’s brain damage which resulted from allergy to Anti-tetanus
shot he received following fall from ladder through D’s negligence.

● Concerns the status of events occurring after D’s breach.

● These events may be set off by D’s breach, but could be completely extraneous.

● There are three types of intervening acts: Natural occurrences, 3rd Party’s actions
and Claimant’s own actions
● Whether or not an event breaks the chain of causation is a question of fact.

● The question is what was the operative cause of C’s harm?

Intervening Acts – natural occurances:

The Oropesa (1943)
● Facts: Captain sent a crew to discuss arrangements following two ships colliding.
The crew crossed over in a boat and in the midst of high seas. They drowned
including C’s son. Should the captain or the other ship be held liable?
● Held Captain’s decision could not be severed from the circumstances affecting the
two ships. Captain’s action was not voluntary but natural consequence of
emergency. Captains decision took place in the context of the collision, Capitan
intervention didn’t break chain of causation, other ship was still operative cause.

Intervening Acts – Acts of 3rd Party:

● In the following cases, the initial accident brought about the second accident. But
was D1 or D2 held to have caused the harm?
Rouse v Squires (1973):
● Facts: accident on motorway caused by D1 (truck) and people began stopping
behind them. Eventually someone who was negligently driving drove into the
stopped traffic and injures C
● Held: had there been no accident even if they were speeding, they wouldn’t have
hit the traffic - thus D1 held liable for that too
● D1’s negligence was operative cause of C’s injury.

● Second accident did not break chain of causation

Knightley v Johns (1982)

● Facts: Police attend accident. One officer sent to drive against the traffic, another
person knocked him over. Was D1 responsible for not blocking the road or the one
who told him to drive?
● Held: sending policeman against traffic was not reasonable - this degree of risk
taking was not reasonable, thus it was not reasonably foreseeable for D1 that
police will drive against traffic and there’s an assumption that everyone will act
reasonably, you’re not supposed to anticipated people being unreasonable
● Negligent conduct is more likely to break chain of causation

● If the act of the TP was foreseeable the defendant remains liable and the chain of
causation remains intact (and vice versa) - e.g. Dorset Yacht - obvious to expect
that the children will take the boat, actions of TP (the children), though criminal
were highly foreseeable, chain of causation did not break, a subsequent negligent
act by a TP must ‘have been something very likely to happen if it is not to be
regarded as a novus actus interveniens breaking the chain of causation. I do not
think a mere foreseeable possibility is or should be sufficient’
● Similar case: Wright v Lodge [1993]

● Willful conduct for which D1’s actions provided the occasion will break the chain of
causation unless it is very likely to happen (e.g. Dorset Yacht).
● Note Mitchell v. Glasgow City Council and Lamb v Camden London Borough
Council – if D owes a duty with respect to 3rd party Acts, they cannot be novus
actus inteveniens (Ward v Cannock Chase DC)

Intervening Acts – Acts of the Claimant:

● If C’s own actions are negligent (unreasonable) the chain of causation is either
broken or works as a defence which leads to the reduction of damages
Clay v TUI UK Ltd [2018]
● Facts: C and family were locked in balcony of hotel in Tenerife. C tried to cross to
adjacent balcony after their door locked by itself on a ledge which collapsed. C’s
skull was fractured
● Held: C broke the chain of causation - what he did was too much to relieve this
inconvenience of being locked out of the balcony - so unreasonable that it broke
the chain of causation altogether, not merely reduce damages

McKew v Holland & Hannah & Cubbitts (Scotland) Ltd [1969]

● Facts: C was descending dangerous stairs on a leg he’d injured by D’s negligence
while holding daughter. To avoid injury of daughter when leg gave way, he threw
his daughter behind him and jumped and fractured his ankle.
● Held: unreasonable to place himself in that situation in the first place

Wieland v Cyril Lord Carpets [1969]

● Facts: as a result of D’s negligence the C had to wear a neck brace which
restricted her ability to use her glasses properly and she fell down some stairs and
injured her ankle.
● Held: she had been as careful as she could have been therefore her actions could
not break the chain of causation and ankle injury also result of Ds negligence

● Reasonable conduct will not break the chain:

Emeh v Kensington & Chelsea –
● Facts: women has sterilisation treatment which didn’t work. Her refusal to abort
was argued to be unreasonable by D so they shouldn’t be liable
● Held: it was not unreasonable, she didn’t break chain of causation, and
Westminster Health Authority [1985] – Refusing abortion.)

● Deliberately wrongful acts (e.g. crimes) will break chain of causation (Weld-
Blundell v Stephens [1920], Gray v Thames Trains [2009])

● Suicide of C while imprisoned (Kirkham v Chief Constable of Greater

Manchester Police [1990]) or in police custody (Reeves v Commissioner of
Police for the Metropolis [2000]) does not break chain of causation because
police had a DOC to protect C from the suicide. However in Reeves damages
reduced for the contributory negligence of the C
● Corr v IBC Vehicles Ltd [2018]: man injured and almost killed at work. Led him to
depression and suicide. Employers did not owe a specific duty to prevent suicide
like the police but the question was whether the suicide had been caused by the
original breach of duty (to keep employees reasonably safe) or whether the C’s act
broke the chain of causation
● Held: not broken, Bingham stresses that suicide is not free and voluntary choice
because of the effect of the accident on the mind of C
Summary:

Lecture 10: How to do PQs

Consolidation of Lecture 11
DOC
The Tort of
● Duty + breach + causation + actionable damage = liability (+ defences)
Negligence
● The Tort of Negligence ‘cycle’

● Start with Duty: is there liability at all? - gatekeeper, you can only consider the other
elements after establishing duty - if no DOC, no liability
● Causation: connection between action i.e. the breach and the damage suffered -
What is DOC? link between breach and damage
● Damages: inquiry into the loss suffered, is it recoverable, is it too remote

● If A is said to owe B a duty to take care not to do X in a given situation - A will have
a primary obligation to take care not to do X.
● If he breaches this primary obligation and B suffers loss as a result, he will usually
incur a secondary obligation to pay damages to B.
● E.g. Suppose that a driver carelessly crashes into a bus shelter, killing people
Negative duties vs waiting at the bus shelter
Positive duties
● Obvious that driver owes duty to people at the stop not to crash into it (primary).
The law says that if you do drive into one and kill people waiting you’ll have a
secondary obligation to pay damages - aims to discourage people from doing this,
regulation of behaviour

● A DOC may concern a positive act or an omission. Omissions gives rise to its own
problematic analysis in times of finding liability - less straightforward than positive -
always check if its a positive act or omission and identify this
‘Positive act’
- Misfeasance
The role of the Duty - Doing something badly
concept - Making something worse

Pure Omission:
- Non-feasance
Categorisation of - Doing nothing at all
DOCs - Failing to make things better

 To exclude liability – a very important ‘control device’

 No matter how gross the negligence or how serious the damage, the absence
of a duty of care means no liability (e.g like in Michael v CC of South Wales
Police [2015]) – judges said the case was tragic but said that there is no duty

 We can categories the duties of care in three different ways (after we

established if it’s a positive act or omission:
 According to what they require someone to do
o what the DOC you are discussing entails or asks from the D to do.
A Common Mistake Does the D owe C the requirements of this DOC.
 According to what sort of interest they are designed to protect
o Purpose of the DOC
 According to how they arise
o How did the DOC come about, what interests are harmed if the D
does not uphold the doc

 ‘It is never sufficient simply to ask whether A owes B a duty of care. It is always
necessary to determine the scope of duty by reference to the kind of damage
from which A must take care to hold B harmless’ (Lord Bridge, in Caparo
Industries Plc v Dickman [1990])
 We cannot say just someone (e.g a motorist) owes another person (a
pedestrian) a duty of care. But what we have to say is that the motorists owes
them a DOC to drive safely.
 Ask what they should do to prevent what sort of harm is happening
Forgetful investor  Duty of care entails such a variety of interests that you need to be more
problem precise. (e.g., a motorist owes a pedestrian a DOC not to drive carelessly in
injuring her)
 Summary: You can’t just say A owes B a DOC you need to set out the specific
DOC requirements, e.g. DOC to drive safely as to not negligently injure
pedestrians. Not just a DOC owed.

 One morning, Commuter reads something in the newspapers that makes her
think that she needs to sell all her shares in Dodgy Plc. She then takes a train
to work, resolving that once she gets to work, she will call her broker and ask
him to sell her shares. Unfortunately, due to the carelessness of the Train
Driver, Commuter’s train de-rails. Commuter is unharmed, but she is so shaken
by the accident that she completely forgets to sell her shares in Dodgy. By the
time she remembers, the value of shares in Dodgy has plummeted.
 Can the commuter sue Train Driver in negligence for the money she has lost?

 Answer
 Does the train driver owe C a DOC – yes driver owes the commuter a DOC to
drive carefully (nature of duty – what you require people D to do)
 Now discuss the type of harm suffered by the commuter (scope of duty – what
extent can you hold the driver liable for physical harm, phycological harm or
pure economic loss) and thus a consideration of these elements is necessary to
see if a doc is established

 The duty-harm relationship (answers)

 The duty Train Driver owed Commuter to take care not to drive dangerously
was designed to protect Commuter from suffering some kind of physical harm,
not economic harm.
 If Commuter wants to sue Train Driver in negligence for the economic loss, she
Different types of will have to show that he owed her a duty of care that was geared towards
interests protecting her from suffering that kind of loss.
 Duties of care that exist to protect people of pure economic loss (like in this
case), a loss that is not consequent on physical injury or property damage
generally only exist between people with some special relationship (which is not
the case here)

 The various duties of care that we owe each other are designed to protect a
variety of interests:
o Physical
o Mental (as physiological harm has its own rules – so is the kind of loss
claimant suffered tell us what rules to look at if a DOC arises or not)
o Economic (again has its own rules) different between pure economic
Problematic duty loss or consequential economic loss
areas  Suppose that a driver carelessly crashes into a bus shelter, killing people
waiting at the bus shelter and this means a bystander is unable to make it to
work, this type of economic loss would be not recoverable. But if someone got
hit then is consequential economic loss because it has a connection with
physical injury where as with pure economic loss has no relation to anything
and is not connect to any physical injury suffered

 Pure economic loss, negligent misstatements (words v acts), psych injury,

indirectly caused damage (third parties), pure omissions

 Common types of damage (and their legal protection)

How Duties Arise

 When Psych harm and Economic loss are PURE the courts are reluctant to find
recovery for these two because it’s hard to see the harm and people can lie.

 Foreseeability: definitely works in relation to physical injury, enough to establish

a DOC E.g. a driver’s duty not to drive carelessly is because it is reasonably
3 different tests to foreseeable that if he drives dangerously other people nearby will get hurt.
determine if a DOC  Assumption of responsibility E.g., giving advice on investment – a duty is owed
arises, apply only if I assume a responsibility not to give them bad advice. The requirement
different test to will only be satisfied if I do something to make them think that they can safely
different situations rely on my advice and don’t need to get anyone else’s opinion.

 DOC tests: Caparo 3-stage test, incremental test, assumption of responsibility

test
 Look at precedent to see if a duty exists but in certain situations we would
immediately go to a particular type of test e.g. giving of advice then by definition
this would be assumption of responsibility and we have to use that test in this
specific situation
 In a Hedley situations or extension we can’t go to the general test for DOC,
have to go to assumption of responsibility
 Omissions also uses assumption of responsibility
 But in other cases where assumption of reasonability cannot be used , ie. If
there is a novel situation use the incremental test
 When someone is giving advice it falls into the Hedley burn situation
(Assumption of responsibility)

Test 2: Novel Situation

 Caparo: 1) relationship of proximity, foreseeable damage, fair just and
reasonable to impose duty
 Fairness: the courts will sometimes refuse to find that a duty of care was owed
in a particular case if doing so might expose D to a ‘liability in an indeterminate
amount for an indeterminate time to an indeterminate class’.
 The Nicholas H (1996): if a duty is found in this case, the certification society’s
liability could have run into millions of pounds and got out of all proportion to the
society’s initial fault.

 Policy considerations: Individual responsibility

o Finding a duty might allow a responsible adult to escape some or all of
the consequences of his own foolhardiness by giving him the right to
sue someone else for self-inflicted injuries.
 Vellino v CC of Greater Manchester Police (2002) (Police had not owed C a
duty to take reasonable steps to stop him escaping from police custody)
o Finding a duty might undermine people’s sense of individual
responsibility
 Mitchell v Glasgow CC [2009]: finding Council owed Mitchell a duty that would
have the effect of diluting the neighbour’s liability of what he did to Mitchell.

 Policy considerations: separation of powers

 Different government bodies have different jobs to do and their effectiveness at
doing these jobs would be undermined were one body to do another body’s job.
Finding that a public body owed C a duty threatens to undermine the separation
of powers because doing so allows and requires the courts to dictate to that
public body in what manner it should do its job.
 Smith v MOD [2014] (No duty because ‘this case raises issues of huge
potential width, which would involve courts in examining procurement and
training policy over years with senior officers, civil servants and ministers
having to be called and to explain their decisions long after they were made)

 Policy considerations: Divided loyalties – which overriding interest

should the body protect?
 Divided loyalties
 Military Commanders: Smith v MOD [2014] (A military officer will not owe a duty
to the soldiers under his command in the heat of battle when some action is
required to achieve his military objectives) – because what the commander is
meant to be focused on is the task at hand to achieve the military objective and
not the safety of the soldiers in the battle, because the interest his there is
advance is the military one in battle not the safety of soldiers - there is tension
between a duty owed to a claimant (solder) and the duty owed by the
commander to advance the objective of the military. The same issue applies
below.
 Police: Brooks v Commissioner of Police of the Metropolis [2005] (the Courts
fear that finding that the police are subject to duties of care will divert them from
their central task of investigating crime)
 Social service: D v East Berkshire Community NHS [2005](if a duty of care
were owed to parents, it might cause the social services to neglect their
fundamental responsibility to safeguard children’s interest)
 Doctors: The courts have never hesitated to find that Drs owe duties of care to
their patients in treating them, despite fears that doing so only encourages Drs
to practice defensive medicine.
 Referees: Spring v Guardian Assurance (1995) (HL dismissed fears that when
duty is owed to Ex-employees, employers will become excessively cautious
about saying anything negative about Ex)
 Barrister: It used to be the law that a barrister would not owe a duty to his client
to conduct the client’s case in court with a reasonable degree of care and skill
 ’A barrister has an overriding duty to the court to act with independence in the
interests of justice: he must assist the court in the administration of justice and
must not knowingly or recklessly mislead the court’
 However, in Arthur J S Hall v Simons (2002), HL was less concerned about this
and swept away the no-duty rule in relation to barristers.

 Policy considerations: Waste of resources

 If a duty of care is owed in a concrete case, it will encourage a lot of groundless
litigation against a public body, which will in turn take up valuable time and
resources to deal with. Hill v CCSYP [1989]
 In Phelps v London Borough of Hillingdon [2001], Lord Nicholls suggested that
time had come to recognise that such concern will adversely affect the public
interest

Test 3: Incremental Test:

 ‘Any new duty of care should develop incrementally, by close analogy with
established categories, rather than by a massive extension of a prima facie
duty of care restrained only by indefinable ’considerations (this is the policy
consideration) which ought to negative, or to reduce or limit the scope of the
duty or the class of the person to whom it is owed’ (Sutherland shire Council v
Heyman [1985]) incremental test is the place to go to develop new cases for
doc as opposed to the capro test
 In Perrett v Collins [1998], Hobhouse LJ suggested that the three stage test
should be ousted (i.e. the caparo test) in circumstances where an incremental
step beyond existing authorities could be taken.
 ‘It is a truism to say that any case must be decided taking into account the
circumstances of the case, but there those circumstances comply with
established categories of liability, a defendant should not be allowed to seek
to escape from liability by appealing to some vaguer concept of justice or
fairness; the law cannot be re-made from every case.'
 Such an approach seeks to guarantee a measure of consistency in the ever-
growing body of case law.
 Saying that policy issues can only come in when new issues are coming / novel
situations are being introduced not when there has already been a DOC
established
 This position is now clarified in Robinson v CCSYP [2018]
 ‘The proposition that there is a Caparo test which applies to all claims in
the modern law of negligence, and that in consequence the court will only
impose a duty of care where it considers it fair, just and reasonable to do
so on the particular facts, is mistaken[…].
 It is normally only in a novel type of case, where established principles do
not provide an answer, that the courts need to go beyond those principles in
order to decide whether a duty of care should be recognized. Following
Caparo, the characteristic approach of the common law in such situations is to
develop incrementally and by analogy with established authority. The drawing
of an analogy depends on identifying the legally significant features of the
situations with which the earlier authorities were concerned. The courts also
have to exercise judgement when deciding whether a duty of care should be
recognized in a novel type of case. It is the exercise of judgement in those
circumstances that involves consideration of what is “fair, just and reasonable”.
 the separation between these tests is all over the place not clear, Robinson
says is the incremental test is where you go when you are considering whether
to extend a situation by analogy (i.e. a novel situation) to establish a doc in
novel situations you can consider things like just, fair and reasonable (the policy
consideration)  Robinson says Caparo will only be relevant when looking at
to extend the law incrementally (novel situtions) and policy considerations will
be need to be considered.

The relationship of the three tests

 In Customs and Excise Commissioners v Barclays Bank [2006], Lord
Hoffmann observes: ‘All three approaches may often (though not inevitably)
lead to the same result. Assumption of responsibility is on any view a core area
of liability for economic loss. All three tests operate at a high level of
abstraction. What matters is how and by reference to what lower-level factors
they are interpreted in practice.’
 ‘This review of authority confirms that there is no single common denominator,
even in cases of economic loss, by which liability may be determined. In my
view the threefold test of foreseeability, proximity and fairness, justice and
reasonableness provides a convenient general framework although it operates
at a high level of abstraction. The concept of assumption of responsibility is
particularly useful in the two core categories of case identified by Lord Browne-
Wilkinson in White v Jones, at p 274F-G, when it may effectively subsume all
aspects of the threefold approach. But if all that is meant by voluntary
assumption of responsibility is the voluntary assumption of responsibility for a
task, rather than of liability towards the defendant, then questions of
foreseeability, proximity and fairness, reasonableness and justice may become
very relevant. […]Incrementalism operates as an important cross-check on any
other approach. (Per Lord Mance Customs and Excise Commissioners v
Barclays Bank [2006], para 86)

 Guiding judges how to deal with the three tests:

 Three tests should arrive at the same conclusion;
 Caparo test provides a convenient general framework although it operates at a
high level of abstraction
 assumption of responsibility is particularly useful in situations where there is a
special relationship or the relationship is ad hoc, but there is an undertaking of
responsibility
 Voluntary assumption of responsibility contains ’fair, just and reasonable’
elements in dealing with vulnerable situations
 Incrementalism operates as an important cross-check on any other approach

 Dispelling some misconceptions of Duty of Care

 The Rule of Thumb

 A duty of care is generally owed in all cases where:
 physical damage has been caused by a direct and positive act of the
Defendant

Examples of established duty categories (where positive obligations may apply):

 Road users to other road users
 Employers to employees
 Doctors to patients
 Highway Authority to road users
 Teachers to students
 Prison Officers to charges
 others already recognised

 Is it difficult to establish a Duty of Care?

- Yes and no!
- Rule of Thumb
- Established duty situations
- It is only in ‘novel’ fact situations where problems arise (where you can apply
caparo test)

Summary:

Product Liability Lecture 12

Outline • Introduction.
• The Three Regimes of Protection
• Product Liability in Negligence.
• Product Liability under the CPA.
• Defences
Examples: • You bought a shirt from M&S. It did not suit you. What do you do? – return it or exchange it. Why
is this allowed? – it’s in the contract between you and the store, part of your contractual terms
• You bought a hairdryer from Boots. When you plugged it in and put it on, it caught fire and
caused a fuse to blow out. This caused your Alexa devise to malfunction. What do you do? – get
a refund, exchanged or repaired this is a defective product, the sales of good acts 1979 s14. Can
also recover for Alexa because its consequential property damage
• Defect in product causes property or personal damage – this is product liability
• Your friend got you a sewing machine for your birthday. You tried to use it a few weeks after that
to fix one of your favorite dresses. But because of a manufacturing error, the mechanism that
allows the needle to sew caught and the fabric was ruined. What do you do?
• The sewing machine damaged, your dress so its consequential damage – you
can sue the manufacture as haven’t broken the machine but cannot sue the
retailor as the contract was not between you and them it was between retailor
and friend
• So retailer and end user or manufacturer and consumer contract may not
govern these as there is no contract there between the parties so then
negligence comes in
Product Cycle: bear
• Manufacture
in mind when
• Wholesaler
thinking about
product liability
• Retailer
• Consumer
• End user – consumer may give the product purchased as a gift to another
person known as an end user

Three Regimes Governing Defective Products

I. Contract – the Sale of Goods Act 1979: Strict liability (no need to prove
fault). As long as there is a defect in the product and it’s not suitable for
its purposes then covered by liability in contract, in contract can also
sue for consequential property damage
II. Negligence: Need to prove DOC, Breach and Causation. (when there is
no contract between the person who has the good / purchased it and
the retailer or manufacture then must prove DOC in negligence E.g. x
brought a gift for son so in contract you would say the dad may be able
to hold the retailer liable but in terms of the son then address the
negligence for product liability)
III. Consumer Protection Act 1987: possess as a Strict Liability but this is
not really the case and we will see?
Remedies Under a) Repair;
Contract: b) Replacement; or
c) Refund

And damages for consequential damage so long as it is not too remote (this is a
requirement under contract law.)

So why sue in Tort? – when you don’t have a contract! More likely when someone
gets you a gift/buys u something (as contract upholds privity of contract) - a.k.a
Donoghue v Stevenson – where her friend brought her a drink, she got sick but
couldn’t sue since she didn’t buy the drink herself

Part I: negligence Negligence

DOC • Who owes whom a DoC in negligence for defective products?
• Prior to 1932 manufacturers only liable regarding products if the product itself
was classed as ‘dangerous’ or manufactured to be dangerous
• Donoghue v Stevenson – Manufacturers to consumers, discarded the ‘privity
of contract fallacy’ no reason why on the same facts one shouldn’t be given the
same rights i.e. to sue in tort like a purchaser can sue in contract.
• Now Duty expanded by cases following Donoghue - is owed by each and
everyone in the production line: packers, machine operators, distributors,
retailers. (contract is not everyone, only those included)
• Duty is owed to end-user (not just purchaser).
• In certain cases, duty extends to bystanders i.e. anyone being in reasonable
proximity with the defective product that causes ‘them’ harm:
e.g. Stennett v Hancock
• Facts: wheel came off and injured the bystander pedestrian
• Held: decided the M owed them a duty to make sure the product wheel is not
defective and a DOC was owed to pedestrian

• Duty can owed beyond the actual product itself to include e.g. packaging,
contrainers, instructions (Watson v Buckley, Osborne, Garrett & Co Ltd
[1940])
• Just like how in contract you need a contract, in tort you must prove DOC.

• No DoC is owed with respect to pure economic loss. (this idea extends to
defective products)
• No remedy for defective product itself – Murphy v Brentwood [1991] – buying
a defective house is PEL and by analogy buying a defective product is also
PEL. i.e. discovering the defective product before you use it, cannot sue under
tort (your friend under contract can sue and get a refund). If the sewing
machine is defective and you see this before you use it, use contract
• Therefore, you only get compensated for consequential property damage or
personal injury or else cannot cover in negligence
• Only exception to this rule is Complex Structure Theory: Component parts of
a product are sometimes regarded as a separate product.
• Complex Structure Theory allows recovery for the defective product on the
basis it is property damage (See Lloyd LJ obiter in Aswan Engineering v
Lupdine – ultimately failed because the damage was not reasonably
foreseeable.)
• Facts: materials shipped to Kuwait, the containers got ruined of the temperature
and the water chemicals inside damaged.
• Held: Judge discussed idea of theory – case failed because the damage was
not reasonably foreseeable – “if I buy a defective tire for my car and it bursts I
can sue manufacturer for injury to my car and personal injury, but if the tire was
part of the original equipment then I cannot sue under tort as there is no
separate product” = PEL
• (So if I buy a car and replace the tire and that bursts – in tort I can claim for
product liability even if its defective from the start as its seen as a separate
product from the whole car because I added in the new tire) but if the car was
brought with the tires without being replaced then its seen as one product and
as such (the tires cannot be seen as a sep product that damaged the other
components of the car) as such in tort you cannot claim consequential property
or personal damage as it would be seen as PEL.

Happy to infer breach (i.e. happy to infer M’s negligence/carelessness) because its
Breach: presumed that any defect only exists because there was negligence in the
manufacturing process, as long as there is no evidence/rebuttal from manufacturer
that the product was interfered with after it left the premises of the D (see Grant v
Australian Knitting Mills Ltd)
• Question is, did the Defendant manufacturer take reasonable care when
making the product?
• Breach can be inferred from defect in product and could then be rebutted by
Defendant (unless there is evidence to contrary) e.g. Grant v Australian
Knitting Mills Ltd.
• Facts: undergarments brought by C, manufactured by D, he wore them and
caused irritation to the skin and wore another pair and irritation got worse, he
nearly did. D claimed evidence that over 2 million were supplied to other
customers with no complaints
• Court: said if the D is not able to provide evidence that the garments supplied to
C were interfered with then the court said they will be liable. Held: Possibility of
interference but D could not provide this and was therefore held liable. Court
found no other explanation for why there were sulphites in the wool other than
an employee during manufacturing had been careless
• All you have to argue is the way I received this product the same way it left the
facility – did the manufacturer intend for it to leave and reach an end consumer
in that state?
• Inference not always found
Evans v Triplex Glass Co Ltd [1936]
• Held: claim against manufacturer of windscreen safety glass did not succeed as
Court found it more likely that the fault lied with the fitters of the glass than the
manufacturers
• Kubach v Hollands [1937] a warning to retailer could discharge
manufacturer’s duty
• Hollis v Dow Corning - warning to physician regarding breast implants was
seen as the more effective way of discharging the manufacturer’s duty to take
reasonable care not to injure consumer bc physician would be the party more
likely to know what to do given the risk inherent in the product.
• (remember in contract how they have exclusion clauses this is the same thing
here but in tort, that removes liability of breach)

• Show not just that D breached duty to end user by producing defective product
but also that the defect caused the damage suffered by the claimant
• Courts will draw inference from the circumstances e.g possibility of interference
Causation: • D breached their duty towards consumer / end user (breach) but also this
defect caused the end damage that was suffered by the claimant (causation)
Mason v Williams & Williams Ltd
• Facts: C injured while using a chisel which was too hard for its purpose.
• Held: so long as it is established nothing had happened to chisel between it
leaving D’s factory and reaching consumer, negligence in established.
• Again, we see this strong trend of inference regarding breach and causation
• This takes away from the idea of ‘tort’ in the sense that its on the claimant to
have the burden of proof in establishing DOC, breach, causation but here the
inference switches the burden of proof onto the D to prove against the
‘interference’ made by the C and Court.

Loveday v Renton
• Facts: C suffered brain damage following the administration of a vaccine.
• Held: liability not established because C said Plaintiff did not prove the causal
Problem of link between brain damage and the vaccine. Despite bringing in a medical
causation in expert to share his opinion that vaccine caused convolution there was no
pharmaceuticals: causal link to brain damage. C said one person’s beliefs not sufficient. There
could be multiple possible causes to the damage (e.g. like in Wilsher v Essex).
There was evidence that it caused convulsions but not brain damage so case
fails.
• Authority: Evidence of defect in pharmaceuticals have to be established,
respected medical opinions or you cannot establish that causal link – this was
the problem in the case.
• So the case says the causal links have to be established by a Respected
medical opinion required i.e. if your claiming the vaccine caused brain damage
then medical opinion needs to express the same medical opinion as you to hold
a D liable
• You need scientific knowledge
• In certain cases, the state of scientific knowledge would be in issue e.g.
Thalidomide issue. (pregnant women taking this drug for morning sickness and
resulted in babies born with defects remember science lessons, happened in
the 70s). This spurred on the movement to establish strict liability regimes but
at the time the science knowledge did not reveal that there was a problem with
the drug. But CPA (which is the stricter liability regime) today still does not
solve this problem today

 When considering negligence and also under the CPA you have to consider
things like post-sales duties e.g. Knowledge about a product comes about
AFTER the product has circulated the market and has been sold
Post-sale Duties:  Certain cases argue the manufacturer/D has:
possibly comes • Duties to warn customers – E Hobbs v Baxenden Chemical Co:
under breach, • Facts: Claim that insulation sold as self-distinguishing was wrong.
failure to address • Held - Manufactures owes the duty to customers to tell them of this ‘new
defect once you
knowledge.’
discover it exists
• Duties to recall – duties to customers could be extended to this level say that it
e.g. duty to
recall/warn once he COULD: Walton v British Leyland
finds out about them • Facts: Wheel came off car caused by failure of bearing (something to do with
steering mechanism. Because of a defect in this the wheel kept coming off) and
caused damage and personal injury
• Held: Manufacturer owed a duty to recall the car given the number of cases that
were reported to them about the cars.
• So duty to warn or recall extends to customers even after the product has been
sold!!!. Duty to recall is usually used when a product is dangerous like Walton
and they have to take back all the products
• If you have warned or recalled you discharge the duty

• Remember to consider defenses

• remember defences correlate to the specific heading your suing under so
contract = contract defenses, if CPA applies you benefit from defenses from
Defences in CPA, if liability in negligence = defenses in negligence apply
Negligence
Enacting the CPA 1987
• Came after period of concerns e.g., thalidomide tragedy + the directive below
• Part I of the Act gave effect to European Council Directive 85/374/EEC) on
liability for defective products – general mood of holding producers responsible
Part II: Consumer
for the products in the market
Protection Act
• Directive instituted a strict liability regime on producers (no fault of
1987 (not
manufacturer required).
negligence)
• Because we’ve already looked at the extent of breach and causation under
negligence which has a low fault threshold – so perhaps CPA even with its
‘strict liability’ heading doesn’t actually add anything
• When interpreting the Act, the Directive and decisions of member states will be
relevant (see A v National Blood Authority – Burton J applied Directive
instead of Act) – judge forgot about the altogether and went straight to directive
• If not possible to reconcile, the Act must be followed and the (Wilkes v Depuy
International Ltd (2016). In this case they reversed the A position and said the
act should be the focus of this inquiry.
• Brexit does not affect this because of s2 Withdrawal Act – decision of member
states still relevant to look at

Strict(er) Liability
• Difference from neg as neg focuses on the D’s conduct (fault), contract is a
question suitability and quality and CPA focuses on the product safety
• CPA established a system of strict liability focusing on product safety.
• Unlike in Negligence, the defendant’s conduct is not in issue.
• Claimant has to prove defect, damage caused by defect (causal link.)
• But, defenses still available detract from strict liability under the act

1. Standing to sue (implied ss 2 and 5) – claimant can sue

2. Possible Defendants (ss 1 and 2) – D comes within the categories identified in
Elements of Liability the act
under CPA 3. Is the item a product? (s 1) – must show item is a product (this question is to
distinguish products from services).- add this first
4. Is there a defect? (s 3) – C must show there is a defect (most important when it
comes to a case – lots of cases discuss whether something amounts to defect
or not)
5. Type of Damage covered (s 5) – type of damage sustained by C is covered by
the act
6. Defenses. – if the D has any defenses availed to them

v Claimant also has to show causation and remoteness i.e. that type of damage
is not too remote (use normal neg cases to show these). (similar to negligence
but don’t confuse just because the C has to show causation and remoteness)
v Note 3 years limitation period from harm being suffered or discovered but within
10 years from product being in circulation according to limitation act 1980.

Standing to sue (who can sue)

• Anyone who suffered damage covered by the Act can bring a claim.
• s.2(1) – “…where damage is caused wholly or partly by a defect in product,
[possible defendants] shall be liable for damage.” (general)
• S. 5 focuses on the occurrence of damage to person or property with no
restrictions as to who can bring a claim.
• No explicit language on who can sue, so its essentially anybody whose suffered
damage by reason of being proximate to a product can sue

Possible Defendants C can sue – Primary

S 2(2) a-c identifies possible defendants as:
- Producer: Defined in s 1(2) as mainly a manufacturer.
- Own-branders: Those who hold themselves out to be producer by putting their
names on product that make you think that they manufacturer the product. E.g.
shirts that have M&S on it or Tesco on it – you don’t expect them to have
factories
- So can sue producers and own branders as possible defendants
- Note: under negligence its broad who you can sue but in CPA its very limited
- S 2 (2c) Importers into the EU (Brexit effect?) – Product Safety and Metrology
etc. (Amendment etc) (EU Exit) Regulations (SI 2019/696), Sch 3, para 3.
if you bought x product into Belgium and then the importer sells it to retailer in
UK, you could bring an action against the importer because they brought into
into the EU. But bc of Brexit the Act applies to importers into the UK rather than
EU

Possible Defendants – Secondary

• Suppliers (e.g. retailers) can be sued if you ask them for the identity of persons
to whom section 2(2) applies (the above e.g. own-branders) and fails to do so
within a reasonable time.
• Defendants can be jointly and severally liable under the Act. (possibility of
having multiple defendants)

Product
• Product is defined in s 1(2) as any goods or electricity or component in another
product.
• So def of product is quite wide and only diff is between product (tangible) v
services (intangible)
• S 45 defines “Goods” as including “substances, growing crops and things
comprised in land by virtue of being attached to it, and any ship, aircraft and
vehicle.”
• Note: buildings are not products but the materials used to make them are e.g.
steel, brick , mortar
• The distinction is made between products and “services” – A v National Blood
Authority: Blood and blood transfusions covered.

Defect
• S 3(1) “…there is a defect 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.”
• Focus is on safety but the question is, what are generally entitled to expect? –
this is should be the focus of the enquiry
• S. 3 (2) (a)- (c) provides guidance as to what to consider:
- Purpose for which product was marketed.
- Manner in which product was marketed.
- Use of marks (e.g. quality and safety).
- Instructions/warnings on product or packaging.
- what might be reasonably expected to do with product – cat in
microwave? – e.g. if you out your cat in a microwave to dry it, this does not make
the product defective because you used it wrongly or not in accordance with
instructions
- also an issue regarding time when product is supplied (e.g. say a safer
product than yours is supplied a year or so later (new product) this is not evidence
that your product is defective, as u have to understand your product in the
CONTEXT of the time it was created .)

Manufacturing v Design Defects (Non-standards vs Standard Products)

• A v National Blood Authority [2001] – Claimant suffered a hepatitis C
infection from blood products before the virus was discovered and could be
screened for.
• Held: However Burton J held Claimant was entitled to expect an infection-free
bag of blood. But that there are some products where in some samples
customers expect to be flawed.
• Out forward idea of non-standard v standard products – if defect in product
could be traced to design or designed with inherit defect – if product has defect
as a sample (i.e. as an anomaly with others not having defect)
• The bag of blood infected was seen as a non-standard product – not designed
by manufacturer to have an infection in it
• D argued they couldn’t have done anything – couldn’t have been screeded for
but the decision ties in with strict liability – there is no need to be a balance of
what the manufacturer needs to do like negligence its not a question of breach
or doing your best
• Case reinforces that CPA is a strict liability regime

• Wilkes v DePuy International Ltd [2016]

• Facts: component of a hip replacement product fractured.
• Held: No defect because (1) alternative design more expensive and less
comfortable; (2) other producers made same design choices; (3) product had
regulatory approval; (4) adequate warning of risk was given; (5) risk was small;
(6) consequences of fracture limited.
• Held: This case concerned a standard product, product intended to reach
consumer by manufacturer and thus we look at these factors and find balance
but this could not happen in the blood one as the context was with none
standard product
• Gee v DePuy International Ltd [2018] Metal debris shedding not defect (hip
replacement) held – product not defective
• So always look at – is this a product (that is not supposed to have a defect but
has it in which case the defect is enough for liability) / design (in this case you
need to balance the factors)?
• Standard pack of digestives – 12 biscuits no nuts, if you find a packet that has
10 biscuits or one has nuts – this would be a none-standard product – not
intended by the manufacture to reach you that way – a wrong that happened in
the manufacturing process and if the manufacture could do what they wanted to
do they would eliminate this
• Standard product – reaches product as manufacturer intended and if there is a
problem it happened in designing – as in they all have these components that
causes shedding, debris etc.

Defective Products – Caselaw

Instructions/Warnings may discharge duty under Act
• Worsley v Tambrands [2000] – Tampons causing toxic shock not defective.
Tampons caused C toxic shock but in the instructions its clear that T must be
changed regularly
• Buckley v Henkel Ltd [2013] - Hair dryer causing allergic reaction not defective.
– instructions said try this on part of skin (patch test) so warning / instructions
enough so item not defective
• Richardson v LRC Products Ltd [2001] – Breaking condom in sex not defective.
– because it was known to the public (back to the idea what people expect) that
these things are not 100% safe

Defective Products – Caselaw

In particular If considering Design Defects you ask Could the product be made
safer?
• Pollard v Tesco Stores Ltd [2006] – Child-resistant top of dishwasher bottle not
defective even though a child was able to open it (note in this case voluntary
industry standards were not followed). Child injured as able to open dishwasher
product. Q was product defective because the cover of bottle said it was child
resistant. Held – no defective 1 min 20
• Cf Abouzeid v Mothercare (UK) Ltd [2000] – boy injured by starp mechanism in
pushchair, hurt his eye. Held: Manufacturer could have done more to render
product safe as expected the item would be around children.

Causation
• So so far under the Act you go through all the elements above e.g. showing
that C has standing, D is a possible D etc.. then you have to show causation
• Draw link between the defect in the product and damage suffered by C
Causation Will be problematic especially in medical cases – Wilsher v Essex phenomenon –
hard to tell what was actually the cause
• XYZ v Schering Health Care Ltd [2002] – no liability because scientific evidence
of causal link between cardio vascular disease and a contraceptive pill is
contradictory. (i.e. There could be other causes the causal link is not that clear
cut)
• In cases of warning when establishing causation, then if a risk/ warning is
disclosed then as part of the causation test, you have to show that if a warning
is including, must show warning would have been followed. And therefore, if C
uses product even though they knew of defect from warning then this is a
involuntary act – contributory negligence
• E.g. if in causation I say that if the D had said a warning then the C would have
listened to it (had the warning been given the ciament would of not been injured
and in this sense show that the claimant would have listened to the warning
and then take it down the route – even if he did he would still have been injured
or not)
• Remember but for Ds negligence C would not have suffered injury? If your case
is eg about warning should have accompanied a particular procut e.g. allergy
but you can’t show that a C that when he reads a warning would have listened
to it, you cant show but for causation. Had the warning been given, C would not
have been injured, C would have listened to the warning
• Check for novus actus interveniens e.g. Claimant uses product despite
knowledge of defect (unless he has to), reckless or gross negligence.
• NOTE: under negligence and CPA must prove causation as remember having
a mere defective product alone = PEL you must show that there was damage
to property or personal from the defective product.

Type of Damage Covered

CPA – mirrors position in common law so psychological harm arising from defects
is not recoverable at all
In CPA these are the only things covered: in section 5
• Death and personal Injury.
• Property damage (has to exceed £275) – s 5 (4).
• Pure economic loss excluded – s 5 (2): no recovery for value of defective
product itself.

Defenses under the CPA

First defence: Development Risks Defence – s 4 (1) (e) – textbooks call this
state of art defence
• You have a defence if “the state of scientific knowledge at the relevant time
(when put/supplied product in circulation) was not such that a producer of
products of the same description as the product in question might be expected
to have discovered the defect if it had existed in his product while they were
under his control”
• The scientific knowledge at the time as well as what other producers do are
relevant to the q of whether a d can escape liability. If defense did not exist
there could be a deterrent effect on innovation e.g. in medicine when we
normally discover side effects later on. So, if you can show scientific knowledge
at the time was not so that producers of similar products would’ve discovered
the defect, you have a defence
• Relevant time is time supplied by producer (s 4(2).
• Defense was not available in A v National Blood Authority because general risk
of infection was known and even though it couldn’t be discovered at the time,
this general risk took it outside the scope of this defence
• State of scientific knowledge refers to ‘most advanced levels of research’
available generally – EC Commission v United Kingdom [1997]

Other Defences
• That Defect is the inevitable result of compliance with any retained EU
obligation – s 4(1) (a). Brexit changes this by reference to just the retained EU
legislation
• D did not supply the product – s 4 (1) (b) e.g. if product is stolen from factory.
• Non-commercial production/supply – s 4(1) (c) e.g. donating baked goods for
cause.
• Donating the product – shows you did not do it for profit and thus provides a
defense for you
• Subsequent defect – s 4(1) (d) defect did not exist at relevant time.
• Component defect because of composite product design or following designer’s
instructions – s 4 (1) (f).
• Contributory negligence may be relevant – s 6 (4).
Summary:

Occupier’s Lecture 16
Liability
Introduction:
● As discussed by Denning, Occupiers’ Liability (OL) is a really specific application of
a DOC (i.e. the common duty not to injure someone’s neighbour) but in a situation
where proximity depends on occupation and D’s relationship to the land as to make
them an occupier
● Strand of negligence but it is different because the duty arises by virtue of Ds
relation to the land – OL is an example of a land-based causes of action
● Arises because someone exists on someone else’s premises

● The duty owed by occupiers is owed to either visitors (i.e., licensees, invitees and
contractual entrants in old law) or non-visitors (i.e. trespassers) – latter gives rise to
a less stringent duty to protect them from injury compared to visitors.
● Deals with the risks and harms posed by dangerous places and buildings
Lawful visitors: ● Two regimes: The Occupiers Liability Act 1957 (Duty owed to visitors ss 1(2), 5))
extent of duty at
common law from and the Occupiers Liability Act 1984 (Duty owed to trespassers ss 1(1a)) – these
highest level to acts have incorporated and modified the general principles of negligence into
lowest statute because the of the harshness and complexity of the common law

Old law: Pre 1957, extent of duty owed to visitors was based on category of the visitor:
● Contractual entrants (using premises because of right conferred by contract) e.g., a
hotel guest – most protected
● Invitee (entering D’s premises for business purposes) e.g., a customer in a shop

● Licensee (invited by occupier but not for business purposes) e.g., a guest/friend at
home. – least protected, least stringent
● Trespassers before British Railways Board v Herrington [1972] were owed no
positive duty at all, occupiers simply were under obligation not to deliberately or
Occupier’s liability recklessly cause them harm (Edwards v Railway Executive [1952])
Act 1957: visitors
Edwards v Railway Executive [1952]
● Facts: a particular spot on a railway was used as a shortcut. Fence had to be
repaired on several occasions whenever it was interfered with by people who
wanted to use the railway as a shortcut. Morning of incident it was fine
● Held: Trespass won’t confer a licence as to cause duty. D had taken reasonable
steps to prevent people coming onto the railway

Current law:
● Post 1957: the only distinction is between visitors and trespassers, sole Q we need
to ask
● Common law now only relevant to determining who is a visitor (S1(2) says visitors
defined same way as in common law, those who they have invited or have (or are
treated as having) given permission to enter or use the premises.
● Permission is not unlimited: Scrutton LJ in The Carlgarth [1927] ‘When you invite
a person into your house to use the staircase, you do not invite him to slide down
the bannisters’
● Remember: A visitor can cease to be a visitor if they use the premises for purposes
other than as permitted i.e. not the purpose for which they were invited in

● Scope: establishes a common duty of care to all visitors, abolishing the

distinction between invitees and licensees.
● Provides that an occupier owes a DOC to visitors in respect of dangers posed by
the state of the premises or by things done or omitted to be done on them (S1(1))
● S1(3a): premises include land, buildings, fixed & movable structures.

● There is a distinction between danger arising from the state of the premises as
opposed to activities done on the premises. The reference to what is ‘done on’ in
S1(1) refers to the state rather than the activity on the premises. E.g.
Bottomley v Todmorden Cricket Club [2003]
● Facts: Claimant injured when helping set up firework display

● Held: as the injuries arose from activities conducted on D’s land rather than due to
the state of the land itself, his claim under the Act failed

● However in some cases an occupier may be liable to a visitor for harm caused by
another visitor:
Cunningham v Reading Football Club Ltd [1992]
● Facts: Claimant hurt as a result of a concrete missile thrown by football hooligans
Who is an ● Held: Although it appears more of an activity, C able to recover because the
Occupier? occupiers breached their duty as occupiers under the 1957 act: the premises were
in a dilapidated (old and poor condition) state which allowed the hooligans to break
of bits of concrete with their feet to use as missiles – thus attributable to state

● E.g. of the distinction: Sweat huts: native American ritual: entering a hut which is
heated like a sauna to remove toxins, spiritual elevation etc. Recently, a number of
participants died in these huts which a wellness company ran. The participants
were instructed to withstand the heat and discomfort.
● State/environment of the premises = artificially heated

● Activity = stay and withstand the heat, purpose for which you were invited

● time the activity is to stay there, that’s the purpose that you were invited in

● Distinction debated in Fairchild: held that it was about the state of the premises
and not what is done on them (i.e. the business that took place on the premises)
● Both personal injury and property damage are covered (by virtue of S1(3b).

● The duty is to take such steps as in all circumstances reasonable to ensure visitors
will be reasonably safe (S2(2))
● If injury suffered outside premises there’s no OL claim, normal rules of negligence
apply e.g. tort of nuisance if there’s unreasonable interference with land, or under
Rylands v Fletcher [1968] (if damage is caused by dangerous thing escaping)
Categories:
Wheat v E Lacon & Co Ltd [1966]
● Facts: Defendant (D) was the owner of a pub managed by R and R’s wife (W)
under a contract with D. R/W also has a licence to live on the first floor and take in
paying guests to stay in other parts of building - so no legal title to the flat, just
there to manage the pub. Claimant (C) is the wife of a paying guest of R who was
fatally injured when he descended some defective stairs in the building one night.
The Claimant sued D, R and R’s wife. C’s husband was renting a room, fell down a
dimly-lit staircase and died
● Issue: who is to be sued in this situation? Pub owners or R/W who managed the
pub premises?
● Held: All 3 (D, R and W) were occupiers despite the fact R and W were licensees
and not tenants as they had a sufficient degree of control (S1(2)) - an occupier
need not be an owner, and also need not be present at the time/have actual
physical possession. There may be more than one occupier at any given time.
However, on the facts there was no breach of duty – staircase not dangerous to
those who took care
● Denning: “This duty is simply a particular instance of the general duty of care which
each man owes to his ‘neighbour’…Translating this duty into its particular
application to dangerous premises [proximity provided by neighbourhood is created
by connection of D to dangerous premises so], it becomes simply: wherever a
person has a sufficient degree of control over premises that he ought to realise that
any failure on his part to use care may result in injury to a person coming lawfully
there, then he is an ‘occupier’ […] In order to be an occupier it is not necessary for
a person to have entire control over the premises. He need not have exclusive
occupation [i.e legal title]. Suffice it that he has some degree of control. He may
share the control with others. Two or more may be ‘occupiers.’”
● Denning in Wheat v Lacon got the chance to review the case law in the area and
he stated a number of categories of occupiers:
● Tenant is occupier when landlord parts with control over the premises - in fact
recent case law has said that even if they don’t you are still the occupier
● Landlord remains occupier for parts for which he has retained control i.e. parts for
common use in a building e.g. common staircase, common balcony, gutters etc,
everything that isn’t your responsibility/that you don’t have tenancy over
● Owner of the premises is occupier if he licences occupation by another but has
right to repair (as in Wheat v Lacon) - Owner remained occupier because he has
the power to do repairs. Licensees also occupiers unless on casual basis.
Scope of Duty:
● Owner of premises who hires contractor to do repairs is still an occupier even
though he is not at the premises. But the contractor may also be occupier if they
had sufficient control (usually the case) just like licensees with control
Otherwise:
● Typically a landlord who has leased out premises will not have retained sufficient
control as to be treated as an occupier for the purposes of the OLA’s so an injured
tenant will have no claim – they are the only occupier. However, the gap is
addressed by S4 Defective Premises Act 1974: deems landlord occupier when the
lease imposes the obligation on him in respect to maintenance and repair of the
property. Will owe a DOC to all those who might reasonably be expected to be
affected (e.g. partners of tenant, family members etc (S4(1)) by any defects in the
state of the premises as long as (a) the landlord knows or ought to have known of
the defect (b) the defect is one which the landlord should have remedied by virtue
of the obligation to repair imposed by the lease.
- McAuley v Bristol City Council: if the tenant agreement allows council to
enter the premises, S4(4) of defective premises is triggered, and the
council is occupier. If tenant tells them about a defect, they owe a duty in
the Act
● Owner is occupier even if no one lives in premises, owner occupier even if they
haven’t been on premises e.g.
Harris v Birkenhead Corporation [1975]
● Facts: A tenant leaves the property after being served with notice by corporation
that they would enter and take possession. Tenant leaves to vacate but didn’t
inform the local council. Normally after a property is vacant the ground floor
entrance is bricked up to prevent vandalism. Corporation didn’t secure the building
even 3 months after it being vacant, vandals got in and smashed a window. Harris
fell out of it as a child.
● Issue: who was the occupier? Local authority or corporation?

● Held: local authority was legal occupier as they asserted control however as soon
as the tenant left the corporation became the occupier even though they had never
been to the premises. They had control of the premises and though they didn’t
exercise it, the ability and duty to secure it

● What kind of duty do occupiers owe? What do they have to do or not do?

● Duty of care is to protect people from being harmed as a result of the state of the
premises being in a dangerous condition.
● OLA 1957, S1(1) ’regulates 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’. Remember, focus is still on the state of the premises.
Activity-related liability will usually be pleaded in negligence.
● Occupiers duty only applies for the purposes for which the visitor was invited to the
Discharging the premises because otherwise you’re a trespasser and not within the remit of this act
Duty (Standard of
Care): ● S 2(2): Occupier owes a positive duty to act to take ‘such care as in all the
circumstances of the case is reasonable to see that the visitor will be reasonably
safe in using the premises for the purposes for which he is invited’ – thus if there’s
a particular vulnerability of the visitor the occupier should take reasonable steps
● If you have a problem Q which doesn’t specify that an accident happened because
of state of the premises e.g., a missing step, but because of someone negligently
pushing them for example, that is not OL
● Debated: could extend to activities carried out carelessly on D’s premises: e.g.,
negligent driving or shooting by D or with D’s consent by 3rd party on the premises
– obiter in Tomlinson v Congleton (cf Fairchild v Glenhaven FS – distinction clearly
made) but in general, these overlapping cases will be pleaded in both OL and
negligence

Tomlinson v Congleton BC [2003] – trespass no permission

● Facts: C was paralysed when he dived into a shallow lake. There were notices
forbidding swimming.
● Held: Claim fails. C was trespasser and injury not caused by state of premises. He
was a trespasser as he was doing something which he was not given permission to
do on the land – once permissions are exceeded you become a trespasser e.g.
sliding down a banister. Being a trespasser or visitor has implications on whether
the premises were safe or not: visitors who used the premises for permitted
activities weren’t exposed to danger
● ‘It is not, and should never be, the policy of the law to require the protection of the
foolhardy or reckless few to deprive or interfere with, the enjoyment by the
remainder of society of the liberties and amenities to which they are rightly entitled.
Does the law require that all trees be cut down because some youths may climb
them and fall? Does the law require the coastline and other beauty spots to be
lined with warning notices (…) because of a few foolhardy individuals who choose
to ignore warning notices” – Lord Hobhouse
● What about if there was no notice? This might have meant he was not a
trespasser. There are however cases where there was no permission, but it was a
stupid activity to do which leads to contributory negligence

Breach Keown v Coventry Healthcare NHS Trust [2006] – trespass no permission

● Facts: C used fire escape as a climbing frame. Got injured

● Held: NHS Trust not liable as an occupier, chose to use it as a climbing frame. The
mere presence of the fire escape did not pose any danger; it was what C chose to
do on the fire escape - using it as a climbing frame- that put him in danger)
● In PQ: consider what visitors are permitted to do. If the C is not permitted, then
they’re a trespasser and a lower duty will be applied
Discharging the
Duty (Standard of
Care): Children ● Question becomes, what does an occupier have to do (what’s the standard of
care)? As mentioned by the Act, to make someone reasonably safe (doesn’t have
to be 100% safe)

Pollock v Cahill [2015]

● Facts: D invited C into flat. C was blind and flat had a window on the second floor
that was open. C fell.
● Held: even though an open window would not ordinarily be dangerous, D ought to
have warned his blind visitor of an open window or to close it to keep him safe.
● Even though duty arises from the condition of the premises, what you are asked to
do is ‘see that the visitor will be reasonably safe’ (S2(2)), i.e. not objective where
you just ensure the premises is generally safe, depends on the visitor too
● It’s all about what D is expecting to happen so that he can guard against it. Who is
coming onto premises? What are they likely to do and are they going to be safe?

Bowen v National Trust [2011]

● Facts: group of schoolchildren on a national park for the day. Sat under a tree. A
huge branch fell on them and caused the death of three children. C’s argued that
the tree inspectors failed to exercise reasonable care
● Held: no liability. D could not have prevented death of children by a tree branch that
fell without warning. The inspectors did their job with reasonable care
● Occupier not under ‘an obligation to ensure the safety of visitors, merely to take
reasonable care to provide reasonable safety’ Mackay J [6], standard not to
prevent all injury/death, just needs to be reasonable

Kiapasha (t/a Takeaway Supreme) v Laverton [2002]

● Facts: customer slipped on wet floor of a takeaway shop on a rainy night.

● Held: Even though there was a duty of the shop owners to keep the shop safe, D
had precautions to keep floor clear of water (slip-resistant tiles, doormat to reduce
water coming in, regular mopping) and is not required to do more given the small
size of the premises – emphasis given to considering the circumstances of each
case i.e. perhaps you could expect more from a bigger shop.

Roles v Nathan [1963]

● Facts: chimney sweeps came to do work. Injured by carbon monoxide fumes. They
had been warned repeatedly not to stay in too long and not to work whilst the fire
was alight, once already they’d been dragged out for not doing as told. They died
● Held: occupier entitled to expect skilled visitors to guard against special risks
related to their work. Discussion of the warnings given to them will come later

● In OL cases just like in negligence there are 2 parts: Does occupier owe a duty
under the Act? (did they take the reasonable steps to ensure visitor’s reasonable
safety in the circumstances) Was it breached?
● Breach of duty owed by occupiers is subject to same controls for Breach of Duty in
negligence: probability and severity of injury, cost of precautions and utility – in fact
Latimer was actually a case of slipping on factory premises
● An occupier’s duty to ensure that the visitor will be reasonably safe while on their
premises does not mean that the visitor cannot be expected to take reasonable
care for their own safety (S2(3))

● Because the duty and the act’s focus are on the visitors being reasonably safe as
Discharging Duty of opposed to the premises being safe or not (trespass), you have to consider
Care: Warnings situations e.g. where your visitors are children
● S2(3) talks about/requires occupiers have to take more care for the safety of
children.
● The concern about the duty owed to children has previously in the common law has
given to the allurement doctrine pre-1957 Act which might turn children from
trespassers to visitors (e.g. Glasgow Corporations v Taylor [1922] and Cooke v
Midland Great Western Railway of Ireland [1909]) because you owe a more
stringent duty to visitors rather than trespassers. So, if you want to keep children
safe you should say that they are not trespassing. Reason trespassers are treated
differently is because they are not reasonably foreseeable to be on the land

Glasgow Corporations v Taylor [1922]

● Facts: Child was lawfully on land open to the public but eats poisonous berries.
Father argued that D allowed children to frequently enter but didn’t take action to
alleviate the danger. The plant was enclosed by a wooden fence which was open
to the public and easily accessed by children
● Held: D permitted children on the land and it was understandable that the berries
would be an allurement (attractive) to visiting children. D was aware of the danger
and did nothing to prevent the damage

Jolley v Sutton LBC [2000]

● Facts: Abandoned rotten boat on land owned by D. Boat falls on child and causes
physical injury
● Held: It was reasonably foreseeable that boat will act as allurement to children.
Though it was not likely to pose a danger to adults who would avoid it, it was
foreseeable that children might approach it and be tempted to climb it
● However contributory negligence reduced damages by 25%

● Under the act, the definition of premises includes ‘any fixed or movable structure
including any vessel, vehicle or aircraft’ S1(3) – this case shows the broad
interpretation as non-permanent structures like a derelict boat on a council estate
sufficed

But see: Phipps v Rochester Corporation [1955]

● Facts: Children playing on empty plot of land near a council estate, the plot was in
the process of being developed by D and there was a deep trench. Child falls. The
local children were in the habit of using the land and D had not taken any steps to
prevent this. There was no evidence that the children were unaccompanied
● Held: Children not trespassers in this case and impliedly licenced to play on
grasslands and the trench was something that the children would not have
foreseen. However, D was entitled to take into account that children’s parents
would not allow them to play in such an area without supervision. Thus, D was not
under a duty to take steps to reduce the danger
● Though the case acknowledged that occupiers needed to be more careful and
prepared for children, case is also authority that occupiers are entitled to assume
parents will supervise children so that they don’t play in a dangerous space
● ‘The responsibility for the safety of little children must rest primarily on the parents;
it is their duty to see that such children are not allowed to wander about by
themselves, or at least to satisfy themselves that the places to which they do allow
their children to go unaccompanied are safe for them to go to. It would not be
socially desirable if parents were, as a matter of course, able to shift the burden of
looking after their children (…) to those who happen to have accessible bits of land’

Simkiss v Rhondda BC [1983]

● Facts: Child falls off bank of river. In giving evidence father says he didn’t think
riverbank was dangerous
● Held: Court refused to hold council liable. If the child’s father did not consider the
bank to be dangerous, then why should the council? Why should council be held to
higher standard than the reasonably prudent parent? Even if the father did think it
was dangerous the Council were entitled to assume that the father would warn his
child – he didn’t do this, clearly didn’t regard it as dangerous

Discharging Duty of
Care: Work by ● S2(4a): Occupier may discharge duty of care by giving warning against potential
Independent danger if it was ’enough to enable the visitor to be reasonably safe’ (or alternatively
Contractors raise the defence of volenti (S2(5) or contributory negligence (S2(6))
● If there’s a warning sign, the question is, how effective is it in relation to children?

● What if he isn't expecting children/doesn't know they are coming? Pivotal question
– is it reasonably foreseeable? The children are likely to be trespassers if you’re
not expecting them

Roles v Nathan [1963]

● Facts: Chimney sweeps warned frequently of dangers of CO2 (as mentioned
above) did not heed warnings and died.
● Held: The warnings were held to be sufficient. There was no liability. Warnings will
only be sufficient to discharge an occupier’s duty to a visitor if, in all the
circumstances, it is enough to enable that visitor to be reasonably safe

English Heritage v Taylor [2016]

● Facts: C falls over a sheer drop. The drop was not obvious and D failed to provide
a warning sign
● Held: Claimant able to recover but found 50% contributorily negligent

● ‘Adult visitors do not require warnings of obvious risks except in cases where they
do not have a genuine and informed choice … I accept that questions of whether a
danger is obvious may not always be easy to resolve … But there are many areas
in life in which difficult borderline judgments have to be made … It is highly relevant
that the common DOC is to take such care ‘as in all the circumstances is
reasonable’ to see that the visitor is ‘reasonably; safe … The court is, therefore,
required to consider all the circumstances. These will include how obvious the
danger is and, in an appropriate case, aesthetic matters…the steps need be no
more than reasonable steps. That is why the decision in this case should not be
interpreted as requiring occupiers like English Heritage to place unsightly warning
signs in prominent positions all over sensitive historic sights’ (Etherton MR)
Staples v West Dorset District Council [1995]
● Facts: There was a wall which the public could access. It sloped to the sea and had
algae growing on it. C slips on algae and falls suffering injury. C claims there
should have been a warning sign
● Held: A warning sign would not have informed C of new information, the duty under
the OLA was to warn of a risk if he was unaware. This was an obvious risk

Darby v National Trust [2001]

● Facts: C’s husband drowned in a pond in a national park. Visitors often swam in the
pond. There was a notice in the car park which forbade bathing and boating.
Wardens occasionally patrolled the ponds and discouraged people from swimming
in them by warning of the dangers of catching Weil’s disease from the water. C
argued that the National Trust’s failure to put ‘No Swimming’ notices around the
pond or similar regarding catching Weil’s amounted to breach of DOC under S2.
● Held: Such notices would not have told the husband ‘no more than he already
knew’ about the risks of swimming in open water. The National Trust’s failure to
warn about one type of danger (Weil’s) could not help the claimant if they suffered
unrelated danger (drowning) (basically saying this is not a good argument). There
were no special or hidden dangers regarding this particular pond and no duty for
them to have warned him. They’d done what was reasonable
● ‘It cannot be the duty of the owner of every stretch of coastline to have notices
warning of the dangers of swimming in the sea (…) the coast would have to be
littered with notices’ – May LJ
● The failure to warn about one type of danger will not be able to help the claimant if
they suffer personal injury as a result of an unrelated danger

● The presence of an effective notice will defeat a claim under the act as it will mean
that D took reasonable care. They told visitors what to do to avoid being harmed.
This is different from the situation under S2(1) where, by a written notice or
otherwise (E.g. through an express term of a contract), an occupier seeks to
restrict, exclude or otherwise modify their duty to a visitor. Unlike warning notices
that seek to ensure visitors are reasonably safe (satisfying the requirements), such
exclusions operate to prevent a duty arising in the first place (or at least to limit
scope of the duty by setting out the conditions that the claimant can enter the
premises
● Where the premises are occupied for business premises, an occupier’s ability to
limit liability is restricted by S2(1) and 2(2) of the Unfair Contract Terms Act 1977 –
they can’t exclude liability for death or personal injury arising from negligence but
can restrict other damages where reasonable
● If the premises is private the occupier is free to extend, restrict or otherwise modify
their liability as much as they want

● Before we said contractors will be occupiers subject to conditions even if owner is

not present but owners can only be excluded from liability in this scenario:
● Section 2(4b): where damage is caused to a visitor by a danger due to the faulty
execution of any work of construction, maintenance or repair by an independent
contractor employed by the occupier, the occupier is not to be treated without more
as answerable for the danger if in all the circumstances he had acted reasonably in
entrusting the work to an independent contractor and had taken such steps (if any)
as he reasonably ought in order to satisfy himself that the contractor was
competent and that the work had been properly done.
● Occupiers who were reasonable and careful enough in choosing contractors they
knew were competent and checking the work was properly done may not be liable
● Usually the more technical the work, the more reasonable it is to entrust an
independent contractor (cf Woodward v Mayor of Hastings [1945] and
Haseldine v CA Daw & Sons Ltd [1941])
Defences
Woodward v Mayor of Hastings [1945]
● Facts: Child slips on icy surface of a step whilst at school. A cleaner had brushed
away snow on the step but not placed any material down to neutralise the left over
ice making it dangerous. Claim that the cleaner was negligent and so the school
governors should be liable
● Held: Governors liable. Cleaner was an agent of the school and ought to have
Occupiers’ Liability known of the danger she’d caused. The Court also said that even if the school
Act 1984: could prove the cleaner was not under their control they’d still be liable because
trespassers they delegated their duty to the cleaner who had not discharged it. Defrosting stairs
did not entail any technical knowledge, the school could have done it and checked
this themselves
Ola 1984
● It’s a subjective test

Haseldine v CA Daw & Son Ltd [1941]

● Facts: Lift installation. Landlord in occupation of the lift and had insurance against
3rd party risks in the course of using it. Insurance company made occasional
inspections of the lift. There was also an agreement between the landlord and
engineering company to maintain the lift each month and report issues. Engineers
told landlord that the rams were badly warn but not that this was dangerous. On
one visit an engineer failed to repack the machine properly leaving it weakened.
The next day someone injured. Claim brought against landlord and engineers
● Held: Quality of work done was not something that occupier could reasonably be
expected to verify, the only obligation that landlord had was to ensure that the lift
was reasonably safe and that he had employed competent engineers to inspect it,
he was not liable
● Authority for proposition that as an occupier you’re not required to supervise
whether the work has been done well if it exceeds your technical knowledge

Gwilliam v West Hertfordshire Hospitals NHS Trust [2002]:

● Case not about whether contractors did the work properly or not but about whether
them having insurance was an obligation of the occupier
● Facts: C injured at a charity fun day organized by D while using a ‘splat wall’ run by
an independent contractor who had been negligent. She sues contractors but the
contractor’s insurance policy has lapsed, and they were unable to meet C’s claim
and all the damages. So, she sued occupier (NHS) for the additional damages
failing to ensure that the contractor was adequately insured
● Held: Claim fails. While D had a duty to ensure contractor was insured (on the
basis of competence of a contractor and being reasonable in choosing), on the
facts they did enough for the purposes of S(4b) to discharge their duty so there was
no breach. It would be unreasonable to expect the occupier to go further by
checking the specific terms of the policy
● Sedley LJ dissented on there being a duty in the first place. Said there’s a
difference between a duty to protect visitors from physical injury and a duty to
protect them from an inability to recover damages
● Could mean that a D occupier could be liable to victims of 3rd party wrongs if they
fail to ensure that the 3rd party is in a position to meet any such liabilities – but why
is this a sufficient reason simply because the 3rd party happened on D’s premises?
● Another example of broad definition of premises, ‘any fixed or movable structure
including any vessel, vehicle or aircraft’ in S1(3) – a temporary ‘splat wall’ sufficed
● Cf Naylor v Payling [2004] and Glaister v Appleby-in-Westmoreland Town
Council [2009]

Naylor v Payling [2004]

● Facts: C. suffers injury after negligently being thrown out of a nightclub by the door
attendant. D owned and ran the club and employed the attendant as an
independent contractor for security. The security did not have the relevant
insurance to cover activity of employees. C relied on Gwilliam and the proposition
that there was a duty to check an independent contractor was insured
● Held: no evidence that the competence of the employees should have been
doubted by the owner. The law except in limited circumstances does not case a
duty on an employer to satisfy himself that his contractor had insurance. Gwilliam
was not authority to suggest otherwise. In that case the appeal was decided based
on judging whether the contractor was competent which it was, Lord Woolf did not
consider it a duty on D to check the contractor had insurance for the benefit of an
injured member of public. Lord Justice Waller in Gwilliam said that this duty might
exist in the circumstances of that case but it does not exist in this present case.
The situations that Lord Justice Waller had considered were i) The hospital had
wished to carry out an activity which was hazardous with a clear risk of injury, ii) It
was not onerous to check whether the independent contractor carried insurance
and it was therefore a situation where is would not be acting reasonable in
arranging for an independent contractor to carry out a hazardous activity unless the
hospital checked first that visitors would be protected. iii) A freestanding duty could
only arise where the employer would be under a duty to insure himself or at the
least had actually recognised the need for insurance in relation to a particular
activity. In this case the bouncer didn’t fall within the hazardous activity considered
in Gwilliam and D was not under a duty to carry public liability insurance or
insurance in relation to the activity of the bouncer

Glaister v Appleby-in-Westmoreland Town Council [2009]

● Facts: C injured at a horse fair by a loose horse. Claimed negligence against
council for licensing the fair without ensuring that there was public liability
insurance. Council appeal against the decision that they had this obligation
● Held: Council owed no DOC to claimants to arrange public liability insurance to
cover the risk of injury occurring at a long-established horse fair taking place on
land part of which it owned, nor to ensure safe segregation and supervision of
tethered horses. It would be a ‘deterrent to those …who freely give their time and
Discharging Duty energies to the encouragement of such events….the result would be an
under the 1984 Act impoverishment of our community life’ Preferred Sedley LJ’s dissent in Gwilliam

● Voluntary assumption of risk ‘risks willingly accepted as his by the visitor’ (S2(5))
Geary v Weatherspoon plc [2011]
● Facts: C fell 4 meters on marble floor after sliding down a bannister.

● Held: No liability as sliding down was not permitted and she chose to do it knowing
it was dangerous
● Contributory negligence – English Heritage v Taylor [2016], facts above

● Took legislator a few years to come up with the Act to consolidate common law
duties regarding trespassers
● Duty is not to keep them safe like with visitors. With trespassers the duty is just to
not knowingly cause them to be injured because of dangers on the premises. In
case law previously has been described as a duty to prevent them walking onto an
open furnace – clearly a more limited duty than owed to visitors
● S1(2) of Act defines occupier and premises the same as the 1957 Act, still
regarding the state of the premises (see Keown v Coventry Healthcare NHS
Trust [2006] above where the C’s injuries were caused by his activity in climbing
the underside of a fire escape, not the state of the fire escape itself). Also see
Revill v Newberry where there was no liability under the 1984 Act for a D who
participated in the activity of shooting a burglar on his premises because the injury
hadn’t arisen because of the state of the premises
● S1(8) excludes damage to property.

● This duty to take reasonable care in all circumstances to see that persons other
than his visitors’ (trespassers) do not suffer injury as a result of ‘danger due to the
state of the premises or to things done or omitted to be done on them’ (S1(1)
subject to limited dangers which exist on the premises by virtue of S1(4) of the Act,
and provided the following conditions are met (as set out in s1(3)):

(1) If D is aware of or has reasonable ground to believe a danger exists on their

premises (condition: to know that there is danger there, you can infer danger);

(2) D knows or has reasonable grounds to believe [trespasser] is in vicinity of

danger (you have to pass the hurdle of whether the risk is one of the risks where
occupier is reasonably expected to owe protection. Huge reluctance to impose a
duty towards trespassers regarding the state of their premises – reason for this: if
you don’t know who is on the land, you have a very limited opportunity to protect
them from the dangers, how can you insure against ppl you don’t know will be on
your land, doesn’t know who they are, when they’re there); and

(3) The risk is one against which he may reasonably be expected to offer
protection.

British Railways Board v Herrington [1972]

● Facts: Child suffers severe burns playing on an electrified railway track

● Held: Case which changed the perception on what a trespasser was. It was too
harsh to deem the child a mere trespasser. Courts introduced a ‘duty to act
humanely’. Though D knew the gap was regularly used as a shortcut, had seen
children on the line they took no action to repair the gap breaching their duty

● Presently however, we now have the 1984 Act which has limited the duties towards
trespassers to situations of extreme danger:

Rhind v Astbury Park Ltd [2004]

● Facts: C trespassed by swimming when warning signs prohibited it in a body of
water to retrieve his ball. He was severely injured after hitting his head on container
at bottom of the body of water which was not visible from the surface.
● Held: no duty as D could not know that container hid beneath surface (1)

● In order for an occupier to owe a trespasser a DOC they must be aware of the
danger or have reasonable grounds to believe that it exists

Swain v Puri [1996]

● Facts: D owned a factory which was surrounded by a fence topped with barbed
wire. One section did not have barbed wire. S child spotted it and entered the
premises. He then climbed onto the roof of the factory and fell. C asserts that DOC
was owed because D “knows, or has reasonable grounds to believe that the other
is in the vicinity of the danger concerned or that he may come into vicinity of the
danger in any case”
● Held: D is required to have actual knowledge of C’s presence in the vicinity of
danger or facts to create a reasonable belief. There was no evidence that there had
been any children in the area that had been seen by the Ds. The Ds having erected
a high fence topped with barbed wire had inspected this fence and found no signs
of trespass meaning they did not ‘shut their eyes’ to the circumstances either. In
any case, if a duty did exist, it was discharged by the erection of the seven foot
fence – reasonable steps to protect against people managing to scale it and fall

Donoghue v Folkestone Properties Ltd [2003]

● Facts: C injured when he hit his head on obstruction as he dived off D’s harbour

● Held: Even though D should’ve been aware of people swimming in the harbour in
summer, D could not have expected diving mid-winter in the middle of night – i.e.
unaware that anyone would be in the vicinity of danger (2)

Tomlinson v Congleton BC [2003]

● Facts: C was paralysed when he dived into a shallow lake. There were prominent
notices forbidding swimming. Visitors frequently ignored them as well as verbal
warnings from park rangers. Several accidents had already previously occurred.
Council knew this and planned to plant vegetation in certain areas to prevent
people entering the water – they hadn’t done this yet for financial reasons
● Held: Claim fails as there was no risk due to ‘the state of the premises or anything
done or omitted upon the premises’ that the occupier could reasonably be expected
to offer protection for (3) so no duty to give rise to either of the OLAs. It was just an
ordinary stretch of water. C took this risk that they might not dive properly and get
injured themselves, nothing to do with premises. He was a trespasser in ignoring
the signs. Didn’t make a difference that council had intended to take steps to
reduce the danger, the risk was not one which they could reasonably be expected
to offer protection for – how can you prevent people taking risks in activities they
freely choose to undertake?
● Case is a good example of the operation of the 1984 Act and the difference from
the 1957 one. Under 1957, all C has to do is provide they were a lawful visitor
which will automatically give rise to a DOC, the question then turns to breach.
Under the 1984 Act establishing a duty is less straightforward

● In determining whether it is reasonable to expect the occupier to offer protection

and what amounts to reasonable care, the courts must consider factors similar to
determining whether DOC has been breached (as listed above). This would include
the costs of requiring the occupier to take steps to make the premises safer e.g.

Simonds v Isle of Wight Council [2004]

● Facts: child falls off swing breaking his arm. Swing near a playing field being used
for a school sports day. It was argued that the school was under a responsibility to
discourage pupils using the swings e.g. by placing a cordon around them
● Held: this was rejected. One reason given was that a likely consequence of finding
the school liable was that ‘sports days and other simple pleasurable sporting
events would not be held … such events would become uninsurable or only
insurable at a prohibitive cost’

● S. 1(5) states that warnings or any measures taken to discourage persons from
incurring risk i.e. warning of the danger or discouraging entry (e.g. a locked gate,
enclosures, fences) may discharge duty. The warnings in the 1984 act are not as
stringent as the 1957 act, does not need to enable visitor in all the circumstances to
be reasonably safe like in S1(4a) of the 1957 Act, occupier just needs to take
reasonable steps to bring the danger to C’s attention

● Same defences apply e.g. voluntary assumption of risk:

● Where C accepts risk of injury, there will be no liability (i.e. Volenti is also
applicable e.g.

Ratcliffe v McConnell [1999]

● Facts: student climbed over a locked gate at night and fell into a swimming pool.

● Held: Claim fails. S1(6) no duty owed by occupier to anyone who willingly accepts
the risk as his own. C admitted he was aware the pool was closed for winter and
that the water level was low and thus that falling headfirst would be dangerous.

Summary: