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Tort of Negligence

• A tort is a civil wrong.

• In tort, the victim (claimant) seeks compensation for injury or damage to property.
• To establish negligence, the claimant must prove three elements:
1. Duty of Care – the defendant owed the claimant a duty.
2. Breach of Duty – the defendant breached that duty.
3. Damage – the breach caused damage or harm to the claimant.

Duty of Care
• Developed through case law, starting with Donoghue v Stevenson (1932):
• Mrs. Donoghue found a decomposed snail in a bottle of ginger beer and became ill. She could not sue
under contract law, so she pursued a tort claim.
• The Neighbour Principle was established:
• You must take reasonable care to avoid acts or omissions that you can reasonably foresee would harm
your “neighbour” (someone closely and directly affected by your actions).

The Caparo Test (Caparo v Dickman 1990)

• The neighbour principle was refined through the Caparo test, which asks three questions to determine
whether a duty of care exists:
1. Was the damage or harm reasonably foreseeable?
2. Was there a sufficiently proximate relationship between the claimant and defendant?
3. Is it fair, just, and reasonable to impose a duty?

Foreseeability of Harm
• Kent v Griffiths: A delayed ambulance led to a foreseeable heart attack, so the defendant was liable.
• Jolley v Sutton: A 14-year-old boy was injured while trying to repair an abandoned boat. It was
foreseeable that children might play on the boat, and thus the council was liable.
• Not foreseeable:
• Bourhill v Young: Mrs. Bourhill suffered shock after seeing the aftermath of a motorcycle accident, but her
harm was not foreseeable.
• Topp v London Country Bus: A bus was left unattended and stolen, causing damage, but this was not
foreseeable.

Proximity
• There must be a sufficiently close relationship between the parties.
• Hill v Chief Constable of South Yorkshire: A mother of a murder victim sued the police for not
apprehending the killer sooner. The court held that the relationship wasn’t sufficiently proximate.
• Osman v Ferguson: The police were aware of the risk to a specific boy, whose father was killed. The
relationship was sufficiently proximate, and the police were found liable.
•McLoughlin v O'Brian

Fair, Just, and Reasonable

• Courts consider public policy and whether imposing a duty of care would open the “floodgates” of claims.
• Hill v Chief Constable: Imposing a duty would result in “defensive policing.”
• Capital Counties v Hampshire County Council: A fire officer negligently turned off sprinklers, worsening the
fire. The court found it fair, just, and reasonable to impose a duty.

Defensive practising - e.g. a doctor might order excessive tests to avoid missing a diagnosis.

Breach of Duty
• Once a duty of care is established, it must be shown that the defendant breached that duty by falling
below the standard expected of them.
Factors to Consider in Breach of Duty:
1. Degree of Risk:
• If the risk was known, the defendant must take reasonable precautions.
• Roe v Minister of Health: Anaesthetic was contaminated due to cracks in glass, but since the risk was
unknown at the time, there was no breach.
• Bolton v Stone: A cricket ball rarely went over a 17-foot fence, so the risk was low, and there was no
breach.
• Haley v London Electricity Board: The board knew blind people used a certain road, so failing to provide
proper barriers constituted a breach.
2. Standard of Care:
• The defendant must act as a reasonable person would in the same situation.
• A higher standard applies if the risk of harm is greater.
• Paris v Stepney Borough Council: A man blind in one eye was not given goggles at work, and his good eye
was injured. The council was liable as the harm was more serious for him.
3. Practicability of Precautions:
• Courts weigh the risk against the cost of taking precautions.
• Latimer v AEC Ltd: A factory put down sawdust to prevent slipping after a flood. One worker slipped, but
the factory had taken reasonable steps, so there was no breach.
• Paris v Stepney Borough Council: Providing goggles would have been a minimal cost to prevent serious
harm.(claimant already had one eye so he should have been held to a higher standard of care by the
employer )
4. Expert Standards:
• If the defendant has expertise (e.g., doctors, electricians), the standard of care expected is that of a
competent professional.

Public Benefit/Benefits of the risk

An example being emergency service,risks may be taken if the public benefit is greater than the risk.
Watt v Hertfordshire County Council (1954): The claimant was a fireman. A woman had been involved in a
traffic accident and was trapped underneath a lorry. This was 200-300 yards away from the fire station.
The fire services were called to release the woman. They needed to transport a heavy lorry jack to the
scene of the accident. The jack could not go on the fire engine and the normal vehicle for carrying the jack
was not available. The fire chief ordered the claimant and other firemen to lift the jack on to the back of a
truck. There was no means for securing the jack on the truck and the firemen were instructed to hold it on
the short journey. In the event the truck braked and the jack fell onto the claimant's leg causing severe
injuries.

Held:

There was no breach of duty. The emergency of the situation and utility of the defendant's conduct in
saving a life outweighed the need to take precautions.

• Bolam v Friern Hospital Management:The claimant was undergoing electro convulsive therapy as
treatment for his mental illness. The doctor did not give any relaxant drugs and the claimant suffered a
serious fracture. There was divided opinion amongst professionals as to whether relaxant drugs should be
given. If they are given there is a very small risk of death, if they are not given there is a small risk of
fractures. The claimant argued that the doctor was in breach of duty by not using the relaxant drug.Held:

The doctor was not in breach of duty.

A doctor must exercise the ordinary skill of a competent person in their field, but not the highest possible
skill.

Breach of duty ;The D’s age

A young person will not have to reach the standard of care expected of an adult.The standard would be of
the Ordinary Reasonable 12 years ,e.g. Mullin v Richards : two 15 yards sword fighting ,ruler breaks goes into
one of the defendants eye,held as not a breach of duty as it wasnt expected for the ruler to break .

Proof of Breach: Res Ipsa Loquitur

• When it is unclear how the breach occurred, but it’s evident that negligence caused the harm, the doctrine
of res ipsa loquitur (the thing speaks for itself) can apply.
• Scott v London & St Katharine Docks: The claimant was injured by falling bags of sugar from a warehouse.
Since the facts suggested negligence, the defendant had to prove they were not negligent.(the court
decided that the defendants were negligent because they couldn't prove it)

Damage and Causation

• Even if a duty and breach are established, the claimant must prove the breach caused damage.
• Barnett v Chelsea & Kensington Hospital: A man died of arsenic poisoning after the hospital negligently
failed to treat him, but because he would have died regardless, the hospital was not liable.

The “But For” Test

• The claimant must show that, but for the defendant’s actions, the harm would not have occurred.

Remoteness of Damage
• The harm must not be too remote from the defendant’s actions. (an intervening act can break the chain
of causation )
• The Wagon Mound: Oil spilled into a harbour, and a fire caused by welding led to significant damage. The
court ruled the fire was too remote from the original spill, and the defendant was not liable.

Thin Skull Rule

• The defendant must take the claimant as they find them, even if the claimant is more susceptible to
harm.
• Smith v Leech Brain and Co: A man developed cancer after being burnt on the lip. Since the burn was
foreseeable, the defendant was liable for the cancer as well.
• Hughes v Lord Advocate: A boy was burnt in an explosion after workers left a manhole unattended with
paraffin lamps. The type of injury was foreseeable, even if the exact way it occurred was not.

Civil Sanctions for Negligence

• Damages: The usual remedy in negligence cases is monetary compensation.
• Special Damages: Specific, calculable financial losses (e.g., medical bills).
• General Damages: Non-economic damages (e.g., pain and suffering).
• Nominal Damages: A small award when actual loss cannot be proven.
• Exemplary Damages: Damages awarded to punish the defendant.
• Equitable Remedies (in exceptional cases):
• Injunctions: A court order to do or stop doing something.
• Specific Performance: An order to fulfil a contractual obligation.
• Rescission: Cancelling a contract.
• Rectification: Correcting a mistake in a legal document.
Check your understanding

1)B
2)A
3)Issue:Whether Eva owed tim a duty of care
Rule: Three elements of duty of care include foreseeability, proximity, and whether it is fair, just, and
reasonable to impose a duty.
Application: In this scenario, Eva, as Tim's nanny, had a foreseeable obligation to ensure his safety,
especially given her specialised role. Proximity exists due to their direct relationship, and it would be
reasonable to impose a duty of care on her.
Consequence: Since Eva failed to fulfil her duty by being distracted, she likely owed Tim a duty of care and
may be held liable for his injuries due to negligence.
4)Issue: Whether Raji owes a duty of care to Pat and Sara.
Rule: Duty of care is based on foreseeability of harm, proximity, and whether it is fair, just, and reasonable.
Application: Raji, as a driver, had a duty to pay attention to the road. The injuries caused to Pat and Sara
were foreseeable consequences of his negligence in failing to stop, as he was distracted.
Consequence: Raji likely owes a duty of care to both Pat and Sara, making him liable for the damages
caused by his actions.

5)ISsue: Whether Amy breached her duty of care.

Rule: Breach of duty occurs when an individual falls below the expected standard of care.
Application: Amy's decision to carry a large tray of hot drinks while wearing unstable high heels indicates
a negligent act from the standard of care expected of a waitress. This reckless behaviour directly led to
the injury of Dave.
Consequence: Given her actions, it is likely that Amy breached her duty of care, making her liable for
Dave's burns.

6)Issue: Whether Duane caused Adam's loss and injury.

Rule: Remoteness of damage refers to the foreseeability of harm resulting from a negligent act.
Application: Duane's failure to secure the fridge and his reckless driving created a chain of events leading
to Adam's injury. While the initial act of negligence was clear, the subsequent surgical complications raise
questions about causation.
Consequence: Duane's actions were the proximate cause of the accident. However, the negligence of the
surgeon introduces additional complexities in determining liability for Adam's ultimate loss.
If the surgeon did what a reasonable doctor would do then there is no break in causation.If there is
Remoteness of damage
If damage is remote then it is not that foreseeable.Remoteness of damage ; Where factual causation if
proved it must be shown that the damage is not too remote from the negligence of the defendant.The
rule comes from an australian case decided by the privy council

*The Wagon Mound (1961)

Fuel oil had been negligently spilled from the defendant’s ship on to water in sydney harbour,It spread to
the neighbour’s wharf where repairs were happening fire spread and burnt down the wharf

Type of injury foreseeable:

The D will be liable if the type of injury was foreseeable,even though the precise way in which it happened
was not as shown in the case of Hughes v Lord Advocate.

*Hughes v Lord Advocate

Workmen left a manhole unattended covered with a tent and with paraffin lamps by a hole.The
claimant,an eight - year old boy,a friend,climbed into the hole .As they climbed they knocked over the
paraffin lamps.This caused an explosion which badly burnt.

Take your victim as you find them

This rule means that the defendant must take the victim as she finds him/her .If damage or harm is worse
due to a pre existing condition D is liable for it all.

*Smith v Leech Brain and co

Because of D’s negligence ,a man was burnt on the lip by molten metal in a factory.The man had a
pre-existing cancerous condition.The burn eventually brought about the __ of full cancer and the man
died - The court decided that as an a burn was reasonably foreseeable and because of the eggshell skull
rule ,the defendant.

Res ipsa loquitur

Translates to ‘Things speak for themselves’

The burden of proving negligence is on the claimant,on the balance of probabilities .IN same situations
it's difficult for the claimant to know exactly what happened,even though it seems obvious that the
defendant must have been negligent.

The claimant has to show :

The defendant was in control of the situation which caused the injury.
The accident would not have happened unless someone was negligent
There is no explanation for the injury

If the claimant can show these three points,then the burden of proof mores to the defendant who has to
prove that he or she was not negligent

*Scott v London and St Katharine Docks

The claimant was hit and injured by six heavy bags of sugar which had fallen from the defendant’s
warehouse.The claimant did not know,and could not prove,what happened to make the bags…..

Occupiers Liability
 s`
Lawful Visitors Occupiers’ - Liability Act 1957
Occupiers liability concerns the duty owed by those who occupy land to those who enter onto it.
Statutes do not define ‘occupier’ .Common law states someone with (some degree of )control over
premises is an occupier.you do NOT need to be the owner.There can be more than one occupier and
claimant can choose who to sue in the moment (usually who is more relevant to the claim).

*Wheat v E Lacon & Co. Ltd (1966)

The manager of a pub was given the right to rent out rooms in his private quarters even though he had
no ownership rights in the premises. A paying guest fell on an unlit staircase and died. The House of Lords
decided that both the manager and his employers could be occupiers under the Act so there could be
more than one occupier of the premises. KP -> can be more than one occupier

*Harris v BirkenHead Corporation (1976)

A four-year-old child was injured in an empty house. The local council had served a compulsory purchase
order on the house but it had not boarded it up or made it secure as it had not yet taken possession. It
was decided it was in occupation(from the council) as it was effectively in control of the premises.
KP-> they were occupiers even though they didn't have physical possession yet.

*Bailey v Armes (1999)

The defendants lived in a flat above a supermarket. They allowed their son to climb out of a window to
play on the roof but forbade him to take anyone else there. The supermarket knew nothing of the use of
the roof. The boy took his friend on to the roof and he was injured when he fell from the roof. The Court
decided that neither the supermarket nor the defendants were liable – control over the means of access
(the window) was not sufficient to make the defendants liable.
KP->Not every premises has an occupier e.g. a roof (no one expects to occupy a roof so no reason to
secure it).

Premises
Those who owe a duty are occupiers of premises.There is no definition of ‘premises’

*Revill v Newbury
D was an elderly man.Allotment shed of his has been robbed many times so he made a plan to stay
overnight and keep a watch.C came to rob the shed,D shot him with a shotty.
Held-not liable in occupiers for the purpose of the Act
KP->you can only claim occupiers if there is a dangerous condition of land which in this case there was
not.

Lawful visitors and the Occupiers’ Liability Act 1957

Duty to adults include :
Invitees - those invited, express permission
Licensees - permission for a fixed period
Contractual permission - entry ticket ,service
Statutory right - Police with warrant .

The duty for a specific risk won’t last indefinitely

Allurement principle
The courts are more likely to imply a licence if there is something on the land which is particularly
attractive and acts as an allurement to draw people on to the land.

Sections 2 (3)(a) states that - The occupier must be prepared for children to be less careful than
adults.(owe them a higher duty of care)

*Glasgow Corporation v Taylor (1922)

Child ate berries that were poisonous ,the bush was unfenced and had no warning notice and council/D
was aware they were poisonous .
Held : D was liable when a child died as a result of eating berries since they were an allurement,Corp
wouldn't have been liable if it was an adult .
*Phipps v Rochester Corporation (1955)
Facts: a five year old boy fell into a trench and broke his leg after he and his seven-year-old sister
trespassed on land where D were building houses.

Held : D knew children played in the area,they weren't liable for the boys injuries as they were entitled to
assume that reasonable parents would not allow young children to play there unsupervised.

*Jolley v Sutton LBC (2000)

Facts : defendant council owned a block of flats.In 1987 a boat was brought onto the grounds of the flats
and abandoned on an area where children played .The residents of the flats complained to the council
and in 1988 the council placed a sticker on the boat which stated that it would be removed within seven
days unless claimed by its owner.IN 1989 the claimant - a 14 year old boy - and a friend saw the boat
when they were walking past the flats. Fast forward one of the boys suffered a broken back

Held - D is liable
Persons Exercising a Calling
Occupiers Liability Act also covers the duty owed by the occupier to those exercising a calling.

Section 2(3)(b) states that : “an occupier may expect that a person ,in the exercise of his calling,will
appreciate and guard against any special risks ordinarily incidental to it ,so far as the occupier leaves
him free to do so “
Those carrying out a trade are therefore expected to take measures to avoid the risks associated with…..

Roles v Nathan (1963)

Two chimney sweeps died after inhaling carbon monoxide fumes while cleaning the chimney of a
coke-fired boiler .The sweeps had been warned of the danger.The occupiers were not liable as they could
have expected chimney sweeps to be aware of the particular danger.

Independent Contractors
Section 2(4)(b) states that : “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 the 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.”
An occupier will not be liable for the faulty work of an independent contractor as long as it was
reasonable to hire an independent contractor and the occupier had taken reasonable care to check both
that the contractor was competent and that the work was properly done.

*Haseldine v Daw (1941)

Facts : the claimant was injured during a visit to a client who lived in the D’s block of flats.Injuries
sustained when lift malfunctioned and fell,work was done by independent contractors

Held : D was not liable for C’s injuries as he knew little about workings of hydraulic lifts.D acted reasonably
by employing the contractors from a respected company.

1.It must be reasonable to give the work to an independent contractor

2.contractor must competent to carry out the work
3.occupier must check the work has been done properly (could need a surveyor)
*Woodward v The Mayor of Hastings (1945)
A child was injured on school steps that were left icy after snow had been cleared off them.The occupiers
were liable as they had failed to take reasonable steps to check that the work had been done properly
,and the danger should have been obvious to them.

Defences
1.Consent
2.Contributory Negligence
3.Warning signs

Consent and Contributory Negligence have the same rules as Negligence

These are all full defences

Warning Signs
Can be oral or written to be seen visually.
s2(4) “ in all circumstances it was enough to enable the visitor to be reasonably safe” if it is not then the
warning is ineffective

What amounts to a sufficient warning varies from case to case.which will be decided by the judge on
evidence.additional barriers may be needed if premises are extremely dangerous.
A sufficient warning will discharge the duty.Characteristics of the visitor are relevant so that a warning
sign would not be sufficient to protect a child or blind person.(if the path to a house is dangerous but
there is no other means of access,a warning notice would not be enough.)

Westwood v Post Office (1973)

The claimant,an employee of the Post Office,was injured when he entered,as a trespasser,an unlocked
room which had the notice ‘Only the authorised attendant is permitted to enter’.The door should have
been locked.The defendants were not liable as the notice was a sufficient warning to an adult.

You don't have to warn against an obvious danger :

*Darby v National Trust (2001)
Facts : C’s husband was killed when he drowned whilst swimming in the D’s pond
Held : d’s were not liable and had no duty to warn against swimming in the pond since the risk of drowning
was obvious.

Exclusion Clause/Exclusion of Liability

Occupiers will attempt to lessen the duty owed to visitors e.g. in a car park they will say they're not liable
to things stolen.

For death or PI caused by negligence, warning signs are ineffective.

ol
Section 2(1) states that : “ an occupier of premises owes the same duty,the common duty of care,to all his
visitors,except in so far as he is free to and does extend,restrict,modify or exclude his duty to any visitor
or visitors by agreement or otherwise
Trespasser - a visitor who has no permission or authority to be on the occupier’s land.

S.1(3) Occupiers Liability Act 1984 An occupier owes a duty to another (not being his visitor) if:
(a) He is aware of a the danger or has reasonable grounds to believe that it exists
(b) He knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come
into the vicinity of the danger
(c) The risk is one in which in all the circumstances of the case, he may reasonably be expected to offer
the other some protection

If all three of these are present the occupier owes a duty of care to the non-lawful visitor.

The criteria in s.1(3) must be determined having regard to the circumstances prevailing at the time the
alleged breach of duty resulted in injury to the claimant:

Tomlinson v Congleton Borough Council (2003)

The council owned a park including a lake. Warning signs were posted prohibiting swimming and diving
because the water was dangerous, but the council knew that these were generally ignored. The council
decided to make the lake inaccessible to the public but delayed start on this work because of lack of
funds. The claimant, aged 18, went swimming in the lake, struck his head on the sandy bottom and
suffered paralysis as a result of a severe spinal injury. In the Court of Appeal his claim under the 1984 Act
succeeded. The court felt that the seriousness of the risk of injury, the frequency with which people were
exposed to the risk, and the fact that the lake acted as an allurement all meant that the scheme to make
the lake inaccessible should have been completed with greater urgency. The House of Lords, however,
accepted the council’s appeal for three reasons.

1) In order to be liable under the 1984 Act, there had to

be a danger due to the state of the premises or things
done or omitted to be done. In this case the danger
was not due to the state of the premises but was due
to the claimant diving into the water.

2) It was not the sort of risk that a defendant should

have to guard against but one that the trespasser
chose to run. So trespassers had to take some
responsibility for their actions.

3) The council would not have breached its duty even

if the claimant was a lawful visitor, as it was not
reasonable for it to spend a lot of money preventing
visitors being injured by an obvious danger.

KP -> The occupier’s duty only applies to dangers caused by the condition of the premises, not by the
actions of the trespasser. In this case, the injury was caused by the claimant diving into the lake, not by
the lake's condition.
Trespassers are responsible for the risks they choose to take. The council wasn’t required to protect the
claimant from an obvious danger (swimming in the lake), especially when it was the claimant's own
decision to take the risk.

“An occupier of premises owes a duty to another (not being his visitor)...if-

(a)he is aware of the danger or has reasonable grounds to believe that it exists;
(b)he knows or has reasonable grounds to believe that the other is in the vicinity of the danger
concerned or that he may come into the vicinity of the danger; and
(c)the risk is one against which,in all the circumstances of the case,he may reasonably be expected to
offer the other some protection.

Ratcliff v McConnel (1999)

Facts:A 19-year-old student climbed over the fence into his college’s swimming pool at night and dived in,
hitting his head on a ledge and suffering serious injury.
Held:The Court of Appeal ruled that the occupier was not liable, as there was no hidden danger. The risk of
injury from diving into an untested pool was an obvious danger, and the occupier was not required to
warn adult trespassers about such risks.

Key Principle:Occupiers do not need to warn adult trespassers about obvious dangers, especially when
the risk is well-known and apparent, such as diving into a pool without checking its depth.

Donoghue v Folkestone Properties (2003)

Facts:The claimant was trespassing on a slipway in a harbour and dived into the sea, hitting a grid pile
used for mooring boats. The grid pile was visible at low tide but the injury occurred at midnight in the
middle of winter.

Held:The court ruled that the occupier did not owe a duty of care under the 1984 Act, as they would not
have expected a trespasser to be present or to jump into the harbour at that time of day or year.

Key Principle:Occupiers do not owe a duty of care to trespassers in situations where the presence of the
trespasser and the risk of injury are not foreseeable, especially if the trespasser’s actions are unusual or
happen at an unlikely time.

Rhind v Astbury Water Park (2004)

Facts:The claimant ignored a notice stating "Private Property. Strictly no Swimming" and jumped into a
lake on the occupier's premises, where he was injured by submerged objects (a fibreglass container) that
the occupier was unaware of.

Held:The court held that the occupier did not owe a duty of care under the 1984 Act because the occupier
was unaware of the submerged objects. Since the occupier did not know about the risk, they were not
expected to offer protection against it.

Key Principle:An occupier only owes a duty of care to trespassers for risks they are aware of or should be
aware of. If the occupier is unaware of a specific danger, they cannot be expected to protect trespassers
from it.

Baldacchino v West Wittering (2008)

Facts:A 14-year-old boy, a lawful visitor to the beach, climbed a navigational beacon off the beach as the
tide was going out. He then dived off the beacon, injuring his neck and becoming tetraplegic. He was a
trespasser on the beacon, though he was lawfully on the beach.
Held:The court ruled that the occupiers did not owe a duty to warn against obvious dangers, and the
injuries did not result from the state of the premises. The claimant’s claim was unsuccessful.

Key Principle:Occupiers do not have a duty to warn lawful visitors about obvious dangers, particularly
when the injury results from a trespasser’s own actions, not the condition of the premises.

Damage
Unlike the 1957 Act

Warnings
“Taking such steps as are reasonable in all the circumstances of the case to give warning of the danger
concerned or to discourage persons from incurring the risk”

Volenti Non fit Injuria

Under section 1(6) :

“No duty is owed to any person in respect of risks willingly accepted as his by that person”

Defences
Contributory negligence
Consent (Volenti non fit injuria)

Contributory Negligence
The Law Reform Act 1945 provides that any damages awarded to the claimant can be reduced according
to the extent or level to which the claimant had contributed to their own harm.

This means that both the defendant and claimant are each partly to blame for the injury suffered by the
claimant .The amount of blame will be decided by the judge
*Sayers v Harlow Urban District Council
A woman was trapped in a toilet when the door lock became jammed.She tried to escape the toilet by
climbing though the gap.The holder gave away and she was injured.
The court decided that the local council was liable for its negligent maintenance but the damages were
reduced by 25% because of the way she tried escaping.

*Froom v Butcher
The driver of a car suffered greater injuries often would have been the case if wearing a seat belt.His
damages were reduced by 20%
 Consent (Volenti non fit Injuria)

Consent or volenti,is a full defence,when the claimant accepts a voluntary assumption of the risk of harm.

To succeed,the defendant has to show :

- Knowledge of the precise risk involved
- Exercise of free choice by the claimant
- A voluntary acceptance of the risk

The defence will not apply merely because the claimant knows of the existence of the risk ; he or she
must have a full understanding of the nature of the actual risk.

*Stormer v Lawson (1977)

Consent was argued when the claimant had borrowed the defendant’s motorbike.The defence fouled
because the claimant had not been properly shown how to use the motorbike,and did not therefore
appreciate the risks.

The defence will not succeed where the claimant has not choice but to accept

*Smith v Baker (1891)

A worker was injured when a crane moved rocks over his head and some fell on him.The defence of
consent found the workmen has already done all that he could in explaining about the risk involved in the
work taking place above his head

Where a person has a duty to act and is then injured because of the defendant's negligence ,volenti will
not be available as a defence.

If the claimant acts against the employer’s orders or against statutory rules and is injured,the defence of
volenti is likely to succeed.

Pure economic loss (due to negligence)

D can not claim for ‘pure economic loss’,this is a loss that is not caused by the damage/injury,

E.g. - loss of future profits while the business can not operate

-there is an exception,when D makes a negligent misstatement and C acts on it (later)

Loss caused by negligent acts

The idea of not allowing a claim for loss of profits is that they could be recovered in contract and it is F.J &
R to limit to loss.

*Spartan Steel v Martin and Co

Ds negligently cut the electric cable to Cs factory,molten metal in vat solidified and could not operate for
3 days.

Held - Could not claim loss of earnings,could claim for damage to property and loss of earning on metal in
the vats.

KP - The loss of profits was a ‘pure economic loss’

*Weller v Foot & Mouth DIsease

Due to F&M restrictions were placed on the movement,sale etc of cattle.

Auctioneer tried to claim los of profit

Held -No claim

KP - Pure economic loss

Policy Decision
Liability must be restricted and limited
Clearly the Cs did lose money but for policy reasons it can-not be claimed.
It can be seen as unfair.C did nothing wrong.D did and doesn’t have to pay.

BUT

Loss of profit is a failure to make a gain,Tort aims to put C back in the position they were,so it would not
be F.J & R to impose liability for future loss.

Loss caused by negligent statements

This can apply to 2 situations
-Two party liability - A gives B advice /makes statement - B acts on it and suffers financial loss
-Three Party Liability - A makes statement to B,B communicates it to C,C acts on it and suffers financial
loss.(e.g. agent)

The test for both is the sameooipoipoipokipoki

-The statement was made negligently &
-There is a ‘special relationship’ between the parties

*Hedley Byrne v Heller

HB was asked to advertise ‘Easipower’ who they had not dealt with before so asked the bank for
references.

Bank gave favourable references and they did the campaign.Easipower went bust and did not pay them.

HB sued the bank

Held - would be liable but for a disclaimer

KP- they would have been able to claim for economic loss.

What is a special relationship?

*Capar v Dickman
Caparo used the audit of accounts done by dickman to invest in a company
HElD - not liable ->not special relationship -> an audit is not for that purpose

KP - a special relationship is where the person giving advice owes a duty of care to the C

The House of Lords laid down the following criteria for a Duty of care in relation to statements
-skill or expertise by the adviser
- C relies on the advice
-Advice is direct to the C,not via tv,radio etc
-The adviser knows the purpose for which they are giving advice (ie. For investment).

-There is no disclaimer

Chaudhry v Prabhakar (1988)

Facts:
The claimant, Chaudhry, asked her friend, Prabhakar, for help in finding a good second-hand car.
Although the friend was not a professional mechanic, he had some experience with cars. He assured
Chaudhry that the car he recommended was in good condition and had not been involved in an accident.
Relying on this advice, Chaudhry bought the car. It was later discovered that the car was unroadworthy
and had previously been involved in an accident.
Held: The court held that the friend owed a duty of care to Chaudhry because he had assumed
responsibility by giving advice in an area where he claimed to have expertise. The friend was found liable
for negligent misstatement.

Key Principle: This case established that a duty of care for negligent misstatement can arise in informal,
social situations if:

1. The person giving advice has some expertise or experience in the subject matter.
2. The person seeking advice relies on the assurance given.
3. It is reasonable for the recipient to rely on that advice.

In this case, the friend had voluntarily taken on the responsibility of advising about the car and was held
liable for providing incorrect information.

14.2 Liability for psychiatric injury sustained by primary and secondary victims
Psychiatric injury - long term mental injury more than shock or grief.

Primary victims - Those involved in the incident must prove D was negligent and they suffered Psychiatric
Injury.

Secondary victims - Those not directly involved come just after ,see it on TV,online

Must prove that :

-D was negligent for the accident/sudden event
-suffered Psychiatric injury
- C passes the Alcock criteria
-a person of reasonable fortitude would have suffered .

Mental Injury
Must have medical evidence of the injury ,must be a long-term injury,PTSD,depression,acute anxiety

*Dulieu v White(1901)
Horses not tied up and bolted.
C suffered fear of safety.
Held - liable ,KP- first ever claim for PI

*Hambrook v Stokes
Run away lorry passed C and crashed ahead of her,she knew a child was involved
Held - liable
 KP - could claim due to fear of loss of child,so can claim fear of family.

Bourhill v Young

Facts:

● A pregnant woman, Mrs. Bourhill, a fishwife, was waiting for a tram in Edinburgh when she heard a
motorcycle accident. The accident involved a motorcyclist, Mr. Young, who was fatally injured.
● Although Mrs. Bourhill was not directly involved in the accident, she went to the scene of the crash and,
upon seeing blood on the road, suffered a severe shock.
● As a result of the shock, Mrs. Bourhill miscarried her child.
● Mrs. Bourhill then brought a claim for psychiatric injury against the estate of the motorcyclist, Mr. Young,
who was responsible for the accident.

Held:

● The House of Lords dismissed Mrs. Bourhill’s claim.

● The court ruled that she was not entitled to recover damages for her psychiatric injury.

Key Principles:

1. Proximity: For a claim for psychiatric injury to succeed, the claimant must be in a position where it is
reasonably foreseeable that they could suffer psychiatric injury as a result of the defendant's actions.
2. Physical Proximity and Relationship: The claimant must be either directly involved in the incident
(primary victim) or, if they are a secondary victim, they must have a close relationship of love and
affection with the primary victim (e.g., a spouse, parent, or child).
3. Foreseeability: The injury must be one that was foreseeable to a reasonable person. In Bourhill v Young,
it was not foreseeable that a pregnant woman, who was not directly involved in the accident and had
no close relationship with the motorcyclist, would suffer psychiatric harm from seeing blood at the
scene.
4. Not a "Shock" to the Claimant: It was not considered reasonable for the motorcyclist to foresee that a
person, like Mrs. Bourhill, who was not involved in the accident and had no direct or familial connection
to the deceased, would be shocked by the sight of the aftermath of the accident.

*McLoughlin v O’Brien
Facts:
Mrs. McLoughlin’s husband and children were involved in a car accident caused by the negligence of a
lorry driver.
Mrs. McLoughlin was at home when she was informed of the accident and immediately went to the
hospital where her family was being treated.
Upon arriving at the hospital, she saw her family members in a distressed state and learned of the death
of one of her children.
Mrs. McLoughlin suffered psychological shock due to the traumatic event.
Held:
The House of Lords held that Mrs. McLoughlin was entitled to claim damages for the psychiatric injury she
suffered as a result of witnessing the aftermath of the accident and learning of the death of her child.
Key Principles:
Close Ties of Love and Affection: A claim for nervous shock could be made by someone who had close ties
of love and affection with a victim of the accident. Mrs. McLoughlin, as a mother and wife, had these close
ties with her family members.
Immediate Aftermath: The shock could be suffered either at the scene of the accident or within its
immediate aftermath. In this case, Mrs. McLoughlin arrived at the hospital within two hours of the
accident, and her shock was considered to be within the immediate aftermath.

Scenario involving a primary and secondary victim

Tom was injured in a car accident, and his wife, Lisa, rushed to the hospital upon hearing the news. Seeing
Tom’s condition caused Lisa to suffer psychiatric shock.
Primary victim: Tom (directly involved in the accident)
Secondary victim: Lisa (suffering shock due to her close relationship with Tom)
Negligence: The driver who ran the red light while texting, causing the accident, was negligent in failing to
pay attention to the road.

Alcock’s Criteria
Close Ties of Love and Affection: The claimant must have a close familial or personal relationship with the
primary victim, and evidence of this closeness must be provided.
Proximity in Time: The claimant must suffer shock within a reasonable time after the incident, usually
within two hours(Mcloughlin v O’rian approved), though some leeway may exist in exceptional
cases.Within a 2-8 hour period if it is closer to 2 hours it will be allowed
Direct Perception of the Event: The claimant must have directly seen or heard the incident or its
aftermath, not just learned about it through secondary sources like TV or phone calls.(saw by unaided
senses).

Alcock v Chief Constable of South Yorkshire (1992) Due to the negligence of the police, too many football
supporters were allowed into an area of the Hillsborough ground, leading to many suffering crush injuries.
Ninety-six fans died and hundreds were injured. The police eventually admitted negligence and settled
claims made by those present. This case involved a representative group of families who suffered mental
injuries as a result of learning that family members were involved in the tragedy.
Rescuer
Those that are actively involved in helping the Vs.
They are not primary,as not at the scene.They are not secondary as no close tie of love.The courts dd not
want to discourage rescuing and have allowed some claims.

*Chadwick v British Rail

The claimant helped victims of the Lewisham train crash, which occurred close to his home. Because of his
small size, he was encouraged to crawl into the wreckage to give injections and comfort to trapped
passengers. As a result of his experience, he suffered mental injuries. His claim against the negligent
railway authority was successful, as the court considered he was a primary victim, at risk to himself, and
it did not want to discourage members of the public from rescuing, if required.

White v Chief Constable of South Yorkshire Police [1998]

Held:
The claims made by the police officers for psychiatric harm (post-traumatic stress disorder) were
denied. The House of Lords determined that the officers did not qualify as "primary victims" because they
were not in physical danger during the Hillsborough disaster. Additionally, they did not qualify as
"secondary victims" under the rules of proximity required for such claims.

Facts:
● Police officers who participated in rescue operations during the Hillsborough Stadium disaster
sought compensation for psychiatric injuries.
● They argued they had developed post-traumatic stress disorder due to the traumatic scenes
they encountered.
● The relatives of the deceased victims had also made claims for psychiatric harm, which had
previously been denied.

Key Principle:
1. Public Policy Consideration: It was deemed contrary to public policy to allow police officers to
recover compensation when the families of the deceased victims could not. This would have created an
inequitable precedent.
2. Primary vs. Secondary Victim:
○ Primary Victim: A person directly involved in the event and in physical danger.
○ Secondary Victim: A person not directly involved but who witnesses the event or its immediate
aftermath, subject to certain proximity requirements.
The police officers did not meet the criteria for either category.
3. The decision reflected concerns about opening the floodgates for similar claims in high-stress
professions like policing.

Professional rescuers : Fire,Police,Ambulance

Hale v London Underground Ltd (1992)

Facts:

● A firefighter, Hale, was involved in rescuing victims trapped in the London Underground following
the King’s Cross fire in 1987.
● During his rescue efforts, Hale experienced traumatic scenes, which later caused him to suffer
post-traumatic stress disorder (PTSD).
● He sought compensation for the psychiatric harm he endured as part of his professional duties.

Held:
The court allowed Hale's claim. It was held that as a rescuer, Hale was a "primary victim" because he put
himself in physical danger during the rescue operation. Unlike in White v Chief Constable of South
Yorkshire, rescuers in Hale’s position were recognized as individuals who could claim compensation for
psychiatric injury.

Bystanders
Witnesses to the event or immediate aftermath who do not help.
Must also satisfy the Alcock criteria :

McFarlane v E E Caledonia Ltd [1994]

Facts:

● The claimant, McFarlane, was aboard a supply ship near the Piper Alpha oil rig when the rig
exploded in the North Sea, resulting in a catastrophic disaster.
● He witnessed the explosions and the rescue efforts of survivors, experiencing horrifying sights
that led to psychiatric injury.
● McFarlane did not participate in the rescue efforts.

Held:
McFarlane's claim for psychiatric harm was unsuccessful.

Reasons for the Decision:

1. Bystander Status:
McFarlane was classed as a bystander because he did not personally assist in the rescue efforts or put
himself at risk of physical danger.
○Bystanders generally do not have a duty of care owed to them unless they meet additional
requirements.
2. Failure to Meet the Alcock Criteria:

Property Owners
May not see the accident but will see the consequential damage ,i.e. The house burning down.

Atti v British Gas

Facts:
The claimant, Mrs. Attia, hired the defendant, British Gas, to install central heating in her home.
Upon returning from work, she saw smoke coming from her property. Despite the fire brigade’s efforts,
her house and possessions were completely destroyed by a fire caused by the defendant’s negligence.
Mrs. Attia suffered severe psychiatric harm (shock) from witnessing the destruction of her home and
belongings.

Held:
The court allowed Mrs. Attia’s claim for psychiatric injury.

Key Principles:
Extension of Psychiatric Harm Claims:
This case marked a significant extension in the scope of claims for psychiatric harm. The court
recognized that witnessing the destruction of one’s home and belongings could give rise to actionable
psychiatric injury, even though it did not involve harm to a person.

Reasonable Foreseeability:
The defendant's negligence in installing the central heating made the fire foreseeable.
It was reasonably foreseeable that the claimant might suffer shock from seeing her home destroyed as a
direct consequence.

Area of Impact:
The claimant was physically present at the scene (her home) when the damage occurred.
This satisfied the requirement of proximity in both time and space to the negligent act and its
consequences

Those suffering gradual rather than sudden shock

Claims could be allowed on this basis ,however the longer it takes the less likely you are to recover.
Sion v Hampstead HA
Sons decline was gradual,over 14 days,it was not a sudden deterioration,Dad suffered psychiatric injury,D
was not liable.

North Glamorgan v Walters

Mum suffered injury after son deteriorated and died over 36 hours.

Held - she could claim

Near Misses
--
Private Nuisance

Date: Monday, 2nd December 2024

Definition

Private nuisance involves conflicts between neighbors regarding the use and enjoyment of land. It
concerns competing claims about what one can do on their land versus how it affects others’ use and
enjoyment of their own land.

Key Problem:

Should you be allowed to do whatever you want on your land if it unreasonably interferes with your
neighbor’s ability to enjoy theirs?

Definition:

The unlawful, indirect interference with a person’s use or enjoyment of land coming from neighboring
land.

Types of Private Nuisance

1. Loss of Amenity:

• Examples: Noise, smells, or smoke that interfere with the enjoyment of land.

2. Material Damage:

• When a dangerous state of affairs on someone’s land causes physical damage to a neighbor’s land
(e.g., tree roots damaging foundations).

Who Can Sue and Be Sued?

Claimants (C):

• Must have a legal interest in the land (e.g., owner or tenant).

• Cannot be a family member without a legal interest or a child without ownership rights.

Defendants (D):

• The person causing or allowing the nuisance can be sued.

• D can also be liable if they inherit a nuisance and fail to address it.

Cases

1. Tetley v Chitty

• A local council allowed a go-kart track on its land.

• Held: Liable for nuisance.

2. Sedleigh-Denfield v O’Callaghan

• Monks failed to deal with a blocked drain installed by the council, which caused flooding.

• Held: Liable as they knew about the problem but failed to address it.

3. Leakey v National Trust

• D’s land had a natural mound on a hillside that collapsed and damaged C’s property.

• Held: Liable as they were aware of the danger and could have prevented it.

4. Anthony v The Coal Authority

• D sold old colliery land after landscaping it. A fire started and lasted 3 years, causing smoke nuisance
to neighbors.

• Held: Liable as they were aware of the risk and failed to act.

Key Elements of Private Nuisance

1. Unlawfulness

• The interference must be unreasonable.

• “Unlawful” does not mean illegal; it means the interference goes beyond what is acceptable for
neighboring landowners.

• Courts balance the competing interests of the parties.

2. Indirect Interference

• Examples:

• Loss of Amenity: Noise (e.g., playgrounds, motor tracks), smells (e.g., farms), smoke.

• Material Damage: Vibrations, hot air from chimneys, fire, or physical damage (e.g., cricket balls hitting
property).

Factors Considered by Courts

1. Duration of the Interference

• Longer, continuous interference is more likely to be considered unreasonable.

• Case: Crown River Cruises v Kimbolton Fireworks

• A firework display lasted only 20 minutes but caused damage to a barge.

• Held: Liable for nuisance.

• Case: De Keyser’s Royal Hotel v Spicer Bros

• Building work done at night interfered with sleep. Injunction granted to prevent work at night.

2. Sensitivity of the Claimant

• If C is unusually sensitive, D may not be liable.

• Case: Robinson v Kilvert

• C stored brown paper that dried out due to D’s heat usage.

• Held: Not liable as the paper was unusually sensitive.

• Case: Network Rail v Morris

• New track circuits interfered with C’s music studio equipment.

• Held: Not liable as the interference was not foreseeable.

3. Malice (Deliberate Harm)

• If D intentionally causes harm, it is likely to be unreasonable.

• Case: Hollywood Silver Fox Farm v Emmett

• D fired a gun to scare C’s mink, preventing them from breeding.

• Held: Liable as the act was done with malice.

• Case: Christie v Davey

• Malicious behavior intended to disrupt a neighbor’s enjoyment.

Summary of Key Principles

1. The interference must be substantial and unreasonable.

2. A balance of interests is assessed by the courts.

3. Liability can arise from direct acts, inherited nuisances, or failure to address natural dangers.

4. Malice increases the likelihood of liability.

Social benefit
If the defendant is providing a benefit to the community,the court may consider the actions reasonable.

*MIller v Jackson
C's use of their garden was interrupted by cricket balls from the adjoining club.
The CC erected a 17ft fence but C continued the claim.

Held - NOT liable in nuisance

KP - the benefit to the community outweighed the private use of the garden

*Adams v Ursell
Smells from Ds fish and chip shop were held to be a nuisance
BUT - today,the court could order extractors etc.

*Dennis v MOD
If there is a public benefit then could award C compensation and NOT order an injunction

Ds flew fighter jets low overCs land.

D argues it was vital to train them,which benefited all of us.

One factor is sufficient ,it doesn't need to hit more.

Prescription (Special Defence)
This can be a defence if the action had been going on for 20 years and there has not been a complaint
between the parties. D is said to have a prescriptive right to continue.

Sturges v Bridgman
C,a doctor,lived next to D's confectionery factory.
C then built a consultation room on the boundary.
C claimed vibrations from the machinery were a nuisance.
D argues a prescriptive right to continue.

HELD - Nuisance

KP - The nuisance started when the room was built, (even if the supposed nuisance has been operating
for years on ,the moment it becomes/establishes a nuisance it can be held liable ) .

Coventry v Lawrence
Confirms Sturges v Bridgman ,it must be an actionable nuisance for 20 years not just that you have done
it for 20 years.

Moving to the nuisance

This gives NO defence to the defendant - Sturges,Miller,They can not claim C moved near so it's their fault.

Statutory Authority
Much of what we do is now governed by laws and licenses (fracking) so this type of authority is one of the
best defences.

*Allen v Gulf Oil Refining

Ds had a statutory right to build a refinery,but not express permission to operate it.

HOLD - The council must have meant to give them the right.
HELD - NOT Liable in nuisance.
KP - The SA was sufficient

*Marcic v Thames Water

C's home was flooded many times due to D's failures.

The Water Industry Act 1991 excluded a private action for nuisance,it did not include other remedies.
HOL HELD - NOT LIable for nuisance.This would go against Parliament's intention.

Planning permission can act the same

*Gillingham BC v Medway Dock
PP was given to use part of a dockyard as a commercial port.
It was only accessible by residential roads,lorries caused noise.

HELD - NOT liable in nuisance - KP - PP changed the character of the neighbourhood.

PP will not always be a defence.

Wheeler v Saunders
A pig farmer had PP to build two more pig houses,each with 400 pigs.

The new pig house was only 11 metres away from C house,and claimed due to the strong smell.

Held - Liable in nuisance

KP - The PP was not to change the character of the neighbourhood so claim was allowed.

Watson v Croft Promo

PP was given for a motor racing track.It was closed but then reopened years later.
They got new PP to race 210 days per year.
Held - Liable - an injunction was granted for 40 of those days.
KP - The area was still rural and the noise was actionable.

Coventry v Lawrence 2014

C bought a house,864 metres from D's motor sport stadium.
PP given in 1975 for speedway,stock cars etc.
C brought an action for noise.
Held - SC - Nuisance - Granted an injunction to limit use.

Remedies
Injunction - to stop doing something or limiting the use (times of operation)

OR

Could force D to do something (filter in a shop to stop smells)

Damages - An amount of money to compensate

This is becoming more popular rather than an injunction for small interference.

Abatement - C can enter Ds land to prevent further nuisance.

E.g. To cut overhanging branches

Tort Activity Page 166

1.Raj and Has recently received successful A-Level results and held a very noisy party that lasted till 3
a.m..Ada and Florence who live next door were kept awake and were quite annoyed.

The noise disturbed Ada and Florence during the night, affecting their ability to enjoy their property.
However, because it was a one-off event and not continuous, it is unlikely to meet the
threshold/requirements for private nuisance.Ada and Florence are unlikely to succeed in a claim.

2.Tara lives next door to Albert,an amateur shortwave radio enthusiast.When he is using his equipment,it
causes interference to both sound and vision on Tara’s television.

The interference of Alberts equipment towards Taras television could constitute indirect interference if
courts deem it to be.Which can give Tara a good case in claiming.But Alberts use of his equipment is
reasonable because of his profession so it may be unlikely for Tara to win the claim.
Hunter v Canary Wharf Ltd (1997)

3.Ricky,a music promoter,proposes to hold an open-air pop concert lasting one week,in parkland at the
head of a residential cul-de-sac.

A week-long concert is more than a one-off event and could cause significant disruption to residents,
particularly in a residential area. The noise and traffic could affect their ability to enjoy their homes.But it
still is for the courts to decide whether the public benefits of the concert outweigh the private nuisance
..Residents may have a strong case to successfully claim due to the fact that it is a week long nuisance .

4.Norris is annoyed because Rita’s cat regularly comes into his garden and makes a mess on his
flowers,some of which have died.
Rita’s cat is behaving naturally by wandering into Norris’s garden. Courts are unlikely to impose liability
on Rita, as cats are generally considered free-roaming animals and there is no malice behind their
actions .It would be hard to succeed in a claim against Rita.
Sedleigh Denfield v O’Callaghan (1940)

5.Residents in a private home for the elderly object to the noise from junior football matches played on
local authority playing fields near to the home.

While the noise may disturb the residents, football matches are a normal activity with social benefits .
Courts may consider the public benefit of the matches versus the private inconvenience to the care
home residents.This means residents might find it hard to succeed in a claim . (Miller v Jackson)(Sturges v
Bridgman (1879))
Whether an activity amounts to nuisance depends on the locality and the nature of the area.

Tort Activity Page 171

1.Noise from a busy railway line

The railway company can defend the claim using statutory authority (Allen v Gulf Oil Refining Ltd (1981))
since it operates within its legal powers, and noise is an inevitable part of its function.

2. Burglars leave Ravinder’s equipment playing loudly

Ravinder can defend the claim by arguing third-party interference (Sedleigh-Denfield v O'Callaghan
(1940)) since the nuisance was caused by burglars outside his control.

3. Noise from Roger’s footsteps at night

Roger can defend the claim because the noise arises from normal living activities, which are not
unreasonable in a block of flats

4. Noise from children playing in a local authority playground

The local authority can defend the claim by emphasizing public benefit and invoking statutory authority
if the playground was lawfully established (Miller v Jackson (1977)).
5. Smell from Archie’s pigs after 15 years
Archie cannot claim prescription as only 15 years have passed (Sturges v Bridgman (1879)), but he may
argue that keeping pigs aligns with the locality if the area is rural.

Nuisance and fault

Nuisance is not considered to be a fault-based tort in the same way as negligence, as the claimant does
not have to show why the neighbour has interfered with his or her use or enjoyment of land. However, the
claimant will have to show there is unreasonable interference and some element of fault in showing the
presence of one of the factors.

15.2 The rule in Rylands v Fletcher

A Land-based tort : it is strict liability which means that the defendant will be liable even if he/she is not
negligent or at fault.THe rule was developed to impose liability on reservoir owners but more recently has
been used to protect the environment. (something escaping from your land causing damage to land
owned by others )

“We think that the true rule of law is,

that the person who, for purposes of his
own, brings on his land and keeps there
anything likely to do mischief if it escapes,
must keep it in at his peril, and, if he does
not do so, he is prima facie answerable
for all the damage which is the natural
consequence of its escape.”

*Rylands v Fletcher (1868)

Facts (F):
The defendant, a mill owner, built a reservoir on their land to supply water to the mill. The contractors
hired for the construction negligently failed to block disused mineshafts, which were connected to
adjoining mines. When the reservoir was filled, water escaped and flooded the neighboring mines.

Held (H):
The defendant was held liable under the rule in Rylands v Fletcher. Even though the contractors were
negligent, liability arose because the defendant brought a dangerous thing (water) onto their land, which
escaped and caused damage to their neighbor’s property.
Key Principle (KP):
Under the rule in Rylands v Fletcher, a person who brings something likely to do mischief if it escapes onto
their land is strictly liable if it escapes and causes damage, provided the use of land is non-natural and
the escape causes foreseeable harm.

Essential elements of the tort

1.The parties to an action.
2.A non-natural use of land.
3.The bringing onto the land.
4.The thing is likely to do mischief if it escapes.
5.The thing stored must escape and cause foreseeable damage.

Brings onto land

Claimants must bring something onto his land ‘for his purposes’ that does not naturally occur there.

Giles v Walker (1890)

Facts : seeds from thistles blew from the D’s land onto claimant’s land.
Held : as the thistles were naturally occurring on the defendants land,he was not liable

Crowhurst v Amersham Burial Board (1878)

Facts : the D planted yew trees on his land.Some of the branches grew over the fence into the claimants
land.The claimant’s horse was poisoned when it ate the yew tree leaves

Held : claim successful

Non-natural use of land

The thing is likely to do mischief if it escapes

Examples of things which courts have decided can do
mischief are:
■ gas and electricity
■ poisonous fumes
■ a flag pole
■ tree branches
■ an occupied chair from a chair-o-plane ride in the
case of Hale v Jennings Bros (1938).

Hale v Jennings Bros (1938)

A ‘chair-o-plane’ car on a fairground ride became
 detached from the main assembly while in motion and
injured a stallholder as it crashed to the ground. The
owner of the ride was liable as the risk of injury was
foreseeable if the car came loose. This is one of the few
cases where a claim for personal injury using Rylands
v Fletcher was successful. Note that in Transco plc v
Stockport Metropolitan Borough Council (2003), the
House of Lords commented, obiter, that it is not now
possible to claim for personal injury under the tort.

Non-natural use of land

*Rickards v Lothian (1913)
Facts : a tap was left running and flooded the defendant's part of the building damaging his stock.
Held : the court of appeal held that the water was an ordinary use of the lands so the claim failed.
British Celanese v A H Hunt Ltd (1969)
The defendants stored strips of metal foil,which were used in the manufacturing of electrical
components.Some of these strips of foil blew off the defendant’s land onto an electricity
substation,causing a power failure.The court held that the use of land was natural because of the benefit
obtained by the local population.

Case law suggests that non-natural refers to some extraordinary or unusual use of land.
- A fire in a grate which spread to the claimants premises
- Defective electric wring that caused a fir which spread to the claimants premises
- A domestic water supply

Suggests as long as there is the ‘thing’ & the building/land use it would be a natural use.
*Cambridge changed things :

Facts:
Eastern Counties Leather stored chemicals used for leather tanning.
Frequent spillages over time led to chemicals seeping through the floor into the soil and eventually
contaminating the groundwater.
The contamination affected Cambridge Water Co.’s water extraction area, requiring them to relocate at a
cost exceeding £1 million.

Held:
The House of Lords ruled that the damage was not reasonably foreseeable at the time of the spillages.
The contamination was considered too remote to establish liability.
Key Principle:
Reasonable foreseeability of damage is required for liability in nuisance and under Rylands v Fletcher.
Damage that is too remote cannot lead to liability.

*Transco plc v Stockport Metropolitan Borough Council (2003)

Facts:
The council maintained a high-pressure water pipe supplying multi-storey flats.
A prolonged leak from the pipe caused an embankment to collapse.
This collapse exposed and left the claimant's gas pipeline in a dangerous state.
The claimant sought to recover the cost of repairs from the council under the Rylands v Fletcher principle.

Held:
The House of Lords found in favor of the council.
It held that:
There was no accumulation of a thing likely to cause mischief if it escaped.
The council's use of the land (maintaining the water pipe) was ordinary and not extraordinary or unusual.

Key Principles:
Rylands v Fletcher Requirements:
Liability arises where a defendant brings onto their land something likely to cause mischief if it escapes,
and there is non-natural use of land.
In this case, water under pressure was not considered something "likely to cause mischief," and
maintaining a water supply pipe was not deemed a non-natural use.
Ordinary Use Test:
Lord Bingham suggested that "ordinary use" is a better standard than "natural" or "non-natural use" to
evaluate land use under Rylands v Fletcher.
If the use is ordinary, liability under Rylands v Fletcher does not apply.

*Read v Lyons

Fire
Issue : the fire causes damage not the ‘escaped thing’
Case law : must still be that the ‘thing’ escapes & causes damage not just the fire.

LMS international
Flammable liquid negligent stored near hot wire cutting machine.
Caused fire & damage to adjoining property
Held : liable
KP : negligence & the ‘liquid’ also escaped

Stannard
Used tyres stored on premises.
Caught fire which spread to neighbouring.adjoining land.
Held : not liable
Kp : the tyres did not escape & were not likely to cause damage if they escaped.

The thing stored must escape and cause foreseeable damage

The stored item must escape from one property onto an adjoining property so that if the substance did
not move from one property so that if the substance did not move from one property onto another
property there can be no liability.
Defences
Act of a stranger - if the escape was caused by a stranger ( a third party over whom the defendant has
no control ) this will be a defence.In Rickards v Lothian (1913) the tap that flooded the claimants premises
was turned on by a stranger and the Privy Council decided that this was one of the reasons why the claim
failed.
*Perry v Hendricks
The defendants parked their bus on their parking space,
having drained the tank of petrol. A stranger removed
the petrol cap and a child was injured when another child
threw a match into the tank which ignited fumes. A claim
was made in Rylands v Fletcher. There was a valid defence
of an act of a stranger and no liability.

Volenti - C has asked that D could store the thing on their land.This defence is particularly strong if the
thing on the D’s land benefits the claimant.A common benefit e.g. neighbours benefit from water storage
on the defendant’s land will mean that a claim would fail if there was an escape.

An act of god - extreme and unforeseeable weather conditions.

Nichols v Marsland (1876)
The defendant made three artificial ornamental lakes by damming a natural stream. Freak
thunderstorms accompanied by torrential rain broke the banks of the artificial lakes, which caused the
destruction of bridges on the claimant’s land. There was no liability because the weather conditions were
so extreme and amounted to an Act of God.

Statutory authority - act of parliament allows D’s activities

*Allen v Gulf Oil - nuisance
Held : not liable
KP : statute authorised the activity.

Green v Chelsea Waterworks Co (1894)

The waterworks were under a duty authorised by Parliament to provide water.This meant that a claim for
damage caused by a leak from the pipe failed,as it was foreseeable that bursts could occur.

Contributory Negligence
If the escape and damage is caused completely by the default of the claimant,the D will not be liable.If
claimant is partly responsible,the normal rules of contributory negligence apply and their compensation
will be reduced accordingly.

Remedies
Claimant must show damage to ,or destruction of,his or her property in order to succeed in a claim for
damages.The level of damages will be the cost of repair replacement of the property damaged or
destroyed.

Moved away from strict liability and there are rules now in place :
Something must actually escape
There must be an increased risk due to special use of the land.
Damage caused must now be foreseeable *Cambridge

Vicarious Liability
Vicarious Liability is not an individual tort claim in the same way as negligence or nuisance.It is a way of
imposing liability for a tort onto someone who did not commit the tort,

Vicarious liability where one person is liable/responsible on behalf of someone else (commonly employer
and employee).

Vicarious liability is where a third person has legal responsibility for the unlawful actions of another.

The tort has been criticised,it imposes liability on someone not at fault BUT if C has suffered damage why
should they be left with no claim.
Other justifications :
ER is usually in a better financial position(+ insurance ) to provide compensation
EE often is carrying out instructions from ER
ER should have supervised EE more effectively BUT balance e.g. experienced staff.

First thing to establish : is the wrong doer an employee

Second thing : was it within the course of employment

Testing employment status

Traditional test -> a contract for service (employee),a contract for services ( an ind.contractor )

Control test ->Does ER have control over the actions of EE

*Yewens v Noakes
*Short v JW Henderson - control can be indicated by who picks the ER,the method they must use in their
work,right to suspend,dismiss and who pays the wages.

Difficult to apply in today's world but still useful in some cases.

Mersey Docks v Coggins & Griffiths

ER hired out their EE to another company

KP - The other company can be VL for the actions of the EE -not his ER,whoever had control of him

*Hawley v Luminar
A bouncer was supplied by an agency to a nightclub,he injured a partygoer

?-who was liable - Held - Nightclub liable NOT his actual ER.

KP - the nightclub had so much control over how he operated they were deemed VL.

*Viasystems

C contracted with D1 to do work.

D1 subcontracted some work to D2
D2 hired fitters from D3 on labour only basis.S wasa fitters mate,he caused the damage.
?who was liable.

Held - D2 & D3 were jointly liable.

KP - There can be split VL

The integration Test

How integrated is the EE into the business or is their work only accessory to the business.

*Stevenson v Macdonald - the above test

-Master of a ship,chauffeur & a staff newspaper reporter have all been held to be EE.BUT pilot bringing a
ship into port , a taxi driver and freelance reported are not EEs.

Sometimes the contract will specify this.

The economic reality test

There are a number of factors which may indicate either employment or self employment (no VL)

*RMC v Minister of Pensions

3 conditions must be met to show employment
1.The EE agrees to work in return for a wage
2.The EE accepts the work is under the control of the ER
3.All other parts of the agreement show a contract for employment.

NOW - other factors to consider

-who owns the tools adn equipment etc.
-method of pay (regularly suggests salary,per job suggests self employed)
-Is tax and NI deducted (self employed do their own)
-the job description
-any independence in doing the job

Recent developments
E v English Province of Our Lady of Charity (2012):
Facts: A nun and visiting priest abused children in a care home.
Held: The court held the church vicariously liable because there was a sufficient relationship of control
between the institution and the individuals committing the abuse.

JGE v Trustees of Portsmouth Roman Catholic Diocesan Trust (2012):

Facts: A child abuse case involving a priest, with no formal employment contract with the church.
Held: The court ruled the church was vicariously liable. Despite the absence of a formal employment
relationship, the degree of control and supervision by the church over the priest justified liability.
Catholic Child Welfare Society v Various Claimants (2012):
Facts: A case where 170 claimants alleged abuse by members of a Catholic institute running a school.
Held: The Supreme Court extended vicarious liability, holding that the institute was liable because the
relationship between the institution and its members was akin to employment.

Activity 1

Employee Independent Contractor (Self-Employed)

The worker has set hours of work The worker uses his/her own tools or equipment
in work

A manager directs how work should be Holiday can be taken at a time of the worker's
done choice

A regular salary is paid The worker keeps his/her own financial records

Health and safety training is provided Tax and pension contributions are not deducted
(self-managed)

Tax and pension contributions are Invoices are sent out for work completed
deducted

Maternity/paternity leave is available The worker has his/her own liability insurance
policy

A uniform is provided The worker provides a contract for services

The worker has dismissal and Additional workers can be employed when
redundancy rights required

The worker enters into a contract of The worker enters into a contract for services
service

Activity 2
Is L an Employee or an Independent Contractor?
L is likely to be classified as an independent contractor based on the following factors:

Ownership of Vehicle:
L owns and is responsible for his vehicle, which suggests independence in how he carries out his work.

Operating Licence:
L is required to obtain his own operating licence, indicating that he operates as a separate business
entity rather than being integrated into the company.

Tax and National Insurance:

L pays his own tax and National Insurance contributions, which is a strong indicator of self-employment.

Payment Structure:
L collects fares and then pays a percentage to the business. This arrangement aligns more closely with
an independent contractor relationship, as there is no regular salary.

Flexibility:
L can work as and when he wishes, suggesting a lack of control by the business over L's working hours,
which is a hallmark of self-employment.

Based on the evidence, L is more likely to be classified as an independent contractor because he owns his
tools, pays his taxes, chooses when to work, and operates with substantial independence.

Acting in the course of employment

To sue the company the EE must have caused the damage within the course of his employment.

Case by case,fact/fact - ER is a VL as it is within the course of business or ER is not VL as it was outside the
course of this business

Torts within the course of employment

Acting against orders - if the EE is doing the job,but in a way not instructed by ER the ER can still be liable.

-The more outside of the orders the more chance of not being VL.

Limpus v London General

-Er ordered bus drivers not to race each other.

C was injured when the driver was racing another driver.

Held - ER was liable

KP - Even though EE was acting against orders,he was still doing his job so ER was liable.
Rose v Plenty
C was injured when helping the milkman deliver.The Dairy had told them they could not have helpers.

Held - Liable - KP - How wide the scope is.

Twine v Beans Express

KP - Unauthorised lifts were outside VL - also he wasnt helping with the job.

If EE injures C doing something outside of his job role ER is not liable

*Beard v London Omnibus

A bus conductor drove the bus and injured C.

Held - ER is not liable.

Employee committing a criminal act

If EE commits a criminal act ,Er can still be liable if there is a close connection with the job.

*Lister v Hesley Hall (2001)

The warden of a school for children with emotional difficulties sexually assaulted some of the children.He
was convicted of criminal offences.The House of Lords decided there was a close connection between his
job and what he did as the assaults were carried out on the school premises when he was looking after
the children.

Gaining and abusin trust

*N v Chief Constable of Merseyside Police (2006)
Two hours after he had gone off duty, D was parked
outside a nightclub still in uniform. A first aider from the
club was worried because a young woman was very drunk
and had taken the drug ecstasy. D offered to take her to
a police station. D took the woman to his house where
he committed various sexual assaults on her including
rape. The court held that there was no close connection
between D’s employment and the assaults. D had merely
made use of his uniform to gain trust and abuse it.

*Mattis v Pollock (2003)

A bouncer was employed to keep order outside a nightclub. The bouncer inflicted serious injuries on a
customer and was jailed for committing serious criminal offences. The nightclub was held vicariously
liable for the bouncer’s actions as he was encouraged to use force, to be violent and intimidating and his
criminal actions were closely connected to his work.

Employee committing a negligent act

If the EE does a job badly/negligently ER can still be liable if its linked to the job.

Century Insurance v NI Transport

The EE delivered petrol.HE had a fag and threw the match on the floor ,causing an explosion and damage
to cars and houses.

Held = ER is VL

KP - Although negligent he was doing his job.

-Puts on the onus on the ER top be careful when selecting and training .

Damages
In a successful claim the court will award the claimant an amount of money,an award of compensation
for their losses,pain and suffering.
This award is known as Damages
Losses are either pecuniary or non-pecuniary
Pecuniary can be easily calculated in monetary terms
Non-pecuniary terms are non money based (pain,suffering,loss of enjoyment ,loss of opportunity ,PI)

Mitigation of loss
The claimant must try to ‘limit’ their loss.
E.g. Claimant intentively putting themselves in better circumstances rather than the same
circumstances before the tort was committed.

Special Damages
Special damages are damages that can be easily calculated and are given to pecuniary losses.(anything
that has a monetary value and can be specifically calculated)

General Damages
General damages are damages thatare awared to non pecuniary losses (non monetary based losses).
This can include:
Loss of amenity,loss of future earnings,
Lump Sum Settlement
Courts can only award a lump sum when giving damages for pain and suffering and for loss of amenity.
Could be unfair as condition could get worse
If an award for future costs then inflation can be a problem.ie ten years on money is less valuable
But,the claimants condition could improve so unfair on D