TORT LAW

Q&A

Contents

I. PART ONE: GENERAL NEGLIGENCE – ELEMENTS & DEFENCES

1. General Negligence: Duty of Care (General), Breach of Duty, Factual Causation and Legal
Causation.
➢ Problem Questions (Combining Chapters 2, 3, 7, 8 and 9)
➢ Essay Questions (Chapters 2, 3, 7, 8 and 9)

2. General Negligence: General Defences

➢ Problem Questions (Combining Chapters 2, 3, 7, 8, 9 and 10)
➢ Essay Questions (Chapter 10)

II. PART TWO: NEGLIGENCE – PROBLEM AREAS

1. Negligence: Duty of Care for Psychiatric Injury (Chapter 4)
➢ Problem Questions
➢ Essay Questions

2. Negligence: Duty of Care for Pure Economic Loss and Negligent Misstatements (Chapter 5)
➢ Problem Questions
➢ Essay Questions

3. Negligence: Duty of Care for Public Bodies and Omissions (Chapter 6)

➢ Problem Questions
➢ Essay Questions

III. PART THREE: OCCUPIERS’ LIABILITY

1. Occupiers’ Liability (Chapter 11)
➢ Problem Questions
➢ Essay Questions

IV. PART FOUR: NUISANCE: PUBLIC, PRIVATE AND RULE IN RYLANDS V FLETCHER
1. Public Nuisance, Private Nuisance and the rule in Rylands v Fletcher (Chapter 12)
➢ Problem Questions
➢ Essay Questions

V. PART FIVE: DEFAMATION

1. Defamation (Chapter 13)
➢ Problem Questions
➢ Essay Questions

VI. PART SIX: VICARIOUS LIABILITY

1. Vicarious Liability (Chapter 14)
➢ Problem Questions
➢ Essay Questions
I. PART ONE: GENERAL NEGLIGENCE – ELEMENTS & DEFENCES

1. General Negligence: Duty of Care (General), Breach of Duty, Factual Causation and Legal
Causation

Problem Questions:

Sample 1:

2014 (October) Q6
Sandra was engaged in her first driving lesson and was driving along a busy road when a kitten ran in
front of her car. Instinctively, Sandra swerved and ploughed into a group of people who were queueing
at a bus stop. Sandra's driving instructor (Raj) suffered severe whiplash as a result. Julian was the only
person in the bus queue who was injured as a result of the collision. Julian was taken to hospital with
a suspected broken arm. He was seen by a junior doctor, Basil, who (due to severe staff shortages)
had been working for 18 hours without rest. Basil took the word of the paramedic that Julian had a
broken arm. He treated the broken arm but failed to carry out a more extensive medical examination
on Julian. Unfortunately, Julian had suffered a head injury which caused extensive bleeding on his
brain. Had the head injury been diagnosed immediately, Julian would have had a 30 per cent chance
of a full recovery. Unfortunately, his condition was not diagnosed until a nurse sounded the alarm 8
hours after he had been admitted to hospital and Julian now has permanent brain damage. Advise all
parties of their rights and obligations in negligence.

Suggested Answer:

The scenario in question requires discussion of the general law of negligence. Parties are
advised that claims may be brought under the tort of negligence, to recover compensation for
injury/loss in the circumstances. The candidate will evaluate the conditions for liability under
negligence in advising the parties in question. Raj may bring a negligence claim against Sandra for the
accident that resulted in the whiplash injury. Julian may also bring a negligence claim against Sandra
(for the accident) and/or Basil (for the medical treatment after the accident), for the permanent brain
damage. Lord Wright in Lochgelly Iron v McMullan (1934) confirmed that a claimant must establish
four elements namely duty of care, breach of the duty, causation and that the damage is not too
remote. The candidate will proceed to discuss whether these criteria for liability are satisfied on the
facts, in relation to both Raj and Julian’s claims.

Firstly, dealing with Raj’s claim, it is submitted that liability may only arise if it can be shown
that Sandra did owe Raj a legal duty of care. In Caparo v Dickman (1990) it was held that a legal duty
will be owed where it has been previously determined that a particular relationship between the
claimant and defendant gives rise to an established legal duty. If the relationship between the parties
is novel, the requirements of foreseeability, proximity and just, fair and reasonable must be satisfied
to justify the imposition of a legal duty. However, the Supreme Court in Robinson v Chief Constable
of West Yorkshire Police 2018) clarified that in determining duty, the three-stage test was not to be
applied in every scenario, but that reference should be made to existing precedents on duty. On the
facts, it is submitted that Sandra would owe Raj an established duty of care as they both fall within
the relationship of driver and passenger. Further, by virtue of Nettleship v Weston (1971) it can be
said that notwithstanding that Sandra is a learner driver, she still owes the same duty. As such, the
first requirement of duty of care is satisfied.
 It then has to be established that Sandra breached the legal duty, by acting in a manner that
falls below the standard of the reasonable person: Blyth v Birmingham Waterworks (1856) The
standard of care set in the present circumstances is that of a reasonably competent driver. The case
of Nettleship in which the defendant, a learner driver, drove negligently resulting in injury to her
passenger, would apply here. The court in Nettleship ruled that all drivers are required to come up to
the same standard of driving, namely that of an ordinary experienced driver, and a learner driver’s
incompetent best is not good enough. Following this it is argued that a reasonable driver in Sandra’s
circumstances, would not have swerved suddenly. Had she been driving slowly and attentively, she
would arguably have been able to slow down or stop at a gradual speed and not suddenly. The facts
also suggest that she was driving on a busy road at the time. It is argued that a reasonable driver in
the circumstances would have braked instead of swerving. Thus, Sandra has fallen below the
reasonable standard and would be found in breach.

The next element for liability is factual causation and Raj would have to establish a causal link
between Sandra’s careless driving and his whiplash injury. In Cork v Kirby (1952) it was held that
factual causation could be established by asking whether the injury would still have occurred if not for
the defendant’s carelessness. Applied in Barnett v Chelsea & Kensington HMC (1969), it was found,
where the claimant’s injury/death would have occurred in any event, the defendant’s carelessness
cannot be said to be the factual cause of the same. On the facts, it is clear that but for Sandra’s careless
driving, Raj would not have been injured, and as such, factual causation is clearly made out. Next, Raj
has to also satisfy legal causation, by proving that his injury is not too remote as a consequence of
Sandra’s carelessness. The test for remoteness was laid down in the Wagon Mound No. 1 (1961) case,
wherein it was held that the particular damage that can reasonably be foreseen as a consequence of
the defendant’s negligence would be considered not too remote and would thus qualify for
compensation. It is submitted on the facts that whiplash injuries are a fairly common and foreseeable
outcome in road traffic accidents and would therefore not be found too remote for compensation.
Having fulfilled all four criteria for liability, it is concluded that Raj would successfully establish
negligence on Sandra’s part.

Turning now to Julian’s situation, it is submitted that in order to successfully recover

compensation against Sandra and/or Basil, Julian would have to satisfy the same four criteria for
negligence, as explained above. With regards to the first criteria of duty of care, it is submitted that
this would easily be established against both Sandra and Julian. On the facts, Sandra owes a duty of
care to Julian because a driver’s duty to be careful on the road extends to fellow road users. Given
that Julian is clearly a fellow road user at the time of the accident, Sandra would certainly owe him a
legal duty of care. Basil would also owe Julian a legal duty of care, since he is the doctor assigned to
treat Julian at the material time. Given that the law has already pre-determined that doctors owe their
patients reasonable care in the course of treatment, a legal duty will certainly arise on Basil’s part.

It is then pertinent to consider whether Sandra and Basil have breached their respective legal
duty. As argued above for Raj’s claim, the candidate similarly submits that Sandra has breached her
duty towards Julian, by failing to brake in time. Once again, given that it was a busy road and Sandra’s
first driving lesson, it is submitted that the accident could easily have been avoided if she had been
driving as a reasonable speed, which would have allowed her to stop in time. Sandra would be found
in breach of her duty towards Julian.

Whether or not Basil has breached his legal duty towards Julian, has to be determined
differently. Given that Basil was exercising a professional skill, the standard of care of a professional
having the same skills would be the more appropriate test in the circumstances, in judging whether
Basil’s conduct falls below acceptable standards. The standard of care applied to a professional
defendant, according to McNair J in Bolam v Friern Hospital Management Committee (1957), is not
that of the lay reasonable man but that of a competent practitioner having the same skills as the
defendant, and it was stated that a doctor would not be found negligent if his practice is accepted as
proper by a body of reasonable practitioners professing the same skills. The question that would then
arise, would be whether a reasonable practitioner in the circumstances, would similarly have relied
on the word of the paramedic and ignored a more extensive medical examination of an accident victim
such as Julian. It is submitted that a reasonable practitioner in the circumstances would not have
neglected further examination of an accident victim.

Basil may argue that he is a junior doctor working under pressing circumstances without rest
and therefore that he cannot be expected to come up to the standard of an ordinary reasonable
experienced practitioner. This argument would fail on the basis of Wilsher v Essex Area Health
Authority (1988), wherein Glidewell LJ stated that the test to be applied in cases involving junior
doctors was the Bolam test, “the standard of the ordinary skilled man exercising and professing to
have that special skill”. Glidewell LJ went on to state that, “The law required the trainee or learner to
be judged by the same standard as his more experienced colleagues. If it did not, inexperience would
frequently be urged as a defence to an action for professional negligence… If this test appears unduly
harsh in relation to the inexperienced, I should add that in my view, the inexperienced doctor called
upon to exercise a specialist skill, will as part of that skill, seek the advice of his superior when he does
or may need it. If he does seek such help, he will, in my view often have satisfied the test, even though
he may himself have made a mistake.”

In the more recent case of FB v Princess Alexandra Hospital NHST (2017), the Court of Appeal
applied Wilsher and ruled on the alleged negligence of a less experienced doctor, who allegedly failed
to carry out adequate examination. The claimant argued that more extensive or adequate
examination would have conducted by a more experienced doctor and that the defendant doctor
failed to do the same due to his inexperience. The claimant also suggested that more thorough
examination would have led to her child receiving appropriate treatment, which would have avoided
permanent brain injury. Jackson LJ in FB stated that courts generally disregard the personal attributes
and experience of defendants but in a professional context, defendants have to exercise the skill and
care of a reasonably competent member of their profession. On the one hand, it is harsh to disregard
a defendant's limitations and hold them liable but on the other hand the claimant is entitled to expect
that those they encounter adhere to certain standards. The standard of care required of a hospital
doctor should be judged by the standard of the post which they are filling. Therefore, where a doctor
is not performing their normal role they are to be judged by reference to the post they were fulfilling
at the material time, and experience or length of service should not be taken into account. The FB
case reiterates that the relevant standard of care and skill for hospital doctors is that of a reasonably
competent practitioner working in the specific role in which the doctor was working at the material
time. The experience or length of service of the doctor is not relevant when considering breach of
duty. The case also underlines the importance of doctors eliciting the correct history from the patient
and clarifying exactly why they have been brought to the hospital. Applying Wilsher and FB to the
facts, it is submitted that Basil’s conduct would be found in breach.

In Bolitho v City and Hackney HA (1996), the court concluded that in exceptional
circumstances, the medical standard to be applied in a particular case may be decided by judicial
opinion and not medical opinion. Thus, a judge may take into account relevant circumstances, in
answering the question of whether the defendant’s act was justifiable and defensible. Taking into
account the risks of not carrying out an extensive medical examination on a victim of a road traffic
accident, it is highly likely that judges would find that Basil’s conduct lacks logical basis and is
inconsistent with that of a reasonable, respectable and responsible medical practitioner. Basil’s
conduct is likely to be found in breach in the circumstances.
 The candidate will now examine the issue of factual causation, in particular, whether it is
Sandra’s carelessness, Basil’s carelessness or both their carelessness that caused Julian’s permanent
brain damage. Applying the but for test discussed above, firstly, in relation to Sandra’s carelessness,
it may be argued that but for Sandra’s carelessness, Julian would not have suffered the initial head
injury which caused extensive bleeding on his brain. Arguably, if not for the accident, there would be
no injury at all, and as such that Sandra’s negligence should be deemed the factual cause of Julian’s
final injury. Sandra may however argue, that her conduct was superseded by Basil’s negligence, and
that her carelessness would therefore cease to be the operating cause of Julian’s injury. Where there
are more than one possible explanations for the claimant’s injury, and where evidence is inconclusive
as to which of the multiple cause is responsible for the final injury, judges have preferred to opt for
alternative methods of resolving causation. The preferred test in such cases is known as the material
contribution test propounded in Bonnington Castings v Wardlaw (1956) wherein it was held that as
long as the defendant’s carelessness materially contributed to the claimant’s injury, a causal link
would exist. This approach has been subsequently applied in cases involving multiple causes, one of
which is medical negligence, namely in Bailey v MOD (2009) and Wright v Cambridge Medical Group
(2012). In these recent cases it was held, that as long as the defendant’s negligence was more than
negligible in contributing to the claimant’s final injury, it would be deemed to have materially
contributed to the same, and factual causation will be made out.

Like the defendant in Wright, Sandra may argue that even though her carelessness first
caused the initial head injury, Basil’s subsequent carelessness is ultimately responsible for the final
brain injury. This, however, would fail, as it was held in Wright that both the defendant and the
negligence doctors that later treated the claimant contributed materially to the claimant’s final injury.
If this is upheld by the court, it is likely that both Sandra’s and Basil’s carelessness be deemed factual
causes of Julian’s permanent brain injury. This would lead to the conclusion that factual causation is
satisfied on both their parts, and liability to pay compensation will be shared by both Sandra and Basil
accordingly.

If the court finds that based on the material contribution test, both Sandra and Basil satisfy
factual causation, arguments pertaining to novus actus interveniens and successive causes would no
longer be relevant or useful to negate or limit either party’s liability. Under the principle of novus actus
interveniens by a third party, the defendant would be absolved of liability if it can be shown that the
unreasonable, unforeseeable and extraneous act of a third party intervened and broke the causal link.
In Knightley v Johns (1982), it was found that the intervening act of the third party (police officer)
broke the chain of causation as it was unreasonable and outside the defendant’s control. It is
submitted, however, that if the court finds that both Sandra and Basil materially contributed to Julian’s
permanent brain damage, it is unlikely to conclude that Basil breaks the causal link between Sandra’s
carelessness and Julian’s final injury, as such a conclusion would be inconsistent. It would be more
likely that the court would go on to apply Baker v Willoughby (1970) to rule that the successive
careless act of Basil would not limit Sandra’s liability for her careless driving, and that both would be
considered to be concurrently liable. The decision in Jobling v Associated Dairies (1981), in which it
was found that a successive cause may limit causation and liability on the part of the first tortfeasor,
is unlikely to apply here. The court will distinguish Jobling from the present facts and apply Baker
instead, as Jobling involves a successive cause brought upon by natural conditions present in the
claimant himself while in Baker, both the first and successive causes were brought upon by the
wrongful acts of two different parties, and that the claimant’s injury was more accurately described
as being caused concurrently and not consecutively. If this line of reasoning and decision is applied,
then both Sandra and Basil will be held liable for Julian’s permanent brain damage.

Alternatively, it could also be argued that, even though there appears to be two possible
causes for Julian’s permanent brain damage, factual causation can adequately be established here
using the but for test, and departure from this default test is unnecessary. This is because the facts
stipulate that if the head injury was diagnosed immediately, Julian would have had a 30% chance of
full recovery. This points towards the fact that on a balance of probabilities, Basil’s failure to promptly
diagnose and treat Julian’s head injury is 30% responsible for final injury, which leads to the conclusion
that Sandra’s carelessness causing the head injury is 70% responsible for Julian’s final injury
(permanent brain damage). The specification of the 30—70 percentage here may assist in determining
causation on a balance of probabilities using the but for test. It may be concluded that it is more
probably than not that it is Sandra’s negligence that caused Julian’s injury (70%), and not Basil’s (30&).
If this is upheld by the court, Sandra would satisfy factual causation instead of Basil, and her conduct
would be deemed to be the sole operating cause of Julian’s final injury. If liability is imposed solely on
Sandra for the final injury, it is advised that Julian may still attempt to sue Basil for the loss of 30%
chance of recovery. It is to be noted that this is a loss of chance alone and not for loss of amenity of
the brain following the permanent damage. Julian, however, is advised that such a claim for loss of
chance would fail where the value of the chance loss is less than 51%. If the negligent delay in
treatment by Basil is responsible for depriving Julian of only a 30% chance of recovery, it would follow
that there is still a 70% chance that Julian would go on to suffer permanent damage, and Basil’s
carelessness, on a balance of probabilities cannot be said to be satisfy causation at all. The loss of
chance per se will not be recoverable. This has been laid down in Hotson v East Berkshire Health
Authority (1987) and affirmed in Gregg v Scott (2005).

Depending on the court’s conclusion on the two possible lines of argument, it is concluded
that EITHER Sandra alone will be found solely liable OR Sandra and Basil may be found jointly and
concurrently liable. The next requirement would be that of remoteness, which as discussed above, is
determined by applying the Wagon Mound No. 1 reasonable foreseeability test. It is submitted that
brain injury is clearly a foreseeable outcome of a road traffic accident and/or neglect in treating a head
injury. As such, Julian’s permanent brain damage would not be too remote.

In conclusion, Raj is likely to succeed in recovering compensation for whiplash against Sandra.
Julian is likely to successful recover damages against Sandra but recovery against Basil will depend on
the finding on causation as argued above.

Sample 2:

2016 (October) Q6
Chandra is nearing retirement after having been employed at a tobacco factory for most of her
working life. Soon after she joined the factory (Toe Back) she began smoking. Chandra began smoking
five cigars a day, she now smokes around 20 a day. Her family home is located in the middle of an
industrial estate – surrounded by fumes and other pollutants – she has lived in the same place since
she was 17 years old. Recently Chandra was diagnosed with a form of cancer. The treatment she is
receiving looks promising but she feels her condition was caused or exacerbated by the fact that her
employers did not provide employees with adequate change of clothes and washing facilities. She is
considering suing them, and seeks your advice. Unfortunately, she was rushed into hospital recently
as a result of a bad reaction to some medication she was taking to combat feelings of sickness as a
result of the cancer treatment drugs. The medication resulted in an unusual chemical reaction which
led to a mini stroke. Although partially recovered, Chandra now has a speech impediment. She later
learned that the medical profession knows that the anti- sickness medication has a high incidence of
similar severe side effects. Advise all parties as to their rights and liabilities in tort. Please note that
you are not expected to discuss employer’s liability.
Suggested Answer:

The given facts require advice on whether the claimant, Chandra may be able to (i) claim against her
employer for cancer and (ii) claim against the doctors who administered cancer treatment and the
anti-sickness medication, for the mini stroke and speech impediment. Both claims will be brought
under the tort of negligence and as such the claimant will have to establish the four conditions for
liability against both defendants, namely, (i) duty of care, (ii) breach, (iii) causation and (iv) that
damage was not too remote (Lochgelly Iron v McMullan; Wagon Mound (No. 1)).

Firstly, in relation to the claim against C’s employer, Toe Back, the tobacco factory, the first
issue is whether she was owed a legal duty of care. CEC v Barclays Bank provides that there are three
approaches to duty of care today: the incremental approach, the three-stage Caparo test and
assumption of responsibility. On the facts since there is an employment relationship between C and
TB, it can be said that there is an established legal duty owed to C and the three-stage Caparo test
need not be satisfied. Moving on the next issue is whether TB has breached their duty owed to C.
According to Blyth v Birmingham Waterworks, breach is established when the D fails to act according
to the standard of the reasonable person, i.e, doing something a reasonable person would not do, or
failing to do something a reasonable person would do. In Glasgow Corporation v Muir, it was further
held that the reasonable standard will vary based on the circumstances of the case. Courts may take
into account certain factors such as seriousness of harm (Paris v Stepney). If it is found that the harm
that may befall the employee is particularly serious, the standard of reasonableness may be elevated
to require that the employer take greater precaution.

C may argue that working at TB exposes her to harmful substances on a daily basis for most
of her working life. Given that she is nearing retirement, the prolonged exposure to tobacco
presumably poses serious risks to her health. It would be reasonable to expect that her employer
provides better facilities and greater precaution. However, as C’s the nature of work at the factory
and the nature, degree or extent of harmful exposure is unclear from the facts, it is difficult to state
whether there is a risk of serious harm to start with. The candidate submits that if there was in fact
any risk of harmful exposure with the potential for serious diseases such as cancer, then it may be said
that the failure to provide washing facilities would fall below the reasonable standard, and TB would
be in breach of its duty.

It must then be established that TB’s breach of duty caused C’s cancer, on a balance of
probabilities and based on evidence of facts. On the facts, it can be said that there are at least three
possible explanations for C developing cancer: (i) fumes and pollutants from the environment
surrounding her home, (ii) C’s smoking habit and (iii) the exposure to tobacco at TB. It would also seem
that there is evidential gap when it comes to determining which of the three possibilities is the cause
of cancer. The facts are silent as to conclusive expert medical evidence, on the exact cause of cancer
in the circumstances. It is thus argued that the ‘but for’ test propounded in Cork v Kirby and applied
in Barnett v Chelsea Kensington HMC, would be of little help. It is important to note that using the
‘but for’ test to determine causation would only produce a clear and definite answer as to the actual
cause of cancer here, if there are no other possible explanations in the circumstances other than TB’s
neglect. However, that is not the case on the facts.

It is worth considering whether causation could alternatively be established by applying the

‘material contribution’ test invented in Bonnington Castings v Wardlaw. It may be said that this test
was used in this case because the defendant employer’s neglect was only one out of two possible
explanations for pneumoconiosis developed by the claimant, Bonnington, and that due to lack of
scientific evidence it was not possible for the courts to conclude which of the two possible causes in
fact caused the disease. Bailey v MOD further held that to use the ‘material contribution’ test and
successfully establish causation, the claimant only needs to show that the defendant’s carelessness
was more than minimal (or not negligible) in relation to the claimant’s disease. However, the
candidate argues that C may not be able to show that the lack of washing facilities and adequate
change of clothes materially contributed to cancer in the circumstances. Firstly, there is a lack of detail
as to the nature of the work done at TB and the nature and extent of the exposure at TB. Further, the
type of cancer is unknown and as such it is difficult to say whether there is any connection at all
between inadequate change of clothes and washing facilities and the cancer. Even if there was a link
between the two, whether the link is significant (or substantial and thus material), cannot be
determined on a balance of probabilities. After all the employer’s failure to provide greater precaution
is one of three possible causes and could easily be the less significant contributor, given that the other
two possible causes seem quite material too.

C is therefore advised to attempt to establish causation through a different test, namely the
material increase in risk test used in McGhee v National Coal Board. It is submitted that the use of this
test alongside 6 other conditions of liability, per the case of Fairchild v Glenhaven Funeral Services is
to be preferred. Given that this is a cancer case and that the circumstances are analogous to the cases
of Barker v Corus and Sienkiewicz v Greif, it is argued that these decisions should apply instead. The
issue to be resolved is whether, TB’s breach causing increased exposure to tobacco at work, materially
increased the risk of cancer. In other words, if washing facilities and adequate change of clothing were
provided, would this have significantly reduced the risk of C developing cancer. Applying Fairchild and
Sienkiewicz, it is submitted that if the nature of C’s cancer is a lot like mesothelioma, and if the type
of cancer is in anyway connected to the type of harmful exposure at TB, courts would be prepared to
conclude that the exposure at work, however minimal or material, would satisfy the ‘increase in risk’
approach. So long as there is an evidential gap in being able to prove whether the cancer is attributable
to the environment, smoking or exposure at work, and the characteristics of C’s cancer are similar to
mesothelioma, courts will be willing err in C’s favour. The extent of harm from the environment and
C’s smoking habit need not defeat a finding that the exposure at work did materially increase the risk
of cancer (Barker; Sienkiewicz). In both Barker and Sienkiewicz, it was held that notwithstanding the
claimant’s own carelessness exposing himself to asbestos (Barker) and the 82% exposure to asbestos
from the environment (Sienkiewicz), the negligent exposure at work still did materially increase the
risk of mesothelioma, all because mesothelioma is classified as a single-strike fatal cancer and the
precise etiology of the disease is not completely known. Hence it is submitted that the same
conclusion drawn in Fairchild, Barker and Sienkiewicz may apply in C’s favour if it can be shown that
the conditions in C’s case are similar. Otherwise, if C’s cancer and evidential circumstances are
radically different, the material increase in risk test will have no application in C’s case and the
question of whether TB caused/contributed to C’s cancer will remain unanswered. Courts may have
no option but to conclude that causation simply cannot be determined and proceed to deny C’s claim.
causation would remain unanswered, with courts preferring to deny C’s claim, simply because
causation on TB’s part simply cannot be established. If the material increase in risk test is satisfied, it
is submitted that TB may be found liable to pay compensation only for its share of wrong, under the
proportionate recovery rule laid down in Barker.

The last issue in relation to TB would be remoteness. If factual causation can successfully be
established, C will have to go on to prove that cancer was not too remote as a consequence of TB’s
neglect. The Wagon Mound (No. 1) test of reasonable foreseeability applies. If it can be shown that
the particular type cancer was reasonably foreseeable as a consequence of harmful exposures at a
tobacco factory, C’s damage would not be too remote, and liability may be established for negligence.
If, however the type of cancer is rare or simply has no relation to tobacco, then C’s damage would be
regarded as too remote.
 C is also advised that she may pursue a claim against the doctor who prescribed the anti-
sickness medication, for the mini stroke that resulted in the speech impediment. Once again, the
conditions for liability for negligence have to be established against the relevant doctor. It is submitted
following the incremental approach, that it is well-established that a doctor owes his patient a legal
duty of care.

The next issue to be resolved would be whether C’s doctor breached the duty by prescribing
the anti-sickness medication. When assessing breach by a medical professional, the question is
whether he/she fell below the professional standard of care for the relevant profession. The case of
Bolam v Friern HMC provides that a doctor is not negligent, nor does he fall below the reasonable
standard of professional practice, as long as he acts in accordance with a practice accepted as proper,
by a reasonable, respectable and responsible body of practitioners professing the same skills. As such
the question to be asked on the facts would be whether other professionals having the same skills of
treating a cancer patient, would similarly prescribe the same anti-sickness medication to a patient
who complains of feelings of sickness, despite the risks and serious side effects. It is submitted that it
is not uncommon for such medication to be prescribed, and C’s doctor may not have acted contrary
to the norm in this practice. As such, the doctor may not be found in breach.

If, however courts are skeptical of the merits of the doctor’s decision to prescribe the
medication despite its known risks, the Bolitho v C&H AHA approach may be used. This approach
allows judges to consider whether there is logical basis for the decision to prescribe the drug, by
looking at whether the benefits of the drug outweigh its risks. If it is found that the benefit of
preventing feelings of sickness outweighs the danger of serious side effects including those similar to
a mini stroke, the courts may conclude that it was logical for the doctor to allow C to take the anti-
sickness medication. It is submitted, however, that the risks and side effects appears of the medication
appears serious, and dangerous, and as such, may result in a finding that it was not reasonable for the
doctor to prescribe the same.

In the event that breach is established in relation to prescription of the anti-sickness

medication, C will have to go on to show that this breach caused the speech impediment. Using the
‘but for’ test it is argued that, but for the prescription of the anti-sickness medication, C would not
have suffered the mini stroke and the resulting speech impediment. Thus, factual causation would be
satisfied. It would not be correct to argue that the stroke breaks the chain of causation here or that it
is a new intervening act, because it was, on the facts, triggered by the unusual reaction from the anti-
sickness medication.

Lastly, C will have to show that the stroke and speech impediment were not too remote as a
consequence of prescribing the anti-sickness medication. The Wagon Mound (No. 1) reasonable
foreseeability test applies. The question is whether the occurrence of the mini stroke leading to the
speech impediment is reasonably foreseeable as a result of taking the anti-sickness medication. The
facts suggest that the medical profession is aware of serious side effects similar to that of a stroke,
and on this basis, it may be argued that the stroke was reasonably foreseeable. On the other hand,
though, the facts also indicate that that the stroke occurred due to an unusual chemical reaction
between drugs. The case of Doughty v Turner appear relevant here, where it was found that the
explosion of molten metal that caused the claimant to suffer burns, was not reasonably foreseeable
because it resulted from an unknown and unusual reaction between asbestos and molten metal. On
the basis of Doughty, and drawing analogy to the basis in Doughty, the conclusion in C’s case may
that the stroke is not reasonably foreseeable, and thus, the speech impediment becomes too remote
a consequence. This would mean that C’s claim would fail against the doctor.
Essay Questions:

Sample 1:

2018 (October) Q3
Illustrate how the courts have exercised discretion in applying the principle that the imposition of a
duty of care should be ‘fair, just and reasonable’.

Suggested Answer:

The question relates to the law on duty of care. The crux of the issue in question is whether
policy considerations continue to pervade the law on duty in negligence. In answering the question,
the candidate will delve into the following (i) the duty concept and its importance, (ii) early law on
duty of care, (iii) the introduction of the policy element in the test for duty of care and (iv) newer
developments in the law.

Duty of care is the first for negligence. It serves the purpose of determining whether the
defendant first has a legal responsibility to be careful before considering whether his conduct was
careless, and whether he would be liable to pay compensation. The duty concept establishes the legal
nexus between the claimant and the defendant. If no duty is owed in the circumstances, the claimant
has no legal basis to proceed against the defendant. Duty has to be fixed by law, either through case
law (duty imposed under common law), or through statute (statutory duty). Under common law the
duty concept does not only give the claimant legal basis to sue but serves as a control mechanism to
ensure that the defendant cannot be held liable to the world at large, for every act of carelessness. In
this regard, the duty concept serves as a tool to restrict not encourage litigation: Conaghan & Mansell

The duty concept is derived from Donoghue v Stevenson (1932): one must take reasonable
care to avoid acts or omissions which one can reasonably foresee is likely to injure his neighbour. In
law, the neighbour is anyone who is closely and directly affected by the defendant’s actions. In
Donoghue, Lord Atkin ruled that the ‘neighbour principle’ calls for the imposition of a duty to be
careful on moral grounds rather than limiting it to situations where parties are contractually bound to
exercise care. However, to account for the fact that accidents are inevitable in ordinary living, and to
avoid imposing liability for every careless mistake, legal principles are necessary to confine liability to
most deserving cases – “rules must exist to limit the class/ range of people to whom a duty is owed
and the scope and extent of such duty”: Lord Atkin. Thus, the legal principle enunciated in Donoghue
is that duty will be imposed only where: (i) some harm or injury is reasonably foreseeable and (ii) the
is a relationship of proximity between claimant & defendant. Therefore, foreseeability and proximity
are the legal components of the original test for duty of care

The law changed in Anns v Merton LBC (1978). Anns introduced policy considerations into the
law on duty of care through Lord Wilberforce’s two stage test: (i) whether there is sufficient proximity
that it would be foreseeable that loss would be suffered (if there is, then there is a prima facie duty)
and (ii) whether there are any reasons to negate or limit duty the prima facie duty. ‘Reasons’ here
referred to ‘policy-based’ reasons. The HOL imposed duty on the facts of Anns and the test in Anns
undeniably increased liability. The approach in Anns (finding of duty without taking into account
‘foreseeability’ and ‘proximity’ as two separate and independent criteria) meant that a prima facie
duty was often more easily established. Although at the second stage judges were free to be swayed
by policy consideration, this did not play a big part in the outcome. Once a prima facie duty was found
to exist on the facts, judges were usually reluctant to negate it using policy grounds. Thus, one could
say that even though Anns introduced policy considerations into the duty equation, the effect that
policy had in determining duty at that point in time was not significant
 In Home Office v Dorset Yacht (1970) and Yuen Kuen Yew v AG (1988) it was reiterated that
the Donoghue v Stevenson approach should be accepted as the standard test for duty: policy may be
taken into account when considering ‘proximity’ and ‘foreseeability’ respectively, but there was no
need to have a separate policy limb in the duty formula. In fact, later, Anns was overruled as wrongly
decided: Murphy v Brentwood District Council (1991).

Indeed, in Hill v Chief Constable of West Yorkshire Police (1989), irrespective of the fact that
the defendant was a public body, Lord Keith clarified the proper approach to duty: if the carelessness
involved a positive act, the Court should simply decide duty based on (i) foreseeability and (ii)
proximity. If the carelessness involved an omission, then the general rule on omissions simply states
that English law does not recognise or impose a legal duty on one person to act for the benefit of
another. Hill was not swayed by policy considerations in its outcome. (i) Lord Keith concluded that if
the case is examined from the ‘omission’ standpoint (police failure to prevent crime & properly
investigate), there is no duty to prevent crime. (ii) Lord Keith added that deciding the case as a careless
act situation (negligence in investigation and prosecution of crime), there is insufficient proximity and
foreseeability to justify imposition of duty. Policy was mentioned in obiter: that it would be against
public policy to interfere in police work, discretion as to investigation and prosecution of crime and
efficient allocation of police resources if a common law duty is imposed to prevent crime. But Hill
makes clear that policy, if at all, plays a trivial role in determining duty.

Unfortunately, subsequent cases understood Hill to mean that policy reasons lie at the heart
of the duty question under common law: Osman v Ferguson (1993), Smith v Chief Constable of Essex
Police (2008) and Van Colle v Chief Constable of Hertfordshire Police (2009). In these cases, the HOL
refused to impose duty largely due to policy reasons. Nicholas McBride quotes Lord Toulson in
Michael v South Wales Police (2015) that policy is not central in the question of duty, whether on the
part of the police or others. Michael also emphasised that there was no ‘policy-based’ immunity to
assist the police, or public bodies in general and that the duty question was determined using legal
principle and not policy considerations. Lord Toulson defended Hill as a decision made on legal
principle, not policy. Lord Toulson also clarified that where it was a careless omission that caused
injury, the duty question should be determined simply by applying the legal principle on omission and
not policy.

The culprit case that is perhaps most guilty of dragging policy into the duty issue is Caparo
Industries v Dickman (1990). Caparo introduced the three-stage test: (i) reasonable foreseeability of
loss/ damage, (ii) sufficient proximity between parties and (iii) whether it would be just, fair and
reasonable to impose duty. Through the third element of the Caparo test, policy consideration now
became a real and actual part of the duty formula. If the Caparo test is used to determine duty, judges
must take into account policy consideration in deciding. If as a matter of policy, it would not be just,
fair and reasonable to impose duty, no duty will arise even if there is sufficient proximity and
foreseeability to impose duty. However, in Caparo’s defence, Lord Bridge explicitly qualified the utility
and role of the three-stage test (and thus, policy), limiting it strictly to novel cases only. The proper
approach to duty, according to Lord Bridge (quoting Brennan J in Sutherland Shire Council v Heyman)
is the incremental approach, which is to determine duty by reference to decided cases or existing
precedents on established categories of duty already available in law. The three-stage test was to be
used only where there was no precedent that could be applied to facts of the case before the Courts.

In this regard, it is accepted that policy is not always considered in deciding duty, but where
there is a lacuna in the law; where there is no applicable or relevant precedent or the relationship
between the claimant and defendant is novel, then the three-stage test is engaged. Courts need to
provide an answer as to whether duty does arise in the novel situation where there is no existing law
to refer to. In other words, where there is a need to develop the law, then the Courts will apply policy
considerations. Therefore, in response to the question, “NO”; Courts DO NOT always apply policy
considerations. Whether or not duty of care will be imposed in negligence cases DOES NOT
ULTIMATELY depend on policy considerations. Yet, at the same time, “YES”, it is undeniable that
Courts DO use policy considerations to DEVELOP THE LAW on duty of care.

There are many examples of cases in which Courts have used the three-stage test and have
been influenced by policy considerations to either impose or deny duty of care. Firstly, in Mulcahy v
Ministry of Defence (1996) it was held that it is not just, fair and reasonable to impose duty of care
where it would open the floodgates of litigation against the Defence Ministry in respect of injuries
sustained by soldiers during combat (‘combat immunity’). Also, in Caparo it was held that it was not
just, fair and reasonable to impose duty on an auditor for statements made to a shareholder in the
form of audit reports. The company auditor’s duty is owed to the company according to statute and
it would complicate the law for common law to interfere with statutory provision). Further, X v
Bedfordshire County Council (1995) the HOL held that it would not be just, fair and reasonable to
impose duty of care on a social worker in respect of decisions made pertaining to suspicions of child
abuse. The council is limited in terms of resources, is juggling conflicting priorities and its statutory
discretion must not be interfered with by common law, especially where the wording of statute clearly
gives the council discretionary power to decide as it sees fit, on a case to case basis. It would also be
improper for Courts to interfere and allow a claim under private law where statute does not intend to
allow a private law cause of action against a public body for common law remedies such as
compensation.

Recently, in Smith v Ministry of Defence (2013) the SC found that it is just, fair and reasonable
to impose duty of care on the Defence Ministry, by narrowing the scope of its ‘combat immunity’
accordingly, where its negligence had violated a soldier’s Article 2 ECHR rights. More recently, in
Woodland v Essex County Council the SC was swayed by the public policy that students who received
extra-curricular education through public schools should not be left without remedy where the council
delegated the task of teaching to a third party independent contractor. Baroness Hale emphasised
that there was no reason why the student in a public school should be disadvantaged when a private
school student would easily establish duty for failure to provide teaching with due care. Thus, in
Woodland, Lord Sumption held that even though the council had delegated the task of teaching
swimming to a third party, the legal duty of care remained with council under the principle of ‘non-
delegable duty’. Applying 5 principles, it was found as matter of principle that the council owed a duty
of care. Baroness Hale went further to caution against over-reliance on policy considerations: “The
common law is a dynamic instrument. It develops and adapts to meet new situations as they arise.
Therein lies its strength. But therein also lies a danger, the danger of unbridled and unprincipled growth
to match what the Court perceives to be the merits of the particular case. So, it must proceed with
caution, incrementally by analogy with existing categories, and consistently with some underlying
principle.”

This decision marks a return to conventional attitudes towards duty of care: a preference for
principle over policy in determining duty. In the landmark case of Robinson v Chief Constable of West
Yorkshire Police (2018), the SC clarified doubts on the role of policy in determining duty of care. Lord
Reid explained that firstly, there was no such thing as a universal three-stage test for duty of care
applicable in all negligence cases. Secondly, duty of care is to be determined using the incremental
approach, i.e. that Courts should start by asking whether the situation in question falls within an
establish category of duty. Otherwise, Courts should establish duty be reference to precedent. This
should be done by applying precedent directly where appropriate, and if no exact precedent can be
found, Courts should draw analogy to closest precedents that were decided by reference to the
foreseeability and proximity elements. Courts should not resort to policy considerations in
determining duty in every single case. Instead, the three-stage Caparo test, which allows the Court to
weigh in policy factors, should only be resorted to when the Court is being asked to depart from
precedent or develop the law.

Further, the approach to duty should not differ based on whether the defendant is a public or
private body. Public bodies are not shielded by any policy-based immunity and the same law that
applies to private bodies applies to public bodies too. Lord Reid also affirmed the approach taken in
Hill and Michael (refereeing also to Tofaris & Steel (2016)) as correct and clarified that the law on
duty is as explained in these cases: no duty to prevent harm under the omissions principle, unless
exceptions apply and for careless acts, the incremental approach applies. Policy considerations do not
afford special immunity to public bodies. The law is the same whether the defendant is a public or
private body. Policy considerations take a back seat in the determination of duty in general.
Notwithstanding this, more recent developments show that Courts will avail themselves to policy
considerations if necessary. In the recent cases of James Bowen v Metropolitan Police Commissioners
(2018) and ABC v St. George’s Healthcare NHST (2020), Courts resorted to the ‘just, fair and
reasonable’ component of the Caparo test to determine duty in these cases with policy considerations
in mind. Both these cases were decided after Robinson.

In James Bowen, the question was whether the defendant MPC owed a fellow police officer,
a duty of care not to undermine the police officer’s actions of wrongful arrest and damage his
reputation by conceding and accepting vicarious liability for the police officer’s supposed wrongdoing
in a civil suit by the victim. The Court referred to the precedent in Calveley v CC of Merseyside Police
(1989) that no duty was owed by the CC to safeguard to economic and reputational interests of a
fellow police officer. However, in James Bowen, the Court went further to add that it would not be
‘just, fair and reasonable’ to impose duty against the MPC in the circumstances as it would distort the
principle of vicarious liability, change the law of employer’s liability, open the floodgates of litigation
and result in defensive practices.

In ABC, the question was whether the defendant hospital owed the Claimant a duty of care,
to breach patient confidentiality in respect of an existing patient and disclose the patient’s diagnosis
to his daughter (the Claimant) so that the Claimant could protect herself from contracting the same
disease inflicting her father. One of the illnesses the father was diagnosed with was the result of a
genetic disorder, which could inflict the Claimant and her sister. The failure to disclose this to the
Claimant resulted in the Claimant and her sister conceiving. Later, when they too were diagnosed,
they argued that had they been informed, this would have influenced their decision as to whether
they would want to have children of their own, since the illness would affect their ability to care for
their children. The Court found that the question of disclosure in this case was novel (distinguished
from Montgomery v Lanarkshire AHA (2015) type of situations). Ultimately, although it would violate
‘patient confidentiality’ to impose a duty to disclose here, it was held that there are times when it
would be in public interest to impose a duty to disclose the diagnosis of a patient to a third party. In
such cases, like ABC, it would be just, fair and reasonable to impose duty, to prevent further harm.

These two cases show that policy considerations have not been wiped off the landscape of
the law on duty of care but are confined to novel situations, where it is necessary to develop the law.
Also, where it is in the interest of justice to depart from existing precedent, judges are free to allow
themselves to be influenced by policy considerations. The candidate is of the opinion that this is fair.
The candidate contends that the current law on duty is reasonable and fair. It now rests on a
commendable stand. Courts should abide by precedent and principle at all times, but the law also
retains flexibility by allowing judges to use the third limb of the Caparo test as a tool to depart from
outdated policy or develop the law where necessary.
 In conclusion, the candidate takes the view that the law is much clearer now after Robinson.
Policy considerations are not decisive in all cases on the issue of duty, and it is no longer true to say
that policy considerations will always apply when determining duty of care in all negligence cases
today. However, ‘policy’ remains an important part of the law of negligence and will be used sparingly
and where necessary to develop the law on duty of care. Over time, the law on duty of care has
undeniably been shaped greatly by policy influences. The role of policy has There is now a healthy
balance between principle, policy, consistency and flexibility in the law. The current law on duty of
care, is thus sustainable.

Sample 2:

2010 (ZA) Q4
“... [C]ases have made clear that, as a matter of law, if A owes B a duty of care, A must attain the
standard of a “reasonable person” in order to discharge that duty. In short, the duty is one to take
reasonable care. The Courts have recourse to a range of considerations in deciding whether this
standard has been met.” (Street on Torts) Discuss.

2012 (ZA) Q6:

‘Whether a defendant has breached the duty of care is a question of fact. But determining the
appropriate standard of care is a question of law and a number of factors are relevant to this
determination.’ Discuss.

2018 (October Q5)

Consider the extent to which the test for establishing a standard of care in negligence is truly objective.
Outline the judicial attempts and statutory intervention which aim to ensure that the standard of care
in negligence is not set too high.

Answer Guide:

The question relates to the issue of breach, in particular the standard of care and requires
evaluation of the factors/ considerations relevant to issue of standard of care. Breach is the second
legal criteria to establish negligence. It is also known as the fault element of negligence – in proving
breach, the claimant would be proving that the defendant acted carelessly. By proving carelessness,
the claimant will satisfy the fault requirement for negligent liability.

To determine breach, the Court looks at the standard of care fixed by law – thus, the standard
of care in negligence cases in a question of law. Next, based on the facts, it has to be determined
whether in the circumstances the defendant’s conduct fell below the legal standard of care. In general,
the standard of care that applies in negligence is the standard of the ‘reasonable man’/ the standard
of reasonableness: Blyth. This is an objective standard: Glasgow Corporation. However, the
reasonable standard of care varies in its degree based on certain factors and the particular
circumstances of the case.

For example, the reasonable standard of care in cases involving actions of children depends
on the age of the child and the ability to foresee danger at that age: Mullin v Richards. The reasonable
standard of care where the defendant was driving is that of the experienced, ordinary driver:
Nettleship v Weston. The reasonable standard of care when a driver experiences a sudden medical
circumstances or other emergency that impairs his ability to drive normally, depends on the nature of
the emergency, whether the driver was aware and whether in the circumstances, he reacted as he
most reasonably could: Roberts v Ramsbottom; Mansfield v Weetabix and Das International v
Manley. Where the defendant carried out a dangerous act endangering himself and another due to a
mental impairment, the reasonable standard of care remains that of a mentally able person: Dunnage
v Randall

Where the defendant caused harm to another while engaged in a sporting activity, the
reasonable standard of care is lower because it accounts for the fact that sportsmen understand risks
involved in the sport, the nature of the sport is such that it inevitable risks physical harm and that
momentary lapses of skill and errors in judgment are common: Simms v Leigh RFC and Caldwell v
Maguire. The standard of care owed to a spectator is also relatively low, because in the heat of
competition, a sportsman cannot be expected to afford a high degree of care to a spectator/
photographer nearby: Woolrigde v Sumner. The sportsman would only be deemed to have fallen
below the reasonable standard of care if there is something more than a lapse of skill, such as reckless
disregard for the safety of another or taking excessively dangerous risks while playing the sport, or
even engaging in conduct that goes beyond the rules of the game/ using force beyond what is normal
or permissible in the sport: Caldwell. However, where the competition or sports in being played at an
amateur or informal sense, the reasonable standard of care is higher – excessive force or heated
competition is not normal or necessary in such cases: Condon v Basi. Where a referee is concerned,
the standard of care expected is higher – the referee is trusted to ensure that the sport is played within
the rules, without clear recklessness, as safely as possible and that excessive force is not used:
Smoldon; Vowles

Apart from these considerations, other factors influence judges on the standard to be applies
as well as whether the defendant has fallen below the reasonable standard: Bolton v Stone (explain
case). Courts take into account the likelihood of harm in the defendant’s act – where the act is highly
likely to cause harm/ be dangerous to another, greater care is expected of the defendant – thus, the
reasonable standard is arguably higher and a failure to exercise sufficient care would result in breach:
Miller v Jackson (explain case).

Apart from these, courts also take into account the seriousness of harm – if the defendant’s
act risks very serious harm, greater care is warranted. The defendant is thus subjected to a “higher”
standard of care: Paris (explain case). Whether harm is foreseeable in the circumstances is also
relevant: Roe. If harm is not foreseeable because awareness of the dangers of the defendant’s act is
low, then the defendant is not expected to come up to a high standard of care. Courts also take into
account the practicality of precaution – if it would be impractical to expect the defendant to take
greater care for the claimant’s safety because it would be unduly onerous or costlier, the defendant
is not expected to do so and a lower degree of care is imposed: Latimer (explain case)

Finally, Courts also take into account whether the defendant was acting for the greater good,
or for the benefit of another, and compromised on safety to the claimant. Here, the courts take into
account the social utility of the defendant’s act: Watt v Hertfordshire; Tomlinson; Wilkin-Shaw v
Fuller (explain cases)

Apart from these common law factors, there are also statutory influences today on the
standard of care and determination of breach in negligence cases. Firstly, concerns were expressed
about the risk of a supposed compensation culture – the desire to seek out a party to be blamed for
one’s misfortune and to seek compensation against that party to redress one’s losses (Birmingham,
Brennan, McLaughlin & Tuitt)

The judiciary has also expressed the concern pertaining to the compensation culture and
responded by cutting back on liability – courts used policy reasons and the factor pertaining to social
utility to adopt a lower standard of care. By adopting a lower standard of care, the courts raised the
threshold for liability so high that it would be more difficult to find the defendant in breach/ liable. In
doing, courts could demonstrate a reluctance to compensate so that society as a whole would be
discouraged from suing so rampantly for every loss/ harm sustained. It was hoped that by judicially
discouraging litigation, the compensation culture would see a decline: Tomlinson

The fear is that if the compensation culture is on the high, defendants whose activities
generally carry great social benefit and utility may be deterred from continuing such beneficial
activities and may refrain from adding value and contributing to society. They may also resort to
unduly defensive practices that would improperly interfere with the good they do for society.

In Majrowski v Guy’s & St. Thomas’ NHST (2006), Baroness Hale stated: “There is already
concern amongst some of our legislators that the scope for claiming compensation, even for
recognised physical injuries, has gone too far. The avowed purpose of the Compensation Bill currently
before Parliament is to reign in the so-called ‘compensation culture’. The fear is that, instead of
learning to cope with the inevitable irritations and misfortunes of life, people will look to others to
compensate them for all their woes, and those others will then become unduly defensive or protective.”

Concerns about the supposed ‘compensation culture’ led to the government Task Force to
study the issue. In its report ‘Better Routes to Redress 2004’, the Task Force reported that “the
compensation culture was something of a myth but the public perception of people trying to claim
large amounts in compensation for supposedly dubious reasons results in real and costly burdens. The
Report pointed out that the threat of litigation, or just a complaint or a claim, can have some positive
effects, such as improved risk assessments in the case of schools and maintenance of work by local
authorities. The negative aspects of the “have-a-go-culture” were also recognised because as well as
genuine claims, local authorities spent considerable time and resources dealing with vexatious or
frivolous claims.

The concerns expressed by the Task Force and Baroness Hale resulted in the enactment of S1
Compensation Act 2006 – through S1, courts are required to take into account whether applying a
higher standard of care may discourage defendants whose activities are beneficial to the public or
cause them to resort to unduly defensive practices. The goal was to discourage a ‘risk averse society’.
S1 was taken into account in deciding subsequent cases such as Harris v Perry (2008) and Sutton v
Syston RFC (2011). In both these cases, the courts refused to adopt a high standard of care because it
would result in defensive practises and discourage healthy activities in society.

Later, in Scout Association v Barnes (2010), the defendant, Scout Association argued that it
should not be judged against a high standard of care because of the social value of its activity.
However, notwithstanding the factor of social benefit and S1, the court found the defendant in
breach. A higher standard of care was adopted because the defendant had organised an activity for
young boy scouts which was dangerous in that the likelihood of harm and seriousness of injury was so
great that the social value of the defendant’s activity was undermined. That the defendant, as the
Scout Association was a body that was set up to benefit society, was of little help to the defendant
here. This case showed that even though S1 encouraged fewer findings of liability to discourage
compensation, courts hand not abandoned common law factors, and were still very much influenced
by them. Courts would balance different factors and apply them to the facts of the case based on
fairness and reasonableness.

English courts worked well with the common law factors and were well-equipped by them to
decide breach accordingly. Courts knew how to balance between the different factors and apply them
appropriately. Judicial opinions showed that judges were perfectly capable of controlling the
supposed compensation culture without statutory intervention: Tomlinson; Scout Association and
Uren v Corporate Leisure (2013). In Uren, Foskett J commented that S1 CA 2006 was out of step with
modern attitudes. It is not that common law is incapable of suppressing the risk-averse mentality of
modern society. It is just that modern society is risk-averse for its own reasons and will remain that
way regardless of laws and the supposed compensation culture. In Scout Association v Barnes, the
court also commented that S1 was simply a reiteration of the common law factor of social benefit/
utility.

Despite this, Parliament went on to pass the Social Action, Responsibility and Heroism Act
2015 – to further discourage a risk-averse attitude in society, and turn down the compensation
culture. In ‘Legislating Dangerously: Bad Samaritans, Good Society and the Heroism Act 2015’, Rachael
Mulheron described the SARAH Act 2015 as “unnecessary, unambitious and tumultuous’.

S2 merely enacted the common law factor of social utility/ benefit. Rachael Mulheron argues
that enacting the social benefit factor not once but twice was unnecessary (first in S1 CA 2006 then in
S2 SARAH Act 2015). Mulheron argues that common law is simply being repeated. Yet, common law
is more apt in keeping with changing social attitudes. It allows judges to balance factors in a more fact-
sensitive manner. But S1 CA 2006 and S2 SARAH Act 2015 seem to set in stone, the importance of
social utility only. Common law is more diverse in the factors it applies to the decision-making process
whereas statute fixates on the singular objective of tackling the compensation culture and risk-averse
attitudes in society. Common law is fairer and more flexible: Mulheron.

Mulheron also argues that S1 CA 2006 and S2 SARAH Act 2015 do not actually change the law
in any way, or introduce a new factor. However, Mulheron acknowledges the views of Shailesh Vara
(Parliamentary Under-Secretary of State for Justice) moving from common law to S1 and then to S2
is significant. S2 makes it mandatory to consider the social benefit factor whereas under common law
and the old S1, courts had the discretion not to. Mulheron also acknowledged the views of Lord Faulks
that S1 allows the court to take into account the impact of setting a high standard of care on the future
of socially beneficial activities whereas S2 requires the court to take into account the social benefit in
the present case. Lastly, Mulheron also acknowledges that if anything, S2 now clarifies that out of all
the common law factors, social benefit/ utility takes precedence over other factors, and in a finely
balanced case, S2 will force courts to tilt the scale in favour of prioritizing the social benefit.

Mulheron added by virtue of S3 SARAH Act 2015, where relevant, courts must now also take
into account whether the defendant has shown a ‘predominantly responsible approach’ in its conduct
prior to the alleged negligent act for which he is being sued. Mulheron describes this provision as
tumultuous because it allows courts to take into account whether the defendant’s conduct is usually
(“predominantly”) careful, irrespective of how the defendant acted in the present instance. Mulheron
criticises S3 because it determines the defendant’s fate in the given case based on his past track record
and his usual conduct. This will skew the balance in favour of defendants, especially employer
defendants who may not have faced many employer’s liability lawsuits in the past. Such employers
will use S3 to argue that they are able to show a “predominantly responsible approach” in their
conduct as employers and the fact that they may have been negligent in the particular case may be
discounted so as to enable them to escape liability.

Mulheron also criticises S4 SARAH Act 2015 for allowing courts to adopt a lower standard of
care in favour of defendants who were acting heroically, intervening in emergencies to assist or rescue
others. Mulheron argues that S4 is unnecessary because under common law, courts are already in the
habit of adopting a lower standard of care in favour of rescuers, being mindful of the fact that rescuers
operate under pressured circumstances. S4 was further described as “unambitious” because it is
poorly worded, and lacks definition and clarity on how the section should be applied. Mulheron
compares S4 with other “Good Samaritan” legislations of other countries and finds that S4 is either
too broadly or loosely worded to have any real useful effect.
 To conclude, today, the standard of care in negligence and the question of whether the
defendant has fallen below it, stand to be determined not only by the application of common law
factors. Statutory factors must now be applied where relevant. The variety of tools available at the
disposal of judges may serve to confuse. However, they exist to aid judges in striking a balance
between the need to compensate and, at the same time, the importance of discouraging the
compensation culture. Judges have to be cautious when determining the appropriate standard of care
in various cases. The law must continue to dictate and enforce acceptable standards of behaviour in
society. At the same time, the standard of care adopted in negligence should dispel fears of being sued
for even the slightest mistakes. Judges must find a way to apply statutory and common law factors in
such a way as to encourage society to freely take risks and engage in socially beneficial, responsible
and heroic activities without over-caution and a sense of risk-averseness.

Sample 3:

2012 (ZB) Q6
“The law tampers with the “but for” test of causation at its peril” (Sienkiewicz v Greif (UK) Ltd (2011)
per Lord Brown). Why, and in what circumstances has the law departed from the ‘but for’ test? Has
this been a good thing or a bad thing?

Suggested Answer:

The quote in question touches on the relevant area of factual causation, a necessary element in
establishing liability for negligence. Lord Brown’s words taken from Sienkiewicz suggest that English
courts meddle with the application of the “but for” test when deciding negligence claims, and that
this practice is risky. Indeed, an analysis of relevant decisions do show that judges have altered the
“but for” test to accommodate factual circumstances in which there was difficulty establishing
causation in the ordinary manner. The candidate is of the view that this is often done for justice and
policy reasons, the merits of the case demand imposition of liability and compensation. In answering
this question, the candidate will first explain the orthodox rule on factual causation, i.e. the “but for”
test, and then proceed to discuss the cases in which the law has tampered with the “but for” test. The
candidate will also examine why and when this is done, and whether or not this ‘tampering’ goes too
far as to potentially undermine the clarity and certainty of the law of factual causation.

The general rule on factual causation, in the words of Lord Denning in Cork v Kirby (1952),
requires one to determine whether the claimant’s injury or loss would or would not have happened if
not for the defendant’s carelessness. If the claimant’s injury would have happened anyway (with or
without the defendant’s carelessness), then the defendant’s carelessness cannot be said to be the
cause of injury. Factual causation usually focuses on forming a factual connection between the
defendant’s negligence and the injury to the victim. As a general rule, this connection exists where
the claimant can prove on the balance of probabilities that but for (if not for) the defendant’s
negligence, he would not have suffered that injury. This is best illustrated in the case of Barnett v
Chelsea Kensington HMC (1969) where a doctor on duty was deemed to have breached his legal duty
in failing to attend to patient (the claimant) who complained of vomiting and later died of arsenic
poisoning. The question was whether the patient would have died but for the doctor’s failure to
examine. It was found based on expert forensic evidence that even if the doctor had examined the
claimant at the material time, the arsenic poisoning could not have been treated before death. The
patient would have died in any event. Thus, the death could not be attributed to the doctor’s
negligence.
 It is apparent that the ‘but for’ test is relatively simple as it seeks a direct link between the
defendant’s fault and the victim’s injury to justify compensation out of the defendant’s pocket.
However, there is not always a clear and definite answer to the ‘but for’ test. Sometimes there are
evidential uncertainties. A good example of this would be where multiple factors or potential causes
are at play at the same time, and it is impossible to decide (due to inconclusive evidence), which of
these multiple factors is THE cause. This creates a stifling dilemma for judges and causation suddenly
becomes an overwhelming bump in the road. If the question of causation is decided wrongly, someone
who is not truly responsible for the claimant’s injury could unfairly be forced to pay compensation. On
the other hand, strict adherence to the ‘but for’ test where there are evidential difficulties, could
harshly result in the outright rejection of the claim. The unfortunate claimant, through no fault of his
own, is unfairly punished by an evidential burden that is simply impossible to discharge. As such, in
situations where there is an evidential difficulty or multiple possible explanations for the claimant’s
injury, the courts have opted for lesser forms of the ‘but for’ test. The purpose of the tampering, is
often to aid the claimant, and not the defendant. Popular excuses for moving in a more lenient
direction, include the need for compensation where very serious injury has been caused AND the
defendant’s responsibility for endangering the claimant, inexcusable fault and ability to compensate.

The first instance of a modified approach can be seen in Bonnington Castings Ltd v Wardlaw
(1956) where the claimant contracted pneumoconiosis, having been exposed to silica dust while
working in the defendant’s workshop. The problem was that there were two sources of the dust, one
innocent (the employer was not in breach for this exposure as it was inevitable) and one tortious (the
employer was found in breach for this exposure as it could have been minimized with care). To use
the “but for” test to resolve causation on these facts would have been futile, since it was not possible
to show (due to lack of evidence), whether the disease could have been avoided with care on the
employer’s part, or whether it would have occurred anyway, since there was more than one source
of silica dust. It was held as long as the defendant contributed to the claimant’s disease, and this
contribution was material (not too minimal), it would be deemed to have caused the disease. Since in
this situation it was known that the disease is caused by gradual accumulation dust in the lungs, it was
possible for judges to conclude that the tortious exposure did material contribute to the disease (it
was a material contributor as it was one of only two contributors). Factual causation was thus
established. This approach has come to be known as the ‘material contribution’ test. The tampering
of the “but for” test here was seen to be necessary to deliberately establish a causal link, to justify
making the employer pay. There would be no injustice to the defendant employer because the
employer was insured and the risk of harm could easily have been avoided with due precaution. The
advantage of this approach is that it makes compensation possible and hold employers accountable.
However, the problem with this approach is that causation is being determined based on assumption,
and a defendant is paying compensation even if in truth, his carelessness may not actually have caused
the injury.

Another instance in which judges departed from the “but for” test, was in McGhee v National
Coal Board (1972). Here the claimant contracted dermatitis as a result of negligent exposure to brick
dust, the defendant employer’s fault being that washing facilities were not adequately supplied. The
result that the claimant had to cycle home with the dust on his skin for an extra hour. The issue was
that it was not known whether the increased exposure and contact with brick dust actually caused
dermatitis, or whether dermatitis would have developed anyway. Expert evidence was inconclusive
on this issue, and this meant that there was no way that question of cause could be answered using
the “but for” test. Unlike Bonnington, the difficulty in using the “but for” test on McGhee’s facts did
not lie in the problem of multiple causes (because there was only one possible cause – increased
exposure to brick dust). The problem lay in the fact that it was difficult to make a firm and sure causal
connection between the increased exposure and dermatitis, in the absence of concrete evidence.
Instead of concluding that causation simply could not be determined, the court held that although
‘cause’ and ‘contribution’ could not be ascertained, it is commonsensical to conclude that the risk of
contracting dermatitis had been materially increased by the defendant’s neglect. To the judges, this
commonsense inference on facts sufficed. Causation was thus satisfied on the basis of ‘material
increase in risk’. This is said to be the most radical departure from the ‘but for’ test as causation is
inference-based and indirect. This departure was so radical that the HOL in the subsequent case of
Wilsher v Essex CC (1998) refused to accept McGhee as creating a binding legal test, and called it a
“fictional inference drawn on facts.”

The candidate argues that the judicial creativity, flexibility and leniency shown in McGhee was
probably justified, as employers do truly subject employees to serious risks of harm, in their somewhat
selfish pursuit of a variety of profit-making activities. Judges thought it only fair that loss must be
borne solely by the risk-creating and insured employer, in the same way that profit is solely enjoyed.
The danger of this approach, however, lies in the fact that once again, insured or not, an employer is
being held liable in circumstances that are not entirely fair; (i) it has not been proven with certainty
that installing washing facilities would have avoided the possibility of dermatitis altogether; (ii) the
claimant may have gone on to develop dermatitis anyway after several more years even with ample
care by his employer; and (iii) dermatitis was probably an inherent and unavoidable risk of his job,
which he presumably consented to. It is arguably unfair that ultimately the employer is being held
liable to pay for a risk which his employee consented to.

Notwithstanding, the McGhee principle was later accepted and developed further in
mesothelioma cases. This started with the HOL’s decision in Fairchild v Glenhaven Funeral Services
(2002). The precise etiology of mesothelioma is unknown to medical science but it is strongly
associated with exposure to asbestos dust. The problem, much like in the case of McGhee was that
there was no evidence as to the onset of the disease, said to be triggered by a single strike of an
asbestos fiber that penetrates the cells of the lung. Many who were exposed to asbestos at work were
diagnosed with mesothelioma (a type of fatal lung cancer) and a common feature in all mesothelioma
cases, was that it was impossible to determine the when the disease struck. In Fairchild, the claimant
sued his then employer for failing to take reasonable care resulting in harmful exposure to asbestos,
resulting in mesothelioma. However, the claimant’s previous employer too was guilty of the same
negligence, and the claimant faced difficulty proving which of his employers was ultimately
responsible for his condition, since he could not show when the first fatal strike occurred. To try and
resolve causation using the “but for” test in such circumstances would have been pointless. The
impossibility of proving causation led the Court of Appeal to conclude that causation simply could not
be proven and the defendant, not liable. The HOL found this decision to be illogical because it simply
doesn’t account for the fact that either one of the employers (if not both) must have caused the
disease (there was no other explanation for mesothelioma on the facts). It was also unacceptable to
the HOL that the COA’s decision allows the wrongful employer to “get away” with not paying for his
negligence. The effect of the claimant not being able to prove what is already scientifically unprovable
is that the defendant unfairly gains complete immunity. Therefore, Lord Bingham when faced with
two potential injustices (as mentioned earlier in the essay) decided that the potential injustice of
speculatively imposing liability on a ‘duty breaking’ employer in these circumstances is heavily
outweighed by the injustice of denying remedy to a victim. To pave way for a more logical and fair
outcome, the HOL chose to apply the ‘material in risk’ approach subject to six conditions, and simply
asked whether on a balance of probabilities, it would be correct to conclude that the harmful exposure
by the defendant did materially increase the risk of mesothelioma to the claimant. The six conditions
were met on the facts and the HOL proceeded to conclude that the material increase in risk test was
satisfied. Given that mesothelioma is a single strike disease, it was held that in causing the claimant
to inhale asbestos fibers at work for a prolonged period both employers had materially increased the
risk of the disease, and both would satisfy causation. The court found that in principle, both employers
were jointly and severally liable to pay damages in the full sum claimed. However, damages were not
apportioned between the two employers as the claim was brought only against one, and it was in the
interest of justice that the claimant received the full amount claimed against whichever employer he
sued.

It is clear that evidential difficulties have led the courts to modify the ‘but for’ test, especially
where they involve ‘duty-breaking’ employers. This is certainly well-intentioned and perhaps serves
to influence employers to practice higher standards of safety at work. However, in this undeniably
remains troubling for employers (and their insurers), that the Fairchild approach results in only one
party bearing the full weight of compensation, even where there are others at fault. The criticism that
inevitably follows is that the decision in Fairchild is one-sided, impractical and not reflective of the
reality of fault. The subsequent case of Barker v Corus (2006) appeared to “smoothen the roughness
of justice”. Lord Hoffman in Barker applied the principle in Fairchild to conclude that the defendant
in Barker did materially increase the risk of the claimant developing mesothelioma, even if his
negligence amounted to only one of three sources of asbestos (the claimant’s former employer and
own self-employment being the other two sources). However, the injustice created by the concept of
‘joint and several’ liability in Fairchild was addressed by introducing the idea of proportional liability
instead. The defendant employer was held liable only for his share of contribution to the disease under
the proportionate recovery rule. The idea was that the extension of the causation test should not stop
at establishing a causal link but include the characterization of damage as “creation of risk”. Therefore,
each defendant should only be liable in proportion to the exposure he caused.

Up to this point there appeared to be a good balance between the need to compensate for
the injury and avoiding the imposition of unwarranted liability for the defendant. However, the
introduction of S3 Compensation Act 2006 on liability for mesothelioma claims, effectively removed
the proportionate recovery rule vis a viz mesothelioma claims and now provides that henceforth,
defendants would be jointly and severally liable for the whole of the damage, and will pay full damages
irrespective of whether there were other causes of mesothelioma. As a result, the combination of the
Fairchild principle and the Compensation Act 2006 is admittedly, “draconian” and tilts too much in
favor of the claimant in mesothelioma cases. However, this limited to mesothelioma cases, and the
lack of scientific evidence in such cases. If advancements are made that make it possible to determine
precisely which exposure caused the disease, the claimant will no longer be entitled to recover against
all defendants, or make one defendant liable for the entire damage. This is evident in Sienkiewicz v
Greif (2011). The Fairchild approach combined with liability according to S3 CA 2006 was applied here,
with the result that the defendant employers was found liable to pay full damages for mesothelioma,
even where his share of contribution to the disease was only 18% and the remaining percentage of
contribution came from the environment surrounding the claimant’s home. Lady Hale in the SC
justified this decision on the grounds that mesothelioma was a serious disease, knowledge about the
disease was limited, employers need to take more precaution and the claimant should not be unfairly
prejudiced by the evidential burden, given she is an unfortunate victim of a fatal disease. In stark
contrast comes Lord Brown’s view in the quote in question, which seems to warn against an overly
lenient attitude to causation seen in Bonnington, McGhee and Fairchild stretched further in
Sienkiewicz. These decisions have evolved into binding precedents that give judges valid legal grounds
to abandon the “but for” test as needed. However, Sienkiewicz does make clear that the application
of the Fairchild principle is limited to circumstances involving mesothelioma and similar diseases
where there is the same rock of evidentiary uncertainty, which even science cannot overcome. Other
than mesothelioma cases, claimants should “expect little flexibility from the courts in their approach
to causation”. This indicates a clear boundary for the application of ‘increase in risk’ principle. It does
not replace the “but for” test or challenge its priority/primacy.

At the same time, the material contribution test developed further in Bailey v MOD (2008)
and Wright v CMG (2012). These cases have extended the test to medical negligence cases, allowing
judges to find a causal link between negligent medical treatment and ultimate injury/disease suffered
by claimants, as long as such negligence were more than minimal or not negligible in the
circumstances. In Bailey and Wright, it was expressed that there is no reason why the ‘material
contribution’ test should be limited to policy justifications arising in employee-employer cases. The
test can now be used in medical cases, where the negligence of a doctor was one of two or more
possible causes of the claimant’s condition. These developments show a shift from cases such as
Bolitho v City & Hackney HA (1996), Chester v Afshar (2004) and Wilsher, wherein the strict “but for”
test was preferred in medical negligence cases. Even though rigid application of the “but for” test
posed problems in Bolitho, Chester and Wilsher (having to apply the “but for” test hypothetically and
the presence of more than one possible cause), judges were not moved to modify the “but for” test
for a more lenient approach, because arguably, there were no pressing policy reasons. Judicial attitude
to causation has certainly changed over the years, with judges making value-based decisions allowing
themselves the freedom to sometimes ignore or tamper with the “but for” test. Today, it appears, the
first modified new approach, namely the ‘material contribution’ test, is preferred where there are
more than one possible explanations for the claimant’s injury, all occurring at the same time. The
second modified approach, namely the ‘material increase in risk’ test, is preferred in mesothelioma
cases, or cases similar in the sense of having an evidential gap that simply cannot be determined due
to lack of scientific knowledge. Apart from these circumstances, judges do not modify the “but for”
test or depart from it at their whim and fancy. Although such tampering of the standard test may be
perilous and questionable in certain circumstances, it is submitted that the departure/modification is
not dangerous or unjustified. Judges allow modifications in a considered fashion and not haphazardly.
Only truly meritorious cases see departure or tampering

Thus, in conclusion, it is true that the law does tamper with the ‘but for’ test and clearly so in
favour of the claimant. However, it is respectfully submitted that the there is no great peril in the
tampering of the “but for” test. Modifications have been genuinely justified where they have been
carried out. Moreover, it is apparent that the courts have developed the principle within narrow limits
– scientific advancements would change the manner in which causation will be decided. The law has
not lost clarity and consistency just because of the occasional tampering of the “but for” test. Apart
from the situation involving mesothelioma cases, the candidate takes the view that the flexibility
afforded by the practice of tampering with the “but for” test is of great assistance, although at the
cost of certainty. Nonetheless, it important to be mindful that the issue of factual causation remains
one of the most puzzling mysteries in Tort Law. After all, strict adherence to the ‘but for’ test is capable
of resulting in injustice and absurdity (Cook v Lewis (1952). With that in mind, perhaps it is justified
that the law should be free to tamper with the “but for” test, even at its own peril.

General Negligence: General Defences (Combining Chapters 2, 3, 7, 8, 9 and 10)

Problem Questions

Sample 1:

2011 (ZA) Q8
Zeta and Sigma planned to rob a branch of the Scrooge Bank in Toytown. They asked a friend Pi to
drive them to the scene. They knew that Pi had a number of convictions for motoring offences and
was at the time disqualified from driving. When they reached the scene, they asked Pi to wait in a
nearby side street with the engine running in order to make a quick getaway. The bank staff managed
to raise the alarm and Zeta and Sigma fled empty-handed. Zeta managed to get into the car, but Sigma
was only half in when Pi panicked and set off. Sigma was thrown out of the car and suffered serious
injuries. Pi drove at speed out of Toytown. He saw Kappa crossing the road some distance ahead and
kept his hand on the horn as he sped towards him. Kappa was panic stricken and stayed rooted to the
spot. Lambda, a pedestrian, saw what was happening and tried to pull Kappa back. Pi swerved at the
last moment and almost avoided Kappa and Lambda, but struck them a glancing blow, knocking them
over and causing serious injuries. After they left the town, Pi set off for home driving within the speed
limit. However, Zeta started arguing with Pi about the way he had left Sigma behind. Pi’s attention
was distracted and he failed to notice a broken-down van at the side of the road. He drove into it and
caused serious injuries to Zeta, who was not wearing his seat belt at the time. Advise Zeta, Sigma,
Kappa and Lambda.

Suggested Answer:

The facts in question give rise to claims that may be brought under negligence. Parties are
advised that in order to establish negligence, the elements of duty of care, breach, causation and
remoteness have to be satisfied: Lochgelly Iron v McMullan (1934); The Wagon Mound (No. 1)
(1961). The candidate will also discuss general defences that may be raised in response to the
respective claims. Zeta, Sigma, Kappa and Lambda will claim against Pi in respect of their serious
injuries. Each claim will be considered as follows.

Sigma v Pi:

Sigma was thrown out of the car and suffered serious injuries when Pi panicked and set off
before Sigma could get into the car completely. Sigma will argue that as Pi’s passenger, he was owed
a duty of care. In Robinson v Chief Constable of West Yorkshire Police (2018) it was held that duty of
care may be determined using the incremental approach, i.e. that the test for duty laid down in Caparo
Industries v Dickman (1990) need not be applied where precedents exist to determine the issue of
duty. Analogy may be drawn to decided cases. The law is clear that road users owe one another a legal
duty of care, all the more so drivers and their passengers: Nettleship v Weston (1971). Applying this
precedent on the facts, Pi owes Sigma a duty of care.

Next it has to be shown that Pi has breached the legal duty. In Blyth v Birmingham
Waterworks (1856) it was held that negligent liability is judged based on the standard of a reasonable
person. Further, in Glasgow Corporation v Muir (1943) it was held that the reasonable man test is an
objective test that doesn’t take into account the defendant’s particular characteristics. In Nettleship,
it was held that in the context of driving, drivers are expected to come up to the standard of the
ordinary, experienced driver. It is submitted that the fact that Pi was involved in a robbery does not
give him the benefit of being judged against a lower standard of care. Applying the ordinary
reasonable man standard, Pi’s manner of driving would clearly fall below the standard and Pi will be
found in breach.

It then has to be determined that Pi’s careless driving caused Sigma’s injury. The ordinary test
for factual causation is the ‘but-for’ test enunciated in Cork v Kirby (1952) and applied in Barnett v
Chelsea & Kensington HMC (1969). It is submitted, ‘but-for’ Pi’s careless driving, Sigma would not
have suffered injury. The chain of causation is satisfied on the facts between Pi’s breach and Sigma’s
injury. Finally, it has to be shown that Sigma’s injuries are not to remote. The Wagon Mound case
states that where the type of injury suffered is reasonably foreseeable as a consequence of the
defendant’s carelessness, then it will not be too remote. It is submitted that Sigma’s injuries are clearly
foreseeable and not too remote. Thus, the criteria for negligence are satisfied against Pi.

Pi would want to raise the defence of illegality against Sigma. The maxim ‘ex turpi causa non
oritur actio’ expresses that it goes against public policy to allow the claimant to recover damages for
loss which was the consequence of his own illegal act (Lord Hoffman, Gray v Thames Trains Ltd.
(2009). Lord Hoffman also clarified that the policy driving the defence is not based upon a single
justification but a variety of reasons unique to facts of cases. Recently in Les Laboratoires Serviers v
Apotext (2015) Lord Sumption explained that it must first be determined whether the claimant’s
illegal act forms the turpitude of the defence. Criminal acts, quasi-criminal acts, dishonesty and any
wrongdoing that goes against public conscience would form the turpitude of the defence. On the facts,
Sigma was involved in a joint criminal enterprise to commit robbery which would clearly turpitude for
the purposes of the illegality defence. It then has to be determined whether the illegal act caused the
injury in question: Flint v Tittensor (2015). In Ashton v Turner (1980) the claimant’s involvement in
robbery resulted in his injuries when trying to flee the robbery scene. Similarly, in Joyce v O’Brien
(2013) the Court found that it was in committing theft that the claimant suffered injury. It was held
that the illegal act barred the claim because it could be foreseen that participating in such act would
result in injury. Applying these to the facts, it is submitted that Sigma’s illegal act directly caused his
injury. As such, Sigma’s illegal act will bar his claim and he is likely to fail.

Pi may alternatively raise the defence of volenti non-fit injuria which translates: ‘no harm is
done to a willing person’. To succeed in raising this defence, Pi has to prove that (i) Sigma knew and
fully understood the risks of harm in their joint activity (Bowater v Rowley Regis Corporation (1944)
and (ii) that he willingly and voluntarily accepted the risk concerned (Nettleship ). Pi would argue that
Sigma willingly accepted the risk of harm in the circumstances since he agreed to be Pi’s passenger
and to participate in robbery together. It is submitted, however, that in light of S149 Road Traffic Act
1988, a driver may not rely on the agreement of his passenger to defeat the passenger’s claim against
the driver in respect of injuries sustained in a road traffic accident, in circumstances where motor
vehicle insurance is mandatory. This was applied in Pitts v Hunt (1991). Since Pi was driving at the
time, he is subject to the mandatory motor vehicle insurance provision that further prevents him from
arguing the volenti defence against Sigma, his passenger. In any event, it is submitted per Nettleship
that a passenger would only be regarded as volens where his actions suggest that he waives his right
to claim against the driver in the event of injury. This is not demonstrated on the facts and as such,
the volenti defence will not assist Pi here. In any event, Sigma’s claim will fail as discussed above on
account of the illegality defence.

Kappa v Pi:

Kappa was struck by Pi and suffered serious injuries when Pi, driving at high speed, failed to
stop in time, knocking him down. Kappa would argue as discussed above, that Pi owed him a duty of
care since they were fellow road users at the same time and place, that Pi breached this duty by driving
recklessly and caused his injuries. It also clear that Kappa’s injuries are foreseeable and thus not too
remote.

However, Pi would argue that Kappa had been contributory negligent at the time.
Contributory negligence is a partial defence. In order to successfully rely on this defence, the
defendant has to prove that the claimant (i) was at fault or failed to take reasonable care for his own
safety, (ii) that this caused or contributed to the claimant’s injury and (iii) that injury is reasonably
foreseeable in the circumstances due to the claimant’s actions: Jones v Livox Quarries (1952). If these
requirements are met, S1(1) Law Reform (Contributory Negligence) Act 1945 applies to state that a
finding of contributory negligence does not defeat the claim altogether but would result in the
reduction of the claimant’s damages based the claimant’s share of fault for his injury, as deemed just
and fair by the Courts. Pi would argue that Kappa failed to take care in that he did not look before
crossing and that even when he did notice Pi approaching at high speed and sounding his horn. The
claimant in Baker v Willoughby (1970) was found contributory negligent for failing to look carefully
before crossing the road and for failing to notice the defendant’s vehicle approaching. His damages
were reduced by 50%. Pi would rely on Baker arguing that Kappa’s damages should be reduced. Pi
would argue that Kappa’s failure to notice Pi’s car approaching and move out of the way caused his
injury.
 However, Kappa may want to rely on the dilemma principle applied in Jones v Boyce (1816).
Where the defendant’s negligence puts the claimant in imminent danger and the claimant acts
reasonably in the agony of the moment out of a reasonable apprehension of danger, he will not be
found contributory negligent. In Jones, it was held that the claimant’s decision to jump out of an
unstable wagon was reasonable and the defendant had indeed put him in imminent danger. Thus, it
was justified that the dilemma principle would apply in the claimant’s favour. However, the same
cannot be said on the present facts, as although Pi’s actions did put Kappa in imminent danger and
any apprehension of danger on Kappa’s part would be reasonable, Kappa’s response is likely to be
regarded as unreasonable. He could have been expected to move away. If this is accepted, the
dilemma principle will not assist Kappa and he is likely to be found contributory negligent. It is
concluded here that while Kappa’s claim against Pi will succeed, damages are likely to be reduced on
account of his own carelessness.
Lambda v Pi:

Lambda was a pedestrian at the time of the accident. He was injured in the same
circumstances as Kappa since he was with Kappa when Pi struck them both. Lambda was injured when
acting as a rescuer trying to save Kappa. As discussed above for Kappa, Lambda will similarly fulfil the
requirements of duty, breach, causation and remoteness and would successfully establish negligence
on Pi’s part.

However, Pi would raise the defence of volenti non-fit injuria discussed above, arguing that
Lambda intervened voluntarily. Pi may argue that the danger of injury was obvious in the
circumstances and that Lambda willingly accepted the risk of injury when he stepped forward in
harm’s way. However, in Baker v Hopkins (1959) it was held that a rescuer who risked his life despite
being aware of danger did not willingly and voluntarily accept risk. The same was upheld in Haynes v
Harwood (1935) in respect of a police officer who intervened and acted under a moral and legal duty
to prevent harm. Further, in Chadwick v British Railways Board (1967) it was confirmed that the
volenti defence will not apply in cases where a rescuer puts himself at risk in an attempt to save life
or limb. This is because there is no real willingness to run risk. Instead, a rescuer acts in view of a
pressing moral obligation and out of social necessity. In any event, public policy requires that Courts
allow the claim of rescuer to encourage the notion of the ‘Good Samaritan’. On the facts, Lambda
acted in view of real and serious danger to Kappa and his actions were necessitated by Pi’s
recklessness creating the danger in the first place. In the circumstances, Pi will not be able to rely on
the volenti defence against Lambda.

He may instead, try to rely on the contributory negligence defence. However, it is submitted
that Lambda’s act of intervening to save Kappa is unlikely to be regarded as ‘fault’ or a ‘failure to take
care’ on his part. In the circumstances, Lambda is likely to succeed against Pi for the measure of
damages sought.

Zeta v Pi:

Zeta was not injured in the course of their joint criminal enterprise but much later after the
robbery attempt. Zeta was not wearing a seatbelt and was injured when Pi, distracted, collided with
another vehicle on the side of the road. It is argued that Zeta will also be able to establish negligence
against Pi on the facts. Duty is clearly owed since Zeta is Pi’s passenger and breach is also established
since Pi was not concentrating and became distracted, losing control of the car. It is submitted that
notwithstanding that it was Zeta who started the argument, it is unreasonable for Pi to lose focus
while driving; and as such, his conduct falls below the reasonable standard of care. Had Pi been driving
with care and attention accordingly, he would not have collided with the other vehicle and Zeta would
not have been injured. As such, factual causation is also satisfied. The injuries in question are also
clearly foreseeable, thus, not too remote.

As discussed above for Sigma, it is likely that Pi would also try to rely on the illegality defence
to defeat Zeta’s claim. Zeta had, after all, been involved in the robbery not long before the final
accident resulting in his injury. Zeta is involved in the illegal act of a ‘hit and run’, in that he continued
travelling with Pi’s in his car even after they had caused an accident involving Kappa and Lambda, and
left them in an injured state. Pi would argue that these illegal acts on Zeta’s part ought to bar his claim.
Indeed, applying Lord Sumption’s guidelines in Les Laboratoires above, Zeta’s wrongful acts would
form the turpitude of the defence as they are indeed criminal in nature. However, the causal
connection between Zeta’s illegal acts and his injury may be lacking on the facts. In Delaney v Pickett
(2012) it was held that the claimant’s illegal possession of drugs at the material time did not bar his
claim, because it was inconsequential to the injury sustained. It was the defendant’s careless driving
that was responsible for his injuries. Applying this to facts, it is similarly clear that Zeta’s injuries did
not result from or arise out of his illegal acts, but were caused by Pi colliding into the van on the side
of the road. As such the illegality defence will not apply.

Pi may try to argue that Zeta was volens, in that he was aware of the risk of injury in
participating in a robbery with Pi and travelling with him, but by going along with Pi, he willingly
accepted such risks. Here, Pi would want to rely on the volenti non-fit injuria as discussed above for
Sigma. However, as discussed above, in view of Pitts v Hunt and S149 RTA 1988, the volenti defence
will not apply here. As a last resort, Pi may rely on the contributory negligence defence instead. The
law on contributory negligence is as discussed above. On the facts, Zeta’s failure to fasten the seatbelt
at the time is highly likely to be regarded as fault on his part. Provided it can be shown that this failure
either entirely caused, or contributed in part to his injury, the contributory negligence defence would
be made out. Applying S1(1) and Froom v Butcher (1975). Zeta’s damages may be reduced taking into
account the extent to which a seatbelt may have minimised or prevented injury altogether.

In conclusion, it is submitted that Sigma’s claim is highly likely to fail. Kappa and Zeta are likely
to be successfully in their actions, but their damages are likely to be reduced in view of contributory
negligence on their part. As for Lambda, he is likely to succeed in recovering damages in full. Pi will be
liable accordingly.

Sample 2:

2014 (ZA) Q7
Jason, aged 19, was left at home to look after his 13-year-old brother, Sam. Sam and Jason were
watching television and Jason was drinking beer and smoking cannabis (a drug) when Jason's friend,
Tony, arrived at the house in a car. Tony boasted that he had taken the car from the front pavement
of a house located about fifteen minutes away from Jason's house. The car keys had been left in the
ignition. Tony persuaded Jason and Sam to go for a drive in the car. The car was a new, top of the
range sports car and Tony (who was a learner driver) had some difficulty in controlling it - especially
since Sam was urging him to go faster and faster. After 10 minutes in the car, Jason realised that they
were being followed by a police car and informed Tony who panicked, swerved and drove into a tree.
Tony was uninjured but Jason, who was in the passenger seat and was not wearing a seat belt, was
seriously injured, suffering permanent damage to his spine. Sam emerged from the car crash uninjured
but was knocked down and seriously injured by a train at a level crossing when he escaped from the
car and tried to run away from the police. There were warning signs at the level crossing but they were
not clearly visible and there were no barriers preventing entry on to the train track. For several
months, local residents had been campaigning about safety near the crossing after a 60-year-old man
narrowly escaped being hit by a train. Advise all parties of their rights and obligations in tort, paying
particular attention to any defences that might be raised.

Suggested Answer:

The facts indicate the possibility of two causes of action; general negligence and occupier’s
liability for dangerous premises. Jason has suffered serious injury to his spine, while travelling in a
stolen car driven by Tony and as such is advised to bring an action in negligence against Tony for
reckless driving. Sam, on the other hand was seriously injured when a train knocked him down, and
as such may bring an action against Tony for reckless driving and/or the relevant transport body, under
the torts of negligence and occupiers’ liability, respectively. The candidate will also evaluate the
possibility of certain general defences being raised against the claimants, in particular the defences of
volenti non-fit injuria, contributory negligence and ex turpi causa non oritur action (illegality).

Jason’s claim against Tony:

It is clear from the facts that when Tony requested the company of Sam and Jason that he did
not intend to cause harm. However, due to his inability to properly manoeuvre the vehicle, being a
learner driver, he drove into the tree. It is advised that the appropriate cause of action is negligence.
In order to succeed in establishing negligent liability, Lochgelly Iron & Coal Co. v McMullen (1933)
provides that the claimant has to satisfy four (4) criteria namely, the existence of a legal duty of care
owed by the defendant to the claimant, breach of that duty, factual causation and legal causation.
Satisfying legal causation requires proof that the claimant’s injury was not too remote as a
consequence of the defendant’s negligence (The Wagon Mound (No. 1) (1961)).

It is submitted that on the facts, Jason would easily satisfy all four criteria. It is established
that a driver would owe a duty of care to his passengers and fellow road users (established principles
of duty laid down in earlier precedents). Further, applying the decision in Nettleship v Weston (1971),
a learner driver is expected to come up to the standard of an ordinary, experienced driver, and in the
circumstances, it is clear that an experienced driver being followed by the police would stop the
vehicle and not panic and lose control of the vehicle. As such, Tony has breached the legal duty to take
reasonable care. Next, applying the ‘but-for’ test illustrated in Barnett v Chelsea & Kensington HMC
(1968), it is evident, that but for Tony’s actions of driving a car while being incompetent and actually
swerving and crashing into a tree, Jason would not have been injured. As such factual causation is
clearly established. Finally, it is submitted that physical injuries sustained in a car accident are certainly
reasonably foreseeable as a consequence of careless driving, and as such, the test of remoteness in
The Wagon Mound (No. 1) would clearly be satisfied. It is submitted that negligence can be
established against Tony, on the facts.

Tony may rely on a number of defences, the first of which is volenti non-fit injuria, which
translates, ‘no injury can be done to a willing person.’ This is a complete defence centered on the
argument that the claim should fail on grounds that the claimant had consented to the dangerous act
of the D. To successfully plead this defence, Tony would have to show: (i) that Jason knew and
understood the risks of being injured in travelling as Tony’s passenger; and (ii) that Jason voluntarily
accepted such risk. For a driver to argue this defence successfully against his passenger, it had to be
shown that the passenger had fully understood the dangers ahead of him and that his conduct implied
consent to such risks. The defence was found to be satisfied in Morris v Murray (1991), where the
claimant willingly participated in getting drunk with the defendant and then agreeing to fly in a light
aircraft with the defendant as the pilot. Here despite danger being obvious, the claimant obliged the
defendant to his misfortune. In Jason’s case, it is clear to Jason that his friend was a learner driver and
had just taken a vehicle belonging to another. However, it may be argued that he was still entitled to
expect Tony to be able to exercise reasonable care and as such may not have consented to careless
driving. This was held in Dann v Hamilton (1939), where the court found that the doctrine of volenti
non-fit injuria applies only in cases where the plaintiff by his words or conduct has impliedly agreed
to absolve the defendant from liability. This doesn’t seem to be the case with Jason and Tony. It was
further held in Pitts v Hunts (1991), that a driver who did not possess motor vehicle insurance in
accordance with S149 of the Road Traffic Act 1988 could not rely on the defence of volenti against his
passenger. The facts are silent as to whether Tony possessed a motor vehicle insurance policy. In the
event that such insurance is not held, he would further be precluded from relying on the volenti
defence.

Alternatively, Tony may raise the defence of ex turpi causa non oritur actio, otherwise known
as the defence of illegality. Where it can be shown that the claimant acted with illegality, this illegality
on his part would bar his claim. Tony may argue that Jason acted with illegality, given that he had been
smoking cannabis. Tony may also argue that Jason agreed to ride in a stolen vehicle and this is
sufficient to bar his claim, even though Jason did not participate in any joint criminal enterprise in
stealing the car. For the purposes of the defence of illegality, it is submitted that riding in a stolen
vehicle will only amount to a criminal offence in law if there was knowledge that the vehicle was in
fact stolen. In Pitts v Hunt, the court accepted the argument that a claimant who incited reckless and
drunken driving and riding on a stolen vehicle, leading up to the incident that caused his injury, was
barred from claiming given his unlawful behavior. On the facts, it could similarly be argued that the
illegality on Jason’s part should similarly bar his claim, provided Jason knew at the time that the vehicle
was stolen. However, the smoking of cannabis alone will not be sufficient to bar Jason’s claim given
that it occurred before the accident and is completely unrelated and inconsequential to the accident,
Delaney v Pickett (2012) applied. In Delaney, it was held that the illegal act had to be related to the
incident resulting in injury to the claimant for it to bar the claim.

As a last resort, Tony may raise the partial defence of contributory negligence, which if
successful, would not absolve him of liability altogether, but result in the reduction of damages paid.
In order to successfully plead this defence, Tony has to show that: (i) Jason failed to take care for his
own safety (intentional failures being included by S4 Law Reform (Contributory Negligence) Act
1945); and (ii) that this contributed to Jason’s injury or could reasonably be foreseen to contribute to
his injury. If these requirements are satisfied, in accordance with S1(1) LR (CN) Act 1945, the court will
apportion fault on both Jason and Tony, and Jason’s damages will be reduced in light of the extent of
his fault (as deemed just by the court). Tony could argue here that Jason had failed to take reasonable
care for his own safety, in failing to fasten the seat belt. The exact measure of the effect of not wearing
a seat belt on the type of injury sustained by Jason must be determined, to determine the extent of
reduction of damages, whether 25%, 15% or 0%, as held in Froom v Butcher (1975). The facts are
silent on this issue. In any event, it is submitted that the defence of contributory negligence will
succeed.

Sam’s claim against Tony

Sam may also wish to pursue a claim against Tony under negligence. As argued above for
Jason, Sam may similarly establish the requirements of duty of care and breach against Tony but may
face difficulty on factual causation. It must be noted that Sam was not injured as a result of Tony
driving into a tree, but for the events that took place immediately after. If the court accepts the
argument that, ‘but-for’ Tony’s negligent driving, Sam would not have been in danger at the level
crossing, then Tony would continue to be liable. This, however, would seem unlikely as the events at
the train crossing were entirely out of Tony’s control and as such were entirely extraneous,
unwarrantable and ultraneous (Knightley v Johns (1982); The Oropesa (1943)). It is submitted that
the events at the train crossing would break the chain of causation and Tony would cease to be liable
for Sam’s injuries. In any event, the injury to Sam at the level crossing would probably be too remote
as a consequence of Tony’s negligent driving.

In the unlikely event that factual and legal causation is established, Tony may raise the defence
of volenti non-fit injuria against Sam, in the same way that it was raised in Pitts v Hunt, and as argued
above. With regards to Sam, like the claimant in Pitts v Hunt, he did urge Tony to drive faster. This
could be evidence of his consent to reckless and fast driving. However, this may not be sufficient to
support the defence given Lord Denning’s view in Gough v Thorne (1966), wherein it was held that a
13-year-old may not entirely be able to appreciate risks of danger. As such, here due to his age, it may
be found that Sam may not satisfy the requirements of the defence being unable to fully appreciate
the danger in reckless driving. The arguments pertaining to S149 of the RTA 1988 as discussed for
Jason above would similarly apply in Sam’s claim, in that Tony would also be precluded from raising
the volenti defence against Sam if Tony did not hold a motor vehicle insurance.

Tony may also argue illegality against Sam, relying on Vellino v Chief Constable of Greater
Manchester (2002), that Sam was injured when he attempted to escape the police. In this case it was
held that resisting or escaping police arrest is conduct that was sufficiently unlawful to bar the
claimant’s action. It arguable that this defence may succeed as the facts state that Sam was attempting
to run away from the police. Alternatively, Sam’s illegal act of inciting Tony to drive at high speed and
recklessly, could also be deemed to be an illegal act that would bar his claim. This argument would be
supported by the authority in Pitts v Hunt and the illegality defence is likely to succeed against Sam.
It is submitted that Sam’s young age would not be a hindrance in applying the illegality defence against
him as the claimants in Beaumont v Ferrer (2014) were aged 13 to 17 years of age, and their claims
were barred by their illegal acts of trying to jump off a moving taxi without paying the appropriate
fare.

As a last resort, Tony may raise contributory negligence against Sam, arguing that Sam’s
conduct of emerging from the crash without first looking, would amount to a failure to take reasonable
care for his safety. While in Gough, it was held that a child of thirteen is incapable of appreciating
dangers on the road, the Supreme Court in Jackson v Murray (2015) later that the claimant, a 15-year-
old was 50% contributory negligent when she dashed out onto the road and was hit by the defendant’s
vehicle.

Sam’s claim against the train company/railway authority

Sam may alternatively pursue a claim against the railway authority/train company under
negligence and/or occupier’s liability for the incident on the level crossing. Sam may argue that the
relevant body was negligent both under the OLA 1957 and/or OLA 1984 as well as negligence because
the facts state that the warning signs at the level crossing were not clearly visible, and there were no
barriers preventing entry onto the train track. The fact that the locals have been campaigning for
better safety measures after the incident of an elderly man narrowly escaping injury also points
towards neglect on the relevant authority/company’s part. Should Sam successfully establish
negligence, as argued above, the defences of contributory negligence, volenti and illegality may be
raised against Sam. It is submitted for reasons already discussed above, that while the illegality of
trying to escape the police is likely to bar Sam’s claim, the defence of volenti is likely to fail as Sam
cannot be said to have truly known the risk of running across the level crossing and voluntarily
accepting the same. The defence of contributory negligence as applied in Jackson v Murray may
however apply and reduce Sam’s damages by 50%. If Sam succeeds under the OLA 1957, only the
defences of volenti and contributory negligence may be argued against him. Lastly, if he succeeds
under the OLA 1984, only the volenti defence may be argued against him.
 In the circumstances, the candidate concludes that Sam’s and Jason’s claims are likely to be
barred by their illegal conduct. In the event that the illegality defence fails, it is highly likely that the
contributory negligence defence will reduce the amount of damages recoverable by both Sam and
Jason, whether against Tony or the railway company/authority.

Sample 3:

2019 (October) Q4
Peter and Keith, two 18-year-olds, go drinking in London one Saturday night. Having consumed a great
deal of alcohol, they decide to return home to Oxford in order to continue their revelry. Being drunk
and impatient, they cannot be bothered to wait for a train, and instead steal a car they discover
unlocked, with the ignition keys inside, in the station car park. They start the drive back to Oxford,
with Keith at the wheel, picking up Ife, Keith’s girlfriend, on the way. Just before they reach Oxford,
Keith takes a bend too fast, with the result that the car collides with another vehicle driven by Al, who
is seriously injured, as is Peter who was in the front passenger seat. Ife, who was in the back seat and
not wearing her seat belt at the time, suffers head injuries. Keith is arrested for drunk-driving, and
taken into custody. Later that night, because the police fail to remove Keith’s belt, he commits suicide
by hanging himself in his cell. Advise the parties.

Suggested Answer:

The facts in question invite discussion on whether claims may be brought for death and
injuries arising out Keith’s negligent driving and the negligence of the police. Claims will be brought
under negligence, and claimants must satisfy the requirements of duty, breach, causation and
remoteness: Lochgelly Iron v McMullan (1934); The Wagon Mound (No. 1) (1961). Al will claim
against Keith’s estate for the collision resulting in Al’s serious injuries, Peter will also claim against
Keith’s estate for his injuries in the collision, and Ife will also do the same in relation to her head
injuries. Keith’s estate will bring a claim against the police in respect of Keith’s suicide in prison. The
discussion will also evaluate any defences that may be raised to defeat the above claims.

Al v Keith’s estate

The first requirement for negligent liability is duty of care. A must prove that K owed him a
legal duty of care. In Robinson v CC of WYP (2018) the SC cautioned against applying the Caparo three-
stage test. Instead duty is to be determined by reference to established principles/ decided cases or
by drawing analogy to precedent. Since A and K were fellow road users at the same time and place, K
would clearly owe an established duty of care (Nettleship v Weston (1971).

Secondly, it must be shown that K had breached the legal duty by falling below the relevant
standard of care applicable in the scenario. In general, the standard applicable in negligence is that of
the reasonable person: Blyth v Birmingham Waterworks (1868). This is an objective test and the
defendant is judged based on the standard of foresight of the reasonable person, without taking into
account then defendant’s peculiar characteristics. In Nettleship it was held that all drivers are judged
by the standard of the ordinary experienced driver. In the circumstances, it is apparent that no
reasonable driver would have done as K did, to drive recklessly in a stolen car, while under the
influence of alcohol. As such, K is clearly in breach.

Thirdly, it must be shown that K’s carelessness caused A’s injury. This is also referred to as
‘factual causation’, where A must prove based on facts, and on a balance of probabilities, that but-for
K’s carelessness, he would not have been injured (Barnett v Chelsea & Kensington HMC (1969)). Since
it was K who indeed was taking the bend too fast, and clearly lost control resulting in the collision with
A, it is clear that but-for K’s carelessness, A would not have been injured. There is nothing in the facts
to suggest that A was in any way, at fault for the accident. As such, the third element for liability is
satisfied.

Lastly it has to be shown that A’s injuries are not too remote. This is also known as the legal
causation requirement. To satisfy legal causation, A must show that his injuries were reasonably
foreseeable as a consequence of K’s carelessness (The Wagon Mound (No.1)). It is certain that any
physical injury is foreseeable as a result of a collision that was caused by reckless driving. In the
circumstances, A’s injuries are not too remote.

A would successfully establish all requirements for liability, and therefore establish
negligence. It is likely that A’s claim will succeed and that K will not be able to defeat liability using any
of the general defences available in the tort of negligence. The facts do not suggest that A has
consented to injury, committed an illegal act or that he was in at fault contributing to his injury.

Peter v Keith’s estate

Since P was K’s front-seat passenger at the time of the accident and P’s injuries, it is argued
that P would similarly satisfy the same requirements for negligence as discussed above for A. Since it
was the same negligent act that resulted in P’s and A’s injuries at the same time and place, the
elements of duty, breach, causation and remoteness will all be satisfied in the same way as argued
above for A. However, it is submitted that while A’s claim will be successful, it is possible that P’s claim
may fail. K may be able to raise certain defences against P that may have the effect of either defeating
his claim or reducing his damages.

Firstly, K will want to raise the defence of volenti non-fit injuria, ‘no harm can be done to a
willing person’. This is a completer defence, which if successfully argued, will result in P’s claim being
defeated altogether, with the result that K is no longer liable. It must be shown (i) that P knew and
understood the risk of injury and (ii) that P willingly accepted the risk of injury. In Nettleship Lord
Denning stated that “knowledge of the risk of injury is not enough. Nothing will suffice short of an
agreement to waive any claim for negligence. The plaintiff must agree expressly or impliedly to waive
any claim for any injury that may befall him due to the lack of reasonable care by the defendant …”
Further, in Bowater v Rowley Regis Corporation (1944) Scott LJ stated: “a man cannot be said to be
truly ‘willing’ unless he is in a position to choose freely, and freedom of choice predicates, not only full
knowledge of the circumstances … so that he may be able to choose wisely, but the absence from his
mind of any feeling of constraint so that nothing shall interfere with the freedom of his will.”

K will argue that P was his passenger and had been with him from the beginning (drinking in
London, to stealing in the car together, and travelling with K as his passenger, knowing him to be
intoxicated). K would state that P was therefore “truly willing” and behaved in a manner indicating
that he agreed to the risk of danger and took it upon himself, “waiving all intention to claim against
his friend” in the event of injury. While this appears irrefutable on the facts, it is argued that the volenti
defence will nonetheless fail. S 149 Road Traffic Act 1988 provides that in circumstances where the
driver is subject to the requirement of mandatory motor vehicle insurance, any prior consent or
agreement or willingness to accept risk of injury by his passenger shall be of no effect, and will not
negative the liability of the driver. This was upheld in Pitts v Hunt (1990) with the result that the
volenti defence failed against the claimant who very clearly did appear to willingly accept risks of
injury. It is argued that similarly on the facts, the volenti defence will not apply here to defeat K’s
liability.
 Alternatively, K may want to rely on the illegality defence, “ex turpi causa non oritur actio”
which translates, ‘from a dishonourable cause, an action does not arise. The defence is premised on
the notion that it would be an affront to public conscience and common sense to allow a claim that is
based on an illegal act. In Gray v Thames Trains Ltd. (2009), Lord Hoffman emphasized that the
defence was largely a policy-based defence: “The maxim ex turpi causa expresses not so much a
principle as a policy. Furthermore, that policy is not based upon a single justification but on a group of
reasons, which vary in different situations.” The public policy is that it is wrong to allow a wrongdoer
to profit from his wrongdoing. To determine whether P’s illegal act will bar his claim, in Les
Laboratoires Serviers v Apotex (2014) Lord Sumption in the SC stated that the ‘turpitude’ of the
defence must first be ascertained (whether there is an illegal act that engages the public interest, so
that the defence can apply to bar the claim). It was held that only criminal acts, quasi-criminal acts,
dishonest/ corrupt acts, and acts that contrary to statute or public policy and morality will amount to
‘turpitude’ for the purpose of the defence. Later in Flint v Tittensor (2015) it was held that the court
would look at whether the claimant’s illegal act was the operative cause of his injury. This approach
of ascertaining whether the claimant’s illegal act was the cause of his injury was early endorsed in
Joyce v O’Brien (2013) by Elias LJ and Lord Hoffman in Gray. It was held in Beaumont v Ferrer (2016)
that the doctrine of proportionality should not be applied, i.e. that the courts should not take into
account whether the claimant’s illegal act was proportionate to the defendant’s wrongdoing in order
for it to bar the claim – as long as it was wrongful and caused the injury, it would bar the claim. This
was upheld in Apotex where Lord Toulson reiterated that the defence was still a public policy defence.
In Pitts v Hunt, the claimant had acted illegally by participating with the defendant in stealing a
motorcycle, and inciting him to ride it reckless while intoxicated. The court found that the claimant’s
illegal act ought to bar his claim, and on this basis the claim failed. Applying this to P’s circumstances,
it can be argued that while the facts are comparable to Pitts, there is a fine distinguishing factor, in
that, in Pitts, it was the claimant who encouraged the defendant to drive recklessly while intoxicated.
However, the facts do suggest that P did the same. Also, applying the requirement in the cases above
that the illegality must have been the operative cause of the injury, it is argued that the cause of P’s
injury is not the illegal act but K’s reckless driving. As such the illegality defence is likely to fail and P’s
claim will not be barred.

As a final alternative, K may instead argue that P had been contributory negligent in
undertaking the dangerous activity together with him, knowing it to carry serious risks of injury. To
establish the defence of contributory negligence, K would have to show (i) that P was at fault by failing
to take care for his own safety (fault includes any dangerous intentional act: S4 Law Reform
(Contributory Negligence) Act 1945), (ii) that this caused or contributed to P’s injury and (iii) that this
was reasonably foreseeable. These requirements were outlined by Lord Denning in Jones v Livox
Quarries (1952). If these requirements are satisfied, S1(1) Law Reform (Contributory Negligence) Act
1945 applies to state that where the claimant’s injuries are found to be caused partly by his own
carelessness, and partly by the careless of another, this will not automatically result in his claim failing,
but that it will have the effect of his damages being reduced, taking into account his share of fault and
what the court considers to be just and equitable in the circumstances. As such, contributory
negligence does not defeat liability entirely and is merely a partial defence.

It is submitted that in undertaking a criminal activity with K, knowing it to be dangerous, P is

at fault by engaging in an activity which can foreseeably lead to harm. Partaking in the theft and driving
under the influence can also be said to have contributed to his injury. In the circumstances, P may
satisfy the requirements of the contributory negligence defence, such as the claimants in cases such
as Revill v Newberry (1996) and Jebson v Ministry of Defence (2000). It is submitted that it is possible
that P’s damages will be reduced by approximately 75% if Revill and Jebson are applied analogously.
Ife v Keith’s estate:

As discussed above for P, it is submitted that Ife too will satisfy the requirements of duty,
breach, factual causation and remoteness as argued above for P. She was also a passenger in the
vehicle at the same time. As such, she would successfully establish negligence. K would, however,
want to raise the defence of volenti non-fit injuria, arguing that when he picked her up, she would
surely have been made aware of the fact that K was intoxicated, and nonetheless agreed to ride
together. Her conduct of getting into the vehicle in the circumstances, arguably implies that she free-
willingly agreed to accept potential risks of harm. In view of the requirements of the volenti defence
set out above, K is likely to insist that Ife’s claim ought to fail on the basis of consent. However, it is
submitted that S 149 RTA 1988 will once again apply, since Ife is also K’s passenger, and the mandatory
requirement of a motor vehicle insurance would mean that K is prohibited from relying on any consent
on Ife’s part to defeat liability on his part. As such the volenti defence will fail here.

Alternatively, K would want to rely on the contributory negligence defence, arguing that Ife
was at fault/ failed to take care for her own safety, by failing to fasten the seatbelt. He may also argue
that if she had fastened the seatbelt, she may not have sustained the head injury. It is submitted that
Ife would meet the requirements of the contributory negligence defence, since her failure to fasten
the seatbelt is clearly fault on her part, this must have contributed to her injury and this is clearly
foreseeable (Jones). It follows that upon applying S 1(1) LR (CN) Act 1945, Ife’s damages are likely to
be reduced. In Froom v Butcher (1975) it was held that the claimant’s damages would be reduced by
25% where it is found that wearing the seatbelt would have prevented injury altogether. Instead if
wearing the seatbelt would merely have lessened the severity of injury and not prevented it
altogether, damages would be reduced by only 15%. However, if it can be shown that wearing the
seatbelt would have had no impact on the injury, with injury being just as severe with a seatbelt on,
the claimant’s damages will not be reduced at all (0% reduction). Depending on expert evidence as to
the impact of the seatbelt in Ife’s position, the appropriate reduction will be imposed. In Ife’s case,
she is thus likely to succeed in her claim, but damages awarded for her injuries are likely to be reduced
on account of her contributory negligence.

K’s estate v Police

K’s estate would first have to establish that the police owed a duty of care to prevent his
death, which occurred while he was in their custody. On the facts, it appears that the police had failed
to remove K’s belt, thereby failing to take proper care and precaution for his safety and life while in
prison. Their failure is likely to be viewed as an omission, which as a general rule in English law, does
not attract liability: Stovin v Wise (1996). This was affirmed in Michael v South Wales Police (2015)
by the Supreme Court, where it was held that there is no general duty requiring positive action on the
part of both public and private bodies, to take steps to prevent harm caused by another. This rule is
subject to a number of exceptions, such as where there is (i) assumption of responsibility, (ii) control,
(iii) interference in a better outcome and where (iv) the defendant himself has created the danger/ is
in a position/status that requires him to act: Tofaris & Steel, Michael. It is submitted that on the facts,
since K was in their custody at the time, the police were in a position which arguably places on them
the responsibility to take positive action, to ensure K’s safety. It can also be argued that they have
control in the circumstances and assume responsibility to protect K’s safety. This has been upheld in
cases such as Kirkham v Greater Manchester Police (1990) and Reeves v Metropolitan Police
Commissioner (2000). If this is accepted, K would be owed a duty by the police. Alternatively, it can
be argued that the failure to remove K’s belt was part of the overall process of proper arrest, which
would be interpreted as the performance of a positive act and not an omission. If this is accepted,
then it can be said that the police owe an established duty to conduct the arrest according to proper
procedure, and the failure to remove the belt was inconsistent with proper procedure. Either way, a
duty of care is likely to be established.

Next it has to be shown that in failing to remove K’s belt, the police had breached the duty of
care. It is submitted that the facts imply that the police could have been expected to remove K’s belt,
as this was probably the standard procedure. Having failed to do so, it is submitted that the police had
fallen below the reasonable standard of care. If the belt removal was not part of a standard procedure,
the police would argue, that it was unknown to them that K would attempt suicide. If indeed K showed
no signs of intending to do so, it may be said that due to lack of knowledge and foreseeability, the
failure to remove the belt may not fall below the standard of care (Roe v Ministry of Health (1954)).
If it was known that K was a suicide risk at the time, then the failure to remove the belt would be
considered breach: Reeves.

Assuming that the breach element is satisfied, K must go on to prove factual causation. It may
be argued that but-for the failure to remove the belt, K would not have hanged himself and died
(Barnett, Reeves) If this is accepted, the chain of causation is established, and factual causation is
satisfied.

The police would, however, argue that legal causation will fail, on the basis that the suicide
act was not foreseeable, that it was unreasonable, extrinsic and extraneous enough to break the chain
of causation: The Oropesa (1943). The police would therefore argue that the suicide is too remote
and that the death would fall outside the range of consequences which are foreseeable as a result of
failing to remove the belt. This was argued in Corr v IBC Vehicles (2008) as well as in Reeves. However,
the court found that suicide in both cases was foreseeable on the facts. In Corr, the claimant
committed suicide as a result of depression caused by physical injuries that resulted from the
defendant’s negligence. As such the suicide was foreseeable. In Reeves, the claimant’s suicide was
foreseeable because he was known to be a suicide risk. K’s circumstances, however, are in contrast
with both Corr and Reeves and it possible that the court will find the suicide act to be a new
intervening act that breaks the chain of causation. If this is concluded, then K’s claim will fail.

If the court finds instead that the chain of causation is not broken simply because K was under
the police’s custody and responsibility at the time, then the suicide and resulting death would not be
too remote, and the police may be found liable. The police would want to raise the defence of volenti
non-fit injuria, arguing that suicide is a voluntary act, which would satisfy the requirements of the
volenti defence, i.e. knowledge of risks and agreement/consent/willing acceptance to the risks. This
has, however, been rejected by the courts in Reeves and Corr, stating that suicide cannot completely
be considered a voluntary act, especially when it is carried out in the custody of another (Reeves) or
due to some other condition like instability of mind/depression (Corr). At best, the suicide may be
accepted as contributory negligence on the claimant’s part, with the outcome that his damages may
be reduced by 50%: Reeves. It is submitted that this would be the likely outcome in K’s case.

Further, the police are also less likely to be able to rely on the illegality defence, since it is not
possible to state that it was the theft and drunk-driving that was the operative cause of the death
(Flint). Although drunk-driving and theft are criminal offences and form the turpitude of the illegality
defence, K’s death did not occur in the course of committing the crime, but in separate set of events,
at a later time, namely the negligent manner of arrest and imprisonment. Where the defendant’s
careless is still the leading cause, illegality will not operate against the claimant: Delaney v Pickett
(2012). Further it is important to note that the illegality defence is a public policy defence. If it would
be against public interest to allow the claimant with his illegal act to claim, then the defence will apply:
Gray. However, in the Apotex case, the SC did state that corrective justice for the claimant should not
be hindered where the claimant’s illegal act does not offend the public interest. Further, in Hounga v
Allen (2014) the SC refused to apply the illegality defence and continued to find the defendant liable.
Lord Wilson stated that the public interest of allowing the claim despite the claimant’s illegal act
(illegally remaining and working in England) outweighed the public interest in refusing it, because of
the gravity of the wrongdoing on the defendant’s part (human trafficking, abuse and discrimination
against the claimant). The same was found in Patel v Mirza (2016), where the court held that to bar
the claim due to the claimant’s illegal act of conspiracy to commit insider dealing would result in a
greater harm – the defendant enjoying unjust enrichment. If it is found that the gravity of K’s
wrongdoing deeply offends the public conscience (stealing a car and drunk-driving), it is possible that
Hounga and Patel may not apply. However, if it is found otherwise, the illegality defence will not serve
to bar K’s claim against the police.

NOTE: If driver of car stolen by K & P wish to sue for damage to car – may prove negligence against K
– K may raise contributory negligence against driver – leaving key in ignition, car unlocked. However,
the theft itself would be pursued under criminal law and/or trespass to goods under Tort Law.

Essay Questions

Sample:

Contributory negligence and volenti non-fit injuria are very similar in nature and effect. Explain the
extent to which this statement is true.

Answer Guide:

The question requires evaluation of the defences of volenti non-fit injuria and contributory
negligence. The issue is whether the two defences are similar in nature and effect. The contention is
that they are not the same although they may appear to be similar and the answer will highlight this.
However, at times when the claimant has acted in a particular manner on the facts, the same conduct
could be considered in light of both defences and at times, could argued as satisfying both defences
at the same time.

Firstly, in relation to volenti non-fit injuria, the answer will first explain this defence. It is a
complete defence and is translated to mean: ‘no injury can be done to a willing person’. The basis of
the defence is that the claimant accepted the defendant’s negligence and the possibility of harm
resulting from it, and as such, having agreed and consented, should not be allowed to sue. It requires
that the claimant by words or conduct indicated that the claimant was prepared to even waive his
right to sue should injury occur: Lord Denning, Nettleship v Weston

The elements of the defence: (i) knowledge and understanding of risk: Bowater v Rowley
Regis and (ii) willing or voluntary acceptance of risk: Nettleship. Knowledge and willing acceptance
will usually be ascertained from the claimant’s words and conduct. Examples of cases where the two
conditions of the defence were satisfied: ICI v Shatwell, Morris v Murray and Pitts v Hunt (although
the defence was defeated because of S149 RTA 1988 in Pitts. Where MVI is compulsory, the defendant
driver cannot raise volenti against his passenger claimant)

Volenti defence is commonly raised in a number situations. Where an employee sues an

employer for work-related injuries or dangers arising out of the employment. Employers usually raise
the volenti defence here but courts reject the same saying that there is no real choice exercised by
the employee – no willing acceptance of risk because of economic duress: Smith v Baker; Bowater.
However, the reverse was found in ICI because the employee had the option of using safety goggles
but chose to abandon caution despite having full knowledge and understanding of risks involved.
 Where a passenger sues the driver for careless driving or driving under the influence of
alcohol. Drivers usually rely on volenti arguing that passengers willing accept the risk of an accident.
This has been accepted in Morris v Murray, but not in Dann v Hamilton where it was found that the
claimant had expected the defendant to exercise due care nonetheless. Due to S149 RTA 1988, drivers
may not use the volenti defence against their passengers where MVI is compulsory: Pitts. Thus, it is
only rarely that the defence applies in such cases.

Where the claimant voluntarily effected rescue to try and save lives in the aftermath of the
defendant’s negligence causing injury to others. Defendants often argue that the claimant was not
legally bound to assist but did so of their own volition and willingness to run the risk of harm. However,
courts have refused to apply the volenti defence in cases where rescue efforts were genuinely needed,
holding that rescuers in such circumstances do not act out of free will but are compelled to act as a
matter of social necessity: Haynes; Chadwick and Baker v Hopkins. The volenti defence is also rejected
in rescue cases because it would go against public policy and courts wish to encourage acts of rescue.
However, these considerations will not apply where the rescue act was unnecessary in the
circumstances. In such cases the defence will apply to defeat the claim: Cutler

Where the claimant committed suicide. In such cases, defendants argue that the act of taking
one’s own life is clearly done voluntarily and as such should attract the volenti defence. However,
courts are reluctant to conclude that suicide should be regarded as a purely voluntary act as those
who attempt suicide often do so as a result of depression or psychiatric conditions that impair their
ability to fully understand the consequences of their actions: Corr; Reeves.

Where the claimant was participating in a sporting event or competition. Defendants usually
argue that claimants know the risk of injury in a particular sport and impliedly consent to the same.
The defence would apply where it is clear that the injury was one that normally results from playing
the sport: Simms. However, it will not apply where the defendant played beyond the rules and norms
of the sport: Condon, or the risk of injury was beyond that which is normally accepted by participants:
White v Blackmore. Sportsmen are not deemed to have consented to referees neglecting their
responsibilities: Smoldon; Vowles.

Turning now to the contributory negligence defence, the answer will now explain this defence.
It is a partial defence – if the defendant successfully raises it, it will only result in reduction of damages
– defendant is still partially liable. The basis of the defence is that the claimant was also careless/ at
fault and this caused or contributed to the injury, so, the claimant should absorb his share of fault for
the outcome. The defendant has to satisfy three criteria: (i) fault on claimant’s part: this fault can take
the form of a careless act or deliberate act; (ii) cause or contribution to injury/ loss and (iii) that this
was reasonably foreseeable: Jones v Livox. If the criteria are successfully proven, it will result in
apportionment of fault between claimant and defendant and reduction in claimant’s damages based
on claimant’s share of fault and what the court deems to be just and fair: S1(1) Law Reform
(Contributory Negligence) Act 1945. Examples of cases in which claimants have been found
contributory negligent: Jones, Davies v Swan Motor

Claimants may be found contributory negligent for failing to exercise care when using the
road: Baker v Willoughby. Children may be found contributory negligent too: Jackson v Murray; Evans
v Souls Garage – based on their age and ability to foresee harm.

Claimants may also be found contributory negligent for heavily intoxicating themselves:
Jebson; Barrett. It is argued that these cases could attract the volenti defence too but instead of
defeating the claim altogether by applying the volenti defence, the court preferred to apply
contributory negligence instead – arguably for the purpose of holding the defendant accountable for
failing to discharge their statutory duties as well. To apply the volenti defence here would defeat the
claim altogether and exculpate a guilty defendant. Nonetheless, the reduction for intoxication is high:
75%.

Smoking habit that contributed to lung cancer: Badger v MOD. Even though smoking is clearly
a voluntary act, the defendant was also negligent in exposing the claimant to asbestos. So, to ensure
the defendant takes responsibility for its carelessness, the court applied the contributory negligence
defence instead. However, this did not apply in a case where the claimant had been addicted to drugs,
abandoned his drug habit and was being rehabilitated. He was deemed no longer at fault: St. George
v Home Office (2009)

Failing to take safety precaution as drivers/ motorcyclists may also be considered contributory
negligence: Froom; Capps. Here the contributory negligence defence applied because the claimants
can be expected to take care for their own safety. However, the reduction in damages was minimal
because the defendant’s carelessness was serious and accounted for the greater part of the accident
and injury. Where the claimant carries out a deliberate and dangerous illegal act, courts have also
found this to fall within the contributory negligence defence rather than the volenti defence to
account for the fact that the defendant too had acted improperly: Revill

Where the claimant committed suicide, for reasons argued above, courts have preferred to
classify this as contributory negligence instead of volenti: Reeves v MPC.

It is submitted that the two defences are different in nature and effect. However, at times,
whether a particular act will be regarded as volenti or contributory negligence depends on the court’s
assessment of the degree of fault between the parties and whether the interest of justice calls for
allocation of responsibility on the defendant’s part. The fact that the two defences could be argued in
respect of the same action is admittedly responsible for the notion that the two defences are similar.
However, the candidate contends that they are in essence different, serve different purpose, engage
different considerations and result contrasting outcomes.
II. PART TWO: NEGLIGENCE – PROBLEM AREAS

1. Negligence: Duty of Care for Psychiatric Injury (Chapter 4)

Problem Questions

Sample 1:

2018 (ZA & ZB) Q2

Hasan, the maintenance engineer at Aqua Boat Hire (ABH) has previously complained to his manager
that his excessive workload is causing him to suffer from stress. Sami hired a speedboat from ABH so
that he could take part in a competition. Soon after the competition began Sami’s speedboat
accelerated to a dangerously high speed, but an engine malfunction prevented him from reducing the
speed and the boat went out of control. The speedboat flipped over backwards in the water, throwing
Sami out of the boat, and then crashed into Ted’s yacht. The impact of the crash caused the yacht to
burst into flames. Ted was killed in the accident, but Sami was rescued uninjured from the water.
Consider the principal issues of law which will arise if the parties below attempt to recover damages
for the harm they suffered as a result of the incident:
a) Hasan was responsible for maintenance of the speedboat that Sami hired. Evidence has
established that the fault in the speedboat was caused by the manufacturer’s negligence but
Hasan believes that he may not have been sufficiently careful in carrying out the safety check
before Sami hired the boat. Hasan has suffered a severe mental breakdown.
b) Sami is overcome with feelings of guilt and severe depression. He is unable to work because
of this.
c) Alicia, the estranged wife of Ted, arrived on the scene an hour after the crash when the rescue
operation was taking place. Alicia immediately recognised that the bright red yacht on fire
was Ted’s but she did not discover that he had been killed in the accident until four hours
later. Alicia suffered a severe trauma and was unable to return to her job as a solicitor.
d) Kofi, a member of the lifeboat rescue crew was one of the first to arrive on the scene. He
attempted to rescue Ted but the flames were so fierce that he could not reach Ted until his
colleagues arrived with firefighting equipment. Kofi is now suffering from panic attacks and
recurring nightmares about the incident.

Suggested Answer:

The question concerns the area of psychiatric injuries in Tort Law. The issue is whether the
injured parties may recover damages for their respective injuries. The claimants in given scenario are
advised that their cause of action lies in the tort of negligence, and they must satisfy the elements of
duty of care, breach, factual causation and legal causation (Lochgelly Iron v McMullan; The Wagon
Mound). The answer will focus on whether duty may be owed for injuries that are psychiatric in
nature, given that this is a problem area in negligence law. English law is generally reluctant to allow
claims for negligently inflicted psychiatric injuries, unless certain additional criteria are met, to
differentiate between genuine claims and otherwise. Parties are advised that the appropriate
defendant is ABH, since it was negligent causing the fault in the speedboat.

(a) Hassan v ABH:

The issue is whether ABH would owe H a duty, since he was not directly & physically injured
but suffered work stress and severe mental breakdown, thinking that he may be responsible for the
incident. A number of criteria must be fulfilled.
 The first is, whether H suffered a recognized psychiatric injury. In Alcock v CC of SYP,
McLoughlin v O’Brien & White v CC of SYP it was held that claims for sorrow, grief, anxiety, shock,
distress and depression in the ordinary sense are not allowed. On the facts, since H has suffered severe
mental breakdown, he arguably satisfies this requirement. Next, it has to be shown that H falls within
a class/category of victims who may claim, and that the necessary requirements for each class is
satisfied.

Generally, there are primary (PV) and secondary victims (SV). In Page v Smith, White & Alcock
it was held that a PV is one who was directly involved in the incident – either in the sense that he
suffered actual physical injury was injured, was within the range/zone of danger or believed he was in
danger (belief has to be reasonable) – it doesn’t matter whether being in either one of these positions
caused the psychiatric injury – as long as some personal injury was foreseeable to the Cl., he would
be a primary victim. Even if a reasonable person with “ordinary phlegm” would not suffer psychiatric
injury while being in the Cl.’s position (but the Cl. did), as long as he was in a position of foreseeable
injury, he would be owed a duty of care directly – take the victim as you find him (eggshell skull rule
applies): Page

Alcock, White describe SVs as those who are passive witnesses of injury/ death to another &
suffered psychiatric injury because they witnessed death/injury to another. Such victims are not in the
zone of danger and are not directly involved. They cannot be owed a duty of care so easily and they
must usually satisfy additional criteria, i.e. that psychiatric injury was foreseeable & proximity. H did
not suffer injury and was not put in danger of harm. H’s psychiatric injury can be attributed to him
believing that he caused the incident & that he was undergoing work stress – he would fall within the
categories of ‘unwitting agent’ and/or ‘employee suffering work stress’. It may be said that he falls
within a special category of SVs. H must prove the additional requirements of foreseeable psychiatric
injury and proximity.

‘Unwitting agents’ are those who believe that they were responsible for the death or injury to
another and go on to suffer psychiatric injury: Dooley v Cammell Laird. Such victims are in fact not
the cause but suffer psychiatric harm through the belief that they are/ due to guilt. In Dooley, the Cl.
succeeded on the basis that his perception (that he caused injury) was reasonable & his psych. injury
was reasonably foreseeable. Later, in Alcock it was held that such Cls. should be owed duty as if they
were primary victims since they can be said to directly affected. H/ver White rejected this reasoning,
arguably because this would open the floodgates of litigation & because it is not justified to equate
such victims with PVs.

More recently in Hunter v BCC the Cl., an unwitting agent, was not within sight of his colleague
who died due to an accident at work. The Cl. believed he was responsible although it was later
revealed that it was their e/er’s negligence that caused the colleague’s death. Cl. failed as he could
not satisfy proximity to the incident – he had to witness the incident or its immediate aftermath to
succeed. Further, in Monk v PC Harrington the law on unwitting agents has been clarified: The Cl. has
to show that his belief that he was the cause, is reasonable. If it was, then his psych. injury would be
considered reasonably foreseeable. This is needed in addition to the proximity requirement in Hunter.
The Cl. in Monk failed in that his feeling of guilt was considered a general reaction to the tragedy and
was due to a fear of being blamed. This was not sufficient for duty.

Applying the above to H’s facts, it is arguable that in the circumstances, H’s reaction to the
incident and feelings of guilt may be distinguished from Monk. Given that H has been under stress
prior to the incident and was overworked, it was reasonable for him to believe that he was responsible
and as such, it is submitted that his psychiatric injury is reasonable and foreseeable. However, Hunter
also requires that the ‘unwitting agent’ has to be proximate to the incident. It is unclear from the facts,
whether H witnessed the incident. If, as the maintenance engineer, he was required to be at the event
when the boat is used, and assuming he witnessed the incident, he would satisfy the proximity
requirement. If this is the case, he would be owed a duty of care.

He may also argue that his work stress can be blamed for the resulting breakdown. In Walker
v Northumberland it was held that e/ers owe duty not to cause physical injuries, as well as psychiatric
injuries. Further in Hatton v Sutherland it was held that the e/er may owe a duty where the e/ee had
been vulnerable (was under stress & prone to psych. harm), that this was made known to the e/er &
that it was foreseeable that the e/ee would suffer harm. If this can be shown, the e/er could be liable.
On the facts, H has complained to the manager and as such, it is arguable that the breakdown is
reasonably foreseeable & ABH would owe duty (Daw v Intel (UK))

It is concluded that H is likely to be owed a DOC by ABH. As suggested by the facts, ABH would
also satisfy breach & factual causation. It is also argued that H’s injury would not be too remote:
reasonably foreseeable (Wagon Mound)

(b) Sami v ABH:

S would have to satisfy the same requirements – that a recognized psych. injury was suffered
& that he falls within a class of victims who may claim. S may fail to satisfy the requirement of
‘recognised psychiatric injury’. In Alcock it was held that feelings of devastation upon learning of death
are not claimable. Further, in White, depression in the ordinary sense is also not claimable. If S’s claim
is for guilt and depression in the ordinary sense, without manifesting into a medically recognized
mental condition, then he may not be able to claim.

In any event, as for the category of victim, because he felt guilt, he may also be considered a
SV, as an unwitting agent. As a participant, who probably had no knowledge of the engine malfunction,
& whose speedboat collided with Ted’s yacht while he was in control of it, it is not surprising that S
may blame himself for the speed & failure to slow down. He may satisfy the requirements of
reasonable belief, foreseeability of psych. injury & proximity: Hunter; Monk.

Alternatively, it is worth considering whether S may establish duty as a PV. It appears as

though, as long as S was in the zone of danger, i.e. suffered physical injury, was in danger of physical
injury or reasonably believed himself to be in danger, personal injury would be reasonably foreseeable
& he would be owed duty as a PV whether or not this caused psych. injury: Page, affirmed in White &
Simmons v British Steel. Foreseeability of psych. injury is not needed: Page. If this is applied,
irrespective of the fact that S experienced guilt, he may nonetheless happen to satisfy the PV
requirement for duty, and succeed. Even though White criticizes this approach as inconsistent with
previous precedents, later in Grieves v Everard it was expressed that applying Page does not result in
practical problems. Therefore, Page is still good law.

Previously in Dulieu v White it was held that it must be shown that the Cl. feared for their own
safety, that this fear was reasonable & that this fear resulted in the psych. injury. If this could be shown
it would be accepted that the Cl.’s psych. injury was reasonably foreseeable. H/ver recently in Young
v Charles Church, it was held that it does not matter whether the Cl. feared for his own safety &
whether this led to psych. injury. As long as the Cl. was in the zone of danger, it would be reasonably
foreseeable that he was in danger of some injury, & this is sufficient to impose duty on D. Applying
this to S, it can be argued that just because he was in a position of danger at the time, he could easily
be owed a duty of care, whether or not being in a position of danger actually caused psychiatric
harm/depression. Since the boat flipped over backwards & S was thrown into the water, he was in a
position of foreseeable harm. This means that S may be successful in establishing the requirements
applicable to PVs. It is concluded that even though S may satisfy the PV requirements for duty, he is
unlikely to succeed since he only suffered feelings of guilt & depression.

In the event that S’s depression is caused by the combination of guilt and witnessing death to
another, he may also fall within the SV category. As a SV, he would be subjected to the additional
criteria of (i) foreseeability of psych. injury, (ii) sudden shock & (iii) proximity: McLoughlin, Alcock.
Given that he doesn’t seem to be related to Ted (facts do not specify), he would more likely fall within
the category of bystander, which is a type of SV. As a bystander, he may fail to establish duty. For a
bystander to succeed it has to be shown that a reasonable person of ordinary fortitude in the
bystander’s position would have suffered shock. If yes, then the Cl. bystander could claim: McFarlane
v EE Caledonia, Alcock. Alcock also states that if the incident witnessed was so horrific that an ordinary
person would suffer shock, then the Cl.’s shock would be considered reasonable and the claim would
be justified. Otherwise, it is considered contrary to public policy to allow a bystander’s claim as it
would encourage litigation & unlimited liability against D. On the facts, it may be argued that S is no
ordinary bystander – he was a participant too. He was in very close proximity and arguably, being in
his position, shock would be sudden and natural. However, the magnitude of the event may not meet
the Alcock requirement of “so horrific that even a reasonable bystander of ordinary fortitude would
suffer shock.” In the circumstances, S’s claim as a bystander is likely to fail.

(c) Alicia v ABH:

As Ted’s estranged wife and having suffered psychiatric injury upon discovering Ted’s death,
A would also have to satisfy the same requirements of recognized psychiatric injury and that she is
either a primary or secondary victim. Firstly, in relation to recognized psych. injury, since she has
suffered severe trauma, she would satisfy the first req. as this is a recognized psych. injury. Secondly,
she would clearly be a SV since she suffered trauma upon learning about T’s death, not because she
was in danger to self. As a SV, additional requirements. apply: (i) foreseeability of psychiatric injury,
(ii) sudden shock & (iii) proximity: McLoughlin; Alcock.

On foreseeability, A may be contrasted with the Cls. in Hambrook v Stokes & McLoughlin –
Hambrook involved a mother while the Cl. in McLoughlin was a mother/wife. Their psych. injury was
considered reasonably foreseeable. By contrast, A is an estranged wife and as such it is arguable that
it is not foreseeable that she would suffer shock (counter argument – even if estranged, possible that
the news of her husband’s death is shocking)

On sudden shock, Alcock: there has to be sudden appreciation by sight/sound of a horrifying

event that violently agitates the mind. Claims based on shock developed gradually are not claimable.
In Sion v Hampstead HA a father who witnessed his son deteriorate & pass on while in hospital, over
a period of approx. 14 days was considered not sudden. In North Glamorgan NHST v Walters the Cl.
mother was with her child from the time of its admission into hospital, deterioration & subsequent
death over a span of 36 hours. Her shock was considered sudden. On the facts, it appears that A
arrived one hour after the accident – 1 hour after T’s death & learned of his death 4 hours later. The
lapse of time may mean that shock is not sudden.

On proximity, A must satisfy three levels of proximity: (i) in relationship, (ii) time & space to
the incident/immediate aftermath & (iii) witnessing the incident through unaided sense. On
relationship, Alcock states that there must be a ‘close tie of love & affection so that it would be
reasonably foreseeable that the SV would suffer shock when the loved one dies’. There is a
presumption in favour of parents-children, spouses & engaged couples. A may fail on this requirement
since they are estranged. It is unlikely that the court will apply the presumption in favour of married
couples here.

On time & space to the incident/aftermath, A did not witness the incident but arrived 1 hour
later when rescue operations were taking place and learnt of Ted’s death 4 hrs later. The lapse of time
might mean that she is less proximate to the incident that caused T’s death. In Alcock 2hrs were
considered to be still proximate, while in McLoughlin seeing children & husband still alive at the
hospital one hour after the accident was considered proximate. This is because of the “immediate
aftermath” principle, through which proximity may be established as long as the Cl. arrived at the
immediate aftermath of the tragic event. In Galli-Atkinson v Seghal a mother had been to scene of
the accident, was told her daughter had died, and later attended the hospital where the daughter’s
body was claimed, within 1 hr from the accident. She satisfied proximity. A may be said to have arrived
during the immediate aftermath period, and as such may still satisfy proximity in time and space.

In McLoughlin & Alcock the Cl. has to witness the incident or aftermath through unaided
senses, i.e. to see/hear in person. In Alcock it was held that seeing the incident unfold on a screen or
hearing about it over the radio cannot be equated with seeing or hearing directly, unless the Cl. saw
identifying characteristics of his/her loved one, on screen. Here, A did not see T’s body upon arrival,
did not witness the incident, and was informed 4 hrs. later. As such, she may not satisfy the ‘unaided
senses’ requirement. She also did not see Ted in a horrific state and applying Ronayne v Liverpool
Women’s Hospital NHST (2015) proximity cannot be satisfied. However, A saw T’s red yacht on fire
and recognized it as his. In Alcock it was held, even if the SV did not see tragedy strike their loved one,
or see their loved in horrific/injured/deceased state, as long as they did see an identifying feature of
the loved one, this may amount to actual seeing or hearing. Applying this, it is possible that A may
satisfy the perception requirement. As a whole, however, A’s claim is likely to fail since she may not
satisfy the foreseeability and proximity in relationship requirement.

(d) Kofi v ABH:

As a lifeboat rescue crew, K would also have to satisfy the criteria listed above. As to whether
panic attacks & recurring nightmares could be considered to be recognized psychiatric injury, it is
arguable that in Reily v Merseyside recurring nightmares was not recognized psychiatric injury, while
in Hicks v CC of SYP, the court rejected claims for panic and terror. Thus, K is unlikely to satisfy the
requirement of recognized psychiatric injury.

As for category of Cl., K would be regarded as a rescuer – lifeboat rescue crew. However,
whether K would be regarded as a PV or SV is arguable both ways. Previously in Chadwick, the Cl., a
volunteer rescuer involved in rescuing victims of the Lewisham train disaster, went on to suffer shock
& psych. injury. He was owed a duty simply because his psych. injury was considered reasonably
foreseeable. It was also considered in the interest of public policy to allow his claim. However,
Chadwick did not clarify whether a rescuer would typically be considered a PV or SV.

Later, Alcock considered that rescuers should be treated as PVs since they are directly
involved and should readily be owed a duty of care. White now clarifies that for a rescuer to be owed
a duty, he must have been in danger (a PV), failing which he would be deemed a SV and would have
to satisfy the additional reqs. in Alcock (RF, SS, Proximity). Chadwick was not decided in such a way to
give blanket protection to all rescuers in all cases. Since K faced fierce flames & was the first to arrive
he may be argued to have been imperiled/placed in the zone of danger. If this is accepted then he will
be owed a duty as a PV. Otherwise, considered as a SV, it is submitted that K will fail to establish duty.
Applying the requirements discussed above for SV, it is submitted that K will fail to satisfy the
foreseeability requirement and the proximity in relationship requirement, since he would not be able
to prove a close tie of love and affection to Ted. His position would be in contrast with that of the Cl.
in Greatorex v Greatorex. In summary, K is more likely to succeed in satisfying duty as a PV.

Sample 2:

2018 (ZB) Q6
Fran lives in a small village, which recently has been disturbed by the activities of an anonymous letter
writer. On the day in question, Fran returned from purchasing her groceries to find a hand delivered
letter at her door. The letter was from the anonymous letter writer and contained shocking allegations
relating to Fran’s husband of 15 years. Immediately on reading the letter, Fran suffered shock. She
had a weak heart and narrowly escaped death. Soon after Fran was taken to hospital, her husband,
Mark, arrived home to see the anonymous letter. He was so offended by the untrue allegations that
he lit a fire to burn the letter. Shortly after, he discovered that his wife had been taken to hospital and
rushed out – forgetting about the lit fire. The house caught fire, and had an effect on two people. First,
Fran’s 21- year-old son witnessed the destruction of the house he had lived in since birth, and has
since suffered post-traumatic stress. Second, a firefighter, Sam, who went into the burning building to
see if anyone was inside, also suffered shock when a burning beam narrowly missed him. The local
news reported the fire, and information went on social media. This was seen by Sam’s mother, Bunty,
who since has had recurring nightmares. Advise all parties on their rights and liabilities in negligence.
(You ARE NOT required to discuss the law of defamation).

Suggested Answer:

The events in question have resulted in four parties having sustained possible psychiatric
injuries: (i) Fran (shock and presumably a heart attack), (ii) Fran’s 21-year-old son, (iii) Sam, a
firefighter and (iv) Bunty, Sam’s mother. The facts also provide that two events in particular have led
to such injuries. The first is the intentional communication of shocking and offensive allegations about
Fran’s husband by an anonymous letter writer, resulting in Fran suffering shock and presumably a
heart attack. Fran would be advised to take action under the rule in Wilkinson v Downton (W v D)
against the anonymous letter writer. The second event is Fran’s house being destroyed in a fire that
was negligently started by Mark. This resulted in Fran’s son, Sam and Bunty’s psychiatric injuries. They
would be advised to bring an action under negligence against Mark. The candidate will first discuss
Fran’s W v D’s action followed by the negligence action against Mark

Firstly, in relation to Fran’s action against the anonymous letter writer, the facts and decision
in Wilkinson v Downtown (1897) are pertinent. In Wilkinson, D told Pl. a joke that her husband was
smashed up with 2 broken legs. This was untrue but Pl. suffered nervous shock. Wright J found D liable
because “he wilfully did an act calculated to cause physical harm and thereby caused physical harm…”
It was also held that “physical harm included psychiatric injury, but not mere alarm or emotional
distress.” D’s act in W v D did not amount to trespass to persons even though it was an intentional act
because it did not fall within the definition of civil assault or battery. At the same time, Pl.’s type of
loss (nervous shock) was not a kind that was recoverable under any tortious principles existing at the
time (neither negligence nor trespass to persons). The W v D rule provided a means for compensation
for those who suffered nervous shock caused by an intentional act.

The development of the tort of negligence and Protection from Harassment Act 1997 meant
that the utility and significance of the W v D rule was diminishing. However, more recent decisions
(Wainwright v Home Office (2004); Rhodes v OPO (2016)) have now revived the W v D rule.

In Wainwright, the Cls., a mother and son, were strip-searched for drugs on a prison visit in
1997. The 2nd Cl. (the son) who was mentally impaired and had cerebral palsy, claimed battery because
physical contact was made with his penis. He also claimed that the police had wilfully committed an
act calculated to cause harm by strip-searching him and that this caused him to suffer distress leading
up to PTSD (W v D rule). The battery action was successful but the W v D action failed as intention for
the purposes of W v D liability could not be established. The HOL held that strip searching was not
performed to cause harm, but as a measure of safety required under prison rules. Further the police
had acted in good faith. While Wainwright may not have abolished the W v D rule/overruled W v D,
it demonstrates the difficulty of establishing liability under the rule – the need for intention to cause
harm.

More recently in OPO, the Cl. was D.’s son from D’s first marriage. The marriage had been
dissolved and at the material time, the Cl. was 11 years old and living with his mother (D’s former
wife). The Cl. had Aspergers, Dygraphia, Dyspraxia and ADHD. The D published a book about his own
history of being a victim of sexual abuse. He dedicated the book to Cl., directed some of the content
of the book to Cl. and mentioned Cl.’s true name in the book. This was done even though D had given
an undertaking not to cause harm to the Cl. in any way whatsoever. It was argued that the Cl. would
suffer enduring psychological harm, would harm himself and become greatly disturbed if he read the
book. There was a strong chance of the Cl. reading the book. The Cl. sought an injunction against the
publication of the book. The Supreme Court refused the injunction and held that the elements of the
rule in W v D had not been fulfilled. To establish liability the following must be satisfied: (i) A “conduct
element”. This requires words or conduct to be directed towards the claimant for which there is no
justification. (ii) A “mental element”. The defendant need not intend to cause the psychological harm
which resulted, it is sufficient if the defendant intended to cause severe distress. The Supreme Court
has now made clear that intention for these purposes is actual intention inferred from the facts in the
particular case. Recklessness is not sufficient. (iii) A “consequence element”. It was accepted by the
parties that physical harm or recognised psychiatric illness was the required consequence. Lord
Neuberger suggested that “it should be enough for the claimant to establish that he suffered
significant distress as a result of the defendant’s conductt”

Applying these conditions to the facts in question, (i), (ii) and (iii) would clearly be satisfied.
Writing and delivering the letter satisfies (i) and (ii). Applying Wilkinson, it can also be said that the
anonymous letter was written with the intention to cause harm in the same way that the practical
joke in Wilkinson was intended to cause harm. Although on the facts it is unclear whether Fran has
developed a psychiatric illness, her injuries also do not appear to be trivial or merely emotional in
nature, given that she has a weak heart and narrowly escaped death. Fran’s action under the rule in
W v D is highly likely to succeed.

Next, in relation to the negligence action against Mark, Fran’s son, Sam and Bunty would have
to establish duty of care, breach, causation and that their injury was not too remote (Lochgelly Iron v
McMullen; Wagon Mound (No. 1)). Due to concerns associated with claims for psychiatric injuries, in
particular the fear of proliferation of claims and fraudulent claims (McLoughlin v O’Brian (1982)),
judges are cautious when determining whether a legal duty is owed for psychiatric injury. Control
mechanism have been introduced to restrict claims for psychiatric injuries and to ensure that only
truly deserving claims succeed. The introduction of control mechanisms to limit duty and liability for
psychiatric injuries has led to the imposition of additional conditions for establishing duty. These
conditions require proof that: (i) the Cl. suffered a recognised psychiatric injury, (ii) the Cl. was either
a primary or secondary victim, (iii) the Cl. satisfies the requirements for duty for primary victims (if he
falls within that category), and (iv) the Cl. satisfies additional requirements for secondary victims (if
he is found to be a secondary victim).
 On the first requirement of ‘recognised psychiatric injury’, the Cl. must have suffered a real
psychiatric injury distinguishable from emotional conditions such as grief, sorrow, anxiety, fear or
plain shock (White v CC of SYP (1999)). In Alcock v CC of SYP (1992), the requirement of a recognised
psychiatric injury now means that Cls. have to show that they have a medically diagnosed psychiatric
condition. On the facts, Fran’s son would satisfy this requirement without difficulty, since he has
developed PTSD. Sam, however has suffered “shock” and it is unclear if this shock has manifested
itself in the form of a psychiatric condition. Bunty’s condition of having recurring nightmares may not
be considered a psychiatric condition on the basis of Reily v Merseyside AHA (1995).

Secondly, White provides that Cls. of psychiatric injuries are either those who (i) suffered
physical injury and went on to develop psychiatric injury, (ii) were in danger of such physical injury or
reasonably believed themselves to be and went on to develop psychiatric injury; OR (iii) witnessed
tragedy involving another and went on to develop psychiatric injury. White further states that those
who fall in categories (i) and (ii) would be deemed primary victims and would readily be owed a duty
of care. The same position was taken in the earlier case of Page v Smith (1996), in which it was held
that a Cl. who suffered physical injury or was in actual danger of the same, or reasonably believed
himself to be, and went on to develop psychiatric injury ought to be owed a duty of care in the same
way that a personal injury victim is owed a duty. Such a Cl. would not have to establish foreseeability
of psychiatric injury given that he is a direct victim of D’s negligence. The same view was held in Alcock,
in which the HOL held that the primary victim should be owed a duty without having to prove anything
more than the fact that he was endangered or imperilled by D’s carelessness. The authority of this
position on primary victims was affirmed in Simmons v British Steel (2004). If however, a Cl. was not
in any danger of physical injury to self but suffers psychiatric injury having witnessed tragedy involving
another, he would be deemed a secondary victim, and would be required to satisfy additional criteria,
namely, sudden shock, foreseeability and proximity. (Alcock). On the facts, Sam, the firefighter was
the only person who was in a position of danger while Fran’s son and Sam’s mother Bunty were not.
As such, Sam would be deemed a primary victim and Fran’s son and Bunty, secondary victims

With regard to Sam it is reasonable and logical to conclude that even though Sam was not
physically injured in the fire, he was in actual danger of injury as the facts suggest that a burning beam
narrowly missed him. In the circumstances, he would be a primary victim and applying Page v Smith,
will clearly be owed a duty of care.

Fran’s son suffered PTSD upon witnessing the tragedy of his home being destroyed by fire. As
he was not in danger of injury or physically injured, he would be a secondary victim. Alcock requires
that any shock suffered must have been the result of a “sudden appreciation by sight or sound, of a
horrifying event”. Fran’s son clearly suffered sudden shock and would satisfy this requirement. Fran’s
son’s circumstances are also comparable to that of the Cl. in Attia v British Gas Plc (988). In Attia, the
Cl. witnessed destruction of own property and suffered psychiatric injury. She was owed a duty of care
on the same basis that the D had owed her a duty not to cause damage to her property. While in Attia
the Cl. was the owner of the property that was destroyed in the fire, it is unclear from the facts
whether Fran’s son has a share of ownership in the property. While he may not hold legal title to the
property, given that he had been living in the property for all 21 years of his life, it is arguable that the
property was his home. One could also argue that a Fran’s son is the most likely heir of the property
even if he may not legally own it at present, and as such, is sufficiently proximate to the property to
have been impacted by its destruction. Thus, he may be owed a duty. Nonetheless, it is possible for
Fran’s son’s claim against Mark to fail, if the policy considerations in Greatorex v Greatorex are
applied, where a secondary victim of psychiatric injury is suing a family member, who has also suffered
a loss in the same tragic incident, but who is also the cause of the tragic incident. In in Greatorex v
Greatorex (2002), in which a fireman suffered psychiatric injury when rescuing a victim of an accident
who was trapped in a burning vehicle. The victim happened to be his son, and the accident was in fact
caused by the son’s careless act of driving on the wrong side of the road whilst under the influence of
alcohol. The vehicle was also uninsured. The fireman claimed against his own son, arguing in his
capacity as a secondary victim who suffered shock upon witnessing tragedy involving his own son,
caused by his son’s carelessness. The court held that the fireman would have to satisfy additional
criteria in Alcock. On the facts, although apparently the requirements of sudden shock, foreseeability,
proximity in relationship, proximity to the incident and unaided senses could all be satisfied, the courts
refused to impose a duty of care on policy grounds. Cazalet J held, “where a family member suffers
psychiatric harm as a result of the self-inflicted injuries of another family member, the psychiatric
illness in itself may well have an adverse effect upon family relationships which the law should be
astute not to exacerbate by allowing litigation between those family members. In my judgment, to
permit a cause of action for purely psychiatric injury in these circumstances would be potentially
productive of acute family strife.” The facts point towards the conclusion that Mark is Fran’s son’s
stepfather, and not his actual father. It is thus debatable whether the policy consideration in
Greatorex may apply here to defeat Fran’s son’s claim.

With regard to Bunty, Sam’s mother, she suffered shock upon seeing the news on social media
about the fire and her son’s presence at the scene of the fire. She would clearly fall within the
definition of secondary victim and would need to satisfy the Alcock requirements stated above for
secondary victims. Firstly, it is submitted that Bunty would satisfy reasonable foreseeability of
psychiatric injury, as it is reasonably foreseeable that a mother would be shocked at hearing that her
son came very close to very serious injury when a burning beam almost landed on him. Applying
Hambrook v Stokes (1925) and McLoughlin (1982), shock and trauma experienced by a mother who
learns of a tragedy involving her child is not only foreseeable but real. It must also be shown that shock
was sudden, as Alcock has stated that the gradual accumulation of psychiatric harm is not recoverable.
It is arguable that the news of her son being involved in the fire incident did come suddenly and as
such this requirement will be satisfied.

Further, McLoughlin affirmed by Alcock, require that proximity be satisfied on three levels,
namely proximity in relationship between the secondary victim and the injured victim, proximity in
time and space to the horrifying event or its immediate aftermath and that the event was experienced
through the secondary victim’s own unaided senses. With regards to proximity in relationship, Alcock
provides that parents and children are presumed to fall within a sufficiently proximate relationship
that it would be foreseeable for one to suffer shock if the other is involved in a horrifying event. Bunty
would have no issues satisfying proximity in relationship with Sam. However, it is also necessary that
Bunty was proximate to the tragic event or its immediate aftermath, which on the facts, cannot be
established. Duty is restricted to those who were at the scene of the tragedy, such as the mother who
arrived at the scene of the accident to find her deceased daughter’s remains in Ghalli-Atkinson v
Seghal (2003) or those who arrived at the aftermath of the tragedy within short span of time, such as
the mother McLoughlin who arrived at the hospital within an hour from the tragic event, to find her
children and husband still covered in dirt from the said event. Since Bunty had only learnt about the
incident through the media and had not been at the scene involving her son or at the immediate
aftermath, she would fail on the second proximity requirement. Further, Bunty would also fail to
satisfy the requirement of having encountered the fire with her own unaided senses as she saw the
news on social media. The facts also do not suggest that she had seen scenes of her son in an injured
state and as such will not be able to fall within the exception in Alcock, where it was held that seeing
a loved one in a tragic scene or seeing identifying features of a loved one on television may count as
actual seeing. As such Bunty would ultimately not be owed a duty of care and would not be able to
pursue a successful action against Mark in negligence. In conclusion, only Fran’s son and Sam, would
have an arguable case. They are, however, advised that they would have to go on to establish that
Mark did breach the duty owed to them, that he caused their injury and that their injury was not too
remote.
Sample 3:

2005 (ZB) Q1
Peter, aged 10, and Robert, his best friend from school, went on a visit to a funfair held at Gammatown
Technical College. Peter’s grandmother. Louisa, accompanied them. Peter went for a ride on the
Railway of Death. The Events Officer at the College had seen the Railway of Death advertised on the
internet by Vielangst, a German company, and arranged for them to install it for the funfair. As Peter’s
carriage went around the track, it came off the rails, trapping Peter against the wall. A safety
mechanism at once stopped the railway. Samuel, an 18-year-old student, who had volunteered to act
as the attendant on the Railway of Death, climbed up and into the carriage to comfort Peter until the
ambulance arrived. Peter’s injuries were however so severe that he died in Samuel’s arms before the
ambulance arrived. Robert, Louisa and Samuel are all suffering from a severe psychological illness as
a result. Advise them as to any claims against the Technical College. [You should ignore the possible
claims against Vielangst.]

Answer Guide:

The potential claimants here are Peter’s estate Robert, Louisa and Samuel. The potential
defendant is Technical College [We are told to ignore possible claims against Vielangst]. The potential
action in tort is in occupier’s liability and negligence. [Psychiatric damage is a head of damage and not
in itself a tort and it is essential to establish the underlying tortuous claim]

Under OLA, under the discussion of liability, arguably the College would be liable toward Peter
if they had not been competent in picking Vielangst off the internet and are unable to discharge their
duty under Section 2(4)(b) OLA 1957. If they had competently discharged their duty in choosing the
independent contractors then it is submitted that the independent contractors would be liable
towards Peter and thus his estate.

Firstly, with regard to Louisa, Peter’s grandmother, she must first establish that her
psychological illness is a recognised illness. Secondly, she must show that her psychiatric illness is
reasonably foreseeable. She must show that a person of ordinary fortitude or “customary phlegm”
(Lord Porter in Bourhill v Young) might reasonably have suffered psychiatric illness in the
circumstances. The next issue to be ascertained is whether she is a primary or secondary victim as
different principles apply.

According to the case of White v CC of South Yorkshire in order to qualify as a primary victim,
the claimant must establish that he or she has been placed in physical danger by the defendant’s
negligence (or at least has been put in reasonable fear for his or her physical safety). The House of
Lords in Page v Smith held that reasonable foreseeability of psychiatric illness need not be established
when physical injury was reasonably foreseeable. On the facts, Louisa clearly would not be a primary
victim as she was not in physical danger herself and it is not reasonably foreseeable that she could be
in physically injured due to the defendant’s negligence. Hence, Louisa only option would be to argue
as a secondary victim.

A secondary victim is one who suffers psychiatric injury because of witnessing an event,
though they themselves are not in danger. The case of Alcock v Chief Constable of South Yorkshire
followed the approach of Lord Wilberforce in McLoughlin v O’Brian their Lordships held that
“secondary victims” of psychiatric illness had to show not only that their injuries were reasonably
foreseeable but the claimant, here Louisa must satisfy three additional “control mechanisms”,
designed to restrict the scope of liability. [Note the considerations why the courts seek to limit such
claims]. These control mechanisms were later reaffirmed and reformulated by the House of Lords in
Alcock v Chief Constable of South Yorkshire.

Firstly, Louisa would have to show that there is proximity of relationship with the “immediate
victim”, here Peter (the class of persons whose claims should be recognised). According to their
Lordships in Alcock there must generally be a close relationship of love and affection between the
“secondary victim” and the “immediate victim” of the accident. Such a relationship could be presumed
to exist in the case of spouses, parents and children (but the presumption could be rebutted by
evidence that the parties were estranged) Siblings and other relatives (such as grandparents, uncles
and aunts) would not normally be regarded as having the requisite closeness of relationship, unless
they could show that, because of special factors, such a relationship did exist.

Lord Keith in Alcock stated that, “… the question seems to be given the relationship between
the plaintiff and the person injured was shock reasonably foreseeable?" On the facts, we are told that
Louisa is Peter’s grandmother. Would she be able to satisfy this condition? It is submitted that if they
share a particularly close relationship, she may satisfy this requirement.

Secondly, she would have to satisfy the proximity in “time and space”. Their Lordships in
Alcock held that, to succeed as a secondary victim, a plaintiff have to show a high degree of proximity
to the accident in time and space. On the facts, we are told that Louisa accompanied Peter and Robert
to the funfair. Is there proximity of space and time? Arguably, ‘yes’. Thirdly the means by which the
psychiatric illness is caused is important. This element requires that this must be by sight or hearing
of the event or its immediate aftermath. Their Lordships in Alcock considered a number of additional
points under this this heading, one of it being the “sudden shock” requirement. It was reaffirmed in
this case that the psychiatric illness in question must result from the sudden psychological impact of
witnessing a single event or its immediate aftermath, as opposed to being caused by subsequent
reflection on an event, or prolonged exposure to distressing circumstances.

Lord Ackner in Alcock stated that the illness must be caused by the, “sudden appreciation by
sight or sound of a horrifying event which violently agitated the mind”. In Jaensch v Coffey (1984),
Brennan J gave his understanding of shock: “…the sudden sensory perception, that is, by seeing or
hearing or touching, of a person, thing or event, which is so distressing that the perception of the
phenomenon affronts or insults the Plaintiff ’s mind can cause a recognisable psychiatric illness”.

In the case of Sion v Hampstead Health Authority, the defendant health authority applied to
strike out the claimant’s claim for damages for psychiatric injury allegedly caused by witnessing the
deterioration and death of his son over a 14-day period. The judge struck out the claim as disclosing
no action on the account of the absence of any element of “shock”. The Court of Appeal upheld the
judge’s decision as the psychiatric injury was attributable to a continuing process over a 14-day period
rather than being due to the sudden appreciation by sight or sound of a horrifying event.

In Walters v North Glamorgan NHS Trust, the court held; "There can be no doubt that these
circumstances, witnessed by the [respondent], were distressing in the extreme and capable of
producing an effect going well beyond that of grief and sorrow." However, in Tan v East London and
City Health Authority, the House of Lords made it clear that merely being informed of the incident by
a third party was not sufficiently proximate. On the facts, we are not told where Louisa was at the
time when the carriage came off the rails and trapped Peter against the wall. Would Louisa be able to
satisfy this condition? If she was elsewhere and was told about the accident then arguably she would
not have a claim.
 Next with regard to Robert, it is arguable that he was not in physical danger himself. We are
told on the facts that it was Peter’s carriage that went around the track and came off the rails hence
Robert was not in any physical danger and thus would not be a primary victim. The issue is whether
he (through his guardian ad litem) could claim for his psychological illness against Technical College?
As a potential secondary victim, arguably he would have to satisfy certain conditions. Firstly, being the
illness is a recognised psychiatric illness. Secondly, that psychiatric harm is a reasonably foreseeable
consequence of the defendant’s negligence. Thirdly, Robert would have to satisfy the “control
mechanisms” in Alcock. Would Robert be able to satisfy the proximity of relationship with Peter? We
are told that he is Peter’s best friend at school. He may satisfy this requirement.

Next with regards to Samuel, likewise, he would have to satisfy the conditions discussed above
to successful bring a claim for his psychological illness. On the facts, we are told that Samuel climbed
up into Peter’s carriage, comforted him and Peter died in Samuel’s arms. Now, if there is a possibility
that this dislocated carriage could still cause physical harm then Samuel could claim as a primary victim
(though the chances are slim here based on the facts). It is more highly likely that Samuel’s possible
claim would be as a secondary victim, however, he would have to satisfy the requirements as
discussed above. Again, like Robert arguably he would not be able to satisfy the proximity of
relationship as he has no previous emotional ties to Peter and is just a volunteer attending on the
Railway of Death.

Samuel would also try to bring this claim as a rescuer, as his act of climbing into the carriage
could be argued as an attempt to rescue Peter. Previously, before the case of White v CC of South
Yorkshire, following the case of Chadwick v British Transport Commission rescuers were given special
treatment for the purposes of psychiatric illness claims. They need not establish that they had been
in physical danger to qualify as “primary victims”. With regard to the position of rescuers now, White
applies. The House of Lords held by a majority that there was no special category of rescuers for this
purpose and that rescuers must either satisfy the “narrow” definition of “primary victims” (by being
in physical danger) or must bring their claims as “secondary victims” and satisfy the Alcock criterion.

In Winfield v Jolowicz, Tort, 18th edition, it is stated that “…While it is well established that a
rescuer may be owed a duty of care by the person responsible for the danger, that is simply because
the fact that he is engaged in a rescue makes his presence foreseeable and negatives the arguments
that he has assumed the risk of injury or that his intervention has broken the chain of causation; it is
not a reason for equating him with a primary victim…and for dispensing with the requirement that he
should have a relationship of love and affection with threatened..." Further, “there can be no doubt
that rescuers are not to be treated as a special category and must satisfy the Alcock control
mechanisms.” Based on the above authorities would Samuel be able to claim as a rescuer? It is
submitted, that he may fail.

What about Samuel’s personal involvement and feeling that the railway which he was
supervising had caused the death of the child? Could he be an “unwitting agent” where because of
the negligence of the defendant, here the College, he is placed in a situation where he reasonably
thinks that he has caused the death of Peter? Following the case of Hunter v British Coal Corp and
another, the courts held that the plaintiff was not involved as an actor in the accident in which C died,
as he was 30 metres away when the hydrant burst, and he only suffered his psychiatric illness after
being told of C’s death some 15 minutes later and because he felt responsible for it. This did not fall
into the category of primary victim because the claimant’s psychiatric illness was regarded as an
abnormal reaction to the news of his colleague’s death, triggered off by his own irrational feeling of
responsibility. Following Lord Hoffman’s remarks in White, “unwitting agent” (the involuntary cause
of the death, injury or imperilment of the immediate victim) cases might be exempt from the normal
control mechanisms and there appears to remain some scope for the courts to develop the law in
situations where the claimant is an “unwitting agent”. More recently, in Monk v PC Harrington, it was
held that the “unwitting agent” does not only have to satisfy the requirement of proximity in
perception and time and space to the incident, but that the shock must be caused by a reasonable
belief that he was responsible and not a general feeling or guilt or fear of being blamed. On the facts,
it is submitted that Samuel may not satisfy this requirement as the belief that he was responsible
would not be accepted as reasonable. He will most likely fail to establish duty here.

Essay Questions

Sample:

2001 (ZB) Q2
“Even after judicial attempts to clarify the principles governing liability for psychiatric harm and
package claims neatly into primary and secondary claims, loose ends still remain.” Discuss.

Suggested Answer:

This question concerns the tort of negligence, specifically recovery for psychiatric injury. In
answering this question, the candidate will discuss the legal criteria for establishing a claim for
psychiatric injury with particular emphasis on the distinction between primary and secondary victims
under English law and the requirements for each category, as well as the judicial approaches to the
two different categories of victims. It is also important to analyse the various control mechanisms
imposed in order to restrict claims. The candidate will first consider the general legal requirements
that need to be satisfied in order to bring a claim for psychiatric injury. There is but one universal
criterion that one needs to satisfy in order to recover damages for psychiatric injury. The claimant
must prove that he is suffering from a recognised psychiatric condition. This is in line with Lord
Denning’s view in Hinz v Berry that “in English law no damages awarded for grief or sorrow caused by
a person’s death.”

The law categorises potential claimants as either primary or secondary victims. This distinction
can be traced back to the 1900’s in Dulieu v White where recovery was only permitted for those who
suffered shock through a reasonable fear of injury to themselves, but it was in Alcock v Chief Constable
of South Yorkshire that it was “set in legal stone”. Lord Oliver described primary victims as “those in
which the injured plaintiff was involved as participant” and secondary victims as “those in which the
plaintiff was no more than the passive and unwilling witness of injury to others.” White v Chief
Constable of South Yorkshire classifies claims as involving (i) those who suffer physical injury and go
on to suffer psychiatric injury (primary victim), (ii) those who were put in actual danger of physical
injury or reasonably believed themselves to be (primary victim) and (iii) those who witnessed tragedy
involving death or injury to another, and go on to suffer shock (secondary victim).

The case of Page v Smith provides the current law for primary victims. In Page, the House of
Lords held that in order to be classified as a primary victim, the claimant must either prove that he
suffered shock after suffering physical injury, that he was in actual danger of physical injury and went
on to suffer shock, or that he reasonably believed himself to be in danger and went on to suffer shock.
Lord Lloyd equated physical injury to psychiatric injury and held that the issue was not whether
psychiatric injury had been foreseeable, but whether personal injury had been. As a result, primary
victims no longer need to show that their psychiatric injury was reasonably foreseeable in order to
establish a duty of care. This is contrary to older cases such as Dulieu and Hambrook v Stokes where
shock had to be a reasonably foreseeable consequence of the negligence.
 The decision in Page has attracted a lot of criticisms from commentators and judges alike. In
White, Lord Goff in his dissenting judgement described the decision on Page as “a remarkable
departure from... generally accepted principles.” Nolan further puts forward two criticisms about the
Page approach. First, it completely “cuts across” the Alcock criteria, where the distinction was
between those whose shock was caused by fear for themselves, and those whose shock was caused
by fear of others. Nolan says that Lord Lloyd’s reasoning “obliterates” that distinction, because even
where the claimant’s psychiatric injury is caused by seeing what has happened to another, he is
classified as a primary victim if it just so happens that he could have been hurt instead. Second, he
notes that the Page approach is illogical, as there is no necessary correlation between physical and
psychiatric risk. Commentators have also concluded that the Page decision has an expansionary effect
that in some circumstances the area of foreseeable physical risk created by the defendant’s breach
could be very extensive.

Those who cannot be classified as a primary victim will be classified as a secondary victim. By
definition, such claimants suffer psychiatric injury because of fear for the safety of another. Secondary
victims are subject to several control mechanisms which were first identified by Lord Wilberforce in
McLoughlin v O’Brian where his Lordship felt that policy considerations called for a stricter approach
and that recovery by secondary victims should be subject to special restrictions. Next, the psychiatric
injury must be induced by sudden shock. Lord Ackner in Alcock said that “shock... involves the sudden
assault on the nervous system that violently agitates the mind.” Finally, the psychiatric injury must
have been foreseeable in a person of ordinary fortitude. A claimant can only recover if it was
reasonably foreseeable that a person of ordinary fortitude in his position would have suffered such
injury as a result of the defendant’s negligence. This formed the basis of the restrictions laid down in
Alcock, which are proximity in relationship between the claimant and the primary victim, proximity in
time and space, and the means by which the shock is caused. Barristers usually refer to these criteria
as “nearness, hearness and dearness.”

First, the House of Lords in Alcock made it clear that a secondary victim must have had a close
tie of love and affection with the primary victim in order to claim for psychiatric injury. Lord Ackner
held that there is a rebuttable presumption in favour of parental or spousal ties. The second control
mechanism is that the claimant must go on to prove that he was also proximate in time and space to
the event that caused the shock. However, in McLoughlin, this requirement was extended so now it
is sufficient if the claimant arrives at the scene in the “immediate aftermath” of the horrifying event.
This is because “to insist on direct and immediate sight or hearing would be impractical and unjust”,
as Lord Wilberforce noted. The third requirement to be satisfied is the means by which the shock is
caused. This limitation is related to the second one and is satisfied where the claimant witnessed the
event with his unaided senses. A claimant will not be able to recover if psychiatric injury results simply
from a communication by a third party or if he witnesses it through a medium like on the television.
Lords Ackner and Oliver agreed that there might be circumstances in which the element of visual
perception would be provided by witnessing the actual injury of the primary victim on live television
broadcast but the scope for such actions would appear to be very limited.

Here it is apparent that psychiatric injury cases in England have produced a complex body of
law in which the courts have attempted to keep its potential for expanding liability under control by
drawing arbitrary lines around those claimants eligible for compensation. Even Lord Oliver in Alcock
conceded that he was unable to defend the law “as either entirely satisfactory or as logically
defensible.” Moreover, the decision in Page which focuses on physical risk has also added uncertainty
to the primary-secondary victim boundary. Why then is this distinction between primary and
secondary victims and the various control mechanisms still applicable today if they are so complex
and problematic? There are several reasons which include the risk of fictitious claims, the difficulty in
quantifying claims, the problems of proving the causal link between the defendant’s negligence and
the injury of the claimant, and of course the floodgates argument. Lord Steyn in White stated that
there is a judicial desire to prevent a flood of litigation by permitting a wide class of individuals to
make a claim. However, commentators have dismissed these reasons. Nolan noted that the
floodgates argument is actually a “false spectre”, and that the requirement of a recognised psychiatric
injury operates effectively at limiting claims. It is commonplace to dismiss concerns about fictitious
claims for psychiatric injury on the grounds that they do not really exist.

How then do we move forward? Reform is often called for in this area of law. Stapleton in ‘In
Restraint of Tort’ advocates the complete abolition of recovery in tort for pure psychiatric harm. She
argues the case for a return to the harsh, but clear rules of Victorian judges contending that “no
reasonable boundaries for the cause of action can be found and this is an embarrassment to the law.”
However, Lord Steyn in White said that this would be contrary to precedent and is highly controversial,
and that only Parliament can take such a step. Abolishing or limiting rules applicable to psychiatric
harm is also not an option. Lord Steyn stated that “there are cogent policy considerations against such
a bold innovation.” The Law Commission in their report ‘Liability for Psychiatric Illness’ recommends
a ‘middle ground’. They recommend that only the condition that secondary victims enjoy a close tie
of love and affection should remain and that all the other control mechanisms would be abolished.

Perhaps arguably the best way forward is to adopt the approach taken by the Canadian
Supreme Court. In the Canadian case of Mustapha v Culligan, the SC Canada eschewed the primary-
secondary victim distinction used in English courts in favour of a simple test of reasonable foresight of
nervous shock to the plaintiff, qualified by an open-ended list of circumstantial and policy factors to
be weighed by each court. To limit the potentially large scope of liability, McLachlin CJC stated that
the risk of injury must be a “real risk” and the plaintiff is expected to be a person of ordinary fortitude
in order to recover. The Supreme Court has opted to rely on the traditional test for negligence of
reasonable foreseeability and the common sense of the judiciary in determining what a person of
ordinary fortitude should be expected to bear.

In conclusion, it is evident that the current law on psychiatric injury is in a mess. It is submitted
that reform is not on desired but is necessary. The most likely mechanism of reform is the Supreme
Court and the chances of reform look favourable as recent cases have recognised the mess in which
the current law is in. It is submitted that the best method of reform is to adopt the simple yet effective
approach taken by the Australian High Court and the Canadian Supreme Court. That being said, until
there is actual reform, it is clear that “loose ends still remain.”

2. Negligence: Duty of Care for Pure Economic Loss and Negligent Misstatements (Chapter 5)

Problem Questions

Sample 1:

2013 ZB Q3
Queenie and Ross are both members of the board of a charity. Ross is a solicitor who advises the board
on relevant legal matters. Queenie was chatting to him over coffee after a meeting and said, ‘I had no
idea you were a lawyer. We had a funny experience a couple of years ago. Our daughter Petal had a
holiday job with a garden centre. She had to unpack some paving stones that had been supplied to
the centre. One of them broke apart in her hands as she took it out and she was badly cut. We thought
it was OK at the time and she was patched up, but it soon turned out she had a rare bone condition
she didn’t know about and now her bones have become permanently weakened and cause her a bit
of pain. We’ve often wondered if she might have had a claim.’ Ross replied, ‘Well, I’m not a personal
injuries lawyer, but it doesn’t seem very likely. She would have to prove negligence and that looks
difficult, doesn’t it? And her boss wouldn’t have known about her bone condition and so there wasn’t
much he could have done about it.’ Another year has elapsed and it is too late to sue the garden
centre. Petal has started a law degree and now wonders if she could sue Ross. Advise her.

Suggested Answer:

The facts in question relate to the area of negligent misstatements causing pure economic
losses. The issue is whether Petal, the claimant, will be able to bring a successful claim against Ross,
the defendant, for his advice that arguably resulted in her economic loss on the facts. Petal’s suffered
loss in that, if not for Ross’ negligent advice she may have recovered compensation for the injury
sustained while working at garden centre. Ross’ advice appeared to have been carelessly made,
misinforming Petal’s parents as to her prospects of recovering compensation. Petal’s losses are in the
form of damages she ought to have received. Had she known that her prospects of recovering were
better than advised by Ross, she probably would not have suffered the loss of damages for personal
injury. This forms her pure economic loss on the facts and Ross’ advice is actionable as a negligent
misstatement. She would want to sue Ross under negligence and will have to establish the conditions
for liability: duty, breach, causation and remoteness of damage: Lochgelly Iron v McMullan

Where a negligent statement causes pure economic losses, it used to be recoverable only
upon proving either fraud, dishonesty or breach of contract: Derry; Candler. Economic loss that flows
from property damage or physical injury can be recovered since they are consequential upon such
damage or injury, but not where it stands alone, i.e. was sustained in the absence of any physical injury
or property damage: Spartan Steel. Courts are reluctant to allow claims for pure economic loss mainly
for policy reasons, including the availability of insurance, the overlap with contract law, the fear of
unjustly enriching the claimant, to avoid opening the floodgates of litigation and because pure
economic losses are often the result of taking an investment risk. On the facts, Petal’s losses are purely
economic and caused by negligent advice. Hence, the current rules on duty summarised in CEC v
Barclays Bank will apply. Duty may be determined using the incremental approach by referring to
precedent or using the general test of assumption of responsibility laid down in Hedley Byrne. If this
fails, Caparo v Dickman also provides an alternative test.

Petal is advised that to establish duty, the Hedley Byrne test will first be considered. In Hedley
Byrne, Lord Reid stated that negligent words must be treated differently from negligent acts. Thus,
the Donoghue v Stevenson test of foresight and proximity does not apply. Instead, something more
is needed, i.e. a special relationship (SR), voluntary assumption of responsibility (VAR) and reasonable
reliance (RR). (Lord Reid, Hedley Byrne).

SR is said to be akin to contract, in that the recipient “gives consideration” in the form of loss
suffered through reliance (Lord Devlin). It will arise where the defendant, having special skills to
advice, knew that he was being trusted to exercise due skill and care in advising, knowing that the
claimant placed reliance on the statement (Lord Reid). Lord Reid stated further that SR usually does
not arise where the advice is given informally, on a social occasion or outside a real business context.
Therefore, in Esso Petroleum v Mardon, SR was deemed to exist because Esso Petroleum has the
necessary expertise and skills to advice and advice was given in relation to an actual business deal.
However, SR did not arise in Mutual Life & Citizen’s Assurance v Evatt where the defendant advised
on a matter in which he was incompetent and lacked expertise to advise.

However, in Chaudhry v Prabhaker, SR was deemed to exist where the defendant advised the
claimant on the purchase of a second-hand car, even though he was not a true expert on the matter.
Duty of care arose because the occasion was not a purely social one. In Lejonvarn v Burgess it was
also held that SR arose where the claimant and defendant were neighbours because the defendant
knew and exercised her specialist skill for the claimant’s benefit in an actual transaction.

Here, Ross will argue that no SR can arise because the advice was given in a purely social
context, casually and without knowledge of any possible lawsuit to claim damages. Contrasting with
Chaudhry and Lejonvarn, on this basis, a SR will not be found. He will also argue that he was not a
personal injury lawyer and as such, was not competent to advice and cannot form SR: Mutual Life

Further, Ross will argue that the conversation took place between him and Queenie and not
with Petal. As such, he did not directly advise her and could not form the necessary SR. This situation
is comparable to cases involving tripartite scenarios, where the advice is given at the request of one
party, but the party who relies and suffers loss is another. In such cases, it has been held that SR may
arise where the party making the statement knows that the statement will after all be relied on by
another: Smith v Eric Bush.

Also, where it is obvious that a third party who did not request the statement would certainly
be counting on the defendant to exercise care in making the statement, SR will be deemed to arise
because the statement maker is well aware that the statement will affect the third party: Spring v
Guardian Assurance. However, if there was no reason to think or expect that the statement made
would be communicated to a third party who would rely on the same, then SR will not arise: James
McNaughton v Hicks Anderson.

On the facts, given the circumstances of the conversation (very spontaneous, unplanned and
casual) and the manner in which Queenie talked about Petal’s injury (“we’ve often wondered…”), it is
argued that it does not seem as though Queenie was communicating to Ross that his advice was being
sought in view of an actual lawsuit that Petal was considering. While it may have occurred to Ross that
his advice might affect Petal as to her prospects of recovering compensation, this is uncertain. In Smith
and Spring, it was certain to the defendants that their statements would affect the claimant’s financial
position. Distinguishing from these cases, it is submitted that SR will not arise on the facts. Further, in
Spring, it was held that given the defendant’s knowledge of the claimant’s reliance, there was
sufficient proximity to impose duty on the defendant’s part. In Spring, the Courts had also considered
the issue of duty in light of the Caparo elements for duty.

In CEC, it was explained that the Caparo approach is an alternative test to duty. However, it
was also explained the Caparo test need not always be resorted to in every case. If the requirements
of SR, VAR and RR are made out, there may not be a need to further administer the Caparo test.
Indeed, whichever formulation is used, the outcome is likely to be the same according to Lord
Hoffman. However, where the conditions of the Hedley Byrne test are not met, it is possible to then
consider the Caparo test, in particular because the Caparo test allows the question of duty to be
determined with policy considerations in mind (third limb: ‘just, fair and reasonable’).

With this is mind, it is submitted that even if the Caparo test is employed OTF, it is highly likely
that the proximity requirement will not be satisfied, for the same reasons that SR will not be satisfied
– absence of knowledge of concrete reliance. Thus, both the Hedley Byrne and Caparo approaches
will not help Petal. In any event, the VAR condition will also be considered. In Hedley Byrne, it was
held that the duty should also be imposed where it is clear that the defendant voluntarily provided his
statement or advice, without a disclaimer. In Henderson v Merrett Syndicates, it was held that VAR
would be established where there is a high degree of trust, i.e. where it was clear that the defendant
was being entrusted with the responsibility of safeguarding against the claimant’s loss. What is
required, according to CEC, is a clear sense of voluntariness, i.e. taking responsibility for the outcome
in general and this is judged objectively. In CEC, it was explained that VAR was not a necessary
condition for duty in itself, but that evidence of VAR would be a strong reason to impose duty in itself.

On the facts, however, it is argued that the necessary degree of voluntariness is lacking on
Ross’ part. He almost did qualify his advice by saying that he is not a personal injury lawyer.
Objectively, it cannot be said that anyone in Ross’ position, having a casual conversation with Queenie,
would truly and voluntarily accept responsibility for the outcome of their advice in the circumstances,
seeing as his advice was not being sought formally. It is further submitted that this absence of VAR is
likely to also further negate a finding of proximity, even if the Caparo approach is considered.

Lastly, under the Hedley Byrne test, it has to be shown that the claimant had relied on the
defendant’s advice and that this reliance was reasonable. Reliance will be established where it is clear
that the claimant acted according to the defendant’s advice, or based an important decision on the
same. The facts, however, do not suggest that Petal was truly depending on Ross’ advice. The intention
to bring a civil suit is not even concrete in the first place as Petal and Queenie had only wondered if
Petal ever had a claim. They had never sought legal advice properly as may be expected from one who
genuinely intended to seek compensation. In fact, Petal is only considering suing Ross now after
starting a law degree course and the idea of claiming compensation is probably an afterthought.

In any event, to rely on Ross’ advice entirely would probably be unreasonable in the
circumstances. Queenie was informed that Ross is not a personal injury lawyer and she and Petal may
be expected to have obtained further, more concrete legal advice. This was indicated in Steel v NRAM,
i.e. that it would be unreasonable to rely on superficial representations made by solicitors and that
parties can be expected to properly engage legal advice to receive more accurate, thorough and
relevant advice. Applying this, Petal will fail to satisfy the reasonable reliance requirement.

It is submitted, that it is unnecessary to consider the remaining ingredients of the Caparo test
here, as the conclusions on foreseeability and proximity are likely to be in the negative for the same
reasons explained above when considering the SR, VAR and RR criteria. Further, there is also no
compelling reason OTF, to consider the justice, fairness and reasonableness of imposing duty here,
since any public policy reasons for imposing duty are clearly absent on the facts. In fact, to impose a
duty in such situations in the given facts, is likely to go against public policy; it would be unfair,
unreasonable and unjust. It would open the floodgates of litigations and deter the exchange of casual
opinions between acquaintances.

As a final resort, Petal may try and compare herself with the beneficiaries in White v Jones.
Petal would argue that solicitors advising and acting for a client for the benefit of another party, such
as in a wills situation, would owe a duty of care to the other party, who was after all the true
beneficiary of the legal advice or service. In White, it was held that the solicitor who failed to amend
the client’s will accordingly, resulting in the client’s daughter failing to inherit his wealth per his
intention, did owe a duty of care to the daughter on the basis of the Hedley Byrne SR, VAR and RR
elements. However, White will be distinguished and cannot apply by analogy. Queenie is not a
testator, did not formally engage Ross to advise or act on her daughter’s behalf, and Petal is not in any
way, a beneficiary of Ross’ advice. He did not undertake to act for her benefit. As such, there are no
prospects of Petal successfully establishing duty of care on the facts.

Even though Petal would probably be able to establish breach on Ross’ part for his negligent
advice that falls below the professional standard of care expected of him (Bolam, Edward Wong
Finance Ltd. v John Stokes & Master (1984)), whether factual causation and legal causation can be
established is doubted. As such, in conclusion, Petal will not be able to establish negligence against
Ross.
Sample 2:

2015 (ZA) Q7
Hasan and Devla both inherited £90,000 from their recently deceased parents. Hasan decided to
invest his money in a country house retreat and Devla decided to invest in shares. Devla’s best friend
(Edward) was a financial adviser and during a drinks party advised Devla to invest in a company (JOY
UK) which organised children’s parties. Devla was very interested in the prospect but wanted to check
the company’s audited accounts before making a final investment decision. The audited accounts
showed a healthy profit and so Devla invested £40,000. Unfortunately, the audited accounts had been
prepared by an accountant (Ponsonby) who was dismissed for professional negligence. Hasan’s
attractive country cottage was found to have been built on insecure foundations and is now subject
to a defect which poses an imminent threat to his health and safety. Devla lost the full amount of her
investment and Hasan has been advised that he must spend £20,000 to cure the defects in the
property. Advise all parties as to their rights and liabilities in respect of Devla and Hasan’s pure
economic losses.

Suggested Answer:

The question concerns losses that are purely economic in nature. The issue is whether Hasan
and Devla may recover their losses under the tort of negligence. Devla is advised to claim against (i)
Edward, her financial advisor friend for his advice to invest in Joy UK, and/or against (ii) Posonby, the
accountant who supplied the audit reports of Joy UK. She would want to recover her investment loss
of £40,000. Hasan, on the other hand is advised to claim against (i) the builder of the country cottage
and/or (ii) the local council who may have approved construction of the cottage purchased by Hasan.
In establishing a successful claim, both Hasan and Devla have to fulfil all conditions for liability, namely
duty of care, breach of duty, factual causation and that damage was not too remote (Lochgelly Iron v
McMullan (1934); Wagon Mound No. (1) (1961)).

It is noted that the relevant damage sustained by Hasan and Devla, is purely economic in
nature, in that neither have sustained physical or property damage. English law in general declines
claims for purely economic losses unless certain exceptions apply. Pure economic loss is thought to
be least deserving of compensation. It is viewed as an inevitable vicissitude of life, especially in
commercial undertakings. It can and is often more effectively covered by insurance and most of the
time, does not arise outside non-contractual relationships. The availability of a legally binding and
enforceable contract between parties usually suffices for the protection of financial interests. Where
a contract does not exist between parties, claims were not always successful in Tort. This has been
expressed in Spartan Steel v Martin (1973), wherein Lord Denning explained that financial loss that
flows as a consequence of some other property damage or physical injury (“consequential economic
loss”) should fairly be compensated while financial loss that stands alone (“pure economic loss”) and
financial loss that is not actual but speculative in nature, do not deserve compensation. The same was
said for investment losses that result from reliance on professional advice negligently given outside a
contractual relationship: Derry v Peek (1889), Candler v Crane (1951).

In Hedley Byrne v Heller (1964), an exception to the “no recovery” rule was created. Where
the claimant was directly advised by the defendant on a specific issue in a financial transaction, and
the claimant reasonably relied on the defendant’s advice, it was possible for the defendant to owe
the claimant a duty in Tort Law, even though there is no contractual relationship between the parties.
For a duty to be owed, it had to be shown that there existed (i) a special relationship between the
parties, (ii) voluntary assumption of responsibility on the defendant’s part and (ii) that the claimant
had relied reasonably on the defendant’s advice. It was found in Hedley Byrne, that there had been a
special relationship between the claimant and defendant and that reliance was reasonable. However,
the disclaimer in the defendant’s statement meant that he did not assume responsibility for the
claimant’s actions and as such, no duty was owed.

The advice given to Devla by Edward seems to fall within the Hedley Byrne circumstance, i.e.
a negligent misstatement issued directly by the maker to the recipient, influencing her to invest. The
question is whether Edward would owe Devla a legal duty for the advice given, where it was given
outside the confines of a contract. Firstly, in relation to ‘special relationship’, the HOL explained that
it would arise where, having the necessary expertise to advice and knowing that the recipient was
expecting the statement-maker to take care in advising, the statement-maker undertakes to advice in
course of business/ in connection with an actual business transaction: Lord Reid, Hedley Byrne. This
concept was considered further in subsequent cases such as Esso Petroleum v Mardon and Chaudhry
v Prabhakar. In both cases, the requirement of special relationship was found to exist for different
reasons; in Esso Petroleum, because the defendant was the relevant person with knowledge as to
sales of petrol and knew the claimant was relying on him to advice correctly; and in Chaudhry v
Prabhakar, the defendant held himself out to be knowledgeable on second hand cars and knew that
the claimant sought his advice in view of a real business deal, even though he and the claimant were
only friends and he was not a professional advisor. An agency arrangement was also found in
Chaudhry. On the facts, although Edward possesses the relevant expertise to form a special
relationship, it is unclear whether advice was given in a true business sense. The advice appears to
have been given during the course of a party, and may be considered to be informal or social, which
in the words of Lord Reid in Hedley Byrne, is not sufficient to form a special relationship. Alternatively,
it can be argued that special relationship would exist is Devla did inform Edward that she was planning
to invest and was relying on him to for his professional advice for the specific purpose. It is important,
however, to note that May LJ in Chaudhry v Prabhakar warned against the imposition of legal duty
between friends and family, stating that it risks jeopardizing ties.

As to whether Edward voluntarily assumed responsibility for his advice, it has to be shown
that he undertook responsibility for the consequences of his advice: Henderson v Merrett Syndicates
(1994). A degree of “voluntariness” is necessary according to CEC v Barclays Bank (2006). In Hedley
Byrne, it was stated that the defendant has the option declining assumption of responsibility by issuing
a disclaimer. If the option is exercised, this would suggest against assumption of responsibility.
Assumption of responsibility may also be present where the defendant is aware that the claimant was
relying on their expertise because of their capacity to advice: Spring v Guardian Assurance (1994). In
Burgess v Lejonvarn (2018), notwithstanding the warning issued in Chaudhry, the SC affirmed that
just because the advisor was a neighbour/friend did not mean duty could not arise, especially where
the advisor knew that the recipient of the advice was relying on the person’s expertise when seeking
their advice. In Lejonvarn, the defendant was deemed to have assumed responsibility to the claimant.
It is submitted on the facts, that Edward appears to have been more than willing to not only advise
Devla, but to commit himself to his advice without reservation. He suggested Joy UK for investment,
voluntarily and without disclaimers, and as such it is argued that the requirement of assumption of
responsibility is satisfied.

As for the reliance requirement, this is usually determined by looking at whether the claimant
acted according to the defendant’s advice or whether the claimant exercised his/her own discretion
on the matter and took other steps that influenced his/her decision-making (Hedley Byrne). Where
the claimant was relying on advice for the purpose of investment, claimants are usually expected to
undertake further enquiry: Scullion v Bank of Scotland. While any reliance on Edward’s advice may
be counted as reasonable, it is submitted that reliance may not be established on the facts. Devla was
interested in the prospects of investing in Joy UK after speaking to Edward but based her decision to
invest on the audit reports furnished by Posonby. If the report had correctly portrayed that Joy UK
was not worth investing in, Edward’s recommendation would have had no impact whatsoever and
Devla would probably not have invested. Besides, Edward’s advice only drew her attention to Joy UK,
and she still felt the need to enquire further. In the circumstances, it is unlikely that Edward would
owe Devla duty for his advice.

In CEC v Barclays Bank the HOL clarified that the question of duty could also be determined
by reference to the Caparo 3-stage test. The authority in Caparo Industries v Dickman (1990) is said
to be of equal force on the issue of whether duty may be owed where negligent misstatements result
in purely financial losses. CEC also concluded that where the assumption of responsibility criteria is
not met, judges may ask instead, whether other requirements such as proximity and foreseeability
justify the imposition of duty. It was also said that the special relationship requirement factor is
relevant to the question of proximity. Thus, where the necessary special relationship is lacking, it is
possible that the necessary proximity would likewise be absent. In Caparo Lord Bridge explained that
for proximity to be found it has to be shown that “the defendant knew that his statement would be
communicated to the claimant, either as an individual or as a member of an identifiable class,
specifically in connection with a particular transaction or transactions of a particular kind... and that
the claimant would be very likely to rely on it...”. As argued above for special relationship, whether or
not the required degree of proximity is found between Edward and Devla would depend on the extent
of Edward’s knowledge of Devla’s intention. If it is assumed that Edward was aware that Devla was
specifically enquiring for the purpose of investing her inheritance, then proximity (and special
relationship) could be satisfied. Lord Hoffman in CEC explained that provided the required relationship
of proximity and foreseeability of economic loss are found, this would obviate the need for policy
evaluation. If it is accepted that Devla’s losses are foreseeable to Edward (because he was aware of
her intention to invest based on his advice), then without further consideration as to justice, fairness
and reasonableness, duty may exist.

Devla would also want to sue Posonby for negligent preparation of accounts, since she relied
on his accounts to her detriment and loss. While Posonby too can be said to have issued a negligent
misstatement in the accounts, it is submitted that the facts sit better within the ambit of Caparo than
Hedley Byrne, because Posonby is unlikely to have issued the accounts directly to Devla, in response
to a specific request (like the claimant in Caparo). It would be logical to assume that Posonby
negligently audited the accounts prior to his dismissal, as he could only have audited Joy UK’s accounts
while still acting as their accountant and not after being dismissed. As such, the accounts were likely
to be audited in discharge of his duty to the company and not at Devla’s particular request. It would
also seem to be the case that Posonby could not have been aware that Devla would be relying on the
accounts for the purpose of investment. Applying Lord Bridge’s requirement of proximity, the
necessary relationship of proximity between Posonby and Devla is unlikely to be found on the facts.
Posonby did not prepare the accounts with Devla in mind. In James McNaughton v Hicks Anderson,
it was held that the negligent accountant who supplied draft accounts did not owe the claimant a duty
of care for his loss, because the statement was supplied to the company directors, who then showed
it to the claimant, who relied and suffered investment loss. The claimant was not directly advised by
the negligent accountant and the accountant had no knowledge of the claimant’s intention to invest
based on draft accounts. The candidate thus submits in line with James McNaughton that Posonby
could not form special relationship and/or proximity with regard to Devla’s use of his accounts.

Given the lack of knowledge at the time of preparing the accounts, Devla will also fail to
establish voluntary assumption of responsibility on Posonby’s part. For assumption of responsibility
to arise, there has to be knowledge of the claimant’s intention to use the accounts, to influence her
decision to invest. As a whole, on imposing duty of care where the statement-maker did not directly
deal with the recipient of the statement, Precis v William Mercer (2005), reiterated the principle in
James McNaughton and emphasized that the element of assumption of responsibility, or some nexus
or proximity between parties was important and necessary to warrant the imposition of duty of care.
As such, it is submitted that Posonby could not possibly owe Devla a duty of care. Thus, it is concluded
that whether the Hedley Byrne test or the Caparo test is applied, the result is the same, that is, that
due to a lack of special relationship/proximity/assumption of responsibility, it is not possible for
Posonby to owe Devla a legal duty.

Hasan, on the other hand would want to recover his losses arising from the country cottage
built on insecure foundations. Since it is now subject to a defect which poses an imminent threat to
his health and safety, it needs to be repaired and Hasan may want to recover the cost of repairs
amounting to £20,000. Apart from a tortious action, provided Hasan is within time, a contractual
action against the party who sold the cottage to Hasan is possible under contract law. The prospects
of success under contract law would depend on the terms of the sale and whether Hasan was a buyer
with notice. Alternatively, if Hasan directly commissioned the construction of the cottage, he would
share a contractual relationship with the builder and may pursue a contractual action against the same
for losses flowing from the defects. The facts are silent as to the details of the purchase and it is clear
that Hasan did not commission the construction of the cottage, thus the prospect of a contractual
action is unclear.

Alternatively, Hasan may want to pursue an action in Tort, firstly against the builders for
negligent construction of the property and/or, secondly, against the local council for negligent
approval of building construction (if at all). To initiate a tortious action, duty of care under negligence
is necessary. Firstly, if Hasan were to sue the builder under Tort (where there is no contract between
them), to establish duty, the case of D & F Estates v Church Commissioners (1989) is pertinent. In D
& F, the claimant attempted to claim against a sub-contractor (with whom claimant had no contract),
in respect of peeling plaster caused by the negligence of the sub-contractor in carrying out plaster
work on the property. No injury to the claimant or further damage to the property had occurred at
the time of suing, which could be attributed to the peeling plaster, and yet the claimant sought
compensation against the sub-contractor for repair costs. The HOL held that no duty of care was owed.
A builder could only liable for hidden defects that had gone on to cause damage to other property, or
physical injury. The defect itself (the peeling plaster) would not be compensated, since it was only a
defect and not ‘damaged property’. The cost of repairs was therefore not a consequential loss but a
purely economic loss. It is submitted that the same would apply in Hasan’s claim, i.e. that the cost of
repairs would be regarded as purely economic and not recoverable. Since the insecure foundation has
yet to cause further damage, it would be regarded as merely defective and not damaged. Hasan’s
claim that it poses imminent threat to his health and safety is inadequate to justify duty. Claims are
usually not allowed in negligence for anticipatory harm.

While Hasan may argue the cost of repairing/relaying flooring was recoverable in Junior Books
v Veitchi, it is submitted that the facts are in contrast and must be distinguished with Hasan’s facts. In
Junior Books the claimant was able to recover cost of repairs because the defendant sub-contractor
(flooring specialist) was specifically informed of the kind of flooring the claimant wanted and failed to
follow specification. The high degree of proximity due to knowledge justified imposition of duty in
Junior Books but the same cannot be said for Hasan’s facts, as no specification was made by Hasan.
He bought the property with its defects. The rule that financial losses attributable to defects in a
property is not recoverable where the defect has not caused actual damage was affirmed in Murphy
v Brentwood DC (1991), where the HOL overruled Anns v Merton LBC (1978). Murphy clarified while
duty of care in negligence may not be established, a claim under Section 1 Defective Premises Act
1972 for defects in construction was possible against a builder or anyone responsible for the defect.

Alternatively, if Hasan were to sue the local council for the insecure foundation, it would have
to be shown that they had been negligent in approving building plans and construction of the cottage.
The facts are silent, as to whether this happened. However, if it did, the decision in Murphy v
Brentwood would apply. In Murphy, the claimant faced similar problems, i.e. insecure foundations,
and he was unable to cure the defective foundation as the cost of repairs was too high. He decided to
sell the property to a buyer with knowledge of the defective foundation, but sustained a loss as the
property was sold for significantly less than its market value. In Murphy, the danger associated with
the poor foundations was considered to be serious, but at the time suing, no further damage or injury
had occurred due to the poor foundations. Applying D & F above, the HOL denied the claim and held
that the insecure foundation was merely a defect, and that no legal duty was owed for the claimant’s
loss (diminution in property value). Since no further damage had occurred yet, and the house still
stood on the same defective foundation, the foundation itself could not regarded as ‘property
damage’ and any financial loss associated with it was purely economic. The same would apply for
Hasan, and it is submitted that he simply will not be able to establish liability under negligence, given
the strict rules on pure economic loss associated with defective properties. This position has been
affirmed in the case of Bellefield Services v Eric Turner (2000) wherein it was held that there was no
damage to ‘other property’ but only pure economic loss where part of a building had burnt to the
ground due to deficiencies in a firewall designed and built by the defendant. One may, however,
question whether the decision in Bellefield is in fact fair, given that it lies in stark contrast with the
circumstances in D & F and Murphy.

A further consideration would be whether Hasan could argue that building the cottage on
insecure foundations threatening his safety was a form of negligent service, to which the Hedley Byrne
exception may apply to establish liability. Alternatively, he may try to apply the Caparo test, since the
criteria in both the Hedley Byrne and Caparo tests have been considered in cases involving a variety
of negligent services. In Robinson v P.E. Jones (2011) the claimant entered a contract with the builder,
for the sale and construction of a house. The builder failed to properly construct the flues for fire. The
claimant alleged breach of contract and negligence under Tort. The COA reviewed Murphy (repeating
that pure economic losses suffered were not recoverable in tort since the builder did not owe any
duty where the defect had not caused any injury/damage). The COA also considered Henderson v
Merrett Syndicates, repeating that managing agents did owe a duty of care in tort to perform services
with reasonable care and skill on the basis of assumption of responsibility, notwithstanding the
existence of a contract. In considering Hedley Byrne, the COA repeated that bankers could be liable
for economic loss caused by giving a negligent misstatement if there was special relationship flowing
from an assumption of responsibility). Having considered these authorities, tt was held that (i) a
builder may owe a duty in contract and tort concurrently; (ii) clauses disclaiming liability would be
considered in light of UCTA in the contractual claim, but in the tortious claim, it may be read as
disavowing responsibility; (iii) for duty to arise under Tort, the builder must have assumed
responsibility to the claimant (judged based on dealings and conduct) – the contract per se is not
conclusive of this; (iv) without assumption of responsibility there is no duty for pure economic loss
(where there is no actual damage or injury) and (v) duty may be owed to the first owner and
subsequent owners for physical injury or actual property damage. On the facts of Robinson, it was
found that there was no liability under Tort, it was not a situation of professional services or advice
and to impose duty here would conflict with contract law. Applying this to Hasan’s situation, it is
submitted that Hasan is likely to fail against the builder of the defective cottage.

In conclusion, it is submitted that both Hasan and Devla’s claims are likely to fail in view of the
strict rules on recovery for pure economic loss. Obvious and serious carelessness on the part of the
potential defendants here are unfortunately of no consequence since no legal duty of care can be
established in the first place.
Essay Questions

Sample 1:

2018 (Oct.) Q8
Analyse the exceptional circumstances in which the courts will impose a duty of care for a statement
that causes pure economic loss.

Suggested Answer:

The question concerns the area of negligent misstatements that cause pure economic loss.
When pure economic losses are sought in a negligence action, claims fail on the basis that there is no
general legal duty not to cause such losses. English law restricts liability for pure economic losses by
denying duty, except in exceptional circumstances. The answer will analyse these exceptional
circumstances in which claims are allowed. The candidate will discuss (i) the definition of pure
economic loss, (ii) the rise of the rule in Hedley Byrne v Heller (1964) and its criteria for liability, (iii)
the extension of the HB rule to other scenarios, the development of the Caparo v Dickman (1990) test
and proceed to conclude on the exceptional circumstances for duty.

‘Pure economic loss’ has been defined in Spartan Steel v Martin (1973) as financial losses that
stand alone, in the absence of any prior physical injury or damage to the Cl. or the Cl.’s property. By
contrast, consequential losses are those that flow from some other physical harm or property damage
sustained by the Cl. As a general rule duty of care may be owed for consequential lossed, but NOT for
pure economic losses. Policy concerns support the reluctance to allow claims for pure economic
losses: (i) economic interests are less worthy of compensation, (ii) burden on Ds particularly high, (iii)
economic losses can be recovered in other ways, (iv) availability of insurance, (v) overlap between
contract & tort: Lord Denning, Spartan Steel. Over the years, exceptions to this rule emerged.

Previously claims for negligent statements causing pure economic loss were not allowed:
Derry v Peek (1889) and Candler v Crane, Christmas & Co. (1951). Liability was limited to when the Cl
& D are in contract with each other, and in extreme cases, where there is evidence of fraud. Reluctance
to allow claims outside the scope of contract stemmed from a fear of extending liability contrary to
established legal principles. However, Lord Denning in Candler dissented, arguing the “fallacy of
contract” calls for a move from the insistence on contract. To limit liability within the confines of
contract is inconsistent with the ‘neighbour principle’ in Donoghue v Stevenson (1932): proximity &
foreseeability should justify duty even where there is no contract between parties. In any event, only
a limited class will be able to claim, and the floodgates of litigation will not be opened

Following this, in 1964, the HOL in HB v H stated that in the absence of a contract, D could still
be liable for negligent statements that cause loss to the Cl., provided certain criteria are met. Lord
Reid in HB stated: “the law must treat negligent acts and negligent words differently” Negligent words
are capable of being circulated, heard & used by many. There is a wide range of people who may be
affected and may sue D. Foreseeability & proximity in the D v S sense may not be enough to limit D’s
liability and might result in extensive liability. Something more is needed to justify the imposition of
duty for careless words/statements. Additional criteria identified in HB are: (i) special relationship, (ii)
voluntary assumption of responsibility & (iii) reasonable reliance

Special relationship (SR) would arise where D is in a position of being able to exercise his
expertise in advising Cl. & he knows that Cl. is relying on him to take reasonable care & he agrees to
exercise his skill for the Cl.’s benefit (comparable to a contractual relationship – “movement of
consideration” indirectly). Usually SR does not arise where advice is given in an informal sense, there
has to be a real business transaction is involved: Esso Petroleum v Mardon (1976) special relationship
was found where the D has the relevant expertise and knowledge to advise. In Chaudhry v Prabhakar
(1989) it was held that special relationship may arise between friends where the advice given by one
friend to the other was in view of a real business transaction and an agency relationship existed.
Recently in Burgess v Lejonvarn (2018) the SC held that special relationship existed between the D &
Cl., friends, where the D undertook to professionally advise and landscape the Cl.’s garden.

Next, voluntary assumption of responsibility (VAR) D undertakes to advise, knowing that Cl.
was relying on him, and agrees to provide his advice without reservation: In HB, it was suggested that
the presence of a disclaimer could indicate that D doesn’t take responsibility for his advice and VAR
will not be satisfied.

Lastly, reasonable reliance (RR) must be satisfied by showing that it was reasonable for the Cl.
to rely on D’s statement. Circumstances will point towards reasonable reliance, such as whether Cl.
financial position depended upon D’s advice & whether D could be expected to take other steps to
protect his financial interest. In Steel v NRAM (2018) the SC, the D (Sols.) represented a buyer in a
commercial sale agreement. In the D’s emails to the Cl., the D made negligent statements assuring the
Cl. in relation to the mortgage, the Cl. relied and suffered loss. The SC held that no duty was owed as
it was unreasonable for the Cl. to rely on the D’s assurances. The Cl. could be expected to carry out its
own enquiries.

The factors stated in Hedley Byrne have influenced the issue of whether pure economic losses
are recoverable. Provided the requirements are met, the rule in Hedley Byrne becomes an exception
to the general rule that usually defeats claims for pure economic losses.

The principles of HB were extended to more complex scenarios where a negligent statement
was made to a 3rd party but where the statement was relied on by the Cl., resulting in loss to the Cl.
In such cases, judges look at whether D knew/ought to have known that Cl. might rely on the
statement to his detriment, in applying the HB criteria for duty. In Smith v Eric S. Bush (1990) the D
negligently surveyed and reported that the value of the property to be purchased by the Cl. was higher
that its actual value. The survey report was given to the mortgage company, to determine the loan
amount offered to the Cl. The mortgage company charged the Cl. for the survey report but gave the
Cl. the option of obtaining her own report. The Cl. could not afford to, and as such relied on the
surveyor D’s negligent report and sustained loss. In an action against the D, the Cl. argued that she
relied on the survey report even though it was not directly shown to her. The D argued that no duty
was owed to the Cl since it was the mortgage company that engaged the D and that the report
contained a disclaimer. The Court nonetheless found that duty was owed since the survey report was
“imposed on the Cl.”

Further, in James McNaughton v Hicks Anderson (1990) D prepared draft accounts at the
request of a company director, who used the accounts to influence the Cl. to bid to take over the
company. D was unaware that the accounts would be used for that particular transaction. Accounts
were negligently prepared and misled Cl. into bidding & Cl. suffered loss. The Ct. held no duty was
owed due to a lack of proximity, special relationship and assumption of responsibility, since the D was
unaware.

The law developed further in Caparo v Dickman (1990) where it was found that the D, auditor
did not owe a duty of care to the Cl., shareholder, for losses in purchasing shares of a company called
Fidelity for the purpose of investment. The Cl. had relied on the negligently prepared audit reports of
the D in choosing to invest. Lord Bridge concluded that the question of duty should be decided
incrementally, by reference to established law and that recourse to a legal test would be justified in
novel situations. The HOL considered whether (i) there was sufficient proximity, (ii) the Cl.’s loss was
reasonably foreseeable and (iii) it would be just, fair and reasonable to impose a duty. The HB criteria
were not applied here as it was not appropriate to ask if a SR could arise between existing shareholders
and auditors of the same company. It was found that no duty was owed. There was no knowledge of
use of audit reports for investment to justify foreseeability and proximity. It can be said that apart
from the HB criteria, the Caparo test presented an alternative test to whether duty could be owed for
pure economic losses caused by negligent misstatements.

After Caparo, judges were led to consider the HB and Caparo requirements in a variety of
scenarios not involving the standard misstatement type cases. In Spring v Guardian Assurance (1995)
even though reference letter given to regulatory board that processes job applications and not directly
to Cl., reference letter did impact Cl.’s opportunity. As such, clearly there was reasonable reliance on
the Cl.’s part. It was found that the element of knowledge gave rise to proximity, that reliance was
reasonable and that the D had assumed responsibility for the Cl.’s loss.

The rule in HB was extended further in cases involving negligent performance of services. In
Henderson v Merrett Syndicates (1995) the Cls. were Lloyd's "names" who were members of
syndicates managed by the D agents. The relationships between the "names", and agents were
regulated by agency and sub-agency agreements which gave the agents absolute discretion in respect
of the names’ investment. The names had given the agents the exclusive rights to undertake risks and
re-insurance on their behalf. There was an implied term in the agreement that the agents would
exercise due care and skill in the exercise of their functions as managing agents. The case concerned
the alleged negligence of the agents in the conduct and management of the names’ investment
resulting in heavy losses. Lord Goff relied on HB in deciding whether a duty was owed to the names in
Tort, and arguably widened the HB rules in this case.

The HOL held: where a D voluntarily assumes responsibility for the economic interests of the
Cl. and where they know or ought to know that their skill or expertise will be relied upon by that Cl.,
a duty of care will arise. The principles extend not only to the provision of information but further to
the provision of services. VAR must be objectively ascertained and applies more commonly to those
possessed of a particular degree of skill or expertise. Lord Goff stated further that if a case is found to
fall within HB criteria, it will not be necessary to consider the fair, just and reasonable test. This is due
to the air of mutuality between the parties. With the assumption of responsibility in this instance
comes the reliance forming a high degree of proximity between the parties. He stressed that if the
information or service is provided on an informal occasion, it is unlikely that there will be an
assumption of responsibility even though the information is freely given or the service voluntarily
provided. The voluntary assumption may be negatived by an appropriate disclaimer. Assuming such a
disclaimer satisfies the requirements of reasonableness under the Unfair Contract Terms Act 1977.
Also, the D must know or ought to know that their advice will be relied upon serves to limit the scope
of potential claimant

It is observed that cases such as Henderson and Spring applied HB and Caparo criteria
together, in relation to one another, concluding that duty was owed. For example, whether D could
owe duty to Cl., the Ct. would look at whether D knew/ ought to have known about the Cl.’s reliance
on their advice/services, whether the Cl. would rely on D’s statement for a specific purpose & whether
D prepared the statement with knowledge of that specific purpose. If this could be shown, proximity
would be established. At the same time, VAR would be established: Spring.

Later, in McKie v Swindon College (2011) D (Cl.’s former employer) sent an email to Cl.’s
current employer containing untrue statements about Cl. resulting in the Cl.’s termination from his
employment, resulting in pure economic loss. Duty was owed on the basis of Caparo. In Law Society
v KPMG (2000), D negligently audited the accounts of a law firm – having the effect of not disclosing
fraud and mishandling of funds. Clients of the law firm who were victims of fraud had to be
compensated using a particular fund held by the Cl. (Law Society). Cl. suffered loss through D’s
negligence. Cl. also relied on D’s accounts as to the administration of its funds in cases involving fraud
by law firms. Caparo was applied & D was held to owe a duty

Following the development of the HB and Caparo criteria, both have now become recognized
as vehicles by which duty may be owed. In CEC v Barclays Bank (2007) it was acknowledged that the
HB test provides one way to establish duty for pure economic losses – this approach is also known as
the VAR approach. Alternatively, whether duty can arise for pure economic losses caused by
misstatements, may also be determined using the Caparo test. The CEC case clarified that in general,
duty can be determined by reference to established precedents, or using the Caparo test, or using the
VAR approach in general.

The HB concept has evolved to the point of being recognized as a wider, more generalized
concept of VAR - capable of being used to establish duty on its own, without other elements like
reliance. This development of the HB concept has been extended to cases of services – legal services
of preparing wills: White v Jones (1995). The D solicitor’s failure to amend the testator’s will according
to instructions resulted in losses to the Cl. beneficiary. Applying HB, a SR was found to exist between
the solicitor and the beneficiary. VAR was satisfied, and duty was upheld even though the element of
RR could not be established. The court waived the element of RR.

It is concluded that the ambit of recovery has been widened with the development of HB and
Caparo principles. As acknowledged by CEC: (i) ‘SR’ may point towards ‘proximity’ – facts will
determine whether there is SR/proximity. (ii) Whichever formulation is used the same result is likely
to be reached: Lord Bingham. (iii) As for VAR, a degree of “voluntariness” is needed. (iv) VAR may be
used as a 1st test. If it exists on the facts, this may be sufficient to impose duty, no need for further
enquiry. (v) If VAR is not satisfied, the Caparo test may be applied and policy arguments considered.
(vi) However, VAR on its own is not a necessary condition in all cases (it is possible for duty to be
established in cases where Cts. don’t find VAR, but are satisfied of other criteria): Lord Bingham. (vii)
It is important to look at the particular facts to decide which set of criteria to use, to determine duty:
Lord Hoffman. (viii) Where there is SR OR proximity, and economic loss is RF, there would be no need
to ask if it is J, F & R to impose duty – SR/ proximity makes it J, F & R to impose duty: Lord Hoffman.
While the development is a marked progress in the law, Lord Hoffman in CEC did also point out that
“There is a tendency, which has been remarked upon by many judges, for phrases like ‘proximate’,
‘fair, just and reasonable’ and ‘assumption of responsibility’ to be used as slogans rather than practical
guides to whether a duty should exist or not. These phrases are often illuminating but discrimination
is needed to identify the factual situations in which they provide useful guidance...” It is submitted that
the careful and consisted application of the HB and Caparo tests would be wise, in ensuring liability is
imposed only where it is truly justified.

Sample 2:

2009 (ZA) Q4
“So, it seems to me that there is good sense behind our present law that in general an innocent but
negligent misrepresentation gives no cause of action. There must be something more than a mere
misstatement. I therefore turn to the authorities to see what more is required.” (Hedley Byrne v Heller
[1963] per Lord Reid). Discuss this statement in the light of developments in the law since 1963.
2019 (October) Q7
‘At bottom, I think the question of recovering economic loss is one of policy. Whenever the courts draw
a line to mark out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of
the defendant.’ (Lord Denning).

2018 (ZB) Q6
“There is a tendency, which has been remarked upon by many judges, for phrases like ‘proximate’,
‘fair, just and reasonable’ and ‘assumption of responsibility’ to be used as slogans rather than practical
guides to whether a duty should exist or not.” Lord Hoffmann, Customs and Excise Commissioners v
Barclays Bank Plc [2006] UKHL 28. Discuss the approach of the courts to determining liability for
statements that cause pure economic loss in the light of this statement.

Suggested Answer:

The law on recovery for pure economic loss is said to be complex at best. The rules on recovery
are difficult to reconcile and comprehend. The task of establishing the necessary legal duty of care is
not simple and as such, unsurprisingly involve policy considerations to some extent. In answering the
question, the candidate will describe and analyze the courts position with regards to duty of care for
economic loss. The answering will explore the meaning of ‘pure economic loss’, the general rule
excluding liability, different scenarios of economic losses and the exception in relation to negligent
misstatement and services. The candidate will then conclude on whether indeed, the law in this area
is driven by public policy considerations.

The starting point in English law in this area is the outright refusal of liability for pure economic
loss. Pure economic losses are losses that are purely financial. It is difficult to justify a claim for them
as they are mostly losses for profits that have yet to come into fruition. To compensate such losses
provides a safety net in an industry of risks which would upset the nature of the trade. If the financial
loss was a consequence of the infliction of property damage or physical injury (such as repairs costs
for a damaged car, medical treatment of injury and loss of earnings), then a claim in tort would be
easily justified but anything less calls for more scrutiny and evaluation (Lord Oliver in Murphy v
Brentwood District Council).

In Spartan Steel v Martin, 3 kinds of losses arose from the defendant’s negligence of causing
a power cut to the claimant’s factory. The first was physical damage to the melt that was in the
furnace, the other was the consequential economic loss for the frustrated sale of the damaged melt
and the final loss was the ‘possible’ profits that could have been generated if there was no power cut
for 14.5 hours. Court of Appeal (COA) allowed the first two claims to proceed stating that the
defendants owed the plaintiffs a duty not to damage their property and any consequential financial
loss flowing from the damaged property. However, further loss of profits because of the power cut
was a ‘vicissitudes of life’ where the burden should be borne ‘by the whole community… rather than
being placed on one pair of shoulders’ (Lord Denning). Such loss is considered “purely economic” and
the general rule provides that it is not recoverable – it is not an actual loss. Undoubtedly, policy
considerations were central in shaping the law so as to limit liability.

There are times when claimants seek compensation for financial losses that flow from damage
to a certain property, but are denied compensation on the basis that such financial loss is purely
economic. Such losses are considered purely economic, because the damaged property in concern
does not belong to the claimant and as such, the claimant cannot say that he sustained property
damage. It would follow that the economic loss he tries to recover, is not consequential since there is
no damage to any of the claimant’s property in the first place (Weller v FMDRI; Leigh & Sillavan v
Aliakmon Shipping). Alternatively, if the property itself cannot be said to be damaged, but merely
defective, then any financial loss purportedly attributable to that defect would also not be recoverable
and would be termed ‘purely economic’. This is because, judges rationalize that property or goods
that are only defective and not damaged do not need to be repaired or replaced and as such and
financial loss suffered as a result of wanting to replace or repair the property or goods is
“unnecessary”, at the claimant’s own choosing and must be paid for by the claimant’s himself. No
recovery is allowed for such financial loss deemed to be purely economic: Muirhead v Industrial
Tankship; Murphy)

Another kind of pure economic loss, is the kind that flows from negligent misstatement, advice
and services, whereby no property damage or physical injury could logically arise, and the only loss is
financial in nature. Examples of such situations include when financial advice is given to induce
investment and the advice proves to be incorrect due to the advisor’s carelessness. In such cases, the
claimant’s loss in the form of a bad investment, is purely a financial loss. In the past, it was not possible
for such a claimant to make the careless advisor pay for the negligent advice; the claimant would have
had to take it as an inherent risk of investment. Thus, the fact of the misstatement itself was not
sufficient to support an action against the wrongful statement maker. It was also often the case that
professional advisory services would only be rendered when they have been paid for and as such, a
contract would typically exist between parties. A non-contracting party who relied on a careless
statement to his detriment simply did not possess the relevant right or standing in law to sue. Thus, it
was believed that a negligent misstatement per se gives no cause of action, no matter how carelessly
false it was, if there was no contract to support an action. The rationale was: ‘if a claim for pure
economic loss can arise under contract law, wouldn’t it be redundant to have an independent action
under tort?’ Besides that, there should be no allowance for one branch of law to award damages but
for another to prohibit. The law should be consistent and not contradict itself under two different
actions. O’ Sullivan in ‘Suing in Tort where no Contractual Claim Will Lie – A Bird’s Eye View’ stated
that the courts won’t allow claimants to use tort in order to evade fundamental rules of contract law.
Judges persistently reinforced that they will not recognize a duty not to cause harm through careless
statements outside a contractual or fiduciary relationship, or actual fraud. This was evident in Derry v
Peek and Candler v Crane. Denning LJ however disagreed with the decision not to impose liability
where there was no contract between the parties, underlining the fallacy of contract and how it was
erroneous in light of the neighbour principle established in Donoghue v Stevenson not to recognize a
legal duty of care outside the parameters of contract law.

While it is arguably fair to say that careless misstatements per se will not give rise to an action
for damages for the above reasons, it cannot be denied that there are genuine circumstances (apart
from fraud) in which there are legitimate reasons why the claimant should be compensated. Over
time, the courts have realized that the need for contractual relationships have expired, that this ruling
‘unfairly prevents legitimate third party from being owed a duty’ (Lord Denning) This realization paved
the way for the groundbreaking case of Hedley Byrne v Byrne. The foundation of the test depended
greatly on whether the statement maker had assumed responsibility towards the claimant, who then
reasonably relies on the careless statement to his detriment. It was decided that this should apply
even where there is no contractual or fiduciary relationship, but where some other relationship can
be found instead, that warrants legal protection. This relationship, for lack of a more precise label, has
been called a ‘special relationship’. The relationship between the parties are ‘special’ and comparable
to a contractual relationship in the sense that there is a mutual exchange of something of value
between parties. The statement maker exercises his skills and issues a statement for the benefit of
the recipient while the recipient relies on his and “puts his money on the word of the statement
maker.” This “trade” between the parties binds them both to a special relationship akin to contract,
minus the tangible consideration. This creates enough ‘proximity’ to overcome the policy objections
to such actions and thus, justifies a duty being imposed. Thus, today, as a result of Hedley Byrne, it is
believed that even where the claimant lacks standing in the form of a contractual right, he deserves
the right to sue for his financial loss because (i) he and the statement maker entered into a special
relationship, (ii) the statement maker voluntarily assumed responsibility towards the claimant even
when he was not contractually bound to; and (iii) the claimant relied on the statement issued by the
statement maker, believing it to be accurate.

The claimant in Hedley Byrne had directly asked for a credit reference about a client from the
defendant, (the client’s banker) and the defendant agreed to furnish it but disclaimed all legal
responsibility for the statement. There had not been a contract between the parties, but the courts
found both claimant and defendant to fall within a special relationship. The claimant clearly relied on
the statement issued by the defendant. However just because the disclaimer was issued, that formed
evidence of the defendant’s intention NOT to assume responsibility for the claimant’s financial
wellbeing. For this reason alone, duty of care could not be established, failing which, Hedley Byrne
would have been the first case in which pure economic loss was recoverable when occasioned by a
negligent misstatement. It is thus safe to say that today, negligent misstatements are actionable. It is
submitted that underlying this rule is the desire to do justice and not merely to restrict liability. While
Hedley Byrne tell us that claims are now possible, there are restrictions to a successful claim. Policy
considerations are still relevant. As a result, the interpretation and application of the conditions laid
down in Hedley Byrne became so varied. For example, in Smith v Eric Bush, the courts absolved the
protection of disclaimer and imposed assumption of responsibility on the defendants. Further, in
Smith the claimant was a third party to the relationship between the valuer and the mortgagee, and
was led to believe that the mortgage would only be approved on the basis of the defendant’s survey
report and no other. It was obvious that Smith was bound to accept and rely on the defendant’s survey
report, and was not free to obtain her own. In the interest of fairness and the policy of protecting
purchasers who were less financially able, judges disregarded the disclaimer applying UCTA 1977.
Where purchasers of higher value properties are concerned, the approach in Smith would not apply.
This is based on the judicial presumption that purchasers of high value properties usually had
unrestricted freedom to obtain their own valuation report from a surveyor of their choosing, as they
would rarely require a mortgage and therefore, rarely be at the mercy of a mortgagor. In such a case,
a claimant purchaser is free to obtain his survey report and not rely on the defendant’s alone. His
failure to do so and decision to rely on the defendant’s careless survey report would be his loss to
bear. (Scullion v Bank of Scotland).

The law on special relationship fluctuates. The Privy Council attempted to narrow the
circumstances that would amount to a ‘special relationship’ and make it exclusive to defendants
whose profession includes the giving of advice (i.e. accountants, surveyors and lawyers). In Mutual
Life v Evatt it was held that the defendant, an insurance agent did not owe a duty of care for his
negligent suggestion about financial investment. Lord Reid dissented, holding that Hedley should
apply in the event of any course of business, as long as there was some careless misrepresentation,
whatever the field. This minority view was later endorsed and adopted in Esso Petroleum v Mardon
to avoid “radically curtailing and virtually eliminating” the Hedley Byrne principle. Now, as a result, as
long as the defendant possessed the required knowledge and skill when advising the claimant, he
would be deemed to have entered into a special relationship with the claimant (Esso Petroleum v
Mardon). Although Lord Reid in Hedley made it clear that the special relationship could arise only in
a business context, the court in Chaudhry v Prabhakar held that the defendant owed the plaintiff a
duty of care. In Chaudhry, the defendant, not a professional in secondhand cars took it upon himself
to pick out a secondhand car for his friend, the claimant’s purchase and personal use. He lacked the
necessary expertise and was simply a self-professed “expert” at secondhand cars. Many would say
that this is not the kind of circumstances envisaged in Hedley Byrne for ‘careless statements giving
rise to negligent liability’; the Hedley Byrne principle was intended purely for real business
transactions in a formal sense. This decision of course was fact-sensitive seeing that the defendant
persuaded the claimant to rely on his words solely and not consult a third-party mechanic, thereby
assuming responsibility and justifying reliance. If not, imposing liabilities for statements made in social
settings would make relationships between friends ‘unnecessarily hazardous’ (May LJ in Chaudhry).

The discussion now turns on ‘voluntary assumption of responsibility’ and ‘reasonable

reliance’. “The language of ‘voluntary assumption’ is particularly slippery…and judicial interpretations
of what it is for a defendant to ‘voluntarily assume’ a responsibility vary in strength” (Barker in
‘Unreliable Assumptions in Modern Law of Negligence’). In Spring v Guardian Assurance, Lord Goff
stated that ‘where the plaintiff entrusts the defendant with the conduct of his affairs… the defendant
may be held to have assumed responsibility to the plaintiff.” The result of this was to impose duty of
care on the defendant, a former employer who issued a false reference about the claimant, to the
regulatory board processing the claimant’s job application within the insurance industry. The false
reference led to the claimant failing to secure employment and income loss. Even though the
reference was issued to the regulatory board and relied on by them, and the defendant had not
actually and directly undertaken responsibility for the claimant’s position, the courts found voluntary
assumption of responsibility and reliance to be satisfied. In other cases, the concept of ‘voluntary
assumption of responsibility’ was interpreted with reference to the notion of ‘proximity’ and
‘foreseeability’ between parties. Courts would look at ‘knowledge’ on the part of the statement maker
to decide whether there was sufficient proximity and foresight of loss, and if there were, then he
would be deemed to have voluntarily assumed responsibility towards the claimant. This was the
approach adopted in cases such as James McNaughton v Hicks and Morgan v Crucible. No duty arose
in James McNaughton since the statement maker had no knowledge that the claimant was relying on
his statement to make an investment decision, and the statement was not even issued directly to the
claimant. However, in Morgan, duty of care was found on the basis that the defendant had knowledge
of the claimant and his intention to rely on the statement in deciding whether to invest.

The English judiciary proceeded to extend the application of the Hedley Byrne theory to
negligent services causing pure economic loss. The is seen in Henderson v Merrett Syndicates wherein
the HOL boldly imposed a duty of care on the defendants, investment agents, for the claimant’s
investment loss arising out of the defendant’s failure to manage and alert the claimant accordingly to
avert potential losses. There was no false or careless statement on the facts, only services rendered
without due care. Furthermore, there had been an existing contract between the claimant and
defendant, and arguably, liability should have been confined within the four walls of the contract.
However, bearing in mind the weak prospects of success under a contractual action (because of the
terms of the contract), and in the interest of justice on the facts, the HOL concluded that liability under
the tort of negligence was strongly justified. There would be no injustice to the defendant since he
would not be compensating the claimant twice, and the element of entrustment (claimant trusting
the defendant with his substantial investment) created a strong case of voluntary assumption of
responsibility and reasonable reliance. The Hedley Byrne theory has also gained favour in the area of
negligent drafting of wills resulting in pure economic loss to beneficiaries. In White v Jones, it was held
that a solicitor, in preparing a will for a testator, owes a duty of care to intended beneficiaries of the
will to prevent them from suffering financial loss as the solicitor had involved himself in the claimant’s
affairs by contracting to draft the will.

Up to this point, the manner in which the Hedley Byrne test was applied over the years is
testament to the belief that policy pervaded the issue of duty. Over time, newer scenarios of negligent
misstatement and services were brought before English courts that appeared to fall outside the reach
of the Hedley Byrne principle. The courts fashioned an alternative to the Hedley Byrne principle,
namely three-stage test set out in Caparo v Dickman for instances when the Hedley Byrne test is
unsuitable. In Caparo the claimant, an existing shareholder of a company (Fidelity), relied on the audit
reports prepared by the defendant (company auditor of Fidelity), and finding that it showed Fidelity
to be a good investment, proceeded to purchase all its remaining shares. This was hugely
disappointing as it later transpired that the audit reports were misleading and false, and the claimant
sustained major financial loss. The HOL was of the opinion that the question of special relationship
and assumption of responsibility could not property be asked and answered on the facts because each
party’s position had been provided for under statute. Statute did not provide for any legal nexus
between the shareholder and the company auditor, and as such courts were in no position to locate
a special relationship on the facts. The better question to ask was whether in the circumstances and
given the operation of statute on the facts, there was (i) sufficient proximity, (ii) foreseeability of loss
and (iii) whether it would be just, fair and reasonable to impose a duty of care. Given that the auditor
had no knowledge of the claimant’s inspection and reliance on the reports for the purpose of further
investment, and given that statute has spoken as to the rights and liabilities of each party in a
company, it was held that all three requirements failed to be fulfilled.

Later, in Custom and Excise Commissioners v Barclays Bank, Lord Bridge and Lord Roskill
highlighted how the three requirements lacked enough precision to be an effective practical test and
were labels describing situations where a duty was held to exist. The only practical benefit of the test
is that it allows judges to view circumstances in light of any prevailing policy and determine the matter
accordingly. For example, in Caparo itself, the accountants did not owe the claimant any duty of care
because it was a shareholder and the size of the class to which it belonged was so wide as to include
potential future shareholders. To extend a duty of care to a shareholder would set a precedent that
would potentially expose accountants to enormous liability and multiplicity of claims.
Notwithstanding, Lord Hoffman in the Customs case concluded by stating that today, one may embark
on the question of duty of care, first by referring to decided cases (‘incremental approach’). If no
decided case exists for the purpose of analogy, the claimant could then consider whether “voluntary
assumption of responsibility” (presumably referring to the Hedley Byrne test) could be found on the
defendant’s part. If yes, having considered the remaining criteria in Hedley Byrne, duty of care may
be imposed. If no voluntary assumption of responsibility is evident from the facts, the claimant may
then proceed to attempt the Caparo three stage test, to try and find a legal duty of care. The Customs
case involved a negligent service that left the claimant with substantial economic loss. The facts were
subjected to both the Hedley Byrne and Caparo tests and it was concluded that no duty of care was
owed by Barclays Bank to the Customs, in respect of the bank’s failure to freeze two clients’ accounts.

It may be argued that in a sense there is no significant difference between the two tests
(Caparo and Hedley Byrne) in that, “special relationship” is so similar in character with “proximity”
and “assumption of responsibility” is somewhat tied to “foreseeability”. Yet, the Caparo test has been
criticized for concealing policy reasoning under the banner of ‘just, fair and reasonable’. The law on
pure economic loss is now inconclusive and still growing, but it cannot be denied that policy
considerations are relevant, mostly in ensuring that liability is found in most deserving cases. It
remains true that for a pure economic loss claim caused by negligent misstatements to succeed, a
misstatement alone is sufficient. So much more is needed, of which policy reasons are driving factors.

3. Negligence: Duty of Care for Public Bodies and Omissions (Chapter 6)

Problem Questions

Sample 1:

2015 (October) Q5
Mildred lives on the first floor of a three-storey house that was recently converted into three self-
contained flats. The property is owned by the Drake Local Authority. On the ground floor of the house
resides an elderly man, Pete, and his grandson, Andrew. Mildred is concerned because she often hears
Pete cry out in pain and she believes that Pete is left alone in the flat on most evenings while Andrew
goes out to nightclubs and restaurants. Mildred reported her concerns to the social care department
of Drake Local Authority but was advised that as a result of a long running investigation into child
sexual abuse at a local authority owned boarding school, other social care reports were being given
low priority. After hearing screams from the ground floor apartment one night, Mildred gained access
into the apartment through an open window and found Pete in a bruised and shaken state. Pete had
been attacked by Andrew. Andrew was arrested, charged with grievous bodily harm and granted bail.
Shortly after, Mildred received threatening notes delivered by hand to the door of her apartment.
Mildred was convinced that the notes were from Andrew and that they were an attempt to discourage
her from giving evidence at his trial. She reported her suspicions to the Drake County Constabulary.
Two days before Andrew’s trial, Mildred was attacked and was hospitalised. Andrew was found to be
responsible for the attack on Mildred. Advise Drake Local Authority and Drake County Constabulary
as regards any duty of care owed in respect of Pete’s and Mildred’s injuries.

Suggested Answer:

The presented facts relate to the liability of public bodies for a negligent failure to act. The
candidate will discuss the possible liability of the Drake Local Authority (DLA) for failing to take action
concerning the abuse of Pete by Andrew as well as the Drake County Constabulary (DCC) for failing to
protect Mildred from the attack by Andrew. The claim against the DLA will be brought by a
representative on behalf of Pete while the claim against the DCC will be brought by Mildred. Both
claims will be pursued under the tort of negligence, which generally requires the claimant to establish
the four criteria for liability, namely, a legal duty of care, breach of duty, factual causation, and that
damage/injury was not too remote: Lochgelly Iron v McMullan (1934); The Wagon Mound No. 1
(1961).

Both claimants, Pete and Mildred are advised that to establish a legal duty of care against the
police and/or the local authority is fairly challenging given that the conduct, powers and duties of such
entities and governed by statute and that judges are often reluctant to intervene on the statutory
framework of duties already set in place by Parliament. Fixing a common law duty of care on the part
of the police and local authority may contradict or cut across complex statutory frameworks already
in place. It is preferred that statute be the sole regulator of the powers, duties and liabilities of a public
body as the appropriate remedy for a breach of public duty would also be properly and adequately
spelt out in the relevant statute. Given that statutes rarely provide a private right to seek
compensation under common law, judges are cautious about allowing compensation under the tort
of negligence. It is also more appropriate for a party to pursue Public Law remedies such as judicial
review, if his/her grievance relates to the non-performance or incompetent performance of a public
body’s public duties. The availability of more suitable remedies, the presence of statutes, the fear of
tampering with the statutory discretion conferred on public bodies and the likelihood of public funds
being channelled towards defending lawsuits (instead of serving the public), all form concrete public
policy arguments for refusing to impose a common law duty of care under negligence against public
bodies.

Notwithstanding the above, the recent case of Robinson v Chief Constable of West Yorkshire
Police (2018) stated that the police will automatically owe a legal duty of care for positive acts that
are carried out negligently, such as injuring a civilian on the street while in pursuit of a suspect. In such
cases, it was held, that the police officer is under the same duty as any ordinary citizen, not to cause
harm to another, where harm was reasonably foreseeable and where there was sufficient proximity
between the parties. Such situations would not be considered novel situations and the Caparo v
Dickman (1990) test for duty of care would not apply. Such situations would be dealt with as
established cases of duty to take care when carrying out an ordinary positive act. The case of Robinson
also states that policy considerations are irrelevant in imposing a duty of care for positive acts.
However, where an omission is concerned, no established duty is owed and the law of omissions with
its general rule and exceptions must be applied to determine liability.

It is submitted that the present facts all involve negligent omissions and not positive careless
acts by the DLA and the DCC. In the circumstances, Robinson would not apply, and instead, the
candidate will proceed to discuss the law on omissions. As a general rule, in English law, there is no
duty to act for the benefit of another, or to go out of one’s way to prevent harm to another whether
caused by natural causes or the wrongful act of another individual. In Stovin v Wise (1996), Lord
Hoffman explained that there are moral, political and economic reasons why there can be no liability
for an omission. Further, in East Suffolk River Catchment Board v Kent (1941), it was held that where
there is no obligation on a private individual to take additional measures to prevent harm to another,
a public body too similarly is not obliged to act. As for the police force, it is sometimes argued that
while other public bodies may not be obliged to act, the police force are responsible for the protection
of every member of public and that therefore an omission on their part ought to attract liability. In
Michael v South Wales Police (2015), Lord Toulson discredited this argument by stating that by
statute, and professional oath, the police force undertakes only to preserve the general order of the
Queen’s subjects. It was also confirmed in Michael that if there is no duty on a private body, then
there is no duty on a public body to prevent harm by a third party based on the general rule on
omissions. A legal duty to act will only arise if any of the exceptions to the rule can be satisfied on the
facts of the particular case.

The exceptions to the general rule on omissions include where the defendant was in a position
of control (Reeves v MPC (2000); Goldman v Hargrave (1967)), where the defendant assumed
responsibility to act (Kent v Griffiths (2001); Henderson v Merrett Syndicates (1995)) or where the
defendant created the danger itself. If any of these exceptions applies, the would be an affirmative
duty to act and the defendant would be found liable in negligence for failing to act.

Turning now to the facts in question, the candidate will first discuss the omission on the part
of the DLA to act when informed about Pete’s condition and the alleged neglect and abuse by Andrew.
Applying the general rule on omissions, one may conclude that the DLA is not liable for failing to act
unless it can be shown in the circumstances that it had control over the situation, assumed
responsibility to act or created the danger itself. The decision in X v Bedfordshire County Council
(1995) is relevant here. In X, The House of Lords dealt with various appeals in respect of alleged
breaches of statutory duty by local authorities in relation to the care of children. Some of the appeals
related to child abuse issues under the provisions of the Children Act 1989, while others related to
education duties imposed on local education authorities by the Education Acts 1944 and 1981. The
HOL held that (i) a breach of statutory duty does not automatically give rise to a private law cause of
action. It will only do so if Parliament intended a private law right to arise, such as the right to claim
in common law under the tort of negligence. (ii) If the actions complained of fall within statutory
discretion, they are not actionable at common law and no private law right to sue will arise unless the
decision is so unreasonable as to fall outside the proper exercise of the discretion. (iii) If a private law
right to sue is in fact found, then there can be a cause of action in negligence and the claimant must
show that a duty of care is owed under the ordinary common law principles. (iv) The duties imposed
by Children Act 1989 are such that it cannot give rise to a common law claim. (v) The duties under
the Children Act 1989 are not amenable to common law claims. (vi) Social workers and psychiatrists
do not owe a duty of care to individuals with regards to their discretion in addressing special needs,
however they do owe a duty to diagnose/advise correctly. (vii) To impose a duty of care on social
workers in relation to decisions that involve the exercise of their discretion, such as whether to
remove a child from a suspected abusive home, or to allocate special needs learning to a child with
learning disability may go against public interest. It was further held, if a duty of care by local
authorities were established outside statute by common law, many more claims would be brought
placing further strain on an already overstretched system.

The decision in X has led to the creation of what is now referred to as the “X Immunity” in
favour of social workers acting in child abuse cases, such that claims against the local authority for
failing to remove a child from an abusive home and place it in welfare/foster care are unlikely to
succeed. The local authority appears to have a statutory to decide on a case to case basis, whether it
is in the child’s best interest and the interest of the public that an intervention is made, by removing
the child from the abusive home. Applying X to the present facts, it is likely that the DLA will not owe
Pete a common law duty of care and will not be found liable for failing to remove him from the abusive
home. It must be noted also that if the DLA did intervene, it could possibly face an action by Andrew,
the grandparent of Pete, for wrongly separating Pete from his family home and intervening in the right
of respect for private family life contained in Article 8 of the European Convention of Human Rights.
This line of argument was taken in cases such as D v East Berkshire NHST (2005), D v Bury MC (2006)
and Lawrence v Pembrokeshire CC (2009). Even though in these cases the local authority had wrongly
concluded that the children were abused in their family homes, the court still found that no duty of
care was owed to the aggrieved parent as the authority’s primary duty is to act in the best interest of
the child. As long as the authority’s discretion was exercised with the child’s interest as paramount in
their decision-making, the X immunity would apply. While these claimants failed in English courts due
to the X immunity, the European Court of Human Rights found differently when the disappointed
claimants in X v Bedfordshire and D v Bury petitioned to the Strasbourg Court, arguing violations of
Article 3 ECHR (in X v Bedfordshire) and Article 8 EHCR (in D v Bury). Consequently, in Z v UK (2002)
(appeal from X v Bedfordshire) and in AD & OD v UK (2010) (appeal from D v Bury), the European
Court found that the decision denying duty of care on the local authority and the failure of the local
authority to act appropriately did violate Articles 3 and 8 ECHR of the respective cases. Pete is thus
advised that since in the circumstances he was in fact a victim of abuse by Andrew, even though an
English court may conclude that no duty of care is owed under common law negligence in the English
jurisdiction, it is likely that the Strasbourg Court will conclude that Pete’s Article 3 ECHR rights have
been violated. If this is sustained, then Pete will fail to recover damages under common law negligence
but may obtain the appropriate remedy resulting from a breach of Section 6 Human Rights Act 1998,
under the HRA 1998.

In relation to the omission on the DCC to protect Mildred from the attack by Andrew, applying
Michael v South Wales Police (2015), it is likely that the rule on omissions would lead to a conclusion
on the facts, that the DCC does not owe Mildred a duty of care to prevent the attack. The DCC would
also argue that none of the exceptions apply in that they had not at any point in time assured Mildred
that they would prevent any threatened attack (Michael). Mildred may argue that it is the duty of the
constabulary to prevent crime in the circumstances. However, the cases of Hill v Chief Constable of
South Yorkshire Police (1989), Osman v Ferguson (1993), Smith v Chief Constable of Sussex Police
(2008), Van Colle v Chief Constable of Hertfordshire Police (2009) and Michael (2015) all consistently
state that the police do not owe a fixed duty under common law or statute to prevent crime by a third
party. Mildred’s case is very similar to the case of Van Colle where the claimant, Giles Van Colle was
due to testify against his attacker in a trial for theft by the attacker and receives threats discouraging
him from testifying. Shortly before the trial date, Van Colle was murdered by the attacker. Van Colle’s
action against the police for failing to protect him as a prosecution witness failed under common law
negligence principles, as it was found that the police did not owe a duty to protect Van Colle even
though they were informed of the threats.

Mildred may try, instead to rely on the decision in Swinney v CC of Northumbria Police (1997),
where it was found that the police owed the claimant a duty of care under common law negligence,
to ensure her safety and protection as a key prosecution witness. The decision in Swinney is premised
on the finding that there was a high degree of proximity and assumption of responsibility to justify the
imposition of duty. This was based on the fact that the police themselves had negligently exposed the
claimant to danger by leaving her personal information and details in a folder, in the police vehicle
that was accessible to the suspect and later stolen. In Robinson, Swinney was interpreted as a case
involving a negligent positive act by the police, and that duty was owed on the basis of obvious
foreseeability of harm and strong proximity. It is submitted, however, that between Swinney and Van
Colle, both cases involving the negligence of the police in protecting prosecution witnesses, Van Colle
bears closer resemblance to Mildred’s facts rather than Swinney. Swinney will be distinguished and
Van Colle will apply instead. In the circumstances, Mildred will fail to establish duty of care against
the DCC under negligence.

The last recourse would be to establish a breach of S6 HRA 1998, in particular, a violation of
Article 3 ECHR by the DCC in failing to prevent the attack by Andrew. Mildred is advised that to
establish a violation of Article 3, the Osman threshold laid down in Osman v UK (1998) by the
European Court of Human Rights will apply. To establish a violation, it has to be shown that the police
“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.” It was found in cases such as Osman v UK and Van Colle v UK (2012) that the Osman threshold
was not met. However, in Michael, the Supreme Court found that the facts pointed towards the
threshold being met and that there was a strong case of possible violation of Article 2 ECHR. Looking
at Mildred’s circumstances, a real and immediate threat to Mildred’s life or safety cannot be found in
the manner in which she was threatened by Andrew. It is likely that her circumstances are found to
be in contrast with that of Michael and that she would fail to establish an Article 3 ECHR violation on
the facts.

In the circumstances, the candidate is likely to conclude that Mildred would fail to establish a
claim against the DCC under negligence and/or the HRA 1998. Pete on the other hand is likely to fail
in establishing negligence against the DLA but may succeed in obtaining a statutory remedy under the
HRA 1998 for the abuse by Andrew.

Sample 2:

2014 (October) Q8
Advise the Burton local authority as to their duty of care in negligence in relation to the following
scenarios:

a) Philip is a foster parent with a 6-year-old child of his own. He is keen to provide a home for
troubled teenagers but has stipulated that a child who is accused of violence should not be sent
to him for fostering. He has been given an assurance to that effect by a director of social services
but within three weeks of the fostering arrangement, Philip’s young son (Ian) was severely beaten
by Jane, a 15-year-old girl who was fostered by Philip. It transpired that Jane had been sent away
from her home because she had been violent toward her siblings.

b) One of three children also fostered out by the local authority was discovered starved and cold
after being neglected. Neighbours and the head teacher of the school the three children attended
had expressed concerns to social services on several occasions. Social services held three case
reviews of the children’s' situation but decided that the foster carers were simply inexperienced
and needed support.
c) Finally, Burton local authority has delegated responsibility for the provision of riding lessons to an
independent stable managed by EasyRiding Ltd. One of the stable employees, Lester, placed a
young child on a horse that was known to be temperamental. The horse bolted and the child was
severely injured. Candidates are not required to address liability under the Animals Act 1971.

Answer Guide:

General introduction:

The different scenarios will be considered in light of the current law on duty of care of public
bodies, in negligence claims. In Robinson v CC of WYP (2018) the SC held, when determining duty of
care, “…ordinarily, Cts. consider what has been decided previously and follow precedents. In cases
where the question of duty has not previously been decided, the Cts. will consider the closest analogies
in existing law…It is not necessary/appropriate to resort to Caparo in every case … the Ct. will resort
to Caparo only where it is invited to depart from previous authority.” Prior to this, in Michael v SWP
(2015) it was held that the Caparo test would apply in determining duty of care of public bodies, only
in novel cases. Where the claim is based on an omission, the general rule excluding liability would
apply as stated in ERCB v Kent (1941) and affirmed in Stovin v Wise (1996). The same was applied in
Hill v Chief Constable of West Yorkshire Police (1988).

(a) Philip (on behalf of Ian) v Burton LA:

P would bring an action against BLA alleging negligence in the sense that they had allowed J
to live with P in his home, despite knowing that J has a history of violence against her siblings. The
action would be premised on the fact that P had specifically informed the BLA that he did not want to
foster a child who was a violent, but that the BLA had ignored his specification and allowed J to live
with P, resulting in I being beaten up.

In assessing whether duty is owed, the decision in X v Bedfordshire CC (1995) is relevant. In X

the HOL gave its decision on several cases of negligence, i.e. (i) failure of education psychologists to
correctly diagnose a child’s learning disability, (ii) failure to take an abused child into foster care
despite reports and complaints, and (iii) wrongly concluding that a child was being abused by its
mother’s boyfriend and removing the child from the mother’s care. On whether the Council owed a
duty to the claimants in each case, the HOL found:

• A duty is owed to correctly diagnose learning disabilities – psychologists must diagnose

carefully
• No duty was owed in common law, by the local education authority to provide special
learning assistance to those who have special needs
• Where statute applies, a breach of statute does not automatically give rise to an action under
private law (negligence)
• To succeed in common law, the claimant has to show that duty of care is owed under
common law principles
• If the wrongdoing complained of falls within a statutory discretion, they are not actionable
under common law
• Duties and powers laid down in the Children Act 1989 (on dealing with child abuse cases &
foster care) do not automatically create a common law duty of care & cannot give rise to a
claim in negligence
• Where statute gives the authority discretion it is unlikely that the authority would be liable
under common law negligence unless the discretion is exercised unreasonably (Wednesbury
Unreasonableness)
• This led to the conclusion that no duty of care was owed in all claims heard in X.
For liability to arise under negligence, there would have to be compelling reasons of social policy –
and it is believed that it would be contrary to public policy to impose duty in X.

Following X, the BLA would argue that it does not owe P or I a duty for the injuries suffered
when J was placed in P’s home. BLA would argue that such matters fall within the ambit of relevant
statutes governing childcare and welfare, and decisions to place a child in foster care are “covered”
by statutory discretion. As such, BLA would argue that the circumstances will not give rise to duty of
care under negligence. BLA would also argue that in such matters, a private law action is usually not
allowed for negligence. P may, however, want to rely on the case of W v Essex County Council (2001)
where the facts are similar. In W, the claimants were parents of a child who had been abused by
another child fostered by the claimants. The claimants specifically informed the defendant local
council that they did not want to foster a child with a history of abuse. Despite knowing this the council
placed a child with a history of violent and sexual abuse with the claimant. The foster child abused the
claimants’ own child resulting in injuries and psychiatric harm to the claimants. The Court found that
the specification made by the claimants created a high degree of proximity to justify the imposition of
duty. Applying this, P would be able to establish duty purely on the basis of W.

A further alternative would be to pursue an action for violation of I’s Article 3 ECHR rights.
This would be on the basis that by placing J under foster care in P’s home, BLA has subjected I to
torture and harm, thus violating his Art. 3 ECHR rights. Since BLA is a public body, an action for violation
of S6 HRA 1998 may be brought. Provided the claim is instituted within one year of the incident (S7
HRA 1998), it is possible for P to succeed through a direct action for breach of convention. P would
want to rely on the decision of the European Court of Human Rights in Z v UK (2002). In Z, the [Link]
found that the failure of the council to prevent abuse to one of the claimants in X was a violation of
the child’s Art. 3 ECHR right. Relying on this finding, it is arguable that the actions of the BLA subjecting
I to harm by placing J in P’s care may also be seen as violation of Art. 3. It is important to note that if
P succeeds in the direct action under HRA 1998, damages may not necessarily be granted as it is a
discretionary remedy, and if granted, the award of damages will be less than what may be received
through a common law negligence claim.

(b) Child v BLA:

The neglected child found starving and cold, may bring an action against BLA for its careless
decision to place the child in foster care with carers who were inexperienced and needed support. It
may be argued that a proper assessment of the carer’s ability to provide for the child may have
prevented placement of the child with the particular carer, in which case the child may not have
suffered neglect. The child may argue that BLA owed a duty to properly assess the carer’s ability to
provide for the child. However, applying X above, such duty may not be established. BLA would argue
that it has a discretion to decide on the appropriate carer for the child and that it may not have been
able to find a better carer at the material time. Other factors such as resources available to BLA may
be taken into account in deciding whether to owe a duty of care. However, in JD v East Berkshire
Community Health NHST (2005), the COA concluded that in light of Z v UK, it is important that English
courts recognise the importance of upholding the child’s Article 3 ECHR rights. The COA went further
to state that in order to stay consistent and compliant with [Link] decisions, it was necessary to follow
Z rather than X.

Alternatively, the child may argue on the basis of Phelps v Hillingdon LBC (2001), that once
BLA had decided to place it in foster care, the task of assessing the capability of the carer was
comparable to the performance of any other professional service, and according to established
principles, a duty is owed to exercise professional skills with due care. In Phelps, the defendant
council’s education psychologist was asked to assess and evaluate the child’s learning abilities, and
through negligence failed to diagnose the child as suffering from dyslexia. The psychologist was
deemed to have assumed responsibility to the child, and a duty of care was owed. The defendant
council was found vicariously liable. Even though the psychologist was acting under statutory powers
& duties, it was held that a common law duty could exist – the psychologist’s duty was imposed by
law. The child on the facts may argue that he is on equal footing with the claimant in Phelps, i.e. that
he was entitled to expect the relevant social worker to correctly assess his foster carer’s ability to
provide care. This can be said to be a duty imposed by law. As such, it is submitted that the child
should be able to establish a duty of care under negligence against BLA in respect of the negligent
assessment and placement of the child with the particular carer. Alternatively, in Barret v London
Borough Council of Enfield (2001) it was held that where a child has already been placed in the
council’s care, a duty was owed to the child to take reasonable care for its well-being. In Barrett, Lord
Slynn found the X would not apply and duty was owed where having taken the claimant into its
custody, the council owed a duty of care to the child to ensure proper care, including locating its
biological mother. Lord Slynn held that imposing duty in such a situation would not open the
floodgates of litigation or disrespect the policy concerns raised in X. On this basis, it is argued that the
BLA owed the child a duty to ensure that it is placed in a suitable foster home.

(c) Child v BLA:

In this instance, although BLA has delegated responsibility to an independent contractor

(EasyRiding Ltd.), and carelessness was on the part of L, an employee of EasyRiding, it is possible for
BLA to be found liable. The child injured in scenario (c) would argue that BLA owed him/her a duty of
care under negligence, based on Woodland v Essex CC (2013).

In Woodland v Essex CC (2013) the SC held that the defendant local council owed a ‘non-
delegable’ duty to the claimant for the negligence of swimming instructors engaged as independent
contractors by the defendant, to conduct swimming lessons at the relevant public school. Lord
Sumption stated that a non-delegable duty would be imposed where it is ‘fair, just and reasonable’ to
do so. The extension of duty to cases where responsibility has been “outsourced/delegated” to
another was considered justified because of the need to protect the vulnerable who may have
depended on the defendant because they fall under the defendant’s care.

Lord Sumption identified five ‘defining features’ which, would typically give rise to the
existence of a non-delegable duty of care and justify a departure from general fault-based principle:
(i) the claimant is a patient or child or some otherwise vulnerable or dependent person; (ii) there is an
antecedent relationship between the claimant and the defendant which puts the claimant in the care
of the defendant and from which it is possible to assign to the defendant a positive obligation to
actively protect the claimant from harm; (iii) the claimant has no control over how the defendant
chooses to perform those obligations; (iv) the defendant has delegated some part of its function to a
third party and the third party is exercising, for the purpose of the function delegated to it, the
defendant’s custody or care of the claimant and the element of control that goes with it; and (v) the
third party has been negligent in the exercise of that delegated function. On the facts, the child’s
position is analogous to the child in Woodland and it is argued that a duty of care would be owed by
BLA since the requirements in Woodland would also be satisfied on the facts.
Sample 3:

2014 (ZA) Q10

Consider whether a duty of care will be found in the following claims against Blandfordshire Police:

a) Joyce’s boyfriend, Dermot, attacked and seriously injured Joyce’s mother, Louise, after Louise
had encouraged Joyce to leave Dermot and relocate to France. Louise had received a number
of anonymous threats during the months leading up to the attack. Louise had informed the
police and had identified Dermot as the anonymous letter writer. The police took no action
against Dermot because they assumed that the anonymous letters had been sent by a
character known in the neighbourhood as the Evil Pen. Evil Pen had been arrested by the
police three months before Louise was attacked after having sent similarly worded threats to
a number of women in the neighbourhood.
b) Flavia drowned after her rowing boat capsized. Albert (a passer-by) was about to leap into the
river to save Flavia but was prevented from doing so by PC Sackville who informed Albert that
he (Sackville) was a trained life- guard. PC Sackville had not been trained and was, in fact, a
poor swimmer. He reached Flavia ten minutes later than Albert would have done had Sackville
not impeded Albert’s rescue attempt. By the time Sackville reached Flavia she had drowned.
c) Sebastian suffered post-traumatic shock when he witnessed the death of a young police
officer (Hal), stabbed by Michael who at the time was in police custody but escaped after he
was left alone in an unlocked police van.

Suggested Answer:

The relevant principles to be applied in scenarios (a), (b) and (c) above are that of negligence,
in particular whether duty of care is owed for the actions and/or omissions of the police. The candidate
advises that injured parties pursue damages under the tort of negligence, for death and/or injuries
suffered. A successful claim in negligence would require the claimants to establish a legal duty of care,
breach of that duty, and factual as well as legal causation (Lochgelly Iron v McMullen (1934); Wagon
Mound (1961)). Since the instructions are to advise on duty of care, the candidate will discuss this
element alone.

In Robinson v CC of SYP (2018) Supreme Court decided, “where the law is clear that a
particular relationship … gives rise to a duty of care, there is no occasion to resort to Caparo, at least
unless the court is being invited to depart from previous authority.” Lord Reed stated that “in the
ordinary run of cases, courts consider what has been decided previously and follow the precedents.
In cases where the question whether a duty of care arises has not previously been decided, the courts
will consider the closest analogies in the existing law, with a view to maintaining the coherence of the
law …”

The SC also held in Robinson that determining duty of care on public bodies should not be
based on different principles. The same principles that apply to all other defendants will apply, without
special policy considerations favouring the public body. The case concerned police negligence in the
form of a positive act, i.e. when pursuing a suspect, the police failed to take reasonable care not to
cause harm to third party member of public. It was held, where a third party such as a pedestrian is
injured as a result of a negligent arrest on the street by a police officer, the police are liable in
negligence where that injury was a reasonably foreseeable consequence of the police’s actions. Duty
was owed to the pedestrian on the basis of established principles/precedent, in the same way that it
would apply to an ordinary defendant.

Where the alleged negligence of the police is in the form of omissions, in the words of Lord
Hoffman in Stovin v Wise (1996), they “require different treatment”. English law provides as a general
rule, that like private bodies, public bodies may not be found liable for a negligent omission unless
exceptional circumstances necessitate action. This rule was earlier explained in East Suffolk River
Catchment Board v Kent (1941). Later in Michael v SWP (2015), Lord Toulson in the SC stated that the
ordinary rule negating liability for omissions applied equally in cases where the police failed to prevent
crime – no established duty of care was owed to prevent crime or harm caused by another and as
such the failure to do so would not attract liability. Liability would only arise in exceptional
circumstances, i.e. where there was assumption of responsibility, where the defendant was in control
of the circumstance, or where the defendant created the danger, or where the defendant deprived
the claimant of a better outcome (Michael, Tofaris & Steel (2016)). Michael also clarified that there
was no real immunity enjoyed by the police and that the Hill decision should not be read as creating
a blanket immunity for the police. After Michael and Robinson, it can now be said that the police may
be liable for careless positive acts, while they may not be liable for omissions (unless exceptions apply),
in the same way that the law applies to private body defendants. Thus, in advising BP, it would be
helpful to distinguish between carelessness in the form of positive acts and omissions.

(a) The issue here would be whether Louise (L) could sue the Blandfordshire Police (BP) for failing
to prevent the attack by Dermot (D). She would argue that the police were informed and in failing to
take action, they are responsible for her injuries. The failure to prevent the attack can be construed
as an omission. Whether liability could arise, the law on omissions would apply. The line of decisions
involving police failure to prevent crime would also be relevant. BP would want to rely on Hill that a
duty of care is not owed to L to prevent the attack. In Hill v CC of WYP it was held that the police do
not owe a legal duty to conduct investigations and prosecute in a particular manner so as to prevent
crime. In Hill, it was found that there was insufficient proximity between the deceased and the
‘Yorkshire Ripper’, and that harm was not reasonably foreseeable. It was also stated that it would be
contrary to public policy for the court to interfere with the police’s discretion on prosecuting and
preventing crime and the efficient management of their resources by imposing common law duty.

L would argue that her facts are in contrast with Hill, in that in Hill, the police had no way of
knowing that Ms. Hill was the ‘Yorkshire Ripper’s’ next victim, wheareas in L’s case her identity as the
victim was known to BP before the attack. L would also argue that harm was foreseeable in the sense
that she had positively identified to BP that D would attack her based on threats. However, BP would
argue that since they had been investigating Evil Pen and had apprehended EP, believing the threats
to be from EP, they reasonably believed that L was no longer in danger. On the basis of Hill,
notwithstanding distinguishing features, it possible that BP would not owe L a duty on the facts.

In Osman v Ferguson, the police were informed of the danger of an attack by on Mr. Pagett
on the Osman family, and despite statements made Mr. Pagett about “pulling a Hungerford”, the
police didn’t find it necessary to apprehend Mr. Pagett or offer additional protection to the Osman
family. As a result, in an attack, Mr. Osman was killed and his son severely injured. It was found on the
basis of Hill that the police did not owe the Osman family a duty of care. This decision was challenged
in the European Court of Human Rights, in Osman v UK (1998), as a breach of Article 2 ECHR. As to
whether Article 2 ECHR had been violated in failing to prevent the death of Mr. Osman, the Strasbourg
Court laid down what is known today as the ‘Osman test/threshold’: “whether 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.” The [Link] answered this question in the negative on the facts, and concluded that Article 2
ECHR had not been violated. Applying Osman to L’s facts, it is likely that L too would fail against BP,
not only in relation to a common law duty of care, but also in relation to establishing a violation of her
Convention rights, which on the facts, would be Article 3 ECHR – failure to prevent torture and
degrading treatment.
 Later, in the joint appeals of Van Colle v CC of Hertfordshire Police and Smith v CC of Sussex
Police, claimants in both cases alleged that they had been threatened, that this had been
communicated to the police but that the police had failed to prevent death (in Van Colle) and serious
injury (Smith). The HOL held that the police in both Van Colle and Smith did not owe a duty of care to
prevent harm to both claimants on the basis of Hill and further that the policy reasons mentioned in
Hill do not favour the imposition of duty on the police. The Osman threshold was considered in both
cases, where violation of Article 2 ECHR was argued in Van Colle while violation of Article 3 ECHR was
argued in Smith. The HOL found in the defendant police’s favour on both issues. In Van Colle v UK
(2012) the Strasbourg Court upheld the English Court’s decision that the Osman threshold was not
met and therefore that breach of Article 2 could not be satisfied. L’s case bears more similarities with
Smith. If Smith is applied, L is likely to fail against BP. Even though the police were duly informed it is
possible that the facts do not warrant the imposition of duty, given the police conduct in relation to
EP as argued above.

From the standpoint of Michael, treating the failure to protect L as an omission, BP is unlikely
to be liable. In Michael, it was argued that the police had received emergency calls from Michael
complaining that her ex-lover was about to kill her, but that they failed to handle the call effectively,
and failed to arrive at her home in time to prevent her death. Lord Toulson in Michael restated the
law of omissions and applied the same in the context of the police failing to prevent crime. Lord
Toulson in Michael did however consider circumstances in which the general rule on omissions may
not apply, such as when (i) the defendant has control in a particular situation to prevent harm and
may be expected to act; (ii) the defendant assumed responsibility for the safety of the claimant or (iii)
the defendant created danger to the claimant. It is argued that none of the exceptions would apply
on the facts. It cannot be said that the police created the danger or were in control of the
circumstances. The facts are in contrast with cases such as Rigby v CC of Northamptonshire Police
(1985). In Rigby, the police decided to fire CS gas from a canister into a building to flush out a criminal
resulting in a fire that damaged the claimant’s property. The court found that a duty was owed. In
Rigby liability was justified because the police were in control of the circumstances. Rigby also
involved a positive act carried out negligently. In L’s case the police also did not assume responsibility
for her safety. In the circumstances, she is likely to fail against BP.

In Michael, where the degree of proximity and foreseeability of harm was far greater than in
L’s case, the SC did not impose duty in negligence on the basis of the Caparo test but ruled out liability
on the basis of the general rule on omissions. None of the exceptions were deemed applicable either.
However, the SC did state that the facts indicated a possible violation of Article 2 ECHR on the police.
Notwithstanding Smith where the facts are similar and no violation of Article 3 ECHR was found, L may
nonetheless pursue a direct action against the police under S6 HRA 1998 against BP, arguing violation
of her Article 3 rights. In light of Commissioner of Metropolitan Police v DSD (2018), L may successfully
prove breach of Article 3 ECHR. In DSD, the police’s failure to properly investigate allegations of sexual
abuse and rape by the ‘Black Cab Rapist’ was considered to be ‘conspicuous and substantial errors’ in
the performance of their operational duty of crime investigation and prevention. The result was a
breach of Article 3 ECHR on the police’s part. It is important to note, however, that the sum of cases
on police liability for failing to prevent crime to date, still consistently maintain that while liability
under HRA 1998 is possible, liability under common law negligence is not.

(b) Flavia’s (F) estate may bring an action against BP for the negligence of PC Sackville. F’s estate
may argue that PC S. was negligent in that he undertook to save her but failed to do so in time,
resulting in her drowning. It may be said that if he had not interfered with Albert (A)’s attempt to
rescue, F would not have drowned. It is submitted that PC S.’s failure could fall under one of the
exceptions to the rule against liability for omissions. In Michael it was held, where the defendant does
nothing to rescue the claimant, the defendant may not be liable. However, where the defendant
undertakes to act for the claimant’s benefit, such as to provide assistance where the claimant is in
trouble, and fails to effectively assist the claimant, or makes the claimant’s condition worse, liability
would be justified. For example, in Kent v Griffiths (2000), the defendant, an ambulance driver assured
the doctor who called him, that he would be able to arrive at the claimant’s premise in time to take
her to the hospital when she faced a medical emergency. Relying on the defendant’s statement that
he would arrive in time, the claimant did not avail herself to any other means of getting to the hospital
and waited for the defendant. The defendant failed to arrive in time resulting in delayed medical
treatment and the claimant’s condition worsening. The court held that a duty was owed to act
promptly in the circumstances. The general rule on omissions did not apply, because the ambulance
driver had assumed responsibility to act as promised. The court went further to hold, that even if the
case is seen as a case involving a positive act performed negligently, there clearly was sufficient
proximity and foreseeability to impose duty. Applying this to the facts, it is argued that by wrongly
holding himself out as a lifeguard able to save F, and failing to deliver as promised, PC S. would be
deemed to have assumed responsibility. He would, thus, be under duty to act competently and his
failure to do so would attract liability. There is also ample proximity and foreseeability to justify
imposition of duty in the circumstances, given that he had gone as far as preventing A from rescuing
F so that he could rescue her instead.

Further in Capital Counties v Hampshire County Council (1996) upon arriving at the scene of
the fire, the defendant firefighters made the negligent decision of turning off the sprinkler system to
put out fire, resulting in the fire spreading and extensively damaging parts of the claimant’s property.
The Court found, that while there was no general duty to put out all fires which the fire brigade is
called to and attends, in the circumstances, having assumed control of the situation the defendant
owed the claimant a duty to act reasonably, to avoid worsening damage to the claimant. Applying
Capital Counties to the present facts, by analogy, it can be said that PC S.’s decision to rescue F despite
knowing himself to be a poor swimmer and stopping A from doing so instead clearly worsened the
situation for F. Had he not interfered, F would probably have survived. As such BP is likely to be found
vicariously liable for PC S.’s carelessness.

(c) Sebastian (S) would sue BP, for post traumatic shock suffered when he witnessed the death
of Hal (H) at the hands of Michael (M), due to the carelessness of the police leaving M alone in the
unlocked police van. The circumstances in (c) may be considered as a negligent act rather than
omission, the negligence being the act of leaving M alone unaccompanied in an unlocked police van.
In Swinney v CC of Northumbria Police (1997), the police negligently left a case file in the police vehicle
and left the vehicle unlocked and unattended. The case file contained information about the claimant,
who had assisted the police by giving them information about the identity of an individual who had
killed a police officer. The case file was stolen and information about the claimant was retrieved from
the file. This led to the claimant receiving violent threats and the claimant went on to sustain
psychiatric injury. The claimant sued the police for their negligent conduct causing her psychiatric
harm. The police were found liable and duty was imposed on the basis that harm to the claimant was
foreseeable and there was sufficient proximity between the claimant and the police. The police were
also deemed to have assumed responsibility for the claimant’s safety. In Swinney, there were no policy
reasons against imposing duty on the police. In fact, it was held that it would be in the public interest
to protect informers.

S may argue that BP could owe him a duty of care for his psychiatric harm in the same manner.
However, S’s facts are to be distinguished from Swinney. S appears to be no more than a secondary
victim of psychiatric injury. There is insufficient proximity between S and the police (both in the
ordinary sense, and in the sense of Alcock v CC of SYP (1992)). S’s psychiatric harm may also be
deemed unforeseeable as there doesn’t seem to be any nexus between S and H to justify shock on S’s
part. Unlike the claimant in Swinney S was in no danger of injury and received to threats of harm to
himself. In the circumstances, it is highly unlikely that BP would be liable for S’s post traumatic shock.

Sample 4:

2014 (ZB) Q10

Consider whether a duty of care is owed in respect of the following claims:
a) There have been a number of threats against medical students at Glass University since the
new term began. The circumstances suggest that threats are being made by someone with
intimate knowledge of the College and its layout. They are being perpetrated by someone
with knowledge of the layout of the college The Registrar of the College to whom the letters
were sent decided not to inform the student body for fear that knowledge of the threats might
result in widespread panic. She did inform the Brackhampton police, however, due to many
other policing priorities little was done to look into the anonymous threats. Soon after the
police were informed, Darius (a medical student) was attacked and seriously injured. His
attacker, Eamon, was caught soon after. Eamon was expelled from medical school after having
failed his second-year examinations. He has admitted to writing the anonymous letters.
b) Roberta died after being trapped in a burning office building. She was a fire fighter on a
training exercise when the staged fire scene quickly got out of control. Todd, the senior fire
officer, heard Roberta’s screams but panicked and fled the scene.
c) Sally left school at the age of 16. Now aged 19 she is unable to secure employment because
she is unable to read or write. She claims that her local education authority failed to take steps
to assess in order to establish whether she had a learning difficulty. Sally was recently assessed
by an educational psychologist and was found to be severely dyslexic.

Suggested Answer:

The given facts in scenarios (a), (b) and (c) above require discussion of the law of negligence,
in particular, whether duty of care is owed by the different public bodies in each scenario as well as
whether there may be liability for omissions. In assessing each scenario, the candidate advises that
injured parties pursue damages under the tort of negligence, for death and/or injuries suffered. A
successful claim in negligence would require the claimants to establish a legal duty of care, breach of
that duty, and factual as well as legal causation (Lochgelly Iron v McMullen; Wagon Mound).
However, as the given instructions are to advise on duty of care, the candidate will only discuss the
element of duty of care in each scenario.

In Customs & Excise Commissioner v Barclays Bank, it was held that there are least three
approaches to establishing a legal duty of care in negligence claims today, namely, (i) applying the
incremental approach, which involves looking at whether a duty of care has previously been
established by an earlier precedent, (ii) the Caparo three stage test where one is faced with a novel
situation in which Courts have never imposed a legal duty of care, and (iii) by looking at whether the
defendant had voluntarily assumed responsibility for the claimant’s loss. It is said that common law
has not thus far fixed legal duties on a public body take positive action to prevent injury or damage to
an individual. Given that the conduct of public bodies is largely governed by statute, where there is
non-performance of a statutory/public duty, this would usually be actionable through the Public Law
action of judicial review, or by suing the public body for breach of statutory duty. The injured party
may receive a statutory remedy approved by Parliament. However, apart from that, no distinct legal
duty has been imposed under common law, where claimants seek the private law remedy such as
compensation under negligence. Lord Reed in Robinson v Chief Constable of West Yorkshire Police
(2018) (SC), confirmed recently that public bodies, just like others, would owe an established duty to
avoid causing harm through careless acts, under ordinary principles of negligence. However, affirming
Lord Toulson’s view in Michael v South Wales Police (2015) (SC), the SC in Robinson also upheld that
public bodies could not be liable for omissions unless exceptional circumstances arise.

The rule against liability for omissions has been established in East Suffolk River Catchment
Board v Kent (1941) and Hill v Chief Constable of West Yorkshire Police (1988). Omissions, in the
words of Lord Hoffman in Stovin v Wise, “require different treatment”. English law provides that as a
general rule, public and private bodies alike may not be found liable for a failure to prevent harm
caused by another, unless exceptional circumstances apply. The fexceptions to this rule according to
Tofaris & Steel (2016), cited in Michael and affirmed in Robinson are where: “(i) A has assumed a
responsibility to protect B from that danger, (ii) A has done something which prevents another from
protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv)
A’s status creates an obligation to protect B from that danger.” The application of these principles of
duty will now be examined in light of each scenario below.

Scenario (a)

The issue at hand would be whether BP owe Darius a duty of care to prevent his injury. Their
alleged wrongdoing may be perceived as an omission. The police have arguably failed to take sufficient
action to investigate and prevent the crime that resulted in Darius’ injury. The candidate will discuss
their possible liability from both perspectives.

In Hill v CC of West Yorkshire, the police failed to arrest the Yorkshire Ripper before the rape
and murder of Hill. It was held that her death was not reasonably foreseeable and that she was not
proximate enough to the police. It was additionally held that imposing a duty of care on the police
would interfere in their discretion. Also, judges found that imposing a duty of care on the police to
prevent crime in every instance would result in the police diverting resources towards defending
lawsuits and adopting unduly defensive practices, given that is it in fact impractical and unrealistic to
expect the police to apprehend all criminals before they commit a crime. It was said the imposition of
a legal duty to prevent crime would be contrary to public interest. The police in Hill did not owe a duty
of care. Lord Keith in Hill also applied the omission principle, holding that the public duty of the police
to enforce the law did not carry with it a private law obligation to protect individual victims of crime.
While there is a duty not to cause harm directly through careless acts, the law does not impose on the
police, a legal duty to prevent harm caused by another.

In a later case, Osman v Ferguson (1992), applying Hill, it was found that the police here too
did not owe the Osman family a duty to prevent the death of Mr. Osman or injury to his son, despite
knowledge of prior threats by the assailant, Mr. Paget-Lewis. It was held that death and injury were
not reasonably foreseeable and that there was insufficient proximity. Similar public policy reasons as
those in Hill were additionally cited in Osman to support the finding of no duty. In Osman v UK (1998),
an application was made to the ECtHR, citing Arts. 2 & 6 violations by the English Courts. The ECtHR
found that English Courts striking out the claimant’s claim on the basis of a supposed blanket immunity
enjoyed by the police against actions for negligence in failing to prevent crime, was indeed a violation
of Article 6 ECHR. As to whether Article 2 ECHR had been violated in failing to prevent the death of
Mr. Osman, the Strasbourg Court laid down what is known today as the ‘Osman test/threshold’:
“whether 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.” The Strasbourg Court answered this question in the negative on the
facts, and proceeded to find that Article 2 ECHR had not been violated.
 Later, in the joint appeals of Van Colle v CC of Hertfordshire Police (2009) and Smith v CC of
Sussex Police (2009) claimants in both cases alleged that they had been threatened, that this had been
communicated to the police but that the police had failed to prevent death/ serious injury. The HOL
held that the police in both Van Colle and Smith did not owe a duty of care to prevent harm to both
claimants on the basis of the core principles in Hill and further that the policy reasons mentioned in
Hill do not favour the imposition of duty on the police. It was also found in Van Colle that the Osman
threshold had not been met and that therefore no violation of Article 2 ECHR could be established.

In light of the above decisions, the candidate submits that Darius may not be able to prove
that a duty was owed to him. It is highly likely for a court to conclude on the facts that (i) injury was
not foreseeable given the nature and context in which the threats were made, (ii) Darius is not a
proximate victim as he simply one of many medical students at Glass University, and (iii) that it would
be unjust, unreasonable and unfair to impose liability on the police, given the public policy reasons
outlined in Hill, affirmed in Van Colle & Smith. Darius may pursue a claim for violation of Article 3
ECHR (prevention of torture and degrading treatment), but it is submitted by analogy to Van Colle,
that the relevant threshold for violation would not be met on the facts as the seriousness and
imminence of an attack appears unknown. The question states that due to many other policing
priorities little was done to look into the anonymous threats, and it is argued that in light of these
other policing priorities, it would be unreasonable to expect the police to indeed prevent harm to
Darius in the university. However, if the recent decision of Commissioner of Metropolitan Police v
DSD &NBV (2018) is applied, provided it can be shown that there were “conspicuous and substantial
error” in the investigation carried out by the police, Darius may be successful in establishing Article 3
violation.

Fundamentally, following the clarification in Michael, as a general rule the police may not be
liable for the failure to prevent the attack. In Michael, it was argued that the police had received
emergency calls from Michael complaining that her ex-lover was about to kill her, but that they failed
to handle the call effectively, and failed to arrive at her home in time to prevent her death. Lord
Toulson in Michael applied the omission principle that there is no duty to prevent harm caused by a
third party.

Lord Toulson in Michael considered the exceptions to the omission rule, such as when (i) the
defendant has control and power in a particular situation to prevent harm; (ii) the defendant assumed
responsibility for the safety of the claimant; (iii) the defendant created danger to the claimant; and
(iv) the defendant interfered with the claimant’s chances of avoiding injury through other means.

The candidate submits that Darius would be unable to show that any of the exceptions apply
in his circumstances, as it cannot be said that BP were in fact fully in control since Eamon’s identity
had not been known until after the attack and he is not someone who is within their control or custody
(contrast with cases of prison suicides such as Reeves v MPC). Also, they had not created the danger
in question, they don’t seem to have given the university any assurances that they will in fact
apprehend Eamon before the threat was carried out, and interference cannot be shown either, as it
does seem that the university would have had its own internal policies and procedures to prevent the
threat being carried out, with or without the assistance of BP. As such it is submitted that it is unlikely
that BP may be found liable for the failure to prevent the attack.

Scenario (b):

The circumstances in scenario (b) would more appropriately be dealt with as an omission
rather than a positive negligent act, given that Todd had abandoned Roberta altogether and failed to
take any action whatsoever when disaster struck. As discussed above, whilst the general rule states
that there can be no liability for an omission, if Roberta’s estate can successfully argue any of the
exceptions, liability may be established. It is submitted on the facts that Todd certainly did not create
the danger in question, or interfere in Roberta’s prospects of being saved. It may, however, be argued
that in a training session, the senior officer is the person in charge and was in the proper
position/status to act accordingly. For this reason, he presumably assumes responsibility for the safety
of his trainees. If the court accepts this contention, Todd may be found liable for failing to rescue or
at least attempt to rescue Roberta. Alternatively, it may be argued that the present facts are
comparable to that of Costello v Chief Constable of Northumbria Police (1998) where it was held that
an inspector who abandoned a colleague while she was attacked by a prisoner, owed a duty to act in
the circumstances (there is an internal police duty to act in order to avoid exposing a fellow officer to
unnecessary risk and public policy requires that liability be imposed). In the circumstances, Todd
would owe Roberta a duty to act and his failure to act could certainly attract liability.

Scenario (c)

The issue in scenario (c) is whether Sally’s local education authority owed her a duty of care
to correctly assess and diagnose her condition and afford her the appropriate facility/service for her
condition. It is submitted that in order to determine whether a legal duty is indeed owed to Sally, the
approach in X v Bedfordshire County Council (1995) will apply.

In X, The House of Lords dealt with various appeals in respect of alleged breaches of statutory
duty by local authorities in relation to the care of children. Some of the appeals related to child abuse
issues under the provisions of the Children Act 1989, while others related to education duties imposed
on local education authorities by the Education Acts 1944 and 1981. The HOL held that (i) a breach of
statutory duty does not automatically give rise to a private law cause of action. It will only do so if
Parliament intended a private law right to arise, such as the right to claim in common law under the
tort of negligence. (ii) If the actions complained of fall within statutory discretion, they are not
actionable at common law and no private law right to sue will arise. (iii) If a private law right to sue is
in fact found, then there can be a cause of action in negligence and the claimant must show that a
duty of care is owed under the ordinary common law principles. (iv) The duties imposed by Children
Act 1989 are such that it cannot give rise to a common law claim. (v) The duties under the Children
Act 1989 are therefore not amenable to common law claims. (vi) Social workers and psychiatrists do
not owe a duty of care to individuals but to the local authority and duty of care is not imposed on local
education authorities with regards to their discretion in addressing special needs. (vii) To impose a
duty of care on social workers in relation to decisions that involve the exercise of their discretion, such
as whether to remove a child from a suspected abusive home, or to allocate special needs learning to
a child with learning disability may go against public interest. However, they may owe a duty to
correctly diagnose psychiatric and medical conditions. It was further held, if a duty of care by local
authorities were established outside statute by common law, many more claims would be brought
placing further strain on an already overstretched system. If X is applied to the present facts, the policy
concerns in X may lean in favour of the finding that the local authority may not owe Sally a duty to
properly assess, diagnose and provide her with special education. However, X does provide a duty to
diagnose carefully.

The candidate argues, that the present facts suggest that duty may be owed. In Sally’s case
the issue is not the failure to remove her from an abusive home, or to place her in a special needs
school, but first to assess and correctly diagnose her as suffering from dyslexia. It is submitted that
Sally’s facts more closely resemble that of Phelps v Hillingdon LBC. In Phelps, the defendant local
authority employed an educational psychologist to assess the claimant who was under-performing at
school. The psychologist failed to diagnose the claimant as suffering from dyslexia and as a result, the
claimant was not given appropriate additional support and sued for psychological harm suffered in
the later years of her life. It was held that the educational psychologist did owe the claimant a duty to
diagnose her correctly. Assuming that a psychologist had been assigned but failed to correctly
diagnose, Phelps can squarely apply vis a vis Sally, and duty of care may be established.

In the circumstances, duty of care will be established and the local education authority is likely
to be vicariously liable for the education psychologist’s negligent diagnosis.

Essay Questions

Sample:

2016 (ZB) Q7:

‘A court, when asked to recognize a duty of care in a claim in negligence brought by an individual in
respect of a failure to act of a public body, will always find it unjust, unfair and unreasonable.’ Discuss.

2018 (ZB) Q7:

Discuss and evaluate the public policy reasons for the denial of negligence claims against public bodies.

Suggested Answer:

The statement in question conveys that there is a reluctance to find public bodies liable for
negligent failures. This is tied to a general reluctance to recognize that public bodies owe a duty of
care to act for the benefit of another. In evaluating this statement, the candidate will discuss the
English approach to determining duty of care where the defendant is a public body. In discussing duty,
the answer will pay particular attention to the liability of the police, social services and other public
bodies mainly where there has been a failure to act.

To start with, the duty concept if the first requirement for negligent liability. It serves as a tool
to determine when it would be justified to allocate responsibility for the claimant’s loss on the
defendant. Generally, it is thought that parties must bear their own losses. However, at times the law
deems it appropriate to let a wrongful party bear responsibility for losses caused by their carelessness.
These are cases where the law expects you to “take reasonable care to avoid acts or omissions that
you can reasonably foresee, would be likely to injure your neighbour, … i.e. those who are closely and
directly affected by your actions” (Donoghue v Stevenson (1932)). Thus, it follows that one can only
be liable if there is, first, a duty imposed to be careful.

Lord Atkin in Donoghue explained that not all careless acts and omissions will attract
compensation. Rules must be put in place to limit the extent of liability. In this regard, the components
of the duty concept, namely ‘foreseeability of harm’ and ‘sufficient proximity’ serve both as a formula
for establishing duty and a control mechanism at the same time (Conaghan & Mansell). Lord Atkin
also stated that relationships that give rise to duty can be identified “from the books” as well from
societal norms of rights and responsibilities. For this reason, between doctors and their patients, road
users, manufactures and consumers and other known categories of relationship, the law will hold that
there is a legal duty to be careful. This was acknowledged in Caparo v Dickman (1990) by Lord Bridge
when explaining that duty should be determined by reference to existing categories incrementally. In
novel cases, Lord Bridge commented that it must be tested whether elements of foresight and
proximity are adequately found to justify imposing duty. It must also be asked whether it would be
‘just, fair and reasonable’ to impose duty. As recent as year 2018, Lord Mance in the SC decision of
Robinson v Chief Constable of West Yorkshire Police (2018) acknowledged that in recognizing the
existence of a duty of care in particular circumstances courts “are making policy choices, in which
considerations such as fairness, justice and reasonableness must inhere”. Through the labels “just, fair
and reasonableness” the policy element is undeniably imported into decision-making, and the
suggestion in the question above that this will always result in rejecting duty will now be assessed in
light of failures by public bodies.

The problem with imposing duty on public bodies stems from the fact that they are governed
by statute. While statutes do impose public duties upon them, these are public law duties that do not
generate a private law right to sue. Statutory duties are only enforceable under the tort of breach of
statutory duty or through judicial review (through Public Law). Such breaches are also usually
remedied through a statutory process and by statutory remedies. These remedies are designed to
serve a purpose different from compensation. Further, public bodies are also generally set up by
statute to serve the collective interest of the public rather than to compensate the individual for their
private losses. Parliament provides for this need by giving public bodies wide discretionary powers,
which are again, unenforceable under common law. In addition, public bodies generally operate with
limited funds and resources and this becomes relevant when it is recalled that the function of
negligence is to compensate for losses. If the law leans heavy on liability for the sake of compensation,
public bodies may be drained of their funds. Resources may also be wasted defending lawsuits when
they could instead be channeled towards better public service. To a large extent, these reasons have
influenced the judicial reluctance to impose duty on public bodies. The answer will now proceed to
examine the manner in which duty is dealt with for public bodies.

Firstly, with regard to the police, in Hill v Chief Constable of West Yorkshire Police (1989), the
claimant brought an action against the defendant for a failure to properly investigate and prosecute
one Peter Sutcliffe, and to prevent the killing of her daughter Jacqueline Hill by Sutcliffe. The claimant
argued that if the police had not been negligent in detecting and detaining Sutcliffe, the death of Hill
could have been prevented. The HOL found that no duty arose under common law negligence to
prevent crime and as such, that the police were not liable in negligence. Lord Keith explained that the
“general duty of the police to enforce the law did not carry with it a private law duty towards individual
members of the public”. Further, it was held that if the harm had been caused directly through a
careless act, the police may be found liable as a duty is owed not to cause foreseeable injury or
property damage to the public in the course their duty. “The general law of tort applies as must to the
police as to anyone else… and there is no question that a police officer like anyone else may be liable
in tort to a person injured as a direct result of his acts or omissions.” However, it was clarified that
police officers investigating murders did not owe a duty to the murderer’s potential victims to take
reasonable care to apprehend him. This is in accordance with the law of negligence, in particular the
rule on omissions, that common law does not impose liability for omissions except in limited
circumstances.

Lord Keith went further to consider that in any event, the elements of foreseeability and
proximity were not found on the facts to justify imposing duty. The police could not foresee the death
of Hill and being an unidentified victim, there was insufficient proximity between Hill and the police
for them to owe a duty to her. In obiter, Lord Keith explained that as a matter of public policy, it would
be unreasonable to say that the police did owe a duty to particular victims because to fix a legal duty
in common law would “unduly interfere with the proper distribution of police resources and their
discretion on crime investigation and prosecution.”

It is submitted thus, that Hill does not necessarily demonstrate that courts will always find in
unjust, unreasonable and unfair to recognize a duty of care in respect of a public body’s failure to act.
Instead, it demonstrates simply that the where a public body has failed to act, the courts apply the
law of omissions which in its basic application simply says that there can be no liability for omissions.
 Nicholas McBride in ‘Michael and the future of Tort Law (2016)’ commented that Hill “revived
the uniform approach”, which is simply the approach of determining liability through a uniformed
application of legal principle, and not on the basis of policy. McBride explained that since as a matter
of principle, duty could not be presumed in Hill, any reference to policy in the HOL’s decision was
simply an additional consideration and not the basis for the decision. Nonetheless, Hill had been
misunderstood as a decision promoting the “policy approach” – the approach of deciding duty mainly
based on policy. This somewhat led to the emergency of a “Hill immunity” for the police.

In subsequent claims against the police for failure to investigate, prosecute and prevent crime,
the ‘Hill immunity’ was cited repeatedly, resulting not only in refusal of duty but claims being struck
out. In Osman v Ferguson (1993), the police, despite being informed of a potential threat to the
Osman family, by an identified individual, did not take sufficient action resulting in the individual killing
and wounding members of the Osman family. In a claim for negligent failure to prevent crime, the
claimant argued that the facts should be distinguished from Hill since on the facts, the potential victim
and assailant were known to the police. The court nonetheless applied the “Hill immunity” and struck
out the claim arguing that a duty of care in negligence simply did not arise for failures to act. In a
petition to the European Court of Human Rights, Osman argued that the English court’s decision
striking out Osman’s claim was a violation of Article 6 ECHR and the refusal of duty based on a blanket
immunity principle where the negligence led to the loss of life, was a violation of Article 2 ECHR.
Despite finding that Article 6 was violated, the Strasbourg Court however concluded that there was
no violation of Article 2. For such a violation to arise, it had to be shown that “the authorities knew or
ought to have known 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,
judges reasonably, might have been expected to avoid that risk.” The Strasbourg had not ruled on
whether duty should have been imposed on the police (that is beyond their jurisdiction). But it did
rule that the failure to prevent the murder of an Osman family member was not a violation of Article
2, and further that refusing to impose duty on the police was also not a violation of Article 2.

In subsequent cases of police failures to prevent crime, English courts have consistently
applied the omission principle and refused to recognize duty. However, there were instances in which
it was found that it would not be just, fair and impose duty in such circumstances, as the imposition
of duty would cut across the freedom of action the police should have when investigating serious
crimes. This was upheld in Brooks v Metropolitan Police Commissioners (2005). In Brooks, the
claimant, a victim of a racist attack that resulted in his injury and his friend’s death, insisted that the
police carried out their investigation of the attack in a such a manner as to treat him as a suspect and
not as a victim and did not afford him proper protection, resulting in his PTSD. The court applied the
Hill immunity and policy considerations, and refused duty. Lord Steyn in Brooks further stated, “It is,
of course, desirable that police officers should treat victims and witnesses properly and with respect...
But to convert that ethical value into general legal duties of care on the police towards victims and
witnesses would be going too far.”

In other examples such as Van Colle v Chief Constable of Hertfordshire Police (2009) and
Smith v Chief Constable of Sussex Police (2009), the HOL consistently applied the Hill immunity and
policy considerations to deny duty. The policy reasons used were that “imposing duty would lead to
defensive policing and would divert police resources away from combating crime in order to deal with
litigation.” In Smith, the claimant has been threatened by his former partner that he would be killed
if he would not reconcile with his partner. Despite reporting this to the police on countless occasions,
no action was taken resulting in serious attack causing serious injuries. By contrast in in Van Colle, the
claimant was a prosecution witness who was due to testify in court against his employee who
committed theft while in employment. The employee who was charged with theft threatened Van
Colle that if he did attend court to testify against him, he would be killed. Van Colle reported these
threats to the police but the police failed to afford Van Colle witness protection, resulting in Van Colle’s
death shortly before the theft trial.

Most recently in Michael v Chief Constable of South Wales Police (2015), the SC clarified that
cases in which liability was denied for failure to prevent a crime, were simply being decided in
accordance with the law on omissions, and not based on policy. Lord Toulson clarified that duty was
not refused because it would be unjust, unfair or unreasonable to recognize duty, but simply because
there could be no liability for failing to prevent harm caused by another, unless certain exceptions
applied. “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 ... The question is
therefore not whether the police should have special immunity, but whether an exception should be
made to the ordinary application of common law principles.” Where the police have, through an
omission, failed to prevent a 3rd party from causing harm to the victim, if no private individual owed
a duty to save the victim, then the police too (despite being a public body) do not owe a duty to save
the victim in the absence of any exceptional circumstances. This was upheld as the correct approach
in Robinson, where Lord Reid summarized the position as, “...public authorities, like private individuals
and bodies, are generally under no duty of care to prevent the occurrence of harm: as Lord Toulson
stated in Michael, ‘the common law does not generally impose liability for pure omissions’. This
‘omissions principle’ has been helpfully summarised by Tofaris and Steel, ‘Negligence Liability for
Omissions and the Police” (2016). In the tort of negligence, a person A is not under a duty to take care
to prevent harm occurring to person B through a source of danger not created by A unless (i) A has
assumed a responsibility to protect B from that danger, (ii) A has done something which prevents
another from protecting B from that danger, (iii) A has a special level of control over that source of
danger, or (iv) A’s status creates an obligation to protect B from that danger.”

It is thus concluded that the statement in question does not correctly summarize the legal
position on duty where the police have failed to act to prevent harm caused by another. Although the
law does not recognise duty in such situations, the reasons for doing so are not related to policy but
the principle of omissions.

Turning now to other public bodies, such as social workers, the position is in contrast with
that of the police. The law of omission is not applied, instead the question of duty is heavily influenced
by policy considerations. Firstly, in X v Bedfordshire CC (1995) claims were brought against the local
council in respect of a number of failings: (i) the failure to properly investigate and remove children
suspected of abuse from their abusive home and (ii) the failure to place a child with learning disability
in a special needs school. The X decision was given in respect of a number of children who were victims
of these two failures of the local authority. As to whether a duty was owed, the HOL held, firstly that
reference has to be made to the relevant statutes regulating the powers and duties of social workers
to determine whether they had operational duties or discretionary powers on the issue of special
needs schools and child abuse. If the relevant statutes (Children Act 1989, Education Acts 1944 &
1981) provided that there was an operational duty to act on these matters (educational needs and
abuse), and if social workers failed to act, or acted carelessly, liability may arise under common law
negligence. In other words, a common law duty will be implied from a statutory duty. However, where
the statutes provide for a discretionary power to decide on these matters, no duty will be upheld
under common law negligence. It was found that the statutes gave the social workers wide
discretionary powers on issues pertaining to child abuse and educational needs. Therefore, no duty
would be imposed under common law negligence.

Further, applying the policy element in the Caparo test, duty was denied because it would be
unjust, unfair and unreasonable to impose duty where statutes are involved, because to do so would
contradict statute and would cause common law to cut across a complex statutory framework already
in place to regulate these matters. Other policy reasons were taken into account such as that social
workers are dealing with “extra-ordinarily delicate decisions” and that courts should not interfere with
their discretion, and further that a legal duty under common law would cause such bodies to become
over-cautious and defensive.

However, in some instances, courts have found public bodies liable for failures to act,
particularly where there is high degree of proximity and where policy considerations are strong in
favour of imposing duty. For example, in Phelps v Hillingdon Borough Council (2000), defendant’s
education psychologist failed to identify that the claimant was suffering from dyslexia, resulting in the
defendant’s failure to identify her need for special learning facilities. The court recognised a duty of
care here, stating that the policy reasons against imposing duty were not strong enough to deny
liability. The fear of floodgates of litigation was not sufficient to deny duty here. Similarly, in Barrett v
London Borough Council of Enfield (2001), it was held that notwithstanding the policy reasons
suggested in X, “the local authority did owe a duty of care.” Barrett concerned a claim against the
defendant council for failing to locate the claimant’s biological mother, resulting him being moved 9
times between different foster homes, from the age of 10 months to 18 years, resulting in his
psychiatric illness. Lord Slynn accepted that decisions on placing children in care “are not ones which
the courts will review in a negligence claim.” However, Lord Slynn distinguished the present case with
X and disagreed that imposing duty on social workers would overwhelm them or cause them to
become unduly defensive or cautious. In any event, “the public policy that has the first claim on the
loyalty of the law is that wrongs should be remedied” and further, that it would take “very potent
counter considerations to overrule this policy.” Thus, in view of decisions such as Phelps and Barrett,
it is submitted that courts will always find it unjust, unreasonable and unfair to impose duty where a
public body has failed to act.

In other circumstances involving other public bodies, courts have refused to recognise duty in
respect of a failure to act, because it would be unjust, unfair and unreasonable to do so. For instance,
in Secretary of State for Home Department v Robb (1996), no duty was owed to prevent the
claimant’s death due to starvation and malnutrition. It was held that it would be unjust, unreasonable
and unfair to hold the defendant responsible for the acts of a competent person which it was entitled
to allow in the circumstances.

However, in Gorringe v Calderdale Borough Council (2004) it was held that the defendant did
not owe a duty to paint the word ‘SLOW’ on the road, where the claimant had met with an accident
after speeding. The claimant argued that there was a statutory duty under the Road Traffic Act 1988
to prevent road hazards from causing harm to road users. Lord Hoffman stated that he found it
“difficult to imagine a case in which a common law duty could be founded simply upon the failure,
however irrational, to provide some benefit which the public body had a public law duty to provide”.
Lord Hoffman went on to apply the general rule on omissions and concluded that a statutory duty did
not give rise to a private law duty of care to provide road warnings to alert motorists of hazards. Once
again, it is seen that the basis for refusing duty here, is the omissions principle and not purely that it
would be ‘unjust, unreasonable and unfair to do so’.

Finally, in Mitchell v Glasgow CC (2009) the claimant alleged that the defendant council failed
to protect him despite knowledge of threats to kill by his neighbour. Here, the claimant and his
neighbour were both tenants of the defendant, and as such there was expectation that the defendant
would extend protection to the claimant. However, the court found that no duty was owed, firstly,
applying the omissions principle. The HOL went further to explain that the exceptions, in particular,
assumption of responsibility did not apply here. The HOL also held that to impose duty on the facts
would be unfair, unjust and unreasonable. Lord Hope held that it would not be ‘fair, just and
reasonable’ to find that the defendants had owed Mitchell a duty of care to warn him in this case:
making such a finding might discourage landlords from taking any steps to stop their tenants harassing
their neighbours, for fear that taking such steps might provoke an attack on the neighbours and result
in their being sued for failing to do enough to warn the neighbours of the risk that they might be
attacked. Lord Hope went on to remark that ‘as a general rule...a duty to warn another 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.’

Based on the above discussion it is submitted that courts do not recognise duty where there
is a failure to act, mainly because of the law on omissions. While in some circumstances, duty may be
refused because it is unjust, unfair and unreasonable to do so, this applies in limited circumstances
and as an additional basis for denying duty. Thus, it is concluded that the law of omissions plays a
significant role in deciding the duty issue where a failure to act is concerned. Further, following the
decision in Robinson, the significance of policy and ‘justice, fairness and reasonableness’ seem to have
been overshadowed by the importance of abiding with precedent and principle. Lord Reed concluded
that “the distinction between careless acts causing personal injury, for which the law generally imposes
liability, and careless omissions to prevent others’ acts causing personal injury, for which the common
law generally imposes no liability, is not a mere alternative to policy-based reasoning, but is inherent
in the nature of the tort of negligence… the distinction is of fundamental importance.”
III. PART THREE: OCCUPIERS’ LIABILITY

Occupiers’ Liability (Chapter 11)

Problem Questions

Sample 1:

2019 (October) Q5
Cedric has recently bought a country estate, which includes a large house, a lake and a disused chapel.
After paying a high purchase price, Cedric has no money left to undertake any of the necessary repairs
to the house. In particular, the stairs to the basement are uneven and the window frames on the first
floor are rotten. Nevertheless, Cedric decides to hold a party for his friends. He warns them not to go
down to the basement and also stipulates that they must take extra care if going up to the first floor.
Arjun, aged seven, becomes bored with the party and decides to jump down the stairs to the
basement. Unfortunately, he trips on the stairs and falls down into the basement, breaking his arm.
Davina, who has been drinking excessively, decides to search for the toilet. On climbing the stairs to
the first floor, she leans against a window. The rotten frame cracks and Davina falls through the
window into a bush below. Miraculously she suffers no injury but her designer gown is ruined.
Meanwhile Ben and Sharon decide to leave the party and wander off to the disused chapel. There,
Ben decides to swing on the bell rope. In the dark, he does not see the sign saying, ‘Danger: Do Not
Touch’, and on pulling the rope, a large part of the ceiling falls on top of him, causing serious injury.
The quickest way back to the house is across the lake; therefore, to get help, Sharon jumps into the
lake where sadly she drowns in the deep water. Advise the parties.

Suggested Answer:

The facts in question relate to the area of Occupier’s Liability. On the facts, it appears that
injuries have been sustained due to the dangerous state of premises. To recover compensation,
parties must try to establish liability under either Occupiers’ Liability Act 1957 or Occupier’s Liability
Act 1984. The causes of action that arise from the facts are as follows:
i) Arjun (A) v Cedric (C) – broken arm when jumping down stairs to basement (uneven
stairs)
ii) Davina (D) v Cedric (C) – ruined designer gown after falling through the window
(rotten window frame)
iii) Ben (B) v Cedric (C) –serious injury when pulled on rope (ceiling collapse)
iv) Sharon (S) v Cedric (C) – drowned when attempting to get back to the house to get
help (lake)

Cedric’s liability will be discussed in relation to each party – before discussing each one of
their claims, some common issues for liability will first be discussed and determined. Firstly, for
liability to arise under occupier’s liability, it must be shown that the injuries were caused by the state
of premises, anything done or omitted to be done on them: S1(1) OLA 1957 & S1(1) OLA 1984. Ogwo
v Taylor (1987) and Revill v Newberry (1996) both suggest that if injury was caused by a negligent
act, claims should be brought under negligence instead. On the facts, injuries have all been caused by
the state of premises: (i) the uneven stairs for A, (ii) the rotten window frame for D, (iii) the ceiling for
B and (iv) the lake for S. In the circumstances, all their claims may be brought under either OLA 1957
or OLA 1984.

Secondly, it must be shown that the defendant, C, is an “occupier” who may be sued under
the OLA 1957 or OLA 1984. An “occupier” is anyone by virtue of occupation of the premise, has control
over the premise: S1(2) OLA 1957, S1(2) OLA 1984. Further in Wheat v Lacon (1966) it was held that
anyone who has sufficient degree of control over the premises would be considered an occupier. Lord
Denning stated: “wherever a person has a sufficient degree of control over premises that he ought to
realize that any failure on his part to use care may result in injury to a person coming lawfully there,
then he is an ‘occupier’ and the person coming lawfully there is his ‘visitor’ and the ‘occupier’ is under
a duty to his ‘visitor’ to use reasonable care. 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. Suffice it that he has
some degree of control. He may share the control with others. Two or more may be ‘occupiers’. And
whenever this happens, each is under a duty to use care towards persons coming lawfully on to the
premises, dependent on his degree of control.” On the facts, C bought the entire country estate that
comes with the house, lake and chapel. He would therefore have the necessary degree of control to
be considered an occupier. Thus, an action may be pursued against him under the 1957 & 1984 Acts.
Thirdly, it has to be determined that the place of injury does amount to a premise. S1(3) (a) OLA 1957
and S1(2) OLA 1984 both state that premises include any fixed or movable structure, vehicles, vessels
and aircraft. On the facts, it is submitted that all injuries in question have occurred on premises, i.e.
the house, the chapel and the lake

Fourthly, it has to be determined whether the claimants are all lawful visitors or unlawful
visitors (trespassers). S1(2) OLA 1957 provides that visitors are those who have the permission or
invitation of the occupier, or icensees, and visitors include those who would, under common law, be
deemed lawful entrants. In Lowery v Walker (1911) it was held that a person who enters with implied
permission may be regarded as an invitee or even a licencee. In Lowery, the defendant did not object
whenever people walked through his land. As such when the claimant sustained injury after crossing
the defendant’s fence into his land, the court held that the claimant could be regarded a lawful visitor
with implied licence/permission. However, in Anderson v Coutts (1894) it was held that an occupier
may restrict or limit his visitors right/permission/licence to and use the premise, by giving adequate
notice that the visitor is not permitted to enter beyond a certain point in the premise. Where clear
notice is given, a visitor who exceeds the restriction will then be considered a trespasser/unlawful
visitor. In Gould v McAuliffe (1941) however, it was held that the claimant remained a lawful visitor
even when she entered a restricted space in search of the toilet for guests, because the restriction in
space was not properly indicated using clear notices. Further in The Calgart (1927), Scrutton LJ stated
“when you invite someone into your house to use your staircase, you do not invite them to slide down
the bannisters.” As such it can be seen that exceeding the limitations in space and use of a premise
may result in a person losing their status as lawful visitor. At times, notice is needed to clearly inform
the visitor, but in obvious cases such as in Scrutton LJ’s example of the stairs, the restriction against
improper use need not be spelt out. In Harvey v Plymouth CC (2010) it was also held that to commit
an unlawful act on the premise could convert one’s status from lawful to unlawful visitor, even though
the premise was one that was open to the public (here, running away from a taxi driver after refusing
to pay the taxi fare, and falling into a hole on the defendant’s premise – since the claimant was
committing an unlawful act at the time, he would be rendered a trespasser while on the defendant’s
land even though it was in fact a public park)

S2(6) OLA 1957 also provides that those who enter premises under the exercise of a right
conferred by law must also be accepted by the occupier as his lawful visitors. S 5(1) OLA 1957 states
that a person entering the premise pursuant to a contract, in order to carry out a contractual
obligation under the same contract, would be owed a duty as if he was a lawful visitor too

Here, it is argued that since C did tell his guests not to go down to the basement, A would
most likely be considered an unlawful visitor when he sustained injury on the basement stairs. A did
not have permission or invitation, or even an implied licence to use the stairs leading to the basement.
Besides, the manner in which A used the stairs might also be considered inappropriate, which may
further cause him to be regarded as a trespasser at the time (The Calgarth). A may argue that
notifying adult friends is not sufficient notification. A could argue that C was aware that some of his
friends brought their young children to the party with them, and that children are known to get bored
and wander off without their parents being able to keep an eye on them or stop them immediately.
A would argue that to sufficiently restrict entry to the place of danger, C should have closed off the
area, and in failing to do so, did not sufficiently limit A’s permission to enter the area. However, C
could argue that he could expect A’s parents to ensure that A did not wander off into the basement,
since C had informed them. In the circumstances, it is submitted that restriction was sufficiently
communicated, and for these reasons, A will be discussed as a trespasser under OLA 1984 below. As
for D, since entry to the first floor was not prohibited, she would probably be a lawful visitor at the
time and place of her injury. Her claim will be discussed under OLA 1957. In relation to B, since there
is no mention of restrictions on entering the disused chapel, B is likely to be a lawful visitor at the
time, and his claim will be considered under OLA 1957. Finally, for S, once again there were no notices
prohibiting swimming in the lake, and since according the facts, nothing was said to prohibit guests
from entering the lake, S may also be considered a visitor at the time of drowning. For B and S, it can
be argued that in failing to specify whether guests may enter the chapel and the lake, it is argued that
guests, i.e. C’s friends may have assumed that an invitation to the party meant that the entire country
estate was open to them, since C owns the entire country estate.

C’s liability for each one of the parties will now be considered – in particular, the duty that is
owed, the standard of care applicable in the different circumstances, and whether C had discharged
his duty to the injured parties.

i) A v C (non-visitor claiming under OLA 1984)

S1(3) OLA 1984 provides that an occupier would owe a duty to a non-visitor provided it can
be shown, (a) that the occupier knew or had reasonable ground to believe that there was some danger
on the premise, (b) that the occupier knew or had reasonable grounds to believe that someone was
in the vicinity of danger or may come into it, and (c) that the was some danger on the premise for
which protection was required.

In Tomlinson v Congleton BC (2003) it was held that the fact that the lake was dangerous
meant that the defendant knew of danger on the premise (S1(3)(a)). Further the fact that people such
as the claimant ignored the prohibition signs and would continue to enter the water was also
expected, and thus known to the defendant (S1(3)(b)). However, the fact that the defendant had put
up signs prohibiting people from swimming the shallow lake where the claimant dived and injured
himself, meant that the defendant was entitled to expect that no danger stemmed from the premise
itself and that the presence of others in the lake was no longer of concern. The HOL went further to
conclude that in any event, the risk of harm to the claimant did not stem from the premise, i.e. there
was no danger on the premise that required protection – it was the claimant’s actions that brought
harm upon himself. Thus S1(3)(c) was not satisfied and no duty was owed.

Further, in Swain v Natui Ram (1995), the defendant had warned others not to access the
skylight roof of his property. The claimant who later got on to the roof, fell and injured himself, argued
that the defendant ought to have known of his presence on the roof. The court rejected the argument
and held that to satisfy duty, in particular S1(3)(b), it had to be shown that the occupier had actual
knowledge of the trespasser’s presence, or ‘shut-eye’ knowledge. ‘Shut-eye’ knowledge would be
present where it is clear in the circumstances, that had the occupier “kept his eyes open” it would
have been obvious to him that the trespasser would come into the vicinity of danger. In other words,
the occupier cannot close his eyes to the obvious.
 Additionally, in Keown v Coventry NHST (2006), the court found that no duty was owed to
claimant, an 11-year old, who made his way into a restricted area with notices prohibiting entry. The
court found that there was no actual or shut-eye knowledge of the claimant’s presence in the vicinity
of danger, and further that there was no risk against which protection was needed. The claimant was
injured by his own act of climbing over the fence and endangering himself.

In Platt v Liverpool County Council (1997) the claimant a 14-year-old child was killed when
the defendant’s property collapsed on him. The court found that a duty was owed on the basis that
the danger was known to the defendant, and in particular that the risk of injury was one that needed
protection by the defendant. Even though the defendant did not know for certain if anyone would
come into the vicinity of danger, it was found that duty was nonetheless owed and S1(3)(a), (b) and
(c) were all satisfied.

On the facts, A would argue that a duty of care under S1(3) may be owed. It appears that in
contrast with the above cases, C would satisfy the requirements of knowledge of danger (a) and
knowledge or reasonable grounds to believe that someone might come into it (b). C was clearly aware
of the uneven stairs and knowing it to be dangerous, told his guests not to enter the basement. He
also did not take sufficient steps to avert the danger of using the steps, as it can be argued that simply
telling guests not to go down to the basement may not be enough for young children accompanying
their parents to the party. Unlike the defendant in Tomlinson, who had taken many measures to avert
danger to visitors of the park, C does not seem to have done enough. These would establish knowledge
of danger and reasonable grounds to believe that younger guests at the party, may come into the
vicinity of danger. As such it is accepted that S1(3)(a) and (b) would be satisfied. However, it is argued
that even though the stairs were uneven, it is doubted that this is a risk for which protection is needed.
It is argued that careful use of the steps may not have resulted in injury, and as such the requirement
of ‘danger needing protection’ in (c) may not be satisfied. It is submitted here, consistent with Keown
and Tomlinson, that the risk of injury arose not from the uneven stairs, but A’s act of jumping down
the stairs. Had he used it in the normal way, or carefully, it is possible that he would not have fallen.
In the circumstances, it is submitted that duty in S1(3) will not be established.

If the court takes the contrary view that there was in fact a risk of injury needing protection
with the uneven stairs, then S1(3) would be satisfied and duty would be owed. It would then be
necessary to consider what the appropriate standard of care would be in the circumstances. In S1(4)
OLA 1984, it was held that the duty is to take such care as is reasonable in the circumstances to see
that the non-visitor is not injured by reason of the danger concerned. In Platt, the unoccupied
property of the defendant, which was on the verge of collapsing, had its doors and windows covered
with metal sheets and were inspected once a day. In addition, the property was inspected once a day
and was surrounded by a corrugated metal 22-gauge fence, 8 feet high, secured on a timber frame
embedded in the concrete. Kennedy LJ in this case accepted that these measures more than met the
reasonable standard of care and rejected as simply absurd to expect the council to hire security
guards. The danger in Platt was that of a house that was about to collapse, and in comparison, the
uneven stairs in C’s house poses hardly a fraction of the danger posed by the house in Platt.
Reasonable precaution in Platt would require extensive measure. The extent of precaution necessary
in C’s case will be much less comparatively.

S1(5) OLA 1984 states that the duty owed may be discharged by taking steps such as giving
warming of the danger concerned or discouraging persons from incurring the risk. On the one hand,
it can be argued that reasonable care in the circumstances would probably have required more
precaution on C’s part, such as closing of the entrance to the stairway altogether. It would seem as
though verbally telling his friends not to go down to the basement would be insufficient and
unreasonable in the circumstances taking into account that some of his friends attended with young
children. Alternatively, it can also be argued that the law in OLA 1984 merely requires C to discourage
persons from incurring the risks and that he did do so by telling his friends not to enter the basement.
C could also argue that he is entitled to expect his friends to watch out for the safety of their young
children. In British Railways Board v Herrington (1972), the duty that is owed to a trespasser is a duty
of common humanity. Although this implies a lesser duty compared with that which is owed to lawful
visitors, in relation to child trespassers, Lord Pearson stated, “with the increase of the population and
the larger proportion living in cities and towns… there is less playing space for children and so a greater
temptation to trespass. There is less supervision of children, so that they are more likely to trespass.
Also with the progress of technology there are more and greater dangers for them to encounter…There
is considerably more need than there used to be for occupiers to take reasonable steps with a view to
deterring persons, especially children, from trespassing in places that are dangerous for them.

Applying this view, it is submitted that the steps taken by C would not be sufficient in the
circumstances. C could easily have closed the entrance to the stairway, and in failing to do so, he
would be in breach, and could potentially be found liable. C would then want to rely on S1(6) OLA
1984, arguing that A willingly accepted risks of injury when he jumped down the stairs and injured
himself. This is the defence of volenti non-fit injuria, which will only be upheld if the trespasser knew
of the danger concerned and still proceeded to incur it. On the facts, it is unclear whether A knew that
the stairs were uneven, and whether C told him specifically. Even if he was told, or did see the uneven
state of the stairs, it is argued that he may be too young to appreciate the danger. Contrasting A with
the claimant in Keown, (an 11-year-old), A is unlikely to be able to foresee danger as Keown would
have been able to. In the circumstances, distinguishing with Keown, it is submitted that the volenti
defence will not apply here, and C may be liable under OLA 1984 for A’s injuries. S1(8) OLA 1984
specifies that an occupier may not be liable for property damage sustained by a non-visitor. Since A
has suffered a broken arm, this would be recoverable.

ii) D v C (lawful visitor claiming under OLA 1957):

S2(1) OLA 1957 provides that the occupier owes the visitor the same common duty of care,
except in so far as he wishes to and does limit, modify or exclude his duty. The facts do not stipulate
that C has in any way attempted to exclude duty, as such, he would owe D, his lawful visitor the
common duty of care. This is a duty to ensure that the static, physical condition of the premise is safe
(Dunster v Abbott (1954)). In Tomlinson, it was further held that the common duty could include a
duty to also ensure that all activities carried out by the occupier, or anyone authorized by the occupier
on the premises, are carried out with reasonable care. On the facts, C would certainly owe D the duty
to ensure that she was not injured as a consequence of the rotten window frame.

S2(2) OLA 1984 goes on to state that the common duty of care is a duty to take such care as
in all the circumstances, is reasonable to ensure that the visitor is safe in using the premise for the
invited/permitted purpose. This is an objective standard, which takes into account the condition of
the premise and its intended use. In Darby v National Trust (2000), it was held that in failing to close
off or put up signs discouraging swimming, the occupier was not liable for the claimant’s drowning
when he tried to swim in a lake on the defendant’s land. This was because the danger was deemed
obvious and no steps of precaution were necessary. Thus, where danger is obvious, little is required
for the purposes of ‘reasonable care’. Further, in Sutton v Syston RFC (2011), the reasonable standard
of care was simply that of inspecting the rugby pitch before the match, to ensure that there was no
danger to players. The fact that certain dangers, such as an object submerged in the soil, cannot be
detected despite careful observation, does not mean that the occupier must be subjected to a higher
standard of care. In Sutton, the defendant occupier did not fall below the reasonable standard in S2(2)
because reasonable inspection had been carried out. In addition, in Edwards v Sutton LBC (2016), the
court found that the claimant’s fall from the ornamental bridge in the defendant’s park was no more
than an unfortunate accident and that such accidents had never occurred before. The bridge was
usually traversed without difficulty. The defendant had not fallen below the reasonable standard by
choosing a low bridge design. These cases tend to suggest that the law does not require occupiers to
come up to a high standard of precaution, because accounts for the fact that some dangers simply
cannot be prevented no matter how careful an occupier is, some are obvious enough that the visitor
can be expected to take care, and some are no more than just accidents. The court is only likely to
find an occupier in breach, where the visitor is in a particularly vulnerable position on the premise and
where danger is foreseeable (G4S Care and Justice Services v Manley (2016) – prisoner with a mobility
problem fell in his darkened cell when there was a power cut due to the occupier’s fault). It is
submitted, that the danger in question, i.e. a rotting window frame is in contrast with the kinds of
danger seen in Darby, Edwards, and Sutton. It is arguably not obvious (Darby), and yet not something
that simply cannot be avoided no matter how much care is taken (Sutton). It is also not the result of
an unexpected accident as it is clearly known to be dangerous (Sutton). Although the injury to D would
have been foreseeable to C in the circumstances, C is not a vulnerable victim like the claimant in G4S
Care. Thus, it is submitted that on the facts, that C may be expected to greater care to meet the
reasonable standard, and that simply telling guests to be careful when going to the first floor probably
falls below the reasonable standard.

S 2(4)(a) OLA 1957 provides that an occupier may discharge his duty by giving warning of the
danger, provided the warning is sufficient to keep the visitor safe. C may want to rely on this provision
arguing that he did inform his guests to be careful when going up to the first floor. However, whether
this sufficient in the circumstances to keep D safe is doubted. In Rae v Mars (1990) it was held that
exceptional danger requires greater steps of warning such as placing barriers. It may be argued that C
could at least have told his guests to specifically keep away from the window. Having failed to do so,
it would appear that C has not discharged his duty adequately.

In the circumstances, C is likely to be found in breach. However, C is may raise the defence of
contributory negligence, arguing that D had failed to take reasonable care for her own safety. In S2(3)
OLA 1957 it is stated in determining the degree of care that can be expected of the occupier, it is
relevant to take into account the degree of care that a visitor can be expected to take for their own
safety. It is likely D was drunk at the time, as she had been drinking excessively, and it is possible that
she may have neglected caution on her part when heading up to the first floor. She may not have been
as careful as she was asked to be, and it is arguable that if she had just used the toilet and not stopped
at the window and leaned on the frame, she would not have fallen. If the court accepts that her
conduct was contributory negligent, damages may be reduced taking into account her share of fault:
S1(1) Law Reform (Contributory Negligent) Act 1945. Finally, D would want compensation for her
designer gown that was destroyed. S1(3)(b) OLA 1957 allows claims for property damage and as such,
D may recover damages for the destroyed designer gown.

iii) B v C (lawful visitor claiming under OLA 1957):

S2(1) and S2(2) OLA 1957 discussed above would also apply to B since he was also a lawful
visitor at the place injury, the disused chapel. C owes D a duty of care, and this duty has not been
excluded on the facts. Further the standard of care is that of reasonableness as discussed above. The
danger in question is that of a ceiling that collapsed when B pulled on a rope. This is a danger that
stems from the state of premises. Given the nature of the danger being serious, and the fact that the
place was dark with no lighting, it may be said that the level danger was great and highly foreseeable.
It can be argued that C could be expected to take far greater precaution in the circumstances, drawing
analogy to G4S Care. In the circumstances, the failure to take greater precaution may result in C being
found to fall below the reasonable standard of care. It can be argued that given the nature of the
danger, C could be expected to do more, such as closing off the chapel altogether, or telling his friends
not to enter it at all. C did none of these and it is argued that he would be in breach of his duty.
 C would argue that he did provide warning of the danger, by placing a notice stating ‘Danger,
do not touch’. Applying S2(4)(a) OLA 1957 discussed above, this will only assist C in establishing that
he has adequately discharged his duty, provided in the circumstances, the warning is sufficient to keep
B safe. It is argued that the chapel being in a state of disuse, without lighting, would mean that any
notice is unlikely to be sufficient to keep the visitor safe as it is not visible in the dark. This may not be
enough for C to argue that he had discharged his duty. In Roles v Nathan (1963) Lord Denning
explained that it would not be sufficient in some cases, to simply place a notice on the premises stating
danger. More precaution may be needed to ensure that the visitor does not encounter the danger at
all. In the circumstances, C should probably have locked the chapel up altogether. The nature of the
warning in place also gives no description of the type of danger, namely that of a collapsing ceiling –
this danger is not obvious. Applying English Heritage v Taylor (2016) where danger is not obvious,
clear and effective warnings are necessary. As such, C would be in breach.

C may argue, in his defence, that he may not be found liable for risks which his visitor, B,
willingly accepted: S2(5) OLA 1957. C would argue that since he did place a warning in the chapel, as
discussed above, and B still proceeded to pull on the rope despite being warned, that B could be said
to have accepted risks of injury willingly. However, for this argument to succeed it must be shown that
B was aware of the danger and willingly accepted it. If B is unaware of danger to start with, he cannot
be said to have willingly accepted risks. Since the notice was not visible to him in the dark, it would
appear that he did not know of any danger or willingly accept any risks. As such the volenti defence in
S2(5) will not assist C on the facts and he is likely to be found liable (White v Blackmore (1972).

iv) S’s estate v C (lawful visitor claiming under OLA 1957):

S, also a lawful visitor at the time of drowning, would also be owed a duty as stipulated in
S2(1) OLA 1957 stated above. However, C may argue that S’s drowning was in fact caused by her own
act and not any dangerous condition of the lake. C would argue that a duty is only owed to ensure
that the premises are safe, and that no duty can be owed in respect of the visitor’s careless act:
Tomlinson. The facts would, however, be distinguished from Tomlinson, since in Tomlinson, the
defendant did prohibit swimming in the lake and the claimant’s injury can properly be said to be
caused by his own reckless act. On the facts, however, S was not prohibited from using the lake and
as such, it cannot be said that it was her own act that caused her drowning. C would still owe a duty
for her safety.

This duty carries with it the same standard of care expected of C, which is to take reasonable
steps to ensure that the S is safe on the premise (S2(2)). S’s estate would argue that C has fallen below
the standard of care by failing to take any precaution for the safety of those who would use the lake
on his country estate. No signs were placed to indicate that the lake was very deep, or that visitors
should not swim in the lake. C would argue that in Darby (discussed above), the occupier did not fall
below the reasonable standard even though the lake had been left open and accessible, without
warning notices. In Darby, it was held that the danger of drowning in lake was obvious and as such no
precaution was needed on the occupier’s part. Similarly, it can be argued here that the dangers of
swimming a lake, in a country estate are obvious and as such, C may not be in breach.

C would want to rely on S2(3)(b) OLA 1957, arguing that S had been acting as a rescuer at the
time, and that therefore, she may be regarded as a person exercising a particular calling. The relevant
provision states that an occupier may expect that a person in the exercise of his calling, will appreciate
and guard against any special risks ordinarily incident to the calling, as far as the occupier leaves him
free to do so. Thus, C would argue that in choosing to act as a rescuer at the time and in choosing to
use the lake as a means to get to house in order to get help, S may be left to guard against risks
associated with her actions at the time. In Roles v Nathan (1963), the court found that the claimant,
a chimney sweep, could be expected to safeguard against the risks of his calling and as such that the
defendant occupier was not liable for the claimant’s death caused by inhaling toxic fumes while
cleaning the chimney. However, in Salmon v Seafarer (1983), it was held, where the risks are
exceptional and extraordinary, the skilled person exercising the particular calling cannot be expected
to guard against the said risk, and the occupier may continue to be held liable. Further in Naeme v
Johnson (1991) it was held that the risk of faced by a paramedic, of falling over objects while moving
an injured person on a stretcher is a special risk incident to the work of a paramedic, and that the
paramedic must bear it on his own.

Applying these on the facts, it is argued that S cannot be expected to safeguard against the
risk of drowning; it is not a special risk that is ordinarily incident to an act of rescue, and certainly not
one that she would have expected to encounter at the time. As such, S2(3)(b) will not additionally
assist C on the facts. However, as argued above in relation to the Darby case, the court is likely to
conclude that C has not breached his duty, and cannot be found liable.

In conclusion, it is submitted that C is likely to be liable for A, D and B’s losses and injuries. The
relevant remedy in the circumstances will be damages, however, as discussed above, D’s damages are
likely to be reduced.

Sample 2:

2013 (ZB) Q4
Joe and Ken are 14-year-old pupils at Dotheboys Community College. Joe is a clever and adventurous
child. Ken has learning difficulties: he admires Joe and follows his lead. Joe discovered that one of the
railings surrounding the school grounds had become slightly loose and so he suggested to Ken that
they would be able to squeeze through and get into the school grounds after the school had closed
for the day and the buildings were locked. They did so. There was no other access to the school
grounds. Joe then noticed that one of the windows was very slightly open. The boys managed to climb
in and found themselves in a chemistry lab. Ken saw some test tubes and poured water into one of
them. The test tubes had been left ready for an experiment the following morning. There was a big
explosion and Joe and Ken were hurt. Laura, a paramedic, was one of the ambulance crew sent to the
scene. Her ambulance was not equipped with the special clothing that should be worn if there was a
danger of a chemical leak. However, she decided that the situation was so serious that she should try
to help the boys at once rather than wait for the special clothing to arrive. She managed to treat the
boys but was herself badly burned as a result of contact with the chemical. Advise Joe, Ken and Laura.

Suggested Answer:

The relevant area of law in question is that of occupiers’ liability as injuries have occurred on
the premises of the Dotheboys Community College (‘DCC’). The answer will evaluate whether claims
can be brought under the Occupiers Liability Acts 1957 (OLA 1957) (for lawful visitors) and Occupiers
Liability Act 1984 (OLA 1984) (for trespassers). Those injured on premises are Joe, Ken and Laura. The
potential defendant is the DCC as it is their premise.

Given the facts, it appears that an activity had taken place on the premise leading to an
explosion and injuries appear to flow from the explosion. As such it must first be determined whether
the claims fall within the ambit of the OLAs. S1(1) of both Acts provide that the Acts replace common
law rules on liability for injuries due to the state of premises, anything done or not done on them.
Here, Ken poured water into test tubes resulting in an explosion responsible for Ken, Joe and Laura’s
injuries. Thus, it has to be discussed whether this falls under “anything done or not done on the
premise” as it cannot be considered to be something due to the state of premises. Judicial opinions
vary on this issue. Firstly, in decisions such as Ogwo v Taylor, Revill v Newberry, Naylor v Payling,
Bottomley v TCC: it has been made clear that if injury was caused by the careless act of either the
occupier, or another visitor on the premise or any other person on the premise, it is not caused by the
state of premises, and does not fall within “things done or not done on the premise.” Liability for
wrongful acts should fall under common law negligence instead. However, in Tomlinson v Congleton
BC the HOL took the opposite view that “things done or not done” can include the occupier’s actions
and actions of anyone authorised by the occupier to be on premise. Further, in Cunningham v Reading
FC it was held that if the state of premises made it possible for some other dangerous activity to take
place causing injury, then this would fall within the scope of S1(1).

Applying these to the facts here, firstly, in relation to Ken, it was his own act that caused his
injury, i.e. pouring water into the test tubes directly causing the explosion. It would not seem fair to
hold that this act should fall within the ambit of the occupier’s liability as it is not the act of the
occupier or anyone authorised by the occupier at the time. For Ken’s injuries, it is submitted that like
the claimants in cases like Tomlinson, Keown v Coventry NHST and Kolasa v Ealing Hospital NHST
where they knowingly endangered themselves on the premises, liability will not fall under the scope
of the Acts and the occupier is not responsible. However, Ken was led into the premise by Joe, and
has learning disabilities, and would argue that his position should be distinguished from that of
claimants in Kolasa, Keown and Tomlinson. But it is argued that, even though he has learning
disabilities, he was probably not completely incognizant of his actions. Ken will be responsible for his
own actions. His claim will not fall under occupiers’ liability. It is submitted that he will not be able to
bring a claim under common law negligence against DCC either because it was his own actions rather
than their negligence that caused his injury. This is in contrast with cases like Revill and Ogwo wherein
it was held that a claim could be made under common law negligence against the occupier because it
was the occupier’s careless act that directly injured the claimant.

As for Joe, his injuries resulted from the wrongful action of another on the premise (Ken) and
as such the decisions in Naylor, Cunningham and Bottomley will be relevant. However, the difficulty
is that in those cases the party causing injury was authorised to be on the premise, whereas on the
facts, Ken was trespassing at the time and presumably not authorised to be in the lab at the time. or
to do what he did. DCC will argue that they are not responsible for Ken’s actions. In Tomlinson, the
HOL also stated that it is only the act of the occupier or someone authorised by the occupier, that
could at best, fall under “things done or not done on the premise.” Thus, for Joe, there are two possible
arguments. Firstly, Ken was not authorised to be there at that time and DCC cannot be liable for Ken’s
actions. Joe’s claim must be pursued under common negligence instead per Naylor and Bottomley.
Under common law negligence, it would have to be established that the DCC owed a duty of care for
the third-party actions of Ken (Home Office v Dorset Yacht) Alternatively, it can be argued that Ken is
a pupil at DCC and is generally permitted to be on the premises of DCC even though he did sneak in.
The fact that the railing and open window made it possible for him to enter the lab suggests that his
actions are not entirely unexpected. If this is accepted, then Joe’s injuries are the result of the act of
someone “authorised” by the occupier to be on the premise (Ken) and could fall under S1(1) on the
basis of following Tomlinson. At the same time, the presence of danger on the premise enabling Ken’s
actions could also fall within S1(1) on the basis of Cunningham. Joe can claim under occupiers’ liability.

As for Laura, her injuries were clearly caused by the state of premises and Ken’s actions
combined like in Cunningham. Given her position as rescuer as well, it is submitted that by the time
she arrived, it would only be fair and reasonable to consider her injuries to fall within the ambit and
responsibility of the occupier, DCC. As such, she will be able to claim under either of the Acts

When applying the occupier’s liability statutes, it is also necessary to show that the place of
injury amounts to a premise. S1(3)(a) OLA 1957 provides that a premise includes any fixed or movable
structure and the same is echoed by S1(2) OLA 1984. On the facts, the injuries happened on a college
premise, in the science lab, clearly a fixed structure.

Next, it also has to be shown that the defendant, DCC is an occupier under the Acts, for liability
to arise. S1(2) OLA 1957 and 1984 provide that occupiers are those that have occupation or control
of the premises, or those who under common law would be considered an ‘occupier’. In Wheat v
Lacon it was held that anyone who has sufficient degree of control over the premise, including the
right and ability to fix the condition of the premise will be considered an occupier. DCC own and
operate the college and therefore have control over the condition of its premises. As such, DCC will
fall within the definition of occupier and may be sued.

In order to establish liability, it is also necessary to determine the status of the claimants. S1(2)
OLA 1957 states that those who have permission, invitation or licence to enter the premise are
regarded as lawful visitors. Further, those who would be considered “visitors” under common law may
also fall within the protection of the 1957 Act. In addition, those entering the premise under the
exercise of a right conferred by law (S2(6) OLA 1957) and by contract (S5(1) OLA 1957) are also lawful
visitors to whom duty is owed. Those who do not fall within these provisions will be regarded as
trespassers and will fall under the OLA 1984 (S1(1) OLA 1984). In Lowery v Walker it was held that an
occupier who does not object to the use of his premise by another would be deemed to have given
the other implied permission or licence to enter or pass through. Under common law, such a person
would be a lawful visitor too. However, where clear notice is given a lawful visitor who exceeds any
such restriction will be deemed a trespasser (Anderson v Coutts). If, however, restriction or
prohibition is unclear, then the visitor entering the premise remains a lawful visitor: Gould v
McAuliffe. Young children who trespassed onto a premise due to an allurement on the premise were
previously treated under law as lawful visitors to whom a duty could be owed: Cooke v Mid-Western
Railway of Ireland. However, this is unlikely to apply today given the availability of the OLA 1984.

Here, Joe discovered that one of the railings surrounding the school grounds had become
slightly loose and so he suggested to Ken that they would be able to squeeze through and get into the
school grounds after the school had closed for the day and the buildings were locked. There was no
other way to enter the college. Joe then noticed that one of the windows was very slightly open and
the two, climbed in. Although there are no signs prohibiting entry at the time, the boys were
trespassing, they were aware, and did so on purpose. Joe was adventurous and Ken followed his lead.
They will not be able to dispute knowledge or argue that the science lab was an “allurement”. They
are teenagers and the principle usually applies to younger children. Besides, the OLA 1984 protects
trespassers too and the allurement principle assisting younger trespassers redundant. It also cannot
be argued that the slightly loose railing and very slightly opened window encouraged the trespass.
These do not constitute “implied permission” or “invitation” to enter. Express notice prohibiting entry
is also not required here. As 14-year-old pupils, the boys would well be aware that entry after closing
hours is prohibited. The facts are in contrast with Gould where notice was necessary but not clearly
given. Indeed, Scrutton LJ’s view in The Calgarth (1927) is more applicable. Where it is obvious to the
visitor that he is using the premise improperly or contrary to its normal use, he has exceeded
permission. Notice cautioning against such use is not needed. Thus, Joe and Ken are highly likely to be
considered trespassers and will fall under OLA 1984. The answer will proceed to consider only Joe’s
claim under the Act, since as discussed above, Ken’s claim will not fall under occupier’s liability at all
(Tomlinson; Keown).

Considering Joe’s claim under OLA 1984, the issue is whether he is owed a duty of care. S1(3)
provides that duty is owed provided (a) the occupier knew or had reasonable grounds to believe that
there was danger on the premise; (b) the occupier knew or had reasonable grounds to believe that
someone was in the vicinity of danger and (c) that the danger was such that protection is required.
 In Tomlinson, it was accepted that the defendant was aware that it was dangerous for the
public to swim in or wade in the lake since there had been accidents involving the use of the lake. In
Platt v Liverpool CC, the defendant was aware of that the dilapidated house was dangerous and could
collapse anytime. Even though steps were taken to discourage anyone from entering the house,
knowledge of danger could not be denied. It is argued that DCC is bound to know that the lab was left
in the said manner on the day in question. Having left the apparatus in the lab ready for the
experiment the next day, danger on the premise is definitely known and undeniable. Thus, knowledge
of danger on the premise is satisfied per S1(3)(a) OLA 1984.

As to whether the occupier knew or had reasonable grounds to believe that the trespasser
was in the vicinity of danger or may come into it, in Donoghue v Folkestone, knowledge of the
presence of the trespasser in the vicinity was not satisfied because even though it was known that the
defendant’s premise was used as a diving platform during the summer, it was not known that anyone
would dive from the defendant’s premise into dangerous waters in winter, after midnight. Further, in
Swain v Natui Ram it was held that actual knowledge or ‘shut-eye knowledge’ was necessary and it
cannot be said that the occupier ought to have known that the trespasser would enter the premise.
Applying these to the facts, Joe will argue that with the loose railing and slightly open windows, DCC
ought to have known that students would be in the vicinity of danger. However, this is not sustainable.
Applying Donoghue and Swain, there was no reason to think that Joe would sneak in or be in the lab
after the college had closed for the day. There is nothing on the facts to point towards actual
knowledge of students entering the lab in this manner. The loose railing and slightly open window are
arguably insufficient for the courts to impose ‘shut-eye knowledge’ on DCC. Even if there were
previous instances of trespass, this would not give reasonable grounds to expect entry of students in
the lab at the time. Therefore, S1(3)(b) OLA 1984, knowledge of presence of trespasser will not be
satisfied.
Lastly, as to whether the danger in question required protection, it is submitted following
Tomlinson that it does not, since DCC had left the test tubes in the said state and manner at a time
when it believed for sure that the test tubes would not pose danger, since they college had closed for
the day and the apparatus would only be used the next day when a teacher was present to supervise
the students. As such, S1(3)(c) OLA 1984 will not be satisfied.

In the circumstances, Joe will fail to satisfy the duty requirement under OLA 1984. In any
event, given the nature of the trespass. i.e. just for the sake of adventure, it is argued that the fact
that DCC had locked the building would be sufficient to meet the standard of care in S1(4). However,
it can also be argued that if test tubes filled with dangerous chemicals were to be left unattended for
the next day, then it is negligent to not ensure that all windows and means of access are securely
locked. The slight opening in the window is arguably unsafe if chemicals are left accessible as they
were on the facts. Thus, DCC’s conduct of leaving the test tubes in the said manner without properly
closing the window will fall below the reasonable standard of care. The section requires that
reasonable care is taken and when compared with the facts in Platt, DCC will fall short of this standard.
Breach is proven.

Finally, even if Joe could satisfy duty and breach, his claim is likely to fail on grounds of volenti
non-fit injuria, i.e. where the injury can be said to result from dangerous risks willingly accepted by
the trespasser: S1(6) OLA 1984. Applying Keown here where an 11-year old trespassing onto a hospital
roof top, climbing over railing and falling over, Joe’s act will similarly be considered willing acceptance
of risk since the dangers of his actions on the day in question would clearly have been obvious to him.
He is also described as clever and adventurous. Even though he may not have known that Ken would
have played with the test tubes, the act of breaking into the science lab in itself is foreseeably
dangerous and this would suffice for the volenti defence.
 Thus, Joe will fail under OLA 1984. In the unlikely event that Joe is regarded as a lawful visitor,
the OLA 1957 may be considered. It is possible that the courts may contrast the present facts with
that of Edwards v Railway Executive (1952). In Edwards, the occupier had repeatedly mended
damaged fences to prevent trespassing. As such, when the claimant trespassed in this case He would
be owed a common duty of care under S2(1) and this would include responsibility for the actions of
Ken as discussed above by applying Tomlinson and Cunningham, i.e. that on these facts, both an
occupancy and activity duty may be owed. As to whether the standard of care S2(2) is met, as argued
above under S1(4) OLA 1984, leaving the test tubes unattended and the window slightly open will
probably not meet the reasonable standard. Even though students are not expected to sneak in as Joe
did, still labs are usually supposed to be secured against entry of students especially where teachers
or other authorised persons are not present to ensure students don’t partake in dangerous activities.
Given the level of danger associated with science labs, the carelessness or oversight in relation to the
window is probably unacceptable.

Further, in S2(3)(a) OLA 1957 it is stated that occupiers must take more precaution where
child visitors are concerned since children are less careful than adults; all the more in a boys’ college
like DCC where there is a science lab, which arguably serves as an allurement to young, adventurous
boys like Joe, DCC could not afford to be so careless as to not lock all windows. In Jolley v Sutton LBC,
the claimant, a 14-year-old tried to fix a rotting boat when it collapsed on him causing severe injury.
The occupier had not taken sufficient steps to avert the danger to young children, knowing it to be
easily accessible, left exposed in an open public access area and close to where children played. The
court applied the allurement doctrine and held that care on the occupier’s part was insufficient
because danger was foreseeable and easily reached by youngsters. Indeed, “it has been repeatedly
said in cases about children that their ingenuity in finding unexpected ways of doing mischief to
themselves and others should never be underestimated.” (Lord Hoffman). On that basis, the occupier
in Jolley was found in breach; but the present facts may be distinguished since Joe had entered the
lab at an unexpected time. Nonetheless, as a whole, by leaving the lab apparatus in the said manner
and failing to close the window, DCC would fall below the standard of care.

The facts are silent as to any warning of danger in or around the lab. However, for boys like
Joe, it is argued that danger will be obvious. Even if S2(4)(a) OLA 1957 requires that adequate warning
to keep the visitor safe is necessary to discharge duty, where danger is obvious warning is not
required: Darby v National Trust. DCC may have failed to discharge their duty here and liability may
be established under OLA 1957.

However, it is possible for DCC to rely on the volenti defence under S2(5) against Joe, as
argued above under S1(6) OLA 1984, given that Joe will most likely be deemed aware of the risks of
his adventure. Having acted as he did, he will satisfy the requirements of knowledge and willing
acceptance of risk on the facts, in the same way as the claimant in Keown. Thus, ultimately, Joe’s claim
will fail against DCC under OLA 1957. In light of the above, Joe will fail to establish liability against DCC
under both Acts.

Finally, in relation to Laura, the paramedic, since she was duty bound to enter the premise to
rescue the boys, DCC will have to accept her as a lawful visitor with either a licence or implied
permission to enter. Her claim will be considered under OLA 1957, and as discussed above for Joe, she
will be owed the common duty of care pursuant to S2(1). In Laura’s case, since she was injured due to
the chemical leak, which by that time was the very thing that made the premises dangerous, her injury
is clearly premise-related. The scene post-explosion is clearly one that would constitute a dangerous
premise. In the circumstances, this would fall within the standard occupancy duty owed by DCC to
Laura. As to whether they fell below the standard of care in S2(2), DCC would argue that there was
not much they could have done to minimise harm to Laura.

It will be argued that since Laura is a paramedic entering the premise to carry out her calling,
DCC are entitled to expect her to take precaution to protect herself against “special risks ordinarily
incident to her calling”, S2(3)(b) OLA 1957. As to whether the dangers of burns due to chemical leak
are ordinarily incident to the work of a paramedic, the fact that special suits are usually supplied to
paramedics suggests that the kind of risk encountered is known and familiar to a paramedic. In this
sense, Roles v Nathan may apply, that if a risk is known to the skilled visitor, he must take precaution
for his own safety and the occupier is absolved of responsibility. By contrast however, in Ogwo and
Salmon v Seafarer it was held that even though the risk of burns was an ordinary risk of a fireman’s
work, the magnitude of the fire in both cases were so extraordinary as to fall outside the scope of
“special risks ordinarily incident” to the work of a fireman. This suggests that Courts are mindful not
only of the type of risk but its magnitude. If this is applied here, then it may be accepted that even
though the risk of burns is ordinary, the risk in question, chemical leak causing burns is extraordinary.
Thus, S2(3)(b) may not apply and DCC may continue to be liable.

However, DCC will argue that despite knowing the danger and that protective gear was not
available, Laura chose to risk her own safety. This may be argued as a risk known and willingly accepted
by the visitor, thus, allowing DCC to invoke the volenti defence under S2(6) OLA 1957. Yet, as
demonstrated by cases such as Baker v Hopkins and Chadwick v BRB, courts do not allow the volenti
defence in rescue cases because rescuers act out of necessity and not willing acceptance of risk. Thus,
the volenti defence will fail also as demonstrated ordinarily in White v Blackmore, where even if the
risk of danger is known, visitors cannot be said to have willingly accepted them where the extent of
the risk is not obvious.

Lastly, DCC may argue instead, the Laura was perhaps contributory negligent pursuant to S2(3)
OLA 1957 in that she entered the premise without the protective clothing. This may be regarded as a
failure to take care on her party, but given the needs of the situation, it is unlikely that the court will
find Laura to be contributory negligent. Indeed, it was the ambulance that failed to supply her with
the protective clothing. She may in turn, bring an action under common law negligence against her
employer for failing to supply her with the necessary protective gear at the time. Liability should be
easily established.

In conclusion, neither Joe nor Ken will succeed against DCC under occupier’s liability law. Joe
may have a claim against DCC in respect of Ken’s actions under common law negligence. Laura will,
however, be able to recover compensation for her injuries against DCC under occupier’s liability and
her employer under common law negligence, with liability being shared between the two.
Sample 3:

2004 (ZB) Q7
ZYX Breweries held an open day for visitors. Prominent notices at the entrance read: “Visitors must
remain on the marked pathways and must not try to climb on or over the barriers.” Simon went to
the brewery with his son, Tom, aged 12 and his daughter, Ursula, aged 6. Tom persuaded Ursula to
tell her father that he was feeling sick because of the smell. While Simon’s attention was distracted,
Tom climbed over one of the railings to get a better view. He jumped in and managed to hold his
head out of the liquid. Both Tom and Vince were eventually rescued, but suffered severe physical
illness for several months. Advise Tom and Vince.

Answer Guide:

We are told to advise Tom and Vince hence clearly, they are the claimants here. The potential
defendant here would be ZYZ Breweries. The possible action in tort here would be under the
Occupier’s Liability Act (hereinafter known as the OLA) for Occupier’s liability with regards to Tom and
Employer’s liability with regards to Vince.

With regard to Tom

Firstly, it would have to be determined whether the claimant suffered injuries due to the state
of the premises. Premise is defined in Section 1(3) of the Occupier’s Liability Act 1957 to include fixed
or movable structures. On the facts, is Tom injured due to the state of premise?
The next issue is who can be sued? Is ZYX Breweries an occupier? Lord Denning in Wheat v E. Lacon
& Co Ltd stated that the word ‘occupier’ was simply a convenient word to denote a person who had a
sufficient degree of control over premises to put him under a duty of care towards those who came
lawfully on to the premises. If a person has any degree of control over the state of the premises it is
enough.

First, where a landlord let premises by demise (a conveyance to a tenant, he was regarded as
parting with all control over them. He did not retain any degree of control, even though he had
undertaken to repair the structure. Secondly, where an owner let floors or flats in a building to
tenants, but did not demise the common staircase or the roof or some other parts, he was regarded
as having retained control of all parts not demised by him. Accordingly, he was held to be under a duty
in respect of those retained parts to all persons coming lawfully on to the premises. Thirdly, where an
owner did not let premises to a tenant but only licensed a person to occupy them on terms which did
not amount to a demise, the owner still having the rights to do repairs, he was regarded as being
sufficiently in control of the structure to impose on him a duty towards all persons coming lawfully on
to the premises. Fourthly, where an owner employed an independent contractor to do work on
premises or a structure, the owner was usually still regarded as sufficiently in control of the place as
to be under a duty towards all those who might lawfully come there…. But, in addition to the owner,
the courts regarded the independent contractor as himself being sufficiently in control of the place
where he worked as to owe a duty of care towards all persons coming lawfully there. He was said to
be an ‘occupier’ also. On the facts, ZYX Brewery has sufficient degree of control over the premises.

If Tom is injured due to the state of premises, the next question is whether Tom a visitor or
non-visitor? Arguably he is an invitee/ licensee: Section 1(2) OLA 1957 as we are told that it was an
open day for visitors. Following the Section 2(1) OLA 1957, the occupier owes the visitor a duty of
care…except insofar as he is free to and does extend, restrict, modify or exclude his duty to any visitor
or visitors by agreement or otherwise. And according to Section 2(2) OLA 1957, the occupier has a
common duty of care is a duty to take such care …to see that the visitor will be reasonably safe in
using the premises for the purposes for which he is invited or permitted by the occupier to be there.
However, we have to consider whether he has become a non-visitor by reason of any of the
limitations. We are told on the facts that he climbed over one of the railings to get a better view. Is he
or anyone for that matter allowed beyond the railings? Has Tom become a non-visitor by reason of
limitation of space? Anderson v Coutt states that where clear notice is given to restrict permission on
the premise, exceeding the restriction will render the visitor a trespasser. Further, in the case of
Tomlinson v Congleton Borough Council, there the court held that Mr. Tomlinson’s claim should be
judged under the 1984 Act, because although he was a visitor to the park, he became a trespasser
when he ignored the signs and got into the water. Applying this case to the facts, Tom no doubt
became a trespasser when he climbed over a barrier for clearly a few reasons. Firstly, as stated above,
there were prominent notices at the entrance that read “Visitors must remain on the marked
pathways and must not try to climb on or over the barriers.” Secondly, arguably a 12-year-old- should
realise that the physical barrier was intended to restrict access (matter for argument). Thus, it is
submitted that Tom is a trespasser and thus the Occupiers Liability Act 1984 which governs persons
other than lawful visitors will apply.

According to Section 1(3) OLA 1984 an occupier owes a duty of care to a non-visitor if: (a) He
is aware of the danger and has reasonable grounds to believe it exists, (b) He knows or has reasonable
grounds to believe that the other (the non-visitor) is in the vicinity of danger concerned or that he
may come into the vicinity of danger and (c) The risk is one which in all circumstances of the case, the
occupier may reasonably be expected to offer some protection from. The standard of care expected
of the ZYX Breweries in relation to Tom is governed by Section 1(4) OLA 1984 where the duty is “…to
take such care as is reasonable in all the circumstances of the case to see that the non-visitor does not
suffer injury on the premises by reason of the danger concerned.”

In Swain v Natui Ram Puri, the claimant who was a 9-year-old boy was injured when he fell
from the defendant’s factory roof, where he was trespassing. His case was that there was reason to
believe that children would climb the roof, and the defendants were therefore in breach of their duty
because they had not made sufficient efforts to keep children away. The Court of Appeal disagreed;
there was no evidence of previous trespass, and while the factory fences were not completely intruder
proof, they were substantial, so there were no reasonable grounds to suspect that trespassers might
enter and try to scale the roof. The court held that the phrase ‘reasonable grounds to believe’ in
Section 1(3) OLA 1984 meant that it was necessary to show that the defendants had actual knowledge
of relevant facts which provided grounds for such belief; it did not mean ‘ought to have known’. On
the facts, may not have had the necessary knowledge.

In Keown v Coventry Healthcare NHS Trust the Court of Appeal upheld the reasoning of the
lower court that there was nothing about the state of premise that made it dangerous; as a fire escape,
there was nothing wrong with it at all. What had caused the risk was the claimant’s (11- year-old boy)
decision to climb on it. Therefore, the danger was not caused by the state of premises, or by something
the occupiers had done or not done. Is the danger here caused by the state of premises or the act of
the claimant, Tom? It may be said that Tom’s own actions caused his injury.

However, the Court of Appeal confirmed that a place considered reasonably safe for adults
might still be dangerous for a child. However, they pointed out that where a child decided to take a
risk, that decision could not be ignored simply because the claimant was a child; the key issue was
whether the child realised the risk. In Keown, it was admitted that the boy knew that there was a risk
of falling from the fire escape, and knew he should not climb on it, so it could not be said that he did
not recognise the danger. Discuss the legal authorities as stated above and apply them to the facts.
Was there a failure in the brewery’s duty to lawful visitors by failing to do enough to deter visitors
from getting into danger or that there was a failure in the duty to Tom as a trespasser? In the case of
Tomlinson, The HOL held that the council were not liable for the injuries sustained by the claimant
and gave two reasons. Firstly, there must exist some danger on the defendant’s premises which was
due to the state of the premises or to things done or omitted to be done on them. Arguably the danger
was not the state of premises or the things done. It was Tom’s own act of climbing over the railings.

It can be argued that ZYX Breweries should have erected higher railings/barriers. If a 12-year-
old could climb over then how effective are the railings as barriers. Arguably, they could foresee
children coming onto the premise. In addition, following the case of Jolley v Sutton LBC the HOL
pointed out that children typically show considerable ingenuity in finding ways to put themselves in
danger and this needed to be considered in assessing the precautions needed to keep them safe. The
vat of fermenting beer is arguably dangerous as someone could drown and can suffer severe physical
illness as on this fact hence shouldn’t more protection be afforded to those who come to the vicinity?
Has the brewery omitted to do what they should have done on their premise? Are Sections 1(3)(a)
and 1(3)(b) satisfied?

Secondly, the HOL stated that even if the council had owed the claimant a duty under 1984
Act to take reasonable steps to discourage him from swimming in the lake that duty did not extend so
far as to require the council to turn the beaches around the lake into marshland − it would in fact have
been wholly unreasonable for the council to have done this. On our facts however it is not
unreasonable for the brewery to put up higher railings. In fact, it is benefiting rather than detrimental
as it would ensure a safe environment especially where children are concerned. Hence it is arguable
that the council owe a duty to take reasonable steps to discourage Tom or any other child for that
matter from climbing over the railings. Hence with regard to (c), ZYX may reasonably be expected to
offer some form of protection.

If ZYX is found to owe a duty toward Tom and has fallen below the standard stated in Section
1(4) OLA 1984 whereby they have failed to such care as is reasonable in all the circumstances of the
case to see that Tom does not suffer injury on the premises by reason of the danger concerned from,
they would arguably submit that they have done their part by placing notices at the entrance hence
their duty is discharged under Section 1(5) OLA 1984. They would have to show that they took steps
that are reasonable in all the circumstances of the case to give warning of the danger concerned or to
discourage persons from incurring the risk. As a general rule, under the OLA 1984, the giving of notice
is sufficient. It may be said that the situation in question did not need warning signs. Tom is 12 years
old. Tom persuaded Ursula to distract their father whilst he climbed over the railings to get a better
view. Hence arguably, he knows that he is not supposed to climb the barriers and probably would
have read and understood the notices.

If ZYX is held liable, to owe a duty towards Tom then they could argue contributory negligence
on the part of Tom and if successfully raise, damages will be reduced accordingly by the courts; Revill
v Newbury. They might also raise the defence of volenti under Section 1(6) OLA 1984. However,
following the case of Westwood v The Post Office, it was unlikely that warnings will be successful
against children. ZYX will also argue that it was Simon’s duty to ensure that his children behave, follow
rules and stay out of mischief. Following the case of Phipps v Rochester Corporation it can be argued
that an occupier is entitled to assume that very young children will be accompanied by someone
looking after them and that may reduce the degree of care expected from the occupier. Here, ZYX
could argue that Simon should look after Tom and it is reasonable for them to expect him to do so.
However, Tom is not very young and parental responsibility may not apply. In any event, in Bourne
Leisure v Marsden (2009) it was held that children sometimes do wander off or play dangerously
beyond the control of a parent and parental responsibility did not shield the occupier. Yet, at the same
time, since there was nothing more the occupier could have done to prevent harm, no liability arose.
With regard to Vince

Clearly Vince jumped in to rescue Tom hence he would try to claim as a rescuer. In the
circumstances, as an employee who acted to rescue a young guest, Vince would clearly be considered
a lawful visitor and his claim will fall under OLA 1957. Applying S2(1) and S2(2) above, he is owed the
common duty of care, which required the occupier to ensure reasonable safety in using the premises
for the permitted purpose. However, Vince sustained injury in extraordinary circumstances, i.e. by
jumpting in to rescue Tom. The question is whether S2(3)(b) may apply, i.e. whether the occupier
could argue that Vince was injured in the exercise of his calling, by a special risk ordinarily incident to
the work of someone of his skills. In Roles v Nathan, chimney sweeps who dies due to inhaling
excessive asbestos fumes were unable to claim against the occupier because the risk of such harm
was ordinarily incident to their calling and they could be expected to protect against the same, instead
of the putting the responsibility on the occupier. However, in Ogwo v Taylor, S2(3)(b) did not assist
the occupier because the skilled visitor claimant was injured by a risk that was extraordinary to his
calling. It is submitted that Roles may be distinguished on the facts and Ogwo will apply instead. This
is because the incident and type of injury is unlikely to be ordinary in the course of Vince’s work as an
employee at the premise. As such, Vince will be able to claim against the occupier. The occupier will
also fail to rely on the volenti or contributory negligence defences, since Vince was acting as rescuer
in the circumstances: Haynes v Harwood, Chadwick v BTC. Vince’s claim will most likely succeed
against XYZ.

Essay Questions

Sample:

2017 (ZA) Q3
“The operation of the Occupiers’ Liability Acts of 1957 and 1984 depends on the claimant being able to
establish a breach to the occupiers’ duty of care.” Discuss.

Answer Guide:

1. Question relates to law on occupier’s liability – liability depends on whether breach by occupier can
be shown

2. Answer will focus on the manner in which breach is determined under the acts, for both lawful visitor
and trespasser claims

3. Brief description about this area of law – deals with injuries caused by the unsafe state of premises,
anything or omitted to be done on the premise (S1(1) OLA 1957, 1984, Ogwo, Dunster). Where injury
is caused by claimant’s own careless act and not the premise itself, liability will not arise under either
Act: Tomlinson, Keown, Geary, Kholasa. H/ver at times, occupier may be liable for the dangerous state
of premises, and activities carried out dangerously on the premise: Cunningham, Tomlinson. Some
judges take the view that if injury was caused by the act of another on the premise/act of the occupier
himself, liability should fall under negligence: Revill, Bottomley

4. Duty is owed automatically to lawful visitors: S2(1)

5. For non-visitors, liability also depends on whether duty can be established first – it is not automatically
owed (S1(3)(a), (b) and (c) OLA 1984, Tomlinson)

6. Liability does depend on breach:

a) S2(2) OLA 1957 for visitors – it must be shown that the occupier did not take reasonable care to ensure
that it was safe for the visitor to use the premise. However, this is not always easy to establish: Darby,
Sutton, Edwards, Cole-Davies, Tedstone - the standard of care applied in these cases show that the
occupier does not have to take a great deal of precaution – some precaution is sufficient (Sutton).
Where danger is obvious, occupier not liable for failing to take any precaution (Darby). Besides, the
approach of judges is that accidents are sometimes simply unavoidable (Tedstone), and sometimes
where there hasn’t been an accident before, the defendant is not liable for the current accident
(Edwards). Occupier was only found liable where the danger was serious where the visitor was more
vulnerable and danger was foreseeable: G4S

b) S1(4) OLA 1984 for non-visitors/trespassers – it must be shown that the occupier failed to take
reasonable care in the circumstances. S1(5) goes further to state that as long as some notice is given
to enable trespasser to avoid risk, this would be sufficient. Where the occupier had taken precaution
(Platt), or had given some notice, there would be no liability (Tomlinson, Westwood)

7. But the issue of breach is also influenced by other factors for visitors:

a) Whether the visitor is a child (S2(3)(a))– in such a case the occupier is expected to take greater care –
if he fails to, then he will be found in breach (Moloney, Perry). If the premise contains something
dangerous that may allure a child, the occupier must take greater care, failing which he would be in
breach: Glasgow Corporation v Taylor, Jolley. H/ver where the occupier can expect the parent of a
young child to watch out for the child, and had done its part otherwise, the occupier will not be found
in breach: Phipps, Simkiss, may argue Bourne Leisure v Marsden

b) Whether the visitor is a skilled visitor (S2(3)(b)) – occupier may expect a skilled visitor to guard against
risks of the job: Roles, the occupier will not be liable. The occupier will only be found in breach if the
danger did not arise from the exercise of the skill (Williams v D.O.E.) or if it was extraordinary Ogwo,
Salmon v Seafarer

c) To show that he has not breached his duty, the occupier can show that he had given sufficient warning
to keep the visitor reasonably safe in using the premise: S2(4)(a). If this is shown, then the occupier
would not be found in breach, would not be found liable. H/ver the standard of warning is arguably
high, where danger is not obvious (English Heritage v Taylor), or where the visitor has no option but
to use the premise, more has to be done to ensure visitor’s safety: Roles – Lord Denning’s bridge
analogy

d) Alternatively, occupier may show that he had discharged his duty by employing an independent
contractor: S2(4)(b). If it can be shown that it was reasonable to entrust work to an IC (Green v
Fiberglass), and the occupier took steps to ensure that the occupier was competent and insured
(Bottomley, Gwilliam, Naylor) and provided it is possible to check, and the occupier checked that the
work was done properly then the occupier is not liable. The occupier is not expected to check if the
work is too technical: Haseldine, Ferguson), but if he could have averted the danger despite engaging
an IC, he must do so, failing which he would be in breach: Woodward

8. An occupier also may not be liable if has given notice to exclude duty/ liability: S2(1) OLA 1957 –
however this is subject to UCTA 1977
IV. PART FOUR: NUISANCE: PUBLIC, PRIVATE AND RULE IN RYLANDS V FLETCHER

Public Nuisance, Private Nuisance and the rule in Rylands v Fletcher (Chapter 12)

Problem Questions

Sample 1:

2019 (October) Q3
Lord Sandwell owns a large country estate in Oxhampton. He develops it as an environmentally-
friendly residential adventure centre (the ‘Swing High Centre’) for stressed-out executives. To this end,
he has constructed a network of ropes, ladders, and bridges in the canopy of his trees for them to
come and ’Swing High’ from tree to tree. Unfortunately, misplaced marketing has led to the majority
of his customers being large, noisy groups of young people. Lord Sandwell also provides facilities for
paintballing and a quad-bike course. In line with his stated environmental policy, Lord Sandwell has
recently begun to use large quantities of seaweed as fertiliser for his large organic vegetable patch.
He has been encouraged to do so by the council’s recycling officer Hugo. Lord Sandwell has received
complaints from:
(a) Marilyn, who lives downwind of the estate and claims that the smell of rotting seaweed makes
her physically sick.
(b) Donald, a 14-year-old, who lives on a neighbouring farm and says that the noise from the quad
bikes has made his pet guinea pigs miscarry their young.
(c) Anisha, a neighbour, who says that the ‘Swing High Centre’ has lowered the tone of the
neighbourhood and that her back garden can be seen from some of the higher tree platforms.
Advise Lord Sandwell regarding his potential tort liability.

Suggested Answer:

The facts suggest that Lord Sandwell’s (‘LS’) use of his property (the Swing High Centre(‘SHC’))
may give rise to claims by Marilyn, Donald and Anisha for claims under private nuisance. Lord Denning
in Miller v Jackson (1977) stated that “the very essence of private nuisance… is the unreasonable use
by man of his land to the detriment of his neighbour.” Further, in Hunter v Canary Wharf (1997) the
HOL stated that private nuisance may take the form of an encroachment on land, interference causing
damage to property or interference with enjoyment of land. Given that all parties appear to have been
affected in terms of their property and/or enjoyment of land the proper cause of action would be
‘private nuisance’. M, D and A are advised that the appropriate defendant is LS. In Sedleigh-Denfield v
O’Callaghan (1940) Lord Atkin stated that for the defendant to be liable, there must be “some degree
of personal responsibility” or “control or possession of land from which nuisance proceeds.” It is LS that
has control and possession of the property from which nuisance proceeds, and as such he would be
the creator of the nuisance and the proper defendant. The candidate will proceed to advise on the
legal issues arising in the respective scenarios, in particular, (i) whether M, D and A have the necessary
legal interest to sue, (ii) whether they may establish ‘unreasonable interference’ on the facts, (iii)
whether the types of loss sustained are recoverable under private nuisance law, (iv) whether defences
may be raised to defeat claims and (v) the appropriate remedy in the circumstances.

Marilyn’s claim

M is advised that she would need to prove that the smell from the rotting seaweed causing
feeling of sickness, amounts to private nuisance. Firstly, in order to institute a successful claim, M must
prove that she has the necessary proprietary interest to sue. In Malone v Laskey (1907) the claimant
was denied remedy since she only held a licence in the property, and it was her husband who was the
tenant. Subsequently in Hunter Lord Goff explained that the legal interest requirement is necessary
because without a right in land, the claimant lacked the standing in law to contest another party’s right
in land, or to ask for an injunction against him. Private nuisance is a land-related tort and protects
interests in land, and as such the absence of such in interest in land would hamper the claimant: Lord
Hoffman, Hunter. The facts simply indicate that M lives downwind of the estate and is vague about the
nature of M’s interest in her property. If she merely held a licence like the claimant in Malone, this
would be insufficient. However, if she either owns or rents her property, she would possess the
necessary interest to sue.

Next, it has to be considered whether M would be able to prove that the smell of the rotting
seaweed was an “unreasonable interference to her quiet and peaceful enjoyment of land” (Hunter). In
determining this, it was held in Sedleigh-Denfield that “a balance has to be maintained between the
right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered
with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful
test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or
more correctly in a particular society.” This was echoed recently in Barr v Biffa Waste Services (2012)
that there is: “no general rule requiring or justifying the setting of a threshold in nuisance cases… the
test is simply what an ordinary person could reasonably be expected to put up with… For any nuisance,
there is no absolute standard, it is a question of degree whether the interference is sufficiently serious
to constitute a nuisance, which is to be decided by reference to all the circumstances of the case… There
must be a real interference with the comfort or convenience of living, according to the standards of the
average man i.e. "… not merely according to elegant or dainty modes and habits of living, but according
to plain and sober and simple notions among the English people”

To decide this, several factors are relevant, such as the locality of the interference, its duration,
whether M’s complaint stems from abnormal sensitivity or whether the interference is motivated by
elements of malice. Firstly, in relation to locality, it was held in Sturges v Bridgman (1879) and
repeated in Barr, that the character of the locality must be taken into account. “What might be
nuisance in Belgravia Square may not be so in Bermondsey.” In Sturges, both claimant and defendant
were situated in a commercial area but it was found that the level of noise created by the defendant’s
activity (confectionary) was unreasonable in light of the nature of commercial activity that had
developed in the locality over the years. In Barr, the claimant was subjected to nuisance in the form
on unbearable odours from the defendant’s landfill site, which was located in the outskirts, yet not far
from the claimant’s residential area. The nuisance was found to be unreasonable in Barr. On the facts,
both LS and M are located in a country estate. LS may argue that while the use of seaweed fertilizer in
large quantities might be considered unreasonable in a dense residential locality, it may not be so in a
country estate. However, it is submitted that country estates these days are commonly covered by
housing and residential occupation is increasingly clashing with industrial and commercial activity. The
question is whether the level of smell is sufficiently serious taking into account that there are nearby
neighbouring residential properties. Since, on the facts, LS has uses large quantities of the seaweed
and the smell is so severe as to cause M to feel physically sick, this comparable to the level of odour
that disturbed the claimant in Barr and is likely to be considered unreasonable in the particular
location.

Furthermore, the duration of the interference is relevant, according to Barr: “the duration of
an interference is an element in assessing its actionability, but it is not a decisive factor; a temporary
interference which is substantial will be an actionable nuisance.” Interference that prolongs for a
continuous and lengthy period is more likely to be found unreasonable: De Keyser’s Royal Hotel v
Spicer Brothers (1914). Although the use of the seaweed appears to be recent, it would be fair to
assume that it would continue daily, on a long-term basis. Thus, on this basis as well, the use of the
seaweed is likely to be considered unreasonable.
 LS may argue that M’s reaction of feeling sick can be considered abnormally sensitive.
However, in Robinson v Kilvert (1889) it was held that the assessment of abnormal sensitivity was
concerned with whether the property and its use was abnormally sensitive, rather than whether the
individual was abnormally sensitive. Thus, this argument would be irrelevant here.

In view of the above, it is submitted that M is likely to satisfy the requirement of unreasonably
interference. LS would want to rely on certain defences to defeat M’s claim. Firstly, statutory authority
to carry out the activity, could serve as a legal defence against a claim in private nuisance. This was
upheld in Allen v Gulf Oil Refining (1981) in which it was held that the defendant was not liable for
nuisance caused by his oil refining activity because it was authorised by statute. On the facts, this
defence may not be applicable as LS’s SHC does not seem to fall within any statutory authority. It is
also not possible to argue that the encouragement by the council’s recycling officer, Hugo, to carry out
the activity amounts to statutory authority. Alternatively, LS is advised that the 20-year prescription
defence is available to those who have been carrying out their activity causing unreasonable
interference to another, without any objection by the other, for a minimum of 20 years: Sturges v
Bridgman. However, this is also unlikely to apply here since LS has only recently started using the
seaweed as fertiliser. Instead, LS may argue that the SHC generates great public benefit for the young
people and the community in general, seeing as the aim of the centre is to provide an environmental
friendly place to destress. Also, the use of the seaweed fertilizer to grow a vegetable patch arguably
supports the ‘environment-friendly’ theme. However, it is submitted that LS will fail to rely on any such
defence of ‘public benefit’. While there is no denying that LS’ activity is beneficial as a whole, it was
held in Barr that the public benefit underlying an offending activity cannot be accepted as a defence
because “the private individual retains his valuable common law right to enjoy his private property.”
As such, LS is likely to be found liable for the smell from the rotting seaweed.

LS may argue that M is not entitled to seek remedy for feeling physically sick, since private
nuisance is a land-related tort, and compensates only for property/land-related losses. It follows, that
a claimant is only entitled to remedy where the interference causes damage to property, affects
enjoyment of property, or causes loss of amenity value: Hunter, Lord Lloyd, Lord Goff. Where the
claimant experiences distress or illness, such as in M’s case, this would be considered harm that is
personal in nature, and the proper remedy will not lie in private nuisance. Instead, the claimant ought
to seek relief under the tort of negligence, which deals with losses that are more personal in nature:
Hunter, Lord Hoffman. It is submitted that while feeling physically sick is indeed harm that is more
personal in nature, it cannot be denied that the strong smell from the rotting seaweed also interferes
with M’s quiet and peaceful enjoyment of her property. This is not a fanciful complaint, but indeed, a
serious disturbance to the ability to live peacefully by ordinary standards (Hunter) Indeed, in Barr,
interference in the form of bad smell was accepted as ‘loss of enjoyment’. Thus, it is submitted that
while the claim for physical sickness will fail, the claim for loss of enjoyment is sustainable. M is advised
that damages may be sought separately under negligence if it can be proven that she has in fact
suffered some illness.

Assuming that ‘loss of enjoyment is established’, M is advised to seek the remedy of injunction.
The SC in Coventry v Lawrence (2014) stated, “where a claimant has established that the defendant’s
activities constitute a nuisance, prima facie the remedy to which she is entitled (in addition to damages
for past nuisance) is an injunction to restrain the defendant from committing such nuisance in the
future. The prima facie position is that an injunction should be granted, so the legal burden is on the
defendant to show why it should not.” In Coventry, the SC was prepared to order an injunction against
the defendant, operators of motor racing in a stadium. It is submitted that the interference is
sufficiently serious to warrant an injunction, and since it is unlikely to cause any material loss or
hardship to LS, it may well be granted on the facts, even though the Court may at its discretion decide
to grant damages in lieu, instead: Coventry. Since M has not suffered property damage on the facts, it
is argued that the remedy of damages need to be pleaded here.

Donald’s claim

D would have to prove that the effects of the noise from the quad bikes causing his guinea pigs
to miscarry, amounts to private nuisance. The same conditions discussed above apply in D’s claim too.
Firstly, the question is whether D has the necessary proprietary/legal interest to sue. It is submitted,
following Malone and Hunter, that D would lack the necessary interest to sue. Given that his is 14-
years of age, living in a neighbouring farm, it is highly likely that D would be living with his family, and
would not be the one in his family with the necessary legal right to sue. In Khorasandjian v Bush (1993),
the claimant, who lived with her family, and did not have any legal interest in land was allowed to bring
a claim in private nuisance against her former partner, who committed nuisance in the form of threats,
stalking and incessant phone calls. Dillon LJ allowed the claim on the basis that the claimant had a
‘substantial link’ to the property, since she had occupation of the property, and that this gave the
claimant sufficient interest to sue. Later in Hunter, the HOL rejected the reasoning in Khorasandjian,
explaining that “to allow someone who only has a substantial link with land to sue would result in a
number of claimants seeking remedy, and damages cannot be increased merely because more people
are in occupation and therefore suffer greater collective discomfort.” (Lord Hoffman). Applying this, it
is submitted that D will not be able to claim under private nuisance. However, in Dobson v Thames
Water Utilities (2009) children claimants who lacked proprietary interest to sue under private
nuisance, successfully established violation of the Article 8 ECHR (under S6 HRA 1998) - right to
enjoyment of private family life, in relation to nuisance caused by the defendant (public body), in the
form of mosquitoes and bad smell from its sewage treatment facility. Nonetheless, it is submitted
Dobson will not assist D here, because firstly, a successful claim under S6 HRA 1998 can only be brought
where the defendant is a public body, and LS is not a public body. Secondly, it is unlikely that D’s guinea
pigs miscarrying as a result of LS’ activity, would constitute a violation of D’s Article 8 ECHR right. D
may be able to sue for property damage under negligence instead, since the requirement of
proprietary interest to sue does not apply for negligence claims.

In any event, it is submitted that D is likely to fail in establishing that the interference was
unreasonable on the facts. D has to show that the level of noise from the quad bikes is unreasonable
in that, no ordinary person can reasonably be expected to put up with it. It is submitted that D will fail
to show this on the facts, as there is no evidence of the noise levels being unbearable to others living
nearby, despite the locality in which it is carried out and the duration for which it continues. LS is likely
to rely on the argument of ‘abnormal sensitivity’, that the guinea pigs are abnormally sensitive, in that
such miscarrying would not normally occur with other animals. Here, the case of Hollywood Silver Fox
Farms v Emmett (1936) is relevant. In this case, the claimant’s silver foxes were particularly sensitive
in that loud noises would disoriented the fox, interrupting the mating process and triggering the vixen
to devour its young. The defendant deliberately fired his gun creating loud noises on purpose, to
interfere with and disrupt the claimant’s fox breeding activity on their farm. The court held that the
foxes were abnormally sensitive and that ordinarily, the noise created by the defendant would not
amount to unreasonable interference. However, because it was deliberately carried out with malice
and spite towards the claimant, the defendant was found liable. Applying this to the facts, it is highly
likely that the court will that the effects of the noise from the quad bikes are only so severe in D’s
circumstances because his guinea pigs are abnormally sensitive. In the absence of malice in causing
the noise disturbance, LS may not be liable like the defendant in Hollywood Silver Fox Farms. Indeed,
since the noise levels only affect the guinea pigs, and no other animal or person, D is likely to fail in
proving the noise to be unreasonable. In the circumstances, other factors relevant to the issue of
unreasonableness will also be of little assistance as far as D’s claim is unconcerned.
 Thus, even though the harm to the guinea pigs do amount to a type of loss that is recoverable
in private nuisance, D may not successfully claim, since he does not have the necessary legal interest
to sue, and since, in any event, he would fail to establish ‘unreasonable interference.’ Since D’s claim
will fail, the question of likely defences and remedies will no longer be relevant.

Anisha’s claim

A will have to show that the activities at SHC that allegedly lower the tone of the area, and
allow guests at SHC to have a view of her back garden, amount to private nuisance. The same
requirements discussed above will apply.

It is submitted that A will certainly satisfy the requirement of legal interest to sue, since she
appears to own her property. A will then have to prove that the activity at SHC (swinging from trees,
quad bike riding and paintballing by large groups of noisy, young people) amounts to an unreasonable
interference to her enjoyment of property.

As discussed above, the locality is relevant in determining whether the activity is reasonable.
In Coventry, the SC found that nuisance in the form of loud noises from a motor racing stadium,
amounted to unreasonable interference. This was upheld where the stadium operated in the Suffolk
countryside, and the claimant’s residential bungalow, was located close to the stadium. Drawing
analogy, it is argued that locality wise, LS’ activity is also carried out in the countryside, and it is not
unusual for a residential bungalow to be found in a countryside, like in Coventry. It must be shown
that the level of interference was serious enough to be considered unreasonable in the particular
locality. Comparing again with Coventry, the candidate submits that the level of noise from a
combination of swinging among trees, quad-biking and paintballing, by large groups of youngsters are
unlikely to amount to an unreasonable interference. Given the duration of the activity, which seems
likely to go on throughout the day, every day, A is likely to establish unreasonable interference on the
facts.

Having established unreasonable interference, LS would be advised to consider relying on

defences that might defeat A’s claim. However, as discussed above for M, no defence is likely to apply.
The facts also do not indicate that LS has obtained planning permission for his SHC. In any event, in
Coventry, the SC has clarified that planning permission is not a defence to action for private nuisance.
Thus, LS is likely to be found liable in private nuisance for the activities at SHC.

However, LS would argue that the activities, have not caused A to suffer any one of the losses
or types of damage that are recoverable under private nuisance. As discussed above, the law of private
nuisance only protects against enjoyment and amenity value of a property as well as actual property
damage: Hunter. On the facts, A would argue that where the defendant’s activity ‘lowers the tone of
the neighbourhood’, this may amount to special damage as a form of ‘loss of peaceful and quiet
enjoyment’ of property. This was upheld in cases such as Thompson-Schwab v Costaki (1956), where
it was held that the sight of prostitutes and their clients entering and leaving neighbouring premises
amounted to an actionable nuisance as the activity was considered offensive in itself, and Laws v
Florinplace (1981) where it was held that “an actionable nuisance extends to cover cases where use of
property is such an affront to the reasonable susceptibilities of ordinary people that it constitutes
interference with reasonable domestic enjoyment of property”, Vinelott J. In Laws, the court found that
a sex shop in a residential area did interfere with the claimant’s peaceful enjoyment of property. It is
submitted, however, that A’s claim will be distinguished as the nature of LS’ activity is in stark contrast
with the activities of the defendants in Thompson-Schwab and Laws, and since it is carried out for a
socially beneficial and moral purpose, A is likely to fail in establishing loss of enjoyment. The claim that
the SHC lowers the tone of the neighbourhood is likely to fail. Further, it is also argued that the A’s
concern that her back garden being visible from the SHC is also unlikely to amount to ‘loss of
enjoyment’ of property, since her concern relates more to her right of privacy, which is not a land-
related interest protected by private nuisance law. A is advised, that the more appropriate action for
such a “loss” would be brought under S6 HRA 1998, as a violation of A’s Article 8 ECHR right. However,
this is unlikely to succeed against LS, since as discussed above, LS is not a public body for the purpose
of S6.

A’s claim will therefore fail under private nuisance, and she will not be entitled to any remedy
in the circumstances.

Sample 2:

2009 (ZB) Q8
A charitable company, Second Chance Ltd. has recently opened Eskdale, a residential home for ex-
offenders, in a large house at the center of Brownville, a small commuter village. The company has
planning permission for this use of the property. The first residents at Eskdale are all men who have
served lengthy period of imprisonment for very serious crimes. Local residents fear that these
residents will cause personal injury and damage in the village at some point, although no such injury
or damage has yet occurred. Last month, the company held the annual Second Chance Ball at Eskdale.
This caused significant problems for the other residents of Brownville. For a weekend, roads within
the village were very congested and residents found difficulty in driving in and out of the village.
Furthermore, on the night of the Ball, music was played at high volume, disrupting the sleep of
Brownville residents. The company has obtained planning permission for, and erected, a wind turbine
to generate electricity for Eskdale. When the turbine is running, it produces a very high-pitched sound
which is imperceptible to humans, but is very disturbing for dogs. Roderick’s boarding kennels have
lost a great deal of business as a result. Last week during a storm, one of the blades of the turbine
blew off and landed on the home of Janice, a resident of Brownville. As a result, Janice suffered serious
injuries. Scientific investigations have failed to discover the cause of the accident. The construction,
assembly and maintenance of the turbine appear to have been in accordance with most advanced
practice. Consider whether the above facts disclose any potential actions in nuisance and/or under
the rule in Rylands v Fletcher.

Suggested Answer:

The facts at hand require evaluation as to whether claims may be brought under public and/or
private nuisance and the rule in Rylands v Fletcher (1868) (R v F). The candidate will advise on the
following claims: (i) whether the residents of Brownville may bring an action for the fear of injury and
damage by the residents of Eskdale; (ii) whether the residents may bring action for the congestion and
loud music in the village during the weekend of the Ball (iii) whether Roderick may claim for the
business loss to its dog boarding kennel and (iv) whether Janice may claim in respect of damage and
injuries caused by the turbine blade that landed in her property during the storm. All potential
claimants are advised to sue SC.

Public nuisance was defined as “interference that materially affects the reasonable comfort
and convenience of life, of Her Majesty’s subjects” (Romer LJ in AG v PYA Quarries (1957). Private
nuisance has been defined as “special damage caused to particular persons having landed interest,
through unreasonable interference to the use and enjoyment of their property (Hunter v Canary
Wharf (1997)). The rule in R v F provides that anyone who brings onto his land, collects and keeps
there, anything likely to do mischief if it escapes, must do so at his peril, and if he fails to do so, he is
prima facie answerable for damage which is the natural consequence of the escape.
 Public nuisance is prosecuted as a crime/ public wrong and actions to oppose a public nuisance
are usually not dealt with under Tort Law unless there is a claim for special damage above and beyond
the inconvenience itself. Meanwhile private nuisance and the rule in R v F are land-related torts, claims
maybe brought under Tort Law and these torts are confined to property-related losses. Thus, they
may be instituted only by those who have proprietary or possessory interests in land: Hunter. Since
the rule in R v F is subset of private nuisance, the same pre-requisites for liability apply: Transco v
Stockport MBC (2002). Here, the candidate will address the issue of whether all claimants in question
do possess the requisite standing to sue under private nuisance and the rule in R v F. It is clear from
the facts that the residents, Roderick and Janice, all of whom seem to own the properties affected by
SC would meet the requirement of proprietary interest to sue.

Next, it has to be ascertained whether claims may be brought against SC, as owner and
occupier of Eskdale. With regard to the resident’s complaints relating to fears of injury and damage,
and congestion and loud music during the weekend of the Ball, the claimants would argue that SC is
the creator of the nuisance being the entity that both set up Eskdale and organized the Ball. However,
SC will argue that it is not the creator of nuisance and that nuisance is in fact created by the inmates
of Eskdale. The question thus arises, as to whether SC could be liable for nuisance committed by third
parties namely the ex-offenders/residents of Eskdale. Sedleigh-Denfield v O’Callaghan (1940) held
that an occupier of a premise on which nuisance was created by a third party may be held liable for
the same nuisance if he had either adopted or continued the nuisance. Liability here is said to be fault-
based, in that, it would have to be shown that the occupier is at fault for knowingly continuing the
nuisance by failing to take any action to end it. On the facts, there is no mention of any steps taken by
SC to minimize interference to enjoyment of property. In the circumstances, applying Sedleigh-
Denfield, it is possible for SC to be held liable. Applying Lippiatt v SGC SC’s position on the facts may
be analogous to that of the D in Lippiatt who allowed the gypsies to use their premise as a launching
pad from which nuisance was created. Thus, SC could be liable for any nuisance created by the people
of Eskdale.

With regard to the installation of the wind turbine to generate electricity, which has affected
Roderick’s business and caused injury to Janice, since SC owns the premise of the turbine and the
turbine itself, it is also the appropriate D for an action under private nuisance and/or the rule in R v F
in relation to the turbine related losses. Since SC is directly responsible for the presence of the
offending turbine on its premise, it can be said to be the very creator of nuisance.

Further, it also has to be ascertained whether the types of interference, loss, damage and
injury are claimable under private nuisance and/or the rule in R v F. It is important to note that both
tortious principles relate to interests in land and are intended for the protection of rights associated
with land/property. Since both are land-related torts, claimants are only entitled to claim for loss of
enjoyment, loss of amenity value of their property and/or actual property damage: Hunter v Canary
Wharf (1997). Even where is claim is being brought under the rule in R v F, only damage to property
and loss of enjoyment of property may be remedied. Death, physical injuries, distress, fears and
psychiatric injuries are more personal in nature. Claims for such damage would be better brought
under negligence: Transco Plc. v Stockport MBC (2002)

The residents of Brownville clearly have not sustained any injuries or property damage thus
far, but they fear the ex-offenders will harm them or their property. The residents would insist that
living close to ex-offenders of very serious crimes interferes with the peace and comfort of living in
Brownville in that criminal behavior could recur when ex-offenders start to assimilate with society
again and the residents of Brownville are potential victims. The residents would argue that the people
living in Eskdale threaten the peace of mind of the Brownville residents. In cases such as Laws v
Florinplace (1981) and Thompson-Schwab v Costaki (1956) it was held that a brothel and a sex shop
both did interfere with neighbours’ peaceful and quiet enjoyment as both were “offensive sights” and
created a feeling of unease. The candidate submits, however, that by contrast, SC is a charitable
company, and are helping to rehabilitate the ex-offenders by putting them back on the path of
normalcy amidst regular community life. No indecency or offensive conduct is evident just by virtue
of their presence there. Any alleged fear, distress, discomfort or annoyance from the inhabitation of
ex-criminals in Eskdale, would not be recoverable under private nuisance. Alternatively, provided that
it can be shown that the Eskdale residents pose a threat to the comfort of living of the Brownville
residents at large, there may be a case for public nuisance outside Tort Law. However, the facts
indicate that no damage or harm has been caused. As such a claim for special damage arising from
public nuisance would also fail: Tate & Lyle; Benjamin v Storr). They may try to sue under the tort of
negligence but it is unlikely that distress and fear would be recognized as “damage” under negligence.
Alternatively, they may attempt to bring an action for violation of Article 8 EHCR right to enjoyment
of private family life, under the Human Rights Act 1998. However, such an action can only be brought
against a defendant who is a public body (S6 HRA 1998). If the court finds that SC can be considered
to be a public body, then an action for distress and interference to peaceful, private family life may lie
in Public Law violation of fundamental rights: McKenna v British Aluminium (2002).

The congestion faced on the weekend, including the loud noises from the Ball would certainly
count as special damage in the form of interference to enjoyment of property: Gillingham BC v
Medway Dock (1993) (congestion) and Christie v Davey (1893) (loud music and noises). Roderick, who
faces problems due to the wind turbine causing a high-pitched sound would not be able to establish
interference to enjoyment of property or actual damage to property. However, losses that are
consequential upon the interference itself may be recovered. Pure economic losses, on the other
hand, are not recoverable: Network Railway Infrastructure v Williams (2018). It is submitted that
Roderick may be able to recover consequential economic losses in the form of business loss since his
boarding kennel is directly affected by the high-pitched sound: Hollywood Silver Fox Farms v Emmett
(1936); Transco. Janice would be able to recover damages for damage to property provided the blade
did cause property damage when it landed on her property. However, following Hunter and Transco,
she would not be able to recover damages in respect of personal injuries both under private nuisance
and/or the rule in R v F.

Having dealt with the above considerations collectively for all claimants, the candidate will
now consider whether criteria for liability for each claim can be established, by evaluating each claim
in light of the conditions for liability under private nuisance and the rule in R v F.

(i) Residents of Brownville – sunder private nuisance for the fear of harm, noise and congestion from
Eskdale:

As discussed above, no claim will lie in private nuisance for the fear of harm from the inmates
of Eskdale, since as argued, the residents would fail to establish loss of enjoyment, property damage
or loss of amenity value. Should the court find otherwise, the residents must go on to prove that there
was unreasonable interference. The residents of Brownville will have to establish that SC has caused
an unreasonable interference to their use and enjoyment of land by holding the ball over the
weekend. (Hunter). Barr provides that in determining whether the interference was unreasonable,
there is no fixed threshold in the law of nuisance on the question of unreasonableness. The test is
simply, ‘what an ordinary person could be expected to put up with’. There is no absolute standard or
yardstick for unreasonableness. It is a question of degree, whether the interference is sufficiently
serious to constitute a nuisance. This is to be decided by reference to all relevant circumstances of the
case. There has to be some real interference according to the standards of the average man and not
according to the standards of dainty living. The question would then be, whether, in light of
surrounding circumstances, the congestion and noise from the Ball are unreasonable, in the sense
that no ordinary person could reasonably be expected to put up with the same. Certain factors are
relevant to the question of unreasonableness here, the first of which would be ‘locality.’

In Sturges v Bridgman (1979) it was held that what would amount to a nuisance in one place
may not in another. Further in Baxter v Camden LBC (2001) it was held that residents of low cost, high
density housing are expected to put up with higher noise volumes. It is submitted that the fact that
Brownville is a commuter town is relevant. A commuter town is a town that is home to people who
commute daily to get to work. The residents of Brownville probably spend a lot of their time away
from Brownville and are arguably only home for the lesser part of the day, such as at dinner and
bedtime. This being the case, it is submitted that their absence for the most part of the day probably
means that they are often not around to face any nuisance from Eskdale during the week. However,
since they would be away for the most part of the week, presumably working in other towns, it is
highly likely that their weekends would be a time resting and recuperating from all the commuting
during the week. In the circumstances, it is submitted that the presence of ex-offenders may not be
unreasonable, but SC Ball that went on over the weekend could potentially be quite unbearable.

SC would argue that the character of the locality is different now, upon the grant of planning
permission to set up Eskdale, and that the residents of Brownville must accept the change. The present
facts bear some resemblance to Gillingham BC v Medway Dock (1993) in which residents alleged that
the conversion of a dock behind their residential neighbour into a lively and busy commercial hub was
an unbearable nuisance because of an increased volume of commercial vehicles that would congest
the only road leading to their area of residence. Medway Dock argued that they were given planning
permission and that this meant two things: (i) that the planning permission had the effect of
converting the area from residential to industrial, and as such, their industrial activity there could not
be seen as a nuisance but as a norm; and (ii) that planning permission meant that they were authorized
to carry out the particular activity and this would be a defence to a nuisance action. Later in Coventry
v Lawrence (2014) the Supreme Court it held that the grant of planning permission per se does not
entirely change the character of the locality. Planning permission only suggests that the defendant’s
activity is now recognized as valid and permissible in a particular locality. Planning permission does
not give the defendant the right to commit nuisance but the defendant is expected to find a way to
carry out its activity without inconveniencing others who also enjoy the locality for other purposes. It
follows that the grant of planning permission for Eskdale just means that rehabilitative activity
although on a small scale has now been integrated into the Brownville locality. However, SC must take
steps to ensure that events organized for the Eskdale inmates do not upset those who live in
Brownville. Up to this point, it is likely that unreasonable interference to the peaceful enjoyment of
property in Brownville may be established, only in relation to the disturbance during the weekend.

SC may try to rely on the argument of ‘public benefit’, stating that they are a charitable
company trying to do good for ex-criminal offenders. SC would argue that it is necessary, as part of
rehabilitating ex-offenders, that they reside among ordinary members of society, and participate in
communal living so that they gain interaction and integration into society, and move away from their
past life of crime. In the process, annual celebrations are only healthy and harmless, and it may be
argued in the interest of public policy, that courts should be lenient and not find SC liable in nuisance.
It may be argued that if liability is imposed, charitable organisations such as SC would be discouraged
from doing what they do. However, it was held in Barr that public benefit in a defendant’s activity will
not necessarily result in a favourable outcome for the defendant, where his activity substantially
interferes with the claimant’s use and enjoyment of his property. “The private individual retains his
valuable common law right to enjoy his private property without unreasonable interference.” It does
seem, after decisions in Barr (2012) and Coventry (2014) that courts will fiercely safeguard this right
for the benefit of the private property owner. As such, it is highly likely that public benefit or utility in
SC’s use of its land will not absolve it of liability under nuisance.
 SC may, however argue, that it is an annual Ball and as such happens for only one weekend in
a whole year. The fact that the congestion and noise happen only once a year suggests that duration
wise, the interference may not be so unreasonable. In Barr, it was held that the duration of an
interference is a relevant factor, and that a temporary interference which is substantial will be an
actionable nuisance. Further, in Crown River Cruises v Kimbolton Fireworks (1996) it was held that an
interference in the form of fireworks, which lasted only for twenty minutes was a serious and
unreasonable interference despite the short duration of time. This was because the fireworks went
on to cause fire damage to the claimant’s property. By contrast, on the present facts, although the
noise and congestion lasted over a weekend, presumably reaching its peak on the night of the Ball
itself, this can still be said to be a short duration of time which the residents can reasonably be
expected to put up with. Also, the interference will not be considered serious since it only happens
once a year and has never caused property damage. The present facts must be distinguished from the
Kimbolton Fireworks case since no property damage has been caused. The candidate submits that on
the basis of short duration, the residents of Brownville will fail to prove unreasonable interference.
Having considered the issues of locality, planning permission, public benefit and duration, the
candidate thus submits that the interference caused by the inmates of Eskdale is not unreasonable,
both in relation to the presence of ex-offenders in the neighbourhood, and the weekend of the Ball.
It is highly likely that SC will not be found liable in private nuisance to individual residents of
Brownville, for setting up Eskdale and organizing the SC Ball. The alternative would be to lodge a
complaint to the authorities alleging public nuisance. Provided it is found that a substantial class of
residence are affected by the presence of the ex-offenders at Eskdale, and provided the residents can
show special damage, they may have an alternative claim against SC in public nuisance. However, for
reasons discussed above the candidate submits that there is no evidence of special damage and even
the action in public nuisance for special damage, is likely to fail.

(ii) Roderick:

Roderick is advised to sue under private nuisance and not public nuisance or the rule in R v F.
This is because the disturbance in the form of high-pitched sound has not affected any other property
owner in Brownville and there appears to be no physical escape of something dangerous from SC’s
premise. Therefore, Roderick too will have to establish the requirement of unreasonableness
discussed above. It is submitted that SC will argue that Roderick’s property is “abnormally sensitive”
and therefore that the wind turbine has not caused any unreasonable interference to Roderick’s use
and enjoyment of his property. It has to be noted here that Roderick’s enjoyment of his property is
not domestic but commercial in nature, in the form of a dog boarding kennel. In McKinnon v Walker
it was held that noxious fumes were dangerous to all plants and not just the claimant’s rare orchids,
and as such the defendant’s use of land causing noxious fumes to spread to the claimant’s property
was deemed unreasonable. The rare orchids, although rare could not be said to be abnormally
sensitive as the noxious fumes were equally harmful to all plants. However, in Robinson v Kilvert
(1889) it was held that heat emanating from the defendant’s premise was not unreasonable in that it
did not affect any other property or enjoyment of the same. However, the claimant’s brown paper
stored in his property was affected because it was of abnormal sensitivity. On the facts, the high-
pitched sound from the wind turbine is imperceptible for humans, but unbearable for all dogs (and
not just certain breeds). Roderick’s business involves boarding dogs and if all dogs will be affected by
the sound indiscriminately, it is submitted that McKinnon will apply. Applying Hollywood Silver Fox
Farms v Emmett, despite the fact that silver foxes are sensitive in nature to loud sounds, the court
found that unreasonable interference was established. The candidate submits that the dog boarding
kennel is not of abnormal sensitivity and SC’s interference would be unreasonable. Roderick would
then need to establish that his losses are reasonably foreseeable and not too remote, to obtain
monetary compensation for his losses: The Wagon Mound. In the circumstances, it is unclear whether
the effect of the sounds on dogs in fact widely known and foreseeable. If it is, then Roderick’s loss
would not be too remote. It is submitted that in relation to the private nuisance claims, there are no
defences that may absolve SC of liability, given that planning permission is not a defence: Coventry.

(iii) Janice:

Janice is advised to pursue damages for property damage under the rule in R v F instead of
the tort of private nuisance, since the incident of the turbine blade flying over was an isolated escape
of a dangerous thing from SC’s premise as opposed to an ongoing indirect interference. To establish
liability under the rule, she would have to prove: (i) accumulation of a harmful substance on the
defendant’s premise for his own purpose; (ii) that the thing accumulated was dangerous; (iii) that
there had been an escape causing damage, (iv) that this was the result of a non-natural use of land
and (iv) that damage was reasonably foreseeable and thus not too remote. (R v F; Cambridge Water).
It is submitted that the first three requirements are easily satisfied, i.e. the setting up of a wind turbine
on SC’s premise amounts to accumulation, the blade from the turbine is certainly a dangerous
instrument and there clearly has been movement of the blade from SC’s place into Janice’s place
(Read v Lyons). As to whether SC’s use of land was non-natural, Transco suggested that the question
to be asked was whether the defendant engaged in an activity that carried extraordinary and unusual
risks of harm. It is submitted that installing a wind turbine in a residential area, even if it was to
generate power an energy for Eskdale is excessive and the risk of the blade flying off and causing
damage to neighbouring property is certainly an extraordinary one. Wind turbines are usually used on
for larger scale activities where the generation of higher volumes of energy for bigger operations than
a home like Eskdale. Thus, non-natural use of land will be established here.

Next Janice will have to establish that the damage sustained was reasonably foreseeable and
thus not too remote (Wagon Mound (No. 2) (1967)). SC will probably argue that blades don’t
ordinarily fly off to neighbouring properties and that the kind of damage that occurred was rare and
more of an unexpected occurrence. It may be that the damage sustained by Janice would be found to
be too remote. The facts also state that scientific investigations have failed to discover the cause of
the accident. The construction, assembly and maintenance of the turbine appear to have been in
accordance with most advanced practice. In the circumstances, the damage will not be deemed
foreseeable. SC too may argue ‘act of God’ as a defence, on the basis that it was the storm that
ultimately caused the blade to be blown off. In Greenock Corporation v Caledonian Railway (1917)
the defendant was found liable under the rule in R v F for flooding caused by heavy rainfall, because
it was known and foreseeable that heavy rainfall would result in the kind of flooding that occurred. By
contrast here, however it is submitted that it is probably quite uncommon and unforeseeable that a
turbine blade may be blown away by a storm and as such the defence of ‘act of God’ would probably
result in SC not being found liable under the rule in R v F.

In conclusion, it is submitted that it is highly likely that all claims will fail under private nuisance
and the rule in R v F although there are narrow prospects of success under other branches of law such
as negligence, and the HRA 1998.

Sample 3:

(2008 ZA Q5)
Thor Industries manufacture specialist military equipment at their factory, which is situated in a
residential area. Because of the need to manufacture and test increased supplies to meet current
military needs, they have often worked through the night, causing considerable noise and vibration.
Faisal, the owner of a house nearby, is severely disabled but has been trained to use specialist
electronic equipment to work at home dealing with enquiries from customers of National Savings.
Testing of new products at the Thor factory sometimes interferes with this equipment and Faisal fears
that he will not be able to carry on working. A large group of anti-war protestors has taken over a
piece of land belonging to the local council, the Paxtown District Council, near the factory. They have
been cooking food on the site, throwing rubbish into neighbouring gardens as well as shouting
protests. The Paxtown Council is opposed to British military activities and has taken no steps to
remove the protestors. Advise as to any possible nuisance actions. (2008 ZA Q5)

Suggested answer:

The question pertains to the area of nuisance. In advising, the candidate will apply the
principles of public and private nuisance to determine if claims may be brought for the respective
losses on the facts. It is advised that firstly, Faisal may bring an action under private nuisance against
Thor Industries (‘TI’) for the considerable noise and vibration and the interference to his equipment
and inability to work. Those affected by the large group of protestors may also bring an action against
the Paxtown District Council (‘PDC’) for private nuisance. Alternatively, an action for public nuisance
may be considered in respect of the protestors.

Nuisance is generally defined as the “unlawful, unreasonable or wrongful interference with

one party’s use and enjoyment of land by another’s use of land”: Lord Atkin, Sedleigh-Denfield v
O’Callaghan (1940). Lord Denning in Miller v Jackson (1977) described private nuisance as “the
unreasonable use by a man of his land to the detriment of his neighbour.” Given that Faisal’s
enjoyment of his property appears to be interfered with by TI’s factory operations nearby, any claim
by Faisal against TI should be brought under private nuisance. On the assumption that the protest also
disturbs those affected in their rightful use and enjoyment of their respective property, such parties
may also bring a claim under private nuisance against PDC.

Private nuisance is classified as a proprietary tort concerned with protecting interests relating
to land or property. To bring an action under nuisance law, the claimant must have suffered a loss
relating to land. Personal losses or injuries are not recoverable under the law of nuisance because
such losses are personal in nature: Hunter v Canary Wharf (1997). Hunter also clarified that actionable
private nuisance may take the form of either (i) encroachment on land, (ii) property damage or (iii)
interference with enjoyment of land. On the facts, Faisal is unable to enjoy his property because of
the noise and vibration from TI. It is submitted that this would be accepted as an interference to his
enjoyment of property.

Faisal is also unable to use his special equipment at time because of testing carried out by TI.
The question is whether this would also be accepted as interference to use and enjoyment of property.
It is possible that TI may liken the interference to the work equipment to that of interference to
television signal reception experienced in Hunter. In Hunter, it was held that such interference was
not unreasonable. Lord Hoffman and Lord Hope explained that the right to television signal reception
was “not a right obtained from possession of land” and that interference had to be “substantial and
not fanciful.” TI would similarly argue that the right to use the special work equipment is not one that
arises from possession of land and that it is fanciful. The candidate, however, disagrees with this line
of argument. Faisal’s situation must be distinguished from Hunter. On the facts, Faisal is disabled and
is trained to use specialist electronic equipment to work at home dealing with enquiries from
customers of National Savings. The use of the equipment is not for a “fanciful” or leisurely purpose.
Further, the right to work from home using specialist equipment, due to disability is arguably a right
that does arise from possession of land in the circumstances. As such, the interference with the work
equipment would also fall within ‘loss of enjoyment’ and is actionable under private nuisance.
 Any party affected by the protest has also arguably suffered interference to the enjoyment of
their property in the form of noise and rubbish being littered around; thus, may claim under private
nuisance.

Public nuisance, on the other hand, is defined as “interference that materially affects the
reasonable comfort and convenience of life of a class of Her Majesty’s subjects”: Romer LJ, AG v PYA
Quarries (1957). Public nuisance is classified as a criminal wrongdoing and as such, no action lies in
Tort Law in respect of nuisance that is public in nature (Blackstone). However, any party who suffers
loss or damage in addition to the public nuisance itself, may recover compensation under Tort Law.
Compensation is only awarded where special damage occurs above and beyond the inconvenience of
the public nuisance. Courts recognise certain types of special damage that flow from the public
nuisance, such as physical injury: Re: Corby Group Litigation (2009); property damage: Halsey v Esso
Petroleum (1961) and consequential economic loss: Tate & Lyle Industries v Greater London Council
(1983). On the facts, there are two sources of nuisance that may be public in nature: (i) noise and
vibration from TI; and (ii) the protest. The facts are silent, as to the extent of people affected by these
interferences (apart from Faisal) but it is mentioned that the interferences are happening in a
residential area. In PYA Quarries, it was held that the claimant must first show that nuisance was
public in nature. Lord Denning explained that nuisance would be public in nature if it were “so
widespread in range and indiscriminate in nature.” If indeed the disturbance affects a wide cross
section of the residence in the area, then this requirement would be satisfied. However, the candidate
is unable to conclusively establish this on the given facts. In any event, to claim damages on account
of the public nuisance, special damage has to be shown. The facts also do not stipulate that any party
has suffered any identifiable loss or damage that would amount to ‘special damage’, whether due to
the noise from TI or the protests. Faisal’s losses would not be regarded as special damage, but loss of
enjoyment as explained above. Hence, no action for special damage will lie in public nuisance. The
candidate will proceed to assess all claims under private nuisance for the respective parties.

Faisal’s claim

Addressing Faisal’s claim firstly in respect of the noise, vibration and disturbance to Faisal’s
equipment, the criteria for liability must first be discussed, followed by any possible defences that may
be raised and finally the suitable remedy in the circumstances.

In Malone v Laskey (1907) it was held that only those with proprietary interest in land may
bring an action in private nuisance. This is because private nuisance is a land-related tort concerned
with balancing proprietary rights and interests of parties involved: Lord Hoffman, Hunter. Those with
only a substantial connection with land, or mere occupation may not bring an action as they lack the
necessary standing to sue: Lord Goff, Hunter. On the facts, it is clear that Faisal is the owner of his
house. He has the necessary proprietary interest to sue and his claim may proceed against TI. The
claim would also properly be brought against TI, as TI is the proper defendant. TI is the creator of
nuisance on the facts: Thomas v National Union of Mineworkers (1985).

Next, Faisal has to satisfy the requirement of ‘unreasonable interference’. It was held in
Sedleigh- Denfield that “a balance has to be maintained between the right of the occupier to do what
he likes with his own property, and the right of his neighbour not to be interfered with... a useful test
is perhaps what is reasonable according to the ordinary usages of mankind living in… a particular
society.” More recently, in Barr v Biffa Waste Services (2012) the orthodox approach laid down in
Walter v Selfe (1851) was revived. The COA reiterated that there is “no general rule requiring… the
setting of a threshold in nuisance cases... the test is simply what an ordinary person could reasonably
be expected to put up with... it is a question of degree whether the interference is sufficiently serious
to constitute a nuisance, which is to be decided by reference to all the circumstances of the case...
There must be a real interference with the comfort or convenience of living, according to the standards
of the average man... not merely according to elegant or dainty modes and habits of living…”

Whether interference is serious enough to amount to unreasonableness, is usually measured

in light of certain factors. Firstly, courts examine the locality in which the interference in ongoing. In
Sturges v Bridgman (1879) it was held, “what would amount to nuisance in Belgravia Square would
not be so in Bermondsey.” Courts examine the current character of the locality. The facts state that TI
is located in a residential area. In Coventry v Lawrence (2014) the SC held that activities of a motor
racing stadium amounted to nuisance in a location where a residential bungalow was closely situated.
The loud noises and vibration from the stadium was deemed unreasonable because a home owner
could not reasonably be expected to put up with the same. Applying the same reasoning here, the
noise and vibration from TI’s premises would most likely be found unreasonable. Given that it is
uncommon for people to work from home, it is also submitted that TI’s activity interfering with Faisal’s
use of his special equipment would also be unreasonable in the given location.

Courts also examine the duration and timing of the interference. Nuisance that prolongs
continuously is usually regarded as unreasonable, however, even a short term may be deemed
unreasonable if it is sufficiently serious: Barr. Further, in De Keyser’s Royal Hotel v Spicer Bros. (1914)
it was held that construction work that went on throughout the night was unreasonable because
residents could reasonably expect that time of day to be quieter, so as to not interfere with peaceful
sleep. Applying the same here, it is submitted that the work at TI that goes on throughout the day and
into the night would definitely be found unreasonable.

However, TI would raise the ‘abnormal sensitivity’ factor on the question of

unreasonableness. TI would argue that due to his disability, Faisal uses a special electronic equipment
which is abnormally sensitive; and that any other ordinary resident not using such equipment would
not suffer the alleged interference. The abnormal sensitivity factor was upheld in Robinson v Kilvert
(1889) where it was found that the interference alleged by the claimant arose from the sensitive and
delicate nature of the special brown paper stored on his premise, and that otherwise, the heat from
the defendant’s premise would not ordinarily amount to an interference at all. More recently, in
Network Rail v Morris (2004), the claimant alleged that the use of electronic guitars in his recording
studio was affected by the electromagnetic field generated by the defendant’s signalling system from
the railway systems on their premise. The claim failed because the type of electric guitars used by the
claimant was found to be extraordinarily sensitive. Interference was not foreseeable in such
circumstances. The facts state that testing of new products at the factory sometimes interferes with
Faisal’s special equipment. TI would argue that this is akin to Robinson and Morris and that the court
should regard the special equipment as abnormally sensitive. However, the candidate will argue that
Faisal’s circumstances must be distinguished. Even though it is a special electronic equipment, the
facts do not suggest that the equipment is particularly sensitive in nature. Further, Faisal’s use of the
equipment is essential given his circumstances and the need to work from home. As such,
distinguishing from Robinson and Morris, the candidate submits that the interference will still be
considered unreasonable on the facts.

TI would also argue that the public benefit in their activity should render their use of land
necessary and therefore, not unreasonable. TI manufactures specialist military equipment to meet
current military needs, presumably, war-related defence equipment. However, in Barr, it was held
that the public utility and benefit of the defendant’s act is irrelevant to the question of
unreasonableness. “The private individual retains his valuable common law right to enjoy his property
without unreasonable interference to it”: Barr. In the circumstances, TI will not be able to rely on the
utility of its actions. As long as the interference occasioned is unreasonable and serious, nuisance is
established.
 In light of the above, it is submitted that Faisal will succeed in establishing private nuisance:
he has the proprietary interest to sue, the kind of loss suffered is protected under private nuisance
law and unreasonableness of interference is established on the facts. TI would want to raise defences
to defeat liability. Under private nuisance law, statutory authority to commit nuisance serves as a legal
defence: Allen v Gulf Oil Refining (1981). However, in Barr it was held that in order for statute to
serve as a shield, the wording of the statute must be shown to have not only authorised the activity
but the nuisance that comes with it, either expressly or impliedly. This, however, cannot be
ascertained on the facts, as it is unclear whether TI was acting under any statutory authority at all.
Alternatively, the defendant could rely on the defence of ’20-year prescription’ if it can be shown that
the defendant had been committing nuisance without objection from his neighbours, for at least 20
years: Sturges. It has to be shown that the claimant tolerated and did not complain about the nuisance
for 20 years for the defence to apply: Coventry. On the facts, it is also unclear, as to whether TI’s
activities have been continuing for 20 years without objection from Faisal. As such, this defence will
not apply. TI may not rely on any permission given to carry out its manufacturing operations as the
giving of permissions is not equivalent to authorisation to commit nuisance: Coventry. Lastly, even if
TI had been in the area before Faisal, and had commenced its manufacturing activity with its nuisance
before Faisal arrived, this would not serve as a defence as ‘coming to nuisance’ is not a valid legal
defence against a private nuisance action: Miller; Coventry.

In the circumstances, Faisal’s private nuisance claim against TI will most likely succeed. Faisal
would want an injunction as the most effective remedy. In Coventry, it was held that the claimant is
prima facie entitled to an injunction upon proving unreasonable interference. An injunction was
granted against the stadium in Coventry even though the practical and financial consequences to the
defendant would have been harsh and far-reaching. In Barr, the defendant was order to move its
waste treatment facility. It is submitted that in the same way, Faisal may succeed in obtaining an
injunction or an order of Court instructing TI to move its factory. However, it in the circumstances,
given the nature of operations at TI and the need for the same, it is equally possible for the court to
award damages in lieu of injunction here.

The protest

Parties affected by the protest may also bring a claim against PDC for private nuisance as this
also amounts to an interference to their use and enjoyment of land. Those who are affected by the
noise and littered rubbish must first possess proprietary interest in order to bring an action, as
explained above.

Next, it must be established that PDC is the proper defendant. PDC would argue following
Thomas (also a protest case), that the protestors themselves as creators of the nuisance, must be
liable. However, on the facts, the protestors took over and used a piece of land belonging to the PDC,
near the factory. The PDC is opposed to British military activities and has taken no steps to remove
the protestors. In Sedleigh, it was held that “some degree of personal responsibility” is sufficient to
impose liability. Further, in Lippiat v South Gloucestershire County Council (1999), it was held that the
Council could be liable for nuisance caused by gypsies occupying the Council’s land, where the Council
permitted them to do so, and whether the land was used as “launching pad to commit nuisance.”
Further, in Coventry the SC held that landlords, and those who authorise the use of their land by
others, may be liable for any nuisance arising from the use of land, if there was evidence of active and
direct participation on their part. Although PDC is not in a legal sense a landlord in respect of the
protestors, and their position is different from that of landlord defendants in Lippiat and Coventry, it
is clear that they did authorise, endorse and allow the protest to continue. The PDC did not intervene
deliberately, because it is opposed to British military activities. Thus, it is submitted that there is a
degree of active involvement, and personal responsibility sufficient for PDC to be sued as the proper
defendant here. Even though the protestors themselves too may be sued for private nuisance, liability
on PDC’s part is more appropriate given that they have the power to stop the protest.

It must also be shown that the protest did result in unreasonable interference. Taking into
account some of the factors listed above such as locality, duration, and public benefit, it is submitted
that the protest would amount to unreasonable interference. The protestors have been cooking food
on the site, throwing rubbish into neighbouring gardens as well as shouting protests. This arguable is
serious and would amount to unreasonable interference. This is comparable to the level of nuisance
in Lippiat, which the court found to be unreasonable. As such, the requirement of unreasonableness
will be satisfied on the facts. Also, applying Barr above on public benefit, the protestors will not be
able to argue that their anti-war cause would justify the interference.

As for any defence that the PDC may rely on, it is submitted that none of the defences will
apply on the facts, since the protest is not authorised by statute and clearly hasn’t been going for 20
years. Further, the ‘coming to nuisance’ or permission is also inapplicable here. PDC also cannot rely
on its stand against British military activity as a defence here. Therefore, the claim against PDC for
nuisance caused by the protestors will most likely succeed. The appropriate remedy will be injunction
and any party affected by the protest will be prima facie entitled to the injunction upon proving
unreasonableness, as established above.

In conclusion, Faisal’s claim against TI for interference from its production and testing
activities will most likely succeed under private nuisance. The claim of parties affected by the protest,
against PDC will also most likely succeed under private nuisance. Claimants will most appropriately be
granted an injunction to stop the protest and Faisal may be granted either an injunction or damages
in lieu.

Sample 4:

2012 (ZA & ZB) Q7

Grinders Ltd has a plastics factory at the edge of a village. It has recently seen a considerable increase
in demand for its products and it has had to work late into the evening to meet demand. It has also
installed state of the art equipment. In 2010 Basil inherited a pub near to the factory. He was not
interested in running it, but he allowed his nephew Craig (who had trained as a chef) to open a small
restaurant in the pub. He does not charge Craig any rent. The restaurant initially attracted an
increasing number of customers, but they find the noise from Grinders’ factory very irritating and
business at the restaurant has dwindled. Basil says that he cannot be bothered taking any action about
it. Grinders’ new equipment often emits clouds of microscopic particles. These are invisible to the
naked eye and are no danger to human health. Adjoining the factory however there is a private airstrip
owned by Daphne and used by the local flying club. The aviation authorities have told Daphne that
aircrafts must not take off or land while the wind is blowing from the direction of the factory. No such
problems have been encountered elsewhere with the kind of equipment that Grinders has installed.
The flying club has now found an alternative airstrip and has terminated its arrangement with Daphne.
Advise Craig and Daphne.

Suggested Answer:

The facts involve claims to be brought under private nuisance and the rule in Rylands v
[Link] is advised to sue Grinders under private nuisance for the noise from Grinders’ factory –
it has caused him to lose customers and his business has been affected as a result.
 Firstly, private nuisance is defined as “unlawful, unreasonable or wrongful interference with
one party’s use and enjoyment of land by another’s use of land”: Lord Atkin, Sedleigh-Denfield. Claims
that involve indirect and unreasonable interference to property or enjoyment by the use of property
by another can be brought under private nuisance: Winfield & Jolowicz. Since Grinders’ use of their
factory indirectly interferes with Craig’s “enjoyment and amenity” of the pub, the claim may be
brought under private nuisance.

In order to claim under private nuisance, the claimant must have proprietary interest in land:
Malone v Laskey. Proprietary interest is necessary because private nuisance is a proprietary tort,
involves balancing between rights and interests in land and protects interests arising from possession
of land: Hunter; Sedleigh-Denfield. ON THE FACTS: Craig doesn’t pay rent, the pub is owned by Basil,
thus, Craig does not have proprietary interest to sue. Alternatively, like claimants in McKenna v British
Aluminium, he may want bring an action under HRA 1998, for the interference. However, he is unlikely
to succeed as by contrast, Grinders is unlikely to be regarded as a public body for the purposes of S6,
and the disturbance experienced at the pub is unlikely to amount to a violation of Article 8 ECHR like
in McKenna. He may sue under negligence instead, but it is doubted whether he may establish duty
and breach on the facts.

Nonetheless, if his claim proceeds, he must go on to satisfy the requirement of ‘unreasonable

interference’. It has to be shown that an ordinary person cannot reasonably be expected to put up
with the interference: Barr; Walter v Selfe. There is no threshold for seriousness, but it has to be
shown the interference was serious enough by ordinary standards of living: Barr. Also, the
interference has to be substantial and not fanciful: Hunter. Courts determine unreasonableness by
applying certain factors.

Firstly, locality. What would amount to nuisance in one locality may not amount to nuisance
in another locality: Sturges. Yet, even if the locality is more suited to the defendant’s activity but the
interference is so serious as to cause property damage, unreasonableness will be established: St
Helen’s Smelting v Tipping. ON THE FACTS: Grinders is operating at the edge of a village, which is not
unreasonable for a factory. Further, it is less likely that pubs are usually found at the edge of a village.
So, locality wise, Grinders’ activity may not be unreasonable. Further, no damage to property has been
caused so distinguishing from Sturges and St. Helen’s Smelting, in view of the locality factor, the
interference may not be unreasonable

Secondly, duration. The longer the duration of the interference, the more likely that it would
be regarded as unreasonable, however, even short-term interference may be unreasonable if it is
serious: Barr. In Crown River Cruises v Kimbolton Fireworks even though the duration of the
interference was short, it also resulted in property damage and was therefore considered serious
enough to constitute ‘unreasonable interference’. ON THE FACTS: the interference appears to
continue daily, for long hours and goes on until late evening. It is submitted that pubs are usually
frequented between evening and late evening. In this regard, the interference would be
unreasonable. Further, in De Keyser’s Royal Hotel v Spicer Bros it was held that construction work
that continues from 7.30pm – 6.40am when guests at the claimant’s hotel would usually need peace
and quiet for restful sleep was unreasonable. Drawing analogy, it is argued that the timing of the
interference coincides with timing of day when Craig would most expect customers. As such, the
interference may be regarded as unreasonable due to duration factor.

Thirdly, public benefit. Grinders would argue that the manufacturing of plastics, greatly
benefits the community as a whole and in view of increased demands, it is not unreasonable that the
manufacturing runs late into the evening, creating noise. However, in Barr it was held that any public
benefit in the defendant’s activity will not render the interference reasonable – public benefit is not
an excuse and it cannot be allowed diminish the private individual’s common law right of enjoyment
of property. Therefore, any public benefit in Grinders’ activity will not assist in avoiding a finding
unreasonable interference. The factors of malice and abnormal sensitivity are not applicable ON THE
FACTS.

Based on the discussion above, weighing the relevant factors, it is submitted that as a whole,
the interference is not unreasonable. Even though in terms of duration, it is substantial, given that the
factory is suitably located at the edge of the village, and the fact that no property damage has been
occasioned, it is unlikely that the court will find that the noise levels are unreasonable. If liability is
established, defences need to be considered.

As for defences that may apply, it is submitted that Grinders is not operating under any
statutory authority, and this defence will be irrelevant ON THE FACTS (Allen v Gulf Oil Refining; Barr).
Further, the 20-year prescription defence is unlikely to be relevant here since Craig has not tolerated
the nuisance for more than 20 years (Sturges). Coming to nuisance is also not a defence that can apply
in any nuisance claim, even if it appears that Grinders had been operating in the area before Craig.
‘Coming to nuisance’ is not a valid defence as it would mean that the defendant is allowed to continue
committing nuisance just because he was at the area first, even though to do so amounts to a wrongful
act in law: Miller v Jackson. In Coventry, it was held that ‘coming to nuisance’ would serve as a defence
if after occupying the property, the claimant changes the use of the property such that the defendant’s
activity then starts to become a nuisance. Since there is no marked change in the use of the property,
this defence is inapplicable. Finally, if nuisance is established against Grinders, they may argue that
factory operations are being carried out with permission. However, it was also clarified in Gillingham
BC v Medway Dock and Coventry that planning permission is not a defence in private nuisance cases
because planning authorities who grant permission do not do so with the individual’s common law
right of enjoyment in mind. As such, Grinders will not be able to rely on any defence on the facts.

As to whether the type of loss is recoverable, private nuisance is a land-related tort, therefore,
only losses related to land are recoverable – personal injuries, psychiatric harm and pure economic
losses are not recoverable: Hunter. Hunter also states that the types of special damage that may be
recovered include those that arise from or flow from: (a) encroachment on land; (b) property damage
or (c) loss of enjoyment and amenity value of land. ON THE FACTS: Craig’s restaurant cannot operate
as expected because of the noise levels interfering with the use, enjoyment and amenity value of the
restaurant. In this sense, Craig has suffered special damage in the form of noise affecting the amenity
value of the property – this would be recoverable under private nuisance. As for the likely economic
loss that flowed from the lack of customers and business dwindling, if the Court accepts this as
consequential loss resulting from loss of enjoyment, then this would be recoverable as only pure
economic losses are not recoverable under private nuisance. However, Grinders may argue that for a
business to recover economic loss, it has to be shown that there was some property damage to
business property/ premise and that the economic loss was consequential upon such damage, such
as in Crown River Cruises v Kimbolton Fireworks and Hollywood Silver Fox Farms v Emmett. If this is
accepted, then Craig’s business losses will not be recoverable. However, the candidate argues that De
Keyser’s Royal Hotel could also apply by analogy whereby it was held that the hotel’s business losses
in this case, due to guests being unable to sleep at nights because of the noise created by the
defendant, were recoverable. Further in Matania v National Provincial Bank (1936), the claimant was
unable to earn a living by conducting singing classes at his property, due to high levels of noise created
by the defendant’s activity. The claimant was able to recover loss of income as a consequential loss.
If De Keyser’s and Matania are accepted by analogy ON THE FACTS, the noise nuisance and business
loss suffered by Craig would be recoverable. If the court applies Crown River Cruises and the Silver
Fox Farm cases instead, only the noise nuisance would be recoverable, and not the business loss.
 In Conclusion, Craig is unlikely to succeed bringing a private nuisance claim against Grinders
because he lacks proprietary interest and will not be able to satisfy the unreasonableness
requirement. Thus, even if none of the defences will apply ON THE FACTS, Grinders will not be liable

Since Craig will fail under private nuisance, he may want to try and recover business losses
under public nuisance. Blackstone: public nuisance is a crime and only the state can bring action to
put an end to it. However, any party who suffers special damage above and beyond the public
nuisance itself may seek remedy for the special damage separately under tort law: Esso Petroleum v
Southport Corporation; Benjamin v Storr. He must prove that the nuisance was public in nature: AG
v PYA Quarries. The effect must be “so widespread in range and indiscriminate in nature” to be
considered ‘public nuisance’: Lord Denning. ON THE FACTS: it is unclear and unlikely that the effect
was widespread since the factory is located at the edge of the village – presumably not many homes
around the village. This requirement may not be satisfied. As for special damage, real, substantial and
consequential financial losses may be recovered if directly caused by the public nuisance: Tate & Lyle
Industries v GLC. ON THE FACTS: Craig may be able to show special damage – business dwindling –
consequential economic loss – comparable to business loss suffered by Tate & Lyle when customer
ships could not dock at the river bank to continue trade with them due to the public nuisance created
by the GLC. Even though there is evidence of special damage ON THE FACTS, Craig will not be able to
recover damages because he will not be able to prove that the nuisance was public in nature.

Daphne would want to sue Grinders for business loss when the local flying club terminated its
agreement with her due to their inability to fly using the strip of land belonging to Daphne, because
of the interference in the form of microscopic dust particles from Grinders. The authority advised
against flights taking off and landing there, which suggests that the particles do amount to
interference. Since this is a case of substance moving from one premise to another, it can be classified
as an interference in the form of escape. Daphne may bring a claim under the rule in R v F.

The rule originated from the case of Rylands v Fletcher, where the defendant was found liable
for the escape of water from his premise, causing damage to the claimant’s neighbouring property,
even though the defendant was unaware and could not control the circumstances that led to the
escape. The rule laid down in Rylands by Blackburn J is: “anyone who brings and keeps on land for his
own purpose, anything likely to do mischief if it escapes, must do so at his own peril and if he fails to,
he is prima facie answerable for all damage that is the natural consequence of the escape.” Later in
Transco v Stockport MBC, Lord Bingham explained that the rule was sub-species of private nuisance
that deals with interferences in the form of escapes from land. As such, the claimant must possess
proprietary interest to sue as in Hunter, and claims are allowed only for property damage and
consequential financial loss but not for pure economic loss or personal injury.

In the circumstances, ON THE FACTS, in order to claim, Daphne must show that she has
proprietary interest. Since she is the owner of the strip of land, she possesses the necessary
proprietary interest to sue. As to whether the type of loss is recoverable, it is doubted that the financial
loss arising from the termination of the agreement may not be recoverable as it is not a consequential
loss. Consequential economic loss is that which flows from some property damage (Spartan Steel;
Murphy v BDC). Since no property damage has been occasioned the financial loss in question will be
considered purely economic and will not be recoverable: Weller v FMDRI; Transco.

Nonetheless, the criteria for liability will be considered. Firstly, the D must have accumulated
something on land for his own purpose. Naturally present substances will not attract liability under
the rule: Giles v Walker. Since Grinders did accumulate the special equipment and the particles are
generated by the same, accumulation is satisfied ON THE FACTS. Secondly, the substance accumulated
must be ‘capable of causing mischief if it escapes’, i.e. it has to be a dangerous substance. Water in
substantial volumes will usually be regarded as a dangerous substance (Transco; Rylands), and the
same goes for chemicals: Cambridge Water v Eastern Counties Leather Plc. The facts suggest that the
particles are not dangerous to human health and that they have not caused problems when released
in other places. This may suggest that the particles may not be dangerous or capable of causing
mischief in general. However, the fact that the authority has asked that no flights should land or depart
in the area because of the particles implies that the particles must be dangerous. As such this
requirement will be satisfied.

Thirdly, it has to be shown that there was an escape causing damage. In Read v J.J Lyons it
was held that no escape occurred where the movement of harmful substance was confined within the
defendant’s premise. ON THE FACTS, the particles have clearly moved from Grinders’ premises to
Daphne’s air strip. As such the escape element is satisfied. However, the absence of property damage
fails to satisfy the damage requirement.

Fourthly, it has to be shown that the use of land was non-natural. Originally, this would be
satisfied as long as the use of land was brought about by a man-made establishment or activity
(Rylands). However, domestic use would not be regarded as ‘non-natural’. Use of land that meets a
public need or is a social and national necessity was also regarded as natural, such as the
manufacturing of munitions during war time: Read. However, where chemicals are used in a factory,
this would be a classic example of non-natural use: Cambridge Water. The fact that the factory
generates jobs for the community and is socially beneficial to the public is irrelevant: Cambridge
Water overruling British Celanese v A.H. Hunt. More recently, in Transco, the HOL redefined ‘non-
natural use’ explaining that only “extraordinary and unusual activities that carry with them
exceptional risks of danger” will be regarded as non-natural use. Lord Hoffman: further, if the claimant
would ordinarily insure against the kind of damage caused by the defendant’s activity, this would be
a further indication that the defendant’s activity was natural and not extraordinary or unusual. The
expectation of insurance on the claimant’s part as the appropriate means of protection against the
kind of loss suffered would further preclude a finding of non-natural use by the defendant, thereby
restricting liability and denying the claim. It is submitted ON THE FACTS that a plastics factory does
not appear to pose an exceptional risk of danger and indeed cannot be considered to be an
extraordinary or unusual use of land. However, it is arguably unusual that any airstrip owner would
insure against the kind of problem faced due to the particles. Further, the particles were emanated
from the use of a specialist equipment which may be unusual on a relative basis. If this is accepted,
then the ‘non-natural use’ requirement will be satisfied.

Lastly, Daphne must prove that any loss or damage suffered was reasonably foreseeable:
Cambridge Water, affirmed in Transco. ON THE FACTS: no damage was suffered. Further, the kind of
problem faced is unheard of in other places where the same equipment is used. Grinders would
therefore use this to argue that the loss suffered is not reasonably foreseeable, as indeed, there is
also an absence of property damage due to the particles. In the event that liability is established,
defences must be considered. However, ON THE FACTS, it is unlikely that any of the defences to the
rule in R v F will be relevant. The escape was not caused by an act of God, and it was not triggered by
the act of a stranger. Further, there is no mention of any statute under which Grinders was operating.
Daphne also clearly did not consent to or benefit from the factory. As such the issue of defences need
not be considered in detail here.

It is concluded that ultimately, Daphne’s claim under the rule will fail as she has not suffered
property damage and will not be able to prove that any loss suffered was reasonably foreseeable.
Further, the fact that pure economic loss is not recoverable will further hamper her chances of
recovery.
 Alternatively, she may bring an action against Grinders under private nuisance, arguing that
the emanation of particles resulting in her inability to use the airstrip for its purpose, would amount
to loss of enjoyment and amenity value. Further, the business loss arising from the flying club
terminating the agreement may be argued to be a consequential economic loss, as argued above for
Craig. Daphne will be able to sue Grinders since she has the necessary interest in land and Grinders
are the creators of the nuisance. The requirement of unreasonable interference discussed above will
similarly apply. In terms of locality and duration, it is submitted that Grinders’ activity is unlikely to be
considered unreasonable because the locality is suitable for a factory and the interference occurs only
when the wind blows. Further, no property damage has been caused. The seriousness of the
interference may not be sufficient to warrant a finding of nuisance. Further, Grinders may allege
abnormal sensitivity, stating that other areas in which the same equipment has been used, has not
faced the same issues faced in Daphne’s area, presumably because there must be something
abnormally sensitive about the air in Daphne’s area. If this is accepted, the court is likely to conclude
that unreasonable interference is not established: Robinson v Kilvert; Network Rail Infrastructure v
Morris. The consequences of the emanation on Daphne’s airstrip would appear to be unforeseeable,
thus abnormally sensitive based on the Morris case and the present facts. As such, a claim in private
nuisance is also likely to fail.

As final alternative, Daphne may want to try to claim special damage under public nuisance.
However, as argued above for Craig, this alternatively is unlikely to result in successful compensation
because the interference in the form of emanation of particles does seem to be public in nature, in
that it does not affect a significant cross-section of society. As a whole, both Craig and Daphne will fail
to claim against Grinders.

Essay Questions:

Sample 1:

2015 (ZB) Q1
‘Only persons with a legal interest in property are entitled to live free of nuisance.’ Discuss.

Suggested Answer:

The statement in question implies that to live free of nuisance, one would have to possess
some legal interest in his property. This invites discussion as to the requisite standing in law to enforce
one’s right to enjoy the property free from interference. In essence, the question demands
examination of the requirement of a proprietary interest in property and evaluation of any other
requirements that have to be fulfilled to assert one’s right to enjoyment of his land.

Nuisances may be private or public. Private nuisance is defined in Winfield & Jolowicz on Torts
(2010) as an ‘unlawful interference with a person’s use or enjoyment of land, or some right over, or
in connection with it’. Public nuisance, in contrast, is a crime and is actionable in tort where the
claimant suffers special damage in addition to suffering nuisance which is public in nature. Public
nuisance is where nuisance ‘materially affects the reasonable comfort and convenience of life of a
class of Her Majesty's subjects’ (Attorney General v PYA Quarries Ltd (1957)). The statement in
question appears to suggest that the area of private nuisance is more pertinent than public nuisance
in the present discussion as public nuisance does not require the claimant to possess legal interest in
land before claiming. All it takes for a claimant to claim in respect of public nuisance in tort is (i) that
public nuisance was occasioned; and (ii) that the claimant suffered some special damage. Presumably,
proving that the claimant was among the class of society facing a public nuisance would be sufficient
to sue in public nuisance, and no particular interest in land needs to be shown. Private nuisance, on
the other hand, involves claiming in respect of nuisance suffered only by the claimant (not the entire
public), in relation only to his own property (not public property). It is thus fitting that in order to
protect one’s private enjoyment of his own property, one must first show that he does in fact have
some right or interest in his property. As such, the discussion would focus on legal interest in the
context of claims in private nuisance.

In essence, the tort of private nuisance had always been understood as a “tort to land… a tort
directed at protecting the plaintiff’s enjoyment of rights over his land”, per Professor Newark in “The
Boundaries of Nuisance”. It follows that the traditional position of English Law laid down in Malone v
Laskey (1907) has been that only those who have a legal interest in the land affected can sue in private
nuisance. This rule has however been modified by the Matrimonial Homes Act 1983 and s.30 of the
Family Law Act 1996, which give spouses or civil partners both a ‘home right’ not to be evicted by the
other spouse/partner when already in occupation and where the court gives its leave, a right to enter
and occupy the home. Spouses living in matrimonial homes too are therefore regarded as having the
necessary legal interest in property, to bring action in private nuisance. The rationale in this rule is
simple: without legal interest in land, one simply does not have the necessary standing in law to seek
legal protection against interference to his property, whether in the form of physical damage or loss
of amenity.

The position in Malone was challenged in Khorasandjian v Bush (1993), with Dillon LJ calling
the propriety interest requirement ‘ridiculous’. His Lordship introduced a much more generous
approach to standing to sue, freeing nuisance from the ties of property interest. In Khoransandjian
justice favoured allowing a child living with parents, to sue for harassment on the basis that the child
had ‘occupational rights’ and this gave the child some substantial link to the property. This principle
was applied in Khorasandjian, arguably because at the time, there had been no other branch of law
that would give the claimant adequate and effective remedy against the wrong she had suffered.

In the subsequent case of Hunter v Canary Wharf Ltd (1996) the Court of Appeal agreed with
the view in Khorasandjian, that ‘occupation of property as a home’ would be sufficient to give an
individual legal protection. However, the House of Lords (hereinafter “HOL”), in the same case in 1997
returned to the orthodox position, overruling the COA. Lord Goff stressed: “... on the authorities as
they stand, an action in private nuisance will only lie at suit of a person who has a right to the land”.
The HOL in Hunter explained that the approach and reasoning in Khorasandjian should no longer
apply as it has now been made redundant due to the passing of Protection from Harassment Act
1997.

Lord Goff explained that only those who have interests in land (exclusive possession of land)
should have the right to ask for an injunction against another who also has interests in land, as after
all private nuisance is designed to protect only proprietary interest in property. Lord Hoffman
explained that if private nuisance were to be understood as dealing with two distinct types of damage
separately, namely (i) property damage; and (ii) disturbance to enjoyment of land, then it may be right
to say that proprietary interest is required only when suing for property damage and not for
disturbance. However, to divide private nuisance this way would amount to a misconstruction and
misunderstanding of law. Such a division would be unrealistic and artificial. In law and in reality
‘damage to land’ encompasses both the physical and abstract aspects of property, namely the
property itself being unharmed and the ability to use and enjoy the property undisturbed. Nuisance
causing disturbance in enjoyment of land AND nuisance causing property damage BOTH fall under
‘damage to land’. Once this is understood, “the rule that the plaintiff must have an interest in land
falls into place is logical and indeed inevitable.”
 Lord Hoffman went on to explain that if policy reasons are used to relax the requirement of
proprietary interest “nuisance would escape the bounds of being a tort against land” judges will be
forced to impose other “compromise limitations” (such as ‘substantial link’ in Khorasandjian). The
result would be an irrational, distorted and incoherent development of law. Further, to allow someone
who only has a substantial link with land to sue would result in a number of claimants seeking remedy.
This would create problems as “damages cannot be increased merely because more people are in
occupation and therefore suffer greater collective discomfort.” Although the HOL decision in Hunter
has been criticized as being extremely harsh and rigid, it can equally be regarded as ensuring that the
law of private nuisance is being interpreted in a coherent and principled way.

While the position in Hunter remains the authority on the matter and Khorasandjian, no
longer good law, further developments can be seen in cases after the passing of the Human Rights
Act 1998. In McKenna v British Aluminium (2002) and Dobson v Thames Water Utilities Ltd (2009),
the courts took into account the plaintiffs’ right under Art. 8(1) of the European Convention of Human
Rights (hereinafter “ECHR”): ‘Everyone has the right to respect for his private and family life, his home
and his correspondence’, thereby permitting the claimants who did not have proprietary interest to
sue successfully. Hence, where the defendant is a public authority, then a direct action against him
will lie at the suit of anyone who holds Art. 8, whether or not they satisfy the proprietary interest
criterion laid down in Hunter. Neuberger J in McKenna, noted that Hunter remains good law and its
limitation may only be challenged in suitable cases. Until then it is submitted that claimants who do
not possess legal interest in land strictly cannot avail their rights to live free of nuisance. The only
other way to live free of nuisance or disturbance where one does not possess interest in land, is to
bring an action for violation of Art. 8 through Section 6 HRA 1998.

Another question which arises in light of Hunter, is whether those who suffer interference
due to an isolated escape from their neighbour’s land may bring an action for such escape, if they do
not possess any legal interest in their own land. It had been unclear, in light of older decision such as
Perry v Kendricks Transport Ltd. (1956, given that Perry allowed a non-occupier, with no interest in
land, to recover damages successfully. It submitted in view of Lord Goff’s comment in Cambridge
Water Co. v Eastern Leather Counties Plc. (1994), later confirmed by Transco Plc v Stockport MBC
(2003) that the focus of both torts is the same – namely the protection of rights to land – therefore
logically, only claimants with an interest may sue for isolated escapes from land. In any event the rule
in Rylands v Fletcher (1868), which deals with escapes from land, is said to be a subset of private
nuisance and thus the same requirement of proprietary interest would apply.

It is submitted that other than having the necessary legal interest to sue, a claimant must also
show that (i) his neighbour’s use and enjoyment of land had in fact caused some special damage to
his property and (ii) that such use by the neighbour is in fact unreasonable. Only then would a claimant
truly be able to “live free of nuisance”. This is in view of Hunter which states that private nuisance is
“where special damage is caused to particular persons having landed interest through an
unreasonable interference to their quiet and peaceful enjoyment of land”.

In English law, special damage includes damage to property, such as when copper fumes from
the defendant’s copper factory destroyed the claimant’s greenery, causing its leaves to turn yellow in
St. Helen’s Smelting v Tipping (1865). More recently in Coventry v Lawrence [2014], the Supreme
Court held that high levels of noise and vibration from a motor speed racing stadium too would
amount to special damage for the purposes of liability under private nuisance. Once such special
damage can be proven, courts would be willing to assist a claimant in granting the appropriate remedy
to ensure that the claimant lives free of nuisance. After all, the Supreme Court in Barr v Biffa Waste
Services Ltd. [2012] did announce that the private individual does continue to “retain his valuable
common law right to enjoy his private property without unreasonable interference.”
 Further, as argued above, if one is unable to prove that there was unreasonable interference
coming from his neighbour’s property, he/she may have to go on living with the disturbance he
complains of. In Barr, the Supreme Court took the view that ‘unduly interfering with his neighbour in
the comfortable and convenient enjoyment of land’ would amount to nuisance. The question to be
asked was whether an ordinary person could reasonably be expected to put up with the disturbance
coming from the defendant’s property. Relevant to this question are the following rules: (i) There is
no absolute standard; it is a question of degree whether the interference is sufficiently serious and
that is to be decided by reference to all the circumstances of the case; (ii) There must be a real
interference with the comfort or convenience of living, according to the standards of the average man
… not merely according to elegant or dainty modes and habits of living, but according to plain and
sober and simple notions among the English people; (iii) The character of the neighbourhood area
must be taken into account; (iv) The duration of an interference is an element in assessing its
actionability, but it is not a decisive factor. Applying these considerations, it was found that the
noxious odours and foul smells from the Biffa Waste’s Services’ landfill site were undue and
unreasonable and amounted to nuisance. In the circumstances, it is submitted that one may truly live
free of nuisance if he/she is able to show unreasonable interference by a his/her neighbour by the
standards, test and guidelines from Barr.

Finally, a claimant who unfortunately has been tolerating nuisance for many years, may in the
end have to continue tolerating the same if the defendant is able to raise either one of two defences
recognized under private nuisance law. The first is the defence of statutory authority. Where the
neighbour’s actions are within the scope of a statute, they are authorised by Act of Parliament and
cannot be challenged by the courts. In Allen v Gulf Oil Refining Ltd (1981), the HOL held that where
the activities undertaken were implicitly authorised by an Act of Parliament, nuisances would be
inevitable and thus, the defendants would have a good defence to the plaintiff’s action. Barr also
provides that statutory authority may be a defence to an action in nuisance, but only if statutory
authority to commit a nuisance is expressed or necessarily implied. Implied authority will apply where
a statute authorises the user of land in a way which will ‘inevitably’ involve a nuisance, even if every
reasonable precaution is taken.

Where a claimant has tolerated a nuisance for a minimum of twenty years, without objecting
to it, he loses his legal right to take action to stop the nuisance from the twenty-first year onwards.
This is known as the ‘prescription’ rule which serves as a defence to defendants whose nuisance was
not objected to for up to twenty years. In Sturges v Bridgman (1879), it was held that time starts to
run not when the defendant begins his activity, but when it begins to interfere with the claimant. The
defence was unsuccessful in this case. A prescription can be described as a deemed right to commit
nuisance and as such, a claimant may waive/lose his right to live free of nuisance for the rest of his
years at his property, if he fails to bring action to stop nuisance by his neighbour within the twenty-
year period. It must be noted, however, that planning permits, public benefit and coming to nuisance
are not defences and may not defeat a claimant’s right to live free of nuisance: Barr; Coventry.

The two remedies often granted to claimants of successful nuisance actions are damages and
injunctions. Injunctions are usually granted to stop a nuisance from continuing, such as in Coventry.
There are times when judges may not injunct a defendant’s activity, either because it would be
impractical or unduly harsh or punitive to do so. In such circumstances, courts may award damages in
lieu of an injunction and the claimant, arguably, would be forced to accept compensation and continue
living with the nuisance from his neighbour’s property (Miller v Jackson (1977)). Here, there simply is
no winning for the claimant, and there is no living free of nuisance, even if the claimant did possess
legal interest in his property and was able to show damage and unreasonable interference to the
enjoyment of his property.
 In view of the above discussion, it does appear today that persons without proprietary interest
would face difficulty asserting their right to live free of nuisance. There is, however, hope for claimants
without the type of interest to succeed in an action, taking into account their rights under the ECHR.
In any event as demonstrated in the discussion on other requirements, a number of hurdles must be
overcome in order to successfully defend the private right of enjoyment of property. In addition, a
claimant’s right and chances of truly living free of a nuisance also depend ultimately on questions such
as that of damage, reasonableness of interference, statutory authority, prescription and whether the
grant of an injunction is feasible in the circumstances.

Sample 2:

2019 (ZB) Q5
‘There is no compelling reason for retaining the rule in Rylands v Fletcher as a separate and distinct
tort.’ Discuss.

2015 (ZA) Q1
‘The Rule in Rylands v Fletcher (1868) is simply one aspect of the general tort of nuisance.’ Discuss.

Suggested Answer:

The quote in question pertains to the rule on tortious liability for escapes from land,
formulated in the case of Rylands v Fletcher (1868). What is implied is that the rule serves no fruitful
purpose as a distinct concept. The contention implied in the statement in question is that the rule adds
nothing new that is not already adequately covered by the principles of private nuisance law. The
candidate will evaluate the truth of this contention in light of the origins of the rule, its characteristics,
and the conditions for liability compared with private nuisance and negligence.

The rule in Rylands v Fletcher dates back to the Industrial Revolution, and was intended to
provide redress for damage caused by increasing industrialization. According to Blackburn J, the rule
in Rylands v Fletcher comes into play when a person brings onto his land, something which is likely
cause harm to a neighbouring land if it escapes. Liability will follow where such accumulation on land
results in damage to surrounding environment and property. Theoretically, liability is premised on the
notion that danger from harmful and unnatural substances have to be confined to one’s own premise.
Industrial benefit to one party, gained at the expense of another’s property is not permissible. Where
damage is caused, the industrialist is prima facie answerable. In recent years, the idea contained in the
given quote has prompted questions as to whether the rule in R v F does in fact have any significance
in modern Tort Law. There is further debate as to whether the rule is still needed following judicial
comments as to its nature and its abolition in Australia. Judges have identified numerous instances in
which the application of the Rule overlaps with that of private nuisance and negligence. Also, judges
have pointed out that the rule has only been used very rarely, and most of the time, the principles of
private nuisance have been sufficient to determine liability for damage arising out of hazardous use of
land. Notwithstanding, the House of Lords in Transco plc v Stockport Metropolitan BC (2004)
maintained that the rule still has a role to play.

Traditionally, Rylands was considered to impose strict liability but over the years, elements of
fault-based liability have been introduced (Cambridge Water v Eastern Counties Leather Plc. (1994)).
In terms of its characteristics, the rule has been described as being a “subset of private nuisance” and
as such, it bore the same characteristics as private nuisance. The rule applies in relation only to land-
related interests and it followed that any party seeking redress would have to possess proprietary
interest to sue. Claims are only allowed for property damage or interference to use and enjoyment of
land, and personal injuries are not recoverable Transco.
 For liability under this rule, the defendant had to have accumulated something on its land
which amounts to a non-natural use of the land. Anything that was present on the land through natural
means would not attract liability: Giles v Walker (1980). Originally, only special use which brought
increased danger and not use which is proper for the general benefit of the community, would be
capable of liability under the rule: Rickards v Lothian (1913). As the years progressed, interpretation
of what would constitute ‘non-natural use’ grew more ambiguous and there were noticeable signs of
judicial inconsistency. For instance, in British Celanese v A.H. Hunt (1969), it was held that
accumulation of aluminum foils on the defendant’s factory premise was not an unnatural use of land
since the factory created jobs for the community. Public benefit could render a hazardous activity
perfectly natural, in light of the British Celanese interpretation.

This was later doubted in Cambridge Water Co. Ltd v Eastern Counties Leather plc (1994).
Lord Goff stated that creation of employment in itself, does not make a non-natural, ultra-hazardous
activity, a natural one. This view was affirmed by Lord Bingham in Transo where it was held that it was
preferable to apply a test of extraordinary and unusual use, considering the time and place. The
candidate submits, however, that the introduction of phrases like “extraordinary and unusual” and
“ultra-hazardous activities” on the topic of “non-natural use” only serves to further complicate and
confuse. Lord Hoffman suggested, “A useful guide in deciding whether the risk was created by a “non-
natural user” of land is to ask whether the damage which eventuated was something against which
the occupier could reasonably be expected to insure himself…” It was suggested that if the particular
damage was insured, then it would most likely follow that the use of land that caused that damage
could not have been extraordinary, unusual or unnatural. The candidate however submits that there
are doubts as to the usefulness of this guide today. Most insurers of industrial damage are prepared
to offer coverage for all kinds of damage that may arise, in exchange for higher premiums. Very few
types of damage are uninsured today, and as such fewer types of damage would constitute “non-
natural use” on the defendant’s part today. The kind of situations envisaged by Blackburn J to fall
within the scope of the rule would today easily escape liability. What would once be a hazard to the
environment or the neighbour’s property is highly likely to be accepted as a natural occurrence on land
today. Industrialization is unstoppable and is more of a norm/necessity today than ever before. Judges
are less likely to penalize those who cause damage under the rule today with the present extent and
availability of insurance. For this first reason, the candidate submits that the statement in question is
after all true. The rule in R v F is not particularly helpful anymore.

The thing accumulated also has to be capable of causing mischief if it escapes. ‘Escape’ was
defined as, ‘‘movement of the harmful substance from a place where the defendant has occupation
or control over to a place outside his occupation or control’’: Read v Lyons (1947). Next according to
Lord Goff in Cambridge Water, only foreseeable harm would be recoverable, as, following The Wagon
Mound (No.2) (1967), “… if a plaintiff in ordinary circumstances is only able to claim damages in
respect of personal injuries where he can prove foreseeability on the part of the defendant, it is difficult
to see why in common justice, he should be in a stronger position to claim damages for interference
to … land where the defendant was unable to foresee such damage.” The rule is not actionable per se,
and as such actual damage, usually property damage is necessary for liability and compensation. And
the said damage cannot be too remote.

It can be seen from the discussion so far, that the conditions for liability under the rule in R v
F bear differences from that of private nuisance and negligence. A claimant in a negligence action must
prove that he is owed a legal duty of care, that the duty was breached, and that the said breach caused
his damage/injury: Lochgelly Iron v McMullan (1934). On the other hand, under private nuisance, the
claimant has to prove that the interference to his enjoyment of land brought about by the defendant’s
use of his land, was unreasonable: Hunter v Canary Wharf (1997). Apart from these differences,
where damages are sought as a remedy, the obvious similarity between the rule in R v F and negligence
as well as private nuisance, is that damage/injury has to be reasonably foreseeable and not too
remote. In this regard, all three concepts are fault-based in that proof of fault (in the form of
foreseeability of harm) is necessary to justify an award of damages. Had the rule in R v F remained as
a strict liability concept, it would be radically different from negligence and private nuisance, and
would offer claimants an invaluable advantage as far as compensation goes. This, however, is an
impossibility today given Lord Goff’s speech in Cambridge Water. Accordingly, is it submitted on this
second premise, that the candidate favours the statement in question. The rule in R v F is no different
from private nuisance, and negligence for that matter.

The general defences of volenti, contributory negligence, and statutory authority are
applicable to R v F claims along with the related defences of common benefit and default of the
claimant, and other specific defences such as act of stranger and act of God. A defendant will not be
liable where the damage is done by a third party over whom the defendant has no control. However,
as per Lord Jenkins in Perry v Kendricks Transport Ltd, where a defendant avoids liability under R v F
because the harm was caused by the act if a stranger, there may be nevertheless be liability for
negligence if the act of the stranger was such that the defendant should have foreseen it and taken
precautions against it. This is another reason for arguing that the rule in R v F doesn’t assist claimants
and is of little worth to the compensation culture promoted by Tort Law. Once again there appears to
be little assistance offiered by the rule in R v F.

Lord Bingham in Transco described the rule as a sub-species of private nuisance, explaining
that the rule has its origins in nuisance. In R v F itself, the claimants relied almost exclusively on
authorities from the law of nuisance. Lord Hoffman in Transco pointed out that the advocates in
Transco could not find any reported case since the second world war in which anyone had succeeded
in a claim under the rule. Professor Newark remarked that a misappreciation of the boundaries
between private nuisance and negligence have led some judges to see the rule in R v F as dealing with
a different problem altogether. In truth, the rule in R v F is simply a reiteration of the essence of private
nuisance in circumstances involving isolated escapes: Lord Goff in Cambridge Water. It ensued that in
Cambridge Water, His Lordship refused to elevate the rule to the status of “independent principle of
law” for extra hazardous activities, arguing that such liability has not been established as a general
legal theory even in the USA. Murphy and Nolan in 2005 summed up this line of thinking and
concluded that the only thing unique about the rule was that it was capable of affording liability in
cases where there was a one-time escape from land. However, this is overshadowed by the fact that
the tort of private nuisance is also capable of affording liability in similar circumstances. In British
Celanese, it had been pointed out that there was no bar in bringing a private nuisance action in respect
of an isolated escape, and even a one-off escape could invite liability under private nuisance, as long
as it is found to unreasonable in the circumstances (Barr v Biffa Waste Services (2012); British
Celanese).

Additionally, it is submitted that private nuisance goes further than the rule in R v F. It has
greater reach for the purposes of liability. Private nuisance covers damage caused by intangible
escapes such as noise and vibrations (Coventry v Lawrence (2014)) and noxious odours (Barr). The
rule in R v F, however, is confined to the accumulation and escape of a tangible object from land which
is likely to cause damage. In fact, liability can arguably be achieved more easily using the test of
reasonableness alongside common law factors, as is the practice in private nuisance claims. Having to
satisfy multiple requirements under the rule in evidently more onerous, given the difficulty
determining non-natural use. Unsurprisingly, Professor Willem van Boom in 2005 observed that
decisions and subsequent academic writings have exposed the rule in R v F as a faux pas; the rule did
not contain any simple principle and was difficult to apply due to the ‘non-natural’ requirement.

Those who advocate retention of the rule as a separate legal concept insist that the rule is one
of a kind. Lunney & Oliphant explain how there is academic view to the effect that the rule derives
from a wider, medieval legal system of pure strict liability while private nuisance is simply intimately
concerned with protecting interests in land. This distinction is difficult to accept today, seeing as
private nuisance has always been a strict liability concept at heart, and the rule in R v F has now evolved
to become a fault-based concept. Nolan in 2005 argued that unreasonable use of land and non-natural
use of land are two different concepts – ‘unreasonable use’ is concerned with whether the defendant’s
activity on land is tolerable and the focus is on what neighbours may reasonably be expected to put
up with (Barr). ‘Non-natural use’ focuses only on the nature of the defendant’s activity and not the
extent of its interference to the claimant. McHugh J in delivering his dissenting speech in the Australian
case of Burnie Port Authority v General Jones Pty. Ltd. (1996), on the question of whether the rule in
R v F is distinct and should be retained, explained that ‘non-natural use of land’ and ‘negligent use of
land’ are contrasting concepts, and different considerations apply when judging the two. McHugh J
maintained that the rule in R v F is different in character, and negligence cannot absorb its function.
These views suggest that the rule is distinct from private nuisance and negligence.

However, earlier in 1973, Professor Williams was of the opinion that the ‘non-natural use’ test
is akin to unreasonable risk of harm in negligence, for example the factor of magnitude of risk. It is
relevant in determining whether the defendant acted reasonably in negligence, and it is also relevant
in determining whether the defendant’s use of land was non-natural in R v F.

Apart from this, the rule in R v F and negligence share other similarities, namely the
requirement that damage is not too remote, and that claimants in both actions must possess some
standing to sue. It is arguable that the requirement of proprietary interest to sue under the rule is
comparable to the requirement of a legal duty of care in negligence, as both may somewhat be seen
as a requiring the claimant to show that he has some legal basis or right in law to seek redress. In view
of the similarities, the candidate submits that there would be no use in retaining both the rule in R v
F and negligence as concurrent principles of liability. In fact, one may argue that negligence should be
preferred over the rule in R v F since under negligence, the claimant may claim not only for property
damage but for death and personal injury. Claims for personal injury and death would not be permitted
under the rule since they are personal in nature and not proprietary, and the rule deals only with
interests in land: Hunter; Transco. Negligence would also be the preferred concept for liability since
by force of precedent, the law of negligence is more settled, widely used and defined in terms of the
conditions for liability. The principles of liability under the rule, especially ‘non-natural use’ is arguably
in need of much more clarification.

At this juncture, the majority ruling of the Australian High in Burnie Port Authority is pertinent.
The Court ruled that “the elements of accumulation of something dangerous and of non-natural use
are obscure… it is difficult to achieve liability under the rule – a certain threshold of danger must be
exceeded before there will be liability.” The Australian High Court held that the rule in R v F had become
obsolete and has clearly been absorbed by the principles of ordinary negligence. As a result, the
Australian jurisdiction has since abolished the rule in R v F and uses the negligence law and/or private
nuisance law when adjudicating on isolated dangerous escapes. The English jurisdiction is yet to follow
suit. Unlike the Australian judiciary, the English judiciary will not abandon the rule, accepting it as still
a valuable part of the common law of torts. The HOL in Transco unanimously took this view, and
criticized Burnie Port Authority. Lord Walker in Transco stated that it would be premature to say that
the rule has become obsolete and Lord Bingham argued that the rule still serves a useful purpose even
though it is applicable to limited cases. To abolish the rule would create a vacuum in common law. Lord
Hoffman opined that establishing the rule is a distinct tort could mark the beginning of ‘enterprise
liability’ – a policy that ensures that the “cost” of a non-natural use of land (causing damage to
neighbouring property) would be internalized, in that it would be borne by the offending defendant
itself. In any event, Lord Hoffman stressed that instead of abolishing the rule, it perhaps should be
unified with strict statutory liability, with considerations as to insurability being incorporated into
statutory provisions. Lord Bingham was of the view that it is not up to judges to abolish the rule;
extending the rule or abolishing is Parliament’s responsibility. Murphy in 2004 lends support to this
view, arguing that “the rule is a useful residual mechanism for securing environmental protection by
individuals affected by harmful escapes from polluting heavyweight industrialists.” It is arguably
undeniable that there may instances in which a court may find that the interference to the claimant’s
use of land was reasonable, but that the defendant’s use of his land in the same instance was not
natural. If such an instance arise, retention of the rule would prove to be a wise move. Indeed, in
Northumbrian Water Ltd. V Sir Robert McAlpine Ltd. (2014) the Court of Appeal found that the kind
of damage suffered could not be claimed under private nuisance or negligence, and that the claim
could not have succeeded without proving fault and non-natural use. The facts brought the claim
within the ambit of the rule in R v F. Even though there is contention that private nuisance is equally
competent to deal with cases of isolated escapes from land, there are opinions to the contrary.
Professor Newark in The Boundaries of Nuisance 1949 said that nuisance is the more desirable area
of law for continuing interference, and not isolated, one-time escapes.

The candidate however takes the view that the principles of private nuisance have greater
reach and are capable of catching more forms of interference than the rule in R v F. Private nuisance
is able to establish liability even for one-time interferences (Sedleigh-Denfield v O’Callaghan (1940);
British Celanese). Further, in Anglian Water Services v Crawshaw Robbins Ltd. (2001) Stanley Burton
J said: “A single act which caused a stench to come onto a neighbour’s land, for example by damaging
a pipe carrying noxious gas, would constitute an actionable nuisance…”. It is doubtful whether it would
support a claim under the rule or negligence for that matter. It is submitted that the combined
existence of private nuisance and negligence are more than enough to cater to the kind of disputes
that would usually fall under the rule. There are too many uncertainties and complexities associated
with the rule that its retention appears to be more of a hassle than help. The candidate sees no need
for retention of the rule as a residual liability concept given the problems with the ‘non-natural use’
requirement, and prefers the adoption of statutory liability for industrial activities that are hazardous.
Per the Law Commission on Civil Liability for Dangerous Activities 1970, the candidate doubts the
necessity for the rule, and submits that any benefit of the rule, whether it’s flexibility or individuality
would be outweighed by the difficulty of applying the rule.
V. PART FIVE: DEFAMATION

Defamation (Chapter 13)

Problem Questions

Sample 1:

2019 (ZA) Q7
For some weeks rumours have been circulating at the University of Southmoor that a number of the
lecturers on the small joint honours Astrophysics and Needlework course have been having sexual
affairs with students, although no individual lecturers or students have been identified. When the final
examination marks are published, Nancy gets the top first, and is awarded the Ondaatje Prize. Olu,
another student, feels that he should have got the prize, and is convinced that Nancy must have been
having an affair with Professor Corelli, who has always had a bad reputation for flirting with his
students. One day Olu approaches Professor Corelli in the queue for coffee after a lecture, and
speaking loudly, accuses him of being a hopeless lecturer, of having an affair with Nancy, and of bias
in marking the examinations. In fact, despite his reputation, Professor Corelli is not having an affair
with Nancy (although one of his colleagues is) and he has been strictly professional in marking the
examinations. Olu then writes to the Vice-Chancellor of the University complaining of the standard of
lecturing, and indicating his belief that one of the lecturers is having an affair with a student, and that
this is seriously affecting the good reputation of the University. Olu also writes the following letter to
The Voice, the campus newspaper, which publishes it in its weekly edition: ‘We have all heard that
one of the Astrophysics and Needlework lecturers is paying particular interest to the female students,
one of whom has gone on to do particularly well. There are rumours that her success is due to her
physical charms and not her intellectual ability. I, however, wish to make it clear that I do not believe
these rumours for a moment.’ Advise Professor Corelli and his colleagues in the Astrophysics and
Needlework Department.

Suggested Answer:

In the present question, statements have been made to potentially injure the reputation of
Prof. C (PC) & his colleagues, thus the appropriate cause of action will lie in defamation. Defamation
is the branch of tort that gives redress where there has been a false and defamatory publication about
the claimant, that results in serious harm to the claimant’s reputation. PC & his colleagues are the
claimants since the publications all have a tendency to harm their reputation. Although the question
states to advise PC & colleagues, N is also potentially a claimant. However, the answer will focus on
PC & colleagues. They are advised to bring claims against (i) O and (ii) The Voice as these are the parties
who made publications in different ways. The causes of action arising from the facts are:
i) PC v O – spoken words in coffee queue (“hopeless lecturer, having an affair with N & bias in
marking)
ii) PC & Colleagues v O – letter to VC (“standard of lecturing, belief that one lecturer is having an
affair, they are affecting university’s reputation)
iii) PC & Colleagues v O – letter to TV (one lecturer is paying interest to a female student, her
success is due to her charms) & the republication by TV

i) PC v O:

In relation to the words uttered accusing PC of being a “hopeless lecturer, having an affair
with Nancy and being biased in marking examinations”, it is submitted that these words amount to
slander. English law differentiates between libels and slanders. In Youssoupoff v MGM (1934), it was
held that libels are publications that are more permanent in nature, and are considered to be more
damaging. As such, libels have always enjoyed a presumption of damage and the claimant is not
required to prove damage. Slanders, however, are considered to be more transient in nature, and are
regarded as less harmful. Because of this, claimants suing in relation to slanders are required to prove
‘special damage’, such as in the form of a job loss, income loss or the loss of hospitality of friends
(Davies v Solomon (1871). Some forms of slander, however, are exceptions to this rule, such as where
a statement discredits the claimant in his professional capacity, implying him to be unfit or
incompetent professionally (S2 Defamation Act 1996). Another exception to the rule is where the
statement suggests that the claimant committed a criminal office punishable by imprisonment (Gray
v Jones (1939). Two older exceptions to the slander rule, i.e. statements implying that the claimant
was an unchaste or adulterous woman (under the old Slander of Woman Act 1891), and statements
suggesting that the claimant has a contagious disease have been repealed/overruled by the new S14
Defamation Act 2013. These types of statements today require proof of damage. On the facts, since
O’s words were spoken and since they imply that PC is unfit or incompetent professionally, these
would fall within the first exception that does not require proof of damage. These spoken words are
actionable and PC is advised that the claim may proceed in the absence of special damage.

Next, PC is advised that he would have to satisfy the requirement of ‘serious harm’ in S1(1)
D.A. 2013. S1(1) provides that a ‘statement is defamatory if it has caused or is likely to cause serious
harm.’ The ‘serious harm’ requirement was added by Parliament in response to judicial opinions that
it was an abuse of process to allow claims where the defendant is able to show that there was no
serious harm to the claimant’s reputation (Jameel v Dow Jones (2005)) and that a threshold of serious
harm was required to justify imposing liability (Thornton v Telegraph Media Group (2011). Further,
recently in Theedom v Nourish Training (2015), on the present interpretation and application of S1(1),
the court held that the serious harm requirement is to be satisfied in addition to the requirement of
defamatory meaning. ‘Serious harm’ has to be proven as a fact, by producing evidence of actual harm,
or by substantiating the inference that harm is likely. This is to be treated as a threshold requirement,
in that, claims must meet the minimum level of serious harm to succeed. The court found that where
a statement was made to a substantial audience, by a reliable author, containing serious allegations,
serious harm could be inferred. As to whether serious harm has been caused, or is likely on the present
facts, an analogy may be drawn between the circumstances of O’s spoken words, and the making of
statements on Twitter, in that there was presumably an ‘audience’ in the coffee queue who would
have heard O’s words and could possible cause the said words to “go viral”. In circumstances where
statements could easily “go viral”, courts have found that serious harm was likely: Cairns v Modi
(2012), Munroe v Hopkins (2017). Further, in Lachaux v Independent Print (2019), the SC clarified
that whether or not serious harm was caused can be determined by looking at the “actual impact of
the words, combined with their inherent tendency to cause harm.” The SC was also mindful of the
claimant’s existing professional reputation. Applying these to the facts, O’s words are likely to cause
serious harm. The facts are silent as to the aftermath of O’s loud accusations, but it can be concluded
that many would have heard O’s words and are likely to spread them. Further given PC’s existing
reputation as a professor, it is likely that O’s words spoken loudly would result in a strong inference
of harm.

PC must now go on to prove that the statements made were defamatory in meaning. In Lewis
v Daily Telegraph (1964), it was held that the courts will examine the plain, natural and literal meaning
of words, to determine if a right-thinking member of society will infer defamatory meaning. As for the
test for defamatory meaning, Lord Atkin in Sim v Stretch (1936), stated that defamatory meaning will
be found where the words used, “tend to lower the claimant in the minds of right-thinking members
of society in general, and in particular, cause the claimant to be regarded with feelings of hatred,
contempt and ridicule.” The question on the facts, therefore, would be, would PC have been lowered
in the minds of those who heard O’s words, resulting in him being regarded with feelings of contempt
and ridicule. O’s words, in their literal meaning are clearly defamatory. To say of a university professor,
that he is having an affair with a student, biased in marking examinations and is hopeless as a lecturer
would all in a literal sense be highly defamatory. Words could be defamatory of a professional person
even if they did not impute any moral fault or defect of character. This was upheld in Drummond-
Jackson v British Medical Association [1970] where publication about a dentist using dangerous
techniques could satisfy the ‘defamatory meaning’ requirement and be considered serious
defamation. Thus, where words go further to impute moral fault and defect of character, they would
certainly be seriously defamatory and damaging. Additionally, O’s words taken together with the bad
reputation about PC flirting with students and rumours about sexual affairs between professors and
students, would lead others to take O’s words as confirming, by way of innuendo, that PC is both
incompetent and unprofessional. One imputation attacks him personally (character), and the other
attacks him professionally (as a lecturer). These defamatory meanings could certainly be made out
from O’s statements.

PC will then have to go on to satisfy the requirement of reference. In Morgan v Odhams Press
Ltd (1971) it was held that as long as a reasonable reader (or listener in the present case), would infer
or conclude that the defamatory remarks were being made about the claimant, the reference
requirement is satisfied. It is undeniable on the facts, that those who heard O’s words at the time
would certainly have understood the accusations as referring to PC. O uttered the defamatory words
directly at PC, in the presence of others. The reference requirement too would clearly be established.

Finally, PC would have to satisfy the requirement of publication. As long as a defamatory

statement is heard by, or reaches a third party other than the claimant, the defamatory statement
would be considered ‘published’ for the purposes of liability. Here, O spoke the words loud and clear
while standing in queue. As such the publication element would also be satisfied without difficulty.
Having satisfied the requirements for defamation, it is submitted that PC would successfully establish
defamation.

It now has to be determined, if any of the defences will assist in defeating O’s liability. Firstly,
O may want to raise the defence of truth, S2 DA 2013. S2(1) provides that it is a defence for the
defendant to show that the imputation conveyed by the defamatory statement was substantially true.
S2(2) and (3) further provide that if the statements convey two or more defamatory imputations, the
defence will not fail if the defendant cannot prove the truth of all imputations. The defence will still
be upheld if the defendant is able to prove the truth of the imputation that carries the “sting” of the
publication. It was previously upheld in Alexander v North Eastern Railway (1865) that as long as the
defendant is able to prove the substantial truth of the implication, the defence will succeed. Where a
publication contains only one main ‘sting’/defamatory imputation, the defendant only needs to prove
the truth of this main sting sufficiently: Williams v Reason (1988). In Williams, the defendant could
not justify the publication that the claimant had inappropriately published a book for profit as an
amateur sportsman, but was able to prove the truth of other instances of the claimant accepting boot
money. It was held that this was sufficient, since the publication contained the general main sting/
imputation that the claimant was guilty of ‘shamateurism’. In proving acceptance of boot money, the
idea of shamateurism was successfully justified and the defence was successful. However, where the
publication contains a number of different allegations, if they all point towards one common sting,
the defendant only needs to justify this common sting, and not every single allegation published:
Khashoggi v IPC Magazine (1986). In this case, even though the defendant could not prove the truth
of the alleged extramarital affair between the claimant and a president of a country resulting in the
claimant’s divorce, the defendant was able to prove other instances of promiscuity, and the court
found that this was sufficient to justify the common sting of promiscuity found in the publication.
However, in Pollypeck v Trelford (1986), the court held that where there were a number of allegations
published in separate articles, even though they all pointed towards a common sting, the defence
failed in this case, even though the defendant was able to prove the truth of one of the allegations.
The defence failed because the allegation which the defendant was able to prove, was not the
allegation which the claimant was suing for, and the defendant was unable to justify the particular
allegation which the claimant sued for. Finally, where a publication contains a number of allegations,
all carrying distinct imputations respectively, the defence will succeed only where the claimant is able
to justify the most harmful “sting” of the publication. This was initially laid down in Grobbelaar v News
Group Newspapers (2002), and is now reflected in S2(2) & (3).

Since O’s words appear to have been expressed as statements of fact, O would seek to rely on
the truth defence, and must prove the substantial truth of imputations. It is submitted that the
statements made by O can be broken down into two main allegations, carrying two main imputations:
(i) that PC is unprofessional because of the affair and being biased in marking examinations and (ii)
that he is incompetent because he is hopeless as a lecturer. Where there are a number of imputations,
such as in the present facts, O would only need to prove the truth of the imputation that contains the
greatest sting. It is argued that of all the imputations made here, the sting lies in the allegation that
PC is unprofessional by having an affair with a student and allowing that affair to influence the marking
of examinations. O would need to prove that this is substantially true. However, it is submitted O
would fail to. The rumours, and any bad reputation for flirting would not be sufficient to justify the
substance of the allegations. Rumours are only rumours. Indeed, the question states that PC is not
having an affair with Nancy and that he has been strictly professional in marking papers. Even if O
could justify the allegation of incompetence, the defence will fail since the allegation of
unprofessionalism carries the sting of the publication and cannot be proven to be true. O may not rely
on S2.

Alternatively, O may want to rely on the S3 DA 2013 defence of honest opinion, arguing that
he was merely expressing his opinion about PC. S3(1) provides that the defendant may rely on ‘honest
opinion’ as a defence if (2) the statement complained of was a statement of opinion, (3) the statement
indicated the basis of the opinion, (4) that an honest person could have held the opinion on the basis
of an existing fact or anything asserted to be a fact. In Wasserman v Freilich (2016), it was held that
the defendant made assertions that the claimant was dishonest, and such assertions were not
supported by facts. In the circumstances, the defence failed. Where the statements were not
expressions of opinion but assertions of fact instead, the proper defence to attempt was the truth
defence and not the opinion defence: Singh v Weayou (2017). It is submitted that O will not be able
to rely on S3 since the basis of his assertions were not indicated, indeed, his assertions appear to lack
basis, and further, since they were asserted as statements of fact and not opinion, he would further
be precluded from relying on the defence. Further in Silkin v Beaverbrook Newspapers (1957) it was
held that an opinion has to be expressed honestly and without malice, and honesty will be determined
based on whether “an honest man, however prejudiced or obstinate his views, was capable of writing
as the defendant did, not because he wanted to harm the claimant.” Also, in Thornton v Telegraph
Media (2011) it was held that the defendant was entitled to rely on the opinion defence if she
correctly described the claimant; then her comment would be upheld as fair because it was based on
correct facts. However, since the defendant had misdescribed the claimant (incorrect factual basis for
opinion), she would not be able to rely on the fair comment defence. Applying these to the facts, O
has wrongly accused PC of having an affair, and this would deprive him of the S3 defence. O was also
upset that he did not win the prize, and Nancy did, and this may additionally show that O’s opinion
may not have been honestly made. Thus, O’s statement lacked correct basis, were assertions of fact,
and were not honestly made. S3 defence will fail in the circumstances.

In the event that O attempts to rely on S4 DA 2013, he would be required to prove that his
expression was on a matter of public interest and that O believed that he was speaking in the interest
of public. When applying this defence, the court is required to take into account all relevant
circumstances. O may have believed that it was necessary for him to “expose” an unprofessional and
incompetent professor for the benefit of all students. However, it is submitted that the manner in
which the statements were made appeared more like an attack rather than a publication made in the
interest of public. It is concluded that the S4 defence will not apply here. The circumstances do not
support the defence.

Lastly, O may also try to rely on the defence of common law qualified privilege, created in
Adam v Ward (1917). This defence is a species of privilege, and is applied in situations where the
person making a statement has an interest or a duty, legal, social or moral, to make it to the person
to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive
it. This reciprocity is necessary for the defence to apply. This defence was applied when a company
director made defamatory statements about the claimant (an employee of the same company) to the
board of directors, arguing that as a director, he was obliged to disclose concerning information about
the claimant: Watt v Longsdon (1930). Recently, in Singh v Weayou (2017), the claimant and
defendant worked at a healthcare provider, with the defendant (intern) reporting to the claimant (his
superior). When the claimant refused the defendant’s request for a shift swap, the defendant sent an
email to the human resources department accusing the claimant of sexual harassment. In an action
for libel, the defendant argued that his statements should be protected by the Adam v Ward qualified
privilege, believing that he had the duty to expose the claimant to the human resources department
and others in the company. The court held that there was evidence of malice on the defendant’s part,
in that the email was no more that the result of a grudge against the claimant for denying the request
for a shift swap. It is submitted O would similarly argue that his statements were made on the basis
of a social or moral duty and other students had the right to know. However, applying Singh v Weayou,
the defence will fail. There is clear evidence of a grudge here and malice will defeat the defence. Also,
the statements were not made through proper channels to the other students.

In the circumstances, PC’s claim against O is likely to succeed since none of the above
defences, or other defences in the DA 2013 will assist O. O will be liable for the statements made in
the coffee queue.

ii) PC & Colleagues v O

In relation to the letter to the VC, firstly since it is a letter, it will be treated as a libel, the law
as discussed above. Claimants will not have to prove damage. Even if no damage was suffered, the
claim may proceeed. Secondly, PC & colleagues will have to prove serious harm based on the law set
out above. For the same reasons argued above, it is submitted that the statements contained in the
letter to the VC are all very likely to cause serious harm, the tendency of the words to cause harm is
great, given the gravity of the accusations. However, given that the statement comes from a student
(may not be regarded as a reliable source) and that it was expressed only to the VC, the size of the
readership is not great, and thus, it could also be argued that serious harm may not be satisfied. It is
likely that the VC will not jump to conclusions and terminate all professors without an investigation.
It is possible that serious harm may not be established after all. Thirdly, as to whether the statements
carry defamatory meaning, the law as discussed above, it is submitted that this requirement will be
satisfied. To state that a professor is having an affair with a student, and to discredit the standard of
lecturing would certainly be defamatory in meaning. Fourthly, as to whether the statement was
published, the law as discussed above applies. This is clearly satisfied, since the letter was sent to the
VC, who did read it. Lastly, the element of reference, however, may not be satisfied on the facts. The
law as stated above applies. The letter does not name each lecturer, but generally refers to the
standard of lecturing as a whole. In Knuppfer v London Express Newspapers (1944) it was held that a
publication that referred to a group, the Young Russia Party in this case, could not be taken as referring
to the leader of the group (the claimant), and as such the claimant failed to establish reference, and
his claim failed. This was because the publication about the YRP stating that it was associated with
fascist idealogy, referred to the group at large which was made up of many participants. There was no
specific pointer to the claimant. Similarly, in Tilbrook v Parr (2012), the defendant published about a
political party being racist, and the claimant as a noted member of the party sued for defamation. The
court held that the article did not specifically refer to the claimant and therefore the claim failed.
Applying the same here, it could be argued that since the letter did not single out PC or any colleague
in particular, reference may not be established. There was also nothing in the publication that would
give a reasonable reader reason to think that the letter singled-out a particular lecturer (Morgan).
However, the facts also state that the joint Astrophysics and Needlework course was a small one.
Where the group defamed is a small one, it was held in Riches v News Group Newspapers (1986) that
reference to a small group would amount to reference to each member of the group. In Riches, a
publication defaming the Banbury CID made up of 11 officers was found to satisfy the reference
requirement to each officer, including the claimant. On this basis, provided it was a small circle of
lecturers teaching on the Astrophysics and Needlework course, each of them may be able to establish
reference. As for PC’s colleague who was indeed having an affair with Nancy, he may argue that the
letter mentioning that one lecturer is having an affair, might suggest that the article was referring to
him. Yet, this would only be possible if the VC had any knowledge beforehand, that this particular
colleague was indeed having an affair. The facts, however state, that although rumors were circulating
about a number of lecturers having affairs, no particular lecturer or student was identified. With this
in mind, the statements in the letter may not be sufficient to lead a reasonable reader to conclude
that the lecturer referred to is PC’s colleague who was having the affair. In the end, all claimants here
would only be able to satisfy this requirement if they form a small number.

If liability is established, it submitted as argued above, the O would once again try to avail
himself to the same defences argued above: truth, honest opinion, public interest and Adam v Ward
common law qualified privilege. It is concluded for the same reasons argued above, that while O will
generally fail to prove the truth of the allegations in relation to the other lecturers, he may do so in
relation to the lecturer who was having an affair with Nancy. Since this allegation carries the greater
sting, he may succeed using the S2 defence in relation to that lecturer alone, but not the others. For
the same reasons argued above, he would fail on the S3 defence, since he made assertions of fact not
supported by evidence. As for the S4 defence, this may be upheld, since there are credible reasons for
believing that the letter to the VC was in the interest of public and that the subject matter was of
public interest to the University as a whole. Finally, for the Adam v Ward defence, as discussed in
Singh, it may be defeated if it can be shown that the letter was motivated by malice.

iii) PC & Colleagues v O & TV

This letter to The Voice, which was republished in the weekly edition of their campus
newspapers, would also be considered libel (both the letter itself, and its reproduction in the campus
newspapers are libels) – for which the claimants will not need to prove any damage. Secondly, the
claimants in relation to this publication will have to prove serious harm. As discussed above, the same
considerations apply. However, in relation to this publication, it is argued that it may not be likely to
cause serious harm. On the one hand, the claimants may argue that sending the letter to TV would
lead to serious harm, since it is foreseeable that the letter will be published, and when it is published,
it will be published to a sizable readership (entire university will read the publication), which means
greater collective harm to the reputation of the claimants. It may also be argued that since the
publication appears in the campus magazine, some may treat it as an authoritative piece of news, and
attach weight to the contents of the publication. If this is accepted, the letter and its republication are
highly likely to cause serious harm. However, it can also be counter-argued that since the letter
indicates that these are only rumours, and that the source (O) doesn’t believe the rumours to be true,
it is possible also that there may be no real damaging consequences from the publication. Indeed, in
Thornton, the court found that readers exercise discretion and their own judgment especially where
the nature and words of the publication leaves them free to do so. In Thornton, where the defendant
as an author, criticized the claimant’s method of journalism, the court found that the publication did
not seriously harm the claimant’s reputation since readers would understand that journalists may
avail themselves to various methods without judging them as dishonest or incompetent. It is thus,
submitted that the serious harm requirement may not be satisfied after all. Indeed, the facts in
question are also silent as to any repercussions following the publication. It is assumed that PC and
his colleagues continue to have their jobs at the university without being undermined in any way. This
would further suggest that the serious harm requirement may not be satisfied.

Thirdly, in relation to the defamatory meaning requirement, O said, “We have all heard that
one of the Astrophysics and Needlework lecturers is paying particular interest to the female students,
one of whom has gone on to do particularly well. There are rumours that her success is due to her
physical charms and not her intellectual ability. I, however, wish to make it clear that I do not believe
these rumours for a moment.” with the law as discussed above, the words definitely carry defamatory
meaning that a professor is dishonourable and unprofessional. Besides, the words taken with ongoing
rumours, and the incident involving O and PC in the coffee queue shortly before the letter’s
publication, defamatory meaning can be said to be satisfied by innuendo. This is where, knowledge of
some existing extrinsic fact, coupled with the imputation from the publication, could lead the reader
to infer defamatory meaning about the claimants as a whole. This was upheld in Tolley v JS Fry & Sons
(1931) and Baturina (2011). The statements clearly suggest that the claimants have acted
unprofessionally & dishonourably (having an affair & allowing the affair to influence grading).
Alternatively, it is possible for the reverse to also be true, i.e. that the manner of writing simply
suggests that all have simply heard that a professor is behaving in an unprofessional and
dishonourable manner, and that rumours are going around to this effect. If the literal meaning of
these words is taken, in the mind of a right-thinking member of society, they may simply be
understood to mean that there is suspicion or reasonable grounds to think a professor is behaving
badly, or simply that there are rumours going around and no more. The fact that the defendants are
publishing that rumours are going around, does not mean that the claimant is guilty of those rumours.
This was upheld in Lewis v Daily Telegraph, where the court found that a publication that states that
the claimant was being investigated by the Fraud Squad did not carry the defamatory implication that
the defedndant was dishonest and fraudulent. If this is applied instead, defamatory meaning will not
be established on the facts. Fourthly, the requirement is also clearly published. When O sent the letter
to TV, and TV republished it, it is submitted that O can be liable for both his communication as well as
the republication.

In Slipper v BBC (1991), affirmed by McManus v Beckham (2001) it was held that where it is
foreseeable that the publication may be repeated, the original publisher may be liable for each repeat
as if it was a fresh publication. Each repeat would give rise to a new cause of action and the first
publisher (original defamer), could be liable repeatedly. This was further affirmed in Loutchansky v
Times Newspapers (2011), where it was held that there could be multiple liability and that there was
no such thing as a ‘single publication’ rule in English law. However, after S8 DA 2013, the original
defamer/first publisher, may be liable for all repeats of the original publication that are the same or
substantially the same, that were made within one year of the first publication. It is submitted that O
may be liable for the republication by TV since it has happened very soon after he sent the letter to
TV. However, at the same time, TV itself would also satisfy the publication requirement, since also
published the letter in its weekly edition. Lastly, in relation to the reference requirement, since the
letter states “one professor” it is likely that not all PC and his colleagues will satisfy the reference
requirement. If the incident involving O and PC in the coffee queue is taken together with this
publication, those who are aware of the incident will probably understand “one professor” to possibly
refer to PC. On the other hand, those who know of PC’s colleague having an actual affair with Nancy,
would probably understand the article to refer to that colleague instead. However, since not all who
read O’s letter published by TV would probably know of the actual affair, and the incident at the coffee
queue, it is highly likely that there isn’t enough in the publication to satisfy the reference requirement.
It will only be satisfied if a reasonable reader would understand the publication to refer to the
particular claimant (Morgan). At the same time, since the letter only talks about one professor, it
would not be right to say that all other professors in the department were referred to. Thus, it is
submitted that the reference element may not be satisfied at all.

Based on the above discussion, the candidate concludes that in relation to O’s letter to TV and
their republication, the claim may fail. The claimants may not be able to prove serious harm,
defamatory meaning, and reference. In any event, if the court finds otherwise, O would want to
defend the claim. O may successfully raise the truth defence in S2 discussed above. The defence would
probably succeed in relation to PC’s colleague who was actually having the affair with Nancy, since
the facts indicate this to be true. However, the truth defence will not succeed in relation to any other
professor in the department, since the facts suggest that only the particular colleague of PC’s was
having the affair. However, in relation to TV, if they were to rely on the truth defence as well, then the
rule on repetition would apply in the sense that TV was repeating O’s letter and must prove the truth
of its contents, and not merely that the words were said by O. Once again, since the allegation
pertaining to the affair is true in relation to PC’s one colleague, the S2 defence will be upheld in
relation to this professor only. However, the fact that O indicates in the letter, that he does not believe
the rumours to be true creates problems, as it would then render the S2 truth defence unsuitable and
irrelevant.

Alternatively, if O were to rely on the S3 honest opinion defence, this is likely to fail since the
statements were expressed as statements of fact and not opinion. O was stating as fact that there was
news about the affair and rumours going around. This is not an expression of opinion, thus the S3
defence will not apply, in light of the law discussed above. As for TV, they may argue that they were
simply publishing the expressions of another. S3(5) states that if the defendant was publishing the
opinion of another, the defence will only be upheld if the defendant can show that the opinion was
indeed held by the other. On the facts, TV would have to prove that they were publishing O’s opinion
about the affair and that O did in fact hold such an opinion. But this would clearly fail on the facts,
since O did indicate that he doesn’t believe the rumours to be true, and indeed did not hold the said
opinion about the affairs. As such TV will fail to rely on this defence too.

Finally, O and TV may want to raise the S4 public interest defence, arguing that it was in the
interest of the entire university to know about the affair and rumours surrounding the same, and that
the subject matter of the publication itself is on a public interest matter. This may be satisfied
irrespective of whether the rumours and question of affair are in fact true: S4(3). It is submitted that
out all possible defences, if O and TV are found liable, this would most likely be the only defence that
may succeed, unless O and TV can also show that the successfully fall within the Adam v Ward
common law qualified privilege defence. It is submitted that this would not be upheld for O since there
is a possibility that the letter is tainted will malice and a grudge against Nancy for winning the award
(Singh). TV as well may not fall within the ambit of Adam v Ward since it is the campus magazine
publisher, and it cannot properly be said that the reciprocity of duty to publish and interest in receiving
the news, necessarily exists between the newspaper and other students. The idea that such reciprocity
existed between the newspapers and readers in general was rejected in Reynolds. Thus, the only
suitable defence with any prospect of success is the S4 defence.
Sample 2:

2017 (ZA) Q2
Tessa and Sasha are identical twin sisters, aged 28. As well as looking exactly alike, they dress and act
alike. They went to the same school and studied at the same university. Only their career paths
differed: Tessa is a journalist, covering celebrity news on a well-known daily newspaper and Sasha
works as an academic in a University law school. The sisters approach you for advice in relation to
three issues:
(a) One of Sasha’s colleagues published a highly condemnatory article in an academic journal about
the falling standards in Law Schools. In the article, he states that Sasha has “neglected the library for
the embarrassing pursuit of the company of celebrities”. This comment was based on a number of
newspaper and television reports in which Tessa was featured. The author of the academic article had
mistaken Sasha for Tessa.
(b) Tessa published pictures on her personal internet blog of a person she thought was the high-profile
model, Denz, entering a drug rehabilitation centre. In fact, the person she thought was Denz was
employed as a cleaner at the centre and bore only a superficial resemblance to Denz.
(c) Tessa’s newspaper published her widely read and damning article about high expense claims made
by senior executives employed at the Cosby Housing Department. It appears that the claims are
without foundation. Uriah, one of the senior executives at Crosby Housing Department, is very
annoyed about this and it has caused him serious embarrassment.
Discuss the issues arising, taking into account any defences that might be advanced.

Suggested Answer:

The facts invite discussion on the law of defamation. The candidate will discuss potential
claims involving Tessa, Sasha, Denz, Uriah and the Cosby Housing Department in light of the statutory
provisions contained in the Defamation Act 2013 (D.A. 2013), alongside accompanying case laws.
Defamation law protects one’s reputation and deals with instances of publications which are untrue
about an individual and tend to cause damage or serious harm to the individual’s reputation.

2(a):
It is advised that Sasha is the potential claimant here and she may bring a claim against her
colleague, the author of the publication in the academic journal. It is important to note here that the
publication is in the form of a ‘libel’, i.e. a statement which is viewed as more permanent in nature and
thus more capable of damaging the claimant’s reputation. In Monson v Tussauds (1864) it was held
that claimants of libels do not have to prove special damage, and that libels are actionable per se.
Sasha will not have to prove special damage on the facts. However, she will have to prove that the
statement published was defamatory in meaning and that it has caused some serious harm to her
reputation, or is likely to. Courts will analyze the imputation in the statement published, to determine
whether the requirement of defamatory meaning and serious harm can be established. Judges
typically examined the literal meaning of words published (Lewis v Daily Telegraph (1963)) to
determine whether the imputation conveyed was capable of lowering the claimant, causing him to be
viewed with contempt or ridicule (Lord Atkin, Sim v Stretch (1936)).

Defamatory meaning could also be discerned by innuendo, such that, the publication coupled
with evidence of relevant facts about the claimant was capable of connoting a defamatory notion
about the claimant: Tolley v JS Fry (1931); Baturina v Times Newspaper (2011)). The standard of
opinion by which the statement would be evaluated would be that of the ordinary, reasonable member
of society: Sim, Byrne v Deane (1937). The issue on the facts, is whether the statement published, that
Sasha has ‘neglected the library for the embarrassing pursuit of the company of celebrities’ is
defamatory in the circumstances. It is argued that the imputation in the statement is that Sasha’s
integrity, honour and professionalism as a law school academic is questionable, and that she has
faltered. It is submitted that for a professional, the publication would certainly lower him/her in the
eyes of society. It is likely that her standing and credibility would now be doubted. Thus, ‘defamatory
meaning’ will be satisfied.

Sasha also has to show that the publication has caused serious harm or is likely to, as required
by S1 D.A. 2013. In Theedom v Nourish Training (2015) it was held that the claimant needs to adduce
evidence to point towards either actual serious harm or a tendency that the claimant’s reputation
would seriously be harmed. In Theedom, it was held that evidence of serious harm could be gathered
from matters such as the extent of the publication, the claimant’s existing reputation, the gravity of
the statement and the nature of the publication. It was also held that injury to feelings would not be
considered ‘serious harm’. The claimant in Theedom successfully proved serious harm by inference.
Later in Lachaux v Independent Print (2019) it was held that even in the absence of proof of special
damage, judges could infer from the statement and the circumstances of the case, that the publication
did in fact cause actual serious harm or that it had a strong tendency to. The court took into account
the claimant’s existing status and profession. Applying these decisions, it is submitted that even though
there is no concrete evidence of serious harm to date, it can be inferred that the publication does
seriously harm Sasha’s reputation and has a tendency to jeopardize her position as an academic. The
readers would arguably be interested academic and affected students. The title of the ‘highly
condemnatory’ publication is ‘falling standards’ and the author was clearly implying that Sasha is an
example of falling standards.

Next, Sasha would also have to prove that the statement referred to her, and that it was
published. On the facts, even though her colleague may argue that he mistook the twins, as long as
the readers will understand the article to refer to Sasha, reference will be established: Morgan v
Odhams Press Ltd (1971). It should not matter that the author had in fact mistaken Tessa for Sasha or
that Tessa and Sasha, look, dress and behave alike. The publication does appear to name Sasha and as
far as readers are concerned, they may not know of her twin Tessa, or that the author was mistaken,
and may associate the defamatory statements with Sasha. Since the publication was also about falling
standards in Law Schools and Sasha is a law academic, it is likely that readers will associate Sasha with
the defamatory remarks. As such, Sasha would be able to show that the statement did refer to her.
Also, since the article does appear in an academic journal, the requirement that the defamatory
statement must have published would also be satisfied. It would now be necessary to consider the
defences that may be raised.

Sasha’s colleague would seek to rely on the defence of peer reviewed statements published in
a scientific or academic journal, S6 D.A. 2013. S6 provides that publications relating to scientific and
academic matters would enjoy qualified privilege provided they have been reviewed by and
independent expert. Evidence of malice would defeat the privilege and the publisher could lose
protection under S6. This defence derives from the decision in BCA v Singh (2011) in which it was held
that publications relating to scientific and academic matters express value judgments on matters which
are of high educational value and truly informative to the public. Such publications were welcomed as
being necessary and thus deserving of the status of privilege. In BCA, the defendant criticized the
British Chiropractic Association’s assertions that chiropractic treatments are full of benefits. The
defendant alleged in his publication that there was “not a jot of evidence” to substantiate the
Chiropractic Associations’ claims. Having been decided before the D.A. 2013, the court applied the fair
comment defence instead and the defendant avoided liability.

In Sasha’s case, however, although the tone of the publication is similarly critical and questions
the integrity of the law schools, the subject matter of the publication does not seem to touch on any
issue of science, medicine, or legal theory. It is simply critical of a group of people and can even be
said to be somewhat personal, with the colleague targeting Sasha in the article. It is also questionable
whether there may be a hint of malice in the publication. In the circumstances, the candidate is of the
opinion that the S6 defence cannot apply here. It is likely that the colleague will not fall within the
protection in S6.

Alternatively, the colleague may try to rely on the defence of ‘Honest Opinion’ in S3 DA 2013.
This section provides that the honest opinion defence will apply provided the statement published
was a statement of opinion, that an honest person could have held the same opinion based on an
existing fact or anything asserted to be a fact, that the opinion was in fact held by the defendant and
where the defendant was publishing the opinion of another, that the other did in fact hold such
opinion. While the colleague may argue that he was merely expressing his opinion on the current state
of the standards in law schools, and while he as indicated a general basis for forming such opinion, it
is submitted that the defence will fail as it cannot be said to be made with ‘honesty’, in the sense that
the fact on which the comment was based appears to be untrue and mistaken. The colleague may have
thought that it was Sasha in the television and newspaper reports seen in the company of celebrities,
when in fact it was Tessa, and there is no other evidence to support the conclusion that Sasha has
contributed to the falling standards in law schools as alleged. The comment made is thus unfair and
the defence would probably fail. In Kemsley v Foot (1952), it was stressed that the cornerstone of this
defence was honesty and fairness. Sasha’s colleague will fail to substantiate factual basis for his
opinion, rendering in unfair and dishonest. Applying the recent decision in Wasserman v Freilich
(2016) it is also possible to challenge the reliance on S3 on the basis that the colleague was not truly
expressing an opinion but stating as a fact that Sasha contributes to ‘falling standards’ in the law
school. Where the expression was framed as a statement of fact, S3 will not shield the defendant.

He may then try to rely on the ‘Public Interest’ defence contained in S4 DA 2013. The section
provides that it would a defence for a defendant to show that the publication was on a matter of public
interest and that he believed it to be so. If he did in fact publish about a dispute involving the claimant,
so long as he publishes accurately about the dispute itself, his failure to verify the truth of the
imputation will not remove him from the ambit of the S4. It is submitted, taking into account the
circumstances, the tone of the publication and its purpose, it looks as though it is not after all on a
matter of concern to the public, as it arguably affects only those reading law in the particular university.
As such, this defence too is likely to fail, and Sasha’s colleague will be found liable to pay compensation.

2 (b):
Denz is advised that he may sue Tessa for the photos on her personal blog, that appear to
portray him as entering a drug rehabilitation center. Since the photos appear in electronic form, they
can be said to be libels and as such Denz will not have to prove damage (Godfrey v Demon Internet
(1999)). He would, however, have to satisfy the same requirements discussed above for Sasha, namely,
(i) serious harm, (ii) defamatory meaning, (iii) reference and (iv) publication It is submitted that the
requirement of publication will clearly be satisfied.

However, reference may be problematic here. If Tessa had posted only a photo of the cleaner
without mentioning Denz’s name in the post, or referring to Denz’s identify, then it is likely that
reference will not be established. The situation will fall within the category of reference by photo and
not words, and in the absence of any words referring to Denz, it is likely that reference will be deemed
innocent. Moreover, the photo of the cleaner only superficially resembles Denz. O’Shea v MGN (2001)
will be relevant here. In O’Shea, the defendant published about an adult internet service and put up
photos of a model who looked very much like the claimant. Even though the claimant was able to
adduce evidence that some mistook the model for the claimant, reference was deemed not
established. In the circumstances, Denz is also likely to fail in establishing reference. It is unclear from
the question, whether anything else was mentioned in Tessa’s blog, such as any statements or captions
below the photos, to suggest that she was in fact publishing about Denz. Since the photos were in fact
about a cleaner who worked at the center, and not Denz, it is unlikely that reference will be established.
If, however, the image was accompanied by Denz’s name, description and if the post links Denz’ to the
photo, then reference will be established.

With regard to the requirement of defamatory meaning arising from pictures, in Charleston v
NGN (1995), it was held that pictures may depict a certain defamatory meaning but the court will look
at the entire publication and not just what is implied by the pictures. it is submitted that if readers
understand the blog post to refer to Denz and provided the photo comes with a commentary that
suggests Denz’s has a drug problem, he may establish defamatory meaning. It can be argued that the
photo paints him in bad light. Alternatively, the reverse imputation is also possible, i.e. that even
though Denz may have or have had a drug problem, he is acting responsibly in trying rehabilitate
himself. The candidate submits, however, that the former is more likely than the latter. Being a well-
known model, the photo is likely to be taken as damning, not flattering.

In relation to the requirement of serious harm, it is submitted that the availability of the
material on the Internet points towards extensive publication. In Cairns v Modi (2012) it was held that
the potential of a tweet to ‘go viral’ points towards the possibility of the publication causing serious
damage to the reputation of a well-known person. Further, in Munroe v Hopkins (2017) it was held
that the defendant’s tweet that the claimant (a celebrity) did not respect war memorials, did cause
serious harm to her reputation because of extensive readership. Tessa would argue that the image was
posted on her personal blog. However, it is submitted that since Tessa is a journalist who covers
celebrity reports in a well-known newspaper, her blog is likely to be accessed by many. Publication is
likely to be substantial here, thus increasing the tendency of serious harm. Since Denz is a high-profile
model, it is argued that he must be well-known, have a fan following and an existing reputation. A
picture of him entering a drug rehabilitation could prove highly damaging and may even affect his
ability to secure future modeling contracts. As such he arguably would satisfy S1(1).

Tessa may argue the defence available to website operators in S5 DA 2013. S5 provides that it
would be a defence for a website operator to show that he/she did not post the comment alleged to
be defamatory. This statutory position follows the law laid down in Tamiz v Google (2013) where the
claimant was defamed through a blog post on ‘Blogger’. The post was anonymous and as such the
claimant requested that Google take down the post given its defamatory nature. Despite notification,
Google failed to act promptly. The court found that Google could be liable even though it did not post
the comment. Where the party who posted could not be identified and the website operator is
informed, it has to remove the offending post. However, Google escaped liability on the basis that the
publication was minimal and damage to reputation was trivial.

Since Tessa is the party who posted on her own personal blog, she can be said to be both the
primary publisher and the operator of her own website. She is clearly aware of the defamatory nature
of the post having posted it herself, and as such may not rely on S5 as a defence. Applying Tamiz, Tessa
would remain liable. S5 is intended to protect website operators and internet service providers who
did not post the defamatory material. Since Tessa did post the defamatory blog on her own personal
blog, she cannot escape liability. As a whole, Tessa’s liability in relation to Denz’s claim is subject to the
court’s finding on reference. If indeed it is found in Denz’s favour, Tessa is likely to be liable to Denz, to
pay compensation and to take down the post. The cleaner, whose photo appears on Tessa’s personal
blog, presumably without his permission, may want to bring an action against Tessa. It is submitted,
however, that since the photo does not portray anything untrue about the cleaner, he would not be
able to sue under defamation law. Instead, he may want to pursue an action under the tort of invasion
of privacy.
2 (c):
In the present circumstances, both the Cosby Housing Department (CHD’) and Uriah may want
to sue Tessa for defamation. The publication is in the form of libel and as such damage need not be
proven. The same requirements mentioned above would apply, i.e. (i) serious harm, (ii) defamatory
meaning, (iii) reference and (iv) publication. It is important to first deal with the issue of CHD being a
public body. In Derbyshire County Council v Times Newspapers (1993), it was held that a public body
may not sue for damage to reputation under defamation, in order to allow for free and frank public
scrutiny, to uphold the right of democracy and to ensure accountability of government. However, a
public official who is individually defamed may bring action. It is thus submitted that the CHD may not
sue but Uriah may.

In relation to the reference requirement, Tessa’s article seems to refer to ‘senior executives’
making high expense claims, and does not seem to name any senior executive. In Riches v NGN (1986),
the defendant published about the incompetence of the Banbury Central Intelligence Department.
Since the department comprised a small number of only eleven members, it was held that reference
was established by each of the eleven members. However, in Tilbrook v Parr (2012) the defendant
published about a political party acting in a racist fashion. The claimant, a member of the party sued
for defamation but failed, since the article did not name him. Tessa wrote about the senior executives
of the CHD. Even though Uriah’s name was not mentioned, applying Riches, it is argued that senior
executives in any government department usually make up a small class of people and most other
public servants do not fall within the title of ‘senior executive’. If this is true for the CHD, it may be said
that reference to ‘senior executives’ in Tessa’s article may satisfy reference to Uriah. Also, since the
article was published in a local newspaper, the element of publication is also clearly established.

Turning to the requirement of ‘serious harm’, in Theedom, it was held that injury to feelings
caused by a strongly worded publication would not be sufficient to prove serious harm. Also, in
Munroe it was held that there had to be something more than just feelings of hurt or significant
distress. The facts suggest that Uriah faced ‘serious embarrassment’ as a result of the publication, and
if this can be understood to mean professional embarrassment, ridicule and belittlement from the
people around the Uriah, then arguably, the requirement of serious harm would be established.
Serious embarrassment in the form of disapproval shown by others must be distinguished from
feelings of hurt. Also, the publication does appear in a medium that is presumably widely read, and
was very “damning”. Being a senior executive in the CHD, Uriah would certainly have an existing
reputation capable of harm. As such, he would probably satisfy the requirement in S1(1). As to
whether the article can be said to carry defamatory meaning, it is highly likely that this requirement
will be satisfied. To suggest that senior executives are making high expense claims arguably suggests
misuse of public funds. This is a serious allegation which is likely to support both the requirement of
defamatory meaning and serious harm.

Tessa would want to raise the defence of public interest contained in S4, explained above. The
foundations of this defence may be said to lie in Reynolds v Times Newspapers (2001) wherein a
species of defence for responsible journalism and neutral reportage relating to political matters and
public interest matters was recognised. Today, when considering defamatory publications relating to
political matters that would be of interest and concern to the public, S4 allows judges to take into
account a variety of factual circumstances, arguably similar to those that were mentioned in Reynolds,
such as the seriousness, urgency, timing and tone of the article. As long as the publication was on a
matter of public interest and the defendant believes that the publication in of concern to the public, it
is likely that the defence will succeed. However, judges also have the freedom to take into account a
variety of circumstances, to decide whether the defence should apply (S4(2)). The fact that Tessa’s
article has no basis may work against her here. Tessa may want to rely on S4(3) that when reporting a
dispute involving the claimant, the defendant may be excused for not verifying the truth of the
imputation against the claimant, as long as the report was impartially and accurately published. It is
argued that Tessa will fail to rely on S4(3) because her publication is unfounded and thus, inaccurate.
She may lose the S4 protection. As such Tessa is likely to be liable to pay compensation to Uriah. In all
scenarios discussed above, it is submitted that the truth defence in S2 D.A. 2013, the privilege defence
in S7 and innocent dissemination in S10 are unlikely to apply here. The facts are silent as to other
circumstances that may be relevant or necessary in order to invoke these defences. As such it is
concluded that in (a) Sasha is likely to succeed against her colleague, in (b) Denz is likely to succeed
provided reference is established against Tess and in (c) Uriah is likely to succeed against Tessa.

Essay Questions

Sample:

2014 (ZA & ZB) Q3

Critically analyse the reforms brought about by the Defamation Act 2013.

2015 (October) Q3
‘The Defamation Act 2013 achieved much needed reform of the common law.’ Discuss

2015 (ZB) Q2
‘The Defamation Act 2013 has simplified the law on defamation and increased accessibility
to the tort for a large section of society.’ Discuss.

2016 (ZA) Q4
‘Despite the Defamation Act 2013 reforms, the tort of defamation remains unsatisfactory
and in further need of reform.’ Discuss.

Suggested Answer:

Prior to the enactment of the Defamation Act 2013 (D.A. 2013), the United Kingdom was
known as the ‘libel capital of the world’. This was said to be due to the UK’s particularly claimant-
friendly defamation law that protects reputation fiercely. This position arguably threatened freedom
of speech and expression, particularly of the press. Following a decade-long protest against libel laws
in England, Parliament passed the D.A. 2013, aiming to strike better balance in the law. This essay
seeks to evaluate impact of this 2013 Act and to evaluate the extent to which it has achieved a better
balance between the protection of reputation and the protection of freedom of speech. In this
discussion, the candidate will first outline the changes brought by the 2013 Act and then proceed to
evaluate in light of the Article 10 EHCR right of free speech and expression.

The D.A. 2013 which came into force 1 January 2014 has its origins in common law, and yet
one could say that the Strasbourg jurisprudence in relation to Article 10 ECHR has influenced the new
Act. Such influence can be seen in the introduction of a new requirement of ‘serious harm’, the
enhancing of old common law defences, the introduction of new defences, and changes to procedural
aspects of defamation lawsuits, including the adoption of the single publication rule, limiting the
court’s jurisdiction to claims against defendants resident in the UK and the removal of trial by jury for
libel and slander cases. The candidate will discuss these changes and review the same. It is the
candidate’s preliminary view that the overall changes made by the D.A. 2013 do appear to embrace
greater protection of freedom of expression although the scales cannot be said to be equally balanced
yet.
 English defamation law classifies defamatory statements as either libels or slanders. Libels are
statements that are regarded as more permanent and thus more damaging. Libels therefore enjoy a
presumption of damage; a claimant suing in respect of a libel does not have to prove damage.
Examples of libels include printed publications, films (Youssoupof v MGM (1934)) and even statues in
a wax museum (Monson v Tussauds (1894)). Online publications are also considered libels and are
exempt from the requirement of damage (Godfrey v Demon Internet (1999). Slander, usually refers
to spoken defamatory statements, and generally includes statements that are less permanent and
more fleeting in nature. Slander types of statements are considered less damaging because they are
more temporary/ transient in nature. Thus, when a claimant sues for a slander, the claimant is
required to show that special damage was suffered, in the form of loss of income, job or even the
hospitality of friends: Davies v Solomon (1971). Previously, four types of slander would be exempted
from the requirement of proof of damage, namely slanders than impute: (i) that a woman was
unchastely or adulterous (Slander of Women Act 1891), (ii) that a person has a contagious disease
(Bloodworth v Gray (1844)), (iii) that a person is incompetent in his profession (S2 D.A. 1952); and (iv)
that a person has committed an offence punishable by imprisonment (Gray v Jones (1939)). In these
four instances, slanders were actionable per se.

The distinction between libel and slander was said to discriminatory and unfair. The problem
was said to lie in the presumption of damage enjoyed by libels. Libel claimants would succeed easily
against the defendant compared to slander claimants. This was said to be discriminatory and unfair
because in reality, not all libels truly damage the claimant’s reputation. This was said to leave a ‘chilling
effect’ on responsible journalism, stifling legitimate debate, and encouraging ‘libel tourism’. The
overall result was the suppression of the defendant’s freedom of speech and expression in Article 10
ECHR. Parliament took notice of this “chilling effect” and introduced the requirement of ‘serious harm’
in Section 1 D.A. 2013 to combat this problem. In order to succeed in a defamation claim today, the
claimant was show that the defendant’s statement ‘caused or is likely to cause serious harm’ (S1(1).
For companies, ‘serious harm’ is equated to ‘serious financial loss’ (S1(2)). The result is: although a
claimant in a libel lawsuit today still does not need to prove damage to establish a successful claim,
he/she will at least have to show that the statement published by the defendant either caused some
serious harm or is likely to cause some harm, failing which the defendant’s right to publish and his
freedom of speech and expression will prevail.

It is argued that the decisions in Jameel v Dow Jones (2005) and Thornton v Telegraph Group
Media (2011) are the primary motivation behind S1 D.A. 2013. In Jameel it was stated, that even
though the presumption of damage for libels does not infringe Article 10 ECHR, where the facts show
that the defendant’s publication was trivial and could not have caused significant harm to the
claimant’s reputation, the claim itself should be struck out as an abuse of process. This decision implies
a preference for a threshold of harm being met, rather than allowing libels to succeed easily merely
because they are libels. In Thornton, the HOL held, for a libel to be counted as defamatory, the
statement must pass a certain threshold of seriousness. It had become apparent that although English
common law would not outright remove the presumption of damage for libels, it acknowledged the
unfairness in libel laws. Although the D.A. 2013 does not remove the distinction between libels and
slander, it does somewhat correct the unfairness. Libel claimants now will only succeed if the
defendant’s publication did cause or is likely to cause serious harm. This arguable defends the press’
right of free expression much better than before.

In proving defamation, one of the requirements to be established by the claimant, is that the
statement did carry some defamatory meaning. This is usually judged by looking usually at the natural
and ordinary, literal meaning of words (Lewis v Daily Telegraph (1964)) or by looking at whether the
statement carried some defamatory meaning by innuendo (Tolley v J.S. Fry (1931); Cassidy v Daily
Mirror (1929) & Baturina v Times Newspapers [2011]). In the words of Lord Atkin in Sim v Stretch
(1936), a statement would be defamatory in meaning if it “lowered the plaintiff in the minds of right-
thinking members of society, that it causes him to be regarded with feelings of contempt, hatred and
ridicule”. This is usually judged based on the standard of the ‘right thinking member of society’ (Byrne
v Deane (1937)). While the Sim test is still applied today, the candidate submits that the test does not
always correctly reflect what truly is or is not defamatory in reality. The test is also somewhat
impractical and difficult to apply. Using this test, there was a good chance that the jury would find a
statement to be defamatory in meaning, resulting in liability on the defendant’s part, even where the
statement may not in fact or in reality, have actually harmed the claimant’s reputation. The claimant
may have suffered no real or measurable consequence as a result of the publication, but still succeed
in court. This approach in common law too can be said to be pro-reputation, giving the benefit of the
doubt to the claimant more often than not.

Following S1, there was confusion as to whether S1 replaces the common law requirement of
defamatory meaning. Prior to the DA 2013, whether or not a statement was defamatory was
determined by the meaning of the statement. But S1 seemed to suggest that whether or not a
statement is defamatory would be determined based on the ‘serious harm’ factor. This was clarified
in Theedom v Nourish Trading (2015). The court clarified that the serious harm requirement must be
satisfied in addition to ‘defamatory meaning’. It is to be treated as a threshold requirement, to ensure
that only deserving claims succeeds, and deserving claims were those that met the seriousness
threshold. In other words, even if a statement did carry defamatory meaning, liability will not follow
for both libels and slanders unless serious harm was caused or was likely. The court also held that
serious harm could be proven as a fact, or by inference. It was also held that factors such as the
reliability of the defendant as a publisher, the claimant’s existing reputation, the size of the readership
and impact to the claimant as a whole would be relevant. Further in Munroe v Hopkins (2017) it was
held that injury to feelings would not satisfy the serious harm requirement but that causing severe
distress and anxiety dealing with the aftermath of the publication, would satisfy serious harm. Also,
the potential for statements to “go viral” meant that serious harm is more likely. Most recently, the
Supreme Court in [2019], Lachaux v Independent Print Limited & Ors “S1 raises the threshold of
seriousness above that envisaged in Jameel & Thornton; & must be determined by reference to the
actual facts as to the impact of statements, not just to the meaning of the words. This can be
established only by reference to the actual impact the statement. is shown to have had. It depends on
a combination of the inherent tendency of the words and their actual impact on those to whom they
were communicated.” Lachaux supports the proposition that impact of the statement is as important,
(if not more) than just the meaning of the statement. By raising the threshold, it is submitted that the
scales have been tilted greater in favour of free speech than protection of reputation. Not all claims
for loss of reputation will succeed today; only those who have suffered actual or likely serious harm
may claim.

The D.A. 2013 has also modernized the law of defamation by simplifying old common law
defences and introducing new ones to meet newer trends and channels of publications. Firstly, the
old defence of justification was renamed the defence of truth under S2 DA 2013. In essence, this
defence appears to merely codify existing principles on the previous ‘justification’ defence. Prior to
the Act, Rothschild v Associated Newspapers (2013) summarised the common law defence of
justification in five interlocking principles: “(1) A justification defence will run if the defendant shows
that what he has alleged is substantially true. This general rule is given more concrete effect by the
other principles. Thus, it is limited by principle (2): a libel cannot be justified by proof of obliquity on
the claimant’s part which is unconnected with the accusation complained of. (3) However, a defendant
is entitled to justify a common sting derived from parts of a publication, taken as a whole – but there
must be a common sting. (4) An instance of (3) arises where a general charge is justified by proved
examples, even where the published example is unproved. But (5) in such a case the sting of the
instance or instances which are proved must in essence be as sharp as the published, unproved libel:
so that the claimant has no more reputation to lose by force only of the published, false accusation.”
 Indeed, it is submitted that the new Act has merely codified the common law justification
defence. S2 makes clear that neither the detailed truth of a statement nor the truth of the entire
publication needs to be established. The defendant only needs to prove the substantial truth of the
publication, and if the publication contains more than one defamatory imputation, the defendant only
needs to prove the truth of the more damaging imputation for the defence to succeed. It is submitted
that the change of name makes the defence easier to understand for laypersons and the forgiving
standard of ‘substantially true’ affords the defendant a viable defence. However, the basis of this
defence is the presumption that the statement is untrue, which admittedly, favours the claimant and
the protection of his reputation.

Another old common law defence which was renamed and somewhat simplified by D.A. 2013
is the old defence of ‘Fair Comment’, now known as ‘Honest Opinion’ in S3. The provisions contained
in this section are said to be built upon the views of the Supreme Court case of Joseph v Spiller [2010]
and based upon one’s common law right to hold an opinion and express the same. Hooper, Waite and
Murphy commented that although DA 2013 had not significantly changed the law, it had cut away
some of its complexities. Following the ruling in Joseph, some complexities were cut away such as (i)
the requirement of public interest and (ii) the need to state facts on which one’s comment was based.
The conditions to satisfy for this defence as it stands today are firstly, the statement must be an
opinion; secondly, that the basis for the opinion needs to be indicated, and finally, it must be honest.
The basis of the opinion should be ‘indicated, whether in general or specific terms’. The condition of
‘honesty’ removed the malice factor under the old law – if the opinion was honestly held, the defence
would not be defeated, however biased the opinion. It appears the words and intent expressed by
Lord Philips in Joseph have been heeded in particular that: "Today the internet has made it possible
for the man in the street to make public, comments about others in a manner that did not exist when
the principles of the law of fair comment were developed ... Millions take advantage of that
opportunity." The new S3 does indeed strongly promote the freedom of speech and expression. The
S3 defence was considered in Wasserman v Freilich (2016) but failed on the grounds that the
statements made by the defendant were statements of fact and not opinion.

Before D.A. 2013, in Adam v Ward (1917), the judiciary invented the common law defence of
qualified privilege to deal with situations in which the maker of a statement had a moral, legal or social
duty to make a statement and the recipient of the statement had a corresponding interest in receiving
the statement. The effect of the Adam v Ward common law qualified privilege was to protect
defendants who were able to show that a statement had to be made to another, even though it would
defame the claimant. Such protection however would be lost if there was malice in the making of such
statement. Later, in Reynolds v Times Newspapers [2001], Albert Reynolds (former Irish Prime
Minister) claimed against Times Newspapers for publishing that he misled the then Irish Parliament,
the same publication leading to his resignation. Times Newspapers argued that the Adam v Ward
qualified privilege should cover their publication, on the basis that they had a duty to publish and the
public had an interest in knowing. It was argued that alternatively, political publications should
especially be privileged, and a new category of qualified privilege should thus be created to cover
political reporting.

The House of Lords declined to develop political information as a new subject matter category
of qualified privilege, and were not prepared to extend the Adam v Ward defence in its traditional
sense to the type of publication in Reynolds. Nonetheless, Lord Nicholls recognised the "high
importance of freedom to impart and receive information and ideas" and noted the "press discharges
vital functions as a bloodhound as well as a watchdog". His Lordship also opined that “the elasticity of
the common law principles enables the court to give appropriate weight, in today's conditions, to the
importance of freedom of expression by the media on all matters of public concern.” Acknowledging
the importance of the media’s freedom of speech and its role in creating awareness on matters
concerning the public, the HOL was prepared to extend privilege to publications that cover a matter
of public interest and where the publisher had acted responsibly in publishing the information.
Whether or not such a privilege would be extended to a particular publication, judges would look at
several factors relating to the publication (such as the seriousness of the issue published, the nature
and status of the information, whether the claimant was interviewed for his side of the story and
whether the claimant’s side of story was published, and the timing of the publication). Ultimately, the
HOL concluded that the article was of public importance, and would attract qualified privilege.
However, because the article did not contain a response by Mr. Reynolds concerning the allegations
made against him, Mr Reynolds had been treated unfairly and privilege was lost. The defence failed.
This defence became known as the ‘Reynolds Defence’ and its application extended to cases of
responsible journalism concerning matters of public interest and neutral reportage.

The Reynold neutral reportage defence, was applied in Al-Fagih v HH Saudi Research (2001).
It gained favour in later cases such as Jameel v Wall Street Journal (2006). In Jameel, the HOL upheld
the Reynolds Defence in favour of the defendant media, with Lord Hoffmann, delivering the leading
judgment, stating that as long as the journalist did behave fairly and responsibly and the information
was of public importance, the fact that it contained relevant but defamatory allegations against
prominent people would favour protection of the defendant’s right to publish. Lady Hale went on to
state, “we need more such serious journalism in this country and defamation law should encourage
rather than discourage it." The same sentiment was echoed in Flood v Times Newspapers (2012) in
which the Supreme Court upheld the Reynolds Defence, stating that a publication about a public figure
receiving a supposed bribe from a Russian oligarch was in public interest and should be privileged.

It is clear from these decisions that even before the D.A. 2013, the judiciary had begun
upholding Article 10 rights with greater force. They were clearly trying to offset the chilling effect on
responsible journalism generated by the presumption of damage for libels, by allowing the Reynolds
public interest defence. Nonetheless, in some instances the Reynolds defence was found to be
uncertain in terms of application outside the context of mainstream journalism had been criticised as
being difficult to rely on. Parliament responded by abolishing the Reynolds Defence altogether and in
its place, enacting a new public interest defence in S4 DA 2013. The new S4 makes no reference to
‘responsible journalism’. This this new provision is wider than the Reynolds defence, is more flexible
and goes further. Judges have the flexibility of taking into account a variety of circumstances, although
it is submitted that their minds would probably be directed to the same consideration listed in
Reynolds. The S4 defence would succeed as long as the claimant published on a matter of public
interest and believed that the publication was in the interest of public. If the defendant was merely
reporting the claimant’s involvement in a scandal/ dispute, as long as the report was impartial and
accurate, the defendant will successfully rely on S4, even if the defendant did not verify the truth of
the defamatory imputations against the claimant contained in his report.

DA 2013 also introduced a new head of qualified privilege, which is subject to two conditions
– the statement must relate to a scientific or academic matter, it must be reviewed by the editor and
an expert and must be made without malice. This new defence is known as the defence of ‘peer-
reviewed statements in scientific and academic matters’, and is contained in Section 6 DA 2013. This
provision was enacted in response to cases such as British Chiropractic Association v Singh [2011].
The case concerned a publication by one Mr. Simon Singh, stating that representations made by the
BCA about chiropractic treatment and its benefits was not substantiated with evidence. BCA sued for
defamation but the court held that such publications such be privileged given their educational
importance and value to society. The candidate submits that this too is a new development via the
D.A. 2013, which does appear to tilt the scale further in favour of freedom of speech.

Apart from these developments, DA 2013 also features another new defence, which is a
defence for website operators, found in S5. It is submitted that while this section does not necessarily
affect greater protection for freedom of speech, it is a welcomed development as it effectively codifies
the common law position that website operators, search engines and server hosts are merely passive
publishers and cannot be found liable unless the claimant is unable to locate the author of a particular
defamatory statement on the internet, and contacts the website operator to assist in taking down the
statement, but the website operator takes no action within a reasonable span of time. S5 however,
seems to only codify the existing common law position established in cases such as Godfrey v Demon
Internet (1999), MIS v Google (2011), Davison v Habeeb (2011) and Tamiz v Google (2013). Apart
from these defences, the Act also carries forward older statutory and common law defences such as
the defences of absolute and qualified privilege relating to official government and judicial
publications, documents and reports. This defence is found in S7. S10 on the other hand contains the
defence of innocent dissemination, which takes after the old version found in the 1996 Act. It is
submitted, however that the position of these defences in the D.A. 2013 are neutral as to freedom of
speech and do not affect the position of English defamation law on Article 10.

The new Act also introduced some procedural changes that will now affect the proceedings
of defamation lawsuits. S8 introduces the new ‘Single Publication Rule’. This section abolishes the
multiple publication rule. Under the multiple publication rule, every subsequent publication of the
original defamatory work by the first publisher gives rise to a fresh cause of action against the original
publisher, allowing indefinite liability against the original publisher. This rule was applied in cases such
as Slipper v BBC (1990), and followed in McManus v Beckham [2002] in which it was held, that the
defendant could be liable where the defamatory statement is published in such circumstances where
it is reasonably foreseeable to the defendant that it would be repeated by another. Later, in
Loutchansky v Times Newspapers this principle was followed where the claimant sued because Times
Newspapers had, after being injuncted in respect of a defamatory article in a paper publication,
proceeded to publish the same defamatory article online, making it publicly accessible in its archive
on its website. It was held that every hit of the article would amount to publication and since there
was no such thing as a single publication rule in common law, the defendant could be liable over and
over every time the article was published (or clicked on online). However, it was also suggested in this
case that it was time for a change. The old multiple publication rule was clearly becoming more and
more untenable in modern times where publications are now made online. The idea of ongoing
liability for multiple publications is contrary to free speech, unfairly prejudices defendants.

With S8, however, only subsequent publications of the original publication (or those that are
substantially the same as the original publication) published within a year of the original publication
are actionable. It is submitted that S8 is not truly a ‘single’ publication rule. It merely manipulates the
one-year limitation rule to cut down on ongoing liability but still allows for multiple causes of action
within the one- year period.

In order to combat UK’s reputation as a well-known and preferred libel lawsuit destination,
Parliament has also introduced the new S9 which seeks to address the problem of ‘libel tourism’ in
England. It provides that if a defendant is not domiciled in the UK or the EEA, a defamation action
cannot be brought against him, unless the court is satisfied that the UK is clearly the most appropriate
place to bring the action. This section helps to promote freedom of speech better as it discourages
those with trivial claims, including those from all over the world to take advantage of England’s pro-
claimant libel laws. Another point to be noted is S11’s removal of the presumption in favour of a trial
by jury. Although this provision is merely a reflection of the increasing reluctance of courts to permit
jury trials over the last five years due to higher costs of jury trials, it is submitted that generally juries
rely on emotions while judges, on reason. This, therefore, might be a good change for better balancing
of the freedom of speech and protection of reputation.

In light of the above, it is submitted that the changes brought by D.A. 2013 do somewhat take
steps forward towards more effective protection of freedom of speech. The central issue in
defamation law is the balancing of the freedom of speech and the protection of reputation, both of
which are fundamental rights protected under the ECHR and incorporated into the domestic laws by
the Human Rights Act 1998. The regulation of public expression through defamation laws inevitably
results in the curtailment of free speech which may infringe Article 10 ECHR. However, Article 10.2
also provides that the right of freedom of expression cannot go unchallenged. Overly loose regulation
of free speech may in turn be dangerous as that could severely jeopardize protection of reputation,
without due justification. The enactment of the Defamation Act 2013 seems to suggest that English
defamation law is leaning towards the protection of freedom of expression as the changes discussed
above shows. It is submitted that the Defamation Act 2013 will result in fewer successful defamation
lawsuits cases as laws shift from favouring the claimant to the defendant. However, the extent to
which the 2013 Act truly succeeds in the aim of achieving better balance, does greatly depend on
interpretation and application of the provisions of the Act in courts. Parliament has been silent and
somewhat vague on some of the sections, as far as applicability and definitions go. It remains to be
seen whether these gaps will effectively be filled by judges to truly ensure a fair balance in the law.
VI. PART SIX: VICARIOUS LIABILITY

Vicarious Liability (Chapter 14)

Problem Questions

Sample 1:

2019 (October) Q8
Brad owns the "Pink Canary" Nightclub, a popular haunt in Brighton. At weekends, because of the rush
of customers, he hires two extra security guards who are supplied by "Safe T First", an agency which
specialises in this kind of work. One Saturday night, Gino and Phil, two security guards provided by
"Safe T First", are working at the club when trouble breaks out. Gino separates the brawling individuals
and gets them to leave the premises. As they walk away one of them, Vernon, turns around and shouts
obscene abuse at the security guards. Phil chases him down the street and trips, knocking Vernon to
the ground and badly injuring him. At midnight, Brad instructs Gino to drive Tina, Brad's girlfriend, to
her flat telling him, ‘make sure you take her straight home’. However, on the way, Tina asks Gino to
go via a garage five miles away to buy cigarettes, since she has run out. Because he is in a hurry, Gino
drives excessively fast and loses control of the car. The car collides with Zelda who is cycling home
from work without lights on her bicycle. Zelda is injured and her bicycle destroyed. Tina, who was not
wearing her seatbelt, suffers a broken hand. Advise Vernon, Zelda and Tina.

Suggested answer:

The facts involve injuries to Vernon (V), Zelda (Z) and Tina (T) all of whom are advised that
they may bring claims against Brad (B) and/or Safe T First (STF) for the wrongdoing of Phil (P) and Gino
(G) respectively. The claimants are advised that while claims may directly be brought against P and G,
the process of recovering compensation through the mechanism of vicarious liability allows for more
effective and practical compensation (Bazley v Curry (1999), Fleming in The Law of Tort (1998)).
Although it somewhat goes against the grain of Tort Law that liability should rest on the ultimate
tortfeasor, this form of strict, secondary liability on the part of the tortfeasor’s employer helps
facilitate the goal of compensation (Paula Gilliker in Vicarious Liability in the Supreme Court (2016)).
Vicarious liability is also justified because the employer is able to pay compensation more effectively
than the employee, since the employer is insured and has the means to compensate (Various
Claimants v Catholic Child Welfare Society (2012). Besides, since the employer sets the wrongful act
in motion by instructing the employee to carry it out, and benefits from it at the same time, it is only
just and fair that the employer should be held vicariously liable (Cox v Ministry of Justice (2016),
CCWS, and Viasystems v Thermal Transfer Ltd (2006)). The discussion will now proceed to evaluate
whether the claims against B and/or STF may succeed under the principles of vicarious liability.

Vernon v Brad and/or Safe T First

V suffered injury when P chased him and knocked him down. This happened after V shouted
obscene abuse at P, after being reprimanded and asked to leave following a brawl with another guest.
To establish vicarious liability on B and/or STF’s part, it must first be shown that P committed a legal
wrongdoing. It is submitted on the facts, that P’s act of chasing V and knocking him down would
constitute trespass to persons, in particular, assault and battery. Next it has to be discussed whether
B and/or STF may be vicariously liable for this form of wrongdoing. In CCWS, Lord Philips laid down
the two-pronged framework of vicarious liability comprising: (i) the relationship requirement and (ii)
that the wrongdoing occurred in the course of employment.
 Firstly, the relationship requirement requires proof that there was either an employment
relationship, or a relationship akin to employment to justify imposing liability on the defendant.
Traditionally, a party could not be held vicariously liable for the wrongdoing of an independent
contractor (‘respondeat superior’). However, of late, the law has seen remarkable changes allowing
organisations to be held vicariously liable even for wrongdoings of independent contractors, such as
in Barclays Bank v Various Claimants (2018, where the bank was held vicariously liable for sexual
assault committed by an independent contractor doctor who carried out pre-employment medical
examinations on employees of the bank. Such departures from the traditional approach have been
justified on the basis of fairness and justice, to promote compensation for greater social justice. On
the facts, it has to be shown that P was an employee of either B or STF. Courts have used a variety of
approaches to establish ‘employment relationship’. It is possible to decide the issue of employment
relationship by looking at the element of control, or the terms of the contract between the parties, or
the economic reality of the situation (‘economic reality test in Ready Mixed Concrete v Minister of
Pensions (1968)), or whether the work of P was integrated in the business of either B or STF or whether
P was working on his own account (the ‘business integration’ test in Market Investigations v Minister
of Social Security (1968). Where there are two parties who may have exercised some control over the
tortfeasor, the court will examine whether the “borrowing” employer or the “lending” employer, or
both may be vicariously liable.

In the circumstances, B owns the nightclub and hired P as an extra security from STF. B would
argue that STF ought to be vicariously liable since they supplied P and are the proper legal employer
of P. They have the greater control in terms of employing and remunerating P and as such should bear
liability (Ready Mixed Concrete; Mersey Docks Harbour Board v Coggins & Griffiths (1947)). STF on
the other hand would argue that they had only supplied P as a security guard but that B exercised
greater control in terms of directing P’s work on the night in question. In a similar case, Hawley v
Luminar Leisure (2006), the facts were similar in that the defendant, owner of a nightclub had
employed a security guard supplied by an agency. The court found the owner of the nightclub
vicariously liable for assault and battery committed by the guard, instead of the agency, on the
grounds of greater control exercised by the nightclub owner. Given the striking similarities in fact, the
Hawley decision is likely to apply here, and B is likely to be vicariously liable instead of STF. Thus, the
employment relationship requirement is satisfied in relation to B and not STF, and the claim proceeds
against B. The answer will now examine the second requirement for vicarious liability may be fulfilled.

V has to prove that the wrongdoing (assault and battery) occurred in the course of
employment. Using the traditional Salmond test, courts generally find: (i) that authorised acts would
be deemed to fall within the course of employment. Applying the Salmond test as well, courts would
usually find that an authorised act performed in an improper or unauthorised manner, should still be
considered as falling within the course of employment. This is because in substance, the act itself was
authorised by the employer and the employee had merely carried it out in a wrongful manner. This
was upheld in Century Insurance v Northern Ireland Transport Board (1942), where the defendant
was found vicariously liable when the employee lit a match, to light a cigarette while loading petrol,
causing an explosion and injury to the claimant. The courts were satisfied that at the time of the
wrongful act, the employee had simply been performing an authorised act in an unauthorised
(reckless) manner. However, applying the Salmond test, an employer cannot be liable for the
commission of unauthorised or prohibited acts (Twine v Bean (1946)).

Applying the Salmond test, the question arises, whether the assault and battery by P, were
committed as an authorised act, or an authorised act performed in an unauthorised manner or an
unauthorised act altogether. It would be illogical to conclude that the assault and battery were
authorised acts. P may have been authorised to use some force to carry out his work as security guard.
It is also likely that some extent of assault and battery would be inevitable and authorised. However,
it is unlikely that this particular assault and battery on V was authorised. Since V had been asked to
leave and complied by walked away, he was no longer P’s concern. Even when V retaliated verbally, it
can be said that P was not employed to respond in the manner that he did. Thus, P’s actions cannot
be considered to be the performance of an authorised act. It also cannot be considered an authorised
act performed in an unauthorised manner. P no longer needed to act at all the moment V walked
away. It may be said that when P responded to the verbal abuse the way he did, he may have been
acting out of personal hatred, and that the attack on V was a “private act of resentment, hatred and
spite” (Lister v Hesley Hall (2001)). In Warren v Henlys (1948) it was held that battery and assault by
a petrol attendant as an act of personal vengeance against a customer, was outside the scope of his
employment. Here, the employer was not found vicariously liable, because the wrongdoing was a
personal act and arose out of an altercation between the claimant the employee. It was simply an
unauthorised act altogether. Applying this, it is possible for the court to find that P’s action did not fall
within the course of employment.

Thus, applying the Salmond test it would be impossible to find that assault and battery by P
was within the course of employment. However, the Salmond test has its shortcomings. In Lister, the
House of Lords highlighted that the Salmond test, when applied to circumstances involving criminal
actions by the employee, was unlikely to produce fair or acceptable outcomes. This is because it is
rarely ever possible to find that the commission of a criminal act was an “authorised act” under any
circumstance. As such, the use of the Salmond test in cases involving criminal wrongdoing would
inevitably result in a failure to satisfy the second requirement. This would result in unfortunate effect
of denying compensation even to the most deserving claimants, especially in cases where
compensation is most needed. Thus, in the interest of justice and fairness, and the social importance
of compensation, in Lister, the HOL abandoned the Salmond test, and devised the ‘Lister close
connection test’. Using this test, the HOL found a school vicariously liable for the sexual assault of its
pupils by its warden, holding that the “sexual abuse was inextricably interwoven with the carrying out
by the warden of his duties” and thus, there was close connection between the employment of the
warden and his wrongdoing, that it would be just and fair to impose liability on the school.

The Lister test perceived that fairness and justice lie in prioritising compensation to victims.
The test is more concerned with an outcome that is pleasing in terms of public policy. The aim was to
make vicarious liability possible where previously, it was most impossible, i.e. where the claimant is a
victim of a criminal wrongdoing. It is thus, unsurprising that Lord Toulson explained in Mohamud v
WM Morrison (2016) that “the Salmond formulation was stretched to its breaking point in Lister. Even
on its most elastic interpretation, the sexual abuse of children could not be described as a mode, albeit
an improper mode, of caring for them.” Lord Toulson preferred the Lister close connection test over
the Salmond test, endorsing the close connection test as the more appropriate approach in cases
involving criminal wrongdoing. Thus, in Mohamud, where the wrongdoing by the employee took the
form of a violent attack on a customer, applying the close connection test, the SC held that the said
wrongdoing fell within the course of employment. The SC explained that firstly, it should be asked, (i)
what is the field of activities entrusted to the employee and (ii) whether the wrongful act was closely
connected to the fields of activities. The SC concluded that the fields of activities entrusted to the
employee included answering queries of customers, and the attack that happened was simply a “foul-
mouthed and violent” continuation of what started off as a hostile manner of answering the claimant’s
query.

The Lister close connection test has been used in a wide variety of other circumstances to
justify imposition of liability. Underlying the use of the close connection test, was the desperate urge
to reach a just and fair outcome that enabled compensation in different situations. One such decision
that would be pertinent to the present facts would be that of Mattis v Pollock (2006), in which the
facts are squarely similar to P and V’s situation. In Mattis, the employee, a nightclub security guard
attacked the claimant (a guest at the nightclub), after the nightclub had closed, by stabbing him the
back with a knife. The court found Vicarious liability was not defeated merely because the employee
at the relevant time was acting for his own benefit and could still arise even if the employee’s act was
independent. In Lister, Lord Stein had commented that the focus should be on the “relative closeness
of the connection between the nature of the employment and the particular tort”. The employee was
employed specifically to keep order and discipline and was expected and encouraged to perform his
duties in an aggressive and intimidatory manner. He was still in his working hours at the time of the
assault. Had he not found an immediate target outside the club, he would probably have returned
inside the club. His return was motivated by a need to revenge his injuries and public humiliation he
had sustained inside the club which had undermined his reputation and status as the doorman, the
Defendant expected him to be. The stabbing of the claimant was the culmination of the incident,
which had started within the club and could not be treated in isolation from earlier events or as a
separate and distinct incident. Even allowing for the important element of personal revenge, the
responsibility of the defendant for the actions of his aggressive doorman was not extinguished.
Vicarious liability was established. Given the similarity in facts, it is likely that applying Mattis, B would
be vicariously liable for the assault and battery by P causing V’s injuries.

Tina & Zelda v Brad and/or Safe T First

T and Z would also like to recover compensation for their respective injuries. T has suffered a
broken hand while Z has suffered injury and has sustained damage to her bicycle due to G’s careless
driving. First it must be established that G has committed a legal wrongdoing. It is submitted that the
legal wrongdoing on the facts is negligence and it is argued that the tort of negligence will indeed be
established on the facts. It is clear that G owed both T and Z a legal duty to be careful while driving
(Nettleship v Weston (1971)), and that duty was breached when G drove at excessively high speed
and loss control of the car. He clearly failed to come up to the standard of a reasonable driver
(Nettleship). It can also be said that but for G’s careless driving, neither T nor Z would have suffered
injury (Barnett v Chelsea & Kensington HMC (1969)). Factual causation will thus be satisfied. It is also
clear that both T and Z’s injuries and property damage are reasonably foreseeable and not too remote
(The Wagon Mound (No. 1) (1961)). Hence, the legal wrongdoing on G’s part is established.

Next, the two requirements for vicarious liability have to be satisfied. Firstly, as discussed
above, the question is whether the necessary employment relationship exists on the facts, and if it
does, whether it exists between G and B or G and STF or G and both. It is submitted that as discussed
above, the proper employer who forms the necessary employment relationship with G in order to be
vicariously liable, is B and not STF. This is all the more so in relation to G driving T home causing the
accident. This is because B asked G to drive T home. As such, the first requirement of relationship will
be satisfied on the facts. Turning to the second requirement, it must be shown that the accident
occurred in the course of employment. As explained above, this can be determined using the Salmond
test or the Lister close connection test. It is submitted, however, that the Lister close connection may
not be applicable in the circumstances since the wrongdoing committed by G is not criminal in nature,
and is merely a negligent form of wrongdoing. The Lister close connection test was affirmed and
endorsed as the proper test for the second requirement where the wrongdoing in concern was
criminal in nature. In Dubai Aluminium v Salaam (2002) the House of Lords approved the Lister test
as the proper test in cases involving common law wrongdoings, especially those that are intentional
in nature, and extended the application of the test to the facts, which involved fraud by a solicitor.
Vicarious liability was established on the basis of the close connection test here.

On the facts, however, the wrongdoing was not intentional, criminal or fraudulent in nature.
It was through a negligent act that G caused harm and damage to T and Z. It would be more
appropriate to consider the issue of ‘in the course of employment’ in light of the Salmond test. The
facts state that B said “make sure you take her straight home”, indicating that the act G was authorised
to do was to drive T home. At the time of the accident, however, G had gone via a different, route 5
miles away, at T’s request, to allow T to buy cigarettes, even though he was instructed to take her
straight home. The decision in Twine v Bean (1946) is relevant, where the employee was instructed
to drive the employer’s van, and in doing so, negligently caused an accident in which the claimant was
killed. At the time of the accident, the employee was in the midst of giving the claimant a lift, which
was an act prohibited by the employer. The court found that the employee was not acting in the
course of employment because he carried out a prohibited act. Lord Greene in Twine said, “the other
thing which he was doing simultaneously was something totally outside the scope of his employment
– namely, giving a lift to a person who had no right whatsoever to be there.” Vivienne Harpwood
analysed that the decision was such because the employer had derived no benefit from the
employee’s act.

At the same time, in Storey v Ashton (1869), it was held that “an employee going on a frolic
of his own” was not acting in the course of employment. In Storey, the employee went on a separate
journey altogether from the one he was authorised to go on, and as such was deemed to be “on a
frolic of his own”. Storey clarifies that the extent of the deviation from the authorised route is relevant.
Cockburne J held, “it is a question of degree as to how far the deviation could be considered a separate
journey.” Conversely, in Rose v Plenty (1976) a milkman was assisted by the claimant in his task of
delivering milk, who then was injured by the negligence of the milkman. It was found that the milkman
was acting in the scope of his employment and therefore the employer was vicariously liable.
Harpwood states that the claimant was helping to deliver milk, despite the employer forbidding this
practice, and in doing so, the claimant was performing an act which ‘contributed to, or provided some
benefit to the business of the employer’. For this reason, the negligent act was not an unauthorised
act, or one that that was a deviation from authorised acts. Considering these authorities on the facts,
it is submitted that G was not simply performing the act he was asked to do in a different manner such
as in Rose. He also was not performing a prohibited act at the same time as performing the authorised
act such as in Twine. He appears to be more like the employee in Storey who had deviated from the
authorised route for an unauthorised purpose. It does not matter that T requested for him to do so.
Thus, it may appear that G not only ignored the specific instruction he was given, but that he gone on
a frolic of his own by taking a detour or deviating from the route he was supposed to take. It is
contended that going a different way, five miles off is a substantial deviation, and would probably fall
outside the course of employment or authorisation. The deviation is also, in no way, beneficial to B,
and can be argued to fall all the more, outside the course of employment. If this is accepted, B would
not be vicarious liability. The result would be that all injuries and damage caused to T and Z during the
detour would not be recoverable against B.

Thus, it is concluded that B is likely to be liable for V’s injuries but not T’s and Z’s injuries. In
any event, even if the court finds otherwise, it is submitted that the damages payable to T and Z for
their respective losses would be reduced on account of their own contributory negligence. In Jones v
Livox Quarries (1952) it was held that where the claimant was at fault or failed to take reasonable
care for his own safety, that this contributed to his injuries, and that this was reasonably foreseeable,
then the claimant would be found contributory negligent. Following S1(1) Law Reform (Contributory
Negligence) Act 1945, the claimant’s damages will be reduced taking into account the claimant’s share
of fault for his injury, and based on what is just and fair. Applying this to the facts, T was contributory
negligent in failing to fasten her seatbelt. Based on Froom v Butcher (1976), her damages will be
reduced based to the extent to which the seatbelt would have prevented or lessened her injury. As
for Z, she had been cycling without lights on her bicycle. This would also amount to contributory
negligence and her damages too would likely be reduced accordingly.
Sample 2

2008 ZA Q6
Cerberus Securities Ltd recruit, train and supply security guards to protect premises. The guards wear
jackets with the words “Cerberus Security” sewn on the back and use specialist equipment supplied
by Cerberus Securities, but the companies where they are working pay them and instruct them as to
the duties they are to carry out on any given day. Archie and Bernie were sent to work at Hydra
Industries plc as security guards. Archie had particularly asked for this assignment, because, he said,
his disabled mother lived near their factory. In fact, he had a grudge against Hydra Industries because
his girlfriend Connie, who had worked there for a few months, had been sacked after she had rejected
the sexual advances of her line manager Dipak, who had then submitted a critical report on her work.
Guards are instructed always to patrol in pairs, but Bernie, who is Archie’s supervisor, is a heavy
smoker and Archie often agreed to let him go outside for a cigarette and continued the rounds on his
own. One evening, while Bernie was outside, Archie came upon Dipak working late and alone in his
office. He confronted Dipak and seized his jacket by the lapels, pushing him backwards. Dipak fell over
his chair and hit his head on a filing cabinet. He has suffered permanent brain damage. Advise Dipak.

Suggested answer:

The question relates to claims that may be brought for assault, battery and alternatively
negligence, for injuries sustained by Dipak. The area of vicarious liability is also relevant on the facts.
D may sue CS and/or HI to be vicariously liable for assault and battery by Archie resulting in Dipak’s
permanent brain damage. Alternatively, Dipak may also allege that Bernie was negligent in failing to
carry out his duties, thus failing to prevent the incident. For this too, Dipak may seek compensation
against CS and/or HI vicariously.

To establish liability against CS and/or HI, Dipak must first prove wrongdoing on Archie’s and
Bernie’s part. In ICI v Shatwell it was held that employers may be held VL for tortious/ civil
wrongdoing. However, in Poland v Parr an employer was VL for assault and battery. The law expanded
in subsequent cases like Lister, Mattis and Dubai Aluminium, recognising VL for more serious
wrongdoings that are deliberate and criminal in nature.

On the facts, Archie appears to have committed trespass to persons, in particular assault and
battery. To commit assault is to intentionally cause another to apprehend immediate and unlawful
force through some act while battery is the intentional and direct application of force on another
without lawful excuse. On facts, Archie committed assault and battery when he confronted Dipak,
seized his jacket and pushed him.

Bernie, is Archie’s supervisor and was supposed to patrol with him but did not do so because
he wanted to smoke a cigarette. In doing so, he neglected his responsibility as supervisor. Due to his
neglect, Archie was able to attack and injure Dipak. The requirements of duty, breach, causation and
remoteness are arguably satisfied on the facts (Lochgelly Iron v McMullan).

Thus, the element of legal wrongdoing is established on both Archie’s and Bernie’s part.

Next, according to Lord Philips in Various Claimants v Catholic Child Welfare Society, to prove
vicarious liability, two conditions must be fulfilled: (i) relationship justifying the imposition of liability
and (ii) that the wrongdoing was committed in the course of employment or was closely connected.
 The first condition may be satisfied by proving that there is either an employment relationship
or a relationship akin to employment. Yet, the defendant cannot be liable for the wrongdoing of an
independent contract under the ‘respondeat superior’ principle: Barclays v Bank v Various Claimants
(2020), SC. Whether an employment relationship exists can be determined by looking at any
agreement between the wrongdoer and the defendant – the substance of the contract matters more
than labels and terminology: Ferguson v Dawson. Alternatively, judges examine a variety of factors
such as control, exchange of remuneration for services and other terms that suggest the existence of
employment relationship (‘economic reality test’): Ready Mixed Concrete v Minister of Pensions.

At times, there are “two employers”, in that the employee is sourced by one enterprise to
another. Archie and Bernie work for CS and CS trains and supplies them. On the day in question, they
were supplied to HI, and were instructed as to the manner of patrolling by HI. The question is whether
CS, or HI or both will satisfy the employment relationship to be imposed with liability. In Ready Mixed
Concrete, the court found that the company that paid and supplied the drivers were the proper
employer. The same was found in Mersey Docks Harbour Board v Coggins & Griffiths, because the
employer that supplies and pays the worker retains the more important aspect of control. However,
in Hawley v Luminar Leisure, the nightclub owner who contracted a guard from the main employer
was found liable instead of the main employer because of control in the form of instruction. The guard
in Hawley wore uniform with the logo of the nightclub. On the facts, Archie and Bernie wear jackets
with the words “Cerberus Security” sewn on the back and use specialist equipment supplied by
Cerberus Securities but the companies where they are working pay them and instruct them as to the
duties. Applying Ready Mixed Concrete, because HI remunerates Archie and Bernie, they would be
the proper employer. Also, applying Hawley, because Archie and Bernie are instructed by HI on how
to patrol, even though their uniforms state “Cerberus Security”, they would be employees of HI (Ready
Mixed Concrete will support this contention too). Yet, the fact that CS train and supply guards could
mean that they too retain important aspects of control. In Viasystems v Tyneside it was held that
where more than one organisation shares equal and important aspects of control, both will satisfy the
requirement of employment relation and liability is shared. Thus, it is possible for both CS and HI to
share vicarious liability. On account of factors such as remuneration, control and supply of equipment
and instruction, it is submitted that both CS and HI may be liable.

Next it has to be shown that the wrongdoing occurred in the course of employment. Using
the traditional Salmond test, courts generally find: (i) that authorised acts clearly fall within the course
of employment, and (ii) authorised acts performed in an improper or unauthorised manner may also
fall within the course of employment. As such, in Century Insurance v Northern Ireland Transport
Board, the defendant was found vicariously liable when the employee lit a match, to light a cigarette
while loading petrol because at the time, he was performing the authorised act in an unauthorised
manner. The same was found in Limpus v London General Omnibus Company and Rose v Plenty
where the courts added as a matter of public policy that the wrongful act performed in an
unauthorised manner should fall within the course of employment because it was also in the
employer’s benefit. Even where the employee had committed the intentional act of battery by hitting
a boy at the employer’s premise, this was deemed to fall within the course of employment because
the employee was authorised to protect his employer’s goods, and had hit the boy to prevent him
from stealing from the employer’s shop (Poland v Parr).

On the facts, of the two guards, Bernie was patrolling at the time, thus, carrying out an
authorised act. But he did not patrol as instructed, i.e. in pairs and thus, failed to carry out his duty as
instructed. He is also Archie’s supervisor and failed to prevent Archie from carrying out the attack on
Dipak. He would be regarded as having carried out an authorised act in an unauthorised or negligent
manner. Hence, by remaining outside to smoke, not patrolling with Archie and failing to properly
supervise and control Archie, Bernie’s conduct falls within the course of employment by virtue of the
Salmond test. His actions are comparable to that of the employee in Rose.

As for Archie, he committed assault and battery when he attacked Dipak, and it cannot be said
that such an act was in any way authorised or performed in an unauthorised manner. Even though
guards are generally authorised to use force where necessary, the attack here will not be considered
authorised in any sense. The present facts are also distinguishable from the act of the employee in
Poland, because Archie did not use force to protect the staff and/or premises of HI but to injure one
of them instead. Instead, the facts may be more comparable to the act of the employee in Warren v
Henlys.

In Warren v Henlys, it was held that battery and assault by a petrol attendant on a customer
was a personal act of vengeance against a customer and fell outside the scope of his employment. The
employer was not found vicariously liable. Here, the attack on Dipak was for personal reasons, i.e. that
Dipak had dismissed Archie’s girlfriends when she turned down his sexual advances. Archie specifically
requested the assignment at HI so he could avenge his girlfriend by confronting and attacking HI. This
act of revenge, retaliation and spite being personally motivated will not fall within the course of
employment. CS and HI cannot be held liable.

However, in Lister v Hesley Hall, it was held that most intentional wrongdoing, will not satisfy
the requirement of being an “authorised act” and as such, under the Salmond test, could never
possibly fall within the course of employment. Victims of serious criminal wrongdoing may be deprived
of compensation. Especially in Lister, where the claimants were young school boys sexually abused by
the employee of a school, it was found that the Salmond test would fail to achieve the goal of
compensation, which would undoubtedly go against public policy. Thus, in the interest of social justice
and fairness, the HOL improvised and adopted the ‘close connection test’. As long as the wrongdoing
was so closely connected to the employment that it would be just and fair to impose liability, the test
is satisfied and the act falls ‘within the course of employment’. The conceptualistic approach of
applying the Salmond test irrespective of a realistic and fair outcome was deemed undesirable in
Lister. This was affirmed by Lord Toulson in Mohamud v WM Morrison that “the Salmond formulation
was stretched to its breaking point in Lister. Even on its most elastic interpretation, the sexual abuse
of children could not be described as an improper mode of caring for them.”

In subsequent cases involving violent attacks or assault and battery causing serious injury,
courts have consistently applied the Lister close connection test. Thus, in Mattis v Pollock (2006),
where the employee, a nightclub security guard attacked the claimant (a guest at the nightclub), the
employer was held liable as there was close connection between the wrongdoing and his
employment. The use of force was not only allowed but encouraged by the employer. Further, in
Mohamud, where the wrongdoing by the employee took the form of a violent attack on a customer,
applying the close connection test, the SC held that it fell within the course of employment. The SC
explained that firstly, it should be asked, (i) what is the field of activities entrusted to the employee
and (ii) whether the wrongful act was closely connected to the fields of activities. The fields of activities
entrusted to the employee included answering queries of customers, and since the attack happened
in consequence of doing so, close connection was established. Given that Archie was taking revenge
on Dipak, Mattis may not apply analogously here, because by contrast, force was not authorised for
the specific purpose of harming Dipak. Also, the facts are in contrast with Mohamud, since the attack
did not flow from his duties as guard, but was targeted, and premeditated.

In Lister, Lord Steyn said that “the time and place at which the acts occurred will be relevant,
but they may not be conclusive; and while the employment (gives) the employee the opportunity… to
perform the act in question, this does not mean that the act is within the scope of the employment.”
No liability for “…an act of passion and resentment. A spontaneous act of retributive justice by the
employee will not attract liability… retribution was not within the course of employment” (Lord Clyde).
The SC agreed with this and held that private acts of vengeance will not fall within the course of
employment in WM Morrisson v Various Claimants (2020). Even though the assignment put Archie
in the opportune time and place to commit the wrongdoing, this is insufficient for close connection.
As the facts indicate, the attack was clearly a private act of passion, resentment and revenge and will
not fall within the course of employment.

This would mean that liability and compensation will not be achieved in Dipak’s favour, but it
is submitted that this would be the more principled outcome on the facts. Hence, neither CS nor HI
will be vicariously liable for Archie’s acts but as discussed above, the companies may share liability on
account of Bernie’s negligence.

Sample 3:

2011 (ZB) Q1
Aileen is a qualified nurse. She is on the books of the Seacole Agency, which pays her and is responsible
for her national insurance payments. Hospitals contract with the agency for her services. Aileen is
registered with the agency as a specialist orthopaedic nurse. In February 2009, she went to work at
the Statin Hospital and was required by the hospital to work at nights in its orthopaedic ward. While
on duty, she wore a uniform with the Statin logo on her blouse. One night in May 2009, Ben, who was
recovering from an operation, complained of leg pain. Aileen had already called out the duty doctor
three times and was reluctant to do so again. She spoke to Ben and decided in the light of what he
told her that the problem was not serious and could wait until doctors came in the morning. In fact, a
nerve had become trapped and by the time he received treatment he had lost the full use of his leg.
Before his operation Ben had been a 19-year-old professional footballer with good prospects with a
major club. When he left hospital, he was told that he would have to use crutches indefinitely. In
January 2010, he was in a car that was swept into a river by unprecedented floods. The car floated
downstream and struck a bridge. Ben was knocked out, suffering severe and permanently disabling
head injuries. The medical experts are all agreed that the operation on his knee was correctly
performed and the nerve damage was not a result of the operation. They are also agreed that he
would almost certainly have been unable to escape from the car even if he had been fully fit. Advise
Ben.

Suggested Answer:

The question touches on the tort of negligence and the law on vicarious liability. Ben is advised
to bring an action against either Seacole Agency, or Statin Hospital or both for the alleged negligence
of Aileen and/or the duty doctor who failed to provide timely treatment. Ben may claim in respect of
the (i) full loss of leg use and (ii) disabling head injuries against the said defendants. In order to claim
successfully, he has to establish negligence on the part of Aileen and/or the duty doctor. He must then
proceed to establish the requirements of vicarious liability against the employers in question.

Ben v SA and/or SH (in respect of A)

Ben may seek compensation against SA and/or SH for any negligence on A’s part resulting in
both the loss of leg use and the disabling head injuries. Ben must first establish wrongdoing on A’s
part, arguably negligence on the facts.

It is argued that A owes Ben a legal duty of care she is the nurse on duty. Applying Robinson
v CC of WYP (2018) duty is to be determined using the incremental approach. Applying a similar
precedent involving a nurse attending to a patient, Barnett v Chelsea Kensington HMC (1969) it is
submitted that nurses owe an established duty of care to patients. Thus, duty is satisfied.

On the issue of breach, it has to be determined, whether A’s failure to diagnose and ensure
timely treatment of the trapped nerve amounts to breach. Breach is determined by asking whether
the defendant’s conduct has fallen below the reasonable standard of care to be expected of a
reasonable man: Blyth v Birmingham Waterworks (1856). However, where the defendant is a
professional, he is judged by the standard of practice accepted as proper by the reasonable,
respectable and responsible body of practitioners professing the same skills. As long as it can be shown
that A’s actions are in accordance with the professional opinion of those having the same specialist
skills as A, she would not be found in breach: Bolam v Friern Hospital Management Committee
(1957). The question is whether, specialist orthopaedic nurses in the same circumstances would agree
that A’s actions meet the reasonable medical standard. Ben would argue that as a specialist
orthopaedic nurse, A should have examined further and discovered the trapped nerve. Otherwise, she
ought to have urged the duty doctor to attend and examine Ben. Ben may also argue that her failure
to ensure immediate attention and treatment of the pain amounts to breach.

The facts suggest that A attended to Ben when he complained of post-op leg pain. She had
called the duty doctor three times. She assessed Ben’s condition and concluded that it could wait until
the next morning based on information given by Ben. It is argued that her conduct is likely to be
accepted as proper by other similar professionals. It can be said that A had informed the duty doctor
three times and when the duty doctor chose not to intend, A may have understood this to mean that
Ben’s condition was not pressing or an emergency. Thus, she may not be found in breach. Had Ben’s
pain been much worse at the time, A may be expected to do more. If this is accepted, breach will not
be established.

In the event the Court finds otherwise, factual causation must be satisfied. Using the ordinary
‘but for’ test enunciated in Cork v Kirby (1952) and applied in Barnett, if it can be shown that but for
the defendant’s breach the injury would not have occurred, factual causation will be deemed satisfied.
Firstly, in relation to the loss of leg use, the question is, “but for A’s failure to ensure immediate
treatment of the trapped nerve, would Ben have suffered the permanent injury to his leg?”. The facts
are silent as to whether the injury could have been prevented if A had done more to ensure that they
trapped nerve was discovered/ diagnosed in time. If evidence suggests that early discovery and
treatment of the trapped nerve would have avoided permanent injury, then causation may be
established. If evidence is unavailable, the causal question may be determined by asking whether the
failure to promptly resolve the problem materially increased the risk of permanent damage (McGhee
v National Coal Board (1972). The Court may draw a common-sense inference based on medical
opinion to answer this question. If the material increase in risk test can be satisfied, causation will be
established.

Conversely, it is also possible to argue that the trapped nerve may have been inherent to Ben’s
physiological condition. If it is something which no amount of medical attention or treatment can
reverse or rectify, then causation will not be established in relation to the full loss of leg use: Jobling
v Associated Dairies (1982). Since on the facts, the trapped nerve did not result from the operation
and the operation was correctly performed, it is possible that A may not satisfy causation in respect
of damage to the leg due to the trapped nerve. Causation may only be satisfied if the damage due to
the trapped nerve could be prevented with timely treatment.

In relation to the disabling head injury, it is argued that any negligence on A’s part will not
satisfy factual causation for the head injury. A will rely on ‘novus actus interveniens’ by act of nature.
Applying ‘NAI’, where a new intervening act is present, it is likely to break the chain of causation
between the defendant’s initial act and the final injury sustained. In ‘The Oropesa’ (1943), it was held
that a new intervening act will break the causal link if it was so “extraneous, extrinsic, ultraneous,
unforeseeable or unreasonable as to form a separate and distinct event that cannot be controlled or
prevented by the defendant.” Further, in Carslogie Steamship v Norwegian Government (1952), it
was held that an unprecedented storm would be regarded as an unforeseeable act of God and would
amount to a new intervening act that breaks the chain of causation between the defendant’s initial
negligence and the losses sustained after the occurrence of the storm. Applying this to facts, it is highly
likely that the chain of causation to the disabling head injuries would be broken by the unprecedented
floods that swept Ben’s car into the river. The injury is not the result of Ben’s leg disability as the facts
suggest that even if had been fit, he would almost certainly not have been able to escape from the
car. As such, A will not satisfy factual causation in relation to the head injury.

In relation to legal causation, applying The Wagon Mound (1961) case, it has to be shown that
the type of harm sustained is reasonably foreseeable. If it is not, it will be regarded as too remote and
will fail on legal causation. If the risk of trapped nerve and the resulting disability is after all a known
risk of the operation, the loss of leg use may be accepted as not too remote. However, if it is an unusual
or rare consequence of the surgery, it is likely to be regarded as too remote. As for the head disability
following the flood, this would most definitely be considered unforeseeable and too remote: Doughty
v Turner Manufacturing (1964). The fact that Ben would be in his car and that the car would be swept
away in an unprecedented flood with the result that Ben would be trapped leading to head injuries is
most definitely not something that could possibly be foreseen. Unlike Bradford v Robinson Rentals
(1967) where it was held that frostbites were a likely consequence of negligently exposing the
claimant to severe cold, here it cannot be said that the incident that led to Ben’s head injuries was a
likely consequence of the failure to treat the leg pain accordingly.

It is the candidate’s gathered conclusion that Ben will not succeed in proving negligence
against A. It is highly likely that A will not be found to fall below the professional standard of care,
thus, breach will not be satisfied. Further, Ben is also highly likely to fail on factual and legal causation
for both the leg and head related losses because based on the facts, there is nothing to suggest that
A could have done anything to prevent the permanent damage to the leg and the flood is most
definitely a new intervening act that breaks the chain of causation to the head injury.

In any event, the answer will proceed to discuss the conditions for vicarious liability, to
hypothetically consider if either SA and/or SH may be found vicariously liable for A’s failure (if at all).
Lord Philips in Catholic Child Welfare Society v Various Claimants (2012) laid down that there are two
conditions for vicarious liability: (i) the relationship requirement – that there was either an
employment relationship between the wrongdoer and the company or a relationship akin to
employment and (ii) that the wrongdoing was committed in the course of employment or was closely
connected to the employment.

In relation to the first requirement (relationship), traditionally Courts look at the control factor
(Yewen v Noakes (1880), however, this factor alone is not sufficient today and has been described as
outdated by Justice Cooke in Market Investigation v Minister of Social Security ((1969). Alternatively,
Courts may also look at the contract between the parties, if any, to determine if there is an
employment arrangement, however, in Ferguson v Dawson (1976) it was pointed out the wording of
the contract alone may not be conclusive and that Courts will instead examine the substance of the
arrangement between the parties to ascertain if there is an employment type of relationship. Later in
Ready Mixed Concreter v Minister of Pensions (1968), the ‘economic reality’ approach was adopted,
i.e. by looking at whether there is an arrangement for services in exchange for payment, control and
any other term between the parties that suggests an employment relationship exists. External factors
like the uniform worn, labels and symbols on work equipment were not decisive. Thus, in Ready Mixed
Concrete, even though the lorry drivers wore the uniform of Ready Mixed Concrete and drove lorries
that were painted the company colour of Ready Mixed Concrete, they were not employees of the
company, because payment was not fixed by or directly paid by Ready Mixed Company to the drivers.
It was another company that hired and selected the drivers to drive lorries for Ready Mixed Concrete
on specific assignments. Further in Market Investigations Justice Cooke explained that if the individual
worked at his own expense, bearing loss and profit on his own accord, he would not be regarded as
an employee. However, if the work performed is integrated in the business of the company instead,
and it is the company that bears loss and profit, then he would be an employee of the company. This
approach has become known as the business integration test and was applied in Hall v Lorimer ((1994)
to find that a television technician is self-employed and not an employee of the companies that engage
his services.

In cases where one company sources its staff to another, if the sourcing company, also known
as the lending company retains control over the staff throughout the assignment, then the
sourcing/lending company would be found vicariously liable, rather than the company that
“borrowed” the staff: Mersey Docks Harbour Board v Coggins (1947). However, if the borrowing
company exercises greater control, the borrowing company will be held vicariously liable: Hawley v
Luminar Leisure (2006). In this case, a night club security guard supplied to a nightclub by a firm of
security guard workers, who wore a uniform with the logo of the night club and acted under the
instructions of the night club manager, was deemed an employee of the night club (borrowing
employer). If it is found that both borrowing and lending employers share equally important aspects
of control over the worker at the time, then both may be vicariously liable: Viasystems v Tyneside
(2005).

Most recently in Barclays Bank v Various Claimants (2020) the Supreme Court reinstated the
long-established principle that an independent contractor is no one’s employee and as such a
company that engages his services cannot be vicariously liable for his wrongdoing. The doctrine of
respondeat superior insists that only a master can answer for his servant, but for no one else. Taking
the facts into account, firstly, A is certainly not an independent contractor like the doctor in Barclays
Bank. But, applying Ready Mixed Concrete, even though A wears a uniform with SH’s logo on her
blouse, she is paid by SA, is on their books and they make her national insurance payments. She is
likely to be considered an employee of SA rather than SH. Yet, at the same time, it is highly likely that
in carrying out her duties, she works closely with the doctors at SH and takes instructions from them,
putting her in a very similar position as the night club security guard in Hawley. It may be argued that
both SA and SH share important aspects of control over A. The candidate is inclined to then conclude
based on Viasystems, that both SH and SA may be deemed A’s employers and be vicariously liable.

The second condition requires that the wrongdoing was committed in the course of
employment. According to the Sir John Salmond who laid down the Salmond test, the employee’s
wrongful actions would be deemed to fall within the course of employment as long as the actions
were authorised by the employer. As such, even if the employee performs an act which he is
authorised/ paid to perform in a careless manner, or in an unauthorised or improper manner, the act
in itself remains one that was carried out for the benefit of the employer and with his authorisation.
Hence, in Century Insurance v Northern Ireland Road Transport Board (1942) the employee’s
negligent act of lighting a cigarette while unloading petrol causing an explosion, even though wrongful,
was deemed to fall within the course of employment simply because he was paid and authorised to
unload petrol. The authorised act had simply been carried out carelessly. At the time of causing the
explosion, the employee had been performing an authorised act. As such, the employer was found
vicariously liable for the consequences that followed. Similarly, it can be argued here that SH and SA
may both be vicariously liable for the negligent treatment/ response on A’s part (if at all), on the basis
that she was performing an authorised act at the time. As a nurse, she is paid and authorised to act
the way she did and her actions in relation to Ben were clearly within the course of employment as
nurse. In the circumstances, the two requirements for vicarious liability would be satisfied on the facts
in order to hold SA and SH responsible for A’s carelessness.

However, the candidate is inclined to conclude as discussed above, that Ben is unlikely to
establish negligence against A. As such, even if the conditions for vicarious liability may be met on the
facts, in the absence of any wrongdoing on A’s part, neither SA nor SH may be vicariously liable to
compensate Ben for the leg and head related losses.

Ben v SH (in respect of the doctor’s failure)

Having failed to establish wrongdoing on A’s part, Ben may alternatively want to try to
establish wrongdoing on the duty doctor’s part instead. The facts suggest that A had called out to the
duty doctor three times but the doctor did not attend to Ben, examine or diagnose and treat the
trapped nerve quickly. Ben is advised that he is likely to be able to establish negligence against the
duty doctor on the facts. The law as discussed above for A applies in the same way.

The duty doctor would clearly owe an established duty to examine and treat Ben. Based on
Barnett it is submitted that the doctor, in failing to attend to Ben after being alerted three times, is
likely to be found in breach. Further, similarly, in Bolitho v City & Hackney Health Authority (1996)
the Court laid down that failure to attend to a patient when summoned would be regarded as falling
below the professional standard of care. As for causation, again applying the ‘but for’ test, the
question is: “but for the doctor’s failure to attend, would Ben have suffered the permanent loss of leg
use?” It can be argued, that if the doctor had attended to Ben immediately, it is more probable than
not that the trapped nerve would have been discovered and treated sooner. If evidence is available
to suggest that prompt treatment would have avoided the permanent damage, then the doctor’s
failure to attend can be causally linked to Ben’s leg injury. Should the Courts face an evidential gap on
this issue, the ‘material increase in risk’ test in McGhee mentioned above may be used to support a
finding of factual causation on the facts. However, if it is found on evidence that the even a prompt
response cannot guarantee against permanent damage and if the injury would have happened
anyway, then factual causation is not established, as per the Court’s conclusion in Barnett. It is
submitted in relation to the disabling head injuries, that even if causation is established for the loss of
leg use, causation will not be established for the head injuries for the same reasons argued above for
A. This is because the flood would constitute ‘novus actus interveniens’ and a break in the chain of
causation. In any event, the facts make clear that even if Ben was fit and did not suffer from the loss
of leg use, he would not have been able to get out of his car in time to avoid the head injury.

Finally, as for legal causation, it is argued that the leg related loss will not be too remote if the
risk of nerve trapping and irreversible permanent damage is known to the medical profession. On the
contrary, if the risk is unknown and the incident was indeed rare and unforeseeable, then the loss of
leg use would be too remote, as argued above for A. Also, as argued above for A, the disabling head
injuries would most definitely be considered too remote since there is no way that the incident and
injury can be foreseen. The candidate is inclined to conclude that the duty doctor will be found
negligent for Ben’s full loss of leg use, but not for the head injuries. In consequence thereof, it is
submitted that SH will be held vicariously liable for the doctor’s negligence. The conditions for
vicarious liability and the applicable law are as discussed above for A. It is concluded that the
employment relationship will most likely be established between the doctor and SH, since there is
nothing in the facts to suggest that the doctor was an independent contractor. As for the second
requirement of vicarious liability, ‘in the course of employment’, it is without doubt that the
negligence did occur in the course of the doctor’s employment with SH, as the facts clearly state that
he was on duty on the day in question.
 Therefore, in conclusion, neither SA nor SH will vicariously liable for A’s actions in question,
but it is highly likely that SH will be held vicariously liable to compensate Ben for the leg-related losses
attributable to the doctor’s negligence discussed above.

Essay Questions

Sample 1:

2019 (ZB) Q6
‘The law of vicarious liability is on the move.’ (Lord Phillips.) Discuss.

2015 (ZA) Q10

‘The law of vicarious liability is on the move’ (Catholic Child Welfare Society v Various Claimants
(2012) per Lord Phillips. Discuss this statement and explain how, if at all, recent developments
promote policy reasons for vicarious liability.

Suggested Answer:

The decision in Catholic Child Welfare Society v Various Claimants (2012) represents a radical
judicial move towards modernising the law of vicarious liability. The years that followed saw further
expansions in the law at the highest levels, notably the Supreme Court decisions in Cox v Minister of
Justice (2016), Mohamud v WM Morrison (2016 and Armes v Nottinghamshire County Council
(2017). The recent decisions of the Supreme Court in WM Morrison v Various Claimants (2020) and
Barclays Bank v Various Claimants (2020) also have appeared to add to the unstoppable movement
of the law. The candidate will evaluate the development in these cases, drawing special attention to
the fact that vicarious liability law in England is on the move, far from settled, and capable of
developing further.

Vicarious liability allows secondary liability to be imposed on an employer for the wrongdoings
of his employee causing loss, injury or damage to another. The principle is said to stand in
contradiction with the theory of Tort Law, i.e. that loss should be borne by the party at fault (Paula
Giliker in ‘Vicarious Liability in the UK Supreme Court’ (2016)). Liability is premised on the notion
‘respondeat superior’: “let the master answer”. Further the latin maxim ‘qui facit per alium facit per
se’ supports the concept of vicarious liability that he who does anything by another, does it by himself.

There are several practical justifications for vicarious liability. The employer is in a much better
economic position to compensate compared to the employee and as such vicarious liability provides
a practical and easy means by which the claimant’s loss may be remedied (Bazley v Curry (1999), SC
Canada). Since the employer is also, in a sense, the factual cause of the injury to the claimant, by
creating the employment, it is only fair that liability is imposed on him: G. Williams ‘Vicarious Liability
and the Master’s Indemnity (1957). The fact that the employer creates the risk of harm to society is
also acknowledged as a valid justification for liability: Viasystems v Thermal Transfer Ltd. (2006).
Besides, under principle of loss distribution, employer is in a better position to pass on the cost of
compensation to the public in form of increased prices for his products or services or reducing the
burden of the same by insurance.

Vicarious liability is only possible where primary liability for wrongdoing can first be
established against the wrongdoer employee. Once this established, the two-stage approach to
established in CCWS must be applied to establish vicarious liability. In CCWS the Supreme Court said
that the claimant must establish: (1) that the relationship between D1 (employee) and D2 (employer)
is one capable of giving rise to vicarious liability AND (2) that the wrongdoing occurred in the course
employment, i.e. that it was closely connected to the employment. The candidate will evaluate the
development of both limbs of the two-stage test in demonstrating the extent to which the law has
moved and will move further.

Traditionally, vicarious liability would only be imposed where an employment relationship

existed between the wrongdoer and the party sued vicariously. This was determined by looking in
substance, for a contract of employment between the parties (Ferguson v Dawson (1976)) and the
element of control (Yewens v Noakes (1880)). However, in Market Investigations v MSS (1969) Cooke
J remarked that the control factor is no longer decisive of employment relationship on its own, and
that there is no fixed approach to establishing the necessary relationship. Judges are free to look at a
variety of economic realities on this issue, such as whether the worker used his own equipment and
vehicles and whether he was paid a fixed amount or amounts based on the extent of work done:
Ready Mixed Concrete v Minister of Pensions (1968).

The law on the relationship requirement reached its turning point in JGE v Portsmouth Roman
Catholic Diocesan Trust (2012) wherein it was held that the ‘fluidity of the concept of vicarious liability’
allows judges flexibility in interpretation of the relationship requirement. In JGE a new test was
introduced to allow the judges to reach the conclusion that the Diocese/Bishop was vicariously liable
for sexual abuse by a priest. Although a typical employment relationship was lacking between a priest
and the Bishop, it was found that “the time had come to emphatically announce that the law of
vicarious liability has moved beyond the confines of a contract of service… the test ... is whether the
relationship between the bishop and the priest is so close in character to one of employer and employee
that it is just and fair to hold the employer vicariously liable.” It was made obvious in JGE that the social
importance of justice and compensation for innocent victims outweighed the realities of the
relationship in this case.

This new test of relationship grew in its significance when it was endorsed and applied by the
Supreme Court in CCWS. Lord Philips extended this test to lay brothers working for a school but acting
in furtherance of the mission of the De Salle Institute for which the Catholic Child Welfare Society was
responsible. The brothers who committed sexual abuse of children while carrying out teaching
activities were deemed to be “employees” of the CCWS on the basis that the vows taken by the
brothers meant that “the relationship between the brothers and the Institute was closer than that of
an employer and its employees.” Five considerations that moved the Supreme Court to reach this
conclusion are said to be policy-driven reasons. They are that (i) the CCWS has the means to
compensate; (ii) the brothers undertook work on behalf of CCWS; (iii) brothers’ work was integrated
into CCWS’s “business”; (iv) CCWS created the risk by creating the teaching activity; and (v) the
brothers under CCWS’ control by being subjected to the rules and policies of the Institute as a whole.
The candidate is of the opinion that while the extension to allow compensation is commendable from
the perspective of justice and compensation, the Supreme Court also appeared to be sending a
message that policy considerations took priority over practical realities.

A much wider application of the ‘relationship akin to employment test’ was achieved in the
more recent Supreme Court decision of Cox v Ministry of Justice (2016). In this case, a prisoner
performing kitchen work under the supervision of a prison officer negligently dropped a bag of
supplies on the claimant, causing serious injury. The Supreme Court applied the JGE test and found
that the necessary relationship did exist. At appellate stage, McCombe LJ opined that the prisoner’s
work was a form of rehabilitation but it also had the practical benefit of providing food to prisoners at
a cheap rate. The arrangement between the prisoner and the M.O.J, did involve the payment of
nominal wages for work done and as such. These facts were relevant to the conclusion that the
prisoner’s work was integrated into the business of the M.O.J in running prisons, it furthered the aim
of the M.O.J in providing for its prisoners, that in “employing” the prisoner to carry out prison work,
the M.O.J did create the risk of accidents and finally that the prisoner was subject to instructions and
direction given by prison officers. Paula Giliker pointed out that in applying the ‘relationship akin to
employment’ test, Cox “does highlight that the ‘akin to employment’ category of relationships is not
simply a response to the errant priest problem.’ In light of this, the candidate is moved to conclude
that the radical approach of ‘relationship akin to employment’ is policy-driven and will continue to
expand the scope of liability in a variety of cases.

Indeed, recently, in Armes v Nottinghamshire County Council (2017) the Supreme Court
affirmed the ‘relationship akin to employment test’ and applied it to the facts, where foster parents
had physically and sexually abused foster children placed in their care by the Council. The Council was
found vicariously liable for the abuse, and the foster parents were deemed to fall within a ‘relationship
akin to employment’. This conclusion was reached after applying Cox. The Supreme Court was
particularly mindful that in foster care cases, the Council did carry out recruitment, selection, training,
supervision and payment of foster parents’ expenses. By choosing to place foster children in the care
of foster parents, the Council were able to provide for the children at more affordable costs compared
to if the children were placed in residential homes. Paula Giliker noted that ‘one is left to wonder
where, after three Supreme Court decisions in four years, this leaves the legal development of the
doctrine of vicarious liability ... In Armes the Supreme Court was being asked to develop the law beyond
the point which it had already reached. The candidate submits that the majority ruling in Armes is
proof that the law will certainly keep moving in the direction of public policy.

More drastically, in the latest appeal of Barclays Bank v Various Claimants (2018), the Court
of Appeal astonishingly concluded that an independent contractor fell within the relationship akin to
employment, justifying Barclays Bank’s liability for sexual assault by the independent contractor.
Barclays Bank appointed a general medical practitioner on contract basis to carry pre-employment
medical check-ups for its staff. A significant number of female staff alleged sexual assault by the
general practitioner, and brought an action against the Bank to be vicariously liable for the same. The
court applied the five factors outlined by Lord Philips in CCWS and concluded that a relationship akin
to employment did exist, and liability was justified. The candidate submits that this decision
represents a radical departure from established principles that vicarious liability is not usually imposed
for acts of independent contractors: Stevenson, Jordan & Harrison v MacDonalds & Evans (1952).
However, the bank appealed against the CA’s decision. What followed was an unexpected reversal of
the CA’s decision by the SC. Lady Hale explained that the ‘relationship akin to employment’ test,
although in the interest of justice, fairness and the social importance of compensation, “did not erode
the classic distinction between an employment relationship or one akin to employment, and a
relationship with an independent contractor. The SC clarified that where the individual was clearly
carrying out business on their own account, there was no need to apply the 5 considerations from
CCWS and further that concluded that on the facts, the necessary relationship was absent because
the doctor was not paid a retainer, which might have obliged him to accept a certain number of
referrals from Barclays. He was paid a fee for each report and was free to refuse to conduct an offered
examination. He no doubt carried his own medical liability insurance. This decision steers the law back
onto the path of certainty and reasonableness.

In relation to the second stage of liability, the Salmond test was adopted in the past, to
determine whether the employee’s wrongdoing fell within the course of employment. Any authorised
act of the employee is usually deemed to fall within the course of employment, including authorised
acts performed negligently (Century Insurance Ltd. v Northern Ireland Road Transport Board (1942),
and authorised acts performed in an unauthorised manner: Limpus v London General Omnibus Co
(1862). The reasoning behind this was that the main act performed was still an authorised act. Also,
policy factors such as that of benefit to the employer notwithstanding performance in an improper or
unauthorised modes justified imposition of liability. It followed that an employer could be vicariously
liable for theft committed by the employee where it happened while the employee was carrying out
an authorised task: Morris v CW Martin (1965) and for assault and battery where the same was done
for the sake of protecting the employer’s property: Poland v Parr (1927).

However where intentional criminal wrongdoing was committed, it was found that there was
no way that a deliberate wrongful act could be interpreted as ‘carrying out an authorised act in an
improper manner’ since employers don’t usually authorise the commission of deliberate criminal acts.
An employer therefore could not be vicariously liable for assault and battery flowing from a
disagreement between the employee and a customer in Warren v Henlys (1948) and for sexual assault
by a teacher on a pupil during school trips in Trotman v North Yorkshire CC (1999).

This position was, however, overruled in the landmark decision of Lister v Helsey Hall (2001),
where the House of Lords departed from Salmond test and held that vicarious liability may be imposed
for illegal acts, when there was 'close connection' between job and tort committed. Lister broke new
ground and overruled Trotman. Lister involved sexual abuse by a warden while on duty. The child
victims of the abuse brought proceedings against the warden’s employer, Hesley Hall, to be vicariously
liable for the abuse. The HOL found a close connection between the acts of the warden and the job
he was employed to do. This test of close connection, to determine whether the wrong doing occurred
in the course of employment was adopted after analysing the Salmond test and following the judicial
opinion of the Supreme Court of Canada in Bazley v Curry (1999) in which it was expressed that the
need for a practical and satisfactory remedy justified the influence of policy in decision-making.

In Lister, the HOL found that the warden was entrusted with the care of children and the
abuse had been inextricably interwoven with the carrying out of the warden’s duties of caring for the
children. Thus, it was just and fair to hold Hesley Hall liable. It was held that in cases of serious criminal
conduct the proper method of determining ‘course of employment’ is not to ask the simplistic
question of whether the acts were modes of doing authorised acts but to adopt a broad approach to
the question of the scope of an employee’s employment. Lord Hope stated that child sexual abuse is
an ugly phenomenon that places a heavy responsibility on the legal system to deal as fairly and justly
as it can with the consequences. The court was evidently juggling with multiple public policies in cases
of this kind, and between the interest of the school made to pay compensation for an act it clearly did
not authorise, and the damage done to the child victims, social justice and public policy favoured the
latter. To adopt a conceptualistic approach such as the Salmond Test, was deemed to be impractical,
unrealistic and insensitive to the need for compensation (Lord Steyn)

In Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church (2010), it
was held that the defendant was vicariously liable for acts of child sexual abuse committed by one of
its priests, even though the claimant was not a Roman Catholic and had nothing to do with the church
to which the priest was attached. This decision was certainly supported by public policy reasons as to
whether it would be just, fair and reasonable to treat a criminal act as falling within course of
employment was considered. However, the candidate is in agreement with F. Burton in ‘Limitation,
Vicarious Liability and Historic Actions for Abuse: A Changing Legal Landscape 2013’ that this decision
was motivated by increasing social and political awareness of the extent of physical and sexual abuse
in children institution.

JGE and CCWS followed suit by finding that the sexual abuse by the priest (in JGE) and brothers
(in CCWS) were well within the course of employment, using the Lister close connection test. Lord
Philips, however, pointed out that the close connection test in Lister says little about the nature of
that connection and exactly how close that connection needs to be. However, Lord Philips did give
guidance as to how the close connection test could be applied when trying to establish whether sexual
abuse fell within the course of employment. The court should ask whether the employment
relationship enabled the employer to use the employee to carry out work in such a way that it
significantly enhanced the risk of sexual abuse, so much so that a strong causal link could be found
between the employment and the abuse. The candidate commends the development of law in sexual
abuse cases. The move forward in CCWS is a welcomed expansion for the better.

In some other regards, however, one struggles with the application of the Lister close
connection other resulting in liability where the employee’s actions were clearly motivated by
personal hatred, spite or resentment. While it was held in Lister that personal acts of resentment and
passion will not fall in the course of employment, it is disturbing that in Mattis v Pollock (2003) the
employer was found vicariously liable when the employee, a bouncer, due to a disagreement with a
guest of the nightclub, after the nightclub had closed, went home to get a knife and followed the guest
and stabbed him in the back. The guest was rendered a paraplegic after the incident. The court held
that close connection between the employment and the attack lie in the fact that the nature of the
employment allowed the bouncer to use force. The decision in Mattis is at odds with the statement
in Lister about private acts of passion and in stark contrast with the findings in Warren discussed
above. The only possible way to reconcile this decision might be by turning to the gravity of the injury
to the claimant and the social importance of compensation and justice to the innocent victim.

It is noteworthy that Supreme Court, more recently in Mohamud v WM Morrison (2016)

extended scope of vicarious liability by holding Morrisons Supermarket liable when one of its
employees (a cashier) assaulted a customer. BBC commented that the decision was a wakeup call to
employers as they are now expected to take responsibility for acts of employees motivated by
personal racism. Lord Toulson simplified the close connection test, breaking it into two parts: (1) what
‘field of activities’ have been entrusted to the employee? and (2) whether there is sufficient
connection between the employee’s position and his wrongful conduct to make it just and fair to
impose vicarious liability. Applying this approach, the Supreme Court concluded that it was the
employee’s job to attend to customers and respond to their enquiries. He had simply engaged in a
vulgar and abusive means of undertaking the ‘field of activities’ assigned to him. The entire sequence
of events starting with the foul-mouthed verbal exchange between the claimant and the employee
and ending the employee attacking the claimant, was judged to be an unbroken sequence of events.
The employee had abused his position, and believed himself to be acting in the interest of the
company. As such it was just and fair for the supermarket to be vicarious liable.

The candidate finds the development in Mohamud to be bold and far-reaching. One cannot
help but ask whether the same conclusion could have been reached by simply categorising the
employee’s act as the performance of an authorised act in an unauthorised manner. While the
expansion of the close connection test into the territory of sexual abuse cases feels justified and
necessary, it is questionable whether the same can be said about the decision in Mohamud. Indeed,
the close connection test has been stretched even further beyond Mohamud to allow judges to find
a company liable for assault and battery by its managing director on the claimant (another employee)
after a drunken altercation following an-after-office Christmas party, where the assault took place at
a different location altogether (Bellman v Northampton Recruitment (2018)).

In marked change of judicial reasoning and attitude, the Supreme Court, for the first time in a
long string of cases, declined to find a close connection and refused vicarious liability in the recent
WM Morrison v Various Claimants (2020). The SC found that the employer was not vicariously liable
for breach of confidence and violation of the Data Protection Act 1998 by the company’s internal
accountant who leaked private data of employees, following a personal disagreement with his
employer. The approach in Mohamud was considered on the facts and it was found that the online
disclosure of data against the DPA was not within the field of activities entrusted to the accountant.
The accountant was only authorised to transmit data to the company’s auditors and no one else. The
wrongful disclosure was not closely connected to anything that fell within the ordinary course of the
accountant’s employment. The SC also reiterated: “On long-established principles, the fact that his
employment gave him the opportunity to commit the wrongful act is not sufficient to warrant the
imposition of vicarious liability. An employer is not normally vicariously liable where the employee was
not engaged in furthering his employer’s business, but rather was pursuing a personal vendetta.” This
decision may be described as a long-awaited return to the roots of the law, and the more conservative
approach of authorised/unauthorised acts. However, the fact that the importance of compensation
appears to have been compromised in the process. There seems to be a shift away from making policy-
driven decisions in the interest of justice and fairness, and the claimants in this case undeniably walked
away empty-handed.

As a conclusion, the discussion above shows that vicarious liability has developed in a way to
promote public policy reasons instead of adhering to the strict legal test. In Mohamud, Lord Dyson
stated that to “search for certainty and precision in vicarious liability is to undertake a quest for a
chimaera.” The candidate submits that the speed of movement in the law represents rapid succession
of liability and in the process certainty and precision seem to have been compromised. Paula Giliker
remarked that indeed the Supreme Court in affirming and extending the ‘relationship akin to
employment’ test and the ‘close connection’ test to unthinkable situations shows a preference for
flexibility instead of certainty. Given the important role of vicarious liability as far as social justice and
compensation are concerned, the candidate agrees with Lord Hope that the law should be robust
enough to withstand the process of refinement that is needed to enable a solution to be fashioned
that meets social purpose.

Sample 2:

‘A further concern must lie with the doctrine of vicarious liability itself. Since Lister v Hesley Hall Ltd
[2002] 1 A.C. 215, the courts have adopted a generous approach towards liability finding conduct as
varied as sexual abuse by a warden of a children’s home, to a vengeful knife attack by a bouncer
outside a nightclub, to be “ within the course of employment” (see Lister and Mattis v Pollock [2003}
1 W.L.R. 2158).’ P. Gilliker (2006) ‘The ongoing march of vicarious liability’, CLJ 489 at 492.
Critically evaluate the justification for vicarious liability particularly in such cases as these.

Suggested Answer:

The issue arising from the quote is whether the courts are applying the doctrine of vicarious
liability too liberally since Lister. If this is the case it raises questions as to its continued justification as
it could be going beyond its purpose. However, it is argued that the current application has a desirable
level of flexibility which correlates to the doctrine’s original justifications.

The doctrine is used by tort law to shift the burden of liability from individual tortfeasors to
their employer even when the latter is free from fault, and as not directly breached any duty owed to
the claimant. Therefore, it is a form of strict liability which places a burden on business, which could
prove unduly restrictive, with negative economic impacts while distorting ideas of corrective justice.
However, the doctrine has several justifications. It gives effect to the principle of loss distribution so
that the claimant is able to obtain compensation from a party who has the funds to actually pay it.
While perhaps detrimental to an innocent employer, the rationale is that the employer is
taking the benefits of that employee’s work and thus should carry the risks of his activity. They will
also have insurance cover while the actual tortfeasor may be a proverbial man of straw. This leads to
additional theories of tort which underpin the justification for the doctrine: namely, economic
efficiency and deterrence. The employer’s business costs increase the more compensation they pay,
as their insurance premiums rise. This increases the cost of their products/services, making them less
competitive. As such, there is a strong deterrent factor in ensuring that their employees do not cause
injury to others. Overall the doctrine is based on ‘social convenience and rough justice’ (Lord Pearce,
ICI Ltd v Shatwell [1965]), and in light of these factors there is a clear justification for the existence of
the doctrine.

Notwithstanding these justifications, liability is not automatically imposed on the employer.

The courts ask two questions in order to determine the matter and ensure that its application sticks
to its rationale. The first reflects the justification for placing liability on employers, and is whether or
not an employee actually committed the tort in question. This can be a grey issue because of the
prevalence of independent contractors; therefore, as modern employment practices changed and
more professionals entered employment from private practice, alongside technological
developments, the modern approach applies an economic reality test (Market Investigation Ltd v
Minister of Social Security [1969]) which, while still considering control, requires an assessment of
factors such as whether the tortfeasors hires his own help and provides his own equipment. This
overcomes the issue of control which existed historically, while giving a fair assessment of who should
be considered an employee, and justifies shifting liability.

Following this, the employee must also have been acting in the course of his employment
when he committed the tort. Naturally, the employee must be in the time and space of their employer
at this time, or at least a timeframe reasonably connected (Ruddiman & Co v Smith (1889)). This is
generally easy to determine with issues arising in terms of whether the conduct, while in the time and
space of the employer, was actually part of his employment. A new test for determining this was
provided in Lister, the ‘close connection’ test. The question to ask is whether the employee‘s tort was
so closely connected with his employment that it would be just to hold the employer liable. It may
seem hard to see where the connection is in such instances as Lister and Mattis where the conduct is
clearly illegal; however, Lord Steyn stated in Lister that the tort was ‘inextricably interwoven’ with his
duties. The warden was charged with caring for the children, while, as Lord Millett highlighted, he had
been entrusted with responsibility for discharging the duty of care owed by the employer to the
children, which he clearly failed. This link warranted liability and not simply the fact that the
employment created an opportunity for committing the tort; which is why it was stated that liability
would not have arisen if the gardener was the tortfeasor. There is concern that the test offers no exact
guidance on what is a sufficient connection and why liability is shifted (Dubai Aluminium Co. Ltd v
Salaam & Others [2003]), which Gilliker argues is due to a lack of uniform formulation of the test
among the opinions in Lister. From a practical perspective, employers cannot obtain adequate
insurance to pay compensation when they do not know the scope of the cover needed. This could
cause significant economic difficulties for firms as they may end up uncovered or the premiums
become too expensive, reducing their competitiveness and their financial health: all for an act which
was not of their doing and even expressly prohibited. This is hard to defend and goes against the
doctrine’s rationale, removing its justifications. If the doctrine operates arbitrarily, it loses legitimacy
and its rationale can be questioned. Indeed, Longmore LJ in Maga v Birmingham Roman Catholic
Archdiocese Trustee [2010] did this, asking whether it is simply to ensure someone can pay or to
encourage employers to exert more vigilance over employees.

However, these concerns suggest that the justifications are at odds and require one
overarching justification when in fact arguably as Salmon and Heuston argue (Heuston and Buckley
1996), there never has been. The stronger view is that while terms such as ‘fair and just’ are vague
they allow flexibility to develop and apply the doctrine to new situations such as in Lister, while being
mindful of the need for fairness to both parties. Assessing all of the facts of each situation and
weighing them against the doctrine’s justifications ensures liability is justly shifted when necessary so
as to ensure appropriate compensation for claimants. Any uncertainty could instead be viewed as a
positive virtue, forcing employers to ensure employees are competent and undertake appropriate and
regular checks, which strengthen the deterrence principle through principles of economic efficiency.
While employers may be unable to foresee all acts of employees, they do have a degree of control on
events by employing the individual, and an understanding that they may even be liable for illegality.
This simply requires them to perform adequate risk assessments, which is surely good practice.

Therefore, the doctrine remains as justified today, even in situations such as Lister, and gives
effect to the foundation principles of tort by ensuring that tortious conduct is corrected through
compensatory payments and spreading losses to those who are most able to bear them, and for the
other policy reasons which make this fair.

Sample 3:

‘This “close connection”test focuses attention in the right direction. But it affords no guidance on the
type or degree of connection which will normally be regarded as sufficiently close.’ per Lord Nicholls
in Dubai Aluminium Co. Ltd v Salaam & Others [2003] 1 A.C. 356 at [25]
Evaluate the extent to which the ‘close-connection test’ is appropriate for determining whether
tortfeasors were in the course of their employment for the purposes of vicarious liability.

Suggested Answer:

Vicarious liability is the vehicle tort uses to transfer the cost of compensating injured parties
from the party responsible to their employer. While there are long-standing justifications for this, the
issue is whether the courts’ current approach to establish whether the transfer should occur is
appropriate or damaging the rationale for the doctrine. It is argued that, while lacking definitive clarity,
the test is effective and allows the doctrine to fulfill its purpose in a justifiable manner.

The doctrine imposes strict liability on the employer, irrespective of the fact that they have
not directly inflicted the claimant’s injury and even if caused solely through the act of the individual
employee. It can be seen as a form of distributive justice ensuring compensation is forthcoming but
spreading the loss on to shoulders which are more able to bear the loss. This is justified by the law as
the employer should be protected by insurance and can also absorb costs by passing them on to
consumers through price increases. There is also, therefore, a deterrent factor in ensuring that their
staff are competent and continually trained to remain so, as this will make the employer more
economically efficient with better quality products/services and thus more competitive in the market
place. Another justification is that as the employer is taking the benefit from the conduct underway
when the tort was caused, morally they should also carry the risks.

For the doctrine to come into operation, two requirements must be satisfied. Firstly, reflecting
the fact that partial justification for shifting liability is that employers should carry the burdens as well
as benefitting from those undertaking acts on their behalf, it must be an employee who actually
commits the tort in question. This is decided by the economic reality test (Ready Mix Concrete), which
requires an assessment of factors relating to the economic relationship of the parties, while
additionally, as was historically the case, considering the level of control exerted over the individual.
However, the second requirement is arguably the most significant and controversial. This is that the
employee must have been in the course of their employment when they committed the tort. Again,
as the purpose of the requirement is wedded in the justifications for the doctrine, those justifications
can only have merit if the employer is in his employment at the time of the tort. Otherwise, too heavy
a responsibility is placed on employers if they are responsible for acts done outside of their time or
for their benefit (Storey v Ashton).
 The doctrine itself would fall into disrepute. Previously, judicial discussion of this requirement
focused on whether the act was authorised or not and, if it was an authorised aspect of their
employment, whether it was performed in an authorised manner. This was based on the proposition
that acts relating to the scope of employment which were prohibited would not carry liability, but a
breach of a prohibition as to the manner of performing an authorised act would be within the scope
of the doctrine (Plumb v Cobden Flour Mills Co Ltd [1914]). This caused complications in disputes
regarding what was the actual scope of enjoyment and whether the act in question was outside it or
not, notwithstanding that the scope of employment should be looked at broadly. Such a
determination was particularly difficult to make with regards to intentional wrongdoing.

In Lister a children’s home was held vicariously liable for the sex abuse by a warden who was
an employee. Clearly, he cannot be said to be performing his authorised employment in an
unauthorised way let alone be expressly permitted. It was a clearly illegal act. Lord Steyn felt that his
duties as a warden were ‘inextricably interwoven’ with what he did; there was an undertaking by the
employer to care for the boys and they were abused in their time, and on their premises creating a
close connection. It was just a question as to whether it was ‘fair and just’ to impose liability on that
basis. It was not the opportunity given by the employment that warranted liability but, as Lord
Hobhouse stated, a relationship had been assumed between the claimant and the employer which
imposed duties on the latter. The warden had been entrusted to perform that duty of care and instead
breached of it.

The question therefore is whether the close-connection test achieves its purposes or is its
formulation in Lister detracting from the justifications of the doctrine. Gilliker (2006 and 2010) has
repeatedly argued that the lack of definitive formulation of a test is causing problems for lower courts,
a view seemingly reflected by Lord Nicholls in Salaam. Gilliker suggests this allows the doctrine’s
application in inappropriate areas. Clearly, the test is vague and has created uncertainty which is rarely
useful. This uncertainty leaves employers not knowing what acts will result in their liability. This could
increase litigation as parties equally feel they have a chance of success, particularly when they are
intentional illegal acts. At the very least it impacts employers’ liability to obtain insurance, which
removes one of the factors which is said to make the transferring of liability fair.

However, taken collectively the opinions in Lister are reconcilable. Lord Hutton agreed with
Lord Steyn, and there is little difference in the language used by Lords Hobhouse and Millett. Although,
strictly speaking, adopting different language, they can be reconciled: by entrusting the performance
of the duty to the warden it created a sufficient connection to make it fair and just to impose liability.
All emphasized the need for a causal link which, as Lord Clyde noted, went back to Salmond’s first
account of the doctrine. It could be said that the test provides flexibility, allowing a full consideration
of the facts and an evaluative judgment made as against the underlying principles of compensation,
deterrence and loss distribution while drawing on precedent where applicable. Indeed, this was the
approach accepted by Lord Nicholls in Salaam owing to the wide variety of situations in which the
doctrine may operate. He therefore saw an appropriate way through the issue highlighted by the
question. The concern expressed by Giliker regarding the lower courts can thus be overcome. Lower
courts are arbiters of fact. Once they have established the full facts of what the employee’s duty was
and how the tort was committed they have the scope to determine, in light of the doctrine’s purpose,
whether the two are sufficiently close. If they are, the requirement maintains the necessary justifiable
link to the employer to give effect to the doctrine’s rationale.