Tort law concerns civil wrongs, damaging people's rights to health and safety, property, or a clean environment. Most accidents have become strictly regulated, and may require insurance, for workplaces, road accidents, products, or environmental harm such as the Deepwater Horizon oil spill.
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law,[1] rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
In English law, torts like other civil cases are generally tried in front a judge without a jury.
History
Following Roman law, the English system has long been based on a closed system[clarification needed] of nominate torts, such as trespass, battery and conversion. This is in contrast to continental legal systems, which have since adopted more open systems of tortious liability. There are various categories of tort, which lead back to the system of separate causes of action. The tort of negligence is however increasing in importance over other types of tort, providing a wide scope of protection, especially since Donoghue v Stevenson. For liability under negligence, a duty of care must be established owed to a group of persons to which the victim belongs, a nebulous concept into which many other categories are being pulled.[2]
Intentional property torts involve any intentional interference with the property rights of the claimant. Those commonly recognised include trespass to land, trespass to chattels, and conversion.
Economic torts include inducing breach of contract, intimidation, conspiracy, and unlawful interference with trade. The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon."[3]
In Mogul Steamship Co. Ltd.[4] the plaintiff argued he had been driven from the Chinese tea market by competitors at a 'shipping conference' that had acted together to underprice his company. But this cartel was ruled lawful and "nothing more [than] a war of competition waged in the interest of their own trade."[5] Nowadays, this would be considered a criminal cartel. In labour law the most notable case is Taff Vale Railway Co v Amalgamated Society of Railway Servants.[6] The House of Lords thought that unions should be liable in tort for helping workers to go on strike for better pay and conditions, but it riled workers so much that it led to the creation of the British Labour Party and the Trade Disputes Act 1906. Further torts used against unions include conspiracy,[7] interference with a commercial contract[8] or intimidation.[9]
Between strict and intentional torts, the tort of negligence has generated the largest body of law. Negligence means careless conduct, the opposite of being diligent or careful. Because modern English tort law does not yet recognise that it positively protects rights (such as person, property, or economic interests),[10] the "conventional approach" is that claimants must establish someone owes them a duty of care,[11] that the duty is breached,[12] that the breach caused loss or damage,[13] and there are no defences.[14] Defences may include that the claimant having contributed to their own loss, that they voluntarily assumed a risk, or that they were acting illegally. Significant litigation has taken place over psychiatric injury, economic loss and omissions. The law also recognises that when one person controls another person, property, or companies this carries responsibility, but that public bodies do not owe duties of care in negligence, simply because they have public law duties.
In 1932, Donoghue v Stevenson held a consumer could sue a manufacturer for personal injury after she drank ginger beer with a dead snail in it. A duty of care was owed to keep the product safe because manufacturers could "reasonably foresee" harm.
The conventional starting point in English negligence law is to ask whether there is a "duty of care", which indirectly protects someone rights or interests.[16] This open-ended approach began with the leading modern case, Donoghue v Stevenson in 1932.[17] Here, Mrs Donoghue claimed compensation for illness after she drank ginger beer with a dead snail in it, the bottle made by Mr Stevenson's company, in Paisley, Scotland. Donoghue had no contract with Stevenson, and her friend bought the drinks at the cafe, but the House of Lords held that Donoghue was owed a duty of care, it was breached, and she could be compensated. Lord Atkin said "in English law there must be, and is, some general conception of relations giving rise to a duty of care", and this is: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure... persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation". Lord Macmillan agreed, but on incremental grounds that "the conception of legal responsibility may develop in adaptation to altering social conditions and standards" and the "categories of negligence are never closed."[18]
In practice, Lord Atkin's open-ended approach was followed, but contained. For instance, in Home Office v Dorset Yacht Co Ltd the House of Lords held the Home Office owed a duty of care for borstal boys who escaped and damaged a boat only because they were under the Home Office's control.[19] In Anns v Merton LBC the House of Lords held that a council owed a duty of care to homebuyers, for not supervising developers who built faulty foundations, leading to cracks in the walls.[20] By contrast, in Hill v Chief Constable of West Yorkshire the House of Lords held the police owed no duty of care for not arresting a serial killer sooner, despite interviewing him before he committed more murders.[21] These cases did not always make clear why a duty was owed, so in Caparo Industries plc v DickmanBingham LJ suggested a "three stage" analysis of the cases.[22] First, there could only be a duty if there is "reasonable foreseeability of harm". Second, Bingham LJ said there had to be "proximity" or "close and direct relations" between the defendant and claimant.[23] Third, "the court should find it just and reasonable to impose such a duty". This approach was repeated by the House of Lords, though Lord Bridge cautioned that "the concepts of proximity and fairness... are not susceptible of any such precise definition as would be necessary to give them utility as practical tests". Nevertheless, cases after Caparo routinely analysed whether there was a duty of care by examining the "three stage" test. On the facts, the Lords held that an auditor owed no duty of care to a takeover bidder, who held shares in a company that the auditor falsely told was making healthy profits, the opposite of the majority of the Court of Appeal.[24]
When Mrs Robinson was knocked over by police, who were arresting a dealer in Kirkgate, Huddersfield, the Supreme Court held she could get compensation. They did a positive act causing her personal injury.
However, since 2018, the Supreme Court has reaffirmed the approach of deciding cases incrementally, and rejecting any "three stage" test. In Robinson v Chief Constable of West Yorkshire Police the Supreme Court held the police owed a duty of care, and had to pay compensation, to a passer-by who they injured while trying to arrest a drug dealer.[26] The view that there was a three stage "Caparo test which applies to all claims in the modern law of negligence... is mistaken".[27] Instead "in a novel type of case" the common law approach "is to develop incrementally and by analogy with established authority" and analogy means "identifying the legally significant features of the situation with which the earlier authorities were concerned" and it is simply the "exercise of judgement" by a court that must be "fair, just and reasonable."[28] Situations where it is already "clearly etsablished that a duty of care is or is not owed" include "motorists to other road users, by manufacturers to consumers, by employers to their employees, and by doctors to their patients" and in those cases it is "inappropriate to reconsider whether the existence of the duty is fair, just and reasonable".[29] As for public bodies, negligence law "generally applies... in the same way that it applies to private individuals and bodies", there is "no duty of care to prevent the occurrence of harm", but there is "a duty of care to avoid causing actionable harm".[30] This included the police "when discharging their function of preventing and investigating crime."[31] So the police were liable for knocking Mrs Robinson over.[32] In moving incrementally, the House of Lords also made clear in The Nicholas H that the duty of care should be interpreted compatibly with international law. Here, a non-profit shipping classification society certified that a was seaworthy, but it was not and it sank, destroying the plaintiff's cargo. The House of Lords, however, held that no duty of care was owed, even though harm was foreseeable, because the Hague Rules of 1924, an international convention, limited the liability of cargo carriers and owners if cargo was lost, and Lord Steyn said imposing a duty of care would upset this balance.[33]
If a duty of care is established, a claimant must also show that it was breached. "Negligence is the omission to do something which a reasonable man" following the ordinary "conduct of human affairs, would do, or doing something which a... reasonable man would not do."[34] Over time, standards of conduct in human affairs have become more strict, and more prone to protect people's rights, particuarly against personal injury, property or environmental damage. For instance, during the 1950s, in Bolton v Stone the House of Lords held that when Miss Stone was hit by a ball next to a Manchester cricket club, the club was not liable to pay comensation because (according to Lord Oaksey) "an ordinarily careful man does not take precautions against every foreseeable risk."[35] Similarly, in Latimer v AEC Ltd the House of Lords held that an employer had not breached a duty to an employee that slipped on the factory floor, despite failing to fully cover the floor with sawdust.[36] And in Roe v Minister of Health the Court of Appeal held that when a man was poisoned with phenol at a hospital because it kept a spinal anaesthetic in jars that had undetected cracks, he had no claim, because: ‘We must not look at the 1947 accident with 1954 spectacles.'[37] By contrast in The Wagon Mound (No. 2) the Privy Council advised that a ship owner that leaked oil was liable for damage from an explosion, because the small risk it would catch fire was something not to "brush aside as far fetched", and a reasonable person would not "do nothing when it was so easy to prevent it" exploding, by stopping the oil leaking.[38]
The modern approach is that standards of a reasonable person will be high, and has moved from "away from the concept: ‘No liability without fault’... to apply the test: "On whom should the risk fall?", particularly where one party has or could get insurance.[40] For example, in Nettleship v Weston, Weston asked her friend Nettleship to teach her to drive, Weston crashed and injured her friend, and he sued her on the basis that the insurance policy would cover it. The insurer's lawyers, subrogated to Nettleship, argued that Weston's incompetence meant there was no breach of duty because she was only doing the best she reasonably could as a learner driver. Lord Denning MR held that Weston was to be judged by an objective standard of a good driver, because "Parliament requires every driver to be insured against third-party risks... [and] should be compensated out of the insurance fund. The fund is better able to bear it than he can."[41] In contrast, a 15 year old girl was not liable for accidentally taking out her friend's eye while fighting with plastic rulers, because she was too young to know better.[42] Next to insurance, a second consideration is the general standards at the time, although these can be debated. In Baker v Quantum Clothing Group Ltd a majority of 3 to 2 in the Supreme Court held that employers had not breached a duty by having loud knitting machinery up to 90 decibels, which caused Baker to lose her hearing, because the government had not banned it. Lord Kerr and Lord Clarke dissented, arguing that the UK government and EU reports from 1972 and 1988 showed there was awareness that 90 decibels was too loud.[43] A third consideration, codified in the Compensation Act 2006 section 1, is whether a defendant is undertaking "desirable activity", or is "for the benefit of society", took a "responsible approach", or "was acting heroically".[44]
Professionals are also expected to exercise special skills, to a standard that can be expected of similar professionals. In Bolam v Friern Hospital Management Committee, McNair J said the "test is the standard of the ordinary skilled man exercising and professing to have that special skill", and a doctor will not be responsible if they "acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art".[45] In Bolitho v City and Hackney HA the House of Lords added that professional opinion can be rejected "in a rare case" if it is demonstrated that it "is not capable of withstanding logical analysis".[46] Further, in Montgomery v Lanarkshire Health Board the Supreme Court held that there is a duty on "doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment." They are only allowed to withhold information to patients if the doctor "reasonably considers that its disclosure would be seriously detrimental to the patient's health."[47] Finally, a doctrine of res ipsa loquitor is that, while the formal burden of proof is usually on the claimant, when the claimant gives evidence the defendant must produce "some answer which is adequate to displace the prima facie inference".[48] That "evidence must be evaluated to see if it still reasonable to draw the inference of negligence from the mere fact of the accident."[49]
Beyond a duty of care, and a breach, the third main element in negligence is a breach "causes" damage. The starting point is that a causal link must be proved on the balance of probabilities, which means "more likely than not", much lower than the criminal standard of "beyond reasonable doubt". For example, in Barnett v Chelsea & Kensington Hospital a hospital was not responsible when a man drank tea laced with arsenic, and died shortly after being told to go home, because he would have died anyway. Neild J held that "the plaintiff has failed to establish, on the grounds of probability, that the defendant's negligence caused the death of the deceased."[50] If, by the time damages are determined, another event has caused a similar loss, then damages will be reduced. For instance, in Jobling v Associated Dairies Ltd an employee got a back injury from the employer's breach of duty, but later also got a spinal disease, myelopathy which meant he could not work anyway. The House of Lords held the employer was no longer liable, because the court had to take account of the "vicissitudes of life" We must accept, said Lord Wilberforce "a mixed world where a man is protected" (or not) "against injury and misfortune by a whole web of rules and dispositions", and "this is inevitable".[51] Damages for loss of a chance are available in cases on economic loss, so in Allied Maples v Simmons & Simmons, a solicitor that negligently failed to advise to delete a warranty from a business sale contract was held liable for the lost chance that a buyer would have accepted it.[52] However in Hotson v East Berkshire Health Authority the House of Lords rejected that loss of chance damages were available in a personal injury case, where a boy fell from a tree, and poor treatment of hospital reduced his chance of recovery by 25%.[53]
Ministry of Defence v AB rejected veteran claims for cancer, after they watched nuclear tests, because they were too late, and in obiter that materially increasing the risk of cancer was not enough - nuclear radiation had to be a certain cause of cancer.[54]
In cases where causation is uncertain, claimants may show that defendants' actions materially contributed or increased the risk of damage. In Bonnington Castings Ltd v Wardlaw the House of Lords held an employer was liable to compensate an employee for pneumoconiosis, because silicone dust from a hammer could not be prevented, but dust from swing grinders could with an extraction fan. Failing to install the fan was a "material contribution", said Lord Reid, to the damage.[55] In McGhee v National Coal Board the House of Lords went a step further, holding that an employer was liable for a McGhee contracting dermatitis from brick kiln dust, by failing to provide washing facilities at work. The medical evidence was uncertain about whether the dust did cause dermatitis, but it was clear that prolonged exposure, said Lord Reid, "materially increased the risk of injury".[56] Then in Fairchild v Glenhaven Funeral Services Ltd the House of Lords held that several employers were liable to three claimants for their exposure to asbestos and the resulting mesothelioma. Although it was scientifically uncertain which employer was responsible for the fatal asbestos fibres that would trigger mesothelioma, because all employers materially increased the risk, they were all liable to compensate. As Lord Hoffmann put it "a rule requiring proof of a link between the defendant’s asbestos and the claimant’s disease would, with the arbitrary exception of single employer cases, empty the duty of content."[57] In Barker v Corus (UK) plc the House of Lords went back a step, holding that if one employer was insolvent, the other employers were not jointly and severally liable, but proportionately liable, so they did not need to cover its share.[58] However this was immediately reversed by the Compensation Act 2006 section 3, so that in mesothelioma cases joint and several liability is the rule. In Sienkiewicz v Greif (UK) Ltd the Supreme Court added that if there is a single employer who exposes workers to asbestos beyond a de minimis level, but the workers also had environmental exposure, the employer is still liable for all of the harm.[59] However, in Ministry of Defence v AB three members of the Supreme Court said, in obiter dicta there could be no claim by veterans who watched 21 nuclear bomb tests in the South Pacific and later got cancer, because they took the view that the evidence showed there was a material increase in risk of cancer, but not (unlike Fairchild) that this actually would cause injury at all.[60]
The House of Lords has held causation depends on the purpose of the rule that creates responsibility. So a petrol tank owner was responsible for diesel dumped in the Ebbw River, even though vandals did it, because vandalism is common.
If probable cause or increased risk of harm is established, a defendant may still argue that an intervening event broke the chain of causation, a novus actus interveniens. This depends on "common sense" and the "purpose" of "the rule by which repsonsibility is being attributed".[62] For instance, in Scott v Shepherd in 1773, Shepherd tossed a squib into a crowded Somerset market, which Willis to protect himself threw away, which Ryal tossed away again, before it hit Scott and exploded. De Gray CJ held "I do not consider Willis and Ryal as free agents in the present case, but acting under a compulsive necessity for their own safety", and so their actions did not break the chain of responsibility that Shepherd had.[63] By contrast, in McKew v Holland & Hannan & Cubitts Ltd the House of Lords held that an employer who was responsible for McKew's workplace stiff left leg injury, was not also responsible when McKew jumped down some stairs (given his stiff leg) and broke his right ankle: this unreasonable action broke the causal chain.[64] In Spencer v Wincanton Holdings Ltd the Court of Appeal clarified that a tort victim's unreasonableness had to be very high to be liable. So when Spencer, whose leg was amputated after a work injury, did not use crutches and tripped on rope while at a petrol suffering further injury, the employer was still liable for that: this did not break the causal chain.[65] A different kind of limiting principle was is "remoteness". In the 1921 case Re Polemis and Furness, Withy & Co Ltd Bankes LJ affirmed that, when benzin leaks from cans, and a plank dropped into a ships hold, creating a spark and making a ship explode, "it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated."[66] However, in The Wagon Mound (No 1), a ship leaked oil into Mort's Dock, while on the other side of Sydney Harbour a Caltex worker was welding, creating sparks. These landed on cotton and rags that smouldered, before exploding into flames days after the oil was released. The Privy Council advised that "it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was 'direct' or 'natural'", so "foreseeability becomes the effective test", and the polluter did not have to pay.[67] The House of Lords clarified in Hughes v Lord Advocate that if a broad type of damage is foreseeable, not all the knock on effects of an accident must be. So a boy who knocked over a paraffin lamp into a manhole which caught fire (likely), and then fell into a man hole due to the explosion (less likely), could claim damages from the public body who has not made the workplace safe.[68] Similarly in Jolley v Sutton LBC the House of Lords held that a council owed a duty of care to a 14 year old boy who was injured playing on a derelict boat. Although it was unlikely that a jack under the boat would collapse, it was foreseeable that children would "meddle with the boat at the risk of some physical injury."[69] However, the same remoteness test was imposed in nuisance cases, even though this enables enterprises to externalise the risks of business when they are better placed to get insurance, and enables polluters to not pay.[70]
If a duty of care, breach, and causation are shown, a defendant may still have a defence against liability. The three main defences are contributory negligence, voluntary assumption of risk, and illegal behaviour of the claimant. First, in the 19th century, contributory negligence was an absolute defence against any liability,[71] but since the Law Reform (Contributory Negligence) Act 1945 the courts may apportion liability as they think 'just and equitable having regard to the claimant's share in the responsibility for the damage'.[72] For instance, because there are so many road accidents, and they are worse when people do not wear seat belts, the Court of Appeal set a "rule of thumb" in Froom v Butcher that if a seat belt would have made "all the difference" the claimant's damages would be reduced by 25%, and if some difference 15%.[73] Children have also been held to be contributorily negligent. In Jackson v Murray a child, age 13, got off a school bus on the A98 road near Banff, and ran across a road where she was hit by a car. The car should have been going more slowly. The Supreme Court reduced the damages by 50% for the schoolgirl's contributory negligence, from the 90% allocated by the first instance judge, and 70% by the Court of Appeal.[74] According to Beatson LJ, a 100% reduction in damages is "wrong in principle" because that would negate the concept that there is shared fault.[75]
Froom v Butcher held that people who do not wear seat belts have damages reduced up to 25% if injured, and in Jackson v Murray a child hit by a car had damages reduced by 50%.
Second, a claimant may be held to have voluntarily assumed risk of harm, or volenti non fit injuria (to the willing, no harm is done). In the 19th century this was an absolute defence, particularly against workers' claims.[78] In Wooldridge v Sumner in 1963, Diplock LJ held that "the maxim, in absence of express contract, has no application to negligence".[79] The Road Traffic Act 1988 section 149 has removed volenti as a defence for all car or motor vehicle accidents, the most common type of accident. However it still operates where people are exceptionally careless. In Morris v Murray a plaintiff got into a plane with a defendant pilot after he had drunk 17 whiskeys. The plane crashed. The Court of Appeal held the plaintiff "actively sought" the "joyride in the aircraft".[80] On the other hand, in Reeves v Metropolitan Police Commissioner the House of Lords held when a prisoner committed suicide, this voluntary act did not negate the police duty to prevent prisoners killing themselves; that would, said Lord Hoffmann, be "self-contradictory".[81]
A third main defence is that the claimant committed an illegal act, and there is "no action from a bad cause" (ex turpi causa non oritur actio), because traditionally the courts did not wish to give wrongdoing claimants any benefit.[82] However, not all illegal conduct precludes a claim, and the courts generally adopt a policy of ensuring wrongdoers do not escape. In Revill v Newbery a burglar trespassed on Newbery's property, and Newbery shot him with a shotgun in the arm and chest. The Court of Appeal held that although he was partly responsible, and should have damages reduced by two-thirds, a trespasser is not an "outlaw", and it was out of all proportion for Newbery to be waiting in his shed with a shotgun to blast the burglars.[83] By contrast in Cross v Kirkby, the Court of Appeal refused a claim by a trespasser who protested against fox hunting with a baseball bat, but who was disarmed by the person he assailed, who then hit the protestor on the head.[84] In Gray v Thames Trains Ltd the House of Lords held that a man who got post traumatic stress disorder from a train crash at Ladbroke Grove in 1999, and who then killed someone, could not claim indemnity from the train company for his future wrongs because his conduct was illegal.[85] Similarly, in Henderson v Dorset Healthcare University NHS Foundation Trust the Supreme Court held that Henderson could not claim damages from the NHS for killing her own mother, even though the NHS should have put Henderson into hospital for mental health disorders, because the principle of illegality spoke against Henderson's claim.[86]
Assumption of responsibility arises when there is a professional relationship between parties, such as between a solicitor or an architect and their client.[87]
Historically, English courts have been reluctant to allow claims for nervous shock. Early claims involved ladies who suffered what the courts referred to as a "malady of the mind". It was not expected for men to succumb to such problems.
Today, courts are considerably less cautious but additional hurdles are still imposed upon claimants under certain circumstances. The following criteria must be satisfied:
The injury must have been an event caused by the defendant – the defendant must have owed a duty of care to the claimant, but not a unilateral duty covering every eventuality, and it must have been precisely identified what duty was owed and whether the harm could have been foreseen.
The claimant must have been involved in the injury (i.e. proximity must be demonstrated).
The event must have caused a recognised psychiatric injury (e.g. pathological grief (Vernon v Bosley) or post-traumatic stress disorder (Leach v Chief Constable of Gloucestershire).
The courts had been cautious for a number of reasons, including the fear of floodgates (indeterminate liability), potential for fraud (brought on by people exaggerating their claims), problems of proof and diagnosis (including the costs of expert opinion), psychiatric illness may be considered less serious than physical harm, the claimant is often a secondary victim, and finally, the courts argued that Parliament is better suited to dealing with this area.
In the case of Dulieu v White [1901] 2 KB 669, the claimant, Mrs Dulieu, was working in a public house. While she was serving, the defendant negligently drove his horse-drawn van into the bar. She suffered shock which resulted in a miscarriage, and she sued the defendant. Mr White was held liable for causing nervous shock resulting in miscarriage, as the claimant reasonably believed herself to be in danger.
Similarly, in Page v Smith [1995] AC 155, it was held that Mr Smith was liable for causing Mr Page psychiatric injury (chronic fatigue syndrome) after a car crash, because Mr Smith could have reasonably foreseen that Mr Page would suffer physical injury for the crash. So liability for causing psychiatric injury depends on the foreseeability of the physical injury, as long as the psychiatric illness is medically recognised.
In Young v Charles Church (Southern LTD)(1997) 39 BMLR 146, the claimant was a "participant" in the event (i.e. a primary victim – Evans & Hitchinson LJJ). He and Mr Cook were raising scaffolding poles in an area that was not secured by the employers; the power lines were not switched off. Mr Cook touched a pole to the electric wiring and suffered a horrific death which caused Mr Young great distress. Even though he never feared for the loss of his own life, the court held that Mr Young was in the area of potential damage, so he was entitled to claim compensation.
Finally, in McLoughlin v Jones [2002] QB 1312, there was an allegation that Mr McLoughlin was a bad landlord, threatening and beating up tenants to get their rent from them in cash. He was charged for a criminal offence and sentenced to prison. He claimed that his solicitors (Jones and Others) had acted without the evidence, especially the witness statement of a person who knew that Mr McLoughlin was not present when the beatings allegedly took place. It soon became apparent that he was actually an upstanding member of society and he suffered psychiatric injury as a result of the imprisonment and loss of reputation. (Note that solicitors have a pre-existing duty of care towards their clients.)
Foreseeability – there must be a close relationship of love and affection between the secondary victim and the primary victim. This is presumed in the case of spouses and between parents and children, but must be demonstrated in all others.
Proximity – there must be temporal and spatial proximity between the claimant and the accident.
How the accident was caused, or proximity of perception.
Case law where this test has been applied includes McLoughlin v O'Brian [1983] AC 410, in which the husband and children of the claimant were involved in a car accident that was caused by the negligence of the defendant. The claimant found out about the accident an hour later and, when she got to the hospital two hours later, one child had already died. She saw her husband and children suffering and suffered shock, depression and a change of personality. The court established a spectrum of proximity; a pedestrian should be able to withstand seeing the accidents that occur in everyday life, but a family member of the victims will inevitably suffer greater emotional harm. Nonetheless, simply seeing the aftermath of the accident and not witnessing it is insufficient proximity. Similarly, seeing a video of the accident is insufficient.
Alcock v Chief Constable of South Yorkshire Police (1992) HL was a test case in the aftermath of the Hillsborough disaster, where 95 spectators were crushed to death and 400 injured in a stadium. The event was televised and broadcast on radio. In Alcock, claims for damages for psychiatric illness were brought by fifteen relatives of the victims of the tragedy; some of them had been present at the match – but not in the area where the disaster occurred – and others had seen it on television or heard it on the radio. The Chief Constable of South Yorkshire Police denied that the claimants were owed a duty of care. On the basis of the three exclusion criteria mentioned above, all claims were ruled out.
Tort law has historically been conceptualised around individual responsibility, yet in a modern economy, harm often takes place through cooperative activity, namely through enterprises, or through third parties. This is seen in four main ways. First, the principle of "vicarious liability" is that employers are responsible for harm by (and to) employees or agents. Second, corporate groups are responsible for others in the group. Third, despite a general aversion to imposing liability for omissions, people can be responsible for third parties, particularly through their property. Fourth, and similarly, the law generally does not extend liability to public bodies for failing to prevent harm to others, but does impose responsibility when public bodies have speicific duties to take care or prevent harm.
"If a slave man or woman damages any piece of someone else's property, then provided the person who suffers the loss was not himself partly to blame because of inexperience or careless conduct, the slave's owner must either make good the damage in full, or hand over the actual offender."
Vicarious liability refers to the idea of an employer being liable for torts committed by their employees, generally for policy reasons, and to ensure that victims have a means of recovery.[88] The word "vicarious" derives from the Latin for 'change' or 'alternation'[89] and the old Latin for the doctrine is respondeat superior. To establish vicarious liability, the courts must find first that there exists a relationship of employee and employer. The torts of independent contractors generally do not impose vicarious liability on employers; however, Honeywill and Stein Ltd v Larkin Brothers Ltd demonstrates this principle does not apply where particularly hazardous activities are contracted for, or a non-delegable duty is owed. Secondly, the tort must have been committed 'in the course of employment'; or while an employee is going about the business of their employer. A preferred test of the courts for connecting torts to the course of employment was formulated by John William Salmond, which states that an employer will be held liable for either a wrongful act they have authorised, or a wrongful and unauthorised mode of an act that was authorised.[90] Where in Limpus v London General Omnibus Company an omnibus driver chose to disobey strict instructions from his employer, to obstruct a rival company, they were still liable, as he was merely engaging in his duties in an unauthorised way. However, in the contrasting case of Beard v London General Omnibus Company, there was no liability where a conductor drove an omnibus negligently, as it was no part of his duties. Under the test, employers were generally not held liable for intentional torts of their employees. Lister v Hesley Hall Ltd established a newer test, stating that employers would be liable for torts which were closely connected to the duties of an employee.
Barclays Bank plc v Various Claimants [2020] UKSC 13, no liability for self-employed doctor who was engaged to examine staff and sexually assaulted them
Generally speaking, English law imposes no responsibility on someone who omits to prevent harm, rather than positive acts of harm. But the law does create responsibility for a third party's actions if someone may exercise control over another (and they omit to do so), particularly over children, property, or enterprises. The strictest form of this principle of vicarious liability, where employers are responsible for tortious acts of workers (even if they forbid them), because employers take the benefits from workers' labour, and so should bear the burdens.[91] This principle extends to all agents within the scope of an enterprise's risk.[92] Outside these cases, in Stovin v Wise Lord Hoffmann argued the main reasons against liability for omissions were because, politically, it would invade individual freedom, morally, there is little reason one person should be more liable than another and, economically, there could be no externalities from costs of production.[93] This differs where someone, such as a public body or an employer, becomes involved and makes a situation unsafe. For instance, a fire brigade that turned off a sprinkler was liable for making a building with special effects explosives in it burn down.[94] In Kent v Griffiths, an ambulance responded to the claimant's call, but took 40 minutes to travel 6.5 miles by while time the claimant suffered respiratory arrest and got brain damage.[95] And where a senior naval officer did not prevent (as regulations required) an airman drinking heavily, or give him assistance when he passed out, it was liable when navy staff instead put him to bed where he vomited, choked and died.[96] The common thread, to separate an omission from an act, is a positive undertaking of responsibility.
In Home Office v Dorset Yacht it was held that "control imports responsibility", including for children, property and companies.
In third party cases, a common theme is that "control imports responsibility".[97] First, in the leading case on children, Home Office v Dorset Yacht Co, the House of Lords held that the Home Office was liable where borstal boys escaped, stole a yacht, and crashed it in Poole Harbour.[98] Second, concerning control over property, in Goldman v Hargrave the Privy Council advised that a landowner was responsible when a red gum was struck by lightning, felled by the council, left to burn, but then the fire spread to the neighbour.[99] By contrast, in Smith v Littlewoods Organisation Ltd the House of Lords held that when a cinema was left empty, and vandals started fires, because the owner did not know of this it was not responsible when a fire spread to another building that burned down. Liability would be "only imposed", said Lord Goff "where the defendant has negligently caused or permitted the creation or source of the danger on his land, and where it is foreseeable that third parties may trespass."[100]
Corporate liability
The third main situation where one party is responsible for another is by controlling an enterprise, particularly companies. In Lubbe v Cape plc the House of Lords held in principle a tort victim with asbestos injuries that was employed by a subsidiary company could sue a parent company (that owns the subsidiary's shares) depending on "what part the defendant played in controlling the operations of the group, what its directors and employees knew or ought to have known, what action was taken and not taken" and whether there was a duty and breach.[101] This was applied in Chandler v Cape plc where Chandler had worked for an insolvent subsidiary of Cape plc, had got asbestosis, and was allowed to claim damages from the parent if "the parent has a practice of intervening in the trading operations of the subsidiary, for example production and funding issues."[102] Similarly in Lungowe v Vedanta Resources Plc the Supreme Court held that 1826 people in Zambia could in principle claim compensation for personal injury, property damage, and environmental damage from a copper mine's pollution, owned by Vedanta Resources's subsidiary. According to Lord Briggs everything depends on "the opportunity to take over, intervene in, control, supervise or advise the management" of a subsidiary.[103]
While negligence actions set a general groundwork, many further fields of tort have developed their own identity or, where judicial decision-making was seen as insufficient by Parliament, through statutory reform. Major statutory torts concern food safety, health and safety and environmental law. For example, liability under the Nuclear Installations Act 1965, the Merchant Shipping Act 1995, or liability imposed on utility (gas and electricity) companies to ensure the safety of their products, all of which are strict liability.[104] While a statute has said nothing specific, a tortious duty may have arisen. This will be a question of statutory interpretation (e.g. Stovin v Wise [1996] AC 923).
Road safety
Many serious accidents in practice take place on the roads. Like workplaces, this encouraged Parliament to require compulsory insurance for harm. The Road Traffic Act 1988 requires that motorists either be insured against any liability for injuries to other drivers, pedestrians or passengers and damage to property, or have made a specified deposit (£500,000 in 1991) and keeps the sum deposited with the Accountant General of the Supreme Court. Using an uninsured motor vehicle on public roads is an offence. Private land to which the public have a reasonable right of access (for example, a supermarket car park during opening hours) is considered to be included within the requirements of the Act. Police may seize vehicles that do not appear to have necessary insurance in place. Drivers caught driving without insurance for a vehicle they own are liable to be prosecuted by the police and, upon conviction, will receive either a fixed penalty or magistrate's courts penalty.
One of the principal terms that accompanies the employment relationship is that the employer will provide a "safe system of work". As the industrial revolution developed, accidents from a hazardous working environment were a front line target for labour legislation, as a series of Factories Acts, from 1802, required minimum standards in workplace cleanliness, ventilation, fencing machinery, not to mention restrictions on child labour and limits to the working day. These Acts typically targeted particular kinds of workplaces, such as mines, or textile mills, before the more generalised approach took hold now seen in the Factories Act 1961. That applies to any workplace where an article is made or changed, or animals are kept and slaughtered.[105] The Employer's Liability (Defective Equipment) Act 1969 made employers automatically liable for equipment with defects supplied by third parties. Because isolated employees lack the technical skill, time, training to litigate, such regulation's primary line of enforcement was through inspectors or agencies before matters went to court. Today the Health and Safety at Work etc. Act 1974, enforced by the Health and Safety Executive, is the main law. The HSE can delegate enforcement to local authorities, whose inspectors have the power to investigate and require changes to workplace systems. In addition, HSWA 1974 section 2 foresees that employees will set up their own workplace committees, elected by the employees and with the power to codetermine health and safety matters with management. Spelling out the general duties found in HSWA 1974, are a set of health and safety regulations, which must also stay in line with the European-wide harmonised requirements of the Health and Safety Directive.[106]
19th century regulation limited child labour and working time in factories and mines, but employers were not always liable for accidents until 1937.
While the modern scheme of legislation and regulation engenders a comprehensive approach to enforcement and worker participation for health and safety matters, the common law remains relevant for getting civil law compensation, and some limits on an employers' duties. Although the legislative provisions are not automatic, breach of a statutory duty is evidence that a civil law duty has been breached. Injured employees can generally claim for loss of income, and relatives or dependents recover small sums to reflect distress.[107] In principle, employers are vicariously liable for all actions of people acting for them in the "course of employment" whenever their actions have a "close connection" to the job, and even if it breaks an employer's rules.[108] Only if an employee is on a "frolic of his own", and the employer cannot be said to have placed him in a position to cause harm, will the employer have a defence. Under the Employers’ Liability (Compulsory Insurance) Act 1969, employers must take out insurance for all injury costs, and insurance companies are precluded by law and practice from suing their employees to recover costs unless there is fraud.[109] However, until the mid-20th century there were a series of major limitations. First, until 1937, if an employee was injured by a co-worker, the doctrine of common employment, the employer could only be liable if it was shown they were personally liable by carelessness in selecting staff.[110] The House of Lords changed this in Wilsons & Clyde Coal Co Ltd v English,[111] holding an employer had a non-delegable duty of care for all employees. Lord Wright held there were "fundamental obligations of a contract of employment... for which employers are absolutely responsible". The second old restriction was that, until 1891, volenti non fit injuria meant workers were assumed to voluntarily accept the dangers of their work by agreeing to their contracts of employment.[112] Only if an employee callously ignores clear directions of the employer will he be taken to have voluntarily assumed the risk, like in ICI Ltd v Shatwell[113] where an experienced quarry shotfirer said he "could not be bothered" to wait 10 minutes before setting of a detonation, and blew up his brother. Third, even if a worker was slightly at fault, until 1945 such contributory negligence precluded the whole of the claim. Now the court will only reduce damages by the amount the employee contributed to their own injury.[114] The fourth defence available to employers, which still exists, is ex turpi causa non oritur actio, that if the employee was engaged in any illegal activity they may not claim compensation for injuries. In Hewison v Meridian Shipping Services Pte Ltd[115] Mr Hewison concealed his epilepsy so that he could work offshore was technically guilty of illegally attempting to gain a pecuniary advantage by deception under the Theft Act 1968 section 16. After being struck in the head by a defective gangplank he suffered worse fits than before, but the Court of Appeal, by a majority, held his illegal act precluded any compensation.
The common law of tort also remains particularly relevant for the type of liability an employer has where there is scientific uncertainty about the cause of an injury. In asbestos disease cases, a worker may have been employed with at a number of jobs where he was exposed to asbestos, but his injury cannot with certainty be traced to any one. Although he may be able to sue all of them, a number may have already gone insolvent. In Fairchild v Glenhaven Funeral Services Ltd[116] the House of Lords held that if any employer had materially increased the risk of harm to the worker, they could would be jointly and severally liable and could be sued for the full sum, leaving it up to them to seek contribution from others and thus the risk of other businesses' insolvency. For a brief period, in Barker v Corus[117] the House of Lords then decided that employers would only be liable on a proportionate basis, thus throwing the risk of employers' insolvency back onto workers. Immediately Parliament passed the Compensation Act 2006 section 3 to reverse the decision on its facts. It has also been held in Chandler v Cape plc,[118] in 2011, that even though a subsidiary company is the direct employer of a worker, a parent company will owe a duty of care. Thus shareholders may not be able to hide behind the corporate veil to escape their obligations for the health and safety of the workforce.
Occupiers' Liability is currently governed by the two Occupier's Liability Acts, 1957 and 1984. Under these rules, an occupier, such as a shopkeeper, a home owner or a public authority, who invites others onto their land, or has trespassers, owes a minimum duty of care for people's safety. One early case was Cooke v Midland Great Western Railway of Ireland [1909] AC 229, in which Lord Macnaughton felt that children who were hurt whilst looking for berries on a building site, should have some compensation for their unfortunate curiosity.
In consumer protection, with the Product Liability Directive in the European Union, where businesses making defective products that harm people must pay for any damage resulting. Liability for defective products is strict (see strict liability) in most jurisdictions. The theory of risk spreading provides support for this approach. Since manufacturers are the 'cheapest cost avoiders', because they have a greater chance to seek out problems, it makes sense to give them the incentive to guard against product defects.
Nuisance is a tort relating to land and its enjoyment, and there are three main types: public nuisance, private nuisance, and dangerous escapes as in Rylands v Fletcher. First, public nuisance is a crime, and private parties have standing to sue if they are closely affected. It involves an "act not warranted by law" that will "endanger the life, health, property, morals, or comfort of the public".[119] Something that is a private nuisance can become a public nuisance if it has "widespread" and "indiscriminate" effects. For example in AG v PYA Quarries LtdDenning LJ held that PYA Quarries' blasting system was a public nuisance, and could be restrained by an injunction because it was noisy and affected many nearby people.[120] Similarly, in Tate & Lyle v Greater London Council the sugar refiner Tate & Lyle succeeded in a claim that the GLC installing ferry terminals on the Thames, leading to river banks silting, was a public nuisance and they had special damage by not being able to dock their boats. Because the river was a public waterway, Tate & Lyle, however failed in a private nuisance claim because their land was not itself affected.[121]
In Fearn v Tate the Supreme Court held it was a nuisance for over 500,000 Tate Modern visitors to stare into nearby flats, take photos and post them onto social media.
Second, private nuisance is a tort that people with an interest in land can claim for unreasonable interference in their use and enjoyment. On standing, in Hunter v Canary Wharf Ltd the House of Lords made clear that one must either be an owner, or a tenant, with a proprietary interest to bring an action (not a licensee). This held residents could not claim for the building of the One Canada Square skyscraper disrupting the BBC's television signals, because it would make building on land too uncertain, and there was no technical difficulty about building more TV transmitters.[123] On the division between unreasonable and reasonable use of land, Robinson v Kilvert held that it was not unreasonable for a landowner to keep heat at 80°F (or 26.67°F) even though it affected paper stored in a warehouse above, because someone with "an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property".[124] Similarly in Miller v Jackson the Court of Appeal held it was not a nuisance for a cricket club to hit balls onto the Millers' property, because it was for the "benefit of the community as a whole, and to the injury of no one", taking into account that the cricket club had offered to put up fences and pay for damage, if any occurred.[125] By contrast, in Williams v Network Rail Infrastructure Ltd the Court of Appeal held that failing to clear Japanese knotweed (which is very hard to get rid of) from one property created a nuisance because its roots had encroached onto a neighbour's property.[126] In Fearn v Board of Trustees of the Tate Gallery the Supreme Court, by a majority, also held that the Tate Modern created a nuisance by allowing over half a million visitors to the Blavatnik Building's public platform to stare into neighbouring flats, wave, take photos, and post them on social media. This interfered with the flatowners ordinary use and enjoyment of land[127] In deciding what is reasonable, the courts take account of the locality, while planning permission may affect the remedy. So "if a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality", but if a neighbour's toxic fumes caused "material injury to the property", including shrubs and trees, this would be a nuisance.[128] A doctor could sue a confectioner for noise from heavy machinery, even though the confectioner lived there first.[129] But if a landowner has planning permission for their activity, this could potentially affect whether an injunction or damages are awarded. In Coventry v Lawrence the Supreme Court held that noise from a motor racing stadium was a nuisance, even though it had had planning permission since 1985. Planning permission could not deprivate a property owner of a right in nuisance, but it could be a factor in awarding damages, not an injunction.[130] A claimant may, however, lose their claim if they have acted unreasonably.[131] Motive is said to be irrelevant to whether someone makes a nuisance.[132] It does not matter whether an activity is seen to be for the public benefit: if that is so, then can compensate.[133]
In Rylands v Fletcher a reservoir owner was held strictly liable for dangerous escape of water that flooded a neighbour's mine, a principle upheld today to protect victims against "powerful corporate opponent[s]".
Third, defendants are strictly liable for "dangerous" and "unnatural" escapes from their land, which cause damage. In Rylands v Fletcher, Fletcher claimed damages for his mine flooding after Rylands built a reservoir to serve Ainsworth Mill, and it burst into disused mines that connected to Fletcher's. Upheld by the House of Lords, Blackburn J said a landowner is strictly liable "for all the damage which is the natural consequence" of an escape when people keep on land "anything likely to do mischief if it escapes", including "beasts, or water, or filth, or stenches."[136] However, in Cambridge Water Co Ltd v Eastern Counties Leather plc the House of Lords accepted that if damage is very unlikely then a defendant can plead as in negligence that it is too remote. There, dangerous PCE chemicals seeped through the ground to poison Cambridge Water's drinking borehole.[137] In Trancso plc v Stockport MBC the House of Lords held that a burst water pipe, which washed away ground under a gas pipe was not "unnatural" enough to fall into the Rylands tort. Yet it reaffirmed that Rylands liability is strict, yet subject to a remoteness cap. Lord Walker highlighted that the call to merge nuisance and Rylands into negligence rules would "overlook the practical implications... of bringing a claim in negligence, perhaps against a powerful corporate opponent."[138]
Defamation means tarnishing the reputation of someone. It is divided into two parts, slander and libel. Slander is spoken defamation and libel is defaming somebody through print (or broadcasting). Both share the same features. To defame someone, you must (a) make a factual assertion (b) for which you cannot provide evidence of its truth. Defamation does not affect the voicing of opinions, but comes into the same fields as rights to free speech in the European Convention's Article 10.
UK courts have created a common law responsibility to not share non-public information about others under certain circumstances, regardless of the existence of a contractual agreement.
The main remedy against tortious loss is compensation in 'damages' or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defence against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction. This means a command, for something other than money by the court, such as restraining the continuance or threat of harm.[139]
For people who have died as a result of another person's tort, the damages that their estate or their families may gain is governed by the Fatal Accidents Act 1976 (replacing the Fatal Accidents Act 1846). Under s.1A the spouse or dependent of a victim may receive £11,800[140] in bereavement damages.
As a remedy to tort, injunctions are most commonly used in cases of Nuisance. The court may impose an injunction on a tortfeasor, such as in Sturges v Bridgman. This legally obliges the tortfeasor to stop or reduce the activity causing the nuisance and its breach could, potentially, be a criminal offence. Injunctions may be used instead of or as well as the awarding of damages (above).
Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: compensatory, aggravated and punitive or exemplary. In The Aims of the Law of Tort (1951),[141]Glanville Williams saw four possible bases on which different torts rested: appeasement, justice, deterrence and compensation.
From the late 1950s a group of legally oriented economists and economically oriented lawyers emphasised incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. They are often described as the law and economics movement. Ronald Coase, one of the movement's principal proponents, submitted, in his article The Problem of Social Cost (1960),[142] that the aim of tort should be to reflect as closely as possible liability where transaction costs should be minimised.
Calls for reform of tort law come from diverse standpoints reflecting diverse theories of the objectives of the law. Some calls for reform stress the difficulties encountered by potential claimants. Because of all people who have accidents, only some can find solvent defendants from which to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery".[143] Consequently, in New Zealand, the government in the 1960s established a "no-fault" system of state compensation for accidents. Similar proposals have been the subject of command papers in the UK and much academic debate.[citation needed]
There is some overlap between crime and tort, since tort, a private action, used to be used more than criminal laws in centuries gone. For example, an assault is both a crime and a tort (a form of trespass to the person). A tort allows a person, usually the victim, to obtain a remedy that serves their own purposes (for example by the payment of damages to a person injured in a car accident, or the obtaining of injunctive relief to stop a person interfering with their business). Criminal actions on the other hand are pursued not to obtain remedies to assist a person — although often criminal courts do have power to grant such remedies — but to remove their liberty on the state's behalf. That explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts.
↑The word tort is derived from middle English for "injury", from Anglo-French, from Medieval Latin tortum, from Latin, neuter of tortus "twisted", from past participle of torquēre.
↑Contrast Principles of European Tort Law (2026) art 2:102, "(2) Life, bodily or mental integrity, human dignity and liberty enjoy the most extensive protection. (3) Extensive protection is granted to property rights, including those in intangible property. (4) Protection of pure economic interests or contractual relationships may be more limited in scope." An older rights-based approach is seen in Ashby v White (1703) 92 ER 126, per Holt CJ, "it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal". Entick v Carrington [1765] EWHC KB J98, "The great end, for which men entered into society, was to secure their property... By the laws of England, every invasion of private property, be it ever so minute, is a trespass."
↑Meadows v Khan [2021] UKSC 21, [2022] AC 852, [79] per Lord Burrows who adds separate questions for intervening causes, causes being too "remote", and the scope of damage. Lord Hodge and Lord Sales, [28] preferred to begin with a need for damage, and separated a 'duty nexus question' from the scope of duty.
↑cf P Cane and J Goudkamp, Atiyah's Accidents, Compensation and the Law (9th edn 2018) ch 2.1, "The problems may, for example, be organized by reference to the claimant's interests", listing liberty, feelings, property, land, reputation, privacy, and trade, and then saying another lens is the tortfeasor's intention or fault, so "its conceptual structure is disorganized and ramshackle".
↑[1989] QB 653, extending Lawson J at first instance, (1988) 4 BCC 144, 148.
↑Relying on Lord Atkin that there must be "such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act": Donoghue v Stevenson [1932] AC 562, 581, and Lord Wilberforce in Anns v Merton LBC [1978] AC 728, 751H.
↑[2018] UKSC 4, [74] ‘It was not only reasonably foreseeable, but actually foreseen by the officers, that W was likely to resist arrest by attempting to escape.’
↑[1953] AC 643. cf Paris v Stepney BC [1951] AC 367 where the House of Lords awarded damages against employer that did not give goggles to a man with one eye, after a chip of metal flew off and blinded him.
↑[1971] EWCA Civ 6. Contrast Mansfield v Weetabix Ltd [1998] 1 WLR 1263 holding insurers (in effect) did not need to pay when Mr Tarleton drove a truck into a shop, while he was unknowingly in a hypoglycaemic state. Leggatt LJ said "To apply an objective standard in a way that did not take account of Mr Tarleton’s condition would be to impose strict liability. But that is not the law.... since in my judgment Mr Tarleton was in no way to blame, he was not negligent", ignoring that it was insurers who were being saved, while Mr Tarleton was dead.
↑Mullin v Richards [1998] 1 WLR 1304, Hutchison LJ, ‘there was, I would hold, no justification for attributing to the participants the foresight of any significant risk of the likelihood of injury.’
↑[2011] UKSC 17, on negligence and the Factories Act 1961 s 29, which the majority dubiously held to require the same (low) standard as common law.
↑Social Action, Responsibility and Heroism Act 2015 ss 1-4. Contrast the old case Watt v Hertfordshire CC [1954] 1 WLR 835, when firefighters, responding to an emergency call, tied a lifting jack onto a vehicle not designed to carry it, it slid and injured a fireman. The Court of Appeal rejected the injured fireman's claim (not yet taking into account the employer's ability to get insurance).
↑[1957] 1 WLR 582, [1957] 2 All ER 118. Reflecting the 1950s, this led to the finding that the plaintiff lost, despite being subjected to electro-shock therapy so violent that the convulsions broke their bones.
↑[1998] AC 232, per Lord Browne-Wilkinson, finding that doctors were negligent in not responding to a pager, leading a 2 year old to suffer cardiac arrest and die. Rejected that doctors would not have inserted intubater into child even if they had responded.
↑[1982] AC 794. This rowed back on Baker v Willoughby [1970] AC 476 where Lord Reid held a supervening injury (being shot) did not submerge a previous injury (car accident). In contract see The Golden Victory [2007] UKHL 12, where 3 to 2, the House of Lords held damages must take into account supervening events (like Jobling), Lord Bingham and Lord Walker dissenting.
↑[1995] 1 WLR 1602. In contract, see Chaplin v Hicks [1911] 2 KB 786.
↑[1987] AC 750. Similarly, Gregg v Scott [2005] 2 WLR 26, House of Lords rejecting a claim for 20% loss of chance of recovery from cancer in left arm, because it was not detected by a doctor. Baroness Hale said at [226] this conclusion was "not without regret".
↑[2012] UKSC 9 4 to 3 on limitation, 4 of 3 on causation.
↑[2006] UKHL 20, [2006] 2 AC 572. See the proposal for proportionate liability, and also unlimited liability of shareholders, in H Hansmann and R Kraakman, ‘Toward unlimited shareholder liability for corporate torts’ (1991) 100(7) Yale Law Review 1879.
↑[2011] UKSC 10, on an 18% increase in risk from the employer, rejecting an epidemiological approach that an employer must have "doubled the risk" to be liable.
↑[2012] UKSC 9, [75] per Lord Brown, [85] per Lord Mance, and [157] per Lord Phillips. By 4 to 3, the claim was held to be time barred because the claimants were held to have suspected nuclear radiation was causing cancer more than 3 years before they brought claims.
↑[1921] 3 KB 560, following Smith v London & South Western Railway Co (1870) LR 6 CP 14, 77, Blackburn J, ‘What the defendants might reasonably anticipate is only material with reference to the question whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence.’
↑[1963] AC 837. Similarly, Smith v Leech Brain & Co [1962] 2 QB 405, employer responsible for causing lip burn (foreseeable), and also responsible when employee got cancer from having pre-malignant condition (less foreseeable).
↑Butterfield v Forrester (1809) 103 ER 926, per Lord Ellenborough, ‘One person being in fault will not dispense with another’s using ordinary care for himself’, holding that a rider who hit a pole negligently left over a highway could not claim because he had been at the pub.
↑[2015] UKSC 5. See also Gough v Thorne [1966] 1 WLR 1387, 13 year old girl struck by car on road. Lord Denning MR, child should be judged by a standard of a reasonable child of that age.
↑e.g. Woodley v Metropolitan District Railway (1877) 2 Ex D 384<, where workers were held to have no claim for being hit by trains in a tunnel because working in the tunnel was a "danger to which he voluntarily exposed himself" (ignoring the workers' need to work for a living).
↑Davies, G., Simpson, M. and Williams, D., "Keeping up with the Joneses - the Court of Appeal dismisses a claim for negligently-caused economic loss", Walker Morris, published on 22 March 2011
↑Turberville v Stampe (1697) 91 ER 1072, per Lord Holt, "it shall be intended, that the servant had authority from his master, it being for the master’s benefit."
↑[1996] UKHL 15, [1996] AC 923, holding a council not liable for failing to remove an earth mound that obstructed the view of a road, where Stovin's motorbike collided with Wise's car.
↑Also Carmarthenshire CC v Lewis [1955] AC 549, where the council was liable for not locking a gate, and a 4 year old wandering from a nursery into a road, where a truck driver swerved, hit a lamppost and died.
↑[1987] UKHL 18. Contrast Clark v Fixing Ltd v Dudley MBC [2001] EWCA Civ 1898 where a council did known that trespassers had started fires, because the neighbours had complained, and so was liable when a fire caused the neighbours damage.
↑[2019] QB 601, Sir Terence Etherton MR rejecting that the nuisance consisted in land value reduction. At [56] ‘If, and in so far as, damage is required to complete that cause of action, it is constituted by the diminished ability of the claimants to use and enjoy the amenity of their properties...’
↑[2023] UKSC 4, Lord Sales and Lord Kitchin dissented. Court of Appeal and Supreme Court declined to say invasion of privacy was a tort.
↑Sturges v Bridgman (1879) 11 ChD 852, Thesiger LJ saying ‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.’
↑[2014] UKSC 13, [90] and [121], per Lord Neuberger. A majority rejected there was any presumption against an injunction if an activity had planning permission.
↑Christie v Davey [1893] 1 Ch 316, refusing counter-claim by a neighbour who responded to loud music by banging on walls and shrieking.
↑Bradford Corporation v Pickles [1895] AC 587, rejecting claim when a neighbour intentionally dammed a watercourse to make a downstream owner pay. Lord Halsbury LC, ‘If it was a lawful act, however ill the motive might be, he had a right to do it.... Motives and intentions in such a question... seem to me to be absolutely irrelevant.’
↑Bamford v Turnley (1862) 3 B&S 66, Bramwell B, ‘The public consists of all the individuals of it and a thing is only for the public benefit when it is productive of good to those individuals on the balance of loss and gain to all... unless the defendant’s profits are enough to compensate this, I deny that it is for the public benefit he should do what he has done; if they are, he ought to compensate.’ cf Jones v Powell (1629) 123 ER 1155, papers spoiled by brewhouse fumes. Whitelock J, regarding papers of neighbours, ‘it is better that they should be spoiled than that the commonwealth stand in need of good liquor.’
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