LAW OF TORTS
Fault based liability
Tortious liability requires the defendant to be at fault in some way. However, this does not
necessarily have to be intentional.
The definition of fault is wide but generally it means an act (or omission) committed by the
defendant which causes the defendant damages.
Fault requires that the conduct of the tortfeasor is subjectively wrongful. Fault should only be
defined as legal blameworthiness and not as an attributable wrongful act.
Non-fault liability
Where no such state of mind is required then we have no fault based liability-STRICT LIABILITY.
This is a Liability that exists even though the defendant was not negligent.
Intention
Wilkinson v Downton
The court held, although the law on battery and assault did not apply, the tort of intentional
infliction of mental shock was established with 3 conditions which must be satisfied. There
must be extreme conduct, the must be an intent to cause psychological harm and mental injury
must result from the conduct.
Motive and forms of harm
Good motive does not justify for an act otherwise illegal and a bad motive does not make an
otherwise legal/lawful illegal
Damnum sine injuria (damage without injury) – this is when a damage suffered without breach
of a legal right and such claim of damage is not valid in court of law.
Bradford corporation v Pickles
D owned land containing underground streams which fed C's waterworks. D began to sink
shafts for the alleged purpose of draining certain beds on stone the effects of which were to
seriously affect water supplies to C's operations. C alleged that D was not acting in good faith
but to compel them to purchase his land. The court held that as long as Pickles had a right to
take an action on his property, there is no way that can be converted to an illegal action, no
matter what his motives. There was no reason why he should not demand that the city pay for
his interests in the water beneath his land.
Injuria Sine Damno (Injury Without Damage) - is where a person`s legal right is violated but the
person may not have suffered a damage or loss. In this case, a person doesn’t have to prove the
damage.
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Several Tortfeasors -Where two or more people by their independent breaches of duty to the
plaintiff cause him to suffer distinct injuries/damage, each one of them is liable for his/her
damage.
Lister v Romford Ice and Cold Storage Co.
The House of Lords by a majority of 3 to 2 decided to accept the circular situation that the son
had to pay the same as the employer.
NB: A son backed an ice truck over his father. The father could have sued his son but, instead,
decided to sue his son's employer as being vicariously liable. The employer claimed that the
father should sue the son. It was claimed (by the insurance company suing in the employer's
name) there was an implied term in his employment that the son obey reasonable commands
and use reasonable care. A possible breach of contract by the son would produce a circular
situation if the employer were able to sue the son for the total amount of damages paid.
Joint Tortfeasors – However, if two or more breaches of duty by different persons cause the
Plaintiff to suffer a single injury, the Plaintiff can sue ALL or ANYONE of them for his/her full loss
Brooke v Bool
Two men searching for a gas leak tried to find it by applying a naked flame to a gas pipe. By
doing this, one of the men caused the leaking gas to explode. It was held both the men were
jointly liable. The court decided that although only one of the men had actually caused the
explosion, they were both jointly liable because their separate share in the commission of the
tort was done in furtherance of a common design. Note: Where there is no community of
design between persons, but their acts combine to produce harm, they are referred to as
'several' tortfeasors as opposed to 'joint' tortfeasors.
Negligence
Negligence is a BREACH of a legal DUTY TO TAKE CARE which results in DAMAGE to the Plain.
The OMISSION to do something which a REASONABLE MAN, guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do, or doing something which a
PRUDENT and REASONABLE MAN would not do amounts to NEGLIGENCE – per Alderson, J in
Blyth v Birmingham Water Works Co.
The Court held that Birmingham Waterworks Co had done everything a reasonable person
would have in the situation. There was no negligence as there had been no breach of duty; it
was simply an accident.
Negligence is CONDUCT and not a STATE OF MIND.
Duty of care
There is no liability for negligence unless there is in the particular case a LEGAL DUTY TO TAKE
CARE
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Donoghue v Stevenson
It was held manufacturers owe the final consumer of their product a duty of care (at
least in the instance where the goods cannot be inspected between manufacturing and
consumption). There need not be a contractual relationship, or privity, in order for the
final consumer to sue in negligence.
This duty must be one which is owed to the Plaintiff himself and not to other persons.
The legal obligation to take reasonable care to avoid causing damage –
Zambian Breweries Plc V Reuben Mwanza
The appellant appealed against the finding of the lower court that the appellant was negligent
in the manufacture and sale of a castle beer containing a dead lizard. The appellant advanced
four grounds of Appeal.
Held: It is not normal to find lizards in beer bottles and also to find that people carry dead
lizards in order to throw them in beer bottles would require strong evidence. Finding of
negligence was well founded.
There is no liability in tort for negligence unless the act or omission that causes damage is a
breach of a duty of care owed to the claimant.
There is a duty to take care in most situations in which one can reasonably foresee that one's
actions may cause physical damage to the person or property of others.
Neighbourhood principle: whether there is a duty of care depends on whether the claimant is a
neighbour in the legal sense.
Caparo v Dickman
Caparo a small investor purchased shares in a company relying on the accounts prepared by
Dickman. Caparo lost money due to the accounts being negligently prepared, the court held no
liability under a test of duty ‘the Caparo test' the claim failed. The Caparo test; foreseeability,
proximity, fair, just and reasonable was failed due to a lack of proximity. Allowing the claim
would allow liability in an indeterminate amount for an indeterminate time to an indeterminate
class, in claims for economic loss there must be a common purpose a proximate relationship
known communication with expected reliance and actual reliance. There was no proximity as
the defendant knew nothing about Caparo.
Bourhill v Young
A pregnant lady (Bourhill) upon disembarking from a train went to collect her luggage from the
luggage storage area while there she heard a motorcyclist crash and was killed by the crash she
later saw blood on the road hence the pregnant lady suffered nervous shock and later gave
birth to a stillborn child. The court held that there was no foreseeable harm or relationship
between the motorcyclist and Bourhill nor was their close relationship.
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Alcock v Chief Constable of south Yorkshire police
In the Hillsborough Football disaster, 95 people were killed and over 400 injured. The police
authority admitted liability for all of the claims resulting from the estates of the dead and the
injured. This case was a test case for all of the claims from people who saw but were not
involved directly in the disaster, i.e. the non-injured. It involved people who were both at the
stadium or informed of the event by others or by the media.
No recovery for any of the claimants. The classifications of primary and secondary victims were
set out: A primary victim is one who is a mediate or immediate participant in the incident, a
secondary victim was one who is a passive bystander to the incident and all of the claimants in
this case were classed as secondary victims. To succeed in a claim as a secondary victim, there
must prove:
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
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A close relationship of love and affection with the injured
Proximity to the incident in both time and space
A means and suddenness of shock
Hedley Byrne & Co v Heller and partners ltd
The claimants wanted reassurance that they could provide credit to another company
(Eazipower). The financial stability was reassured by Eazipower bank the defendants soon after
giving credit, the Eazipower defaulted and the claimants were liable for Eazipower’s debts. The
court held there was a duty but no liability on the facts. The reasoning behind the decision was
where the skill of one is used “for the assistance of another person who relies on such a skill, a
duty of care will arise. If the advice is passed on to another where the advisor should know the
information will be relied upon, a duty of care will also rise if there is a special relationship and
reasonable reliance, and there is a duty of care.
Breach of duty
This occurs when the defendant fails to meet the required standards of acceptable and
recognized behaviour in society. The standard of duty to take care is that of an ordinary man
(reasonable man’s test), the existence of a duty of care must be based on the knowledge of
hazard, the ability to foresee the consequences (or not checking or removing it) and the ability
to abet it.
Goldman v Hargrave
Lightening set fire the defendant’s tree, although he had means to put the fire out he chose to
let it burn. The fire spread to a neighbour’s adjoining property causing damage. The court held
that liability was allowed by stating that the defendant satisfied the 3 conditions which are as
follows; the defendant must have knowledge of the danger, the damage must have been a
foreseeable consequence and the defendant must have had the ability to abate the foreseeable
consequence occurring.
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Bolton v Stone: The plaintiff was struck in the head by a cricket ball from the defendant and
sued for public nuisance and negligence. The court held there was no breach of duty. The
likelihood of harm was low the defendant had taken all practical measures in the circumstance.
Paris v Stepney Borough council
In this case, an employee was not supplied with the goggles when working in a garage. The chip
of metal flew into his right eye and blinded it when he was working on the vehicle. His other
eye was already blind so he became completely blind after the accident. The court held that it
was not too important to decide what precautions were needed to protect a two-eyed man. In
all circumstances an ordinary prudent employer would supply such a workman with goggles.
Bolam v Friern hospital management
A doctor at Friern hospital administered electroconvulsive therapy treatment on the claimant.
This therapy caused Bolam to spasm, fall off the bed and break both of his legs. It was held that
the doctor was not in breach of duty hence they established the Bolam test which a man is not
negligent, if he is acting in accordance with a practice accepted as proper by a responsible body
of medical men skilled in that particular art.
Damages
Michael Chilufya Sata v Zambia Bottlers Ltd Supreme
The appellant had purchased a case of soft drink sprite from a retailer. The drink was
manufactured and bottled by the Respondent Company. The appellant and his children had
drunk some of the drink. In one of the bottles containing drink, before it was opened,
the appellant and his children noticed a dead cockroach. The bottle was not opened and
thus the drink was not consumed. Subsequently, the appellant took action against the
Respondent Company in the High Court arguing that he and his children had suffered
personal injury and nausea as a result of the dead cockroach in the bottle. In his
action, the appellant was claiming damages for personal injuries, damages for breach of
statutory duty by the Respondent under section 3 (b) of the Food and Drugs Act, cap.
303 and other reliefs; The High Court found in favour of the Respondent Company. The
Appellant being dissatisfied with that decision of the court, he appealed.
Held: (i) For a plaintiff to succeed in an action for negligence in these circumstances,
that plaintiff must actually have consumed the adulterated drink or food wholly or
partially and in consequence of which that plaintiff must suffer injury. (ii) There was no
injury or damage caused to the appellant by the adulterated drink as he did not
consume it. (iii) Negligence alone does not give a cause of action; damage alone does
not give a cause of action; the two must co-exist. (iv) The only remedies for breach of
sections 3 (b) of the Food and Drugs Act Cap 303 are criminal sanctions and there is no
provision for the recovery of damages in civil suits. Appeal dismissed
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Negligence and Novel duty situations
This is a branch of negligence where the plaintiff claims to have suffered psychiatric or mental
illness as a result of the act of the defendant. The plaintiff must show that they suffered harm
over ordinary grief and distress hence actions in negligence based on nervous shock are proven
by medical evidence.
Victorian Railway Commissioners v Coultas
It was held no recovery, Coultas claim failed by stating without physical injury mental injury
claim cannot be made.
N.B: the courts have moved away from this law hence a new approach has been established.
Dulieu v White & sons
C (who was pregnant), was behind the bar of a public house when a horse-drawn van was
negligently driven into the building. There has not been any physical contact with the C but
because of the shock she gave birth prematurely.
HELD: such an injury could be compensated, but Kennedy expressed a limitation to his decision:
the shock where it operates through the mind must be a shock which arises from a reasonable
fear of immediate personal injury to oneself.
Hambrook v Stokes
A mother let her children to walk roam around – 20 – 30metres away from her. The
defendant’s employee negligently secured a lorry, therefore it rolled down a hill to the corner
where the children were walking. She saw lorry swiftly driving down a hill and round a bend,
where she knew her three children were. There was a collision which was out of sight, and the
claimant feared that her children were involved. Because of this incident, the claimant (mother)
suffered a mental injury. It was held the mother who is a secondary victim in this case would
recover psychiatric harm due to fear for her children lives. In order for a claim would be
successful it needs the secondary victim to experience the event first hand meaning the have to
witness it themselves.
Mcloughlin v O'Brian
A mother was told that her husband and children had been in a serious car accident with the
defendant’s lorry and went to the hospital straight away. At the hospital, she saw her family
before they had been ‘cleaned up’ One of her sons had been killed on impact. The mother
suffered severe mental injury. The house of lords held As a person such as a spouse could be
considered to attend the aftermath of the accident, she was part of the ‘immediate aftermath’
of the accident, and therefore could recover as there was a reasonable proximate relationship
between her and the accident.
The courts in the Mcloughlin case put some control mechanisms in relation to the extent of
admissible claims. According to the court three factors must be considered in every case
1. Class of person whose claims should be recognized.
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2. Proximity of such persons to the accident.
3. Means by which the psychiatric illness was caused.
Primary & Secondary victims
White and others v Chief Constable of South Yorkshire Police
The claimants (C) were all police officers who had been on duty within Hillsborough Stadium
during the eponymous disaster, in which 95 Liverpool FC fans were killed and many others
injured. C brought an action in negligence (and/or breach of statutory duty) against their
employer, the Chief Constable of South Yorkshire Police (D), for the psychiatric harm they had
suffered as a result of witnessing the tragedy first-hand. It was not disputed that D was
negligent or, indeed, that this had caused nervous shock to C. It was held D was under a duty to
take reasonable steps to protect his employees from the risk of physical harm, but there was no
extension of this duty to protect C from psychiatric harm when they were not exposed to any
risk of physical injury. Thus, there could be no duty of care owed to C for purely psychiatric
harm, as they were not at any point in any physical danger. Moreover, a rescuer in relation to
whom physical injury was not reasonably foreseeable could not recover damages for psychiatric
injury sustained by witnessing, or participating in the aftermath of, an accident which had
caused death or injury to others; such rescuers were to be categorised as secondary victims,
and so would have to meet the conditions specified by Lord Oliver in Alcock.
Primary victim
McFarlane v E.E Caledonia
The defendant owned the oil rig where this event occurred. The claimant was one of the
employees in Piper Alpha but was off-duty when this happened. He was in the vessel, which
were their accommodation and also an emergency vehicle when it was needed. When the fire
broke out, the emergency vehicle failed to escort non-essential employees and took the
claimant to surroundings of Piper Alpha with the emergency team. The claimant brought an
action in negligence against the defendant (owner) and said that he suffered a psychiatric
injury. He said that he feared for his life. It was held that no duty of care was owed by D. This is
because at no point was C in physical danger; He did not participate as a rescuer; Because of
the above mentioned he could not be a primary victim. Besides, C did not meet the Alcock
criteria as a secondary victim. The court said that D was not liable for the psychiatric injury that
C experienced.
Secondary victim
Alcock v Chief Constable of south Yorkshire police
In the Hillsborough Football disaster, 95 people were killed and over 400 injured. The police
authority admitted liability for all of the claims resulting from the estates of the dead and the
injured. This case was a test case for all of the claims from people who saw but were not
involved directly in the disaster, i.e. the non-injured. It involved people who were both at the
stadium or informed of the event by others or by the media.
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No recovery for any of the claimants. The classifications of primary and secondary victims were
set out: A primary victim is one who is a mediate or immediate participant in the incident, a
secondary victim was one who is a passive bystander to the incident and all of the claimants in
this case were classed as secondary victims. To succeed in a claim as a secondary victim, there
must prove:



A close relationship of love and affection with the injured
Proximity to the incident in both time and space
A means and suddenness of shock.
Sion v Hampstead Health Authority
The claimant’s son was seriously injured in a motor-cycle accident. He was taken to hospital and
the staff failed to diagnose that he was bleeding from his kidney. The son went into a coma
three days after the accident having suffered a heart attack. His condition deteriorated and he
was placed in intensive care but unfortunately died fourteen days after the accident. The
claimant remained at his son’s bedside throughout and suffered psychiatric injury as a result of
witnessing his son’s deterioration. He brought an action against the hospital alleging their
negligent treatment of his son caused him to suffer psychiatric injury. The hospital applied to
have the claim struck out as disclosing no cause of action. Brooke J found for the hospital and
the claimant appealed. It was held no recovery, as there was no shock, sudden appreciation by
sight or sound of a horrifying event. The death was expected by the time it happened.
AB and others v Tameside & Glossop
The claimants were patients who had been treated by an obstetrics worker who was found to
be HIV positive. They objected to the way in which they were informed about this. Although the
health authority admitted a duty of care in relation to the patients, the Court of Appeal held
that they had not been negligent in deciding to break the news by letter rather than in a fact to
face meeting.
Greatorex v Greatorex
D caused a car crash and P, his father, was one of the firemen called to get D out of the car, as a
result of which P suffered a PTS disorder and sued D for negligently causing him the illness. The
court of appeal held that a person does not owe a duty of care to a 3rd party who might suffer
psychiatric illness from seeing the self-inflicted injuries.
Dooley v Cammell Laird
The claimant was a crane operator working for Cammell Laird. He was loading material from
the quay onto a ship when the rope snapped which was carrying the load. The load dropped in
to the hold of the ship where the claimant knew workers were situated. The claimant could not
see into the hold and where the workers were standing. In fact nobody was injured. However,
the claimant suffered shock at the thought that workers could have been injured due to his
actions. The shock aggravated his pre-existing neurasthenia and he was unable to return to
work as a crane driver. Held: He was entitled to recover damages for the psychiatric injury. The
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defendant had provided too weak a rope for the task and the claimant’s psychiatric injury was a
foreseeable consequence of their failure.
Haynes v Harwood
The Defendant left a horse-drawn van unattended in a crowded street. The horses bolted when
a boy threw a stone at them. A police officer tried to stop the horses to save a woman and
children who were in the path of the bolting horses. The police officer was injured. It was held
that the Defendant owed a duty of care as he had created a source of danger by leaving his
horses unattended in a busy street.
Economic loss
This is peculiarly loss or financial loss it includes consequential loss and pure economic loss.
Consequential economic loss is loss incurred as a result of physical injuries or damages to
property.
Pure economic loss is other losses that follow which do not flow from the damage; there is
generally no liability for pure economic loss.
Spartan Steel and Alloys ltd v Martin and co
D negligently caused a power cut to P which led to the damaging of a metal being produced at
P’s factory. It also prevented P from functioning in the time that power was cut off. The Court
of Appeal held that even where a plaintiff is clearly owed a duty in respect of physical damage
to property, any 'pure' economic loss suffered in addition to physical damage are unrecoverable
as either too remote, or outside the scope of the duty of care. However, economic losses
consequential on the damage to the metal in the melt were recoverable. The result was
therefore that the damage to the metal which was damaged due to the smelting process being
cut short was recoverable but the loss of profits from further melts which could have been
completed during the time the factory was without power could not be recovered as this was
‘pure’ economic loss.
Muirhead v industrial tank specialities
The plaintiff reared lobsters in tanks into which seawater was pumped for the purpose of
oxygenation. The whole purpose of the pumps was to preserve the health of the lobsters. Due
to the negligence of the third defendant, the pumps cut out and the lobsters died from lack of
oxygen. P sued D for causing pure economic loss. The court of appeal rejected this since, for
pure economic loss, there has to be a special degree of proximity (i.e. a special relationship) +
reliance + assumption of responsibility. There was not sufficient proximity between a purchaser
and a manufacturer in pure economic loss cases
Murphy v Brentwood District Council
The defendant local authority had negligently approved plans for the footings of a house. The
claimant purchased the property, but some time afterwards it began to subside as a result of
defects in the footings. The claimant was unable to afford the required repairs, and was forced
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to sell the property as a loss. He also claimed damages for the health and safety risk which the
defects had caused to himself and his family during the time they lived at the property.
Declining to follow its previous ruling in Anns v Merton London Borough Council, the House of
Lords held that as the damage suffered by the claimant was neither material nor physical but
purely economic, the defendant was not liable in negligence. It was decided that to allow the
claimant to recover damages for the money which he had lost on the sale of the property, or
for the cost of repairing it, would result in an unacceptably wide liability which would
effectively amount to judicial legislation introducing product liability and transmissible
warranties for defective buildings.
Cattle v Stockton Waterworks
Stockton Waterworks Co laid down one of their main roads along and under a turnpike road.
Private property was either side of the road. The landowner employed Cattle to make a tunnel
under the road so he could access his land on the other side of the road easily. In doing so, a
leak in the Waterworks’ main higher up the road was discovered. This flowed down on the work
causing delays and consequential loss for Cattle. Held: The damage sustained by Cattle by
reason of his contract with the landowner becoming less profitable, did not did not give him a
right of action against Waterworks.
Chaudhry v Prabhakar
A woman bought a used vehicle. She asked a friend (mechanic) to check if the car was suitable.
The friend said that it was suitable. However, it turned out that it was not suitable. It was held
as the claimant believed the defendant was knowledgeable about cars, there was reliance.
Esso Petroleum v Mardon
Mr Mardon entered a tenancy agreement with Esso Petroleum in respect of a new Petrol
station. Esso's experts had estimated that the petrol station would sell 200,000 gallons of
petrol. This estimate was based on figures which were prepared prior to planning application.
The planning permission changed the prominence of the petrol station which would have an
adverse affect on the sales rate. Esso made no amendments to the estimate. The rent under
the tenancy was also based on the erroneous estimate. Consequently it became impossible for
Mr Mardon to run the petrol station profitably. In fact, despite his best endeavours the petrol
station only sold 78,000 gallons in the first year and made a loss of £5,800. The Court of Appeal
held that there was no action for misrepresentation as the statement was an estimate of future
sales rather than a statement of fact. However, the claimant was entitled to damages based on
either negligent misstatement at common law or breach of warranty of a collateral contract.
Reeves v Commissioners of Police
Martin Lynch committed suicide whilst in a police cell. He had attempted suicide earlier that
day in the cells at the magistrates. The defendant argued that as Lynch was of sound mind his
voluntary and informed act of suicide broke the chain of causation. It was held the police knew
that the prisoner was suicidal, and by assuming care had also assumed responsibility to protect
the prisoner.
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Costello v Chief Constable of Northumbria
The claimant was taking a prisoner to a cell and was, at the time accompanied by a police
inspector. When the prisoner attacked the claimant, the accompanying officer did nothing to
assist her. The result was that the claimant was injured. It was held that for public policy
reasons the police had no general duty of care to the public in relation to their activities in the
suppression and investigation of crime.
Khalid Mohammed v the Attorney General
The respondent's servant a fire ranger set fire to some vegetation several hundred yards away
from the appellant's farm without giving notice to him. The ensuing fire spread onto the
appellant's farm despite the fire break and destroyed a maize crop and a field of star grass. The
trial court found that the respondent's servant could neither foresee nor abate the hazard and
that the continuation of the fire could not be attributed to him.
Held: (i) The appellate court may draw its own inferences in opposition to those drawn by the
trial court although it may not lightly reverse the findings of primary facts.
(ii) A plaintiff cannot automatically succeed whenever a defence has failed; he must prove his
case.
(iii) The respondent's servant's conduct in failing to give prior notice and burn in the proper
manner amounted to negligence; and the question of his ability to abate would only have
arisen if he had been accused of permitting the continuance of the fire.
Causation and Remoteness of damage
Causation is the relationship between an act and the consequences it produces. Causation deals
with the question of whether the defendant’s actions can be said to be the legal cause of the
claimant’s loss. Sometimes a distinction is made between the effective or immediate cause
(causa causans) of the damage and any other cause in the sequence of events leading up to it
(causa sine qua non).
Roe v Minister of Health
Two claimants had been given an anaesthetic for minor operations. The anaesthetic had been
contaminated with a sterilising fluid. This resulted in both claimants becoming permanently
paralysed. The anaesthetic had become contaminated during storage. The anaesthetic was
stored in glass ampoules which were emerged in the sterilising fluid. It transpired the ampoules
had minute cracks which were not detectable with human eye. At the time it was not known
that the anaesthetic could be contaminated in this way and the hospital followed a normal
procedure in storing them this way. Held: There was no breach of duty. The risk was not
foreseeable as it was an unknown risk at the time.
Factual Causation
Factual causation – a defendant is held liable if the particular acts or omissions were the cause
of the loss or damage sustained.
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Barnett v Chelsea & Kensington Hospital
The claimant, Barnett (deceased), died of arsenical poisoning. He and two other colleagues who
were on a night shift began vomiting after drinking some tea. They attended the hospital, but
were sent home by the nurse (having spoken to the doctor) and told to call out their own
doctors. This was the second time they had been to the hospital that evening and the nurse
thought they were vomiting because of alcohol they had been drinking earlier in the evening.
They returned to their workplace, where Barnett’s condition deteriorated. The doctor their saw
to him and called an ambulance, but Barnett died before he reached the hospital. It is held that
the hospital is not liable for negligence because even if the patient was examined 5 hours
earlier to the death he would have died anyways. The test of causation was not satisfied. D did
not cause V’s death – But for the defendant’s negligence, Mr Barnett would have died anyways.
Fairchild v Glenhaven
Fairchild's husband developed mesothelioma as a result of asbestos poisoning. He worked for
two consecutive employers where he was exposed to asbestos in his work. Both employers
breached their duty of care for him by exposing him to asbestos, but it cannot be determined
which breach actually led to the poisoning, or if they both did. Glenhaven was successful in the
lower courts which Fairchild appealed. The House of Lords held that where a claimant could
satisfy the burden of proof that one employer had materially contributed to their asbestos
exposure, and thus had materially raised the probability of the claimant contracting cancer, the
claimant could claim total compensation from them (although that employer may claim joint
contributions from the other employers).
Consecutive Cases
One act succeeds another – the first act is overtaken by the second act – the first act is
obliterated by the second act.
Distinguish the decision in the two cases below;
Baker v Willoughby
Baker’s leg and ankle was severely injured due to the negligent driving of Willoughby. Due to
this Baker had to seek new employment. He was suing the Willoughby for loss of potential
income resulting from the injury. However, before the trial Baker’s new place of employment (a
scrap metal plant) was robbed and he was shot by one of the robbers in his already injured leg.
The pre-existing symptoms combined with the new wound resulted in his leg having to be
amputated. The court held that because the actions of Willoughby and the robber were
concurrent causes of the loss of income, Willoughby must compensate Baker for the losses that
he had caused – which included lost wages after the amputation of his leg. If Willoughby had
not been negligent, then Baker would not have lost his leg. When two accidents happen
concurrently and contribute to the same injury, then the parties are liable for the damages
resulting from the overall injury.
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Jobling v Associated Dairies Ltd
Associated Dairies negligence caused Jobling a back injury that subsequently limited him to light
work. After this Jobling developed a spinal disease unrelated to the accident that caused him to
be totally incapable of work. At the lower courts he was granted damages up to the point he
had to withdraw from work which he appealed. The House of Lords held that the defendant
was only liable for 4 years’ loss of earnings. In other words, as the second act is a natural event
rather than tortious conduct, the original tortfeasor will only be liable for damages up to the
second event.
Proof of Causation
Hoston v East Berkshire
The claimant as a school boy fell out of a tree from a height of 12 foot. He suffered a fracture to
his hip and was taken to hospital. The hospital failed to diagnose his fracture and sent him
home. He was in severe pain so he was taken back to hospital 5 days later where an X-ray
revealed his injury. He was treated and suffered an avascular necrosis which resulted in him
having a permanent disability and a virtual certainty that he would develop osteoarthritis.
According to medical evidence, had he been correctly diagnosed initially there was a 75%
chance that he would have still developed this condition, but there was a 25% chance that he
would have made a full recovery. The trial judge awarded damages of £11,500 based of 25% of
£46,000 which was what would have been awarded if the claimant had shown that the
defendant's conduct had caused the avascular necrosis of the hip. Held: The claimant had
failed to establish on the balance of probabilities that the defendant's breach of duty had
caused the necrosis since there was a 75% chance that it was caused by the fall. Therefore the
claimant was not entitled to receive anything in respect of the necrosis.
Wilsher v Essex
Wilsher, an infant, developed a condition in the first months of his life. There were many
possible causes of this condition, including an irregular partial pressure of oxygen in the body,
which the Authority failed to monitor properly. However, they did not negligently perform any
of the other potential causes. The infant developed problems with its eyes. Held: The defendant
was in breach of duty. A junior doctor owes the same standard of care as a qualified
doctor. McGhee did not reverse the burden of proof which always remains on the claimant.
McGhee v NCB
McGhee was an employee the National Coal Board, and generally worked emptying pipe kilns.
However, one day he cleaned out brick kilns. This work caused him to get very sweaty, and
powdered brick caked on to his skin. He then biked home without washing, because there were
no cleaning facilities provided by the employer, and developed dermatitis. The exact way that
this disease develops was not known at the time, but it was proven that the washing
immediately after coming out of the kiln would have at least lessened the risk of it developing.
The Coal Board was successful at the lower courts, which McGhee appealed. Held: The claimant
only had to demonstrate that the dust attributable to the breach of duty materially increased
the risk of him contract dermatitis. Lord Salmon: My Lords, I would suggest that the true view is
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that, as a rule, when it is proved, on a balance of probabilities, that an employer has been
negligent and that his negligence has materially increased the risk of his employee contracting
an industrial disease, then he is liable in damages to that employee if he contracts the disease
notwithstanding that the employer is not responsible for other factors which have materially
contributed to the disease.
Novus Actus interveniens
Scott v Shepherd
The defendant threw a squib, which is a small, lit firework, into a busy marketplace with lots of
people and stalls. In order to protect themselves and avoid damage, the squib was thrown on
by two other people. When it landed near to the complainant, it exploded and caused injury to
his face. He later lost the use of one of his eyes. The original thrower, the defendant, was
charged with assault and trespass. Held: This case has become known as the Famous
Squib case. The court dismissed the appeal; the injury to the complainant was the direct and
unlawful act of the defendant who originally threw and intended to throw the squib. The other
people were not ‘free agents’ in this situation and threw on the squib for their own safety and
this was justifiable. The throwing on was classed as a continuation of the defendant’s action,
which was intended. Whatever followed this was part of the defendant’s original act
Knightly v Johns
Due to maintenance work, all traffic was flowing through two lanes of a tunnel. The first
defendant, Mr Johns, was driving negligently and crashed their car, blocking one lane of traffic.
A police officer (D2) took charge of the scene but forgot to close one direction of traffic. The
claimant was therefore sent on the wrong side of the road down the tunnel to block traffic. D3
was driving negligently and too quickly down the road, and collided with the claimant’s car. The
Court of Appeal concluded the police officer (D2) failed to take reasonable care, but the
claimant did not. They held that the subsequence negligent acts broke the chain of causation
between the initial crash and the claimant’s accident. Therefore, the first defendant’s appeal
was allowed and claimant’s case against them dismissed.
Home office v Dorset Yacht
Several "borstal boys" (young offenders between fifteen and twenty) were under the
supervision of three officers when they were working on an island. The officers went to sleep
and left them to their work. Seven of the boys escaped, stole a yacht and crashed it into
another yacht that was owned by Dorset Yacht. They also boarded the second yacht and caused
further damage. The Home Office appealed Dorset's ability to bring a claim to the House of
Lords. Held: The Home Office owed a duty of care for their omission as they were in a position
of control over the 3rd party who caused the damage and it was foreseeable that harm would
result from their inaction.
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Occupiers liability
Concerns the duty owed by the those who occupy land and premises upon it towards the safety
of those who enter into the land.
Section 3 & 4 of the Occupiers Liability Act cap 70 of the laws of Zambia.
Wheat v Lacon
Defendants were brewers and owners of a public house. The running of the business was
entrusted to a manager. The manager was an employer under a service agreement. He and his
wife lived on the first floor of the premises. The claimant and her husband were staying on the
first floor as paying guests of the manager’s wife. The claimant’s husband suffered a fatal fall
while on his way downstairs. It was found that the accident was caused by a handrail which was
too short. In combination with the absence of proper lighting on the stairs. It was held, Anyone
who has a sufficient degree of control over the location of injury may be classed as an occupier.
While the defendant was responsible for the structural maintenance of the house, i.e. the
banister, the third party was responsible for the light bulb. There was no liability as the light
bulb was likely removed by an unauthorised stranger shortly before the incident; the defendant
could not have been expected to know of the danger.
Lowery v Walker
The Claimant was injured by a horse when using a short cut across the defendant’s field. The
land had been habitually used as a short cut by members of the public for many years and the
defendant had taken no steps to prevent people coming on to the land. The defendant was
aware that the horse was dangerous. Held: The defendant was liable. Whilst the claimant did
not have express permission to be on the land, a licence was implied through repeated trespass
and the defendant’s acquiescence.
Wheeler v Copas
The complaint was a member of a building company. The respondent worked as a farmer. He
wanted the employers of this company to build a house on his farm. Hence, he negotiated this
issue with the complaint and they made an agreement. According to it, the complaint took the
responsibility to deliver the materials and tools needed for the construction. The builders
needed a ladder for further work. For this purpose, the complaint chose one ladder from the
farm. However, the ladder broke while he was using it. The complaint applied the Court to
consider his claim for damages for personal injury. His appeal was based on the fact that the
respondent did not follow the duty of care which was fixed in the Occupier’s Liability Act, 1957.
In addition, the complaint stated that the defendant was careless since he did not deliver the
appropriate tools for the construction work. The Court stated that the respondent was not
chargeable under the Occupier’s Liability Act, 1957. Though the Act might be regarded as a
suitable regulation when investigating the case, the respondent could not be considered to be
the ‘occupier’ after the agreement was signed. Based on this, the Court admitted that it was
within the respondent’s competence to provide an appropriate ladder for the construction
work. But the latter failed to fulfil this part of his duty. However, the obligation of the
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respondent was restricted due to the fact that the complaint had to notice the deficiency of the
ladder he had chosen himself for building. As a result, the issue was qualified as carelessness.
Gould v McAuliffe
Claimant entered back of bar in search of toilet and was attacked by dog. Defence of restricted
area was rejected as there was no sign or indication that visitors should not be there.
Limitations should be brought to visitor's attention.
Phipps v Rochester Corp
A child a playing around on grassland without any parental supervision, subsequently fell into
trench dug by Rochester Corp for the purpose of laying down sewers. The child survived the fall
but was injured. The Corporation were not held liable as an occupier is entitled to assume that
prudent parents would not allow their children to go unaccompanied to places where it is
unsafe.
Glasgow Corp v Taylor
Ds were occupiers of a botanical garden to which children (including unaccompanied children)
had free access. C’s son, who was 7 years old, went to the garden unaccompanied and died
when he ate the berries of a poisonous shrub. Since the child was entitled to be present in the
relevant part of the gardens, which was much frequented by children, and since there was
ready access to the tree. Glasgow Corporation was liable. Children were entitled to go onto the
land. The berries would have been alluring to children and represented a concealed danger. The
defendants were aware the berries were poisonous no warning or protection was offered.
General cleaning contractors ltd v Christmas
The complainant, Mr Christmas, was a window cleaner who had worked for the defendant,
General Cleaning Contractors, for 20 years. He was working on a cleaning contract of a building,
which consisted of upper and lower areas, and this required him to clean from the inside and
then go out onto a sill to clean the other areas. When Mr Christmas was cleaning, his fingers
got trapped between the frames of the two sashes when it shut unexpectedly, which caused
him to lose his balance and fall, suffering injuries. HELD - employer was liable... employer's duty
to devise safe ways of performing the tasks required of the employee and to instruct them
accordingly... employees will not always have proper regard for their own safety.
Eden v West & Co
The Court found that the owner of a residential house was liable to a carpenter who suffered
injuries when a window frame that he was removing, collapsed because of the lack of a lintel.
The owner of the property knew that it was possible that this particular house may not have
had lintels but failed to pass on this information to the contractor.
Roles v Nathan
Cs were killed by carbon monoxide coming from a sweep-hole which they were sealing up. They
were warned by the occupier on numerous occasions about the danger from the gas and told
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them to not stay there for too long. Held: The defendant was not liable. The dangers were
special risks ordinarily incident to their calling. The warnings issued were clear and the brothers
would have been safe had they heeded the warnings.
Woodward v Mayor of Hastings
The plaintiff, aged twelve, slipped on an icy surface on the step of a church whilst he was at
school. He fell over and sustained injuries. A cleaner had brushed away snow from the step but
not placed any material down to neutralise the ice left behind which therefore left the step in a
dangerous condition. His mother, as his next friend, claimed to recover damages for the injury,
alleging that the cleaner was negligent in her actions and as a result, the governors
representing the school were liable for her actions. The court held that the school governors
were liable for the cleaner’s negligence in this instance. It was deemed that the cleaner was
acting as an agent of the school and ought to have been aware of the danger her action had
caused.
Stone v Taffe
The defendants in owned a public house which was managed by their servant Taffe. In breach
of the licensing laws and contrary to express instructions, Taffe permitted Stone (among others)
to remain on the premises until 1.00 a.m. Stone then fell downstairs to his death because Taff e
negligently extinguished (or failed to light) the lamp over the staircase, which was structurally
safe. The Court of Appeal held that Stone was still a lawful visitor at the time, and that Taffe
was acting in the course of his employment. Both problems were to be solved by asking the
same question: :“ did Mr. Stone know, or ought he on a balance of probabilities to be held to
have known that his permission to be there ended reasonably soon after 10.30 p.m. The
damages were reduced because of Stone’s contributory negligence; Reeve J. had held that S
was a lawful visitor, but that T was not in the course of employment.
Ratcliff v McConnell
The owners and occupiers of a swimming pool to which access was prohibited were under no
duty of care to a trespasser who was injured by diving into the pool, where that trespasser was
aware of, and had willingly accepted, the risk posed by his actions. The plaintiff, a student at
the college, and two friends had climbed over the wall surrounding the swimming pool late at
night when access to the pool was prohibited. They had been drinking. The judge found in the
plaintiff's favour, but held that he was guilty of contributory negligence and apportioned
liability as to 60 per cent against the defendants and 40 per cent against the plaintiff.
Ashdown v Samuel Williams d sons ltd
the Court of Appeal held that an occupier could exclude liability by displaying a notice
disclaiming as such, a notice brought to the claimants’ attention excluding liability is sufficient
to exclude liability.
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Defamation
Parmiter v Coupland
The Hampshire Advertiser newspaper published about the late mayor in the borough of
Winchester. The newspaper imputed ‘partial and corrupt conduct, and ignorance of his duties
as mayor and justice of the peace for the borough. Held. A publication, without justification or
lawful excuse, which is calculated to injure the reputation of another, by exposing him to
hatred, contempt, or ridicule, is a libel.
Sim v Stretch
A housemaid named Miss Edith Saville was employed by Mr. Sim. Later, Edith was employed by
Mr. Stretch, however, Mr. Sim convinced Edith to work for him again. The Sim's sent the
Stretch's a telegram which stated: Edith has resumed her service with us to-day. Please send
her possessions and the money you borrowed, also her wages, to old Barton. - Sim' The
imputations were that 1) Mr. Stretch was in financial difficulties, 2) he had to borrow and he did
borrow money from the housemaid, 3) 'he had failed to pay her wages', 4) and 'he was a person
whom no one ought to give credit.' Held: The telegram was incapable of bearing a defamatory
meaning. Lord Atkin set out a test: ‘The question, then, is whether the words in their ordinary
signification are capable of being defamatory.
Youssoupoff v MGM pictures ltd
The imputation is that Princess Irina Youssoupoff was raped by Rasputin. The case was
concerned with the film about a lady who had a romantic relationship with the person
represented as the murderer, a man of the worst character. The Claimant was Princess Irina
from the Russian Royal family who alleged that the character of the lady in the film was
associated with her. She sued for libel against the English film making company but they
refused to stop presenting the film. Held: A publication is defamatory if a reasonable 3rd person
would believe the statement to be defamatory to another identifiable person. The jury found in
favour of Youssoupoff.
Berkoff v Burchell
The plaintiff actor said that an article by the defendant labelling him ugly was defamatory. The
defendant denied that the words were defamatory. Held: It is for the jury to decide in what
context the words complained of were used and whether they were defamatory in those
circumstances. An allegation that an actor was hideously ugly was capable of being defamatory
of him on the grounds it exposed him to ridicule.
Tolley v J.S fry and sons ltd
Ds had advertised their ‘Fry’s Chocolate Creams’ with a cartoon representing the C, a wellknown amateur golfer, and a verse which referred to him by name. His likeness was being
exploited in order to promote the goods of another, without permission and without rewards,
and the case is therefore often citing as an early example of ‘appropriation of personality’. The
House of Lords held that in the circumstances of this case – as explained by the facts – the
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caricature was capable of constituting defamation. In other words, the publication could have
the meaning alleged by the claimant.
Hayward v Thompson
A later publication by the same defendant can be used to identify the plaintiff in an earlier
publication. If the defendant did intend to refer to the plaintiff, it may be enough if the
recipient understood it as referring to the plaintiff regardless of how unreasonable or
extraordinary it may have been for the recipient to do so. The learned judge held that it was
open to find that, as from the second publication, the plaintiff had been publicly named as the
person referred to in the first article, which was defamatory.
Morgan v Odhams press
The defendant was a journalist. The journalist was working on collecting materials for the dog
doping gang story. The defendant had the key witness under his surveillance while
investigations were on. The witness went to see the claimant with whom she was seen in
public. The witness was taken back under the surveillance until the gang members were
arrested. When the defendant published the story it included a photograph of the witness with
her name on it. An article, which was published later, stated that the witness was kidnapped by
members of the gang. The Court held that the article would be defamatory if it contained
defamatory imputations and pointed to the claimant as the person to be defamed. The Lords
were of the view that in the present case the article complied with these requirements and was
thus defamatory.
Newstead v London Express Newspapers ltd
Harold Newstead, aged 24 (but looking older), of Camberwell, sued the newspaper over a
report (which was entirely truthful and accurate) that Harold Newstead (someone different),
30, of Camberwell, had been found guilty of bigamy. Held: Newstead, 24, sued the newspaper
and won his claim as reasonable thinking people may think the article was about him. However,
he only got a farthing in damage.
Knuppfer v London Express Newspapers ltd
Knuppfer (K) was the head of the British branch of the Young Russia Party. The respondents
published a newspaper article in 1941 which alleged association between Hitler and the
Party. Held: The House of Lords rejected their claim as class of people cannot sue unless “the
words would reasonably be understood as published of each member of the firm or each
trustee or tenant” (Lord Atkins)
Pullman v Walter Hill & Co ltd
The plaintiffs were two members of a partnership firm. They owned property in Borough Road,
London which they had contracted to sell. In the meantime, they let a hoarding which was
erected on the property, to the defendant. A dispute arose between the defendant and the
purchaser of the Borough Road property regarding the hoarding. The defendant wrote a letter
addressed to the partnership alleging that the partnership had no right to let the hoarding due
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to the sale of the land. Held: It was held that the libel had been published: it was foreseeable
someone else would read the letter so it has, therefore, been published.
Slipper v BBC
The BBC made a film about the claimant’s unsuccessful attempts to bring a robber back from
Brazil. Preview tapes were sent to journalists and the film was subsequently broadcast on BBC
1. The claimant claimed that the film was defamatory and alleged: that the BBC knew and
would foresee that the preview tapes were likely to be reviewed in the national press;
alternatively and that it was the natural and probable consequence that such reviews would be
published. The Court of Appeal held that whether or not the reviews reproduced the sting of
the libel and whether or not repetition was invited or could have been anticipated were
questions for the jury to decide.
McManus v Victoria Beckham
The defendant (Victoria Beckham) was visiting a memorabilia shop. She saw autographed
photos of her husband for sale. She thought they were forged so warned other customers not
to buy them. Her words were reported in the press and, as a result, the business went
insolvent. Held: The defendant was held to be liable for her statement and the repeated words
in the press, because the claimant suffered a measurable economic loss and it was a
foreseeable that her words would be published (due to her status) and therefore damage is
likely to occur.
Alexander v N.E Railway Co
The defendants published at their stations a notice stating that the plaintiff had been convicted
of riding in a train without a ticket and sentenced to a fine of andpound;1 and the alternative of
three weeks’ imprisonment in default of payment. Held: The fact that the term of
imprisonment was two weeks did not prevent the defence of justification from succeeding, and
it became a question for the jury whether the notice was substantially true.
Banda v Zambia Publishing Co ltd
The plaintiff claimed damages for libel contained in an advertisement published in the
defendant's newspaper on behalf of the plaintiff's founder employers. The advertisement
was published after it was discovered that the plaintiff had made certain representations
which where detrimental to the employers and advertised that the plaintiff was no
longer a representative of the company. The plaintiff pleaded that the advertisement was
meant to mean, and was understood to mean, that he was holding himself out as still
working as a credit controller with his former employers and further that he was guilty
of malpractices and was dishonest and corrupt in his dealings; and that as such he had
been brought into disrepute, ridicule and unpopularity with the public. Held: In deciding
whether the words complained of are defamatory it is necessary to consider them in
conjunction with the circumstances of the publication, which in this case is the nature of
the plaintiff's work which required direct dealings with the public. A plea of justification
is a complete defence to an action for libel but to establish this defence the defendant
must establish and prove that the defamatory imputation is true in substance and fact. In
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the circumstances of the case the publication of the words complained of was not
defamatory, but was in fact justified since the plaintiff had made certain representations to
the detriment of the defendant.
Bweupe v attorney general
The plaintiff was a High Court judge who delivered a ruling in a case heard in open court to the
effect that UNIP special constables did not exist in law. Reacting to that ruling, the then
Minister of Home Affairs under whose auspices the special constables fell, made certain
statements which were published by the second and third defendants. In the said publication
the second defendant included the Minister's demand for an apology from the plaintiff. The
third defendant did not include this in its publication of the Minister's reaction. The plaintiff
contended that the words spoken by the Minister and repeated by the second and third
defendants were defamatory of him. The defendants argued that the words complained of
amounted to fair comment, noble without malice, upon a matter of public interest, namely, a
ruling delivered by the plaintiff in his capacity as a judge of the High Court.
Held: (i) A demand for apology from a judge or judicial officer goes beyond the defence of fair
comment. (ii) It is totally improper that a member of the public should take upon himself to call
upon a judge or any judicial officer acting in the exercise of his judicial function to apologise to
him, no matter how wrong that judge or other judicial officer may be.
Zulu v Times Newspaper
The defendant, the proprietor of a newspaper, publisher alleged defamatory comments about
leaders, referring to them as "hangers-on and lacking dedication to the humanistic cause" and
that others have got away with the TAW scandal". The trial judge upheld the defence that the
words were neither understood to refer or capable of referring to the plaintiff and in respect of
the second remark upheld a defence of fair comment. The plaintiff appealed.
Held: (i)Where words are alleged to be defamatory in their ordinary meaning it is neither for
the plaintiff nor for any witness to give evidence as to or to interpret the meaning of the
allegedly defamatory statement. This is the proper prerogative and function of the court;
(ii)The alleged scandal having been discussed in Parliament could therefore be said to have
originated therefrom and newspaper articles which reported or purported to report the scandal
as discussed in Parliament can properly be referred to for the purpose of ascertaining the
content of the statement under complaint.
Fungamwango & another v Nalishebo
The respondent brought an action of defamation against the appellants in respect of three
defamatory publications. The court held that two of the articles were about the respondent.
The court also held that although the first article did not mention the name, the respondent
had been suspended and that there was evidence that his friends, as a result of these
publications, which were defamatory of the respondent, shunned him. The court awarded the
respondent a total sum of K90,000,000 (45,000,000.00) general damages and (45,000,000.00
21
for exemplary damages). On appeal it was argued that the defence of qualified privilege was
available to the appellants. Further that the quantum of damages awarded was excessive.
Held: (1)The three publications referred to the respondent.
(2)The appellants did not try to check on the truthfulness or otherwise of the stories before
publication.
(3)The conduct of the appellants was such that one could infer their own malice because they
published the articles recklessly without bothering to check the facts.
(4)Taking into account the economic circumstances prevailing in the land the quantum of
damages must be reduced to K30,000,000.00.
Siwo v Times Newspaper
The appellant sued the respondent for damages for libel. The alleged libel arose out of news
item headed "We will deal with TAW Culprits" and an opinion column published by the
respondent, which alleged that the appellant had "connived to swindle" the government and
plunder the people of Zambia for his own ends. Both the story and the option were based on a
statement made by the Attorney-General to the National Assembly in which he disclosed that
the appellant had greatly contributed to the government losing a breach of contract case to
TAW International Leasing Inc. The respondent argued that the words were a fair and accurate
report of proceedings in public in the National Assembly and published on an occasion of
privilege; alternatively, that the words were true and a fair comment. The High Court dismissed
the action for Libel and the appellant appealed to the Supreme Court on the ground that the
defence of absolute privilege could not avail - the respondent because the Attorney-General in
his statement to the National Assembly had not used the phrase "connived to swindle" or said
that the appellant was plundering society for his own ends. Held: Where privileged words could
lead to a reasonable inference that a defendant was guilty of certain activities, it is not
actionable to make reasonable comments thereon.
Watt v Longsdon
The Defendant showed a letter to the Plaintiff’s wife that accused the Plaintiff of several
unflattering things. The Plaintiff sued the Defendant for defamation. The Defendant claimed
that he was under a duty to show the Plaintiff’s wife the letter. The court held a speaker is
privileged to make defamatory statements about another when the speaker had either a duty
or an interest to publish the statements. The privilege may be lost if: (1) they go beyond the
limits of the duty of interest; or, (2) they may be published with express malice, so that the
occasion is not being legitimately used, but abused
Reynolds v times Newspaper
The case was about the events of the Irish prime minister who resigned. The reasons for his
resignation were of public interest in the UK. This was because of his personal identification
with the NI peace process. “Sunday Times” published several articles about this. Articles called
“Goodbye gombeen man” and “House of Cards” concerning the fall of the Government.
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Subsequently, the minister began brought an action against a British newspaper publisher,
which alleged that he had dishonestly misled parliamentary and cabinet colleagues. The
defendants argued the defence of qualified privilege. House of Lords did not offer unqualified
protection to all public interest publications, subject to malice. Instead, a more modest but still
controversial adaptation of the common law was undertaken. Developing the duty-interest
version of the qualified privilege defence so that it would cover certain publications made to
the world. They recognized a new and very different sort of ‘duty-interest’ privilege. In which
the relevant interest is explicitly the public interest in receiving information irrespective of
whether it is true or false.
Vicarious Liability
Broom v Morgan
The plaintiff and her husband were employed by the defendant to manage and work in a beer
and wine house. The Plaintiff was injured through the negligence of her husband in the course
of his employment. In an action by her against the defendant in respect of the injury. Held:
Where a servant while acting in the scope of his employment negligently harms another the
fact that his relationship to the injured person is such that suit cannot be brought against him
does not relieve the master from liability. An employer was liable to a person injured by the
negligence of his servants, notwithstanding the legal immunity of the servants from action at
the suit of the injured party, and, therefore the defendant was liable to the plaintiff, despite the
inability of the plaintiff to sue her husband in respect of the injury.
Yewen v Noakes
There was a statutory exemption for premises which were occupied by a “servant” or person
occupying the premises “for the protection thereof.” A man and his family occupied a number
of rooms within an office building on the alleged basis that he was the caretaker of the building
owner. The man was a clerk who was paid a salary of 150 pounds per annum. The Court of
Appeal held that an employee, or a servant to adopt the Court’s nomenclature, is defined as a
“person who is subject to the command of his master as to the manner in which he shall do his
work.” On the facts of the case, the Court held that the man was not a “servant” or an
employee of the building owner as the owner had no right to control the man’s work and
manner in which it was done. The man earned a salary of 150 pounds per annum in his separate
role as a clerk and merely enjoyed residence of the building with his family members. Thus, he
did not constitute an employee of the building owner for tax purposes.
Market investigation v Minister of social security
The plaintiff was a market research company that engaged part time interviewers to carry out
research. The interviewers were under no obligation to accept work when offered it, were free
to work for other companies, could complete the work any time they liked within a certain
period, were paid a lump sum for the particular job, and were given an instruction booklet on
how to interview, as well as detailed instructions for each job. Firstly, the Court stipulated that
employment is determined by the degree and extent of control that a company exercises over
the person’s performance of the task to show ‘a master and servant’ relationship. Secondly, the
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Court held that in order to distinguish between a contract ‘of service’ and ‘for services,’ the test
to be applied is: whether the person is engaging the services “as a person in business on his
own account.” Considering the surrounding circumstances and contractual provisions, if the
answer to the question is “no,” the person is an employee under a contract ‘of service.’ On the
facts of the case, the Court placed weight on the way in which the company exercised control
over, the way in which the woman was not conducting the business on her own account but on
behalf of the company. Accordingly, the Court held that the woman was an employee of the
company under a ‘contract of service.’
Cassidy v Ministry of Health
The claimant underwent a routine operation on his hand. The operation was incompetently
performed, and made the claimant's condition much worse. He sued the health authority both
in its own capacity, and as the employer of the medical staff involved under the principle of
Vicarious Liability. The question arose whether there was a `master-servant' relationship
between the health authority and the surgeon. it was suggested by the Health Authority that a
surgeon was not the `servant' of his employer, and his contract was a `contract for services' and
not a `contract of service'. The court of appeal rejected the distinction, and decided that the
heath authority in this case were the `masters' of people it employed on a routine basis, despite
the professional nature of their duties.
Stevenson, Jordan & Harrison ltd v MacDonald & Evans
An engineer wrote a book that used knowledge that he acquired whilst he was working for a
firm in different capacities. Section 5(1) of the Copyright Act 1911 provides that that if the
author of a work was under “a contract of service,” then the first owner of the copyright shall
be the person by whom the author was employed. The Court distinguished between a “contract
of service” and “contract for services” provided to the firm. The Court applied the traditional
‘control test’ concerning whether the employer has the right to control the way in which a
person does the work. The Court further stipulated that a person is considered an employee
under a “contract of service” when the work is integrated in that of the business and
considered an integral part of the business, whereas an independent contractor for services is
merely an accessory to the business and, thus, not an employee. On the facts of the case, the
Court concluded that the engineer’s contract was mixed between the two at different times. It
held that the engineer was the author of the work, but that specific material that he acquired
whilst he was an employee fell within the Copyright Act 1911 and should be excluded from the
publication.
Ready Mixed Concrete ltd v Minister of Pensions
RMC was in the business of selling and delivering concrete. Previously they had hired a haulage
contractor to deliver the concrete to the customers, but had terminated this contract. They
created a system of contracting with individuals as owner/drivers, some of whom had
previously worked directly for RMC (including Mr Latimer). HIs contract bound him to purchase
a delivery truck from a specified company under specified terms, and marking of his base
depot. When RMC applied to the UK government for a ruling on status for PAYE purposes, Mr
Latimer was declared to be an employee. RMC appealed to the High Court, Queens bench. The
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court had to consider the status of X who drove a concrete mixer. He was responsible for hiring,
insuring and running the lorry and was y the company on the basis of his mileage. The company
exercised control over uniform and colours of the lorry, but despite this, the court held the
driver to be an independent contractor.
O’Kelly v Trusthouse Forte
Some waiters were engaged by a hotel on the zero hours basis (hotel didn’t have to offer work
and waiters didn’t have to take it). Two tried to form a union and were sacked. They (Ps) argued
that trade union legislation prevented them from being sacked for organising a union. The
legislation only related to employees. Plaintiff were paid weekly, had their uniforms and
equipment provided by hotel, disciplinary procedures were in place, and holiday pay was
available. The court of appeal held that the waiters were not employees and therefore not
entitled to the legislative protection
Ferguson v John Dawson
A builder’s labourer was paid his wages without deduction of income tax or national insurance
and worked as a self employed contractor providing services. His ‘employer’ could dismiss him
and decide on which site he worked and direct him as to the work he should do. It also
provided tools which he used. He was injured at work and sued his ‘employers’ on the basis
that they owed him legal duties. Decision: Based on the reality of the situation and the facts
taken as a whole, he was an employee working under a contract of employment. The courts will
also look at any agreement between the parties.
Massey v Crown life
The claimant was originally employed by an insurance company as a departmental manager, he
also earned commission on business he introduced. At his request he changed his employment
status to a self-employed basis. Tax and other payments were no longer deducted by his
employer but he continued to perform the same duties. The employers terminated these
arrangements and the claimant sued for unfair dismissal.
Decision: To make a claim for unfair dismissal it must first be proved that the worker was in fact
an employee. The claimant had chosen to become self-employed and therefore his claim had
to fail.
Warner Holidays v Secretary of state for social services
Three entertainers were engaged at a holiday camp for a summer season. Each was engaged
through an agent, was paid a weekly sum, and was responsible for his own tax and national
health contributions. P did not decide the content of their performances. P sought a declaration
as to whether they were classed as "employed earners" and whether P was liable as a
secondary contributor to pay contributions. The Secretary of State held that they were
"employed earners." Held, dismissing P’s appeal, that the entertainers were engaged under
contracts of service, and were "employed earners” Developed the 'Multiple' or 'Economic
Reality' Test
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McNeil J set out a list of points a court should consider in determining the economic reality of
any particular relationship. The points were as follows:
1. Level of control
2. Provision of tools and equipment: Ready Mixed)
3. Salary
4. Tax, PAYE, national insurance
5. Sick Pay
6. Bearing the risk of profit and loss
7. Residual Control
8. Control over hours of work
9. Right/Ability to do other work: Argent v Minister of Social Security 1968
10. How parties describe their relationship
11. Mutuality of Obligations
Mersey Docks & Harbour Board v Coggins & Griffith ltd
Mersey Dock is in charge of training and providing crane operator to companies in the carrier
business. On one occasion one of Mersey Dock's operators who was let to a stevedore company
caused injuries through his negligent operation of the crane. The contract between the
stevedores and Mersey Dock provided fact that the crane operator was an employee of the
stevedores. The court found that the agreement as to the employment was inconclusive, unless
there is a real transfer of employment, Mersey Dock remains the employer. Because the crane
operators worked through Mersey Dock and were trained by Mersey Dock, Mersey Dock's
whole operation was based on letting out crane operators, Mersey Dock cannot be said to have
effectively transferred the tortfeasors employment. According to Lord Porter to determine who
the employer is the court must ask who has the power to tell the operator the way in which his
work should i be conducted?
Lister v Hesley
Hesley Hall was a boarding house for students with severe emotional problems, the warden Mr
Graine had supervision of the pupils at Hesley Hall and their daily routine. It transpired during
the early 90s that Mr Graine had sexually abused these children and they have suffered
psychiatric injuries. Hesley Hall was sued in all sorts of tort from battery to negligence. As such
situations, it is very complex to deal with due to the fact that it is a total mishap and other
problems due to such law given. House of Lords in Lister held that the Ds were vicariously
liable. The judgments set vicarious liability in a new direction by rephrasing the test for ‘course
of employment’ in terms of ‘close connection’. The court argued that in applying the Salmond
test, it was crucial to not simply consider whether the acts of sexual abuse were modes of doing
an authorised act but must also consider whether there existed a close connection between the
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tort and employee’s duties. In the present case, D’s tortious acts were so closely connected
with his employment that it would be fair and just to hold the employer vicariously liable.
Poland v Parr & sons
A contractor’s employee was, in the course of his employment, following close behind his
employer’s waggon carrying sugar bags. Seeing a boy with a hand on one of the bags, the
employee believed the boy to be stealing sugar and hit him. This caused the boy to fall and the
waggon to run over his foot, leading to the loss of his leg. The boy had not, in fact, been stealing
the sugar although the employee had believed so. Held: The master was responsible. A servant
has implied authority, at least in an emergency, to protect his master’s property.
To fix a master with liability for an unauthorised mode of performing an authorised act, the act
must be sufficiently connected with the authorised act as to be a mode of doing it.
Industrial gases ltd v Waraf transport ltd
Damages caused to respondent's truck, trailer and contents. Appellant sought to avoid liability
on grounds that its driver, who was negligent in relation to the accident, falsely pretended to
possess a valid driver's licence, and such vitiated his employment and he should be regarded as
not having been an employee. Resulting from a mistake, the High Court awarded damages for
loss of total consignment of freight destroyed in the collision, whereas a reduced quantity only
was lost. The value thereof was disputed on grounds that the freight was a donation and the
respondents had lost nothing. Insufficient evidence was produced as to the cost of repair and
replacement, but the court estimated and awarded damages. Held: (i)As long as the wrong is
committed by the employee in the course of his employment, the general rule is that the
employer will be vicariously liable (ii)An appellant court will not interfere with the lower court’s
award of damages unless the award is so high as to be utterly unreasonable or is upon a wrong
is principle or a manifest error.
Fraschini v the attorney general
A driver who was an employee of the Government of the Republic of Zambia was sent from
Chipata to Lusaka on business. His instructions were that during his stay in Lusaka he had to
park the vehicle after 1700 hours. Contrary to those instructions the driver drove the vehicle at
midnight and was involved in an accident. There was no doubt that the accident was caused by
his negligence, but the trial court held that an action against his employers could not succeed
on the ground that having driven outside the hours permitted by his employers, the driver
could not be said to have been driving in the course of his employment. The plaintiffs appealed.
Held: (i)If the servant is a servant of a particular class and the act complained of was one which
would in ordinary course be within the scone of the employment of servants of that class, this is
sufficient to establish a prima facie case that the act complained of was committed by the
servant in the course of his employment, and the onus of proof then shifts to the owner to
show that the employee was acting outside that scope. (ii)The true test whether or not a
servant is acting in the course of his employment can be expressed in these words: was the
servant doing something that he was employed to do? If so, however improper the manner in
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which lie was doing it, whether negligent or fraudulent or contrary to express orders, the
master is liable.
Acropolis Bakery ltd v ZCCM ltd
Some miners who had grievances against their employers went on strike during the course of
which they rioted in their township and set fire to a bread van belonging to the appellant, an
innocent passer-by. The question arose whether the employers could be vicariously liable, or if
they were strictly liable, or in breach of duty of care owed to an innocent passer-by. It was also
argued that novel basis for liability should be introduced to enable the appellant to recover
from the respondent as employers of the riotous miners. Held: (i) Acts of vengeance and
violence unrelated to the proper or improper, but bonafide performance of a job, will not be
regarded as falling within the course of employment and will not create vicarious liability;
(ii)The principles of strict liability under Rylands v Fletcher cannot be extended to the keeping
and collecting of miners in a mine compound (iii)There is no duty of care which can be
recognised by the law which employers can owe generally to third parties not to incense the
workers so as to prevent a riot during an industrial dispute; (iv) In a proper case, an established
principle can be extended to cover novel situation and remedies will be available in new
situation where the legitimate rights of a person are unfairly or wrongfully injured by another
since the recognition of those rights presupposes the availability of remedies for their
endorsement and protection; (v) No new right by a third party to recover for riot damage
against an employer can be recognised. Doing so would make employers generally liable for all
the criminal or purely private frolics of their workers.
GDC Hauliers v Trans-Carries ltd
In the court, the respondent was the plaintiff; the appellant was the first defendant while one
Lewis Kayoyo was the second defendant. The defendant was found to be vicariously liable for
the indisputable negligence of the second defendant who caused a road traffic accident on the
Ndola-Kitwe dual carriageway. The second defendant was driving the first defendant’s truck, a
mechanical horse registered AAL 7257, when he swerved into the plaintiff’s Mercedes truck and
trailer traveling in the same direction in a botched attempt at overtaking. The first defendant
sought to avoid all liability by pleading that the second defendant who was employed as a clerk
was not authorized to drive the truck and was neither engaged on the business of the employer
nor in the course of his employment when he got involved in the accident that night. Held: (i)It
is not true that only a person specifically employed as a driver can attach vicarious liability from
a driving incident in his course of employment or while engaged on the employer’s business.
Century insurance v NI Road Transport Board
A transport undertaking had a contract with a petroleum company for the carriage and delivery
of their petrol in lorries, agreeing to insure the lorries against any spillage or fire of the
petroleum. The lorries were insured by an insurance company against liability to third parties.
While one of the lorries was delivering petrol at a gas station, the undertaking’s driving lit a
cigarette, causing an explosion and consequent damages. The Court held that the truck driver’s
act, albeit careless, took place during the course of his employment as he was in the midst of
delivering the petrol to a tank. Recent authority has overturned the requirement that the act be
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done for the benefit for the employer. The employee was negligent in the discharging of his
duties by smoking as he did, yet was nevertheless in the course of discharging his duties to his
employer and, thus, the employer was liable. Accordingly, the transport undertaking was held
vicariously liable for the damage caused by their employee’s negligence.
Distinction: Beard v London Omnibus Co
X, a bus conductor, decided to turn defendant’s bus around so that it was facing the right
direction for the next journey, in the absence of the driver, and negligently hit Plaintiff, who
sued the defendant. Court of appeal dismissed the plaintiff's claim since X had not been
authorised to drive the bus and the negligence did not therefore occur within the scope of X’s
employment.
Distinguish: Limpus v London General Omnibus Co
The driver of an omnibus (a long motor vehicle) intentionally drove across in front of another
omnibus and caused it to overturn. The bus company resisted liability on the ground that it had
forbidden it's drivers to obstruct other bus drivers. Baron Martin had directed the jury that, if
the defendant’s driver did it for the purposes of his employer, the defendants were liable: but if
it was an act of his own, and in order to effect a purpose of his own, the defendants were not
responsible. The jury found for the plaintiff.
Held: The employer was liable for the ensuing accident despite written instructions to the
driver to exercise care. The employer was liable because the injury resulted from an act done
by the driver in the course of his service and for his master’s purposes; it was not done by the
servant for his own purposes, but for his master’s purposes. The driver was nonetheless acting
in the course of his employment.
Smith v Stages
The defendant's employers told him to go to another region to work and were given the cost of
a rail fare but it was not specified how they should travel. The payment arrangements were
such that after working for 13 hours defendant could take 8 hours sleep before driving back,
though this was at D’s discretion. The defendant instead decided to drive back straight away
and negligently crashed into the plaintiff who was injured. The question was whether the
defendant's employer, X, was vicariously liable. House of Lords held that X was liable since the
defendant was being paid for the whole trip and the journeys, even though the mode and time
of transportation was at the defendant’s discretion.
Storey v Ashton
The defendant in this case, was a wine merchant who, in the course of employment, sent his
clerk and his car man off with a horse and cart to make a delivery of wine and collect and return
the empty bottles. During their journey from doing this, rather than completing this task set by
the employer, the car man was told by the clerk to drive in the opposite direction to visit his
brother-in-law as it was past 3.00pm on a Saturday and outside of business hours. Following
this change of direction, the car man ran over the plaintiff. The defendant was not liable in this
instance as the court considered that the car man was operating a new and independent
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journey from the one he was instructed to do. The court surmised that as it was after business
hours, the incident that harmed the plaintiff could be considered to have taken place outside
the course of his employment. With this being said, the court still emphasised the strict nature
of an employee acting under an employers instruction.
Manfred & Kajeema construction v Joseph
The facts of the case arose out of a road traffic accident in which the first appellant,
while driving a vehicle belonging to his employer the second appellant, hit into the back
of a stationary truck, killing four passengers. One of the dead passengers was not an
employee and after damages were awarded to her representative the appellant appealed
against the order claiming that she had not been authorised to be a passenger. One of
the issues which arose was whether the employer was vicariously liable where an
employee had flouted instructions not to carry passengers. Questions of damages related
to the nature of the award and its apportionment between the appellants. Held: An
instruction to a driver not to carry unauthorised passengers did not limit his employment
therefore the employer remained vicariously liable for any negligence on his part unless
there was specific proof to the contrary. However it was improper for the Court to
allocate damages to be paid partly by each defendant. Even where there is no proof of
the exact damage suffered it is improper to make a global award and it is better to
allocate the damages between the Fatal Accidents Act and the Law Reform
(Miscellaneous Provisions) Act and take into account the effect of inflation. Despite
changes in English law, results of criminal cases may not generally be used to establish
civil negligence in this country unless the criminal evidence relates to an admission of
negligence. Kabwe Transport Co. Ltd. v Press Transport (1975) Ltd. upheld.
Twine v Bean's Express
A driver was entitle to drive his employer van, his employer having a contract with the post
office when so doing, he gave Mr, Twine from A to B. Though the driver was expressly
prohibited to give the lift and the notice was being affixed to the cab and a person was killed in
consequence of the driver negligence Issue: It was lift of unauthorized passenger or not?
Judgment: Though the driver was expressly prohibited to give the lift but still he gave the lift
the driver was not acting in the course of his employment. It was totally out of his scope of the
employment and it was held that the muster was not liable. Reasoning: As it is prohibited to lift
of unauthorized passenger and the driver did not any right to lift the passenger and that’s why
the master was not liable.
Rose v Plenty
A milkman (against company orders) took a 13-year-old boy to help him on his round, and the
boy was injured through the milkman's negligent driving. The boy sued both the milkman and
the dairy co-operative. The trial judge found that the co-operative was not liable. The plaintiff
appealed. The court held that the milkman was doing an authorised act, delivering milk, in an
unauthorised way. Per Lord Scarman: Determining vicarious liability is a matter of public policy
determined by:
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1. Did the servant commit a tort on the plaintiff?
2. Whether the employer should shoulder the responsibility.
"if that visitor from Mars is still in court he will return to his planet conscious that one member
of the court sees no irreconcilable differences opening up in the common law. The Court of
Appeal (by a majority) found the dairy vicariously liable for the boy's injuries. The boy was
actually helping to deliver the milk, and so the driver's action was an unauthorised way of
performing his duties.
Heasmans v Clarity Cleaning
Employers were not liable for the long distance calls of an employee who was employed to
clean phones. It was an unauthorized use of the telephone.
Warren v Henleys
A garage attendant, as an act of personal vengeance, assaulted a customer of the garage. A
customer at a petrol station was abused by the attendant as he drove off without paying. The
customer then paid. He complained to the police officer he found about the attendant’s
conduct and persuaded the officer to return with him to the petrol station. The officer listened
to both men and indicated that he did not think that it was a police matter, whereupon the
customer said that he would report the attendant to his employer. The officer was on the point
of leaving, when the attendant punched the customer in the face, knocking him to the ground.
The customer, who now sued the employer. Held: The employers were not liable. The act of
assault was one of personal revenge, and was outside the scope of his employment. There was
no basis for holding the employer vicariously liable for that behaviour.
Mattis v Pollock
The defendant employed an unlicensed bouncer, C, who stabbed a person at the club, the
plaintiff. The plaintiff sued the defendant for the damages as vicariously liable for C. Court of
appeal held that the defendant was liable following the broad approach, there was sufficient
connection between the tortious act and what the employer expected of him or authorised him
to do, and it would be “fair and just” to impose such a liability, taking into account the
employer-employee relationship.
ST v North Yorkshire County Council
Sexual assault of a disabled student by a headmaster on a school trip. Held: Local Authority not
vicariously liable. It was not an authorised act carried out in an unauthorised way. This has since
been overturned.
Padbury v Holliday & Greenword ltd
A sub-contractor installing some windows left a tool on a window sill. It blew off, and hit the
plaintiff, who now sought to recover damages from the main contractor. Held: This was an act
of collateral negligence by an employee of sub-contractors, and the main contractors were not
responsible.
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Nuisance
Thompson v Costaki
The where the sight of prostitutes and their clients entering and leaving neighbouring premises
were held to amount to an actionable nuisance as the activity was considered offensive in itself.
There was no need to demonstrate that the activities were noisy.
Sedleigh Denfield v O’Callaghan
A pipe was laid on the defendants land without their knowledge or consent, by a trespasser.
When the occupiers saw the pipe, they placed a grating on it but because of its position it did
not adequately prevent the pipe from becoming blocked. During a heavy rainstorm, the pipe
became blocked and the water overflowed on to the claimants neighbouring land. HELD: the
defendants had sufficient connection with the nuisance to be treated as both adopting it and
continuing it. Either ground was sufficient for the defendants to be held liable in nuisance. An
occupier may be liable for the facts of a trespasser if they adopt or continue the nuisance.
Sturges v Bridgman
Sturges, a doctor moved next door to a confectioner, Bridgman, who had produced sweets for
sale in his kitchen for many years. The doctor constructed a small shed for the purpose of
private practice on the boundary of the two properties. However, the loud noises from the
confectioner's industrial mortars and pestles could be clearly heard, disrupting his use and
enjoyment of his land and he sought an injunction. The injunction was granted by the lower
court and Bridgman appealed. Held: the property’s occupant has a cause of action for nuisance
when the nature of the nuisance arises solely after the claimant’s property is validly altered.
Halsey v Esso Petroleum
Halsey lives down the road from an Esso Petroleum oil factory. Halsey claimed that the factory’s
emissions produced an offensive smell, and that the acidic residue from the factory’s smoke
damaged his linen and car’s paint. Halsey was also kept up at night by the noise from the trucks
constantly moving about in the area. The locality and character of the neighbourhood is
important. Veale J determined that the factory could operate without causing nuisance, and
noted that there was little noise pollution during the day. The smell can be a nuisance – the
smell was held to be “a nauseating smell, and …so frequent as to be an actionable nuisance.”
Robinson v Kilvert
The claimant warehoused brown paper in a building. The defendant had a factory that made
paper boxes which operated from the building’s basement. This required him to maintain a
warm room temperature to keep the boxes in good condition. The claimant’s brown paper was
damaged due to the warm temperature of the defendant’s factory. Held: The defendant was
not held liable. The Court of Appeal dismissed the claim because the operations of the
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defendant’s factory were not unusual, and would not have impacted a normal user of the
building.
Contrast: McKinnon industries v Walker
The defendant manufactured steel and iron products 600 feet from the claimant’s property.
The claimant had a dwelling house and also a commercial florists and nursery. As part of his
business he specialised in growing orchids which are known for their particular sensitivity. The
claimant brought an action in relation to noxious fumes and smuts which had deposited over
his shrubs, trees, hedges and flowers causing them to die. Held: The defendant’s actions
constituted an unlawful nuisance and therefore the claimant was entitled to recover damages
in respect of the orchids despite the sensitive nature of the flowers.
Christie v Davey
The claimant was a music teacher. The neighbour was disturbed of her playing music and asked
her to keep the noise down. She did not stop playing the music in her house and in retaliation,
D started banging on the door and shouting. Held: the neighbour was liable for nuisance
because he acted by malice. Therefore, an injunction was granted.
National Hotels Development Corp v Motala
The appeal concerned noise nuisance and the issues were whether it was wrong to find the
appellant liable at all and secondly, if the answer be in the negative whether it would be wrong
to ban forever the playing of music on the terrace of the appellant’s hotel. The parties are
neighbours separated only by a road and the respondent complained that the playing of loud
music on the terrace more or less overlooking his house late in the night disturbed his quiet and
convenient enjoyment of his house. The appellant’s position was that the playing of music on
the terrace attracts more patrons and its absence would lead to serious financial loss. Held:
Whether an act constitutes a nuisance must be determined not merely by an abstract
consideration of the act itself, but by reference to all the circumstances of the particular case,
including for example, the time of the commission of the act complained of; the place of its
commission, the manner of committing it, that is whether it is done wantonly or the
reasonable exercise of rights and the effects of its commission that is whether those effects are
transitory or permanent, occasional or continuous , so that the question of fact nuisance or no
nuisance is one of fact.
Thompson v Gibson
A building had been built, under the superintendence of the defendants, on land that belonged
to the corporation of Kendal but upon which a market was lawfully entitled to be held, the
plaintiff being the owner of the market. The plaintiff brought an action in nuisance against the
defendants, claiming an interference with his rights. On behalf of the defendants it was
contended that they were not responsible for the continuance of the nuisance as they were
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distinct persons from the corporation, and while guilty of erecting the building, they could not
be considered to have continued the nuisance as they were not in possession of the land upon
which the building was built, and moreover that it would be wrong to make them liable as they
could do nothing now to remove the building. The court held that they could be liable for the
continuing nuisance. In addition to the party causing the nuisance, anyone who authorises or
continues the nuisance may be liable for the nuisance.
Malone v Laskey
The claimant lived in a house belonging to her husband’s employer. The claimant's husband
was a tenant, and she had a license to live at the property. The neighbours were using an
electricity generator which caused vibration in the house, dislodged the cistern which fell on
her and caused her injuries. She sued for nuisance. Held: Claim failed. As neither her nor her
husband had an interest in the land they were living in, they could not sue in nuisance.
Hunter v Canary Wharf
690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and
complained that the erection of the Canary Wharf Tower interfered with their television
reception. In addition, a second action against London Docklands Development Corporation
involved 513 claims for damages in respect of excessive amounts of dust created during the
construction of the tower. Some of the claimants were owners or tenants of properties, but
many of the claimants had no proprietary interest in land at all. Some were children living with
parents, some were relations or lodgers with use of a room and some were spouses of the
tenant or owner of the property. Held 1.There is no right of action in nuisance for interference
with the television reception.2.An interest in property is required to bring an action in nuisance.
Khorasandjian v Bush
The claimant was an 18 year old woman who was being harassed by the defendant a 23 year
old man. He had threatened her with violence, behaved aggressively when he saw her, shouted
abuse at her, he would pester her with phone calls at her parents and grandparents house. He
had spent time in prison for threatening to kill her. She obtained an injunction in civil law
against him to prevent him “using violence to, harassing, pestering or communicating” with her.
The defendant appealed against the injunction on the ground that the judge had no jurisdiction
to grant such an injunction as harassing, pestering or communicating did not constitute any tort
known to law. Whilst the persistent telephone calls were capable of constituting the tort of
nuisance, the claimant did not have an interest in the land and therefore had no cause of action
in tort law. Held: His appeal was dismissed. Dillon LJ: “To my mind, it is ridiculous if in this
present age the law is that the making of deliberately harassing and pestering telephone calls to
a person is only actionable in the civil courts if the recipient of the calls happens to have the
freehold or a leasehold proprietary interest in the premises in which he or she has received the
calls.”
Tetley v Chitty
A council allowed a go-kart club to use their land for a race track. Nearby residents brought an
action in nuisance. The council were held liable for authorising the activities of the go-kart club.
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The noise was an ordinary and necessary incident to go-kart racing which was the purpose for
which the permission to use the land was granted.
Zambia national provident fund v Kamalondo
The appellant was the Landlord of the respondent. The respondent sued the appellant
for breach of his right to quiet enjoyment of the promises in that on three occasions
the premises were flooded causing damage to the respondent's property. The lower
court found that the Landlord could not be exonerated from the flooding which was
caused by a structure put up by another tenant without authority. Held: Where another
tenant of the same landlord causes a nuisance which interferes with a tenant's quiet
enjoyment, the landlord is not liable unless he actually participated in the
nuisance.
Attorney general v PYA Quarries ltd
The defendants operated a quarry and used a blasting technique which emitted large quantities
of dust and noise, as well as causing vibrations which interfered with the enjoyment of land for
many individuals in the area. The claimants sought an injunction preventing the continuation of
a public nuisance as a result. The defendant’s alleged that what was being carried out was in
fact a private nuisance which effected only those in the area and that they were therefore not
bound by the injunction prohibiting ‘public nuisance’ as a result. It was stated A public nuisance
is so indiscriminate in its effect that it could not be reasonable to expect one person to take
proceedings on their own to stop it. Instead, it was the responsibility of the community at
large, and that was what had occurred in this case. As such, the injunction was granted.
Bliss v Hall
To an action of nuisance for carrying on the business of a tallow chandler, in a massage
adjoining the massage of the Plaintiff, it is no plea that the Defendant was possessed of his
massage, and the business was carried on, before the Plaintiff became possessed of and
occupied the adjoining massage. However, a right to emit ‘noxious vapours and smells’ might
be acquired by prescription
Adams v Ursell
A house owner complained that his neighbour’s fish and chip shop was emitting odours which
impinged on the enjoyment of his house. Held: Such odours might amount to a sufficient
interference to constitute a nuisance.
Lambton v Mellish
Mellish and Cox were refreshment contractors who lived near Lambton's property. They both
used organs, although one is much louder than the other. They are played constantly and
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create a nuisance for Lambton and his family. It was held both contributed to the totality of the
nuisance.
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