LW188: Law of Torts
Marking Scheme – May/June 2013
1.
Reasonable foreseeability stemming from the neighbour principle (Donoghue v Stevenson) – plays a
role where individuals are physically harmed due to the direct carelessness by one party against
another.
Hypothetical or case based examples demonstrate this – employer/employee,
doctor/patient, car driver/pedestrian etc relationships.
Candidates may briefly consider the Post Donoghue v Stevenson use of the “neighbour principle”
and its historical interpretation e.g. in 1970’s with Home Office v Dorset Yacht; Anns v London
Borough of Merton etc and how the expansionist period developed – a principle of “neighbourhood”
applied liberally.
However, it is clear there are limits to the application of the neighbour principle – note the “resiling
from Anns” and the more recent use of the ‘proximity’ test – Peabody; Yeun Kin Yeu, Hill v CC West
Yorkshire etc, which is far more restrictive in its application. Candidates may then analyse how
‘proximity’ operates by reference to any area of liability e.g. economic loss, nervous shock,
omissions, liability of local authorities, police etc.
Candidates should also recognise that ‘proximity’ is one required element in many complex/novel
areas of law but not always sufficient on its own - an understanding of the ‘just and reasonableness’
test by reference to case law in any of the areas studied is also required. The term ‘just and
reasonableness’ principle emerged to limit development even further – e.g. Hill v CC West Yorkshire;
Alexandrou; Harris v Evans; Caparo; etc etc, predominantly due to policy reasons. Clearly there has
been a rejection of the neighbour principle as the sole test for determining a duty of care in all cases.
Policy – ever present influence over judicial decision making and the duty of care issue. General
policy issues exist (e.g. the floodgates, lack of an alternative remedy) and specific policy issues exist
(e.g. re nervous shock – issue of fraud, economic loss – need to protect the rules of contract, public
bodies - need to protect their resources). Human rights concerns have fed into law and policy issues
– Osman v UK, Z v UK, D v East Berks, Van Colle etc and the criticism of the policy immunity with
regard to local authorities and the police.
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2.
Candidates need to initially examine the principle of liability for negligent misstatement by reference
to the ground breaking case of Hedley Byrne v Heller. An examination of the “assumption of
responsibility” test based on the defendant’s knowledge of the reliance and the claimant’s
reasonable reliance on the information provided etc is required.
Since Hedley Byrne, a consideration of how elements of the “special relationship” test have
developed in relevant cases is necessary e.g. in Mutual Life v Evatt; Howard Marine v Ogden;
Chaudhury etc. A brief reference to the expansionist phase and the liberal interpretation of the
“special relationship” is relevant – exemplified by Yianni v Edwin Evans
Candidates then need to focus on Caparo v Dickman and the more restrictive interpretation of the
“special relationship” (proximity) demonstrated by numerous cases such as Morgan Crucible v Hill
Samuel Bank; Law Society v KPMG; Henderson v Merret; Aiken (the Lloyds cases) Goodwill v
BPAS,;McNaughten v Hicks; Precis v Mercer. These cases (post Hedley Byrne) illustrate how the
principles have been amended to limit the ‘floodgates of liability’ being opened.
However, it should also be noted there have been cases where duty has been imposed without
regard to the strict application of the test outlined in Hedley Byrne (as amended by Caparo) - e.g.
White v Jones and the other wills cases such as Carr-Glyn v Frearsons; Spring v Guardian Assurance
and the reference cases; Henderson v Merrett and the professional services cases. This is a theme
that needs to be developed to demonstrate how the concept of special relationship first outlined in
Hedley Byrne has been amended by the courts to fit the requirements of policy, amongst other
reasons.
3.
Candidates should define private nuisance within the context of “an unreasonable interference with
the use and enjoyment of land” and examine the different factors that make up a nuisance.
The courts accept that a balancing of competing interests is necessary; between the rights of a
landowner to do as he/she pleases on land and the rights of a literal neighbour to enjoy their land
without undue interference.
Factors relevant to examine include:
Locality/character of neighbourhood - see quote in Sturges v Bridgman, Leeman v Montagu, Halsey v
Esso Petroleum etc.
Duration and extent of the interference – see case law such as De Keyser v Spicer Bros Ltd, Leeman v
Montagu, Sampson v Pressinger, Baxter v Camden CC, Tetley v Chitty, Kennaway v Thompson etc.
Malice – see Christie v Davey.
Use of property for common purpose – Bamford v Turnley etc.
Sensitivity of the claimant – Heath v Brighton Corporation, Robinson v Kilvert etc.
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Physical harm to property can be good evidence of a nuisance - St Helen’s Smelting Co v Tipping.
Furthermore it should be noted that the utility or usefulness of the defendant’s activities are not
necessarily taken into account (Adams v Ursell). Even if the interference is continuous and severe,
there are, however, certain defences that can be used such as legal authority (Allen v Gulf Oil).
Planning permission for the activity that causes the interference is not a full defence but it may
change the character of the neighbourhood thus justifying the activity (Gillingham BC v Medway
Docks).
A public nuisance is an act that ‘materially affects the reasonable comfort and convenience of a class
of her majesty’s subjects (Romer J in A-G v PYA Quarries.) It is primarily a crime designed to protect a
community from public health interferences or from interferences with certain rights such as the
right to safe and unobstructed use of the highway.
An individual who suffers particular damage over and above that suffered by the rest of the ‘class’
may pursue civil action in tort. Candidates should illustrate this with examples, such as A-G v PYA
Quarries; Wandsworth BC v Railtrack; Harper v Hadden etc.
Unlike private nuisance personal injury and economic loss remains directly recoverable (e.g the
Corby litigation) and there is a different requirement re the level of intention necessary.
4.
Battery is the intentional and direct application of force on another person without their consent.
Although Kerry consented to the nose operation this did not mean she consented to the removal of
the birth mark. The additional procedure could only be justified if it was an essential action to save
her life and she was not able to give formal consent as she was unconscious (F v West Berkshire HA,
implied consent based on ‘acting in the patient’s best interests’). This clearly was not the case here.
Although, on the face of it a “practical joke” Josh may still be liable for the assault of throwing the
knife in combination with the aggressive words. It seems clear Mike reasonably believed he was
about to be battered (even though he wasn’t) and the fact the knife was plastic and probably
couldn’t cause him much harm doesn’t affect the principle that fear of any battery can be an assault
(R v St George). One issue may be the history of ‘jokes’ being played between them – does Josh
have the required state of mind? (Bici v MOD).
Mike phoning Larry – potential liability under the rule in Wilkinson v Downton; not assault nor
battery by reference to their definition. The question here is – was the loss physical or psychological,
rather than mere distress? (Mina Wong v Parkside Health)
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Mike being dragged to store room – This can be false imprisonment even if Mike falls asleep
(Meering v Grahame White Aviation). Furthermore, Josh demanding an apology before releasing
Mike is arguably not a reasonable condition for release. So even though Mike fails to meet this
condition it is still false imprisonment (Robinson v Balmain Ferry). Additional point – is the window a
reasonable escape route (Wright v Wilson)
Ben kissing Zelda’s hand – His actions “transcend the boundaries of lawfulness” as any “unwanted
touching” is capable of being a battery (F v West Berkshire HA). Battery is not based on verifiable
harm nor is hostility required despite the decision in Wilson v Pringle. Therefore the kiss is a technical
battery.
Nick’s comments to Jeff – This may not be an assault as Jeff does not necessarily fear he is about to
be battered. The words suggest the battery may happen in the future, not immediately (Thomas v
NUM; Tuberville v Savage). Nick throwing the garlic bread hitting Penny is an example of transferred
intent, making him liable for the battery to Penny (Bici v MOD; Livingstone v MOD). He may also have
technically committed the tort of assault against Nick.
5.
Under the Occupiers’ Liability Acts Terry has responsibility as the owner/ occupier of the theme park.
Anthony and his family clearly began their trip as visitors and are owed a common duty of care
under the 1957 Act to ensure they are all reasonably safe to use the premises for the purposes they
are invited to be there (s.2(2).
Anthony has been injured by a defective machine (premises can be “any fixed or moveable structure”
s.1(3). It is clearly not safe to use and would be a breach of the common duty of care. However, the
occupiers may attempt to avoid liability on the basis that an independent contractor (Matt) is
responsible under s.2(4)(b) – it was work you would usually entrust to a independent contractor as it
was of a specialist nature (Haseldine v Daw). But the occupiers’ selection of Matt, a handyman, not
an electrician, may not have been appropriate as specialist electrical knowledge was required
(Bottomley v Todmorden CC). And clearly not reasonable to select him based on a conversation in a
pub. Additionally, no evidence that the occupier had checked the machine after it had been repaired,
which would have been a relatively simple job (Woodward v Mayor of Hastings). Thus, all losses
would be recoverable including property damage.
Bonnie went in search of a toilet. There is no evidence she went anywhere she wasn’t entitled to be.
She has wandered off in search of a toilet and permission is implied on these facts (Gould v
McAuliffe). There was no notice that it was a store cupboard. The cupboard itself contained clear
dangers such as the carelessly left cleaning implements and razor wire. Zelda’s injuries were thus
due to the failure of the occupier to take care.
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Leroy is owed a specific duty as a child. The 1957 Act provides that an occupier must take account of
the fact that children may be less careful than adults (s.2(3)(a)). Arguably, a 8 year old boy may
indeed wander and be attracted to the play area and use the facilities in this way. Breach of duty is
thus established if it can be shown that the premises was defective/dangerous (the play area) and
there was a failure to ensure the safety of the child. This seems very clear. The notice is irrelevant as
children may not read it and it arguably wouldn’t be sufficient to ensure their safety.
However, the occupier is also entitled to take into account the behaviour of prudent parents (Phipps
v Rochester Corporation; Simkiss v Rhondda BC). Therefore, it is possible that the failure to supervise
Leroy might absolve the occupier of responsibility. The Phipps group of cases are predominantly
about parents who fail to supervise very small children in places where obvious dangers are present.
Anthony and Bonnie may legitimately believe that as it is a “family” attraction with ostensibly safe
activities they do not need to supervise Leroy who as an 8 year old may well be reasonably expected
to stray into a play area.
Wayne is a trespasser as he entered a part of the premises he was not entitled to enter as the
attraction was obviously closed. He will not be covered by the OLA 1957 but by the 1984 Act. An
occupier of premises can owe a duty of care under the OLA 1984 to a trespasser if all the three
criteria in s.1(3) are established. But even before the criteria is applied case law suggests he may not
be able to recover as the way the injury occurs is not covered by the provisions of the OLA 1984 - as
it was not due to a “defect” in the premises but his own silly behaviour (Donoghue v Folkstone
Properties; Tomlinson v Congleton BC). Alternatively, the three criteria would not be satisfied – a) as
the occupier wasn’t aware of the specific danger on the premises -the danger was created by
Wayne’s actions, it wasn’t due to any inherent defect (Keown v Coventry HA) nor was the occupier
aware of the trespasser being within the vicinity of “danger” (Higgs v Foster). Diving into shallow
pools is a common occurrence in the case law and all have lost their case on one or more of the
above points (Rhind v Astbury Water Ltd, Ratcliffe v McConnell and Tomlinson above).
Finally the question arises as to the attempted exclusion of liability. The Unfair Contract Terms Act
1977 s.2(1) makes it clear that, in relation to premises used for business purposes, any attempt to
exclude liability for death or personal injury is void.
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6.
Jas owes a duty of care to Tom and those other road users affected by his carelessness based on the
neighbour principle. He has failed to do the work competently as a reasonable amateur enthusiast
(Wells v Cooper). Tom may claim from Jake for damage to his car although damage may be reduced
on grounds of contributory negligence if he contributed to the crash by poor driving in the
circumstances. The damage to Brian’s car may not be recoverable if the damage merely replicated an
earlier accident (Performance Cars v Abrahams).
Kelly will sue Jas and or Tom. She will only need to sue Dr Johnson if his actions break the chain of
causation. Is Johnson careless? Depends on why he failed to set leg properly – only if very careless
would his negligence cause a break in the chain (Wright v Lodge). Furthermore re damages – Kelly
can claim from original defendant for loss of amenity etc, from time leg amputated, even where 3rd
party tort caused by Jim has impacted on the injury (Baker v Willoughby). But if not a tort, as Jim not
negligent as accident Kelly’s fault, damages are not recoverable (Jobling). Alternatively, possible
contributory negligence by her in not looking properly as she crossed.
Ethel, can she prove loss on balance of probabilities? (Hotson; Wilsher v Essex AHA etc) as only 33%
possibility breach caused the loss? Likely she will fail in her action as breach, on balance of
probabilities, did not cause the loss.
John has an unusual bone structure and suffers greater pain than would be normal. He can claim for
these consequences as so long as the loss is foreseeable, all the extent of the loss is recoverable (see
Smith v Leech Brain and Egg shell skull rule). Arthritis – necessary to ascertain why it developed so
soon – natural reason or due to tort. Did it obliterate the consequences of the tort?
Francine was not following doctor’s orders. This is a clear intervening act by the claimant and a break
in the chain of causation (McKew v Holland).
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