Occupier's Liability

If the courts were to take a very broad view of what the occupier `ought reasonably' to protect against, the occupier would be liable simply on the basis that both the trespasser and the danger were reasonably forseeable. - Justin Santiago

The law governing the duty owed by an occupier to a trespasser was left unaltered by the 1957 Act. Historically there was no duty owed to a trespasser and was only liable if it could be proved that he had done some act intending to harm the trespasser or with reckless disregard for the trespasser’s safety – Robert Addie & Sons v Dumdreck. This was altered in BRB v Herrington where it was held that trespassers were owed the common duty of humanity.

Under the Occupiers Liability Act 1984 – S1(1)(a) duty is owed by an occupier to persons other than visitors, in respect of injury on the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them

A duty arises if three separate conditions are satisfied S1(3) :-

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

Standard of care S1(4) - owes a duty to take such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises by reason of the danger concerned – what constitutes reasonable care will vary according to the circumstances

The duty owed may be discharged when warning of a danger is given S1(5)

If the courts were to take a very broad view of what the occupier `ought reasonably' to protect against, the occupier will be liable simply on the basis that both the trespasser and the danger were reasonably forseeable. This reasoning led to concerns that the 1984 Act represented a “trespasser's charter”. The House Of Lords decision in Tomlinson v Congleton Borough Council 2003 was therefore broadly welcomed as a reintroduction of common sense. The central theme of the Lords' ruling is that the cause of the claimant's injury was his own folly, not something that the defendants did or failed to do. The danger of the lake was obvious, and the authority had erected signs to that effect, and had directed its park staff to eject people from the lake if they were found there. There could be no dount that the claimant had known of the danger, and that he must therefore have been deemed to have accepted it voluntarily.

Two points brought up by Lord Hoffman : the first is the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. And the second is the question of whether the council should be entitled to allow people of full capacity to decide for themselves whether to take the risk.

Social Value

The Court of Appeal made no reference at all to the social value of the activities which were to be prohibited. The majority of people who went to the beaches to sunbathe, paddle and play with their children were enjoying themselves in a way which gave them pleasure and caused no risk to themselves or anyone else. This must be something to be taken into account in deciding whether it was reasonable to expect the council to prevent people from using the beaches or to deprive people form using the beach in a harmless way.

Free will

The second consideration, namely the question of whether people should accept responsibility for the risks they choose to run, is the point made by Lord Phillips of Worth Matravers MR in Donoghue v Folkestone Properties Ltd[2003] QB 1008, 1024, para 53 :

Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk. By contrast, Miss Bessie Stone (Bolton v Stone [1951] AC 850), to whom the House of Lords held that no duty was owed, was innocently standing on the pavement outside her garden gate at 10 Beckenham Road, Cheetham when she was struck by a ball hit for six out of the Cheetham Cricket Club ground. She was certainly not engaging in any activity which involved an inherent risk of such injury.

I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may be think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.

My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley LJ, ante, p 62B-C, para 45, that it is "only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability". A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Comr of Police of the Metropolis [2000] 1 AC 360.

So this appeal gives your Lordships the opportunity to say clearly that local authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers. On the other hand, if the decision of the Court of Appeal were left standing, every such occupier would feel obliged to take similar defensive measures.

Two other differences should be noted between the duty of care to lawful visitors and that to trespassers. First, the 1984 Act only applies to personal injury. The 1957 Act is not so limited. This means that, in effect, the occupier carries no liability for damage to a trespasser's property, however expensive. Secondly, the 1957 Act allows that a visitor may waive his protection under the Act by a clear disclaimer, subject to the provisions of the Unfair Contract Terms Act 1977. The 1984Act makes no such statement. It is not entirely clear why a person is allowed to waive his responsibility to lawful visitors, but not to trespassers. It could be that, in practice, the 1977 Act would prevent any effective waiver anyway. Alternatively, the duty of care to a trespasser is so low that it would unjust to allow the occupier to lower it still further by a disclaimer. Another argument is that, while it would be possible to get a lawful visitor to express his agreement to the terms of a disclaimer, it is not clear how one would get a trespasser to do so.

Vicarious Liability

Vicarious liability runs counter to two principles of the law of tort, namely that a person should only be liable for loss or damage caused by his own acts of omissions and secondly that a person should only be liabile when he has been at fault. Discuss.

Vicarious liability is one person’s liability for another’s act/omission which caused loss to another. An example of vicarious liability is the liability of an employer for acts by his or her employee. The burden of the liability on the employer is justified because the employer derives economic benefit so needs to bear any losses/liability incurred and it is justifiable to impose liability as he has substantially greater means and may have the necessary insurance to cover such contingencies.

Employers are vicariously liable, under the respondeat superior doctrine, for negligent acts or omissions by their employees in the course of employment.However there has to be a balance between firstly furnishing an innocent victim with recourse and secondly hesitation to foist undue burden on business enterprises.
For an act to be considered within the course of employment it must either be authorised or be so connected with an authorised act that it can be considered a mode, though an improper mode, of performing it.

Various tests have been formulated in order that this balance is achieved.

An employee has to be clearly defined under a contract of service as opposed to contract for service.Under the control test formulated in Yemen v Noakes an employee is one who is subject to the command of his master as to the manner in which he shall do his work. This test was further elaborated in Ready Mixed Concrete v Minister of Pensions which said a contract of service exists if these three conditions are fulfilled.

(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. The wage represents the consideration and if there is no consideration there is no contract of any other kind.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. However, it was also made clear in the judgment that, although a right of control is an important factor in determining employment status, it is not necessarily a determining factor.

(iii) The other provisions of the contract are consistent with its being a contract of service. Factors such as ownership of significant assets, financial risk and the opportunity to profit are not consistent with a contract of service.

The "Salmond Test" is used to determine if an act of an employee occurred in the course of employment and, therefore, whether the employer should be liable. This test deems an act to have been committed in the course of employment if it is either:

(a) something authorised by his employer, or
(b) an unauthorised mode of doing something authorised.

The second limb of the Salmond Test is particularly difficult to apply and the House of Lords in the U.K. has recently expressed its preference for a less technical test which was followed by the Court of Final Appeal. This new test focuses on whether the employee's act is so closely connected with his employment that it would be fair and just to hold his employer vicariously liable (Lister v Hesley Hall Limited [2002] 1 AC 215).

Ultimately, the focus of the "close connection" test is still whether or not the act of the employee in question is carried out in the course of employment. However, in determining this point, the "close connection" test appears to allow a broader and more flexible examination of the facts and circumstances of a particular employment as the court does not have to determine if the act in question is authorised, whether expressly or impliedly. The law was deemed mature enough to hold an employee vicariously liable for deliberate, criminal wrongdoing on the part of an employee overruling Trotman v North Yorkshire.

To avoid vicarious liability, an employer must demonstrate that the employee was acting in his own right rather than on the employer's business. Factors to take into consideration whether it was a frolic or detour : Joel v Morrison, fow own benefit, whether it was wholly independent act, or was it incidental to employment or was it a prohibited conduct : Rose v Plenty.

The Rule in Rylands v Fletcher

The rule in Rylands v Fletcher should be abolished and absorbed within negligence or alternatively should be generously applied and the scope of strict liability extended. Discuss. - Justin Santiago

The principle of the decision in Rylands v Fletcher was expressed in the famous words of Blackburne J:

“The person who brings on his land for his own purposes, and collects and keeps there, anything liable to do mischief if it escapes, must keep it in at his peril...”'

The rule in Rylands v Fletcher applied the doctrine of strict liability into the tort and the primary justification for this was premised upon the belief that the rights of individuals should not be sacrificed in the furtherance of the public interest in cases where the acts were "one off" and therefor difficult to be liable under nuisance which requires the acts to be continuous or where it was difficult to prove that the defendant had not taken all reasonable precautions to prevent the mischief since the escape would not have been foreseeable.

The application of strict liability, that is, liability without fault is contentious because it looks at the harmful result rather than to the kind of conduct. This is very different from the traditional fault-based formulation in negligence.

However, the situation is quite a lot more complicated than it first appears, because true strict liability would be extremely burdensome. Consequently, the courts, just like in the law of nuisance, have imported fault elements into the rule in other guises. To succeed in the rule under Rylands v Fletcher, the claimant has to show that the defendant's activities amounts to a `non-natural' user of land. Clearly this will be easier if the defendant's activities are inherently unreasonable. In addition, it appears that a remoteness test applies to this tort as it does for nuisance.

In Cambridge Water v Eastern Counties Leather 1994, the House held that the concept of `non-natural user' was a valid one, and what the defendants had been engaged in did constitute a non-natural use; nevertheless, the same tests for remoteness as applied in negligence also applied to the rule. The loss suffered by the claimants was not of a type forseeable by the defendants, and the damage was therefore too remote. Under strict liability it would not matter whether the loss was foreseeable or not. So, even if the defendant's activities amount to `unreasonable user', he may still escape liability if he could not reasonably be expected to foresee the type of damage that would result.

In short, Ryands v Fletcher is not subject to an explicit test for fault as negligence is, but it has features which at least overlap with a test for fault. The main procedural difference is that the claimant does not have the burden of proving that the defendant was at fault - this is assessed by the court with regard to the reasonable user and remoteness considerations.

Whether this warrants that the rule be absorbed into negligence is debatable because under negligence there would be several more elements that may be difficult to prove by the claimants who would be deprived of the right to use their land. The rule itself, said the House of Lords in Transco v Stockport MBC, fulfilled an important social objective, in making people think very carefully about the ways they used their land.

Nuisance

There continues to be uncertainties about the basis for suing under private nuisance - Justin Santiago

There has been a preference to sue under private nuisance because it is not based on fault and therefor is less difficult to prove. Private nuisance is the continuous, unlawful and indirect interference with a person’s use or enjoyment of land or some rights over or in connection with it and as long as all these elements are present there is a valid case. However several cases have pointed to the limitations of this definition that makes it difficult to start an action under nuisance.

Because private nuisance is a tort against land, not against the person only those with rights to the land namely an interest in land or exclusive possession can sue.
It has never really been clear what amounts to a proprietary interest in land for the purposes of nuisance, and on closer inspection it is obvious that it isn't a particular helpful concept in general – Pemberton v Southwark LBC 2000 decided that a tenant, who had reverted to being a trespasser by his non-payment of rent, but was tolerated by the landowner, had standing to sue in nuisance.

In Khorasandjian v Bush the law of nuisance could be invoked by those who had a substantial link to the land, and this would include the relatives of landowners however Hunter v Canary Wharf reinstated the proprietary interest principle stated in Malone v Laskey that the claimants must have an interest in the land and must have exclusive possession tin their own right and overturned the decision to allow occupiers with a substantial link to the landowner to sue.

Although Hunter seems clear enough, there continue to be uncertainties about who has a right to sue in nuisance. The first problem arises from those cases where the courts have accepted that it is a nuisance to prevent someone getting access to land (rather than interfering with his use of that land). These cases have mostly arisen out of the actions of pickets on industrial disputes. In both Thomas v NUM [1986] Ch 20 and Newsgroup v SOGAT [1987] ICR 187 the courts accepted that pickets caused a nuisance by preventing non-striking workers getting into their places of work. In none of these cases had the victim of the nuisance had any proprietary interest in land; at best they were licencees. However, unlike Malone, these cases concerned rights of access to land, not right of enjoyment of land, and might represent a different species of nuisance.

Limiting who can sue to those with rights to land is contrary to Article 8 of the European Convention on Human Rights which demands respect for private and family life, and if a person occupies his home as a licencee, or even as a trespasser, it seems that he should still be able to get the protection of the Article.

Another contentious point is the requirement for the interference to be continuous which is said to distinguish nuisance from negligence which can be based on a single event. In British Celanese v Hunt Capacitors 1969, the defendant's metal foil blew onto a power line and shut off power to the claimant's plant. This was a single event, but the defendants were liable. The reasoning was that the single event followed from an ongoing state of affairs (the inadequate storage of the foil). Then, in Leakey v National Trust 1980, the defendants were held liable for a (single) landslide onto the claimant's property. Again, the reasoning was that the defendant's land was defective, and had been so for a long time.

Additionally in deciding nuisance cases, the courts have to balance the right of the claimant to use his land, with the right of the defendant to use his. Not every trivial interference will amount to a nuisance. It must be a balancing exercise between rights of the claimant and other householders : Miller v Jackson. Factors to take into consideration :-

- defendant’s conduct in light of the circumstances
- nature of the locality – Sturges v Bridgman making a disruptive amount
of noise is more likely to be unreasonable in a quiet rural area than in
an industrial zone
- abnormal sensitivity – Robinson v Kilvert
- malicious – Christie v Davey, Holleywood Silver Fox Farm v Emmet 1936, the defendant's shooting was perfectly lawful, and would not
have amounted to a nuisance had it not been done with malice.
- does not normally occur
- occurs at an unreasonable time
- objectives could have accomplished in a less intrusive manner
- dangerous
- natural nuisance recognised and the same duty of positive action on
the part of the occupier of the land was recognised – Leakey v
National Trust

Unsure what amenity interests are protected. In Tetley v Chitty 1986, noise from a go-kart track was held to be an actionable nuisance, as was the bad smell emanating form a pig farm in Bone v Seal 1975. But no action lay in the blocking of a view or prospect : AG v Doughty or prospect of TV and radio reception : Hunter v Canary Wharf.

If a loss of amenity resulting from personal discomfort can be actioned, then the courts have from time to time extended this head of liability to encompass actual personal injury. After all, it seems logical in a way that if discomfort is actionable, injury should be actionable. However, in Hunter v Canary Wharf the House of Lords doubted that personal injury could amount to a nuisance - nuisance is concerned with the rights in land, not with bodily integrity.

Although some losses of amenity value may be actionable, the courts have not accepted that all losses are so actionable. For example, in Hunter, interference with television reception was not held to amount to a nuisance. In a way this is strange, because many people would be deterred from owning land that did not obtain adequate television reception; this particular part of the Hunter decision has been rejected by some other common-law jurisdictions (e.g., in the Canadian Nor-Video case).

A further problem with the principle that loss of amenity is recoverable is that whether there is a loss of amenity will depend on what the claimant does on his land. If the defendant has the poor fortune to live next to someone who carries on a particular line of business, and the defendant's actions are deemed to reduce the amenity of the neighbouring land with respect to that business, then he will be liable. Admittedly the courts have been reluctant to impose liability where the claimant's activities are unsually sensitive to interference (e.g., Robinson v Kilvert 1889).

References

F.H. Newark in his article The Boundaries of Nuisance

Public Authorities

There is a clear reluctance to hold public authorities such as the police, emergency services, social services in the UK liable. No special principles govern the liability of public authorities. The ordinary requirements of foreseeability, proximity and fairness, justice and reasonableness must be satisfied must still be satisfied. - Justin Santiago

The argument is that liability should not be imposed on public bodies for three reasons :-

1. They are set up for the purpose of protecting the public or a section of it and it is clearly foreseeable that harm may be suffered if the supervisory or regulatory work is carelessly done. It would be putting too much liability on public bodies preventing them from administering their duties.

2. Any award for damages will come out of public funds.

3. There will be intrusion by the courts into the workings of bodies which form part of the democratic process.

There have been several case law developments which point to making public authorities more liable for negligence as well as HRA 1998 which has forced courts to not make it so easy for defendants to deny there was a duty of care and hence escape liability.

However what would would tilt the balance in favour of the public bodies being held liable for negligence would be if the there was a single claimant involving personal injury. Kent v Griffiths – single claimant, personal injury held liable contrast with Capital and Counties plc v Hampshire County Council Capital and Counties – multiple claimants, property damage not held liable. Also Barret v Ministry of Defence – claimant can be identified as an individual who is in real and imminent dangerand not merely in the same position as the public at large held liable.

Some cases involving failure to act will also shed light on the extent to which the courts will hold public authorities liable. In Stovin v Wise: public authorities cannot generally be held liable for a failure to act, so long as they have not actually created the danger themselves. Lord Hoffmann left open the possibility that a public body could be held liable for a failure to exercise a statutory discretion where (1) the failure to do so is Wednesbury unreasonable or irrational and (2) there are exceptional grounds for holding that the policy of the statute requires compensation.

Gorringe v Calderdale further suggested that in the absence of a right of action for breach of statutory duty and in the absence of any underlying common-law duty owed by that public body to an individual, the omission on the part of the public body can found a private law right of action by that individual.

The effect of the HRA 1998 has been twofold :-

1. Vertical effect – allows any person who is the victim of a public authority’s breach to bring proceedings against the authority - the message to the English courts is that they have been wrong to afford public authorities an immunity from negligence liability for instance allowing pre-emptive tactics such as preliminary striking out applications on the bases there was no duty of care, Hill v Chief Constable of West Yorkshire and X (Minors) v Bedfordshire County Council, Osman v Ferguson on appeal to Osman v UK based on Article 2 – everyone’s right to life shall be protected by law, Article 8 – right to family life, Z and others v UK (petition by X (minors) v Bedfordshire County Council).

2. Horizontal effect – one may rely on the convention even in litigation against another private person and the courts must ensure that all their decisions are human-rights compatible since the courts are public authorities under the HRA 1998. The central provision of the Act is to be found in S6(1) which states : “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

Product Liability

The trend towards strict product liability is becoming increasingly evident. Discuss. - Justin Santiago

The duty of manufacturers has been extended and refined since Donoghue and Stevenson and has taken on elements of strict liability under the Consumer Protection Act 1987 because of the difficulties in proving negligence namely causation. Although fault need not be proved it is important to remember that the defendant’s actions caused their loss, that the loss is recoverable and that there are no defences which obstruct their claim or limit their damages. It should also be noted that strict liability does not mean automatic liability but simply that the claimant does not have to prove that the defendant has been at fault.

As a general rule anyone who suffers personal injury or property damage that is caused by a defective product may recover to the full extent of his loss. S5(1) allows for recovery for personal injury. Property damage is claimable under S5(3) and 5(4).

Under provisions of this law, a producer would be found liable if a consumer is injured by a defect in the product even though it was not negligent and exercised all proper care necessary protect the producer or even if the risk could not have been recognised at the time of supply : Abouzaid v. Mothercare (UK) Ltd.
The case depended on whether the product had a defect as defined in Section 3 of the act. Section 3 provides that a product has a defect if the safety of the product is not such as persons generally are entitled to expect at the time the product was purchased.

The Court of Appeal considered that a defect, within the Consumer Protection Act, depended on a consumer's "expectations" of safety. The court considered whether public expectations had changed between 1990 and 1999. It concluded that there had been no change. Therefore the product was defective in 1990. The court accepted that the public was entitled to expect a certain level of safety in a product even where a producer could not reasonably have anticipated a particular risk and guarded against it. In A v National Blood Authority – as long as the risk of infection was known it was irrelevant that all reasonable steps to detect such risks.

Consumer expectations of safety are the key to defining a defect under the Consumer Protection Act. However the fact these expectations may change over time is an unresolved problem under the act. Also, it is not the consumers' actual expectations of safety that is important under the act but what consumers are entitled to expect. Grey areas will still cause problems until more cases have been through the courts. For example, in Richardson v. LRC Products it was held by the High Court last year that, in the case of a condom which ruptured in use, the product was not defective because the public was not entitled to expect that any method of contraception intended to defeat nature would be 100% effective.

The case also demonstrated the difficulties with using the development risks defence. The argument that an undiscoverable risk at the time the product was in circulation could be used was rejected by the courts citing that such a defence would undermine the effect of the strict liability provisions in the act. The Court of Appeal considered that whether a producer might be expected to have discovered the defect had nothing to do with the state of scientific or technical knowledge at the time. It would have been a simple matter to discover the defect by performing a practical test. No advance in scientific or technical knowledge between 1990 and 1999would have been required to perform such a test. The only reason that such a test had not been carried out was that the manufacturers had presumably not thought of doing one. This risk was the same in 1990 as it was in 1999 and therefore, if it constituted a defect in 1999, it constituted a defect in 1990.

There have been some criticisms levelled at the CPA because it is no easier to prove that a product is defective than to prove that it was negligently manufactured.

There are also criticims that express warnings on the packaging would be absolved from liability following Worsely v Tambrands Ltd where a claim would fail if :-

1. There was a clear and legible warning on the outside of the box
directing the user to the leaflet
2. The warnign was legible, literate and unambiguous and contained all the material necessary to convey both the warning signs and the action required if any of them were present

Omissions

The concept of voluntary assumption of responsibility has proved a useful tool in solving many of the problems associated with the duty of care - Justin Santiago

The traditional approach of the common law has been to adopt the general rule that for a duty of care to exist there must be a voluntary assumption of responsibility and there is no liability for omissions – no duty to care to prevent harm. This approach is premised upon a highly individualistic political theory which holds that people should be concerned purely and simply with their own self advancement and not subject to legal liability for failing to intervene for the benefit of others.

In broad terms, omission cases are still governed by the principles set down in
Stovin v Wise: a party cannot generally be held liable for a failure to act, so long as they have not actually created the danger themselves.

However cases like Gorringe v Calderdale MBC have placed some curbs on bars to liability for omission cases. Lord Hoffmann left open the possibility that a public body could be held liable for a failure to exercise a statutory discretion where (1) the failure to do so is Wednesbury unreasonable or irrational and (2) there are exceptional grounds for holding that the policy of the statute requires compensation.

Additionally the courts are more willing to hold people liable in tort for their negligent omissions in the following circumstances :-

1. Where they have agreed, expressly or impliedly to take on a responsibility for the benefit of others : Stansbie v Troman, The Ogopogo – duty to take reasonable care to effect a rescue

2. Where the omission is part of an ongoing physical activity

3. Protection of the vulnerable for example very young children : Barnes v Hampshire County Council

4. A level of control that creates a liability for occasioning harm – control imports responsibility: Home Office v Dorset Yacht

5. Creation of a source of danger : Haynes v Harwood, does nothing to contain a danger : Goldman v Hargraves

6. Owners and occupiers of land creates or allows to be created a source of danger : Smith v Littlewoods

Psychiatric Injury

In Alcock v Chief Constable of South Yorkshire (1992), the House of Lords established clear and justifiable rules limiting claims for psychiatric damage in the law of negligence. Subsequent cases on this issue have served only to confuse matters. - Justin Santiago

Difficulties in establishing claimant’s mental condition which amounts to a recognizable psychiatric illness has led to various difficulties. The illness would have to amount to be a recognised condition and is a matter for the court after hearing expert evidence from psychiatrists whether the severe psychological illness would amount to psychiatric injury.

Judges are slow to recognize psychiatric injury or place very high barriers for claimants :-

a. It is not possible to claim for mere psychiatric injury unless it amounts to more than the usual shock reaction to a frightening incident.

b. If medical science does not recognise the mental state as a disorder it is not possible to claim for it unless it is accompanied by some physical injury

c. If accompanied by physical injury, any sort of emotional reaction to an event is compensatable

Rothwell v Chemical & Insulating Co Ltd and Another - all claimants failed because they did not have claims for physical injury. Furthermore there was only symptomless manifestations which were invisible and only a possibility.

Further confusion over psychiatric damage exists in relation to two different areas -secondary victims and foreseeability of harm.

A secondary victim is a person who who suffers mental trauma as a result of witnessing someone else's injury or imperilment as opposed to a primary victim who was within the zone of physical who might foresseaably have suffered physical harm but only actually suffers mental injury.

Many claimants who suffer psychiatric injury will be “secondary victims” - suffers mental trauma as a result of someone else’s physical injury or as a result of fear that such injury might occur and where no personal injury - psychiatric or otherwise - could reasonably have been foreseeable. These are victims whose personal injuries - psychiatric or otherwise would fail the duty of care test. The case of Alcock v CC South Yorkshire Police however allowed for such claims with control mechanisms laid out :-

- “proximate in time and space” to the traumatic event - nearness
- perceived the traumatic events with "his own unaided senses” - hearness
- included under the class of persons whose claims should be recognised - “close ties of love and affection” between the claimant and a primary victim - dearness

These three control mechanisms were extensively debated in later cases which sought to limit the claims by potential victims. However the line of cases has shown there to be inconsistencies with regard to how these criteria are measured :-

In McLoughlin v O’Brian it was held that only where the relationship was husband and wife or parent and child could any claim be sustained. Cases involving less close relationships required very careful scrutiny. The second was the proximity of the claimant to the accident. Lord Wilberforce considered that a strict test of perception of the accident by sight or hearing should be applied subject to an exception where the claimant foreseeably came on “the immediate aftermath” of the accident. That phrase was evidently sufficiently elastic to accommodate the visit of the claimant to the hospital over two hours after the accident. The third criterion was the means by which the claimant became aware of the accident. Sight or sound of the accident or aftermath was necessary. Communication by a third party would not suffice.

However in the case of W v Essex CC although the parents had the necessary ties of love for their children they were neither near enough in time or space to the acts of abuse and they did not have direct visual or oral perception of the incident or its aftermath. The parents only knew about the incidents after they had happened. Yet they were able to claim for mental injury due to the relaxation on the temporal and spatial requirements.

The reasonable foreseeability test in claims for psychiatric injury too has become confusing. In Page v Smith it was decided if physical injury had been foreseeable then a claim might lie for psychiatric injury even if it was not itself foreseeable. The claimant was involved in a car accident caused by the defendant, but suffered no physical injury. However, he contended that his underlying `chronic fatigue syndrome' was made worse, and permanent, by the accident. The claim failed in the Court Of Appeal, on the basis that an injury of the claimant's type could not have reasonably been forseen by the defendant, and thus the defendant owed the claimant no duty of care. However, the House Of Lords held that if it is forseeable that some injury may occur, it is irrelevant whether it turn out to be physical injury or psychiatric injury.

Rescuers are the ultimate suffers of the confusion. In White v CC South Yorkshire Police it was necessary to show that the rescuer had actually been exposed to physical danger in the rescue attempt. The effect of White v CC South Yorkshire Police was that pofessional rescuers who suffered from mental illness alone as a result of the rescue operations neither qualified as primary or secondary victims. They were not considered primary victims as they themselves were not at risk of physical injury or did not reasonably believe themselves to be at risk.They also could not qualify as secondary victime because they did not have the necessary ties of love and affection.

In McFarlane v EE Caledonia efforts by rescuers did not include peripheral work and required that rescuers had reasonable fortitude i.e. there were to be judged by a higher standard in their capacity to withstand impacts to the mind.

Suggestions for reform were posed in Law Commission Report 249 1998)

1. A definition of what is a recognizable psychiatric illness should not be laid down in legislation
2. Where the plaintiff is outside the area of reasonably foreseeable physical injury, it was reasonably foreseeable that the plaintiff might suffer psychiatric illness
3. Reasonable foreseeability of psychiatric illness is not required where physical injury to the plaintiff was reasonably foreseeable
4. In assessing whether the psychiatric illness was a reasonably foreseeable consequence of the defendant’s conduct, the court should consider whether the harm or imperilment to the immediate victim was judged prior to the accident, reasonably foreseeable
5. It may be helpful to continue to assume that the plaintiff is a person of reasonable fortitude, that assumption should be regarded as merely an aspect of the standard approach to reasonable foreseeability that is applied in cases of physical injury
6. No longer a condition of liability that the psychiatric illness was induced by shock
7. Courts should have scope to decide not to impose a duty of care where satisfied that its imposition would not be fair, just and reasonable because the defendant chose to cause his or her death, injury or imperilment
8. Should abandon classification into primary or secondary victim

References

Liability for Psychiatric Injury, Law Commission Report 249 (1998)

Psychiatric Injury – common sense or legal fiction? by Peter Garsden Partner in Abney Garsden McDonald and Vice President of ACAL (Association of Child Abuse Lawyers)

Remoteness

Why did Viscount Simmonds say that the test of remoteness should be foresight and not directness? Are his reasons justified? - Justin Santiago

The judgement in the Privy Council case Overseas Tankship v Morts Dock & Engineering Co Ltd (The Wagon Mound) added some certainty in the law on remoteness in negligence case. The previous law on remoteness in Re Polemis allowed for recovery of all the damage as a result of the direct consequences of the negligence even though they could not reasonably have been anticipated. Directness was difficult to define especially when it involved multiple incidents. Suppose a car hits a lamp post which subsequently falls to the ground, shards of glass then fly in all directions landing into someone's sandwich causing a stomach upset. Under Re Polemis the damage caused would have been classified as a direct consequence.

In The Wagon Mound it was decided that to recover damages in respect of injury caused by another’s negligence it must be of the type which was a reasonably foreseeable consequence of that negligence. It was not enough that some damage was foreseeable, it must be established that damage of the type that actually occurred was foreseeable. Therefore the actual loss (fire damage to the wharf) was of a different type from that which was foreseeable (damage by air fouling). The justification for this decision is that the defendant is not penalised excessively and that the rule in Re Polemis might give rise to palpable injustice.

While his reasons may be justified, The Wagon Mound has showed up some limitations.

There can even be ambiguity with regard to the definition of the type of harm caused. The courts have adopted a variety of different approached from the narrow and restrictive : Tremain v Pike to the generous and expansive : Page v Smith - no justification for regarding physical and psychiatric injury as different kinds of damage.

In a line of cases Jolley v Sutton London Borough Council, Hughes v Lord Advocate, Doughty v Turner Manufacturing it was held that not only must the loss be of a reasonably foreseeable kind, the accident must also be a reasonably foreseeable consequence of the negligence which further restricted The Wagon Mound. In Doughty v Turner Manufacturing Co Ltd injury was by (unforeseeable) explosion rather than by (foreseeable) splashing.

Addtitionally the egg-shell skull rule has survived the introduction of the new rule for remoteness and plaintiffs can recover in respect of both foreseeable and unforeseeable consequences of the negligence - the tortfeasor takes his victim as he finds him : Smith v Leech Brain & Co. Ltd.

Ultimately as Lord Denning said in Lamb v Camden LBC (1981) QB 625, Denning said: "The truth is that all these three – duty, remoteness and causation – are all devices by which the courts limit the range of liability for negligence . . . All these devices are useful in their way. But ultimately it is a question of policy for the judges to decide." In other words, the court's main task is to do justice as between these parties in their present situation.This is the justification for the narrow interpretation for remoteness.

Causation

Once it is appreciated that the rules laying down causal requirements are not autonomous expressions of some form of logic or judicial instinct, but creatures of the law, it is possible to explain their content on the grounds of fairness and justice, in exactly the same way as the other conditions of liability. (Fairchild v Glenhaven Funeral Services Ltd, per Lord Hoffman). Discuss. - Justin Santiago

According to Lord Hoffman, the Fairchild exception was created because the alternative of leaving the claimant with no remedy was thought to be unfair. Fairchild represented a significant relaxation in the requirements for causation in claims brought by mesothelomia victims where there was more than one potential defendant. However, in providing that an employer could be liable for all of the damage in circumstances where it was by no means clear that he had caused it, the Lords arguably went too far.

The facts of the case highlight the inherent difficulty in determining which employer exposed the claimant to the asbestos dust that caused the progression of the disease and, furthermore, which employer was to be liable for causing the injury suffered.

The House of Lords addressed the appeal by considering whether, in the special circumstances of such a case, principle, authority or policy required or justified a modified approach to prove causation.

The Fairchild decision enabled a worker, who had contracted mesothelioma after being wrongfully exposed to asbestos dust at different times by more than one employer, to sue any of his former employers although he could not prove on the balance of probabilities which exposure had caused the disease. The House of Lords held that, following McGhee v. National Coal Boardthe appropriate test in this situation, was whether the defendant had materially increased the risk of harm toward the plaintiff. The employers were joint and severally liable against the plaintiff (though amongst themselves they could sue one another for different contributions).

Fairchild allowed the claimant to succeed against more than one employer by providing that any one might have increased the risk if diseae without actually proving exactly when or where the exposure took place. The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm. As a result of Fairchild, insurers were potentially liable for large claims in circumstances where their insured’s were not actually responsible for the damage. Furthermore, given that mesothelioma is a condition that is usually latent for around 30 or 40 years, the chance of recovering a contribution from other defendants/their insurers was materially reduced, either because of the inherent difficulties in tracking them down or because of the increased likelihood that they/their insurers had become insolvent.

This a radical departure from the usual test of causation and reversing the normal burden of proof once a prima facie case of increased risk was made out – it was then for the employer to show that he was not at fault overturning Wilsher v Essex AHA where the reversal of the burden of proof was rejected.

Barker v. Corus [2006] UKHL 20 Barker went some way towards redressing the balance in Fairchaild. In Barker v Corus the claimant had been exposed to asbestos by two separate employers and for a period when he was self-employed.
This time the question was whether, if one of the employers that was responsible for the materially increasing the risk of harm had gone insolvent, should the solvent employers pick up the proportion for which that insolvent employer was responsible? The House of Lords accepted the argument that the solvent employer should not and would only have to pay one third of the full compensation. In other words, he only had "proportionate liability". In this case where liability was exceptionally imposed because you the employer may have caused harm fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm.

Shortly after the Compensation Act 2006 was introduced specifically to reverse the ruling. However the Act only applies to asbestos related disease. The government’s proposed legislation, while undoubtedly welcomed by the victims of this terrible disease, has the potential to wreak havoc in the insurance industry and destroys the balance of justice as a result of Barker.

The legislation effectively reinstates the position in Fairchild whereby an employer/his insurer(s) can be sued for the full amount. Insurers will now be forced to pursue subrogated proceedings against other negligent employers/their insurers where they can be traced, leading to potentially protracted litigation. Insurers might also face recovery issues regarding their outwards reinsurance depending on the terms of their reinsurance cover.

So who is the law fair to now? The claimant or the 'possible' defendant?

Standard of care

The general principle in English law is that standard of care is entirely objective – that of a reasonable person : Blyth v Birmingham Waterworks. For example, in Bolton v Stone 1951, the claimant was struck by a cricket ball from the defendant's pitch. Although the risk was forseeable, the test was held to be what a reasonable cricket club would have done. In this case, the risk of injury was judged to be so slight, that no reasonable club could have been expected to protect against it.

The standard of care is higher where the possibility of danger is higher : Haley v London Electricity Board or where the gravity of potential injury is greater –Paris v Stepney Borough Council.

In general, the motive of the defendant is irrelevant to the determination whether he breached the duty of care, as are his own personal qualities. The determination is made by comparing the defendant's behaviour with what would reasonably be expected to meet the standard of care required by law.

The objectivity of the standard of care means, in practice, that if a person holds himself out as possessing a certain skill, or carries out activities that represent him as having that skill, then he must display a level of competence associated with that skill. Cases that illustrate this point include Wells v Cooper 1958 (DIY home repairs must meet the standard of a reasonably competent tradesman) and Chaudhry v Prabhakar 1989 (informal advice on car buying must be as good as a reasonable competent car trader).

To many people this principle seems harsh. The implaccability of the courts in this respect is well demonstrated by the case of Nettleship v Weston 1971. In that case, the Court Of Appeal held that a learner driver who caused a road accident should be judged against the same standards as a qualified driver. The courts have not taken this decision to its logical conclusion and, for example, held that a child be expected to display the same degree of foresight as an adult. It has been argued that those who consider this priniple harsh are confusing `blameworthiness' with `culpability'. No-one is suggesting that Mrs Weston was personally blameworthy for the accident but, nevertheless, she did cause it. The law of negligence, on the whole, is concerned with who should foot the bill and, in a two-party case like Nettleship, it is clear where that responsibility falls. Some policy considerations

1. Who can bear the loss in the particular case
2. Was the defendant insured
3. What implications will the particular case have for future cases
4. What standard of safety can potential claimants expect
5. What are the implications of a particular decision for a society as a whole
6. Utiliy of conduct – Watt v Hertfordshire CC – risk of the equipment causing injury in transit was not so great as to prevent the efforts to save the woman’s life
7. Expense of taking precautions - In Latimer V AEC 1953, the defendant was injured when he slipped on a floor contiminated by oil in his employer's factory. The claimant suggested that the risk was forseeable, and that the employer should have closed the factory until the risk was abated. However, it was held that the standard of care was that of the reasonable employer; in the circumstances the risk was so small that no reasonable employer could have been expected to close the factory.

Particular problems arise in cases where the defendant is an expert in some particular field. In medical cases, for example, a doctor's judgement will be measured against the standards of the profession as a whole. It does not matter that there is a body of opinion, even perhaps a substantial body, that would not have come to the same conclusion (Bolam v Friern Hospital Management Committee 1957). However, the existence of expert testimony does not prevent the determination of whether the defendant was in breach or not being a legal matter (Bolitho v City and Hackney HA1998); It is in principle open to the court to hold the defendant liable, in the face of expert evidence to suggest that he did what would have been expected of him by the profession.

The traditional English approach shows a “doctor knows best” attitude. The professional bodies now encourage greater openness and encourage doctors to explain the advantages and disadvantages of particular treatment unless there is good reason for not doing so.

Pure Economic Loss

Holding someone liable for pure economic loss may lead to damages completely beyond the scale of the fault. - Justin Santiago

This question essentially requires a discussion of the floodgates argument - whether it is fair to impose liability for damage caused to an indeterminate class of claimants in an indeterminate amount thereby imposing an undue burden upon the defendant in cases of pure economic loss. Courts have been increasinly unclear on a position and have put foward various arguments according to the situation at hand.

Pure economic loss is the loss arising from negligence which can be seen on a balance sheet but not physically. Economic loss is then divided into "consequential economic loss" - that which arises directly from some physical damage or injury (e.g. loss of earnings from having your arm cut off) and "pure economic loss", which is everything other).

The fear behind allowing claims for "pure economic loss" is that potentially unlimited claims could flood in. The risks may be unknowable, and parties would find it impossible to insure. The courts have therefor imposed several limitations on claims for damages :-

For defective products or buildings – the courts insist that the manufacturer of a defective product will be liable only in respect of damage that the product causes to another’s person or property. If a product is simply no good or merely physically deteriorates even if it blows up and destroys itself, any financial loss that results is purely economic.

There are three arguments put foward to expand on liability :-

Firstly - preventive damage was argued in the case of Anns v Merton LBC where the plaintiff was allowed to recover the cost of remedying the damage to the building so as to avoid a present or imminent danger to the health or safety of the persons occupying it. Preventive damage is claimable if a dangerous defect in a building should threaten to injure those in neighbouring houses or in the street. The owner might be able to recover the cost of demolition or repair work effected to remove the danger to third parties : Morse v Barrat (Leeds) Ltd . However since then the courts have gradually retreated to a more conservative position.
Murphy v Brentwood DC, flatly states that Anns was wrongly decided. According to Murphy, cracks and subsidence was merely the manifestation of a defect in the building not as damage accordingly the money lost on the subsequent sale of the house was purely economic and fell within the scope of the general no recovery rule.

Secondly - the complex structures argument – the owner would be able to sue in respect of damage to one component part caused by a defect in another.

Thirdly - close relationship argument - in the case of Junior Books v Veitchi where there was a close relationship (equivalent to a contract) between the owners and the subcontractors who were appointed by them enabled the owners to make a claim against them. This is an extension of the principle found in Hedley Byrne v Heller which stated that economic loss resulting from a negligent misstatement was recoverable provided there was a special relationship between the maker of the statement and the recipient and there was no need for an element of fraud or recklessness in the statement, carelessness was sufficient.

The courts sought to develop a narrow exception to the no liability rule by building incrementally upon an existing principle by which liability for carelessness might arise. The principle was one of equity rather than tort law : the principle that in a fiduciary relationship the fiduciary must take reasonable care of the interests of the beneficiary : Nocton v Lord Ashburton.

The narrowing of requirements was explained in Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830 - Lord Steyn commented that there was no better rationalisation of the relevant head of tort liability than assumption of responsibility. In determining whether one party has assumed a responsibility to another the court will apply an objective test. It must be reasonable for the party to rely upon the assumption of responsibility by the other. The claimant must in fact have relied upon the assumption of responsibility by the other - for if not there will be no causative effect of the negligence upon the loss sustained.

Cases such as Law Society v KPMG Peat Marwick and Smith v Eric Bush where specific representations made to a particular audience and White v Jones 1995 where no representations were made tends to suggest that the Hedley Byrne principle is wide enough to encompass situations where there was indirect reliance and indirect loss without reliance. It would also boil down to the purpose of the statement – general v specific, statutory requirement v non statutory requirement, profit making exercise or not, whether the information was paid for or not, number of potential claimants, social significance of each of the two situations.

We have Lord Denning’s view in Spartan Steel it was best to leave the losses to lie where they fell rather than concentrating them on the defendant : if the losses were small, they might without hardship be absorbed by the victims themselves; if they were serious, then the victims ought to have taken out insurance by way of protection against that risk. In D&F Estates Ltd v Church Commissioners for England and Wales it was decided where the defect simply renders the product less valuable, the remedy lies in contract,

In other words the courts are unable to decide convincingly on who should pay for damages arising from pure economic loss.

Duty of Care

How do the tests of a duty of care in Donoghue v Stevenson, Anns v Merton London Borough Council, Murphy v Brentwood and Caparo Industries v Dickman differ? – Justin Santiago

The question raises the issue of the development of the duty of care over the years and how it has come to mean different things according to different situations. These cases represent landmark decisions in which the relationship between the parties in determining whether there was a duty of care have become increasingly restricted. The reason for these restrictions is in support of the floodgates argument – indeterminate liability in an indeterminate amount for an indeterminate time to an indeterminate class of people. However these restrictions must be balanced against the overkill argument which points to those threatened with liability to respond by taking unnecessary safety precautions or be giving up a socially beneficial activity altogether.

The duty of care establishes the necessary link between the defendant and the claimant under the tort of negligence. In the ordinary law of negligence, it is essential if a claim is to succeed that the defendant be in breach of a duty of care, that is, he has done something that a reasonable person would not have done, or neglected to do something that a reasonable person would not have neglected. The law of tort is not concerned with punishing people for their wrongdoings, it is concerned with making people liable for the consequences of their own actions.

Donoghue v Stevenson set out the neighbourhood principle in which a duty was owed to persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected. This definition was seen as too broad and could encompass relationships as indirect as that between manufacturers and ultimate consumers of the manufactured product as in this case.

In Anns v Merton London Borough Council the test of a duty of care was a two stage test – the first stage was a duty of care would arise if there was a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the defendant carelessness on his part may be likely to cause damage to the claimant. The second stage was that the scope of the duty of care or the class of persons to whom it was owed would be reduced or limited if there were any considerations which ought to negative or reduce or limit the scope of the duty of care.

Murphy v Brentwood argued that the two stage test was seen as too liberal and generally favoured the claimant, because it suggests that once neighbourhood is established, there is a prima facie duty of care, which can only be rebutted on policy grounds as well as opening up the local authorities to liability.

The expositions of the current test of foresight, proximity and fairness is found in Caparo Industries v Dickman. This test is seen as encompassing both factual duty and legal duty.

Factual duty

- it was reasonably foreeseeeable that a person in the claimant’s position would beinjured, foresight of a reasonable man – Bourhill v Young – Young couldnot have expected to foresee that anyone in the position of Mrs Bourhill would be affected.Also it was not enough that the negligence caused exposed others to risk, the victim must have been a foreseeable victim : Palsgraf v Long Island Rail Road – nothing to do with the probability of loss

Legal Duty – two components – proximity and fairness, proximity is policy crystallized into legal principle, fairness is raw policy.

- sufficient proximity between the parties, foreseeability not equated with proximity – Hill v Chief Constable of West Yorkshire – proximity is dependent on the specific situation i.e. for witnesses to an accident – close ties of love and affection with the primary victim, she must have been close in time and space, for claimants of pure economic loss – voluntary assumption of responsibilty, reliance on skill of defendants, very close relationship scenario of the Junior Books v Veitchitype

- it is fair, just and reasonable to impose liability, policy considerations, also based on reference to what people generally would regards as fair – MacFarlane v Tayside Health Board, Parkinson St James & Seacroft University Hosptial NHS Trust, Rees v Darlington Memorial Hospital NHS Trust.

Negligence

Paralysed cabby sues drivers in six-car crash
Straits Times 5 February 2009
By Selina Lum


A FORMER taxi driver whose vehicle was sandwiched in a six-car collision along the Central Expressway (CTE) more than two years ago has sued the drivers of the three cars behind him for compensation.

Mr Ang Kim Seng, now 51, injured his neck in the crash, which left him a tetraplegic - his four limbs are paralysed.

His Toyota Crown taxi was the third in the six-car collision along the CTE near the Moulmein exit on Nov 17, 2006.

A trial to decide whether the three drivers are liable to pay him damages started in the High Court yesterday.

It is understood that Mr Ang is seeking compensation of about $800,000 to $900,000, although the present hearing does not deal with the amount.

In his lawsuit, he alleged negligence, claiming that the three drivers were responsible for his injuries.

But the defendants, each represented by a different lawyer, denied they were negligent. They alleged that Mr Ang was hurt when he crashed into the car in front of him even before he was rear-ended.

Mr Ang attended court yesterday strapped to a stretcher trolley, accompanied by two family members and a maid.

Testifying through a Mandarin interpreter, he said he had just negotiated a bend when the driver of a Nissan Presea in front of him suddenly slammed on the brakes. Mr Ang, who said he was travelling about four car lengths behind the Presea, told the court he also braked.

He said his vehicle was immediately rear-ended by Mr Goh Lam Kwee's Toyota Camry, causing his taxi to surge forward and hit the Presea. Moments later, his taxi was rear-ended again twice.

Mr Ang's lawyer, Mr Jimmy Yap, said in his opening statement that the Camry, which was one to two car lengths away, was travelling too close to the taxi.

He said the last two cars in the chain - Ms Tan Sok Eng's Mitsubishi Colt and Mr Ong Kian Huat's Nissan Sunny - were speeding and failed to stop in time, causing secondary collisions to the cab.

The defence of Mr Goh and Ms Tan is that their cars were propelled forward after being rear-ended by the respective cars behind them.

Mr Ong, whose Sunny is the last in the chain, admitted hitting the Colt in front of him, but denied that this caused the Colt to collide into all the cars in front.

Cross-examining Mr Ang, lawyer Willy Tay, who acts for Mr Goh, pointed to photos that showed that the front of the taxi was much more severely damaged compared to his client's Camry.

Mr Ang conceded that the Camry had not hit his taxi with the same amount of force as when his taxi hit the vehicle in front of him.


This article was first published in The Straits Times on Feb 3, 2009.