Macmillan Professional Masters. Torts

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2 Macmillan Professional Masters Torts

3 Macmillan Professional Masters Law titles Law Series Editor Marise Cremona Basic English Law W.T. Major Company Law Janet Dine Constitutional and Administrative Law John Alder Contract Law Ewan McKendrick Conveyancing Priscilla Sarton Criminal Law Marise Cremona Employment Law Debbie Lockton European Community Law Josephine Shaw Family Law Kate Standley Land Law Kate Green Landlord and Tenant Law Margaret Wilkie and Godfrey Cole Law of Trusts Patrick McLoughlin and Catherine Rendell Legal Method Ian McLeod Torts Alastair Mullis and Ken Oliphant Business titles Communication Nicki Stanton Company Accounts Roger Oldcorn Cost and Management Accounting Roger Hussey Data Processing John Bingham Employee Relations Chris Brewster Financial Management Geoffrey Knott Management Roger Oldcorn Marketing Robert G. I. Maxwell Marketing for the Non-Profit Sector Tim Hannagan Marketing Research John Frain Office Administration E. C. Eyre Operations Management Howard Barnett Personnel Management Margaret Attwood Study Skills Kate Williams Supervision Mike Savedra and John Hawthorn Systems Analysis John Bingham and Garth Davies

4 Torts Alastair Mullis Lecturer in Law at King's College University of London and Ken Oliphant Lecturer in Law at King's College University of London Law series editor: Marise Cremona Senior Fellow, Centre for Commercial Law Studies Queen Mary and Westfield College, University of London M!50th YEAR MACMILLAN

5 Alastair Mullis and Ken Oliphant 1993 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London WIP 9HE. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. First published 1993 by THE MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 2XS and London Companies and representatives throughout the world ISBN ISBN (ebook) DOI / A catalogue record for this book is available from the British Library. Copy-edited and typeset by Povey-Edmondson Okehampton and Rochdale, England I

6 v Contents Preface Table of Cases Table of Statutes xii XIII XXll 1 Introduction 1.1 What is a tort? 1.2 The classification of torts 1.3 The organisation of this book Part I THE TORT OF NEGLIGENCE 2 Negligence: introduction 2.1 Origins The elements of the tort of negligence The abstract nature of the tort of negligence The role of policy in the tort of negligence Selected policy considerations in the tort of negligence Exercise The duty of care concept 3.1 The nature of the duty of care concept 3.2 Testing the existence of a duty of care 3.3 The retreat from Anns 3.4 Where now? Nervous shock 4.1 What is nervous shock? 4.2 The approach to be taken 4.3 The class of plaintiff able to recover 4.4 The type of event that may give rise to liability

7 vi Contents 4.5 The requisite means of witnessing the event The class of defendant potentially liable Policy considerations Economic loss and negligent misstatement What is 'pure economic loss'? Defective product economic loss Attempts to circumvent the rule Preventative damages Negligent misrepresentation Hedley Byrne: the range of possible defendants Hedley Byrne: the circumstances in which each defendant may be held liable Where are we now? Policy considerations Omissions Introduction Duty to protect others Duties to control others Control of property Innocently causing another's plight Problem plaintiffs Foreseeable and unforeseeable plaintiffs Rescuers The unborn child Problem defendants Public bodies The police 64

8 Contents vii 8.3 The legal profession Breach of the duty of care 9.1 Introduction 9.2 The objective standard of care 9.3 Application of the objective standard 9.4 Common practice 9.5 Proof of negligence Causation 10.1 Causal relevance and the 'but for' test 10.2 Multiple causation 10.3 Proof of causal relevance 10.4 Selection from amongst causally relevant factors Remoteness of damage 11.1 The Wagon Mound test of remoteness 11.2 The concept of foreseeability examined 11.3 The 'type of loss' requirement 11.4 The 'thin skull' rule 11.5 Impecuniosity Defences 12.1 Voluntary assumption of risk: introduction 12.2 Voluntary assumption of risk by agreement 12.3 Voluntary assumption of risk by conduct 12.4 Statutory restrictions on the defence of voluntary assumption of responsibility 12.5 Contributory negligence 12.6 Illegality

9 viii Contents Part II INTERFERENCE WITH THE PERSON AND PERSONAL PROPERTY 13 Interference with the person and personal property Overview Fault-based and strict liability Ill 13.3 Compensation for personal injuries The mixed system of accident compensation The Pearson Commission proposals Comprehensive compensation schemes Occupiers' liability Introduction Scope of the Occupiers' Liability Act Who is an occupier? Who is a visitor? The common duty of care Defences Liability to trespassers The Occupiers' Liability Act Product liability ,1 Product liability at common law Reform: the Consumer Protection Act Meaning of 'product' Meaning of 'defective' Who can be liable under the Act? Who can recover under the Act? Defences Breach of statutory duty Introduction Inferring the existence of the tort The modern approach 145

10 Contents IX 16.4 Exceptions to the presumption against actionability where the statute provides an alternative remedy Elements of the tort Reform 153 ~mm~ I~ Trespass to the person I Introduction Trespass and negligence Assault and battery False imprisonment Intentional infliction of physical harm other than trespass to the person: Wilkinson v. Downton Damages Defences to trespass to the person Part III INTERFERENCE WITH LAND 18 Interference with land: introduction 18.1 Property, tort and crime 18.2 Trespass, nuisance and negligence Private nuisance 19.1 The nature of private nuisance 19.2 The test of reasonable user 19.3 Who can sue? 19.4 Who can be liable? Defences Nuisances on or adjacent to the highway The relationship between nuisance and negligence The rule in Rylands v. Fletcher 20.1 Introduction 20.2 Non-natural use of land 20.3 Escape

11 x Contents 20.4 Parties 20.5 Defences 20.6 Fire Part IV INTERFERENCE WITH REPUTATION 21 Defamation 203 2l.l Interference with personality generally 21.2 The law of defamation 21.3 The statement must be defamatory The statement must be published to a third person Reference to the plaintiff Damage: the distinction between libel and slander Defences Justification 21.9 Fair comment 2l.IO Absolute privilege Qualified privilege Unintentional defamation 224 2l.l3 Damages Part V GENERAL PRINCIPLES OF TORTIOUS LIABILITY 22 Vicarious liability and joint torts Introduction Justifications for vicarious liability Master and servant relationship The course of employment Liability for independent contractors Joint and several liability: the distinction between joint, several concurrent and separate tortfeasors Contribution between tortfeasors

12 Contents XI 23 Remedies The indemnity principle Contemptuous, nominal, aggravated and exemplary damages Damages recoverable once only Special and general damages Damages for personal injuries The assessment of an award of damages Non-pecuniary loss Pecuniary loss Interest Collateral benefits Damages for death The effect of death on existing causes of action: the Law Reform (Miscellaneous Provisions) Act Claims by the deceased's dependants: the Fatal Accidents Act Assessment of damages for loss of dependency Apportionment between dependants Deductions Property damage Assessment of damages in property damage cases Injunctions Bibliography 273 Index 277

13 Xll Preface Torts make headline news. From mass disasters like Hillsborough and King's Cross to scandal-mongering in the popular press, torts are seldom far from the front pages. Yet, despite its human interest, the law of torts is notoriously difficult for students We aim in this book to provide an accessible introduction to the law of torts. We cover the basic principles of the law and examine them in context of those torts which most commonly feature in degree courses. In doing so, we direct the reader towards the complexities of the subject and its relationship with society. Our thanks are due to several colleagues and students who gave us help and encouragement in the venture. Ian Kennedy, Mark Lunney, Robin Morse, Kristina Stern and Paul Sutherland read and made helpful comments on various chapters. Andrew Grubb read virtually the entire book and we are particularly indebted to him. We are also indebted to our external reader for his constructive and thorough criticisms. Others to whom we are grateful include Janet Dine, Marise Cremona, Keith Povey and (for his immense patience and unfailing good humour) John Winckler. Alastair Mullis's special thanks are due to Camilla and Lara for their love and support. In accordance with the developing modern practice, 'he' and 'she' are used in alternating parts of the book. We have endeavoured to state the law on the materials available to us on 1 December ALASTAIR MULLIS KEN OLIPHANT