PART FOUR THE LAW OF TORTS: AN INTRODUCTION

PART FOUR THE LAW OF TORTS: AN INTRODUCTION

INTRODUCTION TO PART FOUR The word 'tort' is derived from the Norman French meaning 'wrong'. In English law 'tort' denotes certain civil wrongs as distinct from other civil wrongs such as breach of contract and breach of a trust, and from criminal wrong. The commission of a tort will entitle a person who has suffered a wrong or injury to seek redress in the civil courts. Lord Denning says of the 'province of tort' that it 'is to allocate responsibility for injurious conduct'. However, it is difficult to find a complete or watertight definition of tort; in fact there are two schools of thought on whether we should speak of a law of tort or of a law of torts. It may therefore be helpful to commence this chapter with a random selection of situations which indicate the types of case in which a claim in tort can be made. These are: For damages for death, physical injuries or nervous shock to the plaintiff victim (or his/her next of kin in the event of death) against a negligent party of a road accident. (Tort ofnegligence) For damages for monetary loss caused to the.plaintiff because of reliance on inaccurate or misleading advice carelessly given by a professional person in the course of business with another. (Tort of Professional Negligence). For an injunction of ejectment by the plaintiff owner or occupier of property to serve on someone who has come on to his/her property without his/her express or implied consent. (Tort of Trespass to Land) For damages and/or a court order to return goods belonging to the plaintiff wrongfully taken or interfered with by the defendant. (Tort of Trespass to Goods) For damages and/or a court order of restraint by the plaintiff for a common assault made against him/her by the defendant. (Tort of Trespass to the Person) For an injunction of prohibition by the plaintiff(s) to serve on the defendant to prevent him/her from polluting the area with smoke and smells in which the plaintiff(s) lives. (Tort ofnuisance) For damages by the plaintiff for loss caused to him/her by being tricked by the defendant into buying worthless shares. (Tort of Deceit) For damages by the plaintiff for injury to his/ her reputation caused by a false accusation of misconduct or incompetence made by the defendant. (Tort ofdefamation) This random sample of cases indicates the extraordinary diversity of tort or torts in the common law system. It is not surprising therefore that there are two schools of thought: one being whether to define a law of tort by acknowledging one general principle of liability in tort that all harm is actionable in the absence of just cause or excuse; or whether to recognise a law of torts: that there are a number of specific torts, distinguishable from each other, and that damage or injury must be brought within the scope of one of these torts according to its common law principles. Professor P.H. Winfield's well-known definition of the law of tort emphasises a general principle of liability: 'tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally, and its breach is redressible by an action for unliquidated damages.' However Salmond and Heuston, the writers of a law text significantly entitled On the Law of Torts question the existence of one fundamental general principle and offer a much broader definition: 'a tort consists of some act done by the defendant whereby he has without just cause or excuse caused some form of harm to the plaintiff. Th ey are of the view 'that there are a number of specific rules prohibiting certain kinds of harmful activity, and leaving all the residue outside the sphere of legal responsibility'. Lord Salmond appears further to complicate the matter by his reference to what the law of torts is not rather than what it is: 'a civil wrong for which the remedy is a common law

204 A-LEVEL LAW IN ACTION action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or merely equitable obligation.' The authors of this text take the latter view that maintains there are a number of specific torts and that unless the damage or injury can be brought within the scope of one or more of these torts there is no remedy, so that we should therefore speak of a law of torts. Nonetheless, there are some fundamental features of definition common to all torts. They are: 1 Duty. Tortious liabilityis based upon a breach of a duty and, unlike contract which is fixed by agreement of the parties, is fixed by law. The breach of duty is recognised by law as actionable. 2 A tortious duty is owed to persons generally, not from an exclusive agreement entered into by the parties (such as a contract). 3 A tort gives rise to a civil action for unliquidated damages, that is, not a fixed sum but a sum decided by the court at its discretion in order to compensate the plaintifffor the loss he or she has suffered. However, as already indicated above, the law of torts is an incomplete system. It only recognises loss in specific areas: there are some losses for which it is not possible to compensate an injured person. Even though harm is done to a person the law does not recognise a general right to compensation or seek to provide a remedy. This is described as damnum sine injuria (damage without legal wrong). For example, the law does not recognise damage where it is caused by a person authorised to act under statutory authority, or where competition from one trader causes another trader economic loss and he is forced out of business. Conversely, there can be a situation where there is a legal wrong but no loss or damage has been caused. This is described as injuria sine damno. Certain torts, such as trespass and libel, are actionable per se (that is, actionable in themselves). In these cases no loss need be proved or alleged. Fundamentals of tortious liability When looking for a standard of blame or culpability in the law of torts there is no one clear test. In his commendable book, The Law of Torts, W.V.H. Rogers writes: 'There is no single standard of fault... only a series of points along a scale of conduct with liability only for intentionally caused harm at one end and for purely accidental and even unforeseeable harm at the other.' This leads us by way of an introduction to outline the various standards of conduct for tortious liability and also the general defences in tort before examining the specific torts themselves. Various standards of conduct Standards of conduct for tortious liability may rest in some instances upon the state of mind of the defendant and be regarded on the basis of the objective test of the 'reasonable man' in the circumstances at the time of the commission of the tort. The mental elements variously are intention to harm, negligence, and the motive of malice. Some torts, such as trespass to the person, fraud and injurious falsehood, specifically require an intention of the wrongdoer to be proven. In criminal law, the proof of intention (along with recklessness and gross negligence) is vital to criminal liability; with the exception of crimes of strict liability, the mens rea, the guilty mind, must be proven. Intention in tort is another matter; here intention refers to the defendant's knowledge that the consequences of his action are inevitable: whether directly or indirectly incurred as in trespass; whether desired or undesired, and whether foreseeably his conduct will bring about a harmful result to the plaintiff - the tort of negligence relies specifically on this latter principle. It should be noted here that the expression 'negligent' may not always apply specifically to the tort of negligence; it has a different meaning in other contexts, of failure by a person to comply with a strict duty laid upon him by law whereby the person in question had his mind wholly or partly diverted from what he was doing. This applies to certain torts where a person has done something potentially harmful and is required to take responsibility for his actions even though he may have acted unintentionally and the consequences of his conduct were unforeseeable. Examples are the rule in Rylands v Fletcher (1868) - a tort of strict liability (see below, page 243), and such legislation as the Nuclear Installations Act 1965 with regard to unlawful contamination of persons and of the environment. The presence or absence of the mental element of malice in tort is, generally speaking, irrelevant. A malicious motive will not normally make an otherwise lawful act unlawful: Bradford Corpn v Pickles (1895) Pickles, with the intention of forcing the corporation to purchase his land, made excava-

INTRODUCTION TO PART FOUR 205 tions on the land and abstracted some of the water that normally would have flowed into a nearby reservoir owned by the Corporation. The Corporation sued in nuisance but failed. The House of Lords ruled that Pickles' act of excavating his own land was lawful, even though his intention may have been malicious. Lord McNaghten said: 'It is the act, not the motive for the act that must be regarded.' Although in most torts it is unnecessary for the plaintiff to prove malice in order to succeed, there are some exceptions to this general rule. In order to succeed in an action, a plaintiff must prove malice in the torts of maliciousprosecution and maliciousfalsehood. Although malice is not an essential element in the tort of nuisance, there are situations where the plaintiff will succeed if he shows that the defendant acted maliciously by way of unreasonable behaviour which otherwise would be reasonable (see the cases of Christie v Davy (1893) and Hollywood Silver Fox Farm Ltd v Emmett (1936), below page 241). Also, in the tort of defamation, proof of malice by the plaintiff may destroy the respective defences of qualifiedprivilege and fair comment. The general defences in tort Certain defences apply to all torts and these are often referred to as general defences. There are in addition certain special defences which are available to particular tortious actions; an example of one such particular defence is the prevention of trespass to land by the use of reasonable force (see below, page 233). General and particular defences may be raised together in any action to which they are appropriate. Here we shall consider the general defences; particular defences will be discussed in the context of particular torts. Valenti non fit injuria ('no injury can be done to a willing person') A person who has consented expressly or impliedly to the commission of a tort and is injured may not sue on it. To illustrate the meaning of this consider these two cases: (a) A stranger comes up behind you in the street and unexpectedly thrusts a knife into your back. (b) You undergo medical treatment for appendicitis in a hospital; a surgeon cuts your body with a scalpel. Although it is easy to see that in both these cases there has been an intentional act by one person to thrust a sharp implement into the body of another person, we instinctively judge the first act to be an unacceptable battery on one person by another, whereas the surgical battery is quite acceptable. The fundamental difference is the absence or presence of 'consent'; one does not normally consent to being attacked with a knife in the streets whereas one is generally happy to consent to be operated on by a surgeon whose duty it is to cure the patient. Without the patient's consent, the surgeon could be liable in the tort of a trespass to the person. The plaintiffs assumption of risk, or 'consent' to an intentional act done to him or her, provides a defence for the defendant where normally a duty of care would be owed. The consent must be freely given. Consent obtained by force or fraud will not stand the test. Other examples occur in games and sporting activities. Participant boxers or hockey players run the inherent risk of being injured when they engage in their respective sports. In these cases the participants impliedly agree to somebody doing to them not an intentional act of harm - that would otherwise be a tort of trespass to the person - but an accidental act of injury. l' In Simms v Leigh Rugby Football Club (1969) the plaintiff, a rugby player of a visiting team, during the course of the game was injured by being thrown towards a concrete wall as he was tackled by the defendant, a member of the home team. The distance of the wall from the touchline wall was within the League's byelaws. It 'was held that the plaintiff must have willingly consented to the risks involved in playing on that field. The defendants, whose ground complied with the byelaws of the Rugby League, were found not to be liable either under the Occupiers' Liability Act 1957 or in general negligence. Nonetheless, the law takes a stronger line against unnecessary violence in certain sports: In Condon v Basi (1985), the defendant made a late and reckless tackle upon the plaintiff who suffered a broken leg as a result, and the defendant was sent off the field. The Court of Appeal upheld the decision of the county court judge who had awarded damages for the injuries sustained by the plaintiff, ruling that participants in competitive sport owed a duty of care to each other to take all reasonable steps not to cause injury to other participants to which they could not reasonably have expected to consent.

206 A-LEVEL LAW IN ACTION Spectators to sports meetings also voluntarily undertake to run similar risks although, for there to be a defence of volens, reasonable steps should be taken by the organisers of sports meetings to prevent risk of injury to spectators. This was decided in Hall v Brooklands Auto-Racing Club (1933). Hall, a spectator at a car race meeting, was one of two spectators who were killed by a car which shot over the railings after a collision. It was the first time that a car had gone through the railings. The court held that the type of danger to spectators was inherent in the sport and that Hall, who had paid for admission to see the races, had consented to the risks of such an accident. The defendants could therefore rely on the defence of volens. They also had taken adequate precautions to protect the spectators by putting up the railings. In order to substantiate a defence of volenti nonfit injuria a defendant must not only show that the plaintiff knew of the risk but that he voluntarily consented to run the risk. However, the notion of willingness to run a risk is somewhat vague in many cases and the courts appear to exercise considerable discretion. Perhaps a less surprising example is the refusal to apply the defence in cases involving passengers who knowingly sit in a vehicle driven by a drunken driver, or in an aircraft with a drunken pilot as in Morris v Murray and another (1990) where the Court of Appeal ruled that a passenger who voluntarily embarked on a pleasure flight in a light aircraft flown by a pilot who he knew had consumed a large quantity of a alcohol, was capable of appreciating the dangerous nature and extent of the risk he was taking. He thereby was volens: he accepted the risk of injury and impliedly waived the right to claim for injuries caused by the pilot's negligence. Less certain are 'rescue cases' where one person puts himself or herself at risk in an attempt to save another from a perceived danger. The distinguishing factors seems to rest on the degree of negligence of the defendant (Sims v L. Goodall & SonsLtd (1966)) and the degree of foolhardiness of the plaintiff and whether the plaintiffacts under a legal duty or moral duty (Haynes v Harwood (1935) and Chadwick v British Railways Board (1967)). (See Student Research, Question 2 below.) Mistake The general rule is that mistake, whether of the law or of fact, is no defence in tort. A defendant cannot argue that he or she did not know the law relevant to his or her case. The maxim ignorantia legis non excusat (ignorance of the law is no excuse) applies. In respect of a mistake of fact, there are some exceptions to the rule. They are: Malicious prosecution. If a police officer or private prosecutor commences a prosecution under the mistaken belief that the plaintiff is guilty but the plaintiffturns out to be innocent, this will provide a defence to an action for malicious prosecution. False imprisonment. If a police officer, without a warrant, arrests the plaintiffin the mistaken belief of reasonable suspicion that a person has committed an arrestable offence, the police officer is not liable for false imprisonment. The police officer has to show he had grounds for his belief. A trespass to land is actionable per se: so a trespass on to land which the trespasser mistakenly but STUDENT RESEARCH 1 'The defence of volenti non fit injuria is applied in the case of road users, who daily impliedly consent to the risk of harm arising from road and traffic conditions, however they do not consent to the risk of negligent harm' (Holmes v Mather (1875)). Explain this distinction. Examine the role compulsory insurance cover for drivers has in this context when making a claim for legal damages. 2 Imagine a rescue case, where the plaintiff is injured while heroically responding to the defendant who is in some danger due to his own negligence. The rescuer knowingly faces the prospect that he may suffer damage from his action. Can the defence of volens, the assumption of risk, succeed in such cases? Using any text on Torts or the Law Reports, look up the following cases for the answer: Haynes v Harwood (1935) Chadwick v British Railways Board (1967), and Cutler v United Dairies (London) Ltd (1933). ryour tutor may suggest alternative authorities.)

INTRODUCTION TO PART FOUR 207 honestly believes belongs to him, or he believes he has right of entry to, can be liablefor trespass. Self-defence The courts are always prepared to take into account a defence of self-protection. A person may use reasonable force having regard to all the circumstances to protect persons (oneself and others) and property. The amount of force must not be excessive. This defence particularly applies to trespass and occupiers' liability. Also proof of damage is not necessary. Necessity A defendant may rely on this defence in instances when he or she may not have been under threat, as in self-defence, but nonetheless took tortious action in order to protect himself or herselfor anotherfrom unfortunate circumstances he or she could foresee arising. Examples of such instances are: trespassing on to another's land to prevent the spread of a fire, throwing another's property overboard in order to save a ship, forcing entry into a stranger's vehicle in which the driver appears to be suffering a heart attack, or, as in the case of Leigh v Gladstone (1909), force-feeding a suffragette on hunger strike in prison to prevent her death. The defence of necessity can succeed even if it turns out there was no danger. The test is that the damage was reasonably foreseeable by the defendant. Inevitable accident This defence is concerned with the argument that the tortious action is one that was not intended and could not have been prevented by using ordinary care and skill. The defence succeeded in Stanley v Powell (1891). While out shooting game the defendant accidentally shot the plaintiffwhen by complete mischance the pellet from his gun ricocheted on to a tree and hit the plaintiff. The harm arose from some unusual occurrence that was not foreseeable at the time the action took place. ActofGod This defence is available 'in circumstances which no human foresight can provide against, and which human prudence is not bound to recognise the possibility' (Greenock Corpn v Caledonian Railway Co (1917)). An event can be an Act of God only ifit is caused by natural forces without human intervention. Damage caused by a lightning strike or excessive flooding are common examples. See the rule in Rylands v Fletcher below, page 243. Statutory authority It is a defence to an action in tort to show that a statute, or subordinate legislation, authorises, either absolutely or conditionally, the alleged wrong. Where the authority is imperative it is absolute: for example, in Vaughan v Taff Vale Railway Co (1860) a railway, authorised by statute, ran across the plaintiffs land; when sparks from the engine set fire to the plaintiffs trees the company was found not to be liable. Where the authority is permissive, it is conditional: this is illustrated in Metropolitan District Asylum Board v Hill (1881). A hospital authority, empowered by statute to build an isolation hospital for smallpox patients, made a decision to erectit in a residential district where the residents claimed it caused a nuisance because of danger of infection. The court granted an injunction on the basis that the statutory authority was permissive: the choice of site created a public nuisance. limitation of tortious actions The LimitationAct 1980repealed the LimitationActs of 1939, 1963 and 1975 and is now the major statute governing limitation of an action. The 1980 Act provides that an action in tort must be brought within six years of the date on which the right of action accrued. It should be noted that there are specific exceptions to this general rule. Section 2 of the 1980Act continues the rule prior to the Act that actions for negligence, nuisance and breach of statutory duty must be brought within three years from the date at which the cause of action accrued, or the date of the plaintiffs knowledge whichever is the later. Section 33 of the 1980Act enables the courts to exercise discretionary powers to extend the time limits in respect of actions for personal injury or death, having regard to the circumstances of the case. Parties in the law of torts Who can be sued in the law of Torts? As a general rule anyone of full capacity may be sued in tort. The

208 A-LEVEL LAW IN ACTION categories of persons whose capacity to commit a tort is limited are: The Crown and its servants The Crown consists of the Monarch and her ministers, together with central government departments, staffed by civil servants, the armed forces and the Privy Council. Prior to 1947 the common law maxim 'The King can do no wrong' made it impossible to sue the Crown or its servants in tort. Since the Crown Proceedings Act 1947 the Crown in its public capacity shall be liable in tort in the same way as the Queen's subjects, although s 40 preserves the immunity of the Monarch in a personal capacity from any liability in law. Action may be brought against the government department concerned, or when in doubt, against the Attorney General. The Crown is not liable for torts committed by local authorities, the police or Post Office. Local authorities are liable for their own torts. The Police Act 1964, s 48(1) provides that the chief officer of police for any police area is liable for the torts of police officers, for example for a 'wrongful arrest'. Any damages and costs awarded in a tortious action are payable out of police funds. The Post Office, although a public authority, is not an agent of the Crown. Liability of the Post Office and its servants is solely limited to loss of or damage to inland registered postal packets (Post Office Act 1969, s 30), it does not include anything done or omitted to be done in regard to anything in the post or for failure to collect the post (s 29). Foreign sovereigns and ambassadorial staffs Normally, the heads of other sovereign states are immune from actions in tort. Similarly, High Commissioners of Commonwealth countries, ambassadors of foreign countries and representatives of certain international organisations, members of their families and some of their employees, enjoy immunity during their term of office (Diplomatic Privileges Act 1964). A full list of the privileged persons is maintained by the Foreign Office. Where a person with immunity commits a serious tort he or she may be dealt with or removed by the officials of the country concerned. Not immune are some less senior diplomats and all ambassadorial personnel at the point their term of office expires; the latter then may be sued at any time between recall and their departure from the jurisdiction. Judicial immunity A judge enjoys absolute.immunity for acts in his judicial capacity.this immunity appears to extend to justices of the peace when acting within their jurisdiction (Law v Llewellyn (1906)). Counsel and witnesses also have immunity in respect of matters in court and surrounding court cases in which they are concerned. Corporations A corporation as an artificial person can sue for any appropriate tort committed against it. Clearly, it would be impossible to have some torts, such as assault, committed against a corporation. A corporation can be sued in tort. Generally speaking torts committed by corporations have to be ultra vires (outside its powers). Thus, the law distinguishes between the corporation's express and non-express authority. A corporation will only be held liable if an employee or agent engages in an ultra vires activitywith express authority; where the authority has not been expressly given, then the corporation is unlikely to be held liable. A corporation may also be liable for an intra vires activity under the principles of vicarious liability for the torts committed by employees and agents in the course of their employment. Unincorporated associations Associations such as clubs and societies have no independent legal personality; however, the organisation managers, committee or trustees can be held vicariously liable for torts committed by their members and be liable as 'occupiers' for any person injured while on their premises (see under Occupiers' Liability). Otherwise individual members are liable for their own torts. Trade unions Before the implementation of the Trade Union Act 1984 and subsequent legislation, the trade unions enjoyed wide-ranging statutory immunity if they

INTRODUCTION TO PART FOUR 209 could show they were 'acting in contemplation or furtherance of a trade dispute' (Trade Union and Labour Relations Act 1974, s 13), but now trade unions are liable for torts in respect of acts of inducing a person to break his employment contract or interfere with its performance. The exception is where industrial action is authorised or endorsed by a majority vote by way of a properly conducted secret ballot. The industrial action must be aimed only at their own employer. Secondary action, that is, against an employer who does not employ the workers involved in the dispute, makes the unions liable in tort for damages or to have an injunction served against them. requisite intention required to commit a particular tort. Spouses Husbands and wives may sue a third party and be sued independently of each other as if they were not married, unless they are tortfeasors in an action. They may also sue each other; however, the court has powers to stay an action if it appears that no substantial benefit would accrue to either party from a continuation of the proceedings (Law Reform (Husband and Wife) Act 1962). Minors Minors of any age are capable of being sued in tort but it is usually impracticable to claim damages from a minor under 16 or 18 who has no earnings. Also, in certain torts where the mental element of malicious motive must be shown, it would be impossible to show that a young child's tort was activated by malice. There are some special rules relating to minors in the tort of negligence; for example a parent can be held liable in negligence if he has permitted or encouraged the child to commit a wrong, however, in normal circumstances a parent cannot be held liable for the torts of his children. A minor may sue in tort but must do so through an adult called a 'next friend'. The adult is usually a parent or guardian or, when this is not possible, a responsible adult. Unborn children The Congenital Disabilities (Civil Liability) Act 1976 provides protection for an unborn child against disablement resulting from an occurrence which affects the ability of either parent, usually the mother during her term of pregnancy, to have a normal child. For example, where an expectant mother is negligently prescribed a drug which turns out to have caused the child's deformity, the child, once born, may sue the tortfeasor, the manufacturer of the drug, for damages. Persons suffering from mental disorders Insanity is not a defence to an action in tort, but it may prevent the defendant from forming the Joint tortfeasors If two or more people commit a tort jointly they will be 'jointly and severally' liable. This means they can either be sued together in one action or sued alone in different actions. Under the Civil Liability (Contribution) Act 1978 it is laid down that, if one tortfeasor is sued by a third party and pays damages, that one tortfeasor can claim a contribution from his fellow tortfeasors. Vicarious liability This topic is considered in context in chapter 23. Particular torts We now proceed to look at particular torts. Although historically the tort of trespass is the oldest tort, established in Norman times, and the tort of negligence is a more recent 20th century introduction by the courts, the following chapters will deal with the law of torts not in its historical order but giving the tort of negligence priority. This is because the tort of negligence has grown considerably in importance in recent years, its principles being defined and redefined and further adapted to meet various categories of negligence. However, one should bear in mind that all torts having evolved from trespass still have some basis in the historical origins of a remedial or 'actions-base' system: formerly a tort was a wrong remediable by one of the actions of 'trespass' - for direct wrongs, or 'trespass upon the case' - for indirect wrongs. A plaintiffs case must fit a particular tort.

210 A-LEVEL LAW IN ACTION In the subsequent two chapters we shall examine the following torts and their particular defences and remedies as follows: Chapter 12: Negligence - Duty of care and the neighbour principle and its development; standard of care and professional negligence; contributory negligence; causation, remoteness of damage; occupiers' liability. Chapter 13: Trespass - (t) to land; (it) to goods and wrongful interference with good s; (iit) to the person; nuisance; strict liability and the rule in Rylands v Fletcher, defamation.