Macmillan Professional Masters Torts
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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
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 978-0-333-56418-9 ISBN 978-1-349-12659-0 (ebook) DOI 10.1007/978-1-349-12659-0 A catalogue record for this book is available from the British Library. Copy-edited and typeset by Povey-Edmondson Okehampton and Rochdale, England 10 9 02 01 8 7 6 5 4 3 2 I 00 99 98 97 96 95 94 93
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 1 1 3 4 5 Part I THE TORT OF NEGLIGENCE 2 Negligence: introduction 2.1 Origins 9 2.2 The elements of the tort of negligence 10 2.3 The abstract nature of the tort of negligence 10 2.4 The role of policy in the tort of negligence 11 2.5 Selected policy considerations in the tort of negligence 12 17 Exercise 18 9 3 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? 19 19 19 21 21 22 22 4 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 23 23 24 26 27
vi Contents 4.5 The requisite means of witnessing the event 28 4.6 The class of defendant potentially liable 29 4.7 Policy considerations 30 31 31 5 Economic loss and negligent misstatement 33 5.1 What is 'pure economic loss'? 33 5.2 Defective product economic loss 33 5.3 Attempts to circumvent the rule 35 5.4 Preventative damages 37 5.5 Negligent misrepresentation 38 5.6 Hedley Byrne: the range of possible defendants 41 5.7 Hedley Byrne: the circumstances in which each defendant may be held liable 42 5.8 Where are we now? 43 5.9 Policy considerations 44 47 48 6 Omissions 50 6.1 Introduction 50 6.2 Duty to protect others 51 6.3 Duties to control others 52 6.4 Control of property 54 6.5 Innocently causing another's plight 56 57 57 7 Problem plaintiffs 58 7.1 Foreseeable and unforeseeable plaintiffs 58 7.2 Rescuers 59 7.3 The unborn child 61 62 62 8 Problem defendants 64 8.1 Public bodies 64 8.2 The police 64
Contents vii 8.3 The legal profession 67 69 69 9 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 70 70 70 72 73 74 77 77 10 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 79 79 80 82 85 87 88 11 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 89 89 90 91 92 92 93 94 12 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 95 95 97 98 99 102 103 105 106
viii Contents Part II INTERFERENCE WITH THE PERSON AND PERSONAL PROPERTY 13 Interference with the person and personal property 109 13.1 Overview 109 13.2 Fault-based and strict liability Ill 13.3 Compensation for personal injuries 112 13.4 The mixed system of accident compensation 112 13.5 The Pearson Commission proposals 114 13.6 Comprehensive compensation schemes 116 117 118 14 Occupiers' liability 119 14.1 Introduction 119 14.2 Scope of the Occupiers' Liability Act 1957 119 14.3 Who is an occupier? 120 14.4 Who is a visitor? 121 14.5 The common duty of care 123 14.6 Defences 126 14.7 Liability to trespassers 127 14.8 The Occupiers' Liability Act 1984 127 129 130 15 Product liability 132 15.,1 Product liability at common law 132 15.2 Reform: the Consumer Protection Act 1987 133 15.3 Meaning of 'product' 134 15.4 Meaning of 'defective' 135 15.5 Who can be liable under the Act? 137 15.6 Who can recover under the Act? 139 15.7 Defences 140 142 142 16 Breach of statutory duty 144 16.1 Introduction 144 16.2 Inferring the existence of the tort 144 16.3 The modern approach 145
Contents IX 16.4 Exceptions to the presumption against actionability where the statute provides an alternative remedy 148 16.5 Elements of the tort 151 16.6 Reform 153 ~mm~ I~ 154 17 Trespass to the person 156 17.I Introduction 156 17.2 Trespass and negligence 156 17.3 Assault and battery 158 17.4 False imprisonment 161 17.5 Intentional infliction of physical harm other than trespass to the person: Wilkinson v. Downton 164 17.6 Damages 165 17.7 Defences to trespass to the person 165 171 171 Part III INTERFERENCE WITH LAND 18 Interference with land: introduction 18.1 Property, tort and crime 18.2 Trespass, nuisance and negligence 175 175 176 177 19 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? 178 178 181 185 186 19.5 Defences 188 19.6 Nuisances on or adjacent to the highway 190 19.7 The relationship between nuisance and negligence 191 193 194 20 The rule in Rylands v. Fletcher 20.1 Introduction 20.2 Non-natural use of land 20.3 Escape 195 195 196 196
x Contents 20.4 Parties 20.5 Defences 20.6 Fire 197 198 198 199 200 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 205 21.4 The statement must be published to a third person 208 21.5 Reference to the plaintiff 210 21.6 Damage: the distinction between libel and slander 211 21.7 Defences 213 21.8 Justification 21.9 Fair comment 2l.IO Absolute privilege 217 21.11 Qualified privilege 21.12 Unintentional defamation 224 2l.l3 Damages 203 205 213 215 219 225 226 227 Part V GENERAL PRINCIPLES OF TORTIOUS LIABILITY 22 Vicarious liability and joint torts 231 22.1 Introduction 231 22.2 Justifications for vicarious liability 232 22.3 Master and servant relationship 232 22.4 The course of employment 234 22.5 Liability for independent contractors 237 22.6 Joint and several liability: the distinction between joint, several concurrent and separate tortfeasors 239 22.7 Contribution between tortfeasors 241 242 243
Contents XI 23 Remedies 244 23.1 The indemnity principle 244 23.2 Contemptuous, nominal, aggravated and exemplary damages 244 23.3 Damages recoverable once only 247 23.4 Special and general damages 249 23.5 Damages for personal injuries 249 23.6 The assessment of an award of damages 250 23.7 Non-pecuniary loss 251 23.8 Pecuniary loss 253 23.9 Interest 259 23.10 Collateral benefits 260 23.11 Damages for death 261 23.12 The effect of death on existing causes of action: the Law Reform (Miscellaneous Provisions) Act 1934 261 23.13 Claims by the deceased's dependants: the Fatal Accidents Act 1976 262 23.14 Assessment of damages for loss of dependency 264 23.15 Apportionment between dependants 266 23.16 Deductions 267 23.17 Property damage 267 23.18 Assessment of damages in property damage cases 267 23.19 Injunctions 268 270 271 Bibliography 273 Index 277
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 1992. ALASTAIR MULLIS KEN OLIPHANT