LEVEL 6 - UNIT 13 LAW OF TORT SUGGESTED ANSWERS - JUNE 2013

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1 Note to Candidates and Tutors: LEVEL 6 - UNIT 13 LAW OF TORT SUGGESTED ANSWERS - JUNE 2013 The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the JUNE 2013 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. Question 1 SECTION A The duty of care exists as a control device in order to determine who can bring an action for negligence and in what circumstances. The standard test for duty of care in a negligence action is the three stage test laid down in Caparo v Dickman (1990). 1. Was there reasonable foreseeability of damage to the claimant (the neighbour test ); 2. Was there proximity between the defendant and claimant; 3. was it fair, just and reasonable to impose a duty. The third stage of the test incorporates any policy considerations which the court may wish to take into account. Foreseeability means that the defendant must have foreseen some damage to the claimant at the time of their alleged negligence. The important factor is that the claimant has to establish that the duty was owed to them. They cannot build on a duty owed to another. The damage must also be of a kind which is foreseeable. A defendant may therefore be able to foresee physical injury but not psychiatric damage. What will constitute proximity will vary from case to case. Where the case is a road accident and physical damage is caused to the claimant, then mere foreseeability of damage will be sufficient to establish proximity. If the claimant is not struck by the vehicle or placed in danger but suffers psychiatric damage as a result of witnessing the accident, then factors such as the relationship between the claimant and the person placed in physical danger, and the closeness of the claimant to the scene of the accident, will determine proximity. Page 1 of 18

2 Claims in the area of psychiatric damage are typically where a person suffers a reaction when they witness an accident in which a loved one is injured. No damages are recoverable for the ordinary grief, sorrow or distress which is suffered. Before a person can claim, they have to establish, on the basis of medical evidence, that they have suffered a definite and identifiable psychiatric illness. Psychiatric damage is dealt with separately for a number of reasons. Initially, the courts had difficulty in distinguishing a genuine claim from a fictitious one. Advances in psychiatry mean this is no longer a major problem and it is rarely referred to by the courts. There is a problem in placing a monetary value on this type of harm. A successful claimant will recover for pecuniary losses, such as loss of earnings, in the normal way. But damages for non-pecuniary loss have to be assessed by the court. However, this is a problem which the courts have to deal with in all personal injuries claims. Is it any more difficult to assess these damages in nervous shock cases than in, for example, paralysis cases? A further difficulty is the floodgates problem. Ordinary physical damage caused by negligent conduct will by its nature be limited to those within the range of impact. Psychiatric damage is not so limited, as persons not within the range of impact may be affected. The courts have been conscious of this problem as they developed the law and have imposed restrictions on those who can recover. A distinction was drawn between primary and secondary victims in Alcock v Chief Constable of South Yorkshire Police (1991). The definition of a primary victim was given in Page v Smith (1995) and approved by the House of Lords in White v Chief Constable of South Yorkshire Police (1999). In all these cases the plaintiff was the secondary victim of the defendant s negligence. He or she was in the position of a spectator or bystander. In the present case, by contrast, the plaintiff was a participant. He was himself directly involved in the accident, and well within the range of foreseeable physical injury. He was the primary victim. This test was used by the House of Lords in White to deny a duty of care to police officers at the Hillsborough disaster as they were not primary victims. However, if a claimant can bring themselves within the primary victim category they have a great advantage as all that has to be proved in order to satisfy the duty test is whether some foreseeable physical damage was reasonably foreseeable. The term physical damage here includes psychiatric damage. (Page v Smith) Secondary victims are those who are not themselves in physical danger but suffer psychiatric damage as a result of their fear for the suffering of other people. Largely because of the courts fear of floodgates,in this case too large a number of potential claimants, the courts have erected a formidable number of barriers to claims. The claimant must prove; (Alcock v Chief Constable of South Yorkshire Police (1991)) (i) A sufficiently close relationship of love and affection with the primary victim to make it reasonably foreseeable that the claimant might suffer psychiatric damage if they apprehended that the primary victim had been injured or might be injured. This means that the potential duty is not restricted to particular relationships such as spouses or parent child. In spouse and parent Page 2 of 18

3 child cases there would appear to be a rebuttable presumption of such a relationship. In other relationships, such as siblings or engaged couples, it will be necessary for the claimant to lead evidence to prove the existence of such a relationship; (ii) Proximity to the accident, or its immediate aftermath, was sufficiently close in terms of time and space. They suffered psychiatric damage through seeing or hearing the accident or its immediate aftermath. (iii) A person who was informed of the accident by a third party would generally have no claim. A person watching simultaneous television would normally have no claim as the broadcasting guidelines prevent the showing of suffering by recognisable individuals. If such pictures were shown, then the transmission would normally be regarded as a novus actus interveniens. This is an area which has caused great difficulty to the courts and they appear to be no nearer to producing satisfactory rules. Lord Hoffmann in White said that the search for principle in this part of the law has been called off. Part of the difficulty may be caused by a conception that psychiatric damage is less worthy than physical damage of compensation - and even that the prospect of compensation may delay recovery by the psychiatrically damaged claimant. The case of relational loss (secondary victims) appears to provoke a defensive stance by the judiciary and the primary/secondary divide, with the more favourable rules for primary victims, illustrates this. However, the primary/secondary divide may end up causing more problems than it solves and creating more litigation as claimants lawyers attempt to have their clients classified as primary victims. The issue of psychiatric damage was referred to the Law Commission, which produced recommendations for reform, including legislation (Law Commission Report No 249 (1998)). The major suggestions were as follows: 1. The requirement that the plaintiff be in physical proximity to the accident should be abolished where there is a sufficiently close relationship between the plaintiff and the person placed in danger. 2. Legislation should lay down a fixed list of relationships where a close tie of love and affection shall be deemed to exist. This would cover spouse, parent, child, sibling and cohabitant. A claimant outside this list would be allowed to prove that a sufficiently close relationship existed. 3. The requirement that the psychiatric illness be caused by shock should be abolished. 4. The courts should abandon attaching significance to whether the claimant was a primary or secondary victim. These suggestions would effectively make reasonable foreseeability the test where the claimant came within the list of recognised relationships. It would have the effect of making the law clearer and better structured. Whether it would give rise to too many claims is the major objection. Page 3 of 18

4 Question 2 The third element in the claimant s case in negligence is damage. This is an essential ingredient of the tort as it is not actionable per se. The claimant must prove that their damage was caused by the defendant s breach of duty and that the damage was not too remote. The first element is sometimes called causation in fact, and the latter causation in law. Causation in fact deals with the question of whether as a matter of fact the damage was caused by the breach of duty. The starting point for assessing whether the defendant s breach of duty is a factual cause of the claimant s damage is the but for test. This basic test is whether the damage would not have occurred but for the breach of duty. The purpose of the but for test is to remove irrelevant causes. The claimant must establish on the balance of probabilities that the defendant s breach of duty was a cause of his damage. The civil standard of proof (balance of probabilities) is a lower one than the criminal standard of beyond reasonable doubt. The claimant must show that there was a more than 50% chance that the defendant s breach of duty caused his damage. (Barnett v Chelsea and Kensington Hospital Management Committee (1968). In most cases the but for test presents no difficulties. However, there are areas where the test presents problems. These are in relation to: the degree of probability of damage occurring, particularly in cases of disease and medical negligence; multiple causes of harm; where the test produces unjust results; and economic loss cases. The reason why the courts sometimes depart from but for causation was explained by Lord Nicholls in Fairchild v Glenhaven Funeral Services Ltd (2002) 3 All ER 305: the relaxation of the test would only be in exceptional circumstances and on the grounds of justice to the claimant. Where there are several alternative explanations of the events leading to the damage, one of which may be the defendant s fault and others may be innocent, there may be a problem. An example is where a disease is contracted by the claimant. Medical science may not be able specifically to pinpoint the cause of the disease or link negligent conduct to its appearance. In industrial injury cases there may have been more than one employer who exposed the claimant to a risk. In such cases the court may take the approach of asking whether the defendant has materially increased the risk of damage occurring by his negligent conduct. The case of McGhee v National Coal Board (1973) is an example of this approach. Claimants have sometimes advanced the argument that the defendant s negligence has deprived them of a chance. This may be a chance of getting better if they had been treated properly. The courts have rejected this argument in cases of personal injuries involving medical negligence (see Gregg v Scott (2005)) but have accepted it in economic loss cases. For example, in cases where a lawyer is sued for negligence where they miss a limitation period it may be unclear whether the client would have won the action anyway. The court must then assess the percentage chance of success and award damages on that basis. Where there is more than one potential cause of the harm, the claimant is faced with the problem of establishing that one cause (the defendant s breach of duty) is more likely to have caused the damage than any other cause. If there are four Page 4 of 18

5 possible causes and each is as likely to have caused the damage as the other then the claimant can only prove a 25% likelihood and will therefore fail as they have not reached the balance of probabilities threshold of 51%. An example of this outcome is Wilsher v Essex Area Health Authority (1988). To succeed in these cases the claimant must prove that the breach of duty was a material contributory cause of the harm. What is a material contributory cause? In Wilsher, where the claim was in respect of a breach of duty leading to a form of blindness, the House stated that a cause was a material contributory one if either: it was more likely that the cause of the blindness was the defendant s breach of duty than all the other four causes put together; or the breach of duty was more likely to be the cause than any other single cause. In Bonnington Castings Ltd v Wardlaw (1956) the House of Lords held that the claimant does not have to prove that the defendant s breach of duty was the sole or the main cause of the damage, provided that it materially contributed to the damage. An inference of fact was drawn that the guilty dust was a material cause and the defendants were liable. The House of Lords ignored the but for test. The reasons for this approach are not clear but it may be that they were conscious of the employer-employee relationship and the existence of compulsory insurance taken out by the employer. What is the difference between McGhee and Wilsher? In McGhee there was only one cause of the skin disease, whereas in Wilsher there were five possible causes of the claimant s blindness. However, a more likely reason for this decision is in policy considerations, as the damages in Wilsher would have fallen on the National Health Service. Mesothelioma is a malignant tumour which is rare in persons not exposed to asbestos. It is characterised as an indivisible disease. Where a victim has been exposed to asbestos by more than one source, medical science is currently unable to say which source of exposure provided the fibre/s that caused the disease. This difficulty has given rise to the problem of proving causation for victims when claiming damages for injury or death arising from exposure by more than one employer. The problem is proving which of the employers caused the disease. In Fairchild v Glenhaven Funeral Services (2002) the House of Lords disregarded the but for test as applying it would create an injustice to sufferers of the disease. The principle of disregarding the but for test to avoid an unjust result applied only where there was one noxious agent involved. But, their Lordships were not unanimous regarding under precisely what conditions but for causation could be dispensed with and the principle applied. In Barker v Corus (2006) the House of Lords held that a defendant s liability in these cases would be limited to the extent that their negligence had exposed the claimant to the risk. However, this decision was swiftly reversed by legislation in the form of the Compensation Act The only other area where the courts appear to be prepared to depart from standard principles of causation in order to give a just result is in cases of informed consent to medical treatment. Where a patient is given insufficient Page 5 of 18

6 information on proposed treatment and a risk the patient had not been told about materialises, the question arises as to what the patient would have done if they had been informed and what they have to prove. Chester v Afshar (2005), the House of Lords held that the claimant did not have to prove, for the purposes of establishing causation, that she would never have had the operation at any time if properly warned. Rather, it was sufficient for her to prove that, if properly warned, she would not have consented to the operation which was in fact performed and which resulted in the injury. Such a conclusion could not be based on conventional causation principles, because the risk was not created or increased by the failure to warn and the chances of avoiding it were not lessened by that failure. In such a case, however, justice required the normal approach to causation to be modified. Question 3 Tort law has two main objectives: compensation and deterrence. It is generally thought that tort law normally has no punitive function and that this job is performed by the criminal law. There are very limited circumstances, though, where exemplary damages may be awarded in tort and these do have a punitive function. One of the major aims of tort law is to compensate those who have suffered personal injury. The present system shifts losses from the claimant to the defendant when the defendant has been shown to have been at fault. In recent years this system has come under increasing criticism as being an inefficient method of compensating accident victims. There are three systems which provide for accident victims. These are tort law, public insurance (social security) and private insurance. The largest part in compensation is now played by public insurance. A person who is injured in an accident may become entitled to payments by the state, such as sickness benefit. Tort damages are distinguished from payments by the state in that the former are payable only on proof that a person caused an injury and was at fault in doing so. The latter are payable on the occurrence of an event and according to need. The third system is private insurance. This plays a small but growing part in accident compensation. Personal accident insurance or permanent health insurance may be taken out against the possibility of indisposition. This is still relatively expensive in the United Kingdom but is being taken up by employers for their key personnel. A number of criticisms are levelled at the tort system. It is very expensive to administer in comparison with social security. It has been calculated that the cost of operating the tort system accounts for 85 per cent of the sums which are paid to accident victims. For claimants the system is unpredictable, as they do not know whether they will receive any compensation or not. This results in pressure on claimants to settle actions for less than they would receive if they went to trial. The system is also slow and a claimant may have to wait years before receiving compensation. The more serious the accident then generally the longer the claimant has to wait (Pearson report (1978)). Finally, damages have historically been paid in a lump sum. This created difficulties as inflation may erode the value of the award and no account can be taken of improvement or deterioration in the claimant s medical condition. The situation is now changing, however. Page 6 of 18

7 The civil justice system was subjected to a radical overhaul as a result of the Woolf Report on Access to Justice (1996). The reforms were introduced in 1999 with a view to saving costs and speeding up litigation. Tort damages are only part of the overall picture of compensation for accidents and are a junior partner to state benefits. The position in England and Wales is complex, with a number of possible avenues of compensation open to an injured person. They may be able to obtain tort damages, be covered by private insurance and be entitled to state benefits. Because of the haphazard and uncoordinated way in which the system has evolved, the victim may end up being over-compensated. On the other hand, a victim may have no insurance cover, not be able to prove fault against a person and may not have a sufficient contribution record to claim contributory state benefits. This victim will only have the safety net of income support benefit at subsistence level to support them. One other source of compensation which should be mentioned is the Criminal Injuries Compensation Scheme. Payments may be made for injuries directly attributable to crimes of violence. If the victim goes on to obtain tort damages, then any award made under the scheme must be repaid. In some countries the role of compensating for accidents has been removed from the tort system. In New Zealand, a comprehensive no-fault accident compensation scheme was set up in 1974 to replace tort damages in personal accident cases. Where a person suffers injury through accident they make a claim through the Accident Compensation Commission. The victim may claim up to 80 per cent of earnings before the accident. Payments are made on a weekly basis and can be adjusted to reflect inflation and the victim s medical condition. The victim does not have to prove fault and a wider range of accidents are therefore covered by the scheme than by tort law. The system of periodical payments avoids problems which are caused by lump sum awards of damages in tort cases. In tort cases it is not generally possible for the court to take into account future inflation or to allow for changes in the victim s medical condition. Under the scheme, a victim may also claim for non-pecuniary loss in the form of an independence allowance for persons who have a permanent disability above 10 per cent. Such awards are low compared with those which would be received under a tort system. The advantage of the scheme is that all accident victims receive some compensation and are not put to the trauma, cost and delay of having to sue someone. The drawbacks which have been discovered from experience of running the scheme are the cost, which is clearer and therefore more political than the tort system, and the possibilities of fraud. A further problem, which is common to most legal compensation systems, is that a distinction is drawn between the covered area of personal injury by accident (including occupational disease) and the uncovered areas of disease and ageing. A number of writers have pointed out that in a no-fault compensation scheme the concentration should not be on the cause of the accident but on the disability itself. The New Zealand experience has been that a no-fault system that tries to replace tort damages across the board is extremely expensive and the government was forced to reduce the level of benefits available. In England, the thalidomide tragedy in the 1960s and 1970s aroused interest in the question of compensation. The Pearson Commission (Royal Commission on Civil Liability and Compensation for Personal Injury, Cmnd 7054 (1978)) was established and the report proposed a no-fault scheme limited to accidents caused by motor vehicles. Some 188 other proposals were made but it is Page 7 of 18

8 doubtful whether any reform can be traced directly to these. A no-fault scheme does involve spending money and the implementation of such a scheme depends on the political will to do so. Opponents of such schemes argue that the removal of tort actions will remove an important deterrent to careless conduct. Despite the political neglect of the Pearson Report, compensation schemes are now back on the political agenda. Disasters such as Zeebrugge, Piper Alpha and the Hillsborough football stadium disaster have given publicity to the plight of victims. The question of taking medical accidents out of the legal system has been discussed for a number of years. The option of a comprehensive no-fault scheme was dismissed in 2003 when the cost was estimated at 4 billion per annum. The Department of Health has now come up with a proposal for an alternative to tort law in the form of the NHS Redress Act The Act establishes an NHS redress scheme which will enable the settlement of certain low value claims arising after adverse incidents without the need for court proceedings and has not yet been brought into effect. The scheme applies only to claims under 20,000 and will apply where the claim is by the estate or dependants of a deceased patient. The objectives are to take the heat out of disputes and remove any financial disadvantage from the patient. This is not a no-fault scheme, as it applies only to claims in tort, but it is anticipated that it will remove the need for patients to go to court in low cost claims. At least one influential writer in England now favours the abolition of the action for personal injuries and its replacement by private insurance. Professor Atiyah, once a strong supporter of state-funded no-fault schemes, has now declared his lack of faith in such schemes and his faith in the market. ((1997) The Damages Lottery) This view is open to the criticism that the poor would be excluded from a market-based system. Question 4 (a) Vicarious liability is where one person is made liable for the tort of another person. It is important to draw a distinction between primary liability and vicarious liability. This can be illustrated by the medical negligence cases. A health authority may be vicariously liable for the torts of its employees and it may also be primarily liable where it fails to provide adequate levels of staffing in one of its hospitals and an accident results. The commonest example of vicarious liability in tort is that of an employer for the torts of their employee. Two things are necessary for such liability to arise. There must be a particular relationship between the employer and the employee. A distinction is drawn here between employees and independent contractors. The employer is liable for the torts of the former but not those of the latter. Secondly, the tort committed must be referable to the employment relationship. This is expressed by saying that the tort must be committed in the course of employment. A number of tests have been used to attempt to draw a distinction between an employee and an independent contractor. Traditionally, a distinction was made between a contract of service (employee) and a contract for services (independent contractor). However, this distinction is no help in telling which is which. For a time the control test was popular. If the employer retained control over the work and told a person how to do it, that person was an employee. This test Page 8 of 18

9 reflected a society where ownership of the means of production coincided with the possession of technical knowledge and skill. The typical employer would be the Victorian engineer who knew all aspects of the work done in his firm. As so many employees are now skilled, the employer may be able to tell them what to do but not how to do it. The computer specialist, lawyer or accountant employed by a firm does not fit the control test. The problems with the control test led the courts to search for alternatives. One suggestion was the business integration test put forward by Lord Denning. (Stevenson, Jordan and Harrison Ltd v McDonald and Evans (1952)). A person would be an employee if their work was an integral part of the business. An independent contractor would work for the business, but as an accessory rather than an integral part of it. On this basis it would be possible to distinguish between a chauffeur and a taxi driver and a staff reporter and a newspaper contributor. In practice, the test proved too vague to apply, as did a variation of whether the person was in business on their own account. (Market Investigations Ltd v Minister of Social Security (1969)) The courts have now abandoned the search for any single factor to act as a test but will look at all the circumstances of the particular case. In Ready Mixed Concrete (South East) Ltd v Minister of Pensions (1968) a number of criteria were put forward: that the employee received a wage; that the employee agreed to be subject to the employer s control; the other terms of the contract were consistent with it being a contract of employment. Apart from these three, the courts will look at other factors. If the parties have specified that a person will be self-employed and the terms of the contract reflect self-employed status, then the contract will be regarded as a contract for services. The courts have often used a test suggested by Salmond, that an act is in the course of employment if it is either: 1. A wrongful act authorised by the employer; or 2. A wrongful and unauthorised mode of doing some act authorised by the employer. This test should be treated with some caution. Its first limb has more to do with employer s primary, rather than vicarious, liability. If the employer authorised the tort then he would be primarily liable. The second limb of the test has caused problems. An employer can clearly be liable for an act which he has forbidden. otherwise the employer could avoid liability simply by issuing instructions. The courts have looked at this question broadly, taking into account all the surrounding circumstances. The fact that the employee was doing his job negligently does not necessarily take him outside the scope of his employment. The second limb of the test has been rejected by the House of Lords in Lister v Hesley Hall Ltd (2002). It is possible for the employer to be vicariously liable for an act if he prohibits the way the job is done rather than the job itself. Therefore, a bus driver was still in the course of his employment when he raced other buses. (Limpus v London General Omnibus Co(1862). A milkman who was prohibited from carrying other people on the milk float was liable when a boy who was assisting him on the milk float was injured. (Rose v Plenty (1976)). Page 9 of 18

10 The House of Lords has attempted to solve some of the problems with this issue and particularly with the problem of claimants attempting to make employers vicariously liable for intentional torts caused by employees. In some instances the intentional conduct would be criminal. In Lister v Hesley Hall Ltd (2002) the warden of a boarding-house school for children with emotional and behavioural problems systematically sexually abused the claimants who were children in the boarding house. The question was whether the employers could be held vicariously liable for the warden s sexual abuse. What the warden did could not be described as an unauthorised method of doing some act authorised by the employers. It was the opposite of what he was employed to do. The school were, nevertheless, held vicariously liable. This was done by applying Salmond s extension to the second limb of his test that: a master... is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes although improper modes of doing them. The question was therefore whether: the warden s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties. (Lord Steyn.) Lord Hobhouse stated that the employer s liability was grounded in the assumed relationship between the employers and the claimants which imposes specific duties upon the employer in relation to the person they entrust with the performance of those duties. The close connection test is easier to state than to apply. In order to establish the necessary connection the court will examine the nature and purpose of the job and the circumstances and context in which the acts took place. In Lister the House of Lords (Lord Millett) stated that private acts of passion or resentment or spite were outside the principle. The principle in Lister was tested and applied in Mattis v Pollock (2003). (b) Although the doctrine of vicarious liability is accepted in English law, there is no clear and convincing rationale for its imposition. A number of theories have been put forward to explain this deviation from the prevalent fault-based theory of liability. The employer is best placed to reduce workplace accidents and intentional wrongdoing by employees. It has been suggested that the employer is in control of the behaviour of their employee. This is no longer convincing as many employees perform skilled tasks which the employer is incapable of understanding. To say that a health authority chief executive controls the work of a consultant is stretching the meaning of the word. Alternative suggestions have included the fact that the employer may have been careless in selecting the employee. However, liability is not based on this premise and a perfectly competent employee is capable of behaving negligently at some stage in their employment. The modern approach is entirely pragmatic and is based on social convenience and rough justice. The imposition of liability is based on the employer s greater Page 10 of 18

11 ability to pay any damages and the fact that this involves loss spreading. The employer is the best insurer against liability and any extra cost to the employer can be passed on to the public in the form of higher prices. This may encourage accident prevention, as a firm which raises its prices too high will go out of business. The doctrine can be justified on a moral basis as the employee inflicts loss on the claimant while pursuing the employer s business interests. As the employer obtains a benefit from the employee s work, they should also bear the costs of accidents arising out of it. Thus Lord Millett in Dubai Aluminium Co Ltd v Salaam (2003) stated that vicarious liability is a loss distribution device based on grounds of social and economic policy. Its rationale limits the employer s liability to conduct occurring in the course of the employee s employment. The difficulty with all of these arguments is that they run counter to the main thrust of tort law and do not sit well with the case law on vicarious liability. If a form of strict liability is being imposed then why does the employee have to commit a tort before the employer is liable? Why not just impose strict liability on employers for all damage committed by their employees? Tort law is not in general designed to spread losses, so why pursue this objective in one part of the law of tort and not others? SECTION B Question 1 (a) Vicky s action In normal circumstances Vicky would have a relatively straightforward action against Will in negligence. As a driver Will owes Vicky a duty of care. As he is driving negligently there is a breach of duty and Vicky has suffered damage caused by the negligent driving. However, on the facts of this case Vicky may have a problem in establishing that she was owed a duty of care by Will because of the maxim ex turpi causa. The court may deny an action to a claimant who suffered damage while participating in a criminal activity. In negligence actions the court may find that no duty of care was owed in the circumstances. The defence may be referred to as illegality or ex turpi causa non oritur actio. This means that an action cannot be founded on a bad cause. The formulation of an appropriate test has caused serious problems for the court because of the wide range of circumstances in which the issue can arise. The mere fact that the claimant s conduct is illegal is not sufficient. There must be some connection between the illegality and the damage suffered by the claimant. The Supreme Court has laid down two rules. (Gray v Thames Trains (2009)) In its narrower form, the ex turpi rule is that you cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act. This is not relevant here. In its wider form, the rule is that a party cannot recover compensation for loss which had been suffered in consequence of his or her own criminal act. If the claimant suffers damage in the course of a joint criminal enterprise the court may apply an automatic bar to the claim or in some cases has set a much lower standard of care than would normally be applied. (Ashton v Turner (1981)) Page 11 of 18

12 A duty of care may not be owed to a person who suffers damage while participating in a criminal activity (Pitts v Hunt (1990)). The facts are similar to the case of Ashton v Turner where it was held at first instance that one of the grounds for denying the claimant an action was ex turpi causa. As Vicky and Will are involved in a joint criminal enterprise the court may deny a duty of care. The use of ex turpi causa in these circumstances has been criticized as it enables the court to evade the statutory exemption on applying volenti. If a duty of care was owed to Vicky in respect of Will s driving, are there any defences which Will could raise? The defence of volenti non fit injuria means that the defendant has to show that the claimant assumed the legal risk of injury in circumstances where the defendant s act would otherwise amount to negligence. The effect of the defence is that the claimant consents to exempt the defendant from a duty of care which would otherwise have been owed. In cases of someone getting into a car with a driver that they know is drunk the question is whether the court is prepared to imply an agreement that the claimant will run the risk at their own expense. In Dann v Hamilton (1939) the court was not prepared to imply such an agreement. The claimant had not consented to subsequent negligence on the part of the defendant. Vicky was aware that Will had been drinking and might not be capable of driving safely. Was she volenti by getting onto the bike with Will? There is no express agreement between the parties that Vicky will assume the risk of harm. Would the court imply such an agreement? From the cases it would appear not. (See Nettleship v Weston (1971); Owens v Brimmell(1977).) The claimant may be aware of the risk, but does not consent to the act of negligence which causes their injury. In Pitts v Hunt (1990) it was held by the Court of Appeal that the Road Traffic Act 1988 s 149, meant that volenti was not available where a passenger in a car sues the driver in circumstances where insurance is compulsory. Volenti would therefore seem to have no application here. Has Vicky been contributorily negligent? In order to establish this as a defence, the defendant must prove that the claimant failed to take reasonable care for their own safety and that this failure was a cause of their injuries. It appears that Vicky may have been contributorily negligent in getting onto a bike with a driver whom she knew was incapable and by failing to wear a helmet. (O Connell v Jackson(1972); Froom v Butcher (1976)). In either case the court will have a power to reduce Vicky s damages by the proportion for which she was responsible under the Law Reform (Contributory Negligence) Act (b) Edward s action Edward may be able to bring an action as Helens estate and/or as her dependant. Helen was owed a duty of care by Will as one road user to another and Will was in breach of that duty by driving negligently. The problem in the action by the dependant is establishing the chain of causation between the original action and the death. Will would have been liable for the original damage to Helens hand and arm as this was caused by his breach of duty and was not too remote. Page 12 of 18

13 Would Will be liable for Helens suicide? The courts seem to have abandoned public policy as a method of denying relief to the estate of a suicide (Reeves v Commissioner of Police for the Metropolis (1999)). The question would be whether the suicide was caused by the breach of duty using the but for test. This would appear to be satisfied on the facts. Would the suicide be too remote? It has been held that a suicide is not too remote (Corr v IBC Vehicles (2008)) if it is a reasonably foreseeable consequence. Edward should be advised that the estate s action is essentially the action which Helen would have had, had she lived. Will will be liable for all pecuniary and nonpecuniary losses between the breach of duty and the death. (Law Reform (Miscellaneous Provisions) Act 1934.) The award would depend on the court s finding as to causation and remoteness, as discussed above. Any loss of earnings, expenses and damages for pain, shock and suffering may be recovered. Damages would be recoverable for non-pecuniary losses in respect of Helen s inability to play the guitar. No damages are recoverable for the period after the death. Edward s action as a dependant is under the Fatal Accidents Act 1976 and is essentially for loss of a breadwinner. He would have to establish that the death was caused by the breach of duty. Edward, as a spouse is a dependant and has two heads of damage to claim for. He would be entitled to 11,800 for bereavement. He could also claim for loss of dependency. This would be the amount in monetary terms which he could have expected to receive from Helen had she lived. This is done by taking Helens net income and deducting the amount she would have spent on his own support had she lived. The appropriate multiplier is then applied and the resulting figure is the amount available for distribution to the dependants. Question 2 In order to establish whether there is any basis for an action in defamation there are three questions. First, is the statement slander or libel? Secondly, is the statement defamatory, refer to the claimant and published by the defendant. Finally, there any relevant defences? Libel is where a defamatory meaning is conveyed in a permanent form. Slander is where a temporary form such as speech is used. The old maxim was slander to the ear and libel to the eye. However, modern means of communication have made this distinction uncertain. There is no direct authority on tape recordings or dictaphones, so the case could be either slander or libel. The major distinction is that libel is actionable per se, without proof of damage. Slander requires proof of damage except in four cases. It would appear that the words used here would come within the exception in the Defamation Act 1952 s 2 (slander affecting official, professional or business reputation). Helen must prove that the words used were defamatory, that they referred to her and that they were published by the defendant. The most generally accepted definition of a defamatory statement is that of Winfield: Defamation is the publication of a statement which reflects on a person s reputation and tends to lower a person in the estimation of rightthinking members of society generally or tends to make them shun or avoid that person. Whether the words are defamatory or not is a question for the jury where one is used. If there is no jury the question is for the judge. Applying the test, the words ignorance, vanity and corruption would appear to be defamatory on the face of them, as would the words honesty and adherence to the law are Page 13 of 18

14 rarely adhered to. Words may be defamatory either on their natural meaning or by virtue of an innuendo, which is a hidden meaning which would be known to persons who heard or saw the words. For example the words honesty and adherence to the law are rarely adhered to may also be defamatory by virtue of innuendo. The relevant fact here is that Helen is a barrister and Alfred knows this. The words must refer to the claimant. Helen is not mentioned by name, but this is not necessary. Neither is it necessary for everyone who might hear the words to be able to identify her. The test is that laid down in Morgan v Odhams Press (1971). There need be no key or pointer in the words themselves and the claimant can introduce extrinsic evidence to show that he/she was referred to. In determining the impression on the mind of the reader, regard should be had to the character of the article and the class of reader likely to read it. Alfred s special knowledge would be relevant here. Publication identifies the defendants to the action. Peter has published to James and to Alfred. James has also published to Alfred. With regard to James he would appear to have a defence under the Defamation Act 1996 s 1 concerning responsibility for publication. The statutory defence applies to secondary publishers. These are people who are not primarily liable for the defamatory statement but simply play a passive role in passing the statement on. The defence is not available to a defendant who knew that their act involved or contributed to a publication defamatory of the claimant and will only be available if the defendant had taken all reasonable care and had no reason to think that their act would have had a defamatory effect. The publication by Peter to James may attract qualified privilege. The publication to Alfred will come under negligent publication. Had Helen opened the parcel there would have been no publication. Applying Huth v Huth (1915) and Theaker v Richardson (1962), in the latter case the court held that a person was responsible where they should have foreseen that a husband would open and read his wife s mail. On the facts this would be unlikely to be applied today but the test will still be whether Peter should have foreseen that Alfred would play the tape. In terms of defences, Peter may, using the procedure in the Defamation Act 1996, offer to make amends and if this is acceptable publish an apology to Helen and pay her an agreed sum in damages. If his offer is not accepted then he may rely on that offer as a defence. He may decide to withdraw his offer and plead justification or honest (fair) Comment as defences. If the statement is factual then justification is appropriate. If it is comment, then honest (fair) comment is the appropriate defence. For a plea of justification to succeed, there must be a final finding on the merits by a court on admissible evidence that the defamatory sting of the allegation complained of is objectively true as a matter of fact. The defendant does not have to prove that every word he published was true. He has to establish the essential or substantial truth of the sting of the libel. To prove the truth of some lesser defamatory meaning does not provide a complete defence. None of the statements in this scenario would appear to be factual. If the statements are opinion, then Honest (fair) Comment is the appropriate defence. The defendant has to prove the comment was: on a matter of public interest; comment rather than fact; based on true facts; honest and made without malice. Page 14 of 18

15 The key factor here would appear to be that the parties have previously had bad relations and malice may be relevant. Malice here means spite or an evil motive. Could Peter run a defence of old style common law qualified privilege? Under common law qualified privilege a person had to be under a duty to make a statement and the recipient had to be under a corresponding duty to receive it. Malice will defeat a defence of common law qualified privilege. Could Peter avoid a potential problem with malice by running a defence of public interest qualified privilege.? Peter run a In Kearns (2003) the Court of Appeal stated that the defence only applied to media defendants but this has been disapproved by the Privy Council in Seaga v Harper (2008). If the defence did apply then Peter would have to establish that the speech was on a subject of public interest, that inclusion of the statement was justified and that he satisfied the requirements of responsible journalism.; (Jameel v Wall Street Journal (2006)) Helen could apply for an injunction to restrain delivery of the speech but as the issue of reference to the claimant is likely to be raised it is unlikely to be granted. If the case is dealt with by a judge under the summary procedure then they may award Helen damages up to a statutory ceiling, order Peter to publish a statement to the effect that Helen s claim against him has been upheld and grant an injunction restraining Peter from delivering the speech. If the judge considers that there is no arguable defence or that Helen would not be adequately compensated under the terms of the summary procedure, then they will refer the case for a full trial with jury. Question 3 This question is concerned with nuisance, Rylands v Fletcher and negligence. In any question of this nature it is necessary to see where each claimant suffered their damage in order to assess which tort each claimant may be able to use. The question clearly points to nuisance, but there may be actions in negligence or Rylands v Fletcher as well. There are two types of nuisance, public and private. Public nuisance is primarily a criminal offence, but may give rise to an action in tort where the claimant has suffered special damage. The commonest example is probably interferences with the highway. In Attorney General v PYA Quarries (1957) the court defined public nuisance as one which materially affects the reasonable comfort and convenience of life of a class of Her Majesty s subjects. Whether the number of persons affected amounts to a class is a question of fact in each case. In order to sue in the tort of public nuisance, the claimant must prove that they suffered special damage. For this purpose, special damage means damage over and above that suffered by the class of persons affected. Private nuisance is a tort which deals with disputes between adjacent landowners. It involves drawing a balance between the right of one person to use their land in whatever way they wish and the right of their neighbour not to be interfered with. Private nuisance is an unlawful interference with a person s use or enjoyment of land, or some right over, or in connection with it. Whether the interference is unlawful is judged by a standard of reasonableness. In order to determine whether the interference is reasonable the court will look at factors such as the locality, duration of the interference, sensitivity of the claimant s property and malice. Only a person with an interest in land can sue in private nuisance (Hunter v Canary Wharf Ltd (1996)). The creator of the nuisance or the occupier of the land from which the nuisance emanates may be sued. Page 15 of 18

16 The company has not created the nuisance so any liability would stem from its occupation of land on which the nuisance occurred. Is an occupier liable for nuisances created by trespassers? To determine this, it is necessary to consider the law developed in the cases of Sedleigh-Denfield v O Callaghan (1940); Goldman v Hargrave (1966); Leakey v National Trust (1980). The principle that emerges from the cases is that an occupier is liable if they knew or should have known of such a nuisance and failed to take reasonable steps to abate the nuisance. The company is clearly aware of the potential nuisance. What amounts to reasonable steps? The test is similar to that for negligence with the exception that it is subjective rather than objective. The court will look at the cost/effort required to abate and will balance this against the occupier s financial/physical resources. On this basis there would appear to have been a breach of duty. Given that a state of affairs existed on the defendant s land which amounted to a potential nuisance, for what damage is the occupier liable? The test for remoteness of damage in nuisance is whether the kind of damage was reasonably foreseeable (Wagon Mound (No 2) (1967); Cambridge Water Co v Eastern Counties Leatherwork plc (1994)). However, in order to sue in private nuisance, a person must have a proprietary interest in the property affected (Hunter v Canary Wharf ( ) ). In order to sue in public nuisance, it is necessary to show that the claimant suffered special damage (Castle v St Augustine s Links (1922)). The pedestrian on the road does not have a sufficient interest and therefore has no action in private nuisance. Could they sue in public nuisance? The nuisance must affect a class of Her Majesty s subjects (Attorney-General v PYA Quarries). The class would be highway users. The claimant must have suffered special damage. The pedestrian satisfies this criterion as he was injured by the explosion. Personal injuries can be compensated by a public nuisance action. The pedestrian could also sue the company in negligence if he could establish that it owed him a duty of care. Would an action lie under Rylands v Fletcher? This tort imposes liability when a person has accumulated things on their land that are likely to do damage if they escape where there had been a non-natural user of land. Where industrial material is stored on land and there is an escape causing damage, the courts may use the test in Mason v Levy Auto Parts (1967) where the court looked at the nature of the area, the quantity of the goods and the way in which they were stored. As this virtually amounts to a negligence test, it is unlikely that the claimant would succeed in Rylands if they were to fail in negligence. However, in the Cambridge Water case the House of Lords stated (per curiam) that the storage of substantial quantities of chemicals on industrial premises is an almost classic case of non-natural use. It is doubtful whether a claim for personal injuries can now be made under Rylands as recent decisions of the House of Lords have confirmed that the purpose of this tort is to protect interests in land. (Hunter v Canary Wharf; Transco v Stockport (2004)). The correct view may be that if the claimant has an interest in land and there has been damage to the land then such damages are recoverable. This approach would rule out the pedestrian. An action in respect of damage to the car could not be brought in private nuisance (no interest) or in Rylands (no escape). A public nuisance action is doubtful and the best course of action would be to sue in negligence under the Occupiers Liability Act The claimant is a visitor to the premises and is Page 16 of 18

17 owed the common duty of care under s 2(2). The failure to extinguish the fire may amount to a breach of the duty (which includes protecting visitors property (s 1(3)(b)) and reasonably foreseeable damage has been caused. The owner of the prize ferrets may have an action in private nuisance as he has an interest in the land affected. The difficulty here would be with sensitivity. If normal animals would have been affected by the noise, then an action will lie for the full extent of the damage, even to sensitive property (Robinson v Kilvert (1889); McKinnon Industries v Walker(1951)). Question 4 This question is concerned with trespass to the person and the rule in Wilkinson v Downton (1897). Trespass to the person covers three torts, battery, assault and false imprisonment. A battery is the direct and intentional application of force to another person without that person s consent. The application of the force must be voluntary and intentional. The original force may be unintentional but a failure to rectify the situation may render it a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person. False imprisonment is the unlawful imposition of constraint on another s freedom of movement from a particular place. The tort does not require incarceration as such and can be committed by any unlawful detention. All three torts are actionable per se, in the sense that the claimant does not have to prove damage. The rule in Wilkinson v Downton was stated to be; the defendant has... wilfully done an act calculated to cause physical damage to the... plaintiff, (claimant) i.e., to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition, without more, appears to me to state a good cause of action, there being no justification alleged for the act. The action could not have been brought in trespass as there was no contact made or physical force used. This tort requires proof of damage and is based on the intentional causing of harm. With the ghost incident, two torts may have been committed. Could there be an action under the principle in Wilkinson v Downton? There has been an intentional act without lawful justification but has Ali suffered damage? Passing out may not in itself amount to actionable damage unless he suffered psychiatric damage or received physical injuries. Otherwise such an action would be blocked by the decision in Wainright v Home Office (2003) where the House of Lords was unwilling to extend the tort beyond claims for indirectly inflicted physical and recognised psychiatric injury. The concern was that to do so would be to open the floodgates to litigation from people who were the victims of things said with the intention of causing distress and humiliation. There may be an action in assault. The advantage of this tort is that it does not require damage (actionable per se). Was Ali placed in immediate fear of a battery? If so an assault has been committed. When Dravid carries Ali is there a battery? In Wilson v Pringle (1986) the Court of Appeal laid down a requirement of hostile intent for battery. Battery has always operated against the person who pushed unwanted attention on a person as well as against the violent person. The unwanted kiss is as actionable as the unwanted punch. If hostile is taken in its literal sense, then the practical joker Page 17 of 18

18 and the molester could be immune in this tort. The dividing line in Wilson v Pringle was drawn at what was generally acceptable in the ordinary conduct of daily life. However, what is perfectly acceptable to one person may be totally repugnant to another. The hostile intent requirement has not been well received by the courts (eg F v West Berkshire Health Authority (1989)) which seem to prefer an exception for everyday contact. If there is a requirement of hostile intent, then no battery is committed, as the act is performed for Ali s benefit. If hostility is not required for the tort then Dravid will need to find a defence. This could be implied consent or necessity. Does placing Ali in the room constitute false imprisonment? There is a rule that the restraint must be total in order for it to constitute false imprisonment. (Bird v Jones (1845)). The decision means that, if a person has a reasonable means of escape, the tort will not be committed. But, if the means of escape involves any danger, it is not reasonable to expect a person to take it. If the door to a room is locked but the room is at ground level and there is an open glazed door leading outside, this would not be false imprisonment. But it would not be reasonable to expect a person to climb from a second-floor window. Here, as there is initially a means of escape through an unlocked door, no false imprisonment is committed at this point. When Iqbal locks the door, does he commit false imprisonment? He is unaware of anyone s presence in the room and cannot have intended to commit the tort. Was he negligent in not checking and can the tort be committed negligently? Recent case law on state of mind in trespass has concentrated on battery, but it appears that the tort can only be committed intentionally. If this is the case in false imprisonment, the tort would appear not to have been committed. Does Iqbal commit the tort when he refuses to open the door? This raises the question of whether false imprisonment can be committed by an omission. (Herd v Weardale (1915).) It would appear that, as trespass to the person is a tort based on intention, that it cannot be committed by an omission. (Iqbal v Prison Officers Association (2009); Austin v Commissioner of Police of the Metropolis (2009)) Does Iqbal commit a battery when he pours water on Ali? Again consider the question of hostility. If this element is not required then Iqbal would appear to have committed a battery. He could defend on the grounds of either implied consent or necessity. Ali s punch would appear not to be a battery as he does not intend to do the act. His action is similar to an epileptic striking a person during a fit. In order to constitute a battery the act must be intentional. Page 18 of 18