Adjustment of Public Liability Claims

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1 Adjustment of Public Liability Claims THIS MATERIAL IS A DRAFT REVISION OF MATERIAL ORIGINALLY PUBLISHED BY THE CHARTERED INSTITUTE OF LOSS ADJUSTERS IN THE 1980 S WHICH WAS SUBSTANTIALLY UPDATED IN THE MIDDLE 1990 S TO INCORPORATE RELEVANT LAW AND MARKET PRACTICE PREVAILING AT THAT TIME. DUE TO DELAY IN PUBLICATION IT IS NOW BEING MADE AVAILABLE TO MEMBERS OF CILA FOR STUDYING AND RESEARCH. CILA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE NATURE OR ACCURACY OF ANY OF THIS MATERIAL. ALL WARRANTIES WHETHER THEY BE IMPLIED BY STATUTE OR OTHERWISE ARE EXPRESSLY EXCLUDED INSOFAR AS IT IS LEGAL TO DO SO. THE MATERIAL SHOULD NOT BE USED FOR ANY LEGAL PROCEEDINGS FOR RECOVERY OR IN LITIGATION AND THOSE USING THE INFORMATION FOR ANY PURPOSE SHOULD CHECK THE CURRENT POSITION WITH REGARD TO BOTH LAW AND MARKET PRACTICE. CILA CANNOT ACCEPT LIABILITY FOR THE ACCURACY OF THE CONTENT OR SCOPE OF THIS MATERIAL AND ITS USE IS DEEMED TO BE AN ACCEPTANCE OF THIS DISCLAIMER.

2 Contents 1 General principles of liability 1 2 General defences 8 3 Parties to an action 17 4 Remedies 32 5 Negligence 57 6 Breach of statutory duty 72 7 Strict liability 81 8 Nuisance and trespass 93 9 Hotel proprietors liabilities Liability in respect of animals Fire; pollution; statutory undertakings Miscellaneous liabilities Exemption clauses; Unfair contract terms; Legislation; Misrepresentation act Public liability policy cover Accountancy principles Product liability: sale of goods; liablity in contract; liability in tort Product liability policy cover Legal procedure The public liability and complementary insurance clauses of construction contracts 258

3 CHAPTER 1 General principles of liability The liabilities with which the policies described later in this book are concerned may arise in tort, in contract or under statute, and are illustrated by the following diagram: } } (1) Negligence The (2) Nuisance main Common (3) Absolute or strict liability torts law (4) Trespass (5) Liability under contract (6) Breach of statutory duty While this is regarded by legal authors as a tort and the liability here can be strict in that it can lie in some circumstances even though the conduct of the wrongdoer is neither intentional nor negligent, it is placed last in order to distinguish it from the common law for the purposes of this book } law Civil as distinct from criminal The difference between a crime and a civil wrong rests on whether criminal or civil proceedings follow an act. In the latter event the act is a civil wrong. Sometimes the act is capable of being followed by both civil and criminal proceedings; then it is both a civil wrong and a crime. The terms used are different. In civil proceedings a plaintiff sues a defendant ( pursuer and defender in Scotland) and success results in judgment for the plaintiff. In criminal proceedings a prosecutor prosecutes a defendant and if the prosecution is successful the result is a conviction. Another difference between a crime and a civil wrong is in the burden of proof. The burden which is on the prosecution in the case of a crime is proof beyond reasonable doubt, whereas in the case of a civil wrong the burden on the plaintiff is to adduce sufficient evidence of fact to show on the balance of probability that the defendant was in the wrong. This difference was illustrated in the case 1

4 Adjustment of public liability claims of T. D. Radcliffe & Co. v National Farmers Union Mutual Insurance Society (1991), where the plaintiff s principal shareholder and director was acquitted of arson, but his insurers won their civil case when they refused to pay the resultant claim. A tort is distinguished from a crime in that the penalty for a crime is normally imprisonment or a fine intended as a punishment rather than compensation. However, the distinction tends to be somewhat blurred by the fact that the criminal courts have in recent years been given wide powers to make compensation orders. The term common law has various meanings. In this book it means the law that is not the result of legislation, ie the law created by the custom of the people and the decisions of the courts. While the latter is sometimes called case law, there are case law decisions on breaches of a statute which has been defined in the above diagram as exclusive of the common law, from which it will be realised that it is impossible to explain the law without defining it as one proceeds. DEFINITION OF TORT The law of tort is concerned with the rights which one person has against other persons generally. He has the right to be protected against various forms of injury and damage to his person, to his property and financial interests and to his reputation. When he has suffered injury or damage of any kind, he will usually claim a monetary award, known as damages, although he may ask the court to grant an injunction; that is, an order of the court that the defendant should desist from the conduct complained of, or should make specific restitution, in other words return property to the person who has suffered its loss. There is, however, no general rule that a person who has suffered loss at the hands of another is entitled to compensation. There are many occasions on which the rule damnum sine injuria loss without a legal right to compensation applies. For example, the owner of a small shop who suffers a loss of business, perhaps bankruptcy, as a result of the activities of a supermarket which can afford to engage in a price-cutting war has no redress. It is necessary therefore to describe the circumstances in which the law will provide redress for a person whose interests have been adversely affected. The classic definition of tortious liability is that of the late Professor Winfield: Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. This definition illustrates, inter alia, the distinction between liability in tort and liability in contract. Tort is concerned with duties laid down by law and owed to persons generally. The law of contract, on the other hand as will be seen later in this chapter is concerned with rights and liabilities established by agreement between two or more parties; only the parties to the contract can 2

5 General principles of liability have rights under it, and generally no third party can either suffer or benefit directly from the existence of a contract. There can, however, be overlap between contract and tort. For example, if a railway passenger is injured as the result of the negligence of railway staff, he may treat the matter as the tort of negligence, or alternatively sue for breach of the implied condition in the contract to carry him safely to his destination. The reference to unliquidated damages in Winfield s definition means that the amount of damages is not a fixed sum as would be the case if A sued B for a debt of, say, 1,000 but is at the discretion of the court. Winfield does not refer to other remedies, such as injunctions, because a person is never entitled to such a remedy; a plaintiff can ask for an injunction, but he can never claim to be entitled to it, whereas, assuming the defendant to be liable, the plaintiff can demand damages. In practice, the courts provide whatever remedy is most suitable in the circumstances. THE BASIS OF LIABILITY Winfield s definition of tortious liability does not help in deciding what duties a person owes towards other persons generally. For many years, there has been argument about the basis of liability in tort and it is fruitless to enter into this argument here. As a generalisation, however, it may be said that tortious liability is based on fault; that is, that a person is liable if he has deliberately, recklessly or negligently caused harm to the person, property or reputation of another. This generalisation must, however, be qualified, particularly to the extent that there are now many cases where liability in tort is strict; that is, a person is liable whether or not he has been at fault. In most torts, it is necessary for the plaintiff to prove that he has suffered harm as a result of the defendant s act or omission but in some such as trespass harm need not be proved. In the latter there is said to be injuria sine damno a right of action without any harm having been suffered. If there has been no harm, nominal damages only will be awarded. The element of deliberateness, or intention, in a tort does not require further discussion here as its meaning is obvious. It may be mentioned, however, that it is in any event only of academic interest in the context of this book as a public liability policy never protects the insured against the consequences of his own deliberate act. There is recklessness when a person acts deliberately, not intending a particular result, but knowing that there is a danger that the result may occur. For example, the manufacturer of a drug would be acting recklessly if he suspected that the drug would have harmful side-effects and did not carry out sufficient tests and take other appropriate action to ensure that the drug would be reasonably safe for users of it. Perhaps the most important concept in tort is that of negligence. As will be seen in Chapter 5, negligence is itself a tort, but it is also often an element in 3

6 Adjustment of public liability claims the commission of other torts. Negligence denotes inadvertence; the defendant does not act intentionally, and so does not desire the consequences of his act, but his lack of care causes damage, and for this he is responsible. The classic definition of negligence is that of Alderson B in Blyth v Birmingham Waterworks Co. (1856): Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The test of negligence is objective rather than subjective. A person is judged, not by what he himself considers reasonable nor by what may be reasonable in his particular circumstances, but by what a reasonable man would do in particular circumstances. In the limited circumstances to which Part I of the Unfair Contract Terms Act 1977 applies, there is a statutory definition of negligence. Under the terms of the Act, negligence is the breach: (a) of any obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; (b) of any common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); (c) of the common duty of care imposed by the Occupiers Liability Act 1957 or the Occupiers Liability Act (Northern Ireland) This is wider than the duty quoted above as it includes not only obligations imposed by common law, but also some duties assumed under contract or imposed by statute. The concept of a reasonable man occurs frequently in the law of tort, not only in connection with negligence. Reasonable conduct is that of an ordinary person in any given circumstances and it includes obedience to any rule which the law lays down to govern his conduct. Thus, a reasonable man does not drive his car at a reckless speed in a built-up area because that is not what the ordinary man does, neither does he drive in excess of speed limits laid down by law, whether or not exceeding the speed limit would amount to recklessness. The concept may, however, be modified in some circumstances. For example, if one is considering the conduct of a surgeon in carrying out an operation, the test against which his conduct is judged is that of the reasonably competent surgeon. The same applies to all other professional people. This was the decision in Bolam v Friern Hospital Management Committee (1957), approved by the House of Lords in Whitehouse v Jordan (1981). It is apparent that architects, consultant structural engineers and quantity surveyors often find themselves saddled with the responsibility of inspecting the contractors insurances on behalf of their client, who commissions the work. This is particularly so in the case of the JCT and ICE contracts. This comes about 4

7 General principles of liability not so much by reason of a contractual term, although it can happen that way, but more frequently because the private employer (as distinct from the property developer or local authority) looks to his construction professional to do this work for him. Because this professional knows more about the conventional policies called for by the construction contract these are the contractors all risks (CAR), public liability (PL) and employers liability (EL) policies than his private client does, he finds it difficult to avoid this pitfall. It is a pitfall because normally the law does not sympathise with a volunteer. Thus in the event of the employer who commissioned the work suffering a loss, which may not be met by the contractors insurance (in accordance with the contract), the construction professional may find himself liable, or at least facing a claim, to meet the loss which should have been insured. The test the courts apply would be the standard applicable to an insurance professional, which the construction professional is not. See BL Holdings v Wood (1979), and the commentary in the Building Law Reports concerning the judgment of Gibson J in the BL Holdings case. It reads: The decision seems to us to illustrate the general proposition that a professional man who takes on a particular task may be judged by the standard applicable to a reasonably competent man versed in work of that category (unless by agreement with his client he is not to be so judged). Thus in many cases the best advice that a person in such a position can give is that his client should seek better and more qualified advice. (BLR, vol 10, p 50) The Court of Appeal did not disapprove of the statements of principle of Gibson J, although they decided the defendants, on the particular facts (a point of law) were not negligent in not specifically advising their clients of the need to obtain legal advice. A person may have been in no way at fault, and the injury or damage may have been caused despite the fact that he was entirely innocent. In such cases the general rule is that, since there has been no fault, there is no liability; but in some cases liability attaches without fault there is said to be strict liability. Strict liability will be considered more fully elsewhere but it may be noted here that it is sometimes mis-called absolute liability. It is important to avoid this term, as the word absolute suggests that in such cases the defendant is always liable. This is not the case; even where liability is strict, certain defences are available. MOTIVE It is convenient to mention here that, as a general rule, motive is not relevant to the law of tort. If a person performs an unlawful act, he is not relieved of liability by the fact that he did the act with the best of intentions; and, conversely, if he 5

8 Adjustment of public liability claims performs a lawful act it is irrelevant that he did so with evil intent. The leading case regarding motive in the law of tort is Bradford Corporation v Pickles (1895). The corporation was involved in providing a water supply scheme and wished to purchase part of the defendant s land, but refused to do so because he was asking an exorbitant price. The defendant then sank a shaft under his land with the deliberate intention which was successful of diverting and polluting the corporation s supply of water. It was held that the defendant had committed no tort. Lord MacNaghten said: It is the act, not the motive for the act, that must be regarded. If the act, apart from the motive, gives rise merely to damage without legal injury (damnum sine injuria), the motive, however reprehensible it may be, will not support that claim. There are, however, some exceptional cases, which will be noted later, where motive is relevant. The decision in the Bradford Corporation case can be put another way; namely, the plaintiffs had no rights in respect of percolating water, and the action necessarily failed, regardless of whether it satisfied any requirement of reasonableness. See the case of Langbrook Properties Ltd v Surrey County Council and Others (1969), where the defendants pumped out water from their excavations, thereby extracting percolating water from the plaintiff s nearby land and causing subsidence damage to the plaintiff s buildings. It was held that there was no nuisance. TORT AND PUBLIC LIABILITY INSURANCE The law of tort covers a vast field, but much of it need not be considered in the present context. For this there are two reasons. Firstly, public liability policies are concerned only with events which occur accidentally (although the word accident is not always used in policy wordings) and it is not therefore necessary to consider matters which occur deliberately. Secondly, policies are basically concerned with torts which result in personal injury or damage to property, and therefore torts such as defamation which do not have such consequences can be ignored. CONTRACT Anson defines a contract as: An agreement enforceable at law made between two or more persons by which rights are acquired by one or more to acts or forebearances on the part of the other or others. Liability assumed under contract is usually excluded from standard public liability policy wordings except where the liability would have attached even in the absence of agreement. It is, however, quite common for the exclusion to be deleted and for contractual liability to be covered. The essentials of a contract are: (a) There must be an offer made by one party, and this offer must be accepted unconditionally by the other. 6

9 General principles of liability (b) Unless the contract is under seal, consideration must be given by both parties to the contract. Consideration was defined in Currie v Misa (1875) as: Some right, interest, profit or benefit accruing to one party, or some forebearance, detriment, loss or responsibility given, suffered or undertaken by the other. (c) There must be an intention to create a legal relationship. Some agreements, such as the majority of those made between members of a family and agreements of a purely social nature, are not binding but commercial agreements generally are assumed to be intended to create legal obligations unless there is specific provision to the contrary. (d) The parties to the agreement must have legal capacity to enter into contracts. Most persons of full age have such capacity. In some instances for example, minors the freedom to enter into contracts is restricted. (e) Any formalities required by law must be complied with. Certain contracts, for example, must be in writing and others must be evidenced by writing. The general rule is that people are free to enter, or not to enter, into contracts as they please, so that any contractual obligations they may be under are voluntarily assumed; but sometimes, as in the case of compulsory motor insurance, persons may be obliged to enter into contracts by statutory requirement. BREACH OF STATUTORY DUTY Acts of Parliament can impose tortious liability; examples are the Occupiers Liability Acts of 1957 and 1984, and the Consumer Protection Act Breach of the duties which these statutes impose will normally result in an action for damages. These statutes will be considered in the chapters which are more relevant to them. Some statutes impose regulatory duties on employers which are backed by criminal sanctions. If the intention of these statutes is to protect employees, for example, claims can be made in civil proceedings. However, this book is not intended to cover claims for personal injuries. Statutory authority as a defence is dealt with in the next chapter. 7

10 CHAPTER 2 General defences Aperson against whom an action is brought may have a valid defence. Some defences relate only to particular circumstances and will be dealt with in the appropriate chapters. There are, however, a number of general defences which are conveniently dealt with here. CONTRIBUTORY NEGLIGENCE Strictly, contributory negligence is not now a defence but it is convenient to treat it under this heading because it is of wide application. At common law, contributory negligence was, until 1945, a complete defence; if a defendant could show that a plaintiff had, to even the slightest degree, been himself responsible for the loss or damage which he had suffered, the defendant was not liable. In practice, the courts often ignored minor contributory negligence in order to provide the plaintiff with a remedy, but the law was nevertheless unsatisfactory. In the interests of equity, the law was altered by the Law Reform (Contributory Negligence) Act 1945, which provides as follows: Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just or equitable having regard to the claimant s share in the responsibility for the damage Where the damages are reduced as a result of contributory negligence, the court is required to assess the full amount of damages, and then indicate the percentage by which they are to be reduced as a result of the contributory negligence. One reason for this is that a possible ground of appeal lies in the assertion that the percentage reduction is either too great or too small. For example, 8

11 General defences contributory negligence may be assessed at 50 per cent by the trial judge, but reduced to 25 per cent on appeal. It may be added that there is in truth no precise manner in which the courts can express degrees of blame in percentage terms it is impossible to prove, for example, that a person was 25 per cent, rather than 20 per cent or 30 per cent, to blame. The convention has grown that minor contributory negligence is to be ignored, and therefore that the courts will rarely assess the degree of contributory negligence as 10 per cent or less. What can be said is that the present law works well in practice and is generally accepted to be a great improvement on the pre-1945 common law position. An excellent description of contributory negligence is to be found in the judgment of Denning LJ; in Jones v Livox Quarries Ltd (1952): A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself, and in his reckonings he must take into account the possibility of others being careless. Contributory negligence may affect not only the amount of damages awarded but also the award of costs. In general, a successful party is entitled to recover his costs from the unsuccessful party but the matter is always at the discretion of the court. Where there is a finding of contributory negligence on the part of the plaintiff, he may be awarded costs reduced in proportion to his degree of blame. This is an important practical consideration because sometimes the amount of costs is as high as, or even higher than, the amount of damages awarded. What may amount to contributory negligence in some circumstances may not in others. In Harrold v Watney (1898), a fence bordering the defendant s land was in a poor state of repair and so constituted a nuisance. The plaintiff was a 4-year old child who climbed the fence, which fell and injured him. It was held that the child was not guilty of contributory negligence, although there might have been a different finding had the plaintiff been an adult. The Law Commission s publication No 219 dated 9 December 1993 entitled Contributory Negligence as a Defence in Contract refers to the categorisation of contractual duties adopted by Hobhouse J in Forsikringsaktieselskapet Vesta v Butcher and Others (1986), and affirmed by the House of Lords in These categories are where the defendant s liability: (1) arises from a contractual provision which does not depend on negligence on his part; (2) arises from a contractual obligation of care which does not correspond to a tortious duty of care which would exist independently of contract; (3) in contract is the same as his liability in the tort of negligence independently of the existence of any contract. 9

12 Adjustment of public liability claims The Law Commission s commentary then concludes that the 1945 Act only applies to actions in contract which come within category (3). Also the commission considered that although the law might have developed so as to allow apportionment in a wider category of cases, it is now clear on the authorities that such development is not possible under the 1945 Act. Barclays Bank plc v Fairclough Building Ltd (1994), concerns category (1), indicating contributory negligence is inapplicable. In Pitts v Hunt (1990) the trial judge found the plaintiff was 100 per cent contributorily negligent. The Appeal Court disagreed as the wording of section 1 of the 1945 Act, quoted earlier, presupposed that a person must suffer damage as a result partly of his own fault and partly of the fault of some other person. Further provisions in the Act presupposed that the person suffering the damage would recover some damages. This seems to have disposed of the 100 per cent contributory negligence defence and being an appellant judgment is binding on lower courts. Incidentally, the injured plaintiff lost his case as he was encouraging another to commit offences which, if the death of anyone else had occurred, would have amounted to manslaughter. The maxim ex turpi causa non oritur actio (no right of action arises from a base cause) applied. VOLENTI NON FIT INJURIA The defence of volenti non fit injuria (a person who willingly assumes a risk has no right of action) or assumption of risk, as it is sometimes called, is that a person who knows of a risk and willingly consents to run that risk has no cause of action if he is injured as a result. Thus a footballer, by agreeing to participate in a game, impliedly undertakes to run the risk of injury which is necessarily incidental to playing (but not the risk that he may be deliberately injured by an opponent or by the referee continuously failing to apply the rules of the game to prevent injury). Similarly, a spectator at a cricket match knowingly undertakes the risk that he may be injured by a cricket ball and by attending the match may be taken to have agreed to run the risk. In Cutler v United Dairies Ltd (1933), the defendants horse and van were left while the roundsman delivered milk. The horse was startled by a noise and bolted. The roundsman followed and called for help, and the plaintiff, who passed through a fence into a meadow, was asked by the roundsman to hold the horse s head. He was injured in attempting to do this and it was held that he had no cause of action because he had voluntarily incurred the risk which caused the accident. The defence applies in respect of damage to property as well as personal injury, and when damage to property is involved it is perhaps more properly called leave and licence rather than volenti non fit injuria. There are a number of limitations to this defence. For example, there are many situations where a person may know of a risk, but cannot be said to have run the risk voluntarily. Three examples follow. 10

13 General defences The first comes from a series of cases in which the courts have held that an employee may know of a risk but cannot be said to have willingly run it if the alternative might have been to lose his employment. In Smith v Baker (1891), the plaintiff was employed to drill holes in rock. To the knowledge of his employer, some of his fellow-workers operated a crane in which stones were swung over the plaintiff s head, although he had complained of this practice. The plaintiff was injured when a stone fell on him and it was held that he was entitled to succeed in an action which he brought against his employer; he knew of the risk, but he had not consented. Giving judgment, Lord Herschell said: where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has been done to him, even though the cause from which he suffers might give to others a right of action [but] where a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer, does the mere continuance in service, with knowledge of the risk, preclude the employed, if he suffered from such negligence, from recovering in respect of his employer s breach of duty? I cannot assent to the proposition that the maxim volenti non fit injuria applies to such a case, and that the employer can invoke its aid to protect him from liability for his wrong. It is otherwise if the employment by its nature involves obvious risks and the employee is engaged on the footing that he will run the risks and be paid accordingly; a National Hunt jockey, for example, cannot complain if he is injured from a fall from his horse as the risk is part and parcel of his normal obligation. The second example illustrates the legal principle that a person cannot be said to be willing if the law imposes a duty to run a risk. In Haynes v Harwood (1935), a horse and cart were left unattended in a busy street. The horse bolted and the plaintiff, a policeman, was injured in his attempts to catch the horse. It was held that he was entitled to succeed in an action against the owner of the horse, as in the circumstances he had a legal duty to act as he did to protect the public from personal injury. In Hyett v Great Western Railway (1948), it was held that the same principle applied where a person acts in order to protect property. The third example indicates that the duty imposed on a person may be a mere moral duty, not a legal duty as in Haynes v Harwood. In Chadwick v British Railways Board (1967), a railway accident was caused by the negligence of the defendants. The husband of the plaintiff spent many hours assisting in rescue operations, as a result of which he suffered severe nervous shock. The defendants were held liable despite the fact that the plaintiff s husband was under no legal obligation to help with the rescue work. 11

14 Adjustment of public liability claims In Morris v Murray (1990), the plaintiff after a drinking session with the defendant agreed to go on a flight. The latter had a pilot s licence and kept a light aircraft at a local flying club. Soon after take-off the aircraft stalled and crashed, killing the defendant. The autopsy showed that the defendant had consumed more than three times the permitted limit for a car driver. Thus the plaintiff had implicitly waived his rights in the event of injuries which he had received consequent on the deceased s failure to fly with reasonable care. The defence of volenti applied. Incidentally, Pitts s case (mentioned earlier) was similar to Morris s case in that both plaintiff and defendant were drunk at the time of the accident. The former was a motor cycle accident, and it should be noted that the defence of volenti is not open to defendants in motor claims in view of section 149 of the Road Traffic Act A variation of the volenti rule is commonly found in contract exemption clauses, where it can be shown by the terms of the contract that the plaintiff has undertaken to bear a risk; for example, where a person consents to be taken on a car journey at his own risk. The scope of such exemption clauses is, however, strictly limited by the Unfair Contract Terms Act 1977, which, inter alia, provides that where a contract term or notice purports to exclude or restrict liability for negligence a person s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk. SELF-DEFENCE OR NECESSITY A person is entitled to defend himself or members of his family and he may also take any necessary action to protect his land and personal property. In every instance, the harm which he is entitled to cause in defence must be reasonable in relation to the harm which he would otherwise suffer. For example, he may erect around his property a high wall, to climb which would be dangerous, but he must not lay some hidden and dangerous trap with the deliberate intention of harming would-be trespassers. The law regarding the duties owed to trespassers is now governed by the Occupiers Liability Act See Chapter 6. In Revill v Newberry (1995), the elderly defendent was asleep in his allotment shed when he was awoken by the plaintiff trying to break in. The defendant, assuming that the intruder intended to steal from the shed poked his shotgun through a hole in the door and fired, injuring the plaintiff. The defendant pleaded ex turpi cause. The Court of Appeal held that such a defence was not available, and that the force used by the defendant was excessive in the circumstances. Some duty to trespassers was owed and thus ex turpi did not apply. The plaintiff was found to be two-thirds to blame for his injuries. The defendant used greater violence than was necessary for his self defence. In Cope v Sharp (1992), the defendant, a gamekeeper, deliberately burned heather on land adjoining that belonging to his employer in order to create a fire-break and so prevent the spread of a fire which had started on the adjoining land to his employer s land. Despite the fact that the fire stopped before it 12

15 General defences reached the fire-break, the defendant was held not liable for trespass to land as in all the circumstances he had acted reasonably. INEVITABLE ACCIDENT Inevitable accident has been defined as an accident which is not avoidable by any such precautions as a reasonable man, doing such an action then and there, could be expected to take. For example: (a) A person can be expected to take precautions against damage caused by heavy rain, but he cannot take precautions against a building being struck by lightning. (b) A motorist should not drive his car if he knows that he has some physical infirmity which makes it dangerous for him to drive; but if he has a sudden heart attack and dies at the wheel of his car, as a result of which the car goes out of control and injures a pedestrian, his estate will not be liable in damages to the injured pedestrian. The definition of inevitable accident therefore means that a defendant will escape liability if he can prove that the accident occurred despite the fact that he had taken all reasonable precautions. In an ordinary action for negligence the defence is really irrelevant, as it is for the plaintiff to prove that the defendant had not taken reasonable care, and not vice versa. As Greene MR said in Browne v De Luxe Car Services (1941): I do not find myself assisted by considering the meaning of the phrase inevitable accident. I prefer to put the problem in a more simple way, namely, has it been established that the driver of the car was guilty of negligence? But if the evidence reveals a prima facie case of negligence against the defendant, he will be able to use the defence of inevitable accident. This applies particularly to those cases where the rule res ipsa loquitur applies. (See Chapter 5 for an explanation of res ipsa loquitur.) At the other extreme, where liability is strict, as under the rule in Rylands v Fletcher (1868) (see Chapter 7), inevitable accident is not permitted as a defence. The defence is therefore of strictly limited application. ACT OF GOD The defence of Act of God, or vis major, is somewhat similar to that of inevitable accident. It was defined in Greenock Corporation v Caledonian Railway Co. (1917), as circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility, and includes such occurrences as winds, storm, lightning and earthquake. A good example was in Nichols v Marsland (1876). The defendant had on her land several artificial lakes. On one occasion there was exceptionally heavy rainfall, 13

16 Adjustment of public liability claims greater and more violent than any within the memory of witnesses, which burst the banks of the artificial lakes so that water escaped and carried away four bridges belonging to the county council. The action brought by the council failed because, it was held, the defendant could not have been expected to take precautions against something which she could not reasonably have been expected to anticipate, and she had therefore not been negligent. In similar circumstances the House of Lords came to a contrary decision in Greenock. The essential difference between inevitable accident and Act of God is that the former involves some human agency, whereas the latter involves natural forces alone without human intervention. STATUTORY AUTHORITY It is a defence that the defendant had statutory authority to perform some act which, in the absence of such authority, would constitute a tort. For example, it will be seen in Chapter 8 that continual excessive noise or vibrations which cause inconvenience or discomfort to the occupier of land adjoining one s own in general constitutes the tort of nuisance. At common law the operation of what are in modern society essential services, such as railways and airports, would always involve the possibility of actions for nuisance. The operators of such services therefore are, by the statutes which bring them into existence, permitted to perform acts which, in the absence of statutory authority, would constitute torts. They only retain their immunity, however, if they keep within their authorised limits so that, for example, an aircraft may constitute a nuisance if it is flying lower or faster than it is permitted to do in the circumstances. Sometimes statutory authority is absolute, in which case there is a complete defence although even here, if the defendant has alternative courses of action, he must choose the course which will cause least harm to others. In other cases, statutory authority is given conditionally, the condition being that the persons to whom it is given do not interfere with private rights. In this latter case, statutory authority is not a defence. Whether the authority is absolute or conditional depends on the precise wording of the statute. The defence of statutory authority is of particular importance in connection with the activities of public utilities such as gas, water and electricity undertakings, and is considered in greater detail in Chapter 12. MISTAKE Mistake of law is no defence to an action, and mistake of fact is not in general a defence. To the general rule there are a number of exceptions, which depend on whether the defendant acted reasonably or not. Where there is a question of what a reasonable man would do, the courts may well hold that a person has acted reasonably although he has made a mistake. For example, an employer 14

17 General defences is usually liable for the actions of his employee acting within the scope of his authority, but if by mistake the employee does something which is outside the scope of his authority, the employer will not be liable. LIMITATION It is a defence that an action is statute barred; that is, that the period in which the law allows the plaintiff to bring his action has expired. The position is governed by the Limitation Act 1980, which is extremely complicated, but it is not necessary here to discuss the rules relating to actions for personal injury, which give rise to most of the complications. So far as damage to property is concerned, the general rule is that an action in tort must be commenced within six years from the date when the cause of action accrued. The following points should, however, be noted. A shorter period of three years applies to actions for damages arising out of negligence, nuisance or breach of duty, where the damages claimed consist of or include damages in respect of death or personal injury. If, therefore, claims for personal injury and damage to property are brought together, the three-year period applies to both. An action for contribution against a joint tortfeasor (see Chapter 3) must be started within two years. A person who is under a disability cannot bring an action. Persons under a disability are minors that is, persons under the age of 18 and persons of unsound mind. As such persons cannot sue for damages, time does not begin to run against them until the disability ceases. Where the action is based on fraud on the part of the defendant, time does not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. As mentioned above, the Act provides that time runs from the date on which the cause of action accrued, and in some cases the interpretation of this phrase causes difficulty, particularly when damage does not become apparent until some time after it has been caused. Thus in Pirelli General Cable Works v Oscar Faber & Partners (1982), the House of Lords decided that a cause of action accrued when the physical damage occurred and not when it was or could have been discovered. The results of this decision were said to be potentially unfair to a plaintiff, in that the limitation period was capable of running and becoming barred before that person could appreciate that a cause of action existed. To improve the position the Latent Damage Act 1986 came into force on 18 September of that year. It does not apply to personal injuries. The primary limitation period in a negligence claim (note that the Act is not confined to the construction industry) remains at six years, running from the date of the damage came into existence. The main latent damage difficulty for plaintiffs is met by the introduction of a three-year period running from the date of discovery of the damage or reasonable discoverability of it. 15

18 Adjustment of public liability claims Sections were added to the Limitation Act 1980 by the 1986 Act. They define this discovery date as the earliest date on which any potential plaintiff first had knowledge of the material facts about the damage and require (a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence and knowledge of (b) the identity of the defendant and (c) if the act or omission was that of a person other than the defendant the identity of that person and the additional facts supporting the bringing of an action against the defendant. Also, material facts about the damage are such facts as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. A person s knowledge is to include that which he might reasonably have been expected to acquire from facts observable or ascertainable personally, or with the appropriate expert advice. The personal injury case of Fowell v NCB and Others (1986), helps in deciding: (a) what a plaintiff is reasonably entitled to assume about the identity of the defendant; (b) what is meant by expert advice in similar subsections; and (c) on whom the burden of proof falls in respect of knowledge affecting the three-year extension period of limitation. There is an overriding longstop which operates to bar all negligence claims involving latent defects or damage that are brought more than 15 years from the date of the defendant s breach of duty. To summarise the position, a negligence claim for damages is statute barred: (1) fifteen years from the breach of duty if this expires first; or (2) six years from the occurrence of the damage or three years from its discoverability, whichever is the later. Note that all three periods (15, 6, and 3 years) start from different events. Special considerations regarding limitation also apply to nuisance. As will be seen in Chapter 8, nuisances are usually of a continuing nature and a new cause of action therefore arises each time the nuisance is committed. If the nuisance has been in existence longer than the limitation period, the plaintiff can recover for such portions of the nuisance as lie within the limitation period. Finally, a cause of action for breach of a simple contract expires six years after the breach. 16

19 CHAPTER 3 Parties to an action The general rule is that any person is entitled to bring a civil action and any person is liable to be sued. It is necessary in this chapter, therefore, to consider only the unusual cases. THE CROWN The Queen has two capacities. Firstly, she is an individual capable of owning and disposing of her own property. In this capacity she is immune from the law, but this immunity does not extend to any of the members of her family, who are all subject to the law in the same way as are other members of the public. Secondly, the monarch is also the present representative of a corporation sole, which has perpetual existence irrespective of who actually occupies the throne at any particular moment. In this corporate capacity, the Queen is normally referred to as the Crown, an expression which is extended to all those who act under her direct authority, such as the armed services, the government, government departments and civil servants. The expression does not include the nationalised industries or such organisations as the British Broadcasting Corporation, which are separate legal entities created by Parliament. By the terms of the Crown Proceedings Act 1947, the Crown is liable in tort as if it were a natural person of full age and capacity. It is responsible, inter alia: (a) in respect of torts committed by its servants or agents where the servant or agent would also be liable; (b) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property; (c) in respect of breaches of statutory duties expressly binding the Crown as well as other persons. An action against the Crown may be begun in either the High Court or a county court, as appropriate. The proceedings are instituted against the relevant 17

20 Adjustment of public liability claims government department or, if they are not associated with a particular government department, against the Attorney-General. The Crown differs from other litigants in that there is no method of enforcing judgment against it. This is, however, of academic interest only as the Crown always abides strictly by the decisions of the courts, subject to the same rights of appeal as are available to citizens generally. The position of the Post Office is somewhat anomalous. It was once a department of government but it is now a statutory corporation, and under the Post Office Act 1969 it is immune from liability in tort. Neither can it be sued in contract because no contract exists between the Post Office and the sender of a postal packet. The Post Office is, however, liable for loss of or damage to a registered inland postal packet when the loss or damage is caused by the wrongful act, neglect or default of a servant or agent of the Post Office. The maximum amount recoverable by the sender is the market value of the packet. It should be recognised that the Post Office can be sued in relation to contracts for the supply or purchase of goods. CORPORATE BODIES,TRADE UNIONS AND UNINCORPORATED ASSOCIATIONS A corporation, which may be created by Royal Charter, by private Act of Parliament or by registration under the Companies Acts, can sue in respect of a tort or breach of contract affecting its property and in general can be sued to the same extent as a private person for the acts of its servants. This liability is always vicarious (see later in this chapter) as a corporation is a fictitious person distinct in law from its directors or members; it always acts through its servants or agents. Some corporations are established by statute, and to such industries ordinary common law duties and liabilities apply, unless the relevant statute provides otherwise. As a corporation is a separate legal entity, its directors and members cannot be sued individually as representatives of the corporation, although they may as individuals be liable in respect of their own acts in connection with the business of the corporation. Trade unions are usually accused of torts which have been described as interfering with the trade or business of another person by doing unlawful acts. Since the Trade Disputes Act 1906 trade unions have enjoyed certain immunities from tort actions. Protection is necessary as otherwise they would have no means of taking industrial action without provoking legal action by the employer. However, the Trade Union and Labour Relations Act 1974 provides that the act in question must be in furtherance or contemplation of a trade dispute. It has been held that the test is subjective, ie if the union genuinely believes that the action is so taken then it cannot be sued for such torts. In spite of the above, generally speaking, trade unions can be sued or sue in tort, which is unusual as most unincorporated associations do not possess legal 18

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