Tort Revision

Unit 1 Introduction to Tort

Introduction to Tort i-tutorial
Types of harm personal injury, property damage, interference with use or enjoyment of
land, damage to reputation.
Types of tort assault and battery, negligence, private nuisance, defamation, defective
products, defective buildings, trespass to land.
Its better to sue in contract than in tort (e.g. in the case of a defective product), because its
easier to prove and you may receive more compensation.
But you might not be able to sue the retailer in contract if you were not the buyer of the
product, or if the retailer has gone out of business.
Motorists and employers are obliged to take out insurance so that a crash victim/ employee
will always receive compensation. There is even the Motor Insurers Bureau which pays the
compensation if a driver has failed to take out insurance. Home insurance would cover injury
to guests on your property.

Chapter 1
It is advisable to sue in both contract and tort if possible, in case one claim fails.
The main function of tort is compensation, but it can also function as a deterrent either
financial (if uninsured) or reputational (or in terms of having to pay increased insurance
premiums).
Tort law only provides a remedy for types of harm recognised by the existing law of tort. This
does not necessarily have to be tangible some torts (e.g. trespass to the person) are
actionable per se, and the harm is simply the infringement of the claimants legal rights.
Osman v Ferguson it would be against public policy to impose a duty on the police to
suppress crime which included liability for any harm caused by criminals whom they could
have apprehended. This duty would exist only if there was a special relationship between
the claimant and the investigating police officers (principle established in Hill v Chief
Constable of West Yorkshire).
Anyone can sue, or be sued by, anyone. A minor (under 18) will conduct litigation through a
litigation friend (e.g. a parent or guardian). Parents are not legally or financially liable for
the torts of their children, so it is often not worth suing a child defendant.
Limited companies and partnerships can be sued as entities.
When a person dies, any claim in tort (except defamation) continues and is conducted by his
personal representatives.
The time limit for bringing a claim in tort is generally 6 years from when the cause of action
(the harm) arose (pursuant to the Limitation Act 1980). For defamation the claim must be

brought within a year of publication, and personal injury claims within 3 years of the injury.
The limitation period for a minor does not start until he is 18 years of age.

Trespass to the Person

Letang v Cooper if the defendants actions are only careless, the claimant should sue in
negligence.
Trespass to the person is actionable per se the claimant does not need to prove any
tangible physical harm to bring a claim.
Battery the intentional direct application of unlawful force to another person.
Assault an intentional act by the defendant that causes another person to reasonably
apprehend the immediate infliction of a battery upon him.
Elements of Battery
Unlawful force physical interference with another persons body which falls within a
general exception embracing all physical contact which is generally acceptable in the
ordinary conduct of everyday life (F v West Berkshire Health Authority) is not unlawful and
does not constitute battery. N.B. a policewoman grabbing someones arm to question them
constitutes battery (Collins v Wilcock).
Intentional conduct Wilson v Pringle: it is the act and not the injury which must be
intentional. Iqbal v Prison Officers Association: intention includes subjective recklessness,
where the defendant foresees that their actions will result in the application of unlawful force
(e.g. throwing a stone in a crowded area). Gibbon v Pepper if you push someone into
someone else, youve committed a battery on both people. Livingstone v Ministry of Defence
transferred intent: if you try to hit someone and accidentally hit someone else its still
intentional.
Direct application of force the force must flow almost immediately and without
intervention from the defendants actions, though there does not need to be physical contact
provided that the medium (hosing, shooting etc.) is controlled by the defendant.
Scott v Shepherd the defendant who threw a lit firework into a market was liable in battery,
even though two stallholders subsequently picked it up and threw it on before it exploded in
the claimants face. DPP v K a boy was liable in battery after pouring sulphuric acid into a
hand-dryer, which subsequently blew into another boys face. Clearly the directness
requirement has been interpreted very flexibly by the courts.
Elements of Assault
Intentional act words alone can constitute an act and therefore an assault (R v Ireland).
Reasonable apprehension an objective test; it doesnt matter if the claimant was particularly
timid (Stephens v Myers), or could have defended himself successfully.
Immediate infliction Lord Steyn said in R v Ireland that immediate could cover something
which would happen in a minute or so. Thomas v National Union of Miners the strike-

breaking miners were in vehicles and separated from the strikers by a police cordon, so there
was no immediacy. Tuberville v Savage words can negative an assault: if it were not
assize-time, I would not take such language from you.
Wilkinson v Downton tort
The defendant told the claimant, as an evil joke, that her husband had been badly injured in
an accident. The claimant suffered severe shock and other permanent physical consequences.
There was no assault or battery, but the court allowed the claim (thereby creating a new cause
of action) on the grounds that the defendant intended to cause shock to the claimant, who
suffered some tangible damage as a result. Later cases have shown that this tort is not
actionable per se the claimant must suffer some recognised illness or injury. Distress is
not sufficient (Wainwright v Home Office).
Causation and Remoteness
Although trespass to the person is actionable per se, if the claimant has suffered tangible
harm and wishes to recover full compensation, he must prove that the tort caused his loss
and is not too remote (as in Negligence).
Defences
Consent express (e.g. to a medical procedure) or implied (e.g. participating in sport) is a full
defence. In sport, case law suggests that a player impliedly consents to all conduct with the
rules of the game, and conduct which falls outside the rules but inside the spirit of the game
(Condon v Basi). See also Blake v Galloway boys throwing twigs at each other as a game:
implied consent. For medical procedures, the consent must be real (Chatterton v Gerson)
the patient must have been informed of the broad nature of the procedure.
Lawful arrest an officer who arrests someone pursuant to a valid warrant, and uses only
reasonable force, does not commit a battery.
Defence of the person (self-defence) Cockcroft v Smith established that for the defence to
be valid, the force must be: a) used in self-defence and not retaliation, b) reasonable (Ashley v
Chief Constable of West Sussex), and c) proportionate to the force used or threatened by the
claimant (Lane v Holloway hitting in eye in response to blow on shoulder; Cockcroft v
Smith biting off pointing finger). The defence extends to protecting family members, and
employers/employees (in a work setting). A court would probably extend the defence to other
people, if the conduct was reasonable in all the circumstances (including the nature of the
relationship between defendant and third party).
Defence of property the defendant may take reasonable steps to defend his property (e.g. by
first asking a trespasser to leave Green v Goddard).
Necessity F v West Berkshire Health Authority establishes two instances where the defence
of necessity could justify treating an adult without consent: the patient is unconscious in an
emergency situation; or the patient is physically or psychologically incapable of giving
consent. These principles extend outside the medical profession. HOWEVER, the action
taken must be in the patients best interests.
Contributory negligence is not a defence to trespass to the person (Co-operative Group Ltd
v Pritchard). Neither is provocation (Lane v Holloway).

Defamation
Two types: libel (permanent form) and slander (temporary). TV and Radio programmes are
classified as permanent (pursuant to the Broadcasting Act 1990), as are public performances
in a theatre (pursuant to the Theatres Act 1968).
Libel is actionable per se, whereas an action for slander requires proof of some tangible loss
(e.g. loss of earnings) flowing from the slander.
Elements of Defamation
The words must:
Be defamatory they are if a) they tend to lower the claimant in the eyes of right-thinking
members of society generally (Sim v Stretch); and/or b) they cause the claimant to be shunned
or avoided (Youssoupoff v MGM); and/or c) they expose the claimant to hatred, contempt or
ridicule (Parmiter v Coupland). The Defamation Act 2013 provides that a statement is only
defamatory if its publication has caused or is likely to cause serious harm to the reputation of
the claimant (thus ruling out trivial claims).
Refer to the claimant easy to prove if named or pictured; less easy if the reference is
oblique (e.g. a nickname). The test in JAnson v Stewart is whether the description is so
detailed and the resemblance so strong that a reasonable person who knew the claimant
would assume that the article was about the claimant. The reference doesnt have to be
intentional for it to constitute defamation.
Have been published this means communicated to a third party. A newspaper that
publishes a letter sent to them is still guilty of defamation.
Defences
Truth a complete defence if the statement is substantially true (Defamation Act 2013, s. 2).
Honest opinion the statement must be a statement of opinion, and indicate the basis for that
opinion. The defendant must also honestly hold that opinion (this does not apply in the
publication by newspapers of letters; the defence only fails if the newspaper knew or should
have known that the original author did not hold that opinion s. 3(6)).
Public interest the statement was on a matter of public interest and the defendant
reasonably believed it to be so.
Qualified privilege where one person has a special interest in hearing the honestly-held
views of another (e.g. the giving of employment references, or information to the police),
even if they cannot be proved to be true (so the defence of Truth does not apply). However,
this defence is defeated by malice e.g. if the defendant knew the statement was untrue.

Misuse of Private Information

For a claim to succeed, the information must be private (the claim had a reasonable
expectation of privacy in relation to the information disclose), and there must not be a
legitimate public interest in the disclosure of the information.
Matters relating to health, sexual activities, personal relationships, financial affairs, and
covertly-taken photographs in a private place are all likely to be considered private.
Examples of public interest: the claimant had previously lied about the information; the
claimant had done something illegal; the information pertains to the public role of political
figures.

Unit 2 Negligence
Chapter 2.1
Negligence a breach of a legal duty of care owed to a claimant that results in harm to the
claimant, undesired by the defendant.
Elements of Negligence: duty of care, breach of duty, causation, defences.
Duty of Care
Established duty situations: one road user to another (including pedestrians) (Nettleship v
Weston), doctor to patient (Pippin v Sheppard), employer to employee, manufacturer to
consumer (Donoghue v Stevenson narrow rule), teacher to pupil (Carmarthenshire County
Council v Lewis), solicitor to client (Groom v Crocker), anyone who creates a dangerous
situation owes a duty of care to a potential rescuer (Baker v Hopkins).
Neighbour principle (wide rule) in Donoghue v Stevenson you must take reasonable care
to avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour persons who are so closely and directly affected by my actions that I ought
reasonably to have them in my contemplation.
Caparo Industries plc v Dickman three part test: 1) reasonable foresight of harm to the
claimant; 2) sufficient proximity of relationship between the claimant and the defendant; 3)
fair, just and reasonable to impose a duty of care.
Foreseeability in Bourhill v Young (miscarriage after seeing aftermath of traffic incident)
there was not reasonable foresight of harm.
Proximity duty of care may be limited in cases such as: omissions to act (e.g. local
authoritys failure to carry out road repairs); pure economic loss; pure psychiatric harm.
Fair, just and reasonable Marc Rich v Bishop Rock Marine Co Ltd: not fair, just and
reasonable to impose a duty of care on NKK, a non-profit making entity, created and
operating for the sole purpose of promoting safety at sea.
Hill v Chief Constable of West Yorkshire no general duty to apprehend criminals, and no
duty to members of the public who might be harmed by them, except if there were an
exceptional added risk, e.g. if the claimant had suffered threats which the police knew about.

But even in Smith v Chief Constable of Sussex, where extensive evidence of threats was
presented to police, no duty of care was found.
Kirkham v Chief Constable of Greater Manchester Police the police had assumed
responsibility for the prisoner, so a duty of care was owed.
Liability for Omission to Act no general duty to prevent harm (Stovin v Wise failure of
highway authority to redesign junction). Only exceptions would be in the case of a special
relationship (lifeguard, driving instructor, teacher, parent etc.).
There would only be liability when a person chose to act if they positively made the situation
worse (East Suffolk Rivers Catchment Board v Kent).
Special relationships also confer a duty to prevent their charges causing harm to third parties
(Home Office v Dorset Yacht Co Ltd; Carmarthenshire County Council v Lewis). If there is
no special relationship (Smith v Littlewoods Organisation Ltd vandals) then no duty of care
is owed.
Breach of Duty
Standard of Care
Blyth v Birmingham Waterworks Negligence is the omission to do something which a
reasonable man would do, or doing something which a reasonable man would not do.
This is an objective test (Glasgow Corp v Muir), but it will be modified based on the
capabilities of the defendant.
The Skilled Defendant: a doctor must show the same degree of skill, NOT as the reasonable
man on the street, but as the reasonable doctor (Bolam v Friern Hospital Management
Committee). This applies to anyone who exercises a special skill.
If the defendant can provide a reasonable body of professional opinion in support of his
actions, he will not be found negligent. However, the decision over the reasonableness of
this body of opinion is the courts (Bolitho v City and Hackney Health Authority).
The Under-Skilled Defendant: inexperience will not be a relevant consideration when
deciding whether a defendant has been negligent. A learner driver must reach the standard of
a reasonably competent driver (Nettleship v Weston). A doctor must reach the standard of a
reasonably competent doctor in his position (Wilsher v Essex Area Health Authority). An
amateur is expected to exercise a certain level of skill in performing jobs for which he has no
qualifications, and not to tackle a job which far exceeds his capabilities and is normally
performed by a professional (Wells v Cooper).
The Child Defendant: a child will be expected to show such care as can reasonably be
expected of an ordinary child of the same age (Mullin v Richards).
Determining Standard of Care
The court will try to weigh the magnitude of the risk inherent in the act (including likelihood
of injury, and likely severity of the injury) against the practicality of taking precautions. They
may also consider the defendants purpose, whether the defendant followed common practice,
and the current state of knowledge.

Magnitude of risk: in Bolton v Stone, there was a very low likelihood of injury, whereas in
Miller v Jackson, it was high. In Paris v Stepney (one-eyed claimant), an injury to his
remaining good eye would entail a much more serious injury, and so a higher standard of care
would be expected (unless the defendant had been unaware of the disability).
Practicality of taking precautions: in Latimer v AEC Ltd, the cost of taking precautions
(closing down part of the factory) was high compared to the relatively small risk of injury.
Lacking the financial resources to take precautions is not an excuse.
Defendants purpose: Watt v Hertfordshire County Council shows that if the defendants
actions are in the public interest, he is less likely to be found liable in Negligence. If the
defendants actions have no social utility or are illegal, they will be expected to exercise a
very high standard of care to justify even a small risk of harm to others.
Common practice: a defendant will generally not be found liable if they can show that they
complied with the accepted practice in their trade or profession (Bolam v Friern Hospital
Management Committee). However, the court may find that a commonly accepted practice is
in fact negligent (Re The Herald of Free Enterprise).
Current state of knowledge: whether the risk of injury is foreseeable must be judged in
relation to the state of knowledge at the time (Roe v Ministry of Health).
The defendant has no duty to guard against fantastic possibilities (Fardon v HarcourtRivington dog breaks window), nor can he be held liable for suffering an unexpected
disability which affects his immediate behaviour (Mansfield v Weetabix), or a heart attack
(Waugh v James). However, if the defendant was aware of his medical condition and still
unreasonably performed an activity, he might be found liable.
Proving Breach of Duty this will usually be done by means of witnesses, but sometimes the
principle of res ipsa loquitur can be invoked: if a) the thing causing the damage was under
the control of the defendant, b) the accident would not normally have happened without
negligence, and c) the cause of the accident was unknown to the claimant. The defendant is
then required to rebut this by either a) showing that the accident was not due to negligence, or
b) showing that he had exercised reasonable care at all times.
Civil Evidence Act 1968 section 11 states that a defendant who has been convicted of a
criminal offence is presumed to have committed that offence in any subsequent civil
proceedings.

Chapter 2.2
Causation
Causation in Fact
The but for test but for the defendants breach of duty, would the harm to the claimant
have occurred? (Barnett v Chelsea and Kensington Hospital Management Committee
arsenic poisoning) If the harm would have occurred anyway, the claim will fail. The claimant
must show, on the balance of probabilities, that the harm suffered was caused by the
defendant (Hotson v East Berkshire Area Health Authority falling out of a tree).

Multiple causation in Wilsher v Essex AHA, there were multiple possible causes of the
harm, and the defendant failed to establish that the defendants negligence had caused or
contributed to the harm.
Material contribution the claimant does not need to show that the defendants breach of
duty was the only cause of the damage, or even the main cause, merely that it materially
contributed to the damage (Bonnington Castings Ltd v Wardlaw). It is possible that the courts
have extended this principle to include the creation of a material increase in the risk of injury
(McGhee v National Coal Board).
Divisible Injury: Proportionate Damages in Holtby v Brigham and Cowan, the claimants
injury (asbestosis) had developed over a long period of exposure to asbestos, working for a
number of employers. Each employer had to pay damages proportionate to the length of time
the claimant had worked for them.
Indivisible Injury: Contribution Between Tortfeasors (Civil Liability (Contribution) Act
1978) where two or more people are responsible for the same damage (e.g. a broken leg),
damages are apportioned according to each persons share of responsibility for the damage.
In Fairchild v Glenhaven Funeral Services Ltd, the court applied the principle in McGhee,
holding that each employer that had exposed the claimant to asbestos had materially
contributed to the risk of mesothelioma (an indivisible injury), though it was impossible to
prove which exposure had caused it. Therefore, each employer was liable for the whole harm
(which would then be divided up pursuant to CLCA 1978). In Barker v Corus, however, the
court held that the defendants had not caused the mesothelioma (indivisible), but the risk
(divisible) of mesothelioma therefore each employer was only liable for a portion of the
harm. Parliament then restored the previous position defendants found liable for causing
mesothelioma are each liable for the whole of the claimants harm in the Compensation
Act 2006.
Double Injury a later defendant who causes a subsequent injury (to property or person) is
only liable to the extent that he makes the claimants damage worse (Performance Cars v
Abraham).
New Intervening Acts
Novus Actus Interveniens by a third party instinctive interventions do not break the chain of
causation (Scott v Shepherd). A negligent intervention may do in Knightley v Johns, the
negligent driver who blocked the tunnel could not have foreseen the police inspectors order
to his constable to drive against the traffic. But in Rouse v Squires, it did not (so the negligent
driver who had caused the blockage was still partially liable), since it was foreseeable that
other drivers might come along too fast and not keep a proper lookout.
A reckless or intentional intervention (Stansbie v Troman workman specifically told to
secure house) is more likely to be considered a novus actus than a merely negligent one
(Lamb v Camden London Borough Council squatters causing damage).
The chain of causation is unlikely to be broken by an action which the defendant ought
reasonably to have foreseen as a likely consequence of his negligence.

Novus Actus Interveniens by the claimant this depends on whether the claimant acted
reasonably (Wieland v Cyril Lord Carpets Ltd neck brace, stairs fall) or unreasonably
(McKew v Holland weak leg, stairs fall).
Remoteness of Damage
The Wagon Mound (No 1) test of reasonable foreseeability is the damage of such a kind
that the reasonable person would have foreseen it?
The Similar in Type Rule provided that the type of injury is reasonably foreseeable, it is
not necessary to foresee the precise way in which the injury is caused (Hughes v Lord
Advocate). In Tremain v Pike, the injury suffered (Weils disease) was not foreseeable,
whereas rat bites would have been.
The Egg-shell Skull Rule you take your victim as you find him (Robinson v Post Office).
If the claimant has a particular disability or condition, he may recover in full from the
defendant for his losses, even though the defendant could not have foreseen the full extent of
the claimants loss. This also applies to high salary earners the defendant must still
compensate in full.

Defences
Voluntary Assumption of Risk (volenti non fit injuria) a complete defence. A defendant
must establish that the claimant: a) had full knowledge of the nature and extent of the risk,
AND b) willingly consented to accept the risk of being injured due to the defendants
negligence (Nettleship v Weston). In Dann v Hamilton, though the passenger knew that the
driver had been drinking, that knowledge was not sufficient to imply consent. In Morris v
Murray, the pilot was so obviously drunk that the claimant was found to have accepted the
risk.
Section 149 of the Road Traffic Act 1988 states that any acceptance of risk by the passenger
is invalid volenti is never a defence.
The defence of volenti will rarely succeed in claims by employees against employers (Smith v
Baker) employees dont really have free choice to accept or decline instructions.
Rescuers a rescuer acting to rescue persons or property endangered by the defendants
negligence, acting under a compelling legal, social or moral duty, whose conduct was
reasonable and a natural and probable consequence of the defendants negligence, will not be
found to have voluntarily assumed any risk (Haynes v Harwood).
Illegality (ex turpi causa non oritur actio) a complete defence. The fact that the claimant
was involved in an illegal enterprise at the time may be a defence (Ashton v Turner). But
there must be a very close connection between the illegal activity of the claimant and the
harm which he suffers (Pitts v Hunt), e.g. driving a getaway car too fast and crashing it.
Contributory Negligence carelessness on the claimants part which contributes to the
damage he suffers. The claimants damages will be reduced (pursuant to the Law Reform
(Contributory Negligence) Act 1945) according to his share of responsibility for the damage.

The claimant needs to have contributed to the damage, not the accident itself. Thus, even
where the defendant was fully responsible for a car accident, there may be a finding of
contributory negligence, if the claimant was not wearing a seatbelt, and this fact contributed
to the harm he suffered (Froom v Butcher 25% reduction if injuries would have been
avoided, 15% if less severe). The same principle and calculation applies to crash helmets for
motorcyclists (Capps v Miller). Accepting a lift from a drunk driver will constitute
contributory negligence, even if the claimant was too drunk to notice (Owens v Brimmell).
Contributory negligence is the failure to take reasonable care for ones own safety (the same
standard of care as is expected of a defendant against a Negligence claim the reasonable
man test (Blyth)).
The same considerations apply regarding children: the younger they are, the less likely they
are to have been contributorily negligent (Gough v Thorne).
Rescuers conduct will be judged against the standard of conduct of a reasonable rescuer;
they will have to have shown wholly unreasonable disregard for their own safety to be
found contributorily negligent (Baker v T E Hopkins & Son Ltd).
A claimant who is faced with the sudden need to save himself may not be found
contributorily negligent even if he chooses the less safe course of action (Jones v Boyce). But
the action taken must still be a reasonable response to the level of danger (Sayers v Harlow).

Chapter 2.3
Limited Duty Situations the kind of loss suffered by a claimant may entail that no duty of
care is owed to them. This is because the relationship between claimant and defendant does
not show the required proximity (Caparo) to establish a duty of care.
Pure Economic Loss
Pure economic loss is generally not recoverable a defendant does not owe any duty to a
claimant not to cause pure economic loss.
Economic loss which results from damage to property or personal injury is NOT pure
economic loss, but rather consequential economic loss, which is fully recoverable.
Examples of Pure Economic Loss
Acquiring a defective product the cost of replacing a defective product cannot be recovered
in tort (Murphy v Brentwood DC), only in contract.
Economic loss caused by damage to the property of a third party in Spartan Steel & Alloys
Ltd v Martin & Co (Contractors) Ltd, only the cost of physical damage to the claimants
property (the current melt) and the consequential economic loss resulting from that damage
(the loss of profit on the current melt) were recoverable, not the economic loss resulting from
damage to the property of a third party (the electricity suppliers cable).
Economic loss where there is no physical damage can occur via negligent actions (Weller &
Co v Foot and Mouth Disease Research Institute) or statements (Hedley Byrne v Heller).

However, the court may find that there is a special relationship between claimant and
defendant, where the defendant has assumed a responsibility towards the claimant. In Hedley
Byrne v Heller, the special relationship was defined as: an assumption of responsibility by
the defendant, and reasonable reliance by the claimant.
For a defendant to have assumed responsibility towards a claimant, four criteria must be
satisfied: 1) the adviser knew the purpose for which the advice was required; 2) knew it
would be communicated to the claimant; 3) knew that the claimant was likely to act on it
without independent inquiry; 4) the advice was acted upon to the claimants detriment. These
criteria were established in Caparo Industries Plc v Dickman.
There can generally be no assumption of responsibility in relation to advice given in a social
situation (Chaudry v Prabhakar).
Spring v Guardian Assurance plc extends the principle in Hedley Byrne to negligent
statements made to third parties, where the defendant nevertheless has assumed a
responsibility towards the claimant (e.g. to provide a reference).
White v Jones extends the principle to pure economic loss caused by the negligent provision
of professional services, where there has been an assumption of responsibility. Here, the
assumption of responsibility went beyond the client to the potential beneficiaries of the will
the solicitor had been instructed to draw up.
Defence: Exclusion of Liability firstly, the defendant must show that: a) reasonable steps
were taken to bring the exclusion notice to the claimants attention before the tort was
committed; and b) the wording of the notice covered the loss suffered by the claimant.
Further, the Unfair Contract Terms Act 1977 applies: it is not possible to exclude liability
for death or personal injury; it is only possibly to exclude liability for negligence causing
other damage if the disclaimer is reasonable.
Considerations on reasonableness (Smith v Eric S Bush): were the parties of equal
bargaining power; was it easy to obtain the advice from another source; how difficult was the
task in question (more reasonable to exclude liability for a difficult task); practical
consequences?

Pure Psychiatric Harm

Psychiatric harm that result from physical injury are not pure psychiatric harm, but
consequential psychiatric harm, which is fully recoverable in Negligence. This includes
simply anxiety and nightmares, which are not covered by pure psychiatric harm.
Pure psychiatric harm is psychiatric harm suffered without physical impact. BUT the injury
must be: caused by a sudden shock; AND EITHER a medically recognised psychiatric illness
OR a shock-induced physical condition (e.g. miscarriage (Dulieu v White & Sons pregnant
barmaid) or heart attack). This rules out gradually-developing depression/stress (though not
for Employers Liability) and simply anxiety/worry.
Different Types of Victim
The victim must have been closely enough affected by the defendants negligence.

Primary victims a primary victim is someone who was actually involved in the incident. Per
Page v Smith, a primary victim was in the actual area of danger, or reasonably believed that
he was in danger. A secondary victim witnesses injury to someone else, or fears for the
safety of another person. A primary victim is owed a duty of care in respect of his pure
psychiatric harm, provided that the risk of physical injury was foreseeable; it is not necessary
for the risk of psychiatric harm to be foreseeable.
Secondary victims not all secondary victims are owed a duty of care. Alcock v Chief
Constable of South Yorkshire Police established the criteria which a secondary victim must
satisfy in order for a duty of care to be owed: foreseeability of psychiatric harm, proximity of
relationship, proximity in time and space, and proximity of perception.
Foreseeability was it reasonably foreseeable that a person of normal fortitude in the
claimants position would suffer a psychiatric illness?
Proximity of relationship the claimant must have a close relationship of love and affection
with the person who is endangered. Per Alcock, a close relationship is presumed between
parent and child, husband and wife, and fianc and fiance, but outside these categories the
claimant must prove it existed. The defendant can adduce evidence to rebut the presumption
of love and affection in the above categories.
Proximity of time and space the claimant must be present at the accident or its immediate
aftermath; and must see or hear the accident, or its immediate aftermath, with his own senses.
But McLoughlin v OBrian shows that immediate is a somewhat flexible term (the fact that
the victims were still in the same condition was enough, and it was only an hour later). In
Alcock, 8 hours later did not constitute the immediate aftermath.
Proximity of perception the shock must come to the claimant through sight or hearing of
the event or of its immediate aftermath; a claimant cannot be compensated if the event is
communicated by a third party (McLoughlin). In Alcock, no duty of care was owed to those
watching on TV, because no individuals could be identified, so the court decided that what
the claimants did see was not equivalent to seeing or hearing the event or its immediate
aftermath. A broadcast showing individuals would constitute a novus actus interveniens.
Rescuers no special status or duty of care is owed to employees or rescuers (White v Chief
Constable of South Yorkshire Police). A rescuer who is a secondary victim is clearly very
unlikely to meet the proximity of relationship test.
Causation the egg-shell skull proviso for remoteness of damage does not interfere with
requirement of the foreseeability of psychiatric harm to a person of normal fortitude for
secondary victims. The first hurdle (relating to duty) must be passed first a person of
normal fortitude would have suffered some psychiatric harm. Then the claimant can rely on
the egg-shell skull proviso to recover full damages (even if greater than a person of normal
fortitude).

Unit 3 Remedies in Tort (except Land)

Where a claimant has not suffered any harm (e.g. in an actionable per se tort), the court may
award nominal damages in order to establish the claimants legal rights.

A claimant should take all reasonable steps to mitigate his loss, e.g. by seeking alternative
employment if injury has prevented him continuing with his previous job; replacing a
damaged vehicle which he needs for work; or accepting medical care.
The court must award one lump sum to cover both past and future losses.
Special damages losses capable of being calculated precisely at the time of trial (e.g. cost of
care, loss of earnings).
General damages losses not capable of being calculated precisely at the time of trial (e.g.
pain and suffering, and loss of future earnings).
Pecuniary losses loss capable of calculation in money terms, either pre- or post-trial (e.g.
loss of earnings, cost of medical care).
Non-pecuniary losses loss not capable of calculation in money terms (e.g. pain and
suffering, loss of amenity).
Non-pecuniary losses
Pain and suffering covers past, present and future pain; physical and mental anguish; fear of
future surgery; anguish of knowing your life has been shortened (Administration of Justice
Act 1982, s 1(1)(b)). A subjective test a claimant must be aware of his injuries to recover
for pain and suffering (Wise v Kaye).
Loss of amenity covers loss of enjoyment of life (a wide area). An objective test the
claimant doesnt have to be conscious in order to recover (West v Shephard).
The quantum of non-pecuniary damages will be assessed with reference to practitioner texts
like Kemp and Kemp on Damages.
Pecuniary losses
Medical expenses a claimant can recover any reasonable medical expenses which result
from the accident. The Law Reform (Personal Injuries) Act 1948 states that a claimant
cannot be found to have failed to mitigate his loss by choosing to have private medical care
rather than NHS. But a claimant who uses the NHS cannot recover what he would have paid
a private doctor.
Loss of earnings pre-trial net earnings for the period off work (tax, national insurance,
pension contribution deducted; bonuses, overtime, perks added).
Loss of earnings post-trial Multiplicand: the court will take the claimants gross annual loss
(including possible promotions) at the time of trial, deduct tax, national insurance and
pension contributions, and this net annual loss is the multiplicand. Multiplier: this reflects
how long the claimant will be off work (could be the time until retirement age). But in order
to factor in the possibility of earning interest on the lump sum award, the court will use the
Ogden table to calculate a lower multiplier.
Loss of earnings: the lost years (reduced life expectancy) the claimant may have dependants
for which he wishes to provide after his death. The claimant can recover loss of future
earnings for lost years (Pickett v British Rail Engineering). BUT the amount the claimant

would have spent on himself must be deducted: 25% for person who is married with
dependent children, and 33% for a married person without dependent children.
Loss of earnings: children this is very difficult to calculate; the court might consider his
parents earnings, or the national average earnings, or particular potential shown by the child.
Services provided to the claimant the claimant can recover the cost of help with housework,
shopping, nursing care etc. (Schneider v Eisovitch). This applies whether the carer is a
professional or a family member. If a relative has given up paid employment, that loss of
wages can be compensated BUT ONLY up to the commercial rate of the services he/she is
now providing. An unemployed relative who provides services may not expect the full
commercial rate to be compensated.
Loss of earning capacity a claimant can be compensated if the judge feels there is a real risk
of him losing his job (Smith v Manchester Corporation). This is only relevant where the
claimant is still in his original pre-accident job.
Deductions from damages and exceptions insurance payments, ill-health pension and
charitable payments are NOT deductible. Pursuant to the Social Security (Recovery of
Benefits) Act 1997, State benefits will be deducted from the claimants damages (so as not to
over-compensate him), and then the defendant will be required to pay this amount back to the
State. Only benefits for lost earnings, cost of care and loss of mobility are deductible (not
pain and suffering, or loss of amenity).
Provisional damages if there is a small chance that the claimants condition will deteriorate,
the court may make a provisional award on the basis of no deterioration, with the provision
for further damages if it does deteriorate (Senior Courts Act 1981, s 32A).

Damages on Death
The Law Reform (Miscellaneous Provisions) Act 1934
A cause of action in tort survives the death of both the claimant and the defendant, which is
carried on by personal representatives of the estate of the deceased. There can be no claim for
loss of income after death (s 1(2)(a)). Receipt of life insurance or pension monies is not
deductible (s 1(2)(c)) and funeral expenses can be claimed if paid for by the estate.
The deceased claimants claim will cover: pain and suffering, and loss of amenity up to death;
damage to property; medical expenses up to death; loss of income up to death (this will be
compensated by the Fatal Accidents Act 1976).
The Fatal Accidents Act 1976
A claim under this Act is usually commenced by the deceaseds personal representatives. This
claim is dependent on the original cause of action by the deceased against the defendant
there must be a successful action.
Loss of dependency a claimant must fall within the list of dependants in the Act, and have
been actually financially dependent on the deceased (this could include the cost of replacing
services provided for free e.g. childcare).

Dependency is calculated in the same way as the lost years of a living claimant: multiplicand
and multiplier. The multiplicand will be reduced in the same way: by 25% for a married
person with dependent children, and by 33% for a married person without children (or no
longer dependent ones). Other contributions to the household should also be included in the
multiplicand. The multiplier will be calculated based on how long dependency will continue,
and will be reduced using the Ogden tables in the usual way.
Section 3(3) and 4 provide that the possibility of remarriage, and of inheriting money,
respectively, are not taken into account when calculating dependency.
Bereavement the spouse or civil partner, or the parents of an unmarried minor, can claim;
the award is 12,980.
Funeral expenses can be claimed if the dependants have paid for them.

Unit 4 Special Liability Regimes

Employers Liability
Most employers are required by statute (Employers Liability (Compulsory Insurance) Act
1969) to take out insurance against claims by their employees.
Negligence
A duty of care is owed only to employees, not independent contractors. The duty was
established in Wilsons & Clyde Coal Co Ltd v English as comprising 3 elements: duty to
provide competent staff; adequate material (i.e. plant, equipment, machinery); and a proper
system of work and supervision. In Latimer v AEC Ltd, a fourth duty to take reasonable
steps to provide a safe place of work was added. The duty of care is non-delegable.
Competent staff this is the duty to provide competent fellow workers. Per Hudson v Ridge
Manufacturing Co Ltd, the employer must have known, or ought reasonably to have known,
about the risk that the incompetent employee was posing to fellow staff. This was confirmed
in Waters v Commissioner of Police for the Metropolis, in which psychological harm was also
included (e.g. bullying). If an employer does not adequately train or supervise his staff, he
ought reasonably to know that they will be incompetent.
Adequate material covers anything provided by an employer for the purposes of its
business; either defective equipment, or insufficient equipment. The Employers Liability
(Defective Equipment) Act 1969 provides that an employee can sue his employer, rather
than having to trace the manufacturer, for injury caused by defective equipment. This Act
only applies to employees, not independent contractors.
Safe system of work an employer must not only devise a safe system of work, but also take
reasonable steps to ensure that it is complied with.
Safe place of work though an employer would also owe a duty to his employees under the
Occupiers Liability Act 1957, his common law duty is more onerous in two ways: it is
non-delegable (whereas under the Act he could delegate his duty to an independent
contractor) and applies wherever the employees are sent in the course of their work (not just
the employers premises) (General Cleaning Contractors v Christmas).

Stress at work (safe system of work) stress as a result of work is covered (Walker v
Northumberland County Council). The guidelines for what is covered are laid down in
Hatton v Sutherland: was the injury to health through stress at work reasonably foreseeable?
This depends on two considerations: the nature and extent of the work (long, hard, frequent
absences); and signs from the employee himself (except the employer could assume an
employee was up to the normal pressures of the job, and take at face value what the employee
told him).
Contributory negligence may be a partial defence, but the courts will make allowance for
employees working in noisy conditions, doing repetitive work (Caswell v Powell Duffryn
Associated Collieries Ltd).

Vicarious Liability
For an employer to be vicariously liable for the tort of an employee: the worker must be an
employee (not an independent contractor); the employee must have committed a tort; in the
course of his employment. A claimant can sue the employee, or the employer, or both.
Be an employee an employee is employed under a contract OF service, whereas an
independent contractor is employed under a contract FOR services. An employee performs a
service for just one person (the employer). An employee receives a wage, rather than being
self-employed. The test for marginal cases is set down in Ready Mixed Concrete (South East)
Ltd v Minister of Pensions and National Insurance: an employee agrees to provide a service
in return for a wage; that they will be subject to another persons control; they do not provide
their own tools, hire their own helpers, or assume the financial risk of the enterprise.
In the Course of Employment an employer is liable for a wrongful act authorised by the
master, or a wrongful and unauthorised mode of doing some act authorised by the master
(applied in Lister v Hesley Hall).
Protecting the employers property might fall within the course of employment (Poland v
Parr), but retaliation would not (Warren v Henleys Ltd). Smoking whilst unloading oil
(Century Insurance v NI Road Transport Board) would be an unauthorised mode of
conducting an authorised act.
Acts prohibited by the employer can be in the course of employment if furthering
employers business (Rose v Plenty - milkman). Giving a lift to a hitch-hiker did not further
business (Twine v Beans Express), and was therefore outside the course of employment.
Intentional torts an employer can be vicariously liable if the wrongful act by the employee
stemmed from an act which the employer had authorised him to do (Lloyd v Grace). An
intentional wrongful act, committed purely for the employees benefit, can fall within the
course of employment if there is a sufficient connection between the work he had been
employed to do and the acts committed (Lister v Hesley Hall). C.f. also Maga v Birmingham
Archdiocese of the Roman Catholic Church (priest never off duty).
On a frolic of his own (Joel v Morison) the question is whether a deviation from an
authorised route constitutes a frolic. The court will consider the extent of the deviation (a
new journey vs a minor detour) and the purpose of the deviation (whether he was still

conducting his employers business). In Hilton v Thomas Burton, by visiting a relative in

hospital, the employee was not doing anything he was employed to do. In Harvey v R G
ODell Ltd, stopping for lunch was held to be reasonably incidental to ones work.
There is a gentlemans agreement that employers liability insurers do not pursue an
indemnity from the employee, as is their right (Lister v Romford Ice), unless there is evidence
of wilful misconduct, or collusion between employee and claimant.

Occupiers Liability
Things done or omitted to be done (Occupiers Liability Act 1957) is generally taken to
refer only to actions related to the state of the property. Other actions would be governed by
simple Negligence (though the difference between a claim under OLA and Negligence is very
small).
Requirements for a claim under OLA 1957
Establish that loss was suffered due to the state of the premises; identify the occupier of the
premises; prove that he is a visitor; show that the occupier failed to take reasonable care for
his safety.
Who is an occupier? someone who has a sufficient degree of control over the premises
(Wheat v E Lacon & Co Ltd). Managers and lodgers could be occupiers (Wheat). There can
be multiple occupiers (e.g. brewery company and pub managers in Wheat). An independent
contractor could be an occupier provided he has the requisite level of control.
Premises includes vessels, vehicles and aircraft; and open land.
Who is a visitor? a dinner guest, a decorator, a theatre-goer, a fireman who enters your
house etc. Visitors are those persons who have express or implied permission (by contract or
law) to be on the occupiers land.
A visitor may become a trespasser (and hence be covered by OLA 1984) if he exceeds his
permission to be on the premises (e.g. a salesperson who ignores a sign, a hotel guests who
enters a Staff Only door). Permission can relate to location or purpose (going behind a
counter to steal would violate both).
Common duty of care see section 2(2) of OLA 1957. The duty to take reasonable care to
see that the visitor is reasonably safe in using the premises for the purpose for which he is
permitted to be there.
Breach of the common duty: Standard of Care the court will take into account the nature of
the danger, purpose of the visit, seriousness of injury risked, magnitude of risk, cost and
practicability of taking precautions, how long the danger had been there, any warning of the
danger, and the type of visitor.
Type of visitor children require a higher degree of care (s 2(3)(a)) and professionals a lower
degree of care in respect of dangers arising from the defect they have been called to repair (s
2(3)(b)) see Roles v Nathan.

Children occupiers should take extra care in respect of concealed dangers which represent
allurements to children (Glasgow Corporation v Taylor - berries). BUT occupiers will have
complied with their duty to very young children if they have made their premises safe for a
child accompanied by a guardian (Phipps v Rochester Corporation).
Warnings for a warning to absolve an occupier from liability it must enable the visitor to be
reasonably safe (s 2(4)(a)). The warning should be specific to the precise danger, more so if
the danger is hidden, and should take into account the age of the visitor (a child may not obey
a written warning).
Exclusion notices act as a defence rather than as proof that there has been no breach of duty
(as a warning does).
Checking the work of an independent contractor (s 2(4)(b)) an occupier is only expected to
make such checks as are reasonable. Checking a lift installation is too technical to check
(Haseldine v Daw), whereas checking an icy step is not (Woodward v Mayor of Hastings).
Defences Volenti (s 2(5)) is considered as normal did the claimant have full knowledge of
the nature and extent of the risk, and willing consent to it.
Exclusion of Liability (s 2(1)) a clearly worded notice that covers the liability in question
will be a valid defence if reasonable steps have been taken to bring it to the visitors attention
(White v Blackmore). But pursuant to UCTA 1977, business occupiers cannot exclude liability
for death or personal injury. They may exclude for other loss, provided it is reasonable to do
so (based on equal bargaining power, consequences for the parties).
Contributory negligence as usual.

Claims under OLA 1984 Trespassers

A trespasser is someone who goes upon land without invitation of any sort and whose
presence is either unknown to the proprietor, or, if known, is practically objected to (Robert
Addie & Sons v Dumbreck).
Duty of Care A duty of care is owed under the 1984 Act to persons other than visitors i.e.
trespassers. An inadvertent trespasser is still a trespasser he does not have explicit or
implied permission.
A duty of care is only owed if the occupier a) knew about the hazard (Rhind), b) believed the
trespasser would come into contact with it (Donoghue v Folkestone), and c) it was a risk he
should reasonably have offered protection against (dependent on severity and obviousness of
danger, type of trespasser (age, deliberateness), and cost of taking precautions).
A duty of care is only owed in relation to the state of the premises, not the claimants conduct
(Tomlinson v Congleton Borough Council) or the defendants actions (Revill v Newbury).
Only injury is covered, not damage to the trespassers property.
Breach of Duty in determining the standard of care (s 1(4)), the court will consider the
nature of the danger (hidden or obvious), degree of danger, age of trespasser, nature of
premises, extent of risk, cost and practicability of taking precautions, type of trespasser,
foreseeability of trespass.

Defences Exclusion of liability: the 1984 Act is silent on whether this is allowed. Illegality:
not a defence.

Product Liability
Negligence
Duty of Care the narrow rule in Donoghue v Stevenson is that a manufacturer owes a
consumer of a product a duty of care if the product reached the consumer in the form in
which it left the manufacturer with no reasonable possibility of intermediate examination.
Manufacturer includes anyone who works on a product before it reaches the consumer e.g.
repairers (Haseldine v Daw & Sons), installers (Stennett v Hancock) and occasionally
suppliers (Andrews v Hopkinson if the supplier could easily and should reasonably (due to
its age) have checked the product).
Product anything that is capable of causing damage, including packaging.
Consumer anyone who the defendant should reasonably have in mind as likely to be injured
by the defendants negligence (i.e. a neighbour), not just the ultimate user.
Intermediate examination an express warning that the product is to be tested before use will
absolve the manufacturer from liability (Kubach v Hollands). An opportunity for examination
is not sufficient the manufacturer must reasonably believe there is a likelihood of it taking
place.
Loss the duty under the narrow rule would cover injury or damage resulting from the
defect in the product, but not the pure economic loss of replacing the product itself (Murphy
v Brentwood District Council).
Breach of duty standard of care measured against the reasonable manufacturer, taking into
account the magnitude of the risk, gravity of potential injury, and cost and practicability of
taking precautions. A warning notice may allow the manufacturer to comply with his duty of
care.
Proving breach res ipsa loquitur does not apply to defective products (Donoghue v
Stevenson). Daniels v R White & Sons the manufacturer had apparently taken reasonable
care, even though there was carbolic acid in the lemonade. But the court may infer breach if
the claimant can prove certain facts (Grant v Australian Knitting Mills there was sulphur in
the factory and in the underwear and it would not have got there without negligence).
Causation if a long time has elapsed between purchase and defect appearing, there may be
no causal link (Evans v Triplex).
Defences Volenti (as normal), contributory negligence.

Consumer Protection Act 1987

Who can sue?

Anyone who can establish that they have suffered damage, caused by a defect in a product (s
2(1)). Unlike in Negligence, the claimant does not need to be a foreseeable victim.
Damage death or personal injury, or damage to private (non-business related) property
exceeding 275 in value.
Caused by the defect (rather than the breach of duty as in Negligence) must have caused the
damage.
Defect the product must be unsafe, not merely defective. In A v National Blood
Authority, the court decided that consumers were entitled to expect blood that was free from
viruses, even though it was impossible to ensure this due to the lack of available testing. Thus
this duty is much more onerous than the duty in Negligence to take all reasonable care.
Product includes component parts of a product.
Who is liable?
The producer (manufacturer) the usual defendant.
The own-brander e.g. a supermarket which puts its name on goods produced by others.
An importer into the EU from outside in order to supply it to another person.
The forgetful supplier if he cannot identify any of the people in the supply chain.
Nature of liability
The claimant only needs to prove damage, not fault on the part of the defendant. This is strict
liability (as shown in A v National Blood Authority).
Defences
These are set out in s 4(1) of CPA 1987. Compliance with legal requirements: only if the
defect was an inevitable consequence. Did not supply: e.g. if stolen and given to someone.
Not in business: sold to a friend. Did not exist at supply: defect due to misuse or wear and
tear.
Could not have known about defect: the producer is judged against the highest standard of
knowledge available in the world (Commission v UK). In A v National Blood Authority, this
defence was unavailable because they knew about the risk.
Contributory negligence (s 6 (4)) usual.
Exclusion of liability no exclusion of liability is allowed.

Contract
Pure economic loss is recoverable in contract, as well as all consequential losses (Hadley v
Baxendale).

Land

Private Nuisance
Private Nuisance is an unlawful interference with a persons use or enjoyment of land, or
some right over, or in connection with it.
What is an interference?
3 types nuisance by encroachment on a neighbours land; nuisance by direct physical injury
to a neighbours land; nuisance by interference with a neighbours quiet enjoyment of his
land (Hunter v Canary Wharf).
The latter must affect ordinary comfort, not elegant or dainty modes of living (Walter v
Selfe). Loss of a view (Aldreds Case), and TV reception (Hunter v Canary Wharf) are not
actionable interferences.
What is unlawful?
Unlawful means substantial and unreasonable, rather than criminal. The test is what is
reasonable according to the ordinary usages of mankind living in society (Sedleigh-Denfield
v OCallaghan). Encroachment (e.g. overhanging tree branches) is automatically unlawful.
The court will consider: the frequency and timing of the interference; how long the
interference has existed; the level of the interference (e.g. intensity of smell/noise); the cause
of the interference.
Duration and frequency an isolated incident is unlikely to be an unlawful interference,
unless it emanates from a continuing state of affairs on the defendants property (Spicer v
Smee).
Excessiveness of conduct/ extent of harm an objective measure of the departure from
normal behaviour / a subjective measure of the effect on the claimant. An interference which
causes physical damage is much more likely to be unlawful.
Character of the neighbourhood this is only a relevant factor in relation to personal
discomfort and inconvenience, not physical damage (St Helens Smelting Co v Tipping).
Public benefit e.g. a smelly chip shop (Adams v Ursell). The courts are reluctant to
consider this as a factor, but it may be relevant to the possible grant of an injunction.
Malice will be likely to render an interference unreasonable and thus unlawful
(Hollywood Silver Fox Farm v Emmett).
Abnormal sensitivity of the claimant the court will look at the interferences impact on the
normal user of the land, ignoring any abnormal sensitivity of the claimant. But if it is found
to be unlawful, the claimant can recover in full according to the egg-shell skull rule.
Who can sue in Private Nuisance?
Only a person with the right to exclusive possession (the right to exclude everyone else) of
land can sue (Hunter v Canary Wharf). This includes an owner-occupier and a tenant, but
NOT children of the owner-occupier, hotel guests or live-in housekeepers. A landlord who
has leased his land can sue if permanent damage is being done to his property.
Who is liable in Private Nuisance?

Creator of the nuisance he remains liable even if the land is now occupied by someone else.
Current Occupier of the land liable for nuisance he creates or fails to repair, or those created
by his employees, independent contractors (where the creation of nuisance was inevitable), or
visitors/trespassers (provided he adopts or continues it).
Landlord where the nuisance is the inevitable result of the letting (Tetley v Chitting race
track), or it existed at the start of the letting and the landlord knew or ought to have known, or
has promised, but fails, to repair the nuisance.
Damage
Physical harm to the land and buildings, and interference with the quiet enjoyment of land,
are recoverable harms; personal injury and damage to personal possessions are not. BUT
consequential economic loss (which could include possessions) can be recovered (Hunter).
Causation must be proved in the usual way, including the test of remoteness of damage (The
Wagon Mound No. 1).
Defences
Prescription if the defendant can show that he has been continuing the nuisance for a period
of at least 20 years against the claimant.
Statutory authority if the nuisance was an inevitable result complying with the statute.
Contributory negligence; consent; acts of God or nature (unless D adopts nuisance).
Ineffective defences: claimant came to the nuisance; public benefit; contributory acts of
others; planning permission (but this can change the character of the neighbourhood).
Remedies
Damages for physical damage to land, and personal discomfort.
Injunction to stop the defendants unlawful interference from continuing. A prohibitory
injunction prevents the defendant from acting in a particular, unlawful way. A mandatory
injunction requires the defendant to take some positive action to rectify the wrong he has
committed. A quia timet injunction may be awarded prior to the claimant suffering damage,
if he can show that he is almost certain to suffer damage without the injunction, the damage is
imminent, and the defendant will not stop unless the court forces him to.
In Shelfer v City of London Electric Lighting Co, it was established that a court may refuse to
grant an injunction (and grant damages instead) where: the harm is small, quantifiable, and
compensatable by damages; and it would be oppressive to the defendant to grant an
injunction.
In Miller v Jackson, the court considered both the public benefit of cricket and the fact that
the claimants came to the nuisance in deciding not to grant an injunction.
Abatement (self-help) the victim can remove the interference himself (e.g. by cutting tree
branches), after giving notice to the wrongdoer, unless it is an emergency or the nuisance can
be abated without entering the wrongdoers land.

Trespass to Land
The intentional direct interference with the claimants possession of land; actionable per se.
A person may have implied permission to be on land, e.g. in a front garden while conducting
lawful business (Robson v Hallett police officers).
Types of Trespass
Entering upon the claimants land.
Acting in excess of your permission to be on the claimants land if asked to leave and
failing to do so, or doing something outside the scope of your permission.
Bringing anything into direct contact with the land.
Damaging the claimants land.
What is Land?
The surface of the land and any buildings on it, plants in it, and sub-soil underneath (Bocardo
v Star Energy). Airspace is limited to such height as is necessary for the ordinary use and
enjoyment of land and the structures on it (Bernstein v Skyviews). Signs (Kelsen v Imperial
Tobacco) and cranes (Anchor Brewhouse v Berkeley House) which hang over a claimants
land have been actionable in trespass.
Intentional Act
It is not the trespass that must be intentional, or any harm that may result from it, but the ACT
itself.
Trespass can very occasionally be committed negligently (League Against Cruel Sports Ltd v
Scott) if it was practically certain that trespass would be the result of the negligence. This was
more important because it allowed the granting of an injunction (unavailable in Negligence).
Who can sue?
A claimant must be in possession of the land an owner-occupier, tenant, squatters (except
no claim against the actual owner), BUT NOT a lodger or hotel guest.
Causation and Remoteness usual but for test and NIA rules. Remoteness is governed by
the direct consequences test in Re Polemis, where the defendant is liable for all the
consequences of his tort, even if unforeseeable. [Re Polemis test also applies to Trespass to
the Person].
Defences Justification/consent: with the owners express or implied permission for being on
the land, or permitted by law to be there. Necessity.
Remedies
Order for possession where a squatter has trespassed and taken possession of the land. In
Malik v Fassenfelt, the court granted an order for possession.
Damages substantial for actual harm, or nominal for confirmation of rights.
Injunction