Tort Law (LLB Foundation Module)

# Tort Law (LLB Foundation Module) — Topic Notes

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## 1. NEGLIGENCE

### 1.1 Duty of Care

**The Neighbour Principle (foundational)**
A manufacturer owes a duty of care to the ultimate consumer of their product to avoid acts or omissions that could reasonably foreseeably cause harm, even without a contractual relationship between them.
- **Donoghue v Stevenson [1932] AC 562** — Mrs Donoghue consumed ginger beer from an opaque bottle bought by her friend. She found a decomposed snail inside and became ill. The House of Lords held (3:2) that a manufacturer does owe a duty of care to the ultimate consumer even without a direct contractual relationship, provided the product reaches the consumer in the same state as it left the manufacturer. Lord Atkin formulated the "neighbour principle": you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour — those so closely and directly affected by your act that you ought to have them in contemplation.

**The Caparo Three-Stage Test**
In novel duty of care situations, courts apply a three-stage test: (1) reasonable foreseeability of damage, (2) sufficient proximity between parties, and (3) whether it is fair, just and reasonable to impose liability.
- **Caparo Industries v Dickman [1990] 2 AC 605** — Caparo purchased shares in a company relying on statutory accounts audited by Dickman. The accounts were negligently prepared. The House of Lords held auditors owed no duty of care to potential investors, only to the company and existing shareholders as a body. The three-stage Caparo test replaced the broader Anns v Merton approach. Note: after Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, the three factors are only applied in genuinely novel cases; established duty categories are governed by precedent and incremental development.

**Extension to Public Authorities**
Public authorities can owe a duty of care in negligence where harm to individuals is a direct and foreseeable consequence of the authority's carelessness.
- **Home Office v Dorset Yacht Co [1970] AC 1004** — Borstal officers negligently supervised young offenders during a training exercise on Brownsea Island; some escaped and damaged nearby yachts belonging to Dorset Yacht Co. The House of Lords held (4:1) the Home Office owed a duty of care, extending the Donoghue v Stevenson principle to public law contexts. Public authorities are not immune from negligence liability.

**Special Relationships — Employment References**
Employers owe a duty of care to former employees when providing references; liability for pure economic loss may arise.
- **Spring v Guardian Assurance [1995] 2 AC 296** — Guardian provided a negligently inaccurate reference for Spring after dismissing him, destroying his employment prospects. The House of Lords held that an employer does owe a duty of care when providing a reference; must take reasonable care to ensure it is accurate and fair. Significant expansion of negligence to cover economic loss in an employment context.

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### 1.2 Breach of Duty

**The Reasonable Person — Risk Calculus**
Actionable negligence requires a real risk of injury, not merely a remote possibility. Courts weigh: probability of harm occurring; magnitude of potential harm; cost and practicability of precautions; social utility of the conduct.
- **Bolton v Stone [1951] AC 850** — Miss Stone was struck by a cricket ball outside the Cheetham Cricket Club ground. Balls had been hit out of the ground only about 6 times in 30 years. The House of Lords held the risk was so small that a reasonable person would not have anticipated it and would not have taken precautions. No breach of duty. The risk must be a real risk that a reasonable person would guard against.

**Foreseeability and Type of Harm**
Specific injuries need not be foreseeable provided the general type of harm is reasonably foreseeable.
- **Bradford v Robinson Rentals Ltd [1967] 1 WLR 337** — Employer required a 57-year-old employee to drive 460 miles in an unheated van in severe winter weather. He developed frostbite. The court held that although frostbite specifically might not have been foreseeable, some form of cold-related injury was reasonably foreseeable — employer liable. The exact mechanism of injury need not be foreseeable; the general type of harm suffices.

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### 1.3 Causation

**Factual Causation: But-For Test**
The claimant must prove that but for the defendant's breach, the damage would not have occurred. The burden of proof is on the claimant on the balance of probabilities.

**Remoteness of Damage: Foreseeability Test**
A defendant is only liable for the type of consequence that was reasonably foreseeable at the time of the breach — not for every direct consequence.
- **Wagon Mound (No 1) [1961] AC 388** — The defendants' ship negligently discharged furnace oil into Sydney Harbour. The oil spread to the plaintiffs' wharf; welding sparks ignited the oil, causing a severe fire and damage. The Privy Council held the defendants were not liable for the fire damage: it was not reasonably foreseeable that furnace oil floating on water would ignite, even though pollution damage was foreseeable. This replaced the "direct consequence" rule from Re Polemis with a foreseeability test. The type of harm must be reasonably foreseeable; the precise manner of its occurrence need not be.

**Remoteness — Type Not Manner**
- **Bradford v Robinson Rentals Ltd [1967] 1 WLR 337** (also relevant here) — cold-related injury was the foreseeable type; frostbite was merely an unforeseeable form of that type. Defendant still liable.

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### 1.4 Psychiatric Harm / Nervous Shock

**Primary vs Secondary Victims**
Primary victims are within the foreseeable zone of physical danger and can claim for psychiatric injury without additional control mechanisms. Secondary victims face the Alcock control requirements: (1) close tie of love and affection with primary victim; (2) proximity in time and space to the accident or its immediate aftermath; (3) perception through unaided senses.

- **McLoughlin v O'Brian [1983] 1 AC 410** — Mrs McLoughlin's husband and children were seriously injured in a road accident caused by negligent driving. She was not at the scene but arrived at the hospital about an hour later, seeing them covered in blood and oil before learning her daughter had died. She suffered severe nervous shock. The House of Lords held she could recover: liability extends to secondary victims who witness the "immediate aftermath" of an accident, even if not present at the scene. This established the "immediate aftermath" doctrine.

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### 1.5 Pure Economic Loss and Negligent Misstatement

**General Rule: No Duty for Pure Economic Loss**
Absent a special relationship or physical damage, pure economic loss is not recoverable in negligence. Defects in quality that render property merely less valuable (as opposed to dangerous) are pure economic loss.
- **Murphy v Brentwood DC [1991] 1 AC 398** — Murphy purchased a house built on defective foundations approved by the council's inspector. Cracks appeared; the house was worth less than he paid. The House of Lords held the council owed no duty of care for pure economic loss arising from defective inspection approvals. Only dangerous defects causing personal injury or damage to other property are recoverable. The defective house itself is a pure economic loss item — the "complex structure" theory was rejected. Overruled Anns v Merton.

**Exception: Negligent Misstatement — Assumption of Responsibility**
A duty of care for negligent misstatement causing pure economic loss arises where there is a special relationship: the defendant assumes responsibility and the claimant reasonably relies on the statement.
- **Hedley Byrne v Heller [1964] AC 465** — Hedley Byrne, an advertising agency, sought a credit reference on their client from the client's bank, Heller & Partners. The bank gave a favourable reference "without responsibility." The client was in fact in financial difficulty and Hedley Byrne suffered economic loss. The House of Lords held that in principle a duty of care can arise for negligent misstatement where there is a special relationship of proximity based on assumption of responsibility and reasonable reliance. However, on the facts the disclaimer excluded liability. This created the major exception to the no-liability rule for pure economic loss — since expanded in Caparo, Spring, and White v Jones.

**High-Water Mark (now confined to its facts)**
- **Junior Books v Veitchi [1983] 1 AC 520** — Nominated sub-contractor laid a defective floor in the owner's factory. The House of Lords held (4:1) that in circumstances of extreme proximity (the sub-contractor was specialist, nominated by name, had direct dealings) a duty for pure economic loss existed. The case has been severely restricted by Murphy and subsequent cases; it is now treated as confined to its very special facts and should not be applied as general authority.

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## 2. DEFENCES

### 2.1 Contributory Negligence
Under the **Law Reform (Contributory Negligence) Act 1945**, where the claimant's own negligence contributed to their damage, damages are reduced by such proportion as the court finds just and equitable having regard to the claimant's share in responsibility. It is an apportionment defence — it reduces but does not extinguish the claim.

### 2.2 Volenti Non Fit Injuria
A complete defence where the claimant has voluntarily agreed to accept the legal risk of the defendant's negligence. Must be a genuine, fully informed, free agreement — not merely knowledge of the risk.

### 2.3 Ex Turpi Causa (Illegality)
A defendant may defeat a claim where the claimant's action arises from their own illegal activity. The court will not assist a claimant who relies on their own illegal act as part of the cause of action.

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## 3. STRICT LIABILITY

### 3.1 Rylands v Fletcher

**The Rule**
A person who brings onto their land something likely to cause mischief if it escapes must keep it at their peril and is strictly liable for damage caused by its escape — regardless of fault. Requirements: (1) non-natural use of land; (2) something likely to cause mischief; (3) escape from the land; (4) damage to the claimant.
- **Rylands v Fletcher [1868] UKHL 1** — Rylands constructed a reservoir on his land. Independent contractors he employed negligently failed to seal old mine shafts underneath. Water escaped through the shafts and flooded Fletcher's nearby mine. The House of Lords held Rylands strictly liable: a person who brings onto their land something likely to cause mischief if it escapes is strictly liable for all damage resulting from the escape, even without personal negligence. Lord Cairns added the requirement of "non-natural use."

**Restriction: Non-Natural Use Requirement**
Ordinary utility infrastructure does not constitute a "non-natural use." The rule is now of very limited practical application.
- **Transco v Stockport MBC [2003] UKHL 61** — Stockport's water pipe serving a block of council flats fractured without any negligence, destabilising an embankment and exposing Transco's gas pipe. The House of Lords unanimously dismissed the claim: the council's water main was not a non-natural use of land. Ordinary water supply is an entirely normal use of land. There was also no "escape" onto the claimant's land. The court confirmed Rylands v Fletcher remains part of English law but is of very narrow application.

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## 4. NUISANCE

### 4.1 Private Nuisance

**Unreasonable Interference — Malicious Conduct**
Interference with use and enjoyment of land must be unreasonable. Malicious motive can render otherwise tolerable conduct actionable.
- **Christie v Davey [1893] 1 Ch 316** — Christie was a music teacher who gave lessons in his semi-detached house. Neighbour Davey was annoyed by the noise and began deliberately banging on walls, whistling, and shouting to disrupt the lessons. Christie sought an injunction. The court held Davey's malicious noise-making constituted an actionable nuisance and granted the injunction. Where conduct is deliberately calculated to annoy, the defendant's malicious motive transforms what might otherwise be tolerable into an unreasonable interference.

**Key Elements of Private Nuisance:** (1) indirect interference with use or enjoyment of the claimant's land; (2) unreasonableness assessed by reference to locality, duration, nature, and the defendant's motive; (3) the claimant must have a proprietary interest in the affected land; (4) the interference must cause damage (or be an encroachment or physical damage).

### 4.2 Public Nuisance
A public nuisance is one that materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. It is primarily a crime but can give rise to a civil action by individuals who suffer "special damage" over and above that suffered by the public generally.

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## 5. VICARIOUS LIABILITY

### 5.1 The Close Connection Test

**Employer Liability for Employee Deliberate Wrongdoing**
Employers can be vicariously liable for employees' criminal acts if there is a sufficiently close connection between the nature of the employment and the wrongful act — not merely an opportunity connection.
- **Lister v Hesley Hall [2001] UKHL 22** — The defendants operated a school for children with emotional and behavioural difficulties. A warden employed at the school sexually abused pupils in his care. The House of Lords held the school vicariously liable: the warden's duties were so closely connected to the abuse (he was entrusted with caring for and having authority over the boys) that it was just to hold the employer liable. This replaced the more restrictive Salmond test (acts must be an unauthorised mode of an authorised act). The "close connection" test focuses on whether the employment placed the employee in a position to commit the wrong.

**Limits of Vicarious Liability — Personal Vendetta**
Where an employee acts purely for personal reasons unconnected to their employment duties, the employer is not vicariously liable.
- **Various Claimants v Morrisons [2020] UKSC 12** — A Morrisons employee, motivated by a personal grudge, uploaded colleagues' payroll data online. The Supreme Court unanimously held Morrisons was not vicariously liable: Skelton was pursuing a personal vendetta entirely separate from his employment duties. His wrongdoing was not sufficiently connected to his work as an auditor of the data. The Court also confirmed that the Data Protection Act 1998 does not of itself exclude vicarious liability claims.

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## 6. OCCUPIERS' LIABILITY

### 6.1 Occupiers' Liability Act 1957 — Lawful Visitors
Occupiers owe a "common duty of care" to all lawful visitors: to take such care as is reasonable in all the circumstances to ensure the visitor will be reasonably safe in using the premises for the permitted purpose. Standard is higher for children; lower for skilled tradespeople in respect of their trade risks.

### 6.2 Materialised Dangers on Premises
- **Dean and Chapter of Rochester Cathedral v Debell [2016] EWCA Civ 1094** — A bollard at cathedral premises was damaged by a third party's vehicle, becoming a hazard. A visitor tripped over it. The Court of Appeal held the occupier not liable: while occupiers must address dangers that materialise on their premises, this duty extends only to dangers that create a reasonably foreseeable risk of harm. The damaged bollard on the facts did not rise to a foreseeable danger requiring intervention. Third-party damage does not automatically create occupier liability absent foreseeability.

### 6.3 Occupiers' Liability Act 1984 — Trespassers / Non-Visitors
A more limited duty is owed to trespassers where: (a) the occupier is aware of the danger or has reasonable grounds to believe it exists; (b) the occupier knows or has reasonable grounds to believe a non-visitor may come into the vicinity of the danger; (c) the risk is one against which it is reasonable to offer some protection.

**Classic exam trap:** always identify whether the injured person is a lawful visitor (1957 Act) or a trespasser (1984 Act) before applying the statutory regime.

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## 7. DEFAMATION

### 7.1 Serious Harm Threshold — Defamation Act 2013, s.1
A statement is not defamatory unless it has caused or is likely to cause serious harm to the claimant's reputation (or, for bodies trading for profit, serious financial loss). This raised the threshold above the common law "tendency to lower in the estimation of right-thinking people" test.
- **Lachaux v Independent Print Ltd [2019] UKSC 27** — French aerospace engineer sued two newspapers for libel over articles alleging misconduct in custody proceedings. The Supreme Court held that s.1 DA 2013 requires proof that the statement caused or is likely to cause actual substantial damage — not merely that it has a tendency to cause damage. The word "caused" in the section refers to actual consequences, not merely a tendency. Foreign claimants with minimal UK reputation must demonstrate real UK harm.

### 7.2 Key Defences — Defamation Act 2013
- **Truth (s.2):** complete defence if the substantial meaning of the statement is substantially true.
- **Honest Opinion (s.3):** defence for opinion (not fact), where the opinion could be held by an honest person on the basis of facts existing at the time.
- **Publication on Matter of Public Interest (s.4):** replaces Reynolds privilege; available where the defendant reasonably believed publication was in the public interest.
- **Absolute privilege:** statements in Parliament, judicial proceedings.
- **Qualified privilege:** various circumstances including fair and accurate reports of public proceedings.

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## 8. REMEDIES AND POLICY

### 8.1 Key Remedies
- **Compensatory damages** — tortious measure: put the claimant in the position they would have been in but for the tort. Includes special (pecuniary) and general (non-pecuniary) damages.
- **Injunctions** — equitable, discretionary remedy to prevent a continuing or anticipated tort. Most relevant in nuisance and defamation.
- **Nominal damages** — awarded where a legal right is infringed but no substantial loss suffered. Available for trespass torts (actionable per se) without proof of damage.
- **Exemplary/aggravated damages** — exceptional; available in categories: (i) oppressive/unconstitutional conduct by government servants; (ii) defendant calculated that the wrong would profit them more than compensating the claimant.

### 8.2 Policy Rationales (for essay questions)
- **Corrective justice** — tort law corrects the wrong between the parties; not about social policy.
- **Deterrence** — liability deters future tortious conduct.
- **Loss-spreading** — liability insurance and vicarious liability shift loss from individuals to those better placed to absorb or distribute it (Calabresi).
- **Floodgates concern** — a recurring policy reason for limiting novel duties (seen in Caparo, Murphy, psychiatric harm control mechanisms).

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## Case-Law Quick Reference Table

| Proposition | Case | Citation |
|-------------|------|----------|
| Neighbour principle / modern negligence | Donoghue v Stevenson | [1932] AC 562 |
| Three-stage duty of care (novel cases) | Caparo Industries v Dickman | [1990] 2 AC 605 |
| Public authority duty of care | Home Office v Dorset Yacht Co | [1970] AC 1004 |
| Reference-giving duty / economic loss | Spring v Guardian Assurance | [1995] 2 AC 296 |
| Breach / risk calculus | Bolton v Stone | [1951] AC 850 |
| Remoteness — foreseeability test | Wagon Mound (No 1) | [1961] AC 388 |
| Remoteness — type not manner | Bradford v Robinson Rentals Ltd | [1967] 1 WLR 337 |
| Secondary victim / immediate aftermath | McLoughlin v O'Brian | [1983] 1 AC 410 |
| Negligent misstatement | Hedley Byrne v Heller | [1964] AC 465 |
| Pure economic loss (no duty) | Murphy v Brentwood DC | [1991] 1 AC 398 |
| Economic loss high-water mark (restricted) | Junior Books v Veitchi | [1983] 1 AC 520 |
| Strict liability — escape from land | Rylands v Fletcher | [1868] UKHL 1 |
| Rylands — non-natural use narrowly construed | Transco v Stockport MBC | [2003] UKHL 61 |
| Private nuisance — malice | Christie v Davey | [1893] 1 Ch 316 |
| Vicarious liability — close connection | Lister v Hesley Hall | [2001] UKHL 22 |
| Vicarious liability — personal vendetta | Various Claimants v Morrisons | [2020] UKSC 12 |
| Defamation — serious harm threshold | Lachaux v Independent Print Ltd | [2019] UKSC 27 |