- Tort Semester 1 Gemma Turton PDF

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Semester One: Negligence Law of Torts 2018/19

Dr Gemma Turton Associate Professor of Tort Law

[email protected] Tort Law Drop-In and Office Hours: Thursday 11am-12noon and 2-3pm In advance of the tort lectures, please sign up for a free student account at tophat.com (or in the Top Hat app if you prefer) using join code 800385 and bring along your laptop/mobile/tablet to the lecture (you will need to use wifi in the lecture theatre) to participate in quizzes.

LAW OF TORTS 2018-19 LW1150/1151/2410

Introduction to Negligence 1 The nature of tort law: what is a tort? How does tort relate to other areas of law such as criminal law and contract law? What are the various torts that we study and the interests they protect?

2 The theoretical foundations of tort law: why do we have tort law? a) Some functions/effects of tort liability Compensation How can tort law be seen as a system for compensation? What are some of the failings of tort law as a system of compensation? Deterrence How does tort law function as a deterrent? Is tort law an efficient system of deterrence? Vindication What is ‘vindication’? Is tort law a system for vindication? b) Corrective justice and interpersonal responsibility What is corrective justice? Why is it argued to provide the basis for negligence liability? c) The role of insurance What place does insurance have in the tort system? To what extent should the availability of insurance impact on liability decisions?

3 The elements of a negligence action: what do you need to prove to bring a negligence claim?     

Damage Duty of care Breach of duty Causation Defences

4 The doctrine of vicarious liability 1

What is vicarious liability? How is vicarious liability justified?

5 Alternatives to the tort system The Royal Commission on Civil Liability and Compensation for Personal Injury Cmnd 7054 (1978) – The Pearson Commission The New Zealand model of accident compensation – no-fault liability First-party insurance

Reading on introduction to tort law Core reading Giliker, Tort (6th ed., 2017) Chapter 1 Horsey and Rackley, Kidner’s Casebook on Torts (14th ed. 2017) Chapter 1 In depth R Lewis, ‘Compensation Culture Reviewed: Incentives to Claim and Damages Levels’ [2014] JPIL 209 Q: what are some of the current concerns surrounding the negligence liability – do we have a compensation culture? PS Atiyah, The Damages Lottery, 1-7 and 21-31 P Cane, Atiyah’s Accidents, Compensation and the Law, Ch 1 Conaghan & Mansell, The Wrongs of Tort, Ch 1 (click link in electronic copy of handout to find the e-book)

Damage and Duty of Care 2

Actionable damage Hinz v Berry [1970] 2 QB 40 Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39 Lord Hoffmann: Damage…is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a change in physical condition, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one’s health or capability.

Duty of care The current law: the Caparo test 1) The claimant should point to a direct precedent or closely analogous precedent; 2) Where no relevant precedent exists, the court should apply a tripartite test for duty: (a) Foreseeability (b) Proximity (c) Fairness, justice and reasonableness.

The development of the duty concept: how did we reach the Caparo test? (i)

Donoghue v Stevenson [1932] AC 562

Lord Atkin: ….in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances.

The ‘neighbourhood principle’: 3

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question. (ii) Anns v Merton London Borough Council [1978] AC 728 Lord Wilberforce’s 2-stage test for duty: …the position has now been reached that in order to establish that a duty of care exists in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First, on has to ask whether, as between the alleged wrongdoer and the person who suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise. Murphy v Brentwood District Council [1991] 1 AC 398 Peabody Donation Fund v Sir Lindsay Parkinson [1984]

Reading on duty of care Core reading Giliker, Tort (6th ed. 2017) p 28-49 Horsey and Rackley, Kidner’s Casebook on Torts (14th ed. 2017) p11-20 In depth J Hartshorne ‘Confusion, contradiction and chaos within the House of Lords post Caparo v Dickman’ (2008) 16(1) Tort Law Review 8–22 (available in the library and on blackboard). Q: What criticisms does the author make of the application of the Caparo test in subsequent cases?

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Duties of care owed by the police and other emergency services Introduction Re-cap of the Caparo test Caparo Industries v Dickman Plc [1990] 2 AC 605: the current test for duty in ordinary negligence cases 1) The claimant should point to a direct precedent or closely analogous precedent; 2) Where no relevant precedent exists, the court should apply a tripartite test for duty: (a) Foreseeability (b) Proximity (c) Fairness, justice and reasonableness Definitions: what is a striking-out action?

Police failure to prevent harm to the victim Michael v Chief Constable of South Wales [2015] UKSC 2 Lord Toulson (the majority judgment):

English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T): Smith v Littlewoods Organisation Ltd [1987] AC 241, 270… The fundamental reason, as Lord Goff explained, is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else… An “immunity” is generally understood to be an exemption based on a defendant’s status from a liability imposed by the law on others, as in the case of sovereign immunity. Lord Keith’s use of the phrase [in Hill v Chief Constable of West Yorkshire] was, with hindsight, not only unnecessary but unfortunate… The question is therefore not whether the police should have a special immunity, but whether an exception should be made to the ordinary application of common law principles which would cover the facts of the present case.

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Exceptions to the rule of no liability for omissions: 1) Control: Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360 2) Assumption of responsibility: Barrett v Ministry of Defence [1995] 1 WLR 1217

Impact on earlier case law: 1) The ‘Hill principle’: Hill v Chief Constable of West Yorkshire [1989] AC 53 2) Lord Bingham’s dissent in Smith v Chief Constable of Sussex Police [2009] 1 AC 225

Critiques - Lady Hale’s dissent in Michael: It is difficult indeed to see how recognising the possibility of such claims could make the task of policing any more difficult than it already is. It might conceivably, however, lead to some much-needed improvements in their response to threats of serious domestic abuse. I very much regret to say that some of the attitudes which have led to the inadequacies revealed in that report may also have crept into the policy considerations discussed in Smith…If the imposition of liability in negligence can help to counter such attitudes, so much the better.

Cases where the police have owed a duty: 1) Creation of danger: Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 2) Witnesses/informants: Swinney v Chief Constable of Northumbria Police [1997] QB 464 An informer v A chief constable [2012] EWCA Civ 197 3) Employees: Costello v Chief Constable of Northumbria [1999] 1 All ER 550 Mullaney v Chief Constable of the West Midlands [2001] EWCA Civ 700

Other scenarios where the police did not owe a duty: 1) Police in their own interaction with victims: Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 2) CRB checks: Desmond v Chief Constable of Nottinghamshire [2011] EWCA Civ 3

Continuing the modern trend of focusing on precedent rather than the Caparo test Robinson v Chief Constable of West Yorkshire [2018] UKSC 4 The UKSC video summary is available here: https://www.supremecourt.uk/watch/uksc-2016-0082/judgment.html

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An alternative to negligence: article 2 ECHR ‘right to life’ claims Osman v UK (2000) 29 EHRR 245 Van Colle v Chief Constable of Hertfordshire [2009] 1 AC 225 Van Colle v United Kingdom (2013) 56 EHRR 23 Michael v Chief Constable of South Wales [2015] UKSC 2

Other emergency services The fire brigade Capital & Counties v Hampshire CC [1997] QB 1004 The coastguard OLL v Secretary of State for the Home Department [1997] 3 All ER 897 The ambulance service Kent v Griffiths [2000] 2 All ER 474

Reading on police liability Core reading th

Giliker, Tort (6 ed. 2017) p69-78 Horsey & Rackley, Kidner’s Casebook on Torts (14th ed. 2017) p 86-107

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LAW OF TORTS 2018-19 LW1150/1151/2410

Exceptional duty scenarios: Psychiatric harm Context: we are considering the tort of negligence which consists of actionable damage, duty of care, breach of duty, causation and remoteness. These lectures address a particular type of damage: psychiatric illness. The two aspects of the negligence inquiry that arise are actionable damage and duty of care.

We therefore need to address two questions: a) When dealing with psychiatric illness, what constitutes actionable damage? b) When will a person owe a duty of care to another to avoid causing them psychiatric illness?

Actionable damage in psychiatric harm claims Legal principle Hinz v Berry [1970] 2 QB 40

Duty of care in psychiatric harm claims The law distinguishes between ‘primary’ and ‘secondary’ victims when deciding whether the defendant owed them a duty of care. We need to address a number of issues: 1) Was the claimant a ‘primary’ or a ‘secondary’ victim? 2) What conditions must be satisfied before a defendant owes a duty of care to a primary victim? 3) What conditions must be satisfied before a defendant owes a duty of care to a secondary victim? 4) What rules apply in situations where the victim cannot be classified as a primary or secondary victim?

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Was the claimant a ‘primary’ or a ‘secondary’ victim? Page v Smith [1996] AC 155 McFarlane v EE Caledonia [1994] 2 All ER 1

Duty of care owed to primary victims Page v Smith [1996] AC 155 Corr v IBC Vehicles [2008] UKHL 13 Rothwell v Chemical and Insulating Co Ltd [2007] UKHL 39

Duty of care owed to secondary victims The foreseeability requirement for secondary victims Bourhill v Young [1943] AC 92 The ‘Alcock criteria’ for secondary victims Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 1) Proximity of relationship: close relationship of love and affection McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 2) Proximity in time and space: immediate aftermath Galli-Atkinson v Seghal [2003] EWCA Civ 697 Palmer v Tees [2000] 2 LGLR 69 Taylor v A Novo [2013] EWCA Civ 194 Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (HC) 3) The sudden shock requirement Sion v Hampstead Health Authority [1994] 5 Med LR 170 (CA) North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588

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Problems with the primary/secondary victim distinction Rescuers White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 Involuntary participants Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271 W v Essex CC [2001] 2 AC 593 Occupational stress Hatton v Sutherland [2002] EWCA Civ 76 Barber v Somerset CC [2004] UKHL 13 Hartman v South Essex Mental Health & Community Care Trust [2005] EWCA Civ 6 Butchart v Home Office [2006] EWCA Civ 239

Further reading: Law Commission Report on Liability for Recovery for Psychiatric Illness http://www.lawcom.gov.uk/docs/lc249(1).pdf What recommendations did the Law Commission make?

Reading on psychiatric harm Core reading Giliker, Tort (6th ed. 2017) Chapter 4 plus p254-7 on occupational stress Horsey & Rackley, Kidner’s Casebook on Torts (14th ed, 2017) Chapter 4

In depth Burrows & Burrows, ‘A shocking requirement in the law of negligence liability for psychiatric illness’ (2016) Med LR 24 278-285 Q: What criticisms does the author make of the sudden shock requirement? What inconsistency do they find in the court’s approach?

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Exceptional duty scenarios: Pure economic loss Background Derry v Peek (1889) 14 App Cas 337

Actionable damage: defining ‘pure economic loss’ Spartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 ‘Relational’ economic loss Weller v Foot and Mouth Disease Research Institute [1966] 1 QB 569 Distinction between pure economic loss and property damage Murphy v Brentwood District Council [1990] 2 All ER 908 Defective Premises Act 1972

Duty of care: the Hedley Byrne exception General rule of no duty Candler v Crane, Christmas & Co [1951] 1 All ER 426

Negligent misstatements: the ‘Hedley Byrne principle’ Hedley Byrne v Heller [1964] AC 465 1) Special relationship Mutual Life v Evatt [1971] AC 793 Esso Petroleum v Mardon [1975] QB 819 Chaudhry v Prabhakar [1988] 3 All ER 718 2) Assumption of responsibility Customs and Excise Commissioners v Barclays Bank Plc [2006] 3 WLR 1 Playboy Club v Lavoro [2018] UKSC 43 - Disclaimers Hedley Byrne v Heller [1964] AC 465 Smith v Eric Bush [1990] 1 AC 831 Caparo v Dickman [1990] 2 AC 605 3) Reasonable reliance Howard Marine and Dredging Co Ltd v Ogden [1978] 2 WLR 515 Scullion v Bank of Scotland [2011] EWCA Civ 693 11

Summarising the current law: James McNaughton v Hicks Anderson [1991] 2 WLR 641 The relationship between the Hedley Byrne test and the Caparo test for duty Customs and Excise Commissioners v Barclays Bank Plc [2006] 3 WLR 1

Extensions of the Hedley Byrne principle Negligent provision of services Henderson v Merrett Syndicates [1994] 3 WLR 761 Negligent references Spring v Guardian Assurance [1994] 3 WLR 354 Disappointed third-party beneficiaries White v Jones [1995] 2 AC 207 Gorham v BT [2000] 1 WLR 2129

Reading on pure economic loss Core reading Giliker, Tort (6th ed. 2017) Chapter 3: 3-001 to 3-008 and 3-016 to 3-046 Horsey & Rackley, Kidner’s Casebook on Torts (14th ed. 2017) Chapter 6

In depth Stanton, ‘Defining the duty of care for bank references’ (2016) 32 PN 272-275 Q: Does the author agree that the ‘assumption of responsibility’ requirement is appropriate for every case? What factors does he argue are pertinent to finding a duty? Which case could you use in a problem question to raise these factors when applying the Hedley Byrne test?

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LAW OF TORTS 2018-19 LW1150/1151/2410

Breach of duty Context: we are considering the tort of negligence which consists of actionable damage, duty of care, breach of duty, causation and remoteness. We have already studied damage and the question of whether the defendant owes a duty of care, now we are asking whether she breached that duty of care.

1) Legal question – what was the standard of care, how ought D to have behaved? 2) Factual question – did D in fact fall below the standard expected of her?

The Legal Standard of Care Objective test: the reasonable person standard Blyth v Birmingham Waterworks Co (1856) 11 Ex. 781 Alderson B: 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. Glasgow Corporation v Muir [1943] AC 448 Nettleship v Weston [1971] 2 QB 691

What would the reasonable person take into account? Learned Hand J in Conway v. O’Brien 111 F 2d 611 (1940), 612: “The degree of care demanded of a person by an occasion is the resultant of three factors: the likelihood that his conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk”. 13

Foreseeability of harm Roe v Minister of Health [1954] 2 QB 66 Likelihood of harm Bolton v Stone [1951] AC 850 Haley v London Electricity Board [1965] AC 778 Seriousness of harm Paris v Stepney Borough Council [1951] AC 367 Cost and practicability of precautions Latimer v. AEC Ltd [1953] AC 643 The Wagon Mound (No.2) [1967] 1 AC 617 Smith v Littlewoods Organisation Ltd [1987] AC 241 Watt v Hertfordshire County Council [1954] 1 WLR 835 s1 Compensation Act 2006 A court considering a claim in negligence…may, in determining whether the defendant should have taken particular steps to meet a standard of care, have regard to whether a requirement to take those steps might – (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity. Scout Association v Barnes [2010] EWCA Civ 1476

Social Action, Responsibility and Heroism Act 2015 1 When this Act applies: This Act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care. 2 Social action: The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members. 3 Responsibility: The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others. 4 Heroism:

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The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger.” Lowering the standard? Emergencies Watt v Hertfordshire County Council [1954] 1 WLR 835 Children Mullin v Richards [1998] 1 WLR 1304 Palmer v Cornwall [2009] EWCA Civ 456 Defendant with mental disorder Dunnage v Randall [2015] EWCA Civ 673 Sporting events Wilks v Cheltenham Cycle Club [1971] 1 WLR 668

Proof of Breach The civil standard of proof – the ‘balance of probabilities’ Smith v Kempson [2011] EWHC 2680

Reading on the reasonable person standard Core reading Giliker, Tort (6 ed. 2017) Chapter 5: 5-001 to 5-019 and 5-028 to 5-035 Horsey & Rackley, Kidner’s Casebook on Torts (14th ed, 201...