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TORT complete revision booklet
Law of Tort (LAW209)
University of Liverpool
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Includes content that need to know, cases to help and academic commentary
Topic 1: nuisance
2 types, namely public and private nuisance
Private nuisance
P Winield ‘Nuisance as a tort’ (1931) – ‘unreasonable interference with a person’s use or enjoyment of land, or some other right over or in connecion with it’’ Whilst Donoghue v Stevenson says we ought to have our neighbour in contemplaion, nuisance looks at what qualiies as good neighbours and what reasonable use of land is Concerns what you should be able to do with land and what you should be expected to put up with Lawton LJ in Kennaway v Thompson - ‘ Nearly all of us living in these islands have to put up with a certain amount of annoyance from our neighbours... Intervenion.. only jusiied when the irritaing noise causes inconvenience beyond what other occupiers.. be expected to bear.’ 3 types of private nuisance: physical interference, intangible interferences and physical encroachment
Physical interference
D’s act = physical damage/injury to C’s land, C’s interest in land or things growing on or aixed to C’s land Structural damage by vibraions – Sturges v Bridgman D ixing posters or inscribing graii - City of London v Samede Leakage or spread, i. sewage - Cambridge Water v Eastern Countries Leather
Intangible interference
D’s act causes intangible interferences that cause discomfort or inconvenience to C’s use / enjoyment of land Odours - Barr v Bifa Waste Services Noises – Coventry v Lawrence Smoke, dust, fumes - Anthony v Coal Authority
Law of Tort complete revision booklet
Aciviies on neighbouring land that are highly visible – Lippat v South Gloucestershire
Physical encroachment
D does not create a natural hazard but allows or causes it to interfere with C’s enjoyment of his land Tree roots – Delaware Mansions v Westminster CC Floor or ire spreading from D to C’s land – Green v Somerleyton Mosquitos or biing insects lying from D’s property – Dobson v Thames Water Uiliies
Who can sue?
Only have standing if have ‘suicient proprietary interest’ as in Hunter v Canary Wharf, this reminds us it is a land based tort So, in order to have standing, you need interest in the land. So, owners and those with exclusive possession Tradiional approach = no proprietary interest means no claim as in Malone v Laskey Slight departure from tradiional approach in Khorasandijan v Bush, but we see the Court sill not ind proprietary interest as no proprietary interest. Tradiional approach overruled by Hunter Hunter v Canary Wharf – reairmed Malone v Laskey and held no nuisance when lawful use of property interrupts neighbour’s TV signals, and only those with proprietary interest / exclusive possession can sue Scope for criicism on Hunter being too harsh. People are asking if the rule of needing proprietary interest is a bit harsh. It can appear a bit Dickensian and backwards when tort should really be going forward In Pemberton v Southwark harshness of rule was miigated and when C became trespasser due to falling into arrears with rent, she sill had standing for presence of cockroaches due to exclusive possession Academic commentary on Hunter v Canary Wharf John Wightman says in ‘Nuisance – the environmental tort? Hunter v Canary Wharf in the House of Lords’ (1998), that the HL decision to conine the acion in private nuisance to those with an interest in land obstructs further recogniion of environmental harms by tort. It prevents
Hunter v Canary Wharf said you can reasonably use your land, so you can do as please as long as it is reasonable St Helen’s Smeling Co v Tipping, Lord Westbury disinguished between physical damage and emanaions If nuisance causes physical damage to C’s property = court almost certainly decide it has caused nuisance If nuisance leads to emanaions (noise, dust, light) which afect C’s enjoyment of land = court consider other relevant factors If do not have black and white physical damage, we look at: intensity of interference, nature of locality, bad intenion of D and sensiivity of the C
Intensity of the interference
WHAT is the nuisance, HOW BAD is it and HOW LONG have you been sufering? Kennaway v Thompson – nuisance here increased over ime, C paid backward and forward damages Duraion and frequency are to be looked at – Cunard v Aniire, Talbot J said that private nuisances are interferences for a substanial amount of ime Can twin Cunard with De Keyser’s Royal Hotel v Spicer Bros where temporary building work was a nuisance and Crown River Cruises v Kimbolton Fireworks where 20 mins of ireworks was a nuisance
Nature of locality
What would be a nuisance in Belgrave Square would not necessarily be a nuisance in Bermondsey – Thesiger LJ in Sturges v Bridgman Absence of complaints may make a claim more diicult – Murdoch v Glacier Metals Cannot apply hindsight, cannot say ‘what a lovely place this used to be Nature of locality may change over ime; planning permission can provide defence only when it has efect of changing the nature of locality Coventry v Lawrence - Supreme Court that the fact that planning permission has been granted does not mean that the relevant acivity is lawful and is therefore of no assistance to the defendant. The issue of common law nuisance is reserved to the court rather than the relevant planning authority. Case held that planning permission can only funcion as evidence of character of locality, but is not consituive thereof [96]
Gillingham BC v Medway Dock – planning permission showed intenion to regenerate / change locality, makes nuisance claim more diicult but will never clean hands by proxy Scope for academic commentary on locality principle: A says in ‘The Law of Private Nuisance’ (2014) that a consequence of the locality principle is that the permissible level of interference with a person’s land may vary, which gives rise to concern that people may enjoy unequal rights Locality principle can be good as it provides an incenive for people to locate their aciviies in suitable locaions – as said in 1955 by J.H and J.W in ‘Judicial Zoning through Recent Nuisance Cases’
Bad intenion of D
Chrisie v Davey – D made noise in a malicious way, so his behaviour was a nuisance If you create a nuisance in retaliaion to a nuisance, you lose ability to sue Hollywood Silver Fox Farm v Emmet – moivated by malice here, so despite abnormal sensiivity = nuisance
Abnormal sensiivity
D’s conduct must afect ordinary person Recreaional acivity: in Bridlington Relay v Yorkshire Electricity a recreaional acivity renders C’s aciviies abnormally sensiive, therefore beyond the capacity of tort to provide a remedy ( Robinson v Kilvert ) 2 sides to this factor: abnormally sensiive person and abnormally sensiive use If something has an abnormally sensiive use then D not liable, as seen in Robinson v Kilvert where abnormally sensiive paper was the subject
McKinnon Industries v Walker – abnormally sensiive use
Heath v Mayor of Brighton – special requirements of church to be quiet does not impose higher standards for neighbour
Defences for nuisance
Statutory authority – you have something in place like statute for the nuisance to happen, full defence,
making reference to property’s drop in value during period in which nuisance persists Does not apply to personal injury ( Hunter ) May be awarded for damage to chatels
Topic 2: Rylands v Fletcher
Similar to nuisance but refers to isolated escapes. If happened repeatedly it would be nuisance Form of strict liability Rule under Rylands created a new strict liability in tort where other land based torts could not act A. Waite in ‘Deconstrucing the Rule in Rylands v Fletcher’ (2006 ) looks at why Blackburn J considered strict liability as the norm and fault liability as the excepion. He then quesions why there should be a decision in favour of SL, given the advances in negligence. But then counter argues with this the fact that this may have been due to progressions in 19th century of industrial revoluion and public concern of bursing reservoir dams. Professor Newark (1949) also speaks in the area of Rylands v Fletcher but he criicises and says the boundaries of nuisance have become fogged. Rylands should be a simple case of nuisance, but they wrongfully made it an excepional case.
Who can sue?
C must have proprietary interest in the afected land Cambridge Water Personal injury not recoverable, courts have shown weakness here though
Who can be sued?
Occupier of land from which escape took place This rule also applies to person who brings on his lands and collects and keeps the thing in quesion – as per Blackburn J in Rylands v Fletcher
Rylands v Fletcher
Blackburn J established 4 key ingredients under the rule
D brings something onto his land that is likely to do mischief, that thing escapes, thing must consitute non natural use of land, resuling damage must be foreseeable to D
D brings onto land something likely to do mischief
Must be voluntary act ( Giles v Walker – no liability for things that occur naturally on the land) Requires evidence D brought something onto land voluntarily Brought on also means kept on That thing does not need to be ultra-hazardous per se, it must be capable of causing damage if escapes Rylands – water Hale v Jennings Bros – fairground ride (and passenger) Naional Telephone v Barker – electricity Rainham Chemical Works v Belvedere Fish Guano – explosives Mulholland v Baker – oil Stannard v Gore – did not apply to tyres Courts don’t want this stage to be easily saisied, Lord Bingham said in Transco v Stockport that it must be shown that D had done something which he recognised, or judged by standard appropriate at the relevant place and ime, he ought reasonably to have recognised, as giving rise to an excepionally high risk of danger or mischief if there should be an escape however unlikely an escape might be thought of’
That thing escapes
Escape = ‘thing; that causes damage moves from D’s premises to place outside of D’s control Read v Lyons – no escape here as explosion happened in conides of land of owner, no Rylands There was also no escape in Transco v Stockport Intenion releases of things can qualify as escapes if they were not aimed in direcion of C – Crown River Cruises v Kimbolton Fireworks When thing accumulated on land is diferent to thing that escapes? In Stannard v Gore, tyres caught ire due to faulty electrics and way stored, ire broke onto neighbouring land, Rylands applied because of way thing was haphazardly stored
Boxx v Jubb – no liability, 3rd party looded D’s land which looded C’s Rickards v Lothian – wrongful act of third party and no non-natural use of land, so no Rylands here Act of nature/God – Nichols v Marsland C’s default – wholly or parially C’s fault Poning v Noakes – C’s horse died from eaing D’s yew tree, no escape as tree completely in conines of D’s land Law Reform (Contributory Negligence) Act 1945 s1 – damages reduced if damage is parially or fully C’s fault
Remedies
See nuisance remedies Note that injuncions less likely as Rylands refers to isolated escapes!
Topic 3: strict liability for defecive products
Strict liability = imposiion of liability which does not depend on actual negligence / intent to do harm Fault is removed There are diferent forms of strict liability, we are looking at strict liability for defecive products This is presided by fault-based common law (tort) and strict liability based statute (Consumer Protecion Act 1987 = CPA) 2 pillars of law that enables C’s to claim damages for defecive products. 1 pillar is strict liability based. The common law (tort of negligence) is the to go to when a C is damaged by defecive products. But bear in mind, C can claim under both, two acions can be launched simultaneously under common law of tort of negligence and the CPA.
Why was it introduced?
Important to see why CPA was introduced In order to enable claimants to be more successful at mouning claims against manufacturers It is supposed to be an easier avenue of address
Common law (tort of negligence)
Duty of care - Donahue v Stevenson provides general concept of DoC, must reasonably foresee that we take care not to cause harm to another through our acions Courts were willing to apply neighbour principle to products that consumers rely on. When Donoghue was decided and in the years ater, society became more commercialised, with new [someimes harmful] products hiing the shelves Breach – D must be expected to show he has fallen below standards expected of him In relaion to defecive products, usually very diicult for C to show that the D manufacturer is at fault. WHY? Accessing informaion to support their case, i. info about producion etc, is diicult to maintain. Even the manufacturer may not know this informaion.
Grant v Australian Kniing Mills – C not required to show what went wrong in manufacturing process, it can be inferred in defecive product cases. Courts willing to apply res ipsa loquitur to manufacturing defects Causaion / remoteness - If the negligent manufacturer can reasonably expect intermediate inspecion would have ideniied the defect before use, they can argue that the chain of causaion is broken. Hurley v Dyke – “sold as seen with all its faults” discharged the seller’s duty The convenion of interfering negligence is only applicable to manufacturing defects (i. cases where the defect has clearly been caused by a problem in the manufacturing process. It is not as straighforward in cases of ‘design defects’. For example, in the Thalidomide scandal...
Thalidomide Scandal – one of the darkest areas in pharmaceuical history!
As Goldberg (2013) said, pharmaceuical drugs present some speciic legal problems that sill persist today. Thalidomide scandal = drug was marketed as a mild sleeping pill that could also alleviate morning sickness. It was marketed as safe for pregnant women. Caused babies to be born with malfuncioning limbs Happened in 1960’s
Broader raionale: greater harmonisaion of laws, healthier compeiion and beter consumer protecion
Does not replace the common law. NOTE: common law sill exists! Do not refer to it as previous common law.
Scope for possible argument against need for strict liability? - Rod Freeman says in ‘Product liability for defecive goods’ (2001) that under review of the irst three decisions under the CPA, claimants ‘in these cases fared no beter under strict liability laws than they would have under a common law acion in negligence’.
When applying the CPA for purposes of establishing liability, the general quesion is: is the D a producer of a defecive product which caused damage to C?
This CPA asks this by asking:
What is a product?
Who can sue?
Who can be sued?
What is a defect?
Type of damage?
What is a product?
s 1(2): ‘any goods, electricity and includes products comprised in products by being a component or otherwise’ Exempions: a building? No – not a ‘good’, informaion is not a product for purpose of CPA A building’s heaing system? Yes – a component. Anything inside the building would be a product. i. the chairs, tables, doors etc s 45(1): includes substances, growing crops, things atached to the land and ships, aircrat and components of a building.
Who can sue?
S2(1): anyone who ‘sufers damage’ as a result of the defecive product
Who can be sued?
CPA has 4 categories of potenial D which the C can pursue. This gives C opions. This is governed by s2(2) and (3) 4 categories: producers, own-branders, importers into the EU, suppliers
Producer:
Manufacturers Winners/abstracters of product (used to refer to farmers or ishermen who culivate or gather natural resources not manufacture them) Appliers of industrial or other processes who produces an ‘essenial characterises’ of the product, i. a product that gets treated by a chemical
Own branders: An ‘own brander’ is any person who, by puing his name to the product or using a disinguishing mark, holds himself out to be the producer. It is a inding of fact whether D has held themselves out to be a producer. Holds itself out to be producer (i. Tesco baked beans) Does not ‘hold out’ if product marked as produced by someone else (Baked Beans made for Tesco)
Importers into the EU:
Importers into the EU also liable for defecive products they import Making it easier for the claimant than trying to sue a company in another jurisdicion.
Suppliers:
Liable if, on request, and ater a reasonable amount of ime, the supplier cannot idenify 1, 2 or 3 above
What is a defect?
Perhaps the most problemaic aspect of CPA 1987
S3(1) - ind ‘deiniion’ here - a product is defecive if its safety ‘ is not such as persons generally are enitled to expect’
- Fact that products supplied later are safer does not mean product is defecive. Has to be judged by standards prevailing at the ime it was supplied
S3 is beter suited for helping the courts determine reasonable consumer expectaions in relaion to products with manufacturing defects (i., otherwise known ‘lemons’ or ‘duds’). What it is poor at is helping the courts what reasonable consumer expectaions are in relaion to cuing- edge products (e., pharmaceuical drugs) with design defects
Due to broad wording, there are 2 ways of looking at s3 (1)
‘All the circumstances’ is open to interpretaion We have a negligence inspired interpretaion and strict-liability based interpretaion
Negligence based:
Richardson v LRC Products – drawing on all circumstances, manufacture was not holding product out to be 100% safe Bogle v McDonalds – consumers know to be careful around hot drinks, consumers expected to take lid of to add milk and sugar
Strict liability based:
A v The Naional Blood Authority – Burton J very pro-consumer, constructer phrase all the circumstances very narrowly, he considered that it was important to say, ‘all the relevant circumstances. To see what was relevant, have to disinguish between standard and non-standard products [para 36] Burton J disinguished between standard and non-standard products to try and concisely deine what ‘all the circumstances’ actually is and how it should be interpreted Burton J – A: No. Blood infected with Hepaiis C was ‘defecive’. If maters such as the diiculty or cost of eliminaing the risk were to be taken into account, it would render the Direcive ‘not only toothless but pointless
Non-standard Standard = what consumers expect Does not perform as intended Performs as intended
Diferent because it contains a certain characterisic
Share the same characterisics
So, what consumers are enitled to expect is answered by standard product. i. uncontaminated blood packets that perform as intended.
But, at what cost does this strict-liability approach come? Scope for academic commentary :
Hodges (2001) said this reading of all the circumstances is too narrow.
Scope for academic commentary here: Goldberg (2002) said unrealisic, is blood a special case? Could this really be applicable in other cases that do not involve blood.
Scope for academic commentary on where Burton J’s disincion – David Body (2012) in ‘Product liability claims under the CPA 1987: some pracical problems’ points out that whilst A v NBA provides guidelines for defect in a non-standard product, ‘the next obvious area that requires deiniion – defect in a standard product – has not yet been tested in England and Wales’. Unil this is tested, the direcive will not have it is full efect. Here, it could be suggested that whilst Burton J’s dichotomy gives us a clearer understanding of defect with regards to non-standard products, it does not clarify defects completely as it fails to suggest what a defect could look like in a standard product. CPA is therefore gives us 50% of a deiniion.
Type of damage?
S5(1) – damage means death and personal injury or any loss of or damage to property S5(3) – product must be intended for private use and mainly so intended by the C. business users can sue in the tort of negligence
S5(4) – inancial lower limit on damage to claim for property – must be worth more than £
Defences?
If it is proved that damage was caused by a defect, s4 comes into play
s 4(1)(a) – defect atributable to legal compliance (a manufacturer may turn
around and say they complied with regulaions) s 4(1)(b) – D did not supply product to another
s 4(1)(c) – supply was non-commercial
Protect individual’s right to bodily integrity Need 3 elements in common:
- Commited intenionally
- Direct and immediate interferences with C
- Acionable per se (C doesn’t need to prove special damage, fact someone’s bodily integrity is interfered with is enough) Will also look at the rule in Wilkinson v Downton and Protecion from Harassment Act 1997 – diferent common elements to trespass but protect similar interests
Batery
Lord Gof in Collins v Wilcock at – ‘actual inlicion of unlawful force on another person’
Intenional
D acion = voluntary. i. not using someone else’s arm to hit Intenion to physical contact, not resultant damage, Wilson v Pringle – intended to pull bag but broke arm = suicient Williams v Humphries – pushed into pool, caused serious injury = intenion to make physical contact enough Recklessness is suicient - Beasie and Venna Transferred malice – Beasie Can be omited via omission – Fagan v MPC
Negligent trespass
Used to be possible, no longer case, Letang v Cooper
Directness
Reynolds v Clarke – person hit by log = direct, trip over = indirect Scot v Shepherd – direct even if irework passed to others before DPP v K – directness interpreted broadly when boys puing acid in hand dryer to burn hands of next person = direct
Force, physical contact
Contact with body or clothing of C Cole v Turner – ‘least touching of another in anger is batery’, doesn’t have to cause injury Kaye v Robertson – force can be inlicted with instrument
Hosility
CA added this requirement that the batery must be hosile Lord Gof in Re F , hosility is not required
Acionable per se
Re F, batery here actually improved C’s health, does not need to injure
Assault
Gof in Collins v Wilcock – ‘act which causes person to apprehend inlicion of immediate, unlawful force on his person’ Reasonable apprehension of batery. No need for physical contact. Planning not assault in Mbasogo May or may not accompany batery – Stephen v Myers (D went to hit but did not) F.A (1982) – tort of assault is ‘extremely important for protecing the mental integrity of the person’. Anicipaion of physical harm / contact can be traumaic
Intenion
Recklessness not suicient, per Elias in Bici Requires overt act by C, Hepburn v CC of Thames Valley Police – D stood in front of C and didn’t do anything, not suicient for assault
Assault by words alone
Meade’s v Belt’s Case – Holroyd J: ‘no words or singing are equivalent to assault’ Requirement outdated R v Ireland – Lord Steyn: fact that gesture can = assault but words can’t is unrealisic Ireland also shows silent phone calls can = assault in criminal law. NB – before HA
Words can negate an assault
Tuberville v Savage – ‘if it were not assize imes, I wouldn’t take such language’, sword = assault, but negaing words stop it being assault Condiional threats do not negate an assault, Read v Coker
TORT complete revision booklet
Module: Law of Tort (LAW209)
University: University of Liverpool
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