TORTS 1-Lecturer: Emily Kinama

Introduction Lecture 1

Tort is a French equivalent of the English word wrong

It is derived from the Latin word tortus meaning twisted.

The elusiveness of a precise definition

Definition by Salmond

A tort is a civil wrong for which the remedy is a common law action for
unliquidated damages and which is not exclusively the breach of contract or breach
of trust

Cont.

Definition by Winfields and Jolowiz

Tortious liability arises from breach of a duty primarily fixed by law, this duty is towards
persons generally and its breach is redressible by an action for unliquidated damages.

Cont.

Definition by Clark and Lindsel

a tort is a wrong independent of contract for which appropriate remedy is a common law action

Definition by Reter Birks

the breach of a legal duty which affects the interests of an individual to a degree which the law
regards as sufficient to allow an individual to complain on his or her own account rather than as a
representative of the society as a whole

Cont.

Torts: the existence of a legal duty - a breach of the duty or a civil wrong appropriate
damages (the latter is one of the many common law remedies in tort)

A person committing a tort is called a tort-feasor or wrongful doer and his wrongful act is
called a tortious act.

What are the objectives of torts?

Cont.

1. To compensate the victim or their dependents;

2. To protect fundamental human rights of the claimant;
3. Deterrence exemplary damages;

4. To reconcile competing interests e.g freedom of expression (of speech and publication).
Person A publishes certain words about person B. person B thinks the words are injurious
to his reputation.

TORTS AND OTHER BRANCHES OF LAW

Tort and contracts Lecture 2

Similarity: generally, they both concern award of damages (not the exclusive remedy)

Distinctions

1. In Torts: duties fixed by law. Liabilities therefore arise by virtue of the law. In contracts:
duties fixed by parties liabilities arise by virtue of what the parties have voluntarily
agreed upon.

cont.

Blurred: in modern day, some terms in contracts are imposed upon parties by the law;
independent of any agreement between the contracting parties e.g Sale of Goods Act; for
a contract of sale, it imposes a duty on the seller to ensure that the goods being sold are fit
for the purpose for which they are meant.

Similarly, in torts, parties involved can arrive at an agreement to vary tortious liability e.g
a person entering your premises upon occupiers consent

Cont.

Hedley Byrne & Co. v. Heller & partners Ltd. (1964) AC

1. In torts, the duty is towards persons generally ( in rem). Contracts- the duty is towards
specific person (s) (personnam).
2. Torts damages unpredetermined. Contracts predetermined by the parties (blurred)
3. In torts, one can determine intangible loss e.g loss of comfort or injury to feelings not
covered in contracts.

Cont.

4. The time period within which an action can be brought Limitations Act; an action founded in
torts; 6 years: contracts ; 3 years
5. No prior contact in most torts. All contracts have prior contact before the tortious act
through negotiations e.g injuries caused to a pedestrian because of a negligent motorist

Cont.

In many torts, parties know each other very well while some contracts may be implied by
the law thus parties have either little or no contact at all.

Torts and Crime

Similarities

1. Both are violations of rights in rem

2. Rights and duties are fixed by law

Differences

1. Nature of wrong
A tort is a private wrong; an infringement of the private or civil wrong. A crime is an invasion of
public rights

Cont.

2. Remedy

Tort compensatory; criminal law punishment: exemplary damages in torts?

3. Procedure

Tort suit filed by the claimant/ injured party; crime the state undertakes prosecution
on behalf of the individual

Cont.

Certain types of conduct may constitute both crime and tort. e.g a thief who steals your
water commits both crime and conversion. Torts protects the individuals interests,
criminal law protects the interest of the public

Example

X is injured in a car accident caused by the negligence of Y. The State may prosecute Y
for the offence of driving under the influence of drink. Although Y may be found guilty
and punished, X will not be compensated for the injuries suffered, hospital treatment
e.t.c.

X may decide to sue Y for the tort of negligence and if successful he will recover
damages. It might be added that proof of Ys conviction in the criminal court can now be
used in evidence by X in civil proceedings.

OTHER GENERAL PRINCIPLES OF TORTIUOS LIABILITY Lecture 3

The law of torts distinguishes between two elements;

1. Damnum-damage/loss suffered

2. Injuria-injury known to the law

Damnum Sine Injuria

Damnum damage

Injuria injury

The maxim, damnum sine injuria damage without infringement of any legal right.

Any loss or damage a person suffers does not render the act or omission leading to such a
loss or damage tortious if there was no infringement of a legal right

Cont.

One must therefore suffer injury of their legal right together with damage for a tort to
arise.

Examples: loss by a trader inflicted by another trader through competition; when damage
is as a result of a person acting out of necessity

Mayor of Bradford Corporation v. Pickels

The defendant sunk a well on his land thereby trapping part of the underground water from his
neighbor the plaintiff. The plaintiffs well consequently dried up.

Cont.

Held: The defendant was not liable irrespective of whether he had an improper or
malicious motive.

Gloucester Grammar school /

case (1410) YB 11

The defendant school master set up a rival school next to that of the plaintiff. Students left the
plaintiffs school for the defendant
Held: competition can afford no ground for action whatever damage it may cause.

Mogul Steamship Co. v. Mcgregor Gow and Co. (1892) AC 25

B, C and D were ship owners who shipped tea from one part to another. They formed a union to
drive the plaintiff, a rival ship owner out of business. The plaintiff sued for the loss.
Held: damage caused by competition in trade was not actionable as a tort

Cont.

Such trade practices in Kenya are controlled by the Restrictive Trade Practices
Monopolies Control Act

Injuria sine damnum

The reverse of damnum sine injuria.

Translates to injury of ones legal right without damage.

The person whose right is injured can recover damages even though he suffered no actual
harm.

Applicable in torts actionable per se (without proof of special damage) e.g assault,
battery, false imprisonment, slander

Cont

Ashby v White (1703) 103.

A returning officer wrongfully refused to register a properly tendered vote by the plaintiff who
was a legally qualified voter. Although the candidate whom he voted was elected, there was no
loss suffered by rejection of the vote.
The court held that the defendant was liable because the plaintiff was denied his legal right to
have his vote registered.

Discussion for coming lectures: Foundations of tortuous liability

Using the example of the tort of negligence(mother of all torts), the following lectures
will be based on the foundations of a tort. These are as follows:

D-Duty of care

B-Breach of duty

C-Causation by defendant

D-Damages

DUTY OF CARE Lecture 4

Duty of care breach injury (causation) = tortious liability

What is a duty of care? General test:

Heaven v. Pender (1883) 11 QBD 503

Whenever one person is by circumstances placed in such a position with regard to another that
everyone of ordinary sense who did think would at once recognize that if he did not use ordinary
care and skill he would cause danger or injury to the person or property of the other, a duty
arises to use ordinary care and skill to avoid such danger.

Cont.

Donoghue v. Stevenson (1932) AC 562

The appellant went with a friend to a caf. The friend treated her to a ginger beer, which was in a
dark opaque bottle. When the appellant emptied the rest of the contents in a bottle from which
she had been drinking, it was seen to contain the remains of a snail. The appellant suffered
shock. She later contracted gastroenteritis in respect of which she claimed damages. She sued the
manufacturers. Lord Atkin formulated what has popularly come to known as the proximity
test.

Cont.

Lord Atkin on the neighbour principle

The rule that you are to love your neghbour becomes in law, you must not injure your neghbour;
who is my neghbour?...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
neghbour?

Cont.

The answer seems to be persons who are so closely

and directly affected by my act 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 in question.

Established a broad guide to the circumstances in which a duty of care may be imposed.
(the duty of the manufacturers of goods to the eventual users of those goods)

Cont.

Duty of care is a legal question rather than factual. E.g manufacturers of goods owe a
duty to the consumers, those using the highway owe a duty to those using it etc.

Donoghue v. Stevenson: categories of negligence are never closed the changing

nature of negligence

Candler v. Crane Christmas & Co. (1951) 2 KB 164, AT 192: In accordance with
changing social needs and standards, new classes of person legally bound or entitled to
the exercise of care may from time to time emerge.

Cont.

E.g Barnes v. Hampshire County Council (1969)3 All ER 746

A local education authority was held liable when a traffic accident ensued after letting children
out of a school early before their parents or others came to fetch them

Buckland v. Guildford Gas Light and Coke Co (1949) 1 KB 410

Cont.

An electricity authority that had high-voltage wires near a climbable tree was held liable
to the personal representative of a child who trespassed off a nearby footpath, climbed the
tree and was killed.

In both cases, the defendant ought to have foreseen and should have taken steps to
prevent the injuries suffered by the claimant

Modern approaches to the duty of care Lecture 5

Caparo Industries plc v. Dickman (1990) 1 all ER 568

A duty of care may be imposed if the following requirements are satisfied:

1. The claimant must be foreseeable
2. There must be a relationship of proximity between the claimant and the defendant
3. It must be fair, just and reasonable in the circumstances for a duty of care to be imposed

The foreseeable claimant

The defendant will be held subject to a duty of care if he should have foreseen both the
claimant as an individual (or a member of a certain class)and injury of the kind that
actually occurred.

Haley v. London Electricity Board (1965) AC 778

The defendant dug a trench in the street with statutory authority. They took some measures to
help ensure the safety of passers-by. These precautions were only adequate to the needs of
passers-by with good eye-sight. The claimant, who was blind and alone, suffered serious injuries
when he tripped over a long hammer left by the defendants.

Cont.

House of Lords held that it was incumbent on the defendants to take reasonable care for
the safety of all persons using the highway, including the blind and the infirm. Just
because the blind people constitute only a small percentage of the population does not
make them unforeseeable.

Proximity

X should foresee that his careless driving may result to adverse consequences for
innocent driver Y, who was within Xs vicinity.

Y a foreseeable claimant; because he is using the same road as X; his proximity

Goodwill v. British Pregnancy Advisory Service (1996) 1 WLR 1397

D performed a vasectomy on a man. 3 years later, he became Cs lover. Knowing that he had a
vasectomy, the couple did not use contraceptives. C became pregnant.

Cont.

The vasectomy had reversed. C claimed that D owed her a duty and was negligent in failing to
warn her lover of the possibility that he might regain his fertility. Claim was struck out.
Held: had the claimant been a wife or partner to the man and had the doctor known that the
vasectomy was intended to be as much for her benefit as the patients, a duty might have been
owed to the claimant. No connection between the doctor and woman insufficient proximate for
a duty to be imposed on the doctor in her favour.

Just, fair and reasonable

The reasonableness is that of an ordinary man walking on the streets of Kibera?

BREACH OF DUTY Lecture 6

What standards/degree of care should a defendant exercise to avoid tortious liability?

As a whole, the question of whether the defendant has broken a duty of care is a mixed
one of law and facts;

However, the standard of care required of the defendant is an exclusively legal construct
and based on the standard of a hypothetical reasonable person. If a defendant causes loss
or injury but is able to show that he acted in a away that a reasonable person would have
acted, no liability will attach.

Cont.

Not an ideal standard; that of an ordinary person placed in the defendants position and
circumstances e.g trade, professional etc; a doctor will be judged by a fellow doctor, a
factory worker by the standards of a factory worker

If an amateur undertakes an experts work, he must do it according to the experts standard

e.g an amateur surgeon undertaking an operation on a patient, he must do so as an expert
would have, failure of which he can be held liable for negligent for any harm occasioned
on the patient.

Cont.

Wales v. Cooper (1958)

An amateur lock-smith fixed a lock on a door. The handle later came off injuring the plaintiffs
hand.
Held: the defendant had acquired the standard of care required of him. The degree of care and
skill required must be measured not by competence, which the defendant possessed, but with
reference to the degree of care and skill, which a reasonable competent carpenter may be
expected to apply to the work in question.

Cont.

Paris v. Stephney Borough Council (1951) AC 367

A claim in negligence was brought by a workman, blind in one eye, who had been injured in his
one good eye while working without the use of goggles.
Held: the duty of an employer towards his servants is to take reasonable care for the servants
safety in all the circumstances of the case

If A owes B a duty of care, A must attain the standard of a reasonable person in order to
discharge that duty i.e reasonable care

Cont.

The degree of care which that duty involves should be proportionate to the degree of risk
involved. The higher the risk of harm, the higher the caution is required.

Bolton v. Stone (1951) AC 850

Miss Stone was hit by a cricket ball struck from a cricket ground surrounded by a fence17 feet.
The batsman was 80 yards away. The ball was only the 6th in about 30 years to be hit out of the
ground.

Cont.

Held: there had been no breach of duty by the club allowing cricket to be played without taking
further precautions.

The chance of harm occurring was so remote that a reasonable person in similar position
could not be expected to take additional precautions.

Foreseeability; standard of care; vulnerability on the part of the claimant-known to the

defendant

CAUSATION Lecture 7

Answers the questions: whether the defendants wrongful conduct did in fact cause the
claimants damage and whether the defendant ought to be held responsible for the full
extent of the claimants damage

To be considered in two levels:

1. Causation in fact: how the claimant can establish that the harm of which he complains
resulted from the defendants negligent conduct

Cont.

2. Subsequent intervening cause/ a novus actus interveniens-: may be said to server the chain of
causation such that the subsequent cause is treated in law as the only relevant cause of the
claimants injury

CAUSATION IN FACT

THE BUT-FOR TEST

Every occurrence is a combination of several events

Wright v. Lodge (1993) 4 All ER 299

D2 was driving her car at night along a dual carriage way in the fog. The road was unlit. Her car
engine failed and the car came to a stop in the near-side lane. A few minutes later, as D2 was
trying to restart the car, an articulated lorry being driven at 60 mph by D1 crashed into her car
virtually destroying it and seriously injuring a passenger in the back seat. After hitting the car,
the lorry careered across the central reservation. The lorry fell onto its side blocking the road.
Four vehicles collided with it. One driver died of his injuries and another was seriously injured.

Cont.

Who caused the additional injuries?

Had D2 not left home? had the road been lit? had it not been foggy?

Each of these factors is a cause without which the accident could not have occurred

Although they may have contributed to the accident, these are not causes in law, the law
looks at the human actors

Cont.

Yorkshire dale Steamship Co Ltd. V. Minister of war transport (1942) AC 691

Lord Wright: the choice of the real or efficient cause from out of the whole complex of facts
must be made by applying common sense standardscausation is to be understood as the man in
the street, and not as either the scientist or the metaphysician would understand it.

Cont.

Thus, the law settles upon a basic but-for test of causation.

The question that the court generally addresses is whether, but-for the defendants
action/negligence, the accident would have occurred.

If in the negative the defendant is held liable

Barnett v. Chelsea and Kensington Hospital Management Committee (1969) 1 QB 428

A man was sent home from a casualty department without treatment after complaining of acute
stomach pains. He died later of poisoning.

Cont.

The widows claim against the hospital failed even though the hospital admitted
negligence. The court found that even if he had been given prompt and competent
medical treatment, he would still have died as a result of the arsenic that had poisoned
him.

Wright v. Lodge: but-for the car drivers negligence the subsequent pile-up would have
occurred.

Held: while she could be held jointly liable with the lorry driver for the injury that was caused to
her passenger by failing to move her car out of the way, she was not responsible for the injuries
caused to the drivers of the other cars involved in the second collision. Her initial negligence was
not a legally operative cause of those injuries. They were solely the responsibility of the lorry
driver who had driven carelessly.

Cont.

Not every action without which an accident would not have occurred is therefore a
relevant cause in law

In Wright v. Lodge there was at least no doubting what had been done (or not done) by
the defendants.

Less straightforward cases standard of proof becomes a relevant consideration it must

be shown that the wrongful act (wrongful conduct of the defendant) caused the claimant's
loss or injury

Burden of proof remains on the claimant

example

A man claiming that he developed dermatitis because of contact with substances at work
caused by his employers failure to supply proper protective clothing. The medical
evidence may well reveal that contact with substances at work was just one possible
cause and may identify several other possible causes.

The issue of whether the claimant has produced sufficient evidence of causation
sufficient evidence that but-for the defendants conduct, he would not have suffered
injury is a question of law and not fact.

The courts identify the legally operative cause, that of selecting from among the menu of
possible causes the responsible causes

Concurrent tortious causes Lecture 8

If two acts result in damage, and either one would have produced the same damage e.g
two fires a started separately, they then merge and burn a building

The perpetrator of each act is responsible for the whole damage, because each act is a
substantial factor in producing the result

Two different ships negligently colliding and causing injury to a third party those
responsible are each fully liable

Cont.

In Hale Hants and Dorset Motor Services Ltd. (1947) 2 All ER 628

A corporation negligently allowed tree branches to overhang a highway. C was a

passenger in a bus negligently driven by a servant of D (a bus company) in such a way
that a branch struck the window of the bus with the result that he was blinded by broken
glasses

Held; both the corporation and the bus company were each fully liable to the claimant.

New intervening causes: causation in law

An unforeseen event arises subsequent to the defendants negligent conduct resulting to

further injury to the claimant

A is knocked by a car; on his way to hospital, he is hit by a tile on the head from the roof
of a house; the two acts are independent

The falling of the tile a novus actus interveniens a new intervening act sufficient to
relieve the defendant of further liability for the consequences of his own act

A novus actus interveniens may take any of the following form:

Cont.

Nature/ act of God

Claimants conduct

The act of a third party

n/b: the more foreseeable the intervening cause is, the more likely that the court will not
treat it as breaking the chain of causation

Reeves v Metropolitan Police Comr (2000) 1 AC 360

Cs husband hanged himself in his prison cell. There was no evidence that he had been
diagnosed as suffering from any mental disorder but he had been identified as a suicide
risk.

Cont.

Held: his suicide did not constitute a novus actus interveniens. The evidence available to
Ds of his emotionally disturbed state and suicidal tendencies imposed on them a duty to
protect the deceased, effectively from himself. Suicide was the kind of harm which they
should have contemplated and guarded against. They were thus liable when it occurred.

n/b: the more involuntary an act is, the less likely are the courts to treat that conduct as
novus actus

Scott v Shepherd (1773) 2 Wm Bl 892

Held: novus actus interveniens was no defence to a man who first threw a firework into the
crowd that the claimant would have suffered no loss had a third party not picked it up and thrown
it again

Intervening natural causes

Carslogie Steamship Co. v Royal Norwegian government (1852) ac 292

D negligently caused Cs ship to be damaged and require repair. The ship was out of commission
for sometime, later she sailed to the USA. En route, she suffered storm damage that required
further repairs. C argued that the storm repairs would not have been necessary had the ship left
for the USA on time and that, since the delay was due to Ds initial negligence, D must be held
liable in respect of the cost of the further repairs.
Held: the chain of causation had been broken by the storm since the severity of the storm was so
unforeseeable that it would be improper to regard it as in any way connected to Ds negligence.

Claimants own conduct

McKew v Holland & Hannens & Cubitts (Scotland) Ltd 91969) 3 All ER 1621

Ds negligence caused injury to Cs leg. C later broke his ankle attempting, while still suffering
from the effects of the first injury, to descend a steep stair case unaided. Cs imprudent and
unreasonable conduct constituted a fresh and separate cause of the second injury. D was only
liable for the initial injury

Wieland v Cyril Lord Carpets Ltd. (1969) 3 All ER 1006

The claimant suffered neck injuries and had to wear a collar in consequence of the
defendants negligence. She later fell downstairs because, as a result of the initial injury and the
neck collar, she could not use her bifocal lenses with her usual skill. Further injury attributable to
the defendants negligence. There was no unreasonable conduct on the claimants part that would
constitute a novus actus interveniens

Acts of third parties

Not very straight forward

The Oropesa (1943) P 32

A collision at sea was caused by Ds negligence. In the ensuing circumstances, the captain of the
damaged vessel ordered a life boat to put to sea so that salvage arrangements could be made with
D. in traversing the waters between the two ships, the lifeboat capsized and several crew
members lost including Cs son. While the death of Cs son was caused by a combination of the
defendants initial negligence with the captains subsequent decision to board the life-boat in
rough seas, it was held his decision was reasonable in the circumstances.

Cont.

Even where a conduct of the thrid party is necessitated by the initial negligence of the
defendant, it is still possible that the subsequent act will constitute a novus actus

Rahman v Arearose Ltd

C had been assaulted by two youths. The assault left C needing surgery. The surgery that
followed was undertaken negligently by D, and as a result C was left blind in one eye. Partly in
response to the blindness and partly in consequence of the assault C also suffered a psychiatric
response.
Held: the blindness was exclusively attributable to the negligent surgery even though that
surgery had been necessitated by the original torts of the two youths. On the other hand, the

careless surgery was only part of the cause of the psychiatric harm and the youths remained
partly responsible for that.

Defendants supervening act

Generally, a defendant cannot invoke his/her own supervening tortious conduct as

evidence to a break in the chain of causation

Chester v Afshar question: in certain circumstances, can a subsequent non-tortious act

on the part of the defendant be taken to be a novus actus interveniens a doctor failed to
disclose the risk attending to a surgery

Held: the negligent failure to warn the claimant did not increase the risk associated with the
surgery. The non-negligent surgery was unconnected to and in no way flowed from , the tortious
failure to warn.
VICARIOUS LIABILITY Lecture 9

The person who commits a tort is always liable, but sometimes a person who did not
commit the tort can be held liable. This is the case when the relationship of master and
servant (employer/employee) exists.

The reason for this common law rule is that since the master has the benefit of his
servants services, he should also accept liabilities.

Employee/servant:-one who performs services in connection with the affairs of the

employer and over whom the employer has control in the performance of those services.

Independent contractor:-they work for another person but are not controlled by that other
in the performance of the work

Every tort committed by an employee in the course of his employment the employer is
held liable every act which is done by a servant in the course of his duty is regarded as
done by his masters orders, - strict tortious liability

Cont.

Ability to recover compensation; pass on the loss to the public; maintenance of high
working standards

Distinguishing employees from independent contractors

1. Control

Independent contractor: told what task is to be performed (contract for services)

Employee: the employer retains the actual performance of the work; tells the worker not
only what task is to be performed, but how to perform it a servant (contract of service)

Traditional analytical frame overtaken with time changing working patterns; most
employees possess some technical skills not passed by employers

When can a power of control can be inferred? Denning LJ - a contract of service and a
contract for services

Cont.

Stevenson, Jordan & Harrison Ltd. v Macdonald and Evans (1952) 1 TLR 101
it is often easy to recognize a contract of service when you see it, but difficult to say wherein
the difference [between a contract of service and a contract for services] lies. A ship master, a
chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service;
but a ships pilot, a taxi-man, and a newspaper contributor are employed under contract for
servicesunder a contract of service, a man is employed as part of the business, and his work is
done as an integral part of the business; whereas under a contract for services, his work, although
done for the business, is not integrated into it but is only accessory to it.

Cont.

2. Personal investment in the enterprise

Lee Tin Sang v Chung Chi-Keung (1990) 2 AC 374: Is the worker in business on his
own account?

Who owns the tools used, who paid for the materials and whether the worker stands to
make anything from a profit to a loss on completion of the enterprise

If the person engaged need not personaly invest his endevour into the enterprise, but has
the option of delegating the task to some other person, this is indicative of a contract for
services rather than a contract of service

Cont.

3. Intention of the parties

Terms of their agreement a contract for services or a contract of service? not

necessarily conclusive

Young & Woods Ltd v West (1980) IRLR 201

The parties agreed that the workers should be treated as self employed for reasons of tax and
national insurance payments.
Held: this was a contract of employment
Examples of other vicarious liability:
i)

Liability for partners for each others torts.

ii)

Liability of a principal for the torts of his agent.

Case law

Selle v Associated Motor Boat Co Ltd (1968)(Court of Appeal for EA) Letang VP stated

Once it is established that the relationship of master and servant exists, it then has to be
determined whether the tortious act was committed in the course of the servants
employment. If, for instance, a driver is instructed to transport goods from Nairobi to
Nakuru and he negligently injures a pedestrian while travelling through Naivasha (which
is on the direct route to Nakuru) the driver will be personally liable and the employer
will be vicariously liable. If however, the driver was to travel to Machakos first (which is
in the opposite direction to Nakuru) so that he was on a frolic o his own, and he
negligently injured a pedestrian while driving to Machakos, the master would not be
vicariously liable

Deviation

A driver who does not travel in the opposite direction may however deviate from the
authorised route. It remains a question of fact in such a case whether the deviation had
the effect of putting him on a frolic of his own.

In the Ugandan case of Nzarirehe v Kagubaire (1968) it was held that a lorry driver who,
in the course of delivering sand for his employer , decided to go home and see his wife
had not ceased to be in the course of employment. He had done little more than
interrupting an authorised journey undertaken in relation to his masters business.

In Muwonge v Attorney General of Uganda (1967) the Court of Appeal for E.A stated
that an act may be done in the course f the servants employment so as to make his
master liable even though it is done contrary to the orders of the master and even if the
servant is acting delibarately,negligently or criminally for his own benefit, nevertheless

Cont

If what he did is merely a manner of carrying out what he was employed to carry
out then his master is liable.

The liability of an employer for a tort of an employee which is committed while the
employer is acting contrary to his orders is illustrated by the case of Geoffrey Chege
Nuthu v Anverali Brothers (Kenya Court of Appeal 1997) (96).(Read the case).

Liability in respect of an independent contractor Lecture 10

General rule: an employer not liable for torts committed by an independent contractor in
the course of his employment

Exceptions
1. Authorization from the employer

If the employer instigates or procures the independent contractor to commit a tort.

Ellis v Sheffield Gas Consumers Co. (1853) 2 E & B 767

Cont.

Having no legal power to do so, Ds gas undertaking employed an independent contractor

to dig up a part of a street. C fell over a heap of earth and stones made by the contractor
in the course of digging. D were held liable on the ground that they had authorized this
nuisance

2. Torts where intention or negligent conduct need not to be proved

Strict liability second trimester when strict liability under the Rule of Ryland v Fletcher
will be discussed in detail.

In some circumstances an employer is liable for the conduct of his independent contractor

Cont.

3. Negligence

An employer can be held liable in negligence for acts of his independent contractor in the
following instances:

i. Personal negligence on the part of the employer e.g careless appointment of an incompetent
contractor; where a risk is foreseeable in the absence of precautions, a failure by the employer to
provide in the contract for those precautions

Cont.

Robinson v Beaconsfield RDC(1911) 2 Ch 188

D employed contractors to clean out cesspools in their district. No arrangements were made for
the removal of the deposits of sewage upon their being taken from the cesspools by the
contractors. The contractor deposited sewage on Cs land. D were held liable for their failure to
take proper precautions to dispose the sewage.
ii. Non-delegable duties

A legal question

Some duties are discouraged from being delegated to independent contractors and where
this happens, the employer has a duty to properly instruct and supervise to ensure that due
care is taken

Cont.

Holliday v National Telephone Co (1899) 2 QB 392

Ds in laying telephone wires along a street, employed an independent contractor to solder the
tubes in which these wires were carried. In negligently using benzolene lamp, the contractor
injured a passer-by. Ds were held liable

Cont

4.If the employer personally interferes with the contractor or his servants by directing the
manner in which the work is to be done.

5. In cases where a special duty of care is laid by statute on an individual/class of

individuals: Read Smith v Cammel Laird and Co Ltd.

CAPACITY AND PARTIES Lecture 11

The general rule is that all persons can sue and be sued in tort. All persons are subject
to the same laws administered in the same courts. However, certain persons are subject to
disabilities, or posses certain rights or privileges, under the law .
1. Corporations

Where the liability of an ordinary employer for the acts of his employees is in issue, there
are normally four possible situations:

i.

The act may be treated as an act of the employer himself so that no issue of vicarious
liability arises

ii.

The employer has specifically directed the employee to commit the tort

i.

Cont.
The employer is vicariously liable for the employees acts

ii.

The employer is not vicariously liable for the employee because the act or omission in
question falls outside the principles of vicarious liability

The same possibilities apply where the employee is a corporation

Cont.

The fifth possibility exclusive to corporations was set out in Lennards Carrying Co. Ltd
v. Asiatic Petroleum Co. Ltd (1915) AC 705

[a corporation] has no mind of its own any more than it has a body of its own; its active
and directing will must consequently be sought in the person of somebody who for some
purposes may be called an agent, but who is really the directing mind and will of the
corporationThat person may be under the direction of the shareholders in general
meetings; that person may be the board of directors itself.

Cont.

For an act to be of a company, it must be of somebody who is not merely a servant or

agent for whom the company is liable but somebody for whom the company is liable
because his actions is the very action of the company itself.

Corporations can sue for any tort other than those of which in the nature of things, they
could not be victims e.g assault

Cont.

2. Partnerships and limited liability partnerships

Partners may be jointly and severally liable to other persons not themselves for torts
committed by anyone of them either while acting in the ordinary course of the business of
the firm or with authority of fellow partners

Cont.

The claimant must however show that he relied on the individual partners status as a
partner

Where the partnership has been established as a limited liability partnership, the
commission of a tort by one partner will render liable both that partner personally, and the
limited liability partnership (as principal)

Cont.

3. Husband and wife

A spouse is not responsible for the torts committed by the other

4. Mentally disordered

Morris v. Marsden (1952) 1 All ER 925

D violently attacked C, a total stranger. He was sued for battery and raised the defence of
insanity.

Cont.

Held: D was not in a condition of automatism at the time of the attack but his mind directed the
blow which he struck. D was certifiable lunatic who knew the nature and quality of his act but
because of his lunacy, he did not know that what he was doing was wrong. Defence of insanity
held to be inapplicable

If a mentally disordered person has that state of mind which is required for liability in
battery, then his insanity is no defence

Cont.

All that is required in battery is that the defendant must intend to strike a blow at the
complainant. In the above case, the defendant was held to have so intended

However, if a person in a condition of complete automatism inflicted grievous injury, that

would not be actionable

4. Children

Who is a child?

Infants can sue and be sued in the same way as any other person. The only qualification is
a procedural one;an infant plaintiff sues by his next of friend (a parent).

This is because he has no capacity to sue.

Childhood not a defence per se only where he/she lacked the required state of mind e.g
a defamatory letter from a 9 year old

Has no capacity to sue except through a next of friend.

A parent or guardian is not in general liable for the torts of a child.

5.Non-Citizens

Normally a non citizen is under no disability and can sue and be sued. An enemy non
citizen(e.g in war with Kenya), however, cannot sue, but if sued can defend the action
and counterclaim.

6. Diplomats

The Privileges and Immunities Act (Cap 179).

Heads of foreign states, their accredited representatives and staff can claim diplomatic
immunity from the jurisdiction of Kenyan courts. They are however, still subject to
Kenyan law.

No diplomatic immunity for Kenyans working in diplomatic missions in Kenya.

7. Judges and Magistrates

Section 6 Judicature Act (Cap 8)- No judge, magistrate and no other person acting
judicially, can be sued in any civil court for any act done or ordered by him in the
discharge of his official duty.

A similar protection extends to the officers of the court acting in process of any order of
the court.

8. Government

Government proceedings act (cap 14)

Subject to liability in tort as if it were a person of full age and capacity.
The extent of the liability of the gov. is in sec.4
4(1)liable in respect of

Torts committed by its servants or agents

In respect of any breach of those duties a person owes his servants or agents at common
law for being an employer.

Continuation

In respect of breach of duties attaching at common law to ownership, occupation,

possession or control of property.

Section 4 (5) gov. are not liable in respect of anything done or ommitted by someone
discharging responsibility of a judicial nature.

Sec. 16 (1) in proceedings against gov. the court cannot grant an injunction or make an
order for specific performance but may make a declaratory order

Under Evidence Act (cap 80) Sec.131; government can refuse to produce documents if a
minister is of the opinion that it is prejudicial to the public service on grounds of public
interest.

Under Public Authorities Limitation Act (cap 39; no claim in tort can be brought against
the government or local authority after 12 months from the date which the cause of action
occurred. Outside this periods, statute is barred.

REMEDIES IN TORT Lecture 12

1. DAMAGES
i.

Nominal Damages

The interests protected does not have a precise cash value e.g exercising ones voting right
mostly, torts that cover injury to feelings

This damages simply marks the vindication of a right which is held to be so important
that any infringement of it is actionable per se

Upon proof of the tort, the court is free to award substantial damages

Cont.

ii. Contemptuous damages

Marks the courts low opinion of the claimants claim or disapproval of his
conduct/Indicates the courts contempt for the plaintiffs claim e.g an award of Kshs 100.

It acknowledges that technically a legal wrong is committed but the circumstances

disclosed are such that no action should have been brought.

Unlike nominal damages, they may be awarded in respect of any tort, not merely those
actionable per se

They may be material in deciding whether to allow costs to the claimant

Cont.

iii. Special damages

Damages suffered by the claimant capable of pecuniary assessment that must be proved
in the case of all torts not actionable per se.

These are expenses incurred by the claimant prior to the date of the hearing e.g hospital
bill.

Thus in his/her pleadings, the claimant must substantiate any claim for special damages

Cont.

iv. General damages

These are damages that the law presumes to have resulted from the defendant's tort

v. Aggravated damages

Damages are compensatory in nature

Takes into account the conduct and motive of the defendant where they cause anger and
annoyance to the claimant

Cont.

Linked to arrogant conduct (may include his conduct at trial) that inspires anger in the
claimant

KD v. Chief constable of Hampshire(2005) EWHC 2550

A constable, sexually harassed C over the phone and in person by interviewing her several times
in such a away as to extract sexually explicit information about her that was irrelevant for the
investigation. C was awarded 10,000 general damages for anxiety and injury to feelings and
10,000 by way of aggravated damages for the annoyance caused by the constable persistently
denying the allegations when it was clear from typed and signed statements

vi. Exemplary damages

Conduct which outrages the court

To punish and deter does this confuse civil and criminal law? standard of proof
required

Are damages exclusively compensatory in nature?

Can be obtained in connection with virtually any tort

2. Account of profit

A claimant can seek account of profits from the defendant rather than damages

Common to victims of passing off + an injunction

3. Injunctions

It is a remedy per se or in addition to damages

i.

Prohibitory injunctions: refrains one from repeating a tort in future

ii.

Interim injunction granted before pending full investigation and trial of the case e.g
continuing torts

Cont.

iii. Perpetual injunction: - final order issued after the hearing of the action
iv. Mandatory injunction requires the defendant to undertake a positive act to end a state of
affairs amounting to an actionable interference whether or not such interference is causing actual
damage e.g pulling down a wall which interferes with the claimants light
v. Quia timet injunction to restrain a tort which has not yet been committed, but commission
of which is threatened; substantial damage appears imminent

Cont.

Hampshire Waste Services Ltd. V. intending trespassers upon Chineham Incinerator

(2004) Env. LR 9. The owners of certain incinerators anticipated a trespass by
environmental protestors an injunction was granted to prevent the trespass from occurring
without the precise identity of the trespassers

4. Restitution of property

Granted where the plaintiff has been wrongly dispossessed off specific property

GENERAL DEFENCES Lecture 13

1. Consent
2. Inevitable accident
3. Novus actus interveniens
4. Statutory authority
5. Ex turpi causa/illegality
6. Act of God
7. Contributory negligence
8. Necessity
CASES
AB v Leeds Teaching
Hospital NHS Trust
[2004] QBD

^[Negligence - duty of care medical

practitioner removing and retaining organs
from childs body owed a duty of care to
the parents]
D the hospitals that had retained tissue from
the bodies of deceased children taken at or after
post-mortem without the knowledge or consent
of the parents The claimants were three lead
claimants in group litigation. In each case, they
consented to the carrying out of a post mortem,
but were not informed in detail of the procedure
or that organs might be removed and retained.
Where organs had been retained, they were
often treated in some way so as to preserve
them.
Held: In the case of a doctor treating a mother
who had had a child which had died, the doctor
would have a duty to advise the mother about
future pregnancies. That duty extended to
giving the parents an explanation of the purpose
of the post mortem and what it involved,
including alerting them to the fact that organs
might be retained.

Alcock v Chief
Constable of South
Yorkshire [1991] HL

[Tort - negligence - duty of carefloodgates and policy - rescuers]

A further action following the Hillsborough
tragedy brought by those that helped at the
scene.
Held: Rescuers should continue to qualify on
policy grounds even though they were not in a
close relationship with the victim. Friends and
relatives raised the spectre of the "floodgates"
argument, and the fear of opening up unlimited
liability.
Lord Oliver openly used the word "policy" in
explaining his decision.

Alexandrou v Oxford
(1993) CA

Also here
[Tort negligence - duty of care no duty
situations - public policy no duty owed in
operational matters]
D, the police failed to respond effectively when
Cs alarm went off and a burglar escaped.
Held: There was no sufficient "special
relationship" between the shop owner and the
police to create a duty of care. If there were a
duty in this case, there would be a similar duty
towards anyone reporting a crime against his
person or property.

Anns v London
Borough of Merton
(1977) HL

C lost
[Tort negligence - duty of care proving
fault - development 2 stage test just
and reasonable]
D, the LA had allowed builders to construct a
block of flats with foundations which were only 2
feet 6 inches deep instead of 3 feet or deeper
and had failed to carry out the necessary
inspections C leased seven flats. Cracks in the
walls and sloping of floors occurred.
Held: A two stage test was developed, this has
now been replaced by the three stages
in Caparo v Dickman
This case overruled Murphy v Brentwood District
Council

Barber v Somerset
County Council
[2004] HL

[Tort negligence duty of care

overworked schoolteacher duty owed
when problem known or should have been
known]
D the council which employed C a 52 year old

Whole case here

schoolteacher as head of mathematics in a

comprehensive school. He worked long hours
about which he complained of work overload.
Following a period of sickness because he was
overstressed/depression he suffered a mental
breakdown at school.
Held: The school owed C a duty of care, and
their breach of that caused the claimants
nervous breakdown. The employers duty to
take some action arose when the claimant saw
separately each member of the schools senior
management team. It continued so long as
nothing was done to help the claimant. The
senior management team should have made
inquiries about his problems and seen what they
could have done to ease them, instead of
brushing him off unsympathetically or
sympathising but simply telling him to prioritise
his work.
Stokes v Guest, Keen and Nettlefold (Bolts
and Nuts) Ltd [1968] applied.

Barnett v Chelsea
Hospital
Management
Committee (1969)
QBD

C won
[Tort negligence - duty of care
causation in fact negligence essential omission can give rise to liability]
D, hospital where C went because of stomach
pains and vomiting. The doctor refused to
examine him and sent him home untreated; he
died of arsenic poisoning five hours later. His
family sued the hospital.
Held: C would probably have died even if the
proper treatment had been given promptly, so
the hospital's negligence was not the cause of
his death.
Cs family lost

Barrett v Ministry of
Defence [1995] CA

^[Tort - negligence - duty of care - C's own

actions - assuming a duty of care]
A naval airman became so drunk at the Royal
Navy Air Station where he was serving that he
died. The duty Petty Officer, had the rating
placed on his bunk he vomited and died as a
result of inhaling his own vomit.
It was alleged that D failed to enforce
disciplinary regulations to prevent drunkenness.
Held: The deceased alone was responsible for

his own actions and that no duty was owed to

him in this respect.
However, the Ministry was held liable on the
basis that, following his collapse, service
personnel voluntarily assumed a duty of care
and were negligent in that capacity.
Foresight of harm alone was not sufficient to
create a duty to guard him against his own folly.
Beldam LJ stated:
"To dilute self-responsibility and to blame one
adult for anothers lack of self-control is neither
just nor reasonable and in the development of
the law of negligence an increment too far.
Until he collapsed, I would hold that the
deceased was in law alone responsible for his
condition. Thereafter, when the defendant
assumed responsibility for him, it accepts that
the measures taken fell short of the standard
reasonably to be expected. It did not summon
medical assistance and its supervision of him
was inadequate.
Airman's widow won
Barrett (AP) v
Enfield London
Borough Council
(1999) HL
Whole case, here

[Tort negligence - duty of care imposed

on Local Authority for children in care]
C was left psychologically damaged and an
alcoholic when he left care of D a Local
Authority.
Held: Taking a child into care pursuant to a
statutory power did not create a duty of care.
However, Cs allegations were largely directed to
the way in which the powers of the local
authority were exercised, a duty of care was
owed and was broken.
Whether it was just and reasonable to impose a
liability for negligence had to be decided on the
basis of what was proved. Which except in the
clearest cases, required an investigation of the
facts.

Beasley v
Buckinghamshire CC
(1997) QBD

C won
[Tort negligence - duty of care no duty
situations - distinction between policy and
practical considerations]
C a foster parent was injured while looking after

a foster child, a handicapped teenager. Foster

parent alleged council had not provided
adequate training and equipment.
Held: Cs complaint concerned not the policy
decision whether to use her services, but the
practical manner in which the council had
acted. They had not supplied proper training
and equipment
Bici v Ministry of
Defence [2004] CA

^[Tort - negligence - duty of care psychiatric harm - service personnel]

Soldiers taking part in United Nations
peacekeeping operations in Kosovo deliberately
fired on a vehicle full of people when they had
no justification in law for doing so, killing two
and injuring others.
Held: The soldiers were liable in negligence to
two of the claimants. They owed a duty to
prevent personal injury to the public and had
breached that duty by firing without
justification. There was no objective evidence
that they were about to be fired on by the
claimants. They were in breach of duty, not due
to the manner in which they fired their
weapons, but in firing at all. Furthermore, the
claimants were not contributorily negligent
Self-defence is available in negligence if it is
reasonable belief (in criminal law it is an honest
belief) the defendants conduct was not
reasonable.
Combat immunity which was raised
in Mulcahy, has no place in this claim. Combat
immunity is not a defence but removes the
action from the jurisdiction of the court is:
"It is relied upon when a person is injured or
their property is damaged or destroyed in
circumstances where they are the innocent
victims of action which is taken out of pressing
necessity in the wider public interest arising out
of combat."
C won in part
(Obiter) Had the soldiers been acting in lawful
self defence, their firing, inaccurate as it was,
would not have been considered negligent in the
circumstances
[comment] This was the first claim for
compensation involving British peacekeeping
forces abroad.

Blyth v Birmingham
Waterworks (1856)
Exch

[Tort negligence - what it is]

Baron Alderson:
Negligence is the omission to do something,
which a reasonable man, guided upon those
considerations, which ordinarily regulate the
conduct of human affairs, would do, or doing
something, which a prudent and reasonable
man would not do. The standard demanded is
thus not of perfection but of reasonableness. It
is an objective standard taking no account of
the defendant's incompetence - he may do the
best he can and still be found negligent

Bolam v Friern
Barnet Hospital
Management
Committee (1957)
QBD

[Tort negligence - duty of care

standard of care and skill expected of D]
D hospital gave electro-convulsive therapy that
broke Ds bones. Some doctors would give
relaxant drugs others would not.
Held: A doctor is not guilty of negligence is he
has acted in accordance with a practice
accepted as proper by a responsible body of
medical men skilled in that particular art.

Bolitho v City &

Hackney Health
Authority [1997] HL

Whole case, here

[Tort negligence - duty of care

assessing the standard of care and skill of
D]
C aged 2 suffered serious brain damage
following respiratory failure. Several expert
witnesses supported the doctor, and on that
basis, the judge found that the doctor had not
been negligent.
Held: A doctor may be negligent even if there is
a body of medical opinion in his favour: he must
also be able to show that this opinion has a
logical basis. Only very rarely would a judge
decide that the opinions of a number of
otherwise competent doctors were not
reasonably held, and this was not such a case.

Bolton v Stone
[1951] HL

C lost
[Tort negligence - duty of care factors
to consider practicality and cost of
precautions]
D was a cricket club from where a cricket ball
was struck over a 17-feet fence. It hit C who
was standing on the pavement outside her
house. The ball must have travelled about 100
yards, and such a thing had happened only
about six times in thirty years.
Held: The risk was so slight and the expense of

reducing it so great that a reasonable cricket

club would not have taken any further
precautions.

Bourhill v Young
(1943) HL

C lost
[Tort negligence - duty of care proximity - foreseeable]
D motorcyclist fatally injured. C pregnant
fishwife 15 yards away saw blood but did not
see actual accident. Caused shock and,
subsequently, a miscarriage.
Held: C was not owed a duty of care it was not
reasonably foreseeable that accident would
cause her to suffer such injuries.

Bradford Corporation
v Pickles [1895] HL

C lost
[Tort negligence - duty of care - proving
fault - malice not normally relevant]
D owned land containing underground streams
which fed C's (Bradford Corporation)
waterworks. D began to sink shafts for the
alleged purpose of draining certain beds of
stone. The effect of Ds operations was to affect
seriously the supply of water to appellants
springs. The corporation alleged that defendant
was not acting in good faith, but to compel
them to purchase his land.
Held: D has the right to divert or appropriate
the water within his own land so as to deprive
his neighbour of it. His right is the same
whatever his motive may be, whether genuinely
to improve his own land, or maliciously to injure
his neighbour, or to induce his neighbour to buy
him out.
No use of property which would be legal if due
to a proper motive can become illegal if it is
prompted by a motive which is improper or even
malicious.

Bradford-Smart v
West Sussex CC
[2002] CA

^[Tort - negligence - duty of care - just,

fair and reasonable - test is the standard of
reasonable body]
D, the local authority of the school which C
attended. C was alleged to have been bullied
on the bus to and from the school and on the
estate where she lived. C suffered psychiatric
harm.
Held: A school could be in breach of duty for
failing to take steps to combat bullying by one
pupil against another when they were outside

school.
However, a school would not be in breach of its
duty if it failed to take steps which were unlikely
to do much good.
If a reasonable body of opinion would not have
taken any steps then the school could not be
liable for its failure to act. Bolam v Friern
Hospital Management Committee [1957] applied
Approving the words of the trial judge:
"I have come to the conclusion that granted a
school knows that a pupil is being bullied at
home or on the way to and from school, it
would not be practical let alone fair just and
reasonable, to impose upon it a greater duty
than to take reasonable steps to prevent that
bullying spilling over into the school ...."
Carmarthenshire CC
v Lewis [1955] HL

C lost
[Tort negligence - duty of care - public
policy duty owed in operational matters]
D a Local Authority employed a teacher who left
a 4-year-old child alone for about ten minutes
while she did other things. The child left the
classroom onto a busy road, where he caused a
lorry driver to swerve and collide with a
telegraph pole. The lorry driver was killed and
his widow sued the education authority.
Held: The education authority had taken charge
of the child and had a duty to take reasonable
care to prevent him from causing harm to
others.

Caparo v Dickman
(1990) HL

C won.
^[Tort negligence - duty of care
development proximity - foreseeability 3 stage test]
D auditors of company accounts. C, Caparo
bought shares and then discovered that the
accounts did not show the company had been
making a loss. C alleged that in negligence a
duty was owed to Caparo.
Held: Approving a dictum of Brennan J in the
High Court of Australia in Sutherland Shire
Council v Heyman (1985), that the law
should preferably develop novel categories of
negligence incrementally and by analogy with
established categories, rather than by a massive
extension of a prima facie duty of care
restrained only by indefinable "considerations

which ought to negative or limit the scope of the

duty or the class of person to whom it is owed".
No duty was owed in those two situations.
Steps to establish duty of care are;
a) Is there an existing case, which would hold
there to be a duty of care? If not then ask
three questions.
1. Was loss to the claimant foreseeable?
2. Was there sufficient proximity between the
parties?
3. Is it fair, just and reasonable to impose a
duty of care?

Capital and Counties

plc v Hampshire
County Council
(1996) CA

Auditors won
[Tort negligence - duty of care no duty
situations - public policy no duty owed in
operational matters]
D, a fire officer negligently ordered the sprinkler
system turned off in a burning building to which
the brigade had been called.
Held: There is no public policy immunity in this
situation. The decision was an operational one,
not a matter of allocating scarce resources, and
given the brigade's exclusive control over the
situation it would be fair, just and reasonable to
impose on them a duty of care to the property
owner.

Chadwick v British
Railways Board
[1967] QBD

C won.
^[Tort - negligence - duty of care rescuers - nervous shock - duty owed to
rescuers]
D the railway board responsible for a major train
accident caused by their negligence. C the wife
of a volunteer who took part in rescue work
suffered nervous shock and became
psychoneurotic as a result of his experiences.
Held: Damages were recoverable for nervous
shock even where the shock was not caused by
fear for oneself or the safety of one's children
and in the circumstances injury by shock was
foreseeable.
D ought to have foreseen the existence of a
rescuer and accordingly owed him a duty.

Church of Latter-Day

C won
Also here
[Tort negligence - duty of care no duty

Saints v Yorkshire
Fire Authority [1997]
CA

situations - public policy no duty owed in

operational matters]
D, the fire brigade, was unable to fight a fire at
Cs, premises effectively: three fire hydrants
were out of order and another four could not be
found.
Held: The damage caused to C by D's
negligence was certainly foreseeable, and there
was a sufficiently proximate relationship
between them, but it would not be fair just and
reasonable to impose upon D a duty of care.
The fire service is an emergency service, and to
allow claims such as these would impose a
burden that would distract it from its proper
task of fighting fires.
It is for the individual to insure his property
against fire, not for the community to do it for
him, and as a matter of public policy, the fire
service should not in general be open to claims
of this kind.

Clunis v Camden &

Islington Health
Authority (1998) CA
Whole case, here

C lost.
^[Tort negligence duty no duty
situations statutory duty - defences ex
turpi causa non oritur actio]
D a Local Authority released C from a
psychiatric hospital into "community care"; he
then killed a stranger for no evident reasons
and was sentenced to life imprisonment. C
sought damages for D's negligence in not
providing adequate treatment, and D
asserted ex turpi as a bar to such an action.
Held: The case should be struck out: the court
ought not to allow itself to be made an
instrument to enforce obligations alleged to
arise out of the complainants own criminal act.

Clay v Crump [1963]

CA

D won.
^[Tort - negligence - duty of care - two or
more defendants]
A dangerous wall left standing at demolition site
fell onto a work-mens' hut injuring C.
Held: Both the architect and the demolition
contractors should reasonably have foreseen
that a dangerous wall might fall and injure
someone, and, accordingly, they were both
under a duty to C.
If two or more persons contributed to an
accident by their negligence each must bear a

part of the blame, even though one of them had

the last opportunity of preventing it.
Costello v Chief
Constable of
Northumbria Police
[1999] CA
Whole case, here

C won
[Tort negligence - duty of care no duty
situations - public policy breach duty of
police in certain situations]
D the police force (vicariously) responsible for a
police inspector who failed to help C a woman
police constable who was attacked and injured
by a woman prisoner at a police station.
Held: There was a strong public policy
consideration that the law should accord with
common sense and public perception, and it
would be correct to say that, the public would
be greatly disturbed had the law held that there
was no duty of care. In addition, the public
interest would be ill-served if the common law
did not oblige police officers to do their personal
best in situations such as the present. It
followed that B had been in breach of duty in
law in not trying to help the claimant. The chief
constable was vicariously liable for that breach,
but was not personally in breach.

D v East Berkshire
Community NHS
Trust and
others [2003] CA
Whole case, here

C won
[Tort negligence - duty of care to child Human Rights Act - duty owed in some
child abuse cases]
Parents sued for compensation for psychiatric
harm resulting from unfounded accusations of
child abuse.
Held: X v Bedfordshire County Council
[1995] (which denied a duty of care based on
the "fair, just and reasonable" test) could not
survive the Human Rights Act.
A duty of care could sometimes be owed to a
child suspected of being abused. But each case
was to be determined on its individual facts.
Where child abuse is suspected and removing
the child from the parents was justified, no duty
of care was owed to the parents.

Donachie v The Chief

Constable of the
Greater Manchester
Police (CA) [2004]

One of the three children won

Tort - negligence - duty of care foreseeability of harm - directly caused or
other type of injury]
D, the police force in which C was serving in the
Regional Crime Squad. C was required to attach

a tagging device to the underside of a car

believed to belong to a gang of criminals. The
car was behind a public house in suspects were
drinking.
The device failed to activate when attached until
the ninth attempt. Each trip had subjected him
to an increased risk of being caught in the act
by the suspects. He became increasingly
frightened and feared serious injury or even
death.
As a result of the operation the claimant
developed a clinical psychiatric state, which lead
to an acute rise in blood pressure, which caused
a stroke.
Held: It had been a reasonably foreseeable that
the defendants breach of duty would have
caused physical injury to the claimant, although
not of the kind he had actually suffered, and
accordingly the defendant would be liable for
the unforeseen psychiatric injury caused by its
negligence.
Established authority provided that in claims for
nervous shock or other forms of psychiatric
injury, the application of the test of reasonable
foreseeability differed according to whether the
claimant was a primary or secondary victim.
However, where the court was satisfied that
reasonable foreseeability had been established,
whether for physical or psychiatric injury or
both, it was immaterial whether the foreseeable
injury caused had been caused directly or
through another form of injury not reasonably
foreseeable.
Page v Smith [1995] applied.
Donoghue v
Stevenson (1932) HL

Whole case here

C won
^[Tort negligence - duty of care
proving fault to whom duty owed neighbour principle]
C, Mrs Donoghue went to Minchella's
Wellmeadow Cafe in Paisley with a friend. The
friend ordered ice cream over which part of a
bottle of ginger beer was poured. When the
remainder of the ginger beer was poured, it was
found to contain a decomposed snail. Mrs
Donoghue became ill through having consumed
contaminated ginger beer.

Held:
"The rule that you are to love your neighbour
become in law, you must not injure your
neighbour; and the lawyer's question, Who is
my neighbour? Receives a restricted reply. 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 act 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 in
question."
East Suffolk Rivers
Catchment Board v
Kent
[1941] HL

C won.
^[Tort - negligence - duty of care - Board
empowered but not obliged to repair
breach]
D the Board who had statutory powers to repair
a breach in the sea wall. C whose land was
flooded during a very high tied breaching the
wall.
D carried out the repairs so inefficiently that the
flooding continued for 178 days, instead of 14
days. C's pasture land was seriously damaged.
Held: D was under no obligation to repair the
wall or to complete the work after having begun
it, so they were under no liability to C, the
damage suffered by them being due to natural
causes.
Where a statutory authority is entrusted with a
mere power it cannot be made liable for any
damage sustained by a member of the public by
reason of a failure to exercise the power.
So long as the authority exercises its discretion
honestly, it can determine the method by which,
and the time during which, the power shall be
exercised.

Farrell v Avon Health

Authority [2001]
QBD

C lost
[Tort negligence - duty of care take
victim as found foreseeability of harm]
D (maternity hospital) wrongly told C his baby
had died, C suffered psychiatric harm. C & E
went on holiday together and had sexual
intercourse once. There was no romance and
the two went their separate ways.

The baby was born prematurely C was very

excited and immediately went to see the baby.
He was told that the baby had died. The dead
baby was brought to him whom he then
handled. After about 20 minutes, the nurses
returned and took the baby away, saying that
his baby was still alive and that there had been
a mistake.
C, who had problems with alcoholism and drug
abuse, developed post traumatic stress disorder.
Held: The claimant was a primary victim and
could recover for psychiatric injury although he
had neither sustained nor was it reasonably
foreseeable that he would sustain any physical
injury. It was foreseeable that there was a real
risk of him suffering a recognised psychiatric
disorder as a result of the incident.
A claimant would clearly be a primary victim if
he was physically involved in the incident itself
so it was sufficient for the claimant to show that
the defendant ought to have had psychiatric
injury in its contemplation. If the foreseeability
test was then fulfilled the defendant had to take
the claimant as it found him.
It followed that the test to be applied was
whether the defendant ought reasonably to
have foreseen that its conduct would expose the
claimant to the risk of a recognised psychiatric
disorder on the basis of facts known to the
defendant at the relevant time, that risk being a
real risk not merely a possibility.
Froom v Butcher
[1975] CA

C was awarded 10,000.

[Tort negligence - duty of care
damages contributory negligence]
C was injured in a road traffic accident but was
not wearing a seat belt, which at the time was
again widely recommended but not legally
required.
Held: Cs damages were reduced by 25%.
For the future a deduction of 25% where
wearing a seat belt would have prevented the
injuries, or 15% where there would still have
been some injuries but they would have been
less severe.

Gates v McKenna

[Tort negligence - duty of care level of

(1998)

skill required]
D a stage hypnotist caused psychiatric damage
to volunteer from audience.
Held: Level of precautions expected should be
that of a reasonably careful exponent of stage
hypnotism.

Gibson v Orr CCof

Strathclyde [1999]
(OH) Outer House
Scotland

^[Tort - negligence - duty of care proximity - fair and reasonable]

D the chief constable whose officers left the
scene of a collapsed road bridge without
ensuring there was warning for vehicles on the
other side of the river. C was a passenger in a
vehicle drove off a collapsed bridge.
Held: Three elements had to be applied in
personal injury actions based on a duty of care.
Foreseeability, proximity and that it was fair,
just and reasonable that duty be imposed,
Once a constable had taken control of a road
traffic situation which presented a danger, the
law regarded that constable as being in such a
relationship with road users as to satisfy the
requisite element of proximity.
It was fair, just and reasonable to impose a duty
in the circumstances. There was no immunity
for a police force in performance of civil
operational tasks concerned with human safety
on the public roads and there was no
overwhelming dictate of public policy to exclude
the prosecution of such claims.

Gorringe v
Calderdale
Metropolitan
Borough Council
[2004] HL

Whole case here

C won
[Negligence duty of care private duty of
care not automatically derived from the
shadow of a statutory duty]
D was the local authority responsible under
Highways Act 1980 for the maintenance of a
country road. C drove too fast towards the crest
of a hill and collided with a bus suffering very
severe injuries. C argued that Ds failure to
paint the word SLOW on the road surface
constituted a breach of its duty under the
Highways Act and the Road Traffic Act 1988.
She argued that that the statutory duties cast a
common law shadow and created a duty to
users of the highway to take reasonable steps in
compliance with the duties in the section.
Held: It was not possible to impose upon a local
authority a common law duty to act based solely
on the existence of a broad public law duty. A

common law duty of care could not grow

parasitically out of a statutory duty not intended
to be owed to individuals. The drivers had to
take responsibility for the damage they caused
and compulsory third party insurance is
intended to ensure that they would be able to
do so. In the instant case, where the complaint
was that the authority had done nothing, the
action had to fail.
Stovin v Wise [1996] applied.

Griffiths v Brown and

Lindsay [1999] QBD

C lost
^[Tort - negligence - duty of care - no duty
owed to passenger in a taxi - not fair,
reasonable nor practicable]
D a taxi driver (Lindsay) set down his
intoxicated passenger 30 to 40 yards from his
destination, on the other side of the road, but
close to a pedestrian crossing controlled by
traffic lights, in the event of the passenger
sustaining injury on being struck by a car
(driven by Brown) as he crossed the road.
Held: The taxi driver's duty to the passenger
came to an end once the passenger alighted
and it was neither reasonable nor practicable to
require a taxi driver to make an assessment of a
passenger's state of intoxication before setting
him down.

Hale v London
Underground Ltd
[1993] QBD

C lost
^[Tort - negligence - duty of care rescuers - psychiatric harm]
D the London Underground board. C a firefighter who attended the fire at King's Cross
underground station in November 1987. He
entered the station several times, displaying
great bravery. He suffered no significant
physical injury, although he collapsed from
exhaustion and had to be assisted to the
surface. He suffered classic post-traumatic
stress disorder and depression.
Held: There was no consideration of duty of
care, as liability was admitted, the case
concerned only the amount of damages he could
recover (about 145,000).

Haley v London
Electricity Board
(1965) HL

[Tort negligence - duty of care - to whom

owed can be class of person - breach the vulnerable complainant]
D the Electricity Board, whose workmen were
preparing to carry out work on underground

cables. They dug a hole, and in order to give

warning of the danger they laid a long-handled
hammer across the pavement. C, a blind man
tripped over the hammer and was injured.
Held: D was liable they had given adequate
warning to sighted people, but it was common
knowledge that large numbers of blind people
walked unaided along pavements and the duty
of care extended to them as well.

Hall v Simons (2000)

HL
Whole case, here

C won
^[Tort - negligence duty no duty
situations - breach - professionals
immunity advocates not a special case]
One of several cases (conjoined cases) on
similar issues, where claimants had done less
well than they would but for negligence of their
legal advisers.
Held: It was no longer in the public interest
that advocates should enjoy immunity from
being sued for negligent acts concerned with the
conduct of litigation whether in civil or criminal
proceedings.

Harris v Evans
(1998) CA
Whole case, here

Change of rule on lawyers immunity

[Tort negligence - duty of care
statutory obligations - policy decisions]
D ran bungee jumps using a mobile crane,
which was checked by an independent inspector
fro the Health and Safety Executive. The
inspector found the jump unsafe (wrongly). C
suffered loss of profits.
Held: An inspector under the 1974 Act cannot
be made liable in an action in negligence for
economic damage caused to a business by
Notices under the 1974 Act.
D did not owe a duty of care to the proprietor of
that business. To impose such a duty of care
would be likely to engender untoward
cautiousness
Moreover, it was implicit in the 1974 Act that
improvement notices and prohibition notices
might cause economic loss or damage to the
business enterprise in question and the Act itself
provided remedies against errors or excesses on
the part of inspectors and enforcing authorities.
C lost

Heaven v Pender
(1883) CA

^[Tort - negligence - existence of a duty of

care]
D, a dock owner on whose scaffolding C was
working whilst he painted a ship. One of the
ropes broke, and C fell into the dock and was
injured.
Held: D was under an obligation to him to take
reasonable care that at the time he supplied the
staging and ropes they were in a fit state to be
used, and that for the neglect of such duty D
was liable to the C he had sustained:
Brett MR: A duty arises when every one of
ordinary sense would at once recognise that
care and skill was needed to avoid danger of
injury.
Two drivers meeting have no contract with each
other, but have a reciprocal duty towards each
other. So two ships navigating the sea. So a
railway company has a duty towards
passengers. So the owner or occupier of house
or land towards visitors. A contract between two
persons does not prevent the existence of a
duty.

Hedley Byrne & Co

Ltd v Heller &
Partners Ltd ]1963]
(HL)

C won
[comment] Brett MR attempted to enunciated
a complex rule of logic that could be applied to
decide whether a duty of care existed, but this
'rule' has not been followed by other courts.
^[Tort - negligence - duty of care - extent
of the duty depends on the courts
assessment of demands of society]
D, a bank gave a reference to C (another bank)
regarding the financial responsibility of a
customer, expecting the bank to act on it. The
reference was given "without responsibility."
The second bank acted on the reference and
suffered financial loss as a result. They sued D
in negligence.
Held: The law will imply a duty of care when a
party seeking information from a party
possessed of a special skill trusts him to
exercise due care, and that party knew or ought
to have known that reliance was being placed
on his skill and judgment.
However, since here there was an express
disclaimer of responsibility, no such duty was, in
any event, implied.

Lord Pearce:
How wide the sphere of the duty of care in
negligence is to be laid depends ultimately upon
the courts' assessment of the demands of
society for protection from the carelessness of
others.
Hill v Chief Constable
for West
Yorkshire(1988) HL

C lost
[Tort negligence duty of care no duty
situations - foreseeability - breach - acts of
third parties - public policy]
D the police failed to catch the "Yorkshire
Ripper". C, the mother of the lat (13th) victim
sued the police for negligence alleging
inefficiency and errors in their handling of the
investigation.
Held: The police owed no duty of care towards
the daughter to protect her from the Ripper.
Some further ingredient is invariably needed to
establish the requisite proximity of relationship
between the complainant and the defendant;
she had been at no greater risk than most other
members of the public had.

Hollywood Silver Fox

Farm v Emmett
[1936] QBD

C lost
[Tort negligence - duty of care - proving
fault - malice not normally relevant abnormal sensitivity]
D, a landowner, maliciously caused his son to
discharge guns on his own land as near as
possible to fox breeding pens owned by C on the
adjoining land. C carried on the business of
breeding silver foxes and D wished to interfere
with the breeding of the foxes.
During the breeding season the vixens are very
nervous, and liable if disturbed either to refuse
to breed, to miscarry, or to kill their young.
Held: C was entitled to an injunction and
damages, although the firing took place on Ds
own land, over which he was entitled to shoot.
In the absence of malice the injunction would
probably have been refused on the grounds that
C was using the land for an unusually sensitive
purpose.

Home Office v Dorset

Yacht [1970] HL

[Tort negligence - duty of care no

policy reason to allow Crown special
immunity]
Ds, borstal officers allowed seven boys to

escape from a training camp on Brownsea

Island in Poole Harbour while they were asleep.
They stole Cs boat and caused damage to other
boats in the harbour.
Held: Borstal authorities owed a duty of care to
the owners of property near the camp. There
were no good reasons of public policy for
allowing the Crown any special immunity in this
respect.
Liability restricted to the property-owners in the
immediate vicinity their loss was foreseeable,
and would not have extended to others further a
field.

Hotson v East
Berkshire Health
Authority [1987] HL

C won.
[Tort negligence - duty of care medical
treatment]
D a hospital where C was taken. He was a
young boy who injured his hip by falling out of a
tree. The injury was wrongly diagnosed and he
was thus given inappropriate treatment. He
suffered a permanent disability; the hospital
admitted negligence but denied liability.
Held: C had not proved on a balance of
probabilities that the negligent treatment had
caused his disability - on the contrary, the
probabilities were 75-25 that it had not. C
therefore had no claim whatever.

Hughes v Lord
Advocate (1963) HL

[Tort negligence - duty of care foreseeability of damage]

D the Post Office employed workmen who took a
break, leaving a manhole covered by a small
tent with a paraffin lamp at each corner. C, one
of two boys aged 8 and 10 took one of these
lamps into the tent. One of them tripped, the
lamp fell into the manhole and caused an
explosion injuring one boy.
Held: The accident was caused by a known
source of danger and that made it foreseeable
even though the way in which it happened was
unexpected.

Hunter v Canary
Warf Ltd and London
Docklands
Development
Corporation (1997)

C won
[Tort private nuisance]
CC alleged that their television reception had
been affected by the building of the Canary
Wharf tower.

HL
Whole case, here

Held: Overruling Khorasandjian on the point

that the occupation of property as a home
(rather than a right to exclusive possession) was
sufficient capacity to bring an action in private
nuisance. And reaffirming the decision
in Malone v Laskey. The idea that the
complainant needed only a "substantial link"
with the property affected, was too vague, and
would transform nuisance from a tort to land
into a tort to the person.
There might be a nuisance if reception was
affected by activities (e.g. involving electrical
discharges) on DD's premises, but the mere
presence of a building was not capable of
constituting a nuisance.
The law of private nuisance does not extend to
personal injuries, which are properly covered by
the tort of negligence.

Jebson v Ministry of
Defence [2000] CA

^[Tort - negligence - duty of care - C's own

actions - foreseeability]
D the army with whom C, a former Grenadier
Guard, attended an off duty trip to relax. They
travelled in a lorry and C attempted to climb
onto the roof of the lorry but lost his footing and
fell, sustaining severe injuries.
Held: While ordinarily drunkenness did not
create a duty on others to exercise special care,
that rule was not immutable.
It had been foreseeable that the soldiers would
behave in a rowdy manner on the return trip
thereby placing themselves at risk from some
form of injury, and that the MOD had failed in
their duty to supervise them. Furthermore, the
conduct of C had been within the genus of
behaviour which had been foreseeable. It was
not necessary that a precise injury should be
foreseen; instead it was sufficient to show that
an injury of a given description was likely to
occur.

Jobling v Associated
Dairies [1981] HL

The MOD had a 25 per cent liability for C's

injuries.
Jolley v Sutton LBC [2000] applied.
[Tort negligence - duty of care
sensitivity of complainant]
D the employer of a workman who suffered a
slipped disc through their negligence. His
earning capacity was reduced by half. Four
years later, he was found to have a pre-existing

spinal disease unrelated to his accident. When

the case came to trial, he was totally incapable
of work.
Held: The employer was liable for only four
years' loss of earnings, this being a rare case in
which the "eggshell skull" rule operated to the
benefit of the defendant.
John Munroe
(Acrylics) Ltd v
London Fire and Civil
Defence authority
[1997] CA

[Tort negligence - duty of care no duty

situations - public policy no duty owed in
operational matters]
D employed fire fighters who wrongly thought
all the fires at Cs premises had been put out.
One of the fires flared up again, causing
damage to Cs premises. C sued D and others,
alleging negligence.
Held: D owed no duty of care to C. The
considerations set out in Hill are applicable as
much to the fire brigade as to the police.
Imposing a duty of care would not improve the
efficiency of the service but would lead to
defensive fire fighting. Above all, the imposition
of a duty of care in this situation would lead to a
flood of claims, since many fires were created
by Acts of God or acts of criminals and lunatics,
leaving only the fire service to be sued.

Jolley v Sutton LBC

(1998) HL

Whole case, here

C lost.
[Tort negligence - duty of care
occupiers liability The common duty of
care]
D the owners of land where an old boat had
been abandoned for about 2 years. C a 14year-old boy was seriously injured when he and
a friend had propped it up on a car jack while
they tried to repair the boat that fell on him. C
sued under the Occupiers' Liability Act 1957.
Held: The boat was something that would be
attractive to children (including those of C's
age). Some injury was foreseeable if children
played on or around it, and D had been
negligent in not removing it.
Lord Hoffmann said that children's
"ingenuity in finding unexpected ways of doing
mischief to themselves and others should never
be underestimated".

Junior Books v

C won
[Tort negligence - duty of care -

Veitchi (1983) HL

development and scope - damage

remoteness - economic loss]
D, specialist-flooring contractors negligently laid
a floor in Cs factory.
D as specialist flooring contractors knew what
products were required and were alone
responsible for the composition and construction
of the floor. C suffered loss and damages, such
as the cost of removal of machinery and loss of
profits while the floor was being re-laid.
Held: Te scope of the duty of care extended to
a duty to avoid causing pure economic loss
consequential on defects in the work.

Kent v Griffiths
[2001] CA

D lost
^[Tort - negligence duty of care ambulance service owe duty if ambulance
failed to arrive within reasonable time due
to carelessness]
D the London Ambulance Service. C, an
asthmatic who suffered an attack. Her doctor
telephoned for an ambulance that took 30
minutes to arrive. C suffered a respiratory
arrest.
Held: There were obvious similarities between
the instant case and cases involving the police
or fire services, where it had been held as a
matter of public policy that there was no
common law duty to an individual member of
the public. In this case the fact that there was
only one person who would foreseeably suffer
further injuries by a delay was important in
establishing the necessary proximity.

Kirkham v. Chief
Constable of the
Greater Manchester
Police [1990] CA

C won
^[Tort - negligence - duty of care to
suicidal prisoner]
D, the police force who detained the husband of
C. The prisoner was known to be suicidal but
the police failed to pass on the information to
prison authorities. The prisoner committed
suicide in prison.
Held: The police had assumed the responsibility
of passing information to the prison authorities
when they arrested him, the husband had relied
on that assumption of responsibility, there was a
duty of care and it was breached.
Since his act was the very occurrence which
should have been prevented, the defence

of volenti non fit injuria could not succeed.

Since suicide was no longer criminal act the
defence of ex turpi causa non oritur actio was
not available.
Knight v Home Office
(1990) QBD

C won
^[Tort - negligence - duty of care - prison
officers - duty towards their prisoners failure to provide care - omissions]
D, Home Office responsible for prisons where a
21 year old mentally ill prisoner committed
suicide while in the hospital wing of Brixton
Prison. C the deceased's personal representative
suing on behalf of his infant son. The prisoner
was known to have suicidal tendencies and was
on a 15 minute watch.
Held: The argument that the same standard of
care applied to prison as to psychiatric hospitals
failed, as the primary function of the prison was
to detain the inmates and, although the prison
was required to care for physically and mentally
ill prisoners, it could not be expected to provide
the same degree of care as hospitals outside.
There was no evidence that the prison doctors
were negligent in their care of W.

L and another v The

CC of the Thames
Valley Police [2001]
CA

C lost
^[Tort - negligence duty to take care
police owing duty of care just fair and
reasonable]
D, the police force to whom the mother of L
reported allegations of sexual abuse against L
by her father, C. Legal action followed.
It subsequently transpired that Ls mother had
suffered from Munchausens Syndrome by proxy
and that the allegations of abuse had been
fabricated.
The father sued because of harm suffered by
him and L because of the investigation.
Held: There had been a legal assumption of
responsibility and a special relationship between
the father and the investigators and that a duty
had arisen
It was fair, just and reasonable to impose a duty
of care

Langley v Dray
(1998) CA

C won
[Tort negligence - duty of care automatically owed by motorists to other
road users]

Whole case, here

D driving a stolen car was chased by C, a police

officer. C was injured in accident.
Held: D owed a duty of care. He knew or ought
to have known that the police were in pursuit
and should not have gone so fast on ice. He
had a duty not to create such a risk.

Latimer v AEC Ltd

[1953] HL

C won
[Tort negligence - duty of care
practicality and costs of precautions]
D a factory owner. C slipped on an oily film and
injured his ankle. The sawdust put down to soak
up liquid did not cover the entire floor. The oily
film was due to water from an exceptionally
heavy storm caused.
Held: D had done all that a reasonable person
would do in the circumstances; they could not
have eliminated the risk completely without
closing the factory.

Law Reform
(Contributory
Negligence) Act
1945 s.1 (1)

Leach v Chief
Constable of
Gloucester (1998)
CA
Whole case, here

C lost
any person suffers damage as the result partly
of his own fault and partly of the fault of
another person or persons, a claim in respect of
that damage shall not be defeated by reason of
the fault of the person suffering the damage,
but the damages recoverable in respect thereof
shall be reduced to such extent as the court
thinks just and equitable having regard to the
claimant's share in the responsibility for the
damage ...
[Tort negligence - duty of care no duty
situations - public policy breach no
duty of police in certain situations even if
required by statute]
D the police had asked C a voluntary worker, to
act as an appropriate adult (Code C PACE
Codes of Practice, requiring) during interview of
Frederick West (the child murderer). C suffered
posttraumatic stress disorder. The police had
not assessed her or trained her for such a case.
No counselling was provided (as had been for
Wests solicitors).
Held: It was arguable that the police owed no
duty of care in negligence to a volunteer they
called in to act as appropriate adult in harrowing
and traumatic police interviews who later
suffered nervous shock and stress as a result.
In fact the whole point of an appropriate adult

is that they should act independently.

However, there were well-established duties of
care which the police undoubtedly owed to C
just as they owed them to anyone else who was
foreseeably at risk of personal injury Cs claim
would be allowed to proceed to trial on the issue
of failure to provide counselling services but the
particulars of claim so far as they related to the
duty of care towards C as an appropriate adult
would remain struck out.

Mahon v Osborne
[1939] CA

C won.
Considered in Costello
[Tort negligence - duty of care limits
of res ipsa loquitur]
A patient died shortly after an abdominal
operation and post-mortem examination found a
swab in his body.
Held: Negligence had been established.
Res ipsa loquitur applied only to things within
common experience, and that was not the case
with complex surgical procedures.

Mansfield v Weetabix
(1997) CA
Whole case, here

[Tort negligence - duty of care

standard of care expected of drivers]
D owners of lorry. Their driver suffered from
lack of glucose to the brain. He was unaware of
effect on his driving, C suffered damage to their
shop when lorry left road on a bend.
Held: The standard of care that driver was
obliged to show was that which is expected of a
reasonably competent driver. The driver did not
know and could not reasonably have known of
his illness that was the cause of the accident.
Therefore, he was not at fault. His actions did
not fall below the standard of care required.

Margereson &
Hancock v JW
Roberts Ltd (1996)
CA

C lost
^[Tort - negligence - foreseeability of
harm]
D the owners of a factory near where the two
complainants had lived and played as children.
They contracted mesothelioma due to their
exposure to asbestos
Held: D was liable to C because they knew or
ought to have known that asbestos dust was
escaping from the factories into the surrounding
street and could cause harm to people who were
exposed to it.

Risk of harm of allowing asbestos dust to escape

factory was foreseeable
As stated by Lord Lloyd in Page v Smith
(1995), the test in every case ought to be
whether the defendant can reasonably foresee
that his conduct will expose the claimant to the
risk

Marc Rich Co AG and

Others v Bishop Rock
Marine Co Ltd and
Others [1996] HL

C won
Also here
^[Tort - negligence - duty to take care not fair, just and reasonable to impose
duty when C assumes responsibility]
A surveyor acting on behalf of the classification
society had recommended that after repairs
specified by him had been carried out a vessel
should be allowed to proceed. It was lost at sea.
Held: The cargo owners could not recover
damages from the classification society. There
was no contact between them. It was not even
suggested that the cargo owners knew of the
survey, they simply relied on the owners to keep
the vessel sea worthy and to look after the
cargo.
The classification surveyor did not owe a duty of
care to the ship owners. The decision turned
essentially on considerations of policy in relation
to the role of a classification society in the
context of the insurance of risks
A duty of care in this case would have severe
consequences for both marine insurance and
freight costs, furthermore, it might lead to the
classification society refusing to survey high-risk
vessels with potentially harmful consequences
for the public safety at sea.

Marshall v Osmond
[1983] CA

[Tort negligence - duty of care police

drivers same as public error of judgment
not negligence]
D following C, an escaping criminal crashed the
police car into his, injuring him.
Held: The duty owed by a police driver was the
same as that owed by any other, namely, to
exercise such care and skill as was reasonable
in all the circumstances.
But where those circumstances were that he
was driving alongside another car in order to

make an arrest, the error of judgement he

made in the instant case did not amount to
negligence.
Matthews v Ministry
of Defence [2003] HL
Whole case, here

[Tort negligence - duty of care no duty

situations The Crown armed services]
C a former sailor was exposed to asbestos dust
a claim in tort was barred by The Crown
Proceedings Act 1947.
Held: Cs civil right was satisfied under the
ECHR by certification by the ministry and his
entitlement to a pension. The Crown is immune
from proceedings in these circumstances
because the 1947 Act provided for a no fault
compensation scheme. This arrangement did
not infringe his rights to access to the courts. C
had no civil right to claim damages for tort
against the ministry.

McFarlane v EE
Caledonia Ltd [1997]
CA

C lost
^[Tort - negligence - duty of care rescuers - likely harm not possible harm Piper Alpha rescuers unable to recover
damages]
DD, the owners and operators of the Piper
Alpha, an off-shore oil and gas platform. C a
member of the crew of the supply ship which
went to assist survivors.
C claimed that he was a participant in the
disaster or alternatively as a rescuer and had
suffered severe psychological injury as a result
of witnessing the catastrophe.
The issue was whether DD owed a duty of care.
Held: C could not recover damages in
negligence as a primary victim as, whilst the
vessel on which he was stationed was close to
danger, it was never actually in danger, which
made C's fear for his life unreasonable;
Although safety Regulations were intended to
ensure the safety of those near the rig as well
as on it, it was not enough that the breach of
statutory duty caused C's psychiatric injury. C
had to show that it was likely, not merely
possible, that the breach of duty would cause
him injury, in order to qualify for protection
under the Regulations.
"both as a matter of principle and policy the

court should not extend the duty to those who

are mere bystanders or witnesses of horrific
events unless there is a sufficient degree of
proximity, which requires both nearness in time
and place and a close relationship of love and
affection between plaintiff and victim."
McKay v Essex AHA
(1982) CA

C lost
^[Tort - negligence - duty of care - public
policy - wrongful birth creates no cause of
action]
DD, the doctors who did not advise a mother to
have an abortion. C was born disabled as a
result of an infection of rubella (German
measles) suffered by her mother while the child
was in her womb.
The child claimed damages on the ground that
she had been "suffered entry into a life in which
her injuries are highly debilitating," and for
distress, loss and damage.
Held: There is no claim in law which allows a
child born alive with deformities to claim
damages for negligence against doctors in
allowing it to be born alive.
The doctor was under no legal obligation under
the Abortion Act 1967 to the foetus to
terminate its life, and the child's claim was
contrary to public policy as a violation of the
sanctity of human life, and a claim which could
not be recognised since the court could not
evaluate damages for the denial of nonexistence
The effect of the Congenital Disabilities (Civil
Liability) Act 1976 was that no child born
after the passing of the Act could have a cause
of action based on the loss of a chance to die.

McLoughlin v OBrian
(1983) HL

C lost
^[Tort negligence - development of duty
of care 2 stage test - proximity - nervous
shock]
D a driver who caused an accident, which
injured Cs family. C visited hospital saw injured
husband and daughters. What she saw and
heard from witnesses caused severe nervous
shock.
Distance and time are factors, but not legal
restrictions.

Held: Although not present at the accident, it

was a reasonably foreseeable consequence of
the defendant's negligence.

McWilliams v Arrol
[1962] HL

C won
[Tort negligence - duty of care causation]
D a building firm had not provided a safety belt
to a steel erector who fell 70 feet to his death.
C the widow. D was in breach of its statutory
duty to provide a safety belt (but not to insist
that it be worn) but, there was evidence to
show that the man would probably not have
worn a belt even had it been provided.
Held: The firm's negligence and breach of
statutory duty were not the cause of his death.

Mercer v South
Eastern and
Chatham Railway
Companies'
Managing
Committee(1922)
KBD

C lost
[Tort - negligence - duty of care - liability
for omissions]
D a railway company which kept locked a small
wicker gate when trains were passing, and was
unlocked only when it was safe to cross, and C
knew of this practice. Owing to the negligence
of D's employee the gate was left unlocked
when a train was approaching, C went through
it, and was injured.
Held: D, by leaving the gate unlocked, gave C
an invitation to cross the line, that in the
circumstances C, in acting upon that invitation,
had not failed to use ordinary and reasonable
care, and, therefore, that he was entitled to
damages.
"It may seem a hardship on a railway company
to hold them responsible for the omission to do
something which they were under no legal
obligation to do, and which they only did for the
protection of the public. They ought, however,
to have contemplated that if a self-imposed
duty is ordinarily performed, those who know of
it will draw an inference if on a given occasion it
is not performed. If they wish to protect
themselves against the inference being drawn
they should do so by giving notice, and they did
not do so in this case."

Mulcahy v Ministry of
Defence (1996) CA

C won
[Tort negligence - duty of care - no duty
situations - just fair and reasonable public policy employers liability]
D, responsible for the army and therefore its

soldiers, employed a gun commander during the

Gulf War. C an artilleryman sustained damage to
his hearing when a howitzer was fired
accidentally.
Held: A serviceman owes no duty of care to his
fellow servicemen in battle conditions, since as
a matter of common sense and public policy it
would not be fair, just and reasonable to impose
such a duty. For the same reason the Ministry
of Defence as Cs employer does not have a
duty to provide a safe system of work in those
circumstances.

Mullaney v CC West
Midlands [2001] CA

C lost
[Tort negligence duty to take care - no
policy considerations]
D the Chief Constable of the force where C, a
probationary police officer, sustained a serious
head injury whilst attempting to arrest a man
for importuning in public lavatories. He made
four radio calls for help but they went
unanswered.
Held: D owed C a personal or non-delegable
duty as his quasi employer to take reasonable
care to devise and operate a safe system of
work.
There were no public policy considerations to
exclude the imposition of such a duty.
The radio operator had assumed a responsibility
to the police officers involved in the operation,
including the claimant, to take reasonable care
to listen to the radio and to respond to calls for
assistance. M had wholly failed to discharge that
duty and was in breach of his duty of care to the
claimant.

Mullin v Richards
[1997] CA

Whole case, here

C won
[Tort negligence - duty of care foreseeability standards expected]
D a 15-year-old schoolgirl had a "sword fight"
with C with plastic rulers in their classroom. One
of the rulers snapped and a piece of plastic
entered Cs eye, causing permanent damage.
Held: Neither the teacher nor D had been
negligent. There was insufficient evidence that
the accident had been foreseeable in what had
been no more than a childish game.

Murphy v Brentwood
District
Council[1991] HL

C lost
[Tort negligence - duty of care - general
principles - the nature of negligence - duty
of care - proving fault]
D, local authority negligently approved plans for
the footings (a concrete raft) of a house that
subsided. C the house owner could not afford
repairs and sold the house at a loss.
C alleged that he and his family had suffered an
imminent risk to health and safety because gas
and soil pipes had broken and there was a risk
of further breaks.
Held: The damage suffered by C was not
material or physical damage. D was not liable
for pure economic loss of the cost of remedying
defects
To permit C to recover his economic loss would
logically lead to an unacceptably wide category
of claims in respect of buildings or chattels
which were defective in quality, and would in
effect introduce product liability and
transmissible warranties of quality into the law
of tort by means of judicial legislation.
C lost
Per curiam. It is unrealistic to regard a building
or chattel which has been wholly erected or
manufactured and equipped by the same
contractor as a complex structure in which one
part of the structure or chattel is regarded as
having caused damage to other property when
it causes damage to another part of the same
structure or chattel, since the reality is that the
structural elements in a building or chattel form
a single indivisible unit of which the different
parts are essentially interdependent and to the
extent that there is a defect in one part of the
structure or chattel it must to a greater or lesser
degree necessarily affect all other parts of the
structure. However, defects in ancillary
equipment, manufactured by different
contractors, such as central heating boilers or
electrical installations may give rise to liability
under ordinary principles of negligence.

Nettleship v
Weston [1971] CA

[Tort negligence - duty of care duty

owed to others learner drivers]
D a learner driver went out for her first lesson,
supervised by a friend C. D crashed the car into
a lamppost, and C was injured.

Held: Even learner drivers are to be judged

against the standard of the reasonably
competent driver. The fact that a particular
driver is inexperienced and incompetent does
not excuse his falling short of this standard. It
matters not that a learner driver is doing her
incompetent best.

Newman & others v

United Kingdom
Medical Research
Council (1996) CA
Whole case, here

C won damages subject to a deduction for

contributory negligence.
Also here
[Tort negligence - duty of care established when medical risk recognised]
Between 1959 and 1985, nearly two thousand
children whose growth was stunted were treated
with doses of Human Growth Hormone (HGH)
extracted from the pituitaries of human
cadavers. Many of them died of CJD.
Held: Research Council should have stopped
trials and established whether drug was safe
before continuing.

Ogwo v Taylor
[1987] HL

[Tort negligence - duty of care foreseeability]

D negligently set fire to his house while using a
blowlamp. C a fireman was injured while
fighting the fire.
Held: Cs injuries were a foreseeable result of
D's negligence, and it was irrelevant that he was
employed as a fireman and expected to take
risks as part of his job.

OLL v Secretary of
State for the Home
Department (1996)
QBD

C won
[Tort negligence - duty of care no duty
situations - public policy no duty owed in
operational matters]
D a company running outward-bound courses.
Four teenagers drowned in Lyme Bay after their
canoes capsized in heavy seas. They had been
inadequately equipped, trained and supervised,
and D1 had delayed calling for assistance. The
company had been warned twelve months
earlier of dangerous flaws in some of its working
practices.
Held: Coastguard does not owe a duty of care
in respect of rescue operations unless their
activity led to greater injury than would have
occurred if they had not been involved.

Orange v Chief
Constable of West
Yorkshire [2002] CA

[Tort - negligence - duty of care by police

to prisoners known to be suicidal]
D, the police in whose custody the husband of C
committed suicide, by hanging himself with his
belt from the gate to the cell.
Held: The police were under a duty to take
reasonable steps to identify whether or not a
prisoner presented a suicide risk. The obligation
to take reasonable care to prevent a prisoner
from taking his own life only arose where the
police knew or ought to have known that the
individual prisoner presented a suicide
risk, Reeves v Commissioner of Police of the
Metropolis [2000] applied. The deceased was
not a person whom the officers knew or ought
to have known was a suicide risk.

Osman v Ferguson
(1993) CA

C lost
[Tort negligence - duty of care no duty
situations - public policy breach no
duty of police in certain situations]
D the police, failed to stop a man shooting and
killing Cs husband.
The man a teacher formed an unhealthy
attachment with Cs 14-year-old son and began
to harass him and his family. It was known he
might do something criminally insane.
Held: C had been exposed to a risk over and
above that of the public there was an arguable
case that there was a very close degree of
proximity amounting to a special relationship
between the Cs family and the investigating
police officers.
However, following Hill, it would be against
public policy to impose such a duty as it would
not promote the observance of a higher
standard of care by the police and would result
in the significant diversion of police resources
from the investigation and suppression of crime.
C lost

Osman v United
Kingdom (1998)
ECHR

[Tort negligence - duty of care - Public

policy police owe no duty of care to
public]
This case followed Osman v Ferguson.
Held: Cs husband's right to life had not been
violated by inadequate police protection.
It might be necessary in a democratic society to
restrict the extent to which the police are liable
in negligence to members of the public.
However, the broad exclusionary rule laid down
in Hill, to which few exceptions could be made,
meant in effect that C was denied a proper
adjudication of her case on its merits,
consequently her right to a fair trial had been
violated.

Palmer v Tees
HA [2000] CA

[Tort - negligence - duty of care - mental

patients - no liability for murder of a child lack of proximity - act of third party - just
fair and reasonable]
D, the health authority responsible for a former
patient undergoing out patient treatment who
sexually abused and murdered a 4 year old. C,
the child's mother who suffered psychiatric
illness as a result of the murder.
C claimed that D had failed in their obligation to
recognise the real, substantial and serious risk
that, a former patient undergoing outpatient
treatment, would sexually abuse and murder a
child and had failed to take appropriate steps to
avoid or minimise the risk of him doing so.
Held: There was no proximity between D the
child and C.
In Barrett C had been in the care of D and no
issue of proximity had been raised, and so was
distinguished.
Caparo Industries Plc v
Dickman [1990] and Marc Rich and Co AG v
Bishop Rock Marine Co Ltd [1996]did not take
account of third party intervention.
The court asked how the offences could have
been avoided even if sufficient proximity were
established.

Palsgraf v Long

C lost
[Tort negligence - duty of care to whom

Island Railway Co
(1928) New York
Appeals

owed - foreseeability of damage]

D employed a railway worker who carelessly
knocked a box to the ground. Unknown to him
it contained fireworks which exploded on
impact; the blast knocked a weighing machine
onto C standing some distance away.
Held: injury to C was not foreseeable from the
mere dropping of a box, and D was not liable for
Cs injuries.

Paris v Stepney BC
[1951] HL

C lost
[Tort negligence - duty of care reasonableness of precautions]
D a Local Authority employed C as a garage
mechanic. C had lost the sight of one eye during
the war. In order to loosen a stiff bolt he struck
it with a hammer; a piece of metal flew off and
(because he was not wearing goggles) struck
him in his good eye, causing him to become
totally blind.
Held: The probability of such an event was
very small, but its consequences were very
serious, his employers, knowing of his disability,
should have taken extra care to provide goggles
for him. The more serious the possible damage,
the greater the precautions that should be
taken.

Peabody Fund v
Parkinson [1984] HL

C won
[Tort - negligence - duty of care requirement that it be fair and reasonable
to impose a duty on a local authority]
D the local authority approved building plans for
245 houses which included flexible drains. C
installed rigid drains instead of flexible drains,
on his architects' advice. The local authority's
inspector was aware of the departure from the
plans, but he did no use his power to require C
to relay the drains.
Two years later the drains had to be re-laid
resulting in loss of probably 1,000,000 to C.
Held: It was material to consider whether it
was just and reasonable to impose a duty of
care. C were responsible for ensuring that their
own drains conformed with the approved plan.
The local authority owed no duty to C to
exercise their powers which exist for the
protection of other persons - not for that of the
person in default. It was not reasonable or just
to impose upon them a duty to pay for C's loss

arising through the advice of their own

architects and contractors
C could not say after the event "You knew what
we were doing; you should have required us to
stop." That would allow the owner, without
seeking new approval from the council, to throw
that system to the winds in favour of a defective
system, and then visit the consequences upon
the council for not stopping him.
Lord Wilberforce in Anns v Merton London
Borough Council [1978] said it was:
"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 person to whom it is owed or the
damages to which a breach of it may give
rise ..."
Perrett v Collins
(1998) CA
Whole case, here

C lost
[Tort negligence - duty of care just to
impose not restricted by cost of
insurance or need for stricter regulation]
D built and flew a kit plane. C was a passenger.
The plane crashed C was injured. The certifying
authority and its inspector were both liable in
negligence having certified an experimental
aircraft as fit to be flown, and the duty extended
to any passenger who was carried in the
aircraft.
Held: Imposing a duty of care, members of the
public would expect to be protected from injury
by careful operation of the regulatory system,
and to be compensated if injured by its
negligent operation.

Phelps v Hillingdon
London Borough
(2000) HL
Whole case, here

C won.
[Tort negligence - duty of care no duty
situations -public policy special
educational needs]
D a local authority employed E an educational
psychologist to assess C who was underperforming at school.
E did not identify Cs dyslexia, C was thus not
given the appropriate additional support, and C
sued in negligence for the psychological and
emotional harm she suffered.
Held: Local education authorities could be
vicariously liable for breaches by educational
psychologists and teachers of their duty of care

to pupils with special educational needs.

R v Corydon Health
Authority (1997) CA
Whole case, here

C won
[Tort negligence - duty of care
foreseeability of damage]
D x-rayed C as part of medical for job as nurse.
D failed to inform C and her GP of serious heart
problem. C had a child and later became
depressively ill thinking she had reduced life
expectancy.
Held: D not responsible for her becoming
pregnant, damages reduced.

Reeves v
Commissioner of
Police of the
Metropolis [1999]
(HL)
Whole case here

[Tort - negligence - duty of care - police

duty to suicidal prisoners - duty to care for
others]
D the police arrested a prisoner who was a
known suicide risk committed suicide whilst in
their custody. Officers left open the hatch of the
cell door and he took the opportunity to tie his
shirt to it and thus strangle himself.
The judge held that the duty of care had been
breached but inter alia suicide was a novus
actus interveniens; he assessed contributory
negligence at 100 per cent.
Held: Although persons of sound mind were
generally taken to be responsible for their own
actions, in rare situations a duty could be owed
to such persons to prevent them from self
harm. That had occurred in the instant case.
The duty represented an exception to the rule
that a deliberate act by a person of sound mind
taking advantage of the defendant's negligent
act would destroy the causative link. A
deliberate act of suicide was not a novus actus
interveniens, if it were the very act which the
duty sought to prevent would break the chain of
causation.
L was held contributorily negligent and damages
were reduced by 50 per cent to apportion fault
equally.
C won reduced damages
[Comment] 100 percent contributory
negligence is rare and arguably illogical; only a
contribution between 1 - 99 percent is possible
on strict reading of the Law Reform
(Contributory Negligence) Act 1945 see
also Pitts v Hunt [1990]

Rigby v Chief
Constable of
Northamptonshire
(1985) QBD

[Tort duty of care private nuisance no

duty situations - public policy duty owed
in operational matters]
D, the police fired CS gas canisters into Cs
shop, hoping to flush out a dangerous criminal
who had taken refuge there. The shop caught
fire and C sued for (inter alia) trespass.
Held: Taylor J said it was common ground that
projecting an article such as a canister onto
another person's land from outside, without
justification or lawful excuse, constituted a
trespass. However, this had been a case of
necessity.

Roberts v
Ramsbottom [1980]
QBD

C lost
[Tort negligence - duty of care - drivers]
D suffered a partial stroke while driving, and
drove on with impaired consciousness and
collide with two parked vehicles.
Held: Since he retained some limited control he
was still liable. Only total unconsciousness or
total lack of control would excuse him.
Alternatively, D knew he had been taken ill and
was therefore negligent in not stopping, even if
he did not fully realise he was no longer fit to
drive.

Roe v Minister of
Health [1954] CA

[Tort negligence - duty of care foreseeability of harm]

A spinal anaesthetic had become contaminated
through invisible cracks in the glass vial, when
used, paralysed two patients.
Held: The cracks were not foreseeable given
the scientific knowledge of the time, The
foreseeability of harm is clearly a major factor in
determining how a reasonable person would act,
and although actual foresight by D is generally
irrelevant, a reasonable person would not have
taken precautions against a risk of which
reasonable people in that profession were not
aware.

Rondel v Worsley
(1969) HL
Rylands v Fletcher
[1866] HL

D not liable.
[Tort - negligence - duty of care - liability
of lawyers - fair and reasonable test}
Overruled by Hall v Simons (2000)
[Tort negligence - duty of care - proving
fault - strict liability]
B constructed a reservoir which flooded A's

mineshafts. B employed a competent engineer

and a contractor, to construct the reservoir.
A had use of some mines under B's land. Some
old unused passages ran vertically up to B's
land but they were blocked with clay and earth.
No care was taken to block up these shafts, and
shortly after water had been introduced into the
reservoir it broke through some of the shafts,
flowed through the old passages, and flooded
As mine.
Held: A was entitled to recover damages from B
in respect of this injury, although there was no
precedent.
Sayers v Harlow UDC
[1958] CA

[Tort negligence - duty of care foreseeability of damage]

D a local authority provided public toilets. When
C tried to leave the cubicle, she found the
handle was missing. After trying for fifteen
minutes to attract attention, she tried to climb
out by standing on the toilet roll holder, but the
roll rotated and C slipped and fell, injuring
herself.
Held: Her actions were not unreasonable in the
circumstances and the injury was a natural and
foreseeable consequence of DD's negligence,
and not too remote. However, her damages
were reduced by 25% for her negligence in
relying on the toilet roll as a secure foothold.

Sirros v Moore [1974

] CA

[Judges immunity extends to acts done in

good faith]
D appealed to the Crown Court against a
magistrate's recommendation for his
deportation. The judge dismissed the appeal
and when saw D about to walk out of his court
he called upon the police to stop him.
Held: D's claim for damages for assault and
false imprisonment failed. Although the judge's
order was unlawful (D had not been remanded
in custody) the judges immunity extended even
to acts beyond his jurisdiction as long as they
were done in good faith.

Smith v
Cribben [1994] CA

Also here
[comment] this case was not brought in
negligence but habeas corpus, but it illustrates
the extent of public policy.
[Tort - negligence - duty of care - liability
for omissions - no liability to assist another

driver to complete a dangerous

manoeuvre]
C overtook D dangerously on a dual carriageway
and the room for completing the overtaking ran
out. D did not slow down to allow him to
complete the overtake. C collided with oncoming
traffic where the dual carriageway became a
single carriageway.
Held: D was not negligent in continuing to drive
at a steady speed instead of slowing down.
Smith v Leech Brain
& Co (1962) QBD

D won
[Tort negligence - duty of care foreseeability of damage]
D the employers of a workman who was slightly
splashed by molten metal through his
employers' negligence and suffered a burn on
his face. The burn aggravated a pre-existing
cancerous condition and the man died. C his
widow sued.
Held: "Injury to the person" was regarded as a
single kind of damage and some minor injury at
least was foreseeable.

Smith v Littlewoods
Organisation Ltd
[1987] HL

C won
[Tort negligence - duty of care foreseeability or type of harm - omission to
act - no general duty]
D owned a disused cinema where a fire was
started by vandals the fire caused damage to
neighbouring properties. The question was were
the cinema owners under a duty of care to
prevent the unlawful entry by vandals and
whether the fire damage was reasonably
foreseeable by the cinemas owners. The owners
of the damaged properties had not informed
either the cinemas owners or the police about
the regular entry into the cinema by
unauthorised persons and the evidence of
attempts at starting fires.
Held: There was no general duty of care, in all
cases, to prevent a third party from causing
damage to a claimant or his property by the
third partys deliberate wrongdoing. But, as the
cinema owners did not know about previous
acts of vandalism, the starting of the fire was
not reasonably foreseeable by the cinemas
owners and therefore, there was specific duty to
prevent vandals doing what they did.

Smoldon v
Whitworth [1997] CA

Cinema owners not liable

[Tort - negligence -duty of care- omissions
- referee owes duty to young players whom
he should be controlling]
D was negligent in the refereeing of an under19 colts' rugby match, in the course of which C
(aged 17) sustained a broken neck after a
scrum collapsed. There were a 3 or 4 times the
normal number collapsed scrums during the
game.
Held: The referee owed a duty to the players,
although he would not be held liable for
oversights or errors of judgment that might
easily be made during a competitive and fastmoving game.
One of the duties of a referee was to ensure the
players' safety and would be liable for the
foreseeable resulting spinal injuries.
It was not open to D to argue that C had
consented to the risk of injury by participating
voluntarily in the scrum. C might have
consented to the ordinary risks of the game, but
could not be said to have agreed to D's breach
of duty in failing to apply the rules intended to
protect players from injury.

Spartan Steel v
Martin [1972] CA

C won
[comment] this case was the first case of
negligence against a referee
[Tort negligence - duty of care
damages public policy]
DD While digging a trench negligently cut off the
electricity supply to PCs steelworks.
Held: The value of the "melt" that was ruined
by the power cut, including the profit directly
associated with it was allowed.
However, C did not succeed for loss of profits on
four further melts that could have been
completed during the period that the supply was
cut off.
The reason was probably the fear of opening the
floodgates to many similar claims if a contractor
severed the power supply to a whole estate or
even a small town.
C won.

Stansbie v
Troman [1948] CA

[Tort - negligence - duty of care - created

by contract]
D decorator was left alone on the premises by
the householder's wife. During her absence, he
left the house to obtain wall-paper. He failed to
secure the behind him. During the his absence a
thief entered the house and stole property.
Held:
1. A duty of care was created by the contractual
relationship.
2. It was a breach of that duty to leave the
front door insecure
3. As a direct result of that breach of duty that
the theft occurred.
C won

Stovin v Wise (1996)

HL

[Tort negligence - duty of care - liability

for omissions - no duty situation]
D (the local authority) failed to order the
removal a railway bank on railway land adjacent
to the road. It had the power order the removal
to improve road safety; it restricted visibility at
the junction. C a motorcyclist was injured by a
car that emerged from a side road.
Held: D had no duty of care to C in respect of
this hazard. Even a statutory duty does not
automatically give a private right of action.
A statutory power does not create a common
law duty to be exercised. Unless it would be
irrational not to exercise that power.
There must be exceptional grounds for holding
that the policy of the statute requires
compensation to be paid to persons who suffer
loss because it is not exercised.

Sutherland Shire
Council v
Heyman [1985] High
Court of Australia

C lost
Applied in Gorringe v Calderdale Metropolitan
Borough Council [2004] HL
[Tort negligence - duty of care development]
D the council had approved plans for C's house
that suffered subsidence because of inadequate
footings,
Held: As a general rule, the ordinary principles
of the law of negligence apply to public
authorities.
Brennan J expressed the view that the law
should develop novel categories of negligence

incrementally and by analogy with established

categories." That approach was endorsed by
Lord Bridge in Caparo Industries PLC v Dickman
[1990] and by Lord Keith in Murphy v
Brentwood DC [1991]
Swinney v Chief
Constable of
Northumbria Police
(1996) CA

D won
[Tort negligence - duty of care - no duty
situations - public policy police possible
exception]
C gave information to the police D helping
identify the driver X of a vehicle, which had
killed a police officer. The information was given
in confidence. Cs name and address were left in
a police car, which was stolen and the
information came into the hands of X. C
consequently suffered threats and psychiatric
injury.
Held: The decisions in Hill and Osman had left
open a possible exception to public policy
immunity where the police or CPS voluntarily
assumed responsibility, as they had done in this
case by receiving the confidential information.
Moreover, public policy pointed not only towards
police immunity but also towards the protection
of informants.

The Wagon Mound

(1961) PC

Overseas Tankship v
Morts Dock (The
Wagon Mound (No
1)) [1961] PC
Overseas Tankship v
Miller Steamship
(The Wagon Mound
(No 2)) [1966] PC

C won.
[Tort negligence - duty of care foreseeability of damage]
D the owner of a ship from which oil was spilled,
C the owners of the dockyard whose workman
on the wharf caused the oil to ignite by sparks.
The fire caused extensive damage to the wharf
and dockside buildings.
Held: If some damage, even minor damage, of
a particular kind was foreseeable, then D would
be liable for all such damage irrespective of the
foreseeability of its extent and its immediate
cause. However, in this case, the risk of fire
could not have been foreseen. The risk of
pollution could be foreseen. C was loath to
admit the foreseeability of the fire risk because
it was their workmen who actually set the oil
alight.
C lost.
The owners of other ships damaged in the fire
brought a second action, and evidence was
given that the risk of fire was foreseeable,

though admittedly very small. The potential

consequences of that unlikely occurrence were
so serious as to give rise to a duty of care to
avoid it.

Thompson v BlakeJames (1998)

Whole case, here

C2 won.
[Tort negligence - duty of care
causation - intervening events]
D a doctor advised C, the parents of a child not
to have a measles vaccination. Child caught
measles and suffered brain damage. Childs
history suggested to D that immunisation would
be more harmful than to most children.
Held: The advice given by other doctors to
whom C had consulted was an intervening
event. It broke the chain of causation because
the parents were not acting on Ds advice.

Thompson v Smith
Shiprepairers (North
Shields) (1984) QBD

C lost.
[Tort negligence - duty of care the
standard of reasonableness - level of
precautions common practice]
D shipyard owners. C worker who suffered
deafness.
Held: Although conditions were common across
the industry they fell below the required
standard of care. D could not evade liability just
by proving that all the other employers were
just as bad.
There were some circumstances in which an
employer had a duty to take the initiative to
look at the risks and seek out precautions to
protect workers.
However, this approach must still be balanced
against the practicalities. Employers were not
expected to have standards way above the rest
of their industry, though they were expected to
keep their knowledge and practices in the field
of safety up to date.

Three Rivers DC v
Bank of
England (No.3)
[2000] HL

C won
[Tort - negligence - duty of care - cause of
action - EC law - and tort of misfeasance in
public office requires reckless indifference]
TRDC and other creditors of BCCI, a bank in
liquidation, brought proceedings against the
Bank of England for misfeasance in public office.

It was alleged that senior bank officials within

the Bank of England had acted in bad faith when
originally granting BCCI a banking licence as
they had deliberately overlooked the ongoing
operation of BCCI subsequent to granting the
licence and, furthermore, had failed to close
down BCCI when it was known that such action
was necessary.
It was also alleged that the Bank of England had
acted in breach of the requirements contained
within Council Directive 77/780.
Held: The Common Law tort of misfeasance in
public office arose where the actions of a public
officer were carried out in the knowledge of, or
with reckless indifference to the probability of,
injury being caused to a plaintiff, or a class of
persons of which the plaintiff was a member.
Liability arose where a public officer acted
beyond his powers and in the knowledge that
such actions would probably result in injury to
the plaintiff. Reckless indifference was sufficient
to establish liability.
No obligations were imposed on Member States
under Council Directive 77/780, the Directive
did not establish a general duty to supervise
nor, when circumstances required it, an
obligation to withdraw authorisation.
Topp v London
Country Bus (South
West) Ltd [1993] CA

C lost in part the litigation continued

[Tort - negligence - duty of care omissions - actions of third parties]
D, a bus company left a mini-bus parked in a
public place with the keys in the ignition, the
bus was stolen, and, in the course of the theft,
was involved in an accident in which a woman
cyclist was killed. C, her husband (and
daughter) brought an action against the bus
company for negligence. The vehicle was left at
a changeover point that normally took 8
minutes, on this occasion it rested there for nine
hours.
Held: The bus company may have been
negligent to leave the bus with the keys in, in
an easily accessible place, they could not be
held responsible for the accident as it had
occurred through the voluntary act of a third
party over whom they had no control

Ultramares
Corporation v
Touche (1931) New
York

C lost
[Tort - negligence - duty of care in
misstatement cases -"floodgates"
argument - Cardozo and the
"indeterminate class"]
Accountants who prepared and certified a
balance sheet owed no duty to banks and other
lenders, who advanced money in reliance on the
accounts.
[comment] In claims for damages for
economic loss resulting from negligent
misstatements, there is a potential for
foreseeable but indeterminate and possibly
ruinous loss by a large and indeterminate class
of claimants. Foreseeability of reliance by itself
is not an adequate limiting factor. Courts have
been concerned to avoid, in the well-known
words of Cardozo CJ, 'liability in an
indeterminate amount for an indeterminate time
to an indeterminate class'.
This is the "Floodgates" argument

Vaughan v Menlove
(1837)

[Tort negligence - duty of care breach

of duty of care test of reasonableness]
D built a haystack. C neighbour occupied
cottage near haystack. D was advised that the
haystack was poorly ventilated and could catch
fire, which it did. D who was insured said he
would chance it.
Held: Although D had acted honestly and in
accordance with his best judgment, this was not
enough, a reasonable person would have taken
precautions.

Vowles v Evans and

Welsh Rugby Union
Ltd [2003] CA
Whole case, here

C won.
[Tort negligence duty of care
proximity - foreseeability - just fair and
reasonable - referee owes duty to players]
DD the referee of a rugby match and the sports
governing body. C injured and confined to a
wheel chair when a scrum (where players bend
over and push each other) collapsed. Cs
position was hooker (right in the middle of the
scrum).
Held: A referee and player have sufficient
proximity, it was foreseeable that if the referee
did not enforce the rules there would be injury
(that is what the rules are there to prevent).
It was just, fair and reasonable to impose a

duty of care. There was a structured

relationship, the referees acts or omissions were
manifestly capable of causing physical harm to
others, and in such circumstances the law will
normally impose a duty of care.
A referee of a game of rugby football owes a
duty of care to the players. The court did not
consider it logical to draw a distinction between
amateur and professional rugby.
The referee had breached that duty of care, the
referee had been in a position no more than
basic skill and competence at that level of the
game (see Bolam).
Lord Phillips, MR:
Rugby football is an inherently dangerous
sport. Some of the rules are specifically
designed to minimise the inherent dangers.
Players are dependant for their safety on the
due enforcement of the rules. The role of the
referee is to enforce the rules. Where a referee
undertakes to perform that role, it seems to us
manifestly fair, just and reasonable that the
players should be entitled to rely upon the
referee to exercise reasonable care in so doing.
Rarely if ever does the law absolve from any
obligation of care a person whose acts or
omissions are manifestly capable of causing
physical harm to others in a structured
relationship into which they have entered. Mr
Leighton Williams has failed to persuade us that
there are good reasons for treating rugby
football as an exceptional case. A referee of a
game of rugby football owes a duty of care to
the players.
[Comment] This is the first case involving an
amateur game. The court applied Caparo Plc. v
Dickman[1990] HL and a line of cases where the
sport's governing body has been held
responsible for the safety of the players or
participants. For example, the brain damage
suffered by the boxer Michael Watson and his
claim for negligence against the British Board of
Boxing Control had forced the governing body
into bankruptcy.

W v Essex County
Council (1998) HL
Whole case, here

C won
Also here
[Tort negligence - duty of care no duty
situations - statutory duty - duty of care, to
whom]
D, the council placed a known sex offender with

foster parents C. Cs children were abused. C

made it clear that they were anxious not to put
their children at risk by having a known sex
abuser in their home, the social worker and D
knew that and also knew that the boy placed
had already committed an act or acts of sex
abuse. The risk was obvious and the abuse
happened.
Held: It was plainly arguable that there was a
duty of care owed to the parents and a breach
of that duty by the defendants.

Ward v Tesco Stores

Ltd [1976] CA

C won.
[Tort - negligence - duty of care evidential burden lies on D to negative
want of care]
D the well known supermarket. C a shopper who
was injured after slipping on some spilt
yoghourt.
Held: C did not need to establish how long the
spillage had been on the floor and that the
judge was entitled to conclude that the
defendants had not discharged the evidential
burden upon them of showing that they had
taken all reasonable precautions.

Watson v BBBC
(1999) CA
Whole case, here

C won
[comment] this case succeeded in negligence
but the Occupiers Liability Act 1957 could
have been pleaded.
[Tort negligence - duty of care
proximity created by sports regulating
body]
D the British Boxing Board of Control failed to
provide sufficient medical care at the ringside.
C a boxer suffered severe brain damage
following an injury in the ring, but the evidence
suggested his injuries would have been less
severe had better medical attention been
available at the ringside.
Held: The sport's controlling body owed a duty
of care to those who took part. Injury was
foreseeable. The licensing system created
proximity, and in all the circumstances it was
just, fair and reasonable to impose such a duty.
The duty alleged was not a duty to take care to
avoid causing personal injury, but rather a duty
to take reasonable care to ensure that personal
injuries already sustained were properly
treated;

Watt v Hertfordshire
PP [1954] CA

C won
[Tort negligence - duty of care factors
risk involved balance of risk and value]
D local authority that ran the fire brigade. C a
fire fighter was injured by equipment that
slipped on the back of a lorry. The lorry was
used to carry heavy lifting equipment needed at
a serious road accident where a person was
trapped. The lorry, which usually carried the
equipment, was engaged in other work at the
time, and the fire officer ordered the equipment
be loaded into the back of an ordinary lorry.
Held: Denning LJ:
One must balance the risk against the end to be
achieved. The saving of life or limb justified the
taking of considerable risks, and in cases of
emergency, the standard of care demanded is
adjusted accordingly.

Wells v Cooper
[1958] CA

C lost
[Tort negligence - duty of care
standard of care]
D fitted a door handle in his home. C a visitor
pulled on the handle and it came away in his
hand, causing the visitor to fall down several
steps.
Held: D was to be judged against the standards
of a reasonably competent carpenter, but not
necessarily against the standards that would be
expected of a professional carpenter working for
reward. This was the sort of job that a
reasonable householder might do for himself,
and that was the appropriate standard.

White and others v

Chief Constable of
South Yorkshire and
others [1998] HL
Whole case here

C lost.
[Tort - negligence - duty of care - rescuers
no entitlement to damages for pure
psychiatric injury for police officers]
D the Chief Constable and employer of 4
officers, C who had all suffered post traumatic
stress disorder as a result of their involvement
in the aftermath of the Hillsborough Football
Stadium disaster.
D admitted that the disaster had been caused
by police negligence.
Held: D owed officers under him a duty
analogous to that of an employer to care for the
safety of employees and to take reasonable

steps to protect them from physical harm, but

there was no extension of that duty to protect
from psychiatric injury where there was no
breach of the duty to protect from physical
injury.
It was not possible to classify C as primary
victims, since none of them were at any time
exposed to personal danger nor reasonably
believed themselves to be so.
Recognition of C's claims would significantly
widen the established categories of cases for
which damages could be recovered for pure
psychiatric harm and to allow the claims would
not fit easily with the decision in Alcock v Chief
Constable of South Yorkshire [1992] to deny
compensation to bereaved relatives of victims of
the disaster who had not witnessed events at
first hand or acted as rescuers.

Wilson v Governors
of Sacred Heart RC
Primary School,
Carlton (1997) CA
Whole case, here

C lost
[Tort negligence - duty of care common
practice]
D a school, C a nine-year-old boy who was hit in
the eye by a coat belonging to another boy.
Attendants were provided to supervise the
children during lunch break but not a going
home time.
Held: Most primary schools do not supervise
children at this time and the incident could as
easily happened outside the school gates. The
school had not fallen below the standard of
care.

Wisniewski v Central
Manchester Health
Authority (1998) CA
Whole case, here

C lost
[Tort negligence - duty of care special
characteristics of defendant]
D heath authority employed midwife who
negligently failed to show cardiograph indicating
there were problems to the doctor. C child who
had cerebral palsy caused by complications at
birth.
Held: Adverse inference drawn about Drs
conduct he did not attend trial and did not
remember the birth. Inference was that Dr had
no answer to Cs complaint, which was
supported by expert evidence that no
reasonable doctor would have delayed
examining the patient. Bolitho followed.

X & Others v
Bedfordshire County
Council(1995) HL
[overruled]

C won.
[Tort negligence - duty of care development -breach proximity - no duty
situations -public policy local authorities
statutory duties]
D local authorities. Combined appeals (abuse
cases, and education cases). C two children
who alleged negligent treatment of claims of
child abuse. In one case, the child was left with
its parents and suffered further harm, in the
other it was unnecessarily taken away from
them.
In the education cases the issue was whether
special education needs had been met.
Held: Where a statutory discretion was
conferred on a public authority, nothing the
authority could do within the ambit of that
discretion was actionable at common law.
If a new duty of care by local authorities were
established, many more claims would be
brought placing further strain on an already
overstretched system.
No duty of care would be imposed on local
authorities fulfilling their public law duties
towards children in need.
C lost abuse case
C lost education cases because the LA had
no duty of care. But it was held that the LA
could be liable, both directly and
vicariously, for negligent advice given by
their professional employees.
Per curiam. The report of a psychiatrist
instructed to carry out the examination of the
child for the specific purpose of discovering
whether the child has been sexually abused and
(if possible) the identity of the abuser has such
an immediate link with possible proceedings in
pursuance of a statutory duty that such
investigations cannot be made the basis of
subsequent claims.
Subequently:
This case was referred to the ECHR and there
was called Z and others v The United Kingdom
(2001) UCHR. The UCHR found against the
UK for not providing a remedy to the
children.
This case could not survive the Human Rights
Act and was overturned by D v East Berkshire
Community NHS Trust and others [2003] CA

Yuen Kun Yeu v

Attorney General of
Hong Kong
(PC) [1988]

[Tort - negligence - duty of care omissions]

D, a commissioner licensed deposit-takers in
Hong Kong. C deposited money with a licensed
deposit-taker who went into liquidation, and he
lost the money. C alleged that D knew, or ought
to know that the deposit-taker was a fraudster,
so was negligent licensing the deposit-taker.
Held: The requirements for duty of care were
foreseeability of harm, and a close and direct
relationship of proximity between the parties.
Only rarely would the question of whether public
policy required the conclusion of liability fall to
be considered.
Since the commissioner had no day-to-day
control over the deposit-taker there was no
proximity, and the nature of the ordinance was
not such as to warrant reliance by Y on the
soundness of a deposit-taker licensed under it.
Lord Keith:
"Foreseeability of harm is a necessary
ingredient of such a relationship, but it is not
the only one. Otherwise there would be liability
in negligence on the part of one who sees
another about to walk over a cliff with his head
in the air, and forbears to shout a warning."

Z and others v The

United
Kingdom (2001)
ECHR
Summary of case here

C lost
[Tort negligence - duty of care - no duty
situations in respect of local authorities
can not survive the Human Rights Act]
The parties in X & Others v Bedfordshire County
Council (1995) HL took their case to the ECHR.
Held: There was no dispute that the neglect
and abuse suffered by the four child applicants
reached the threshold of inhuman and
degrading treatment. The UK failed in its
positive obligation under Article 3 of the
Convention to provide the applicants with
adequate protection against inhuman and
degrading treatment.
Although the applicants had not been afforded
a remedy in the courts, the Court found no
violation of Article 6, their remedy was under
Article 3 and 13.
The applicants did not have available to them an
appropriate means of obtaining a determination

of their allegations or the possibility of obtaining

an enforceable award of compensation for the
damage suffered thereby. Consequently, they
were not afforded an effective remedy in
respect of the breach of Article 3 and there had,
accordingly, been a violation of Article 13.
Applicants succeeded