Law and Contract Management

Tort 1

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 Agenda

• The Nature of Tort

• Negligence
– Elements of Negligence

– Standard of Care

– Negligent Misstatement

– Defences

– Remedies

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 Introduction

• “It imposes standards…and it is of the utmost importance to the

community that those standards be maintained; and it teaches a
man to respect his neighbour’s right of property and person”

• Lord Atkin (1932)

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 Nature of
Tort
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 The Nature of Tort

• Challenges facing Tort

• Living in the Compensation Culture
• Human Rights Act 1998

• Around 70 different ‘torts’

• Concepts of Damnum and Injuria
• Damage suffered and injury having legal consequences

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 Vicarious Liability
• General Rule
• Person who commits a tort is personally liable
• Caused harm or damage, want to receive damage from them

• Vicarious Liability Exception

• Allows a claimant to hold someone else who did not commit the
tort liable
• Need a particular legal relationship with the person who
committed tort

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 Vicarious Liability

• Of great importance when dealing with employer

/ employee relationship
• respondeat superior – ‘let the master answer’
• Advantageous for claimants – as employers are
more likely to be able to pay
• Strict liability tort

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 Negligence

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 Negligence

• “Breach of a legal duty to take care which results in damage to the

claimant.”
• 4 elements:
• Duty of Care
• Breach
• Causation
• Remoteness

• Work through with facts in scenario

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 1. Duty of Care

• Relationship between defendant and claimant

• Established Duty
• Neighbour Principle
• Donoghue v Stevenson [1932]
• Caparo Industries plc v Dickman [1990]

• Exceptions
• Home Office v Dorset Yacht Co [1970]
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 2. Breach of Duty

• An objective test to establish breach

• Prudent and reasonable man

• Standards of Care
• Special Standards for defendants with particular
skills

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 Standards of Care

• Skilled or Professional
• Bolam v Friern Hospital Management Committee
[1957]
• Trustees of Ampleforth Abbey Trust v Turner &
Townsend [2012]

• Homeowner
• Wells v Cooper [1958]
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 Levels of Care

• greater risk
• Bolton v Stone [1951]

• necessity to take risk

• Watt v Hertforshire CC [1952]

• more care required

• Taylor v Glasgow Corporation [1922]

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 3. Causation

• Causal link must be established – the “chain of

causation”
• Barnett v Chelsea Hospital Management Committee (1969)

• Factual Causation

• ‘But For’ Test – breaks in the chain

• McWilliams v Arrol (1962)

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 3. Causation
• Multiple Causes
• Novus actus interveniens – ‘a new act intervenes’

• Must be sufficient to break the chain

• McKew v Hollan, Hannen and Cubitts [1969]

• Two causes – one reckless, the other negligent –

reckless will be deemed as cause
• Barings Plc (in liquidation) v Coopers Lybrand [2003]

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 4. Remoteness

• Extent of damage suffered that is attributable to the

defendant – how responsible are they?
• Foreseeable
• The Wagon Mound (No 1) (1961)
• Roe v Minister of Health [1954]

• Egg-shell skull rule

• Smith v Leech Brain [1961]

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 Elements of Negligence

• Duty of Care

• Breach

• Causation

• Remoteness
– Have to pass the hurdles

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 Negligent Misstatement

• Hedley Byrne v Heller & Partners [1964]

• Duty of care by professionals to individuals with whom they have a
special relationship
• 1) relationship exists if one party exercises skill and judgement and the
other party relies on this
• 2) the person making the statement must posses skill in relation to the
statement and realise the other party would act on it
• 3) the person whom the statement was made to must have acted upon
them, where it was reasonable from them to rely on it

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 Practical Example

• A asks B for advice on investing money

• B refers A to C
• C has a solid reputation for investment advice
• C advises A to invest in shares (these shares are currently
under investigation and contracts with them have been frozen
– C does not convey this to A)
• A looses half his investment
• What basis does A have a claim against C?
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 Defences

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 Defences

• Contributory Negligence
• Law Reform (Contributory Negligence) Act 1945
• s1(1) Where any person suffers damage as the result of his
own fault and partly of the fault of any other person…a claim
in respect of that damage shall not be defeated…but the
damages recoverable in respect thereof shall be reduced to
such an extent as the court thinks just and equitable having
regard to the claimant’s share in the responsibility for the
damage
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 Defences

• Contributory Negligence
• Partial defence
• Froom v Butcher [1976]
• O’Connel v Jackson [1971]
• Sayers v Harlow UDC [1958]
• Jones v Boyce (1816)

• Apportionment of blame
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 Defences

• Volenti non fit injuria

• To one who volunteers, no harm is done
• 1) A voluntary
• 2) Agreement (express or implied)
• Nettleship v Weston [1971]
• Letang v Ottowa Electric Railway
• 3) Made with regard of nature and the true extent of risk
• Simms v Leigh RFC [1969]
• Cutler v United Dairies (1933)

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 Defences

• Novus actus interveniens

• McKew v Hollan, Hannen and Cubitts [1969]
• Barings plc (in liquidation) v Coopers Lybrand [2003]

• Others
• No Tort committed
• Bradford Corp v Pickles (1895)

• Unqualified Right
• Stephens v Anglian Water Authority [1987]
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 Remedies

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 Remedies

• Two Types of Remedies

• Damages
• Injunctions

• Injunctions
• Discretionary remedy
• Court order that requires the defendant to stop doing something that
has lead to the injury
• Prohibitory
• Mandatory
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 Remedies – Damages

• Damages
• Primary remedy

• Principle – to return claimant to the position they

would have been in, if tort not committed; failing that,
calculate amount based on harm, loss or injury that is
amendable by money for damage to property or
personal injury
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 Remedies – Damages
• Mitigation of Loss
• Claimant must attempt to mitigate loss

• Limits
• Remoteness
• Foreseeable
• The Wagon Mound (1) (1961)
• The Wagon Mound (2) [1967]

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 Remedies – Damages

• Only type of damage needs to be reasonably foreseen

• Hughes v Lord Advocate (1963)

• Jolley v Sutton LBC [2000]

• Vacwell Engineering v BDH Chemicals (1961)

• Take victim as you find them

• Smith v Leech Brain (1962)

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 Remedies – Damages

• Economic Loss
• Compensation
• Spartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd [1972]

• Not normally recoverable

• Murphy v Brentwood [1990]

• No recovery
• D&F Estates Ltd v Church Commissioners [1989]
• Nitrogen Eireann Teoranta v Inco Alloys Ltd [1992]

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 Thank you

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Beyond borders, sectors and expectations
© DWF LLP 2018. DWF LLP is a limited liability
DWF is a global legal business, connecting partnership registered in England and Wales (registered
number OC328794). DWF LLP is authorised and
expert services with innovative thinkers across regulated by the Solicitors Regulation Authority. DWF LLP
is also recognised as an incorporated practice with the

diverse sectors. Like us, our clients recognise Law Society of Scotland (registered number 43186). The
term Partner is used to refer to a Member of DWF LLP or
an employee or consultant with equivalent standing and
that the world is changing fast and the old qualification. A list of the Members of DWF LLP and of the
Non-Members who are designated as Partners is open to
rules no longer apply. inspection at its registered office, 1 Scott Place, 2
Hardman Street, Manchester M3 3AA. Copyright in this
document belongs to DWF LLP which asserts the right to
be identified as such and hereby objects to any misuse
thereof. This information is intended as a general
That’s why we’re always finding agile ways to discussion surrounding the topics covered and is for
guidance purposes only. It does not constitute legal advice

tackle new challenges together. But we don’t and should not be regarded as a substitute for taking legal
advice. DWF is not responsible for any activity undertaken
based on this information and makes no representations
simply claim to be different. We prove it or warranties of any kind, express or implied, about the
completeness, accuracy, reliability or suitability of the
through every detail of our work, across every information contained herein. 290316

level. We go beyond conventions and

dwf.law
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 Law and Contract Management
Tort 2:
Defences, Remedies and Nuisance

Privateand
Private andconfidential.
confidential. Not
Notfor
fordistribution.
distribution.
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Agenda
• Nuisance
• Private
• Public

• The Rule in Rylands v Fletcher

• Dangerous Premises
• Position at Common Law

• Occupiers’ Liability
• The Occupiers’ Liability Act 1957
• The Occupiers’ Liability Act 1984

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 Nuisance

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Nuisance

• Unreasonable interference with another person in the

exercise of his or her rights generally associated with the
occupation of property

• Private

• Public (criminal offence – but consider it)

• The Rule in Rylands v Fletcher

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Private Nuisance

• Must have an interest in the land, wherein enjoyment or

use has been unreasonably interfered with

• Abnormal Sensitiveness
• Robinson v Kilvert (1889)
• Tough luck?

• Right to commit private nuisance (easement)

• Fay v Prentice (1845)
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Leading Private Nuisance Cases
• Campbell v Paddington BC (1911)
• Jan de Nul (UK) v NV Royal Belge [2000]
– Can only bring claim for nuisance if individual suffered above public as a whole

• Halsey v Esso Petroleum (1961)

– Personal injury claims (damage to property) allowed for noise, smell and fumes

• Hunter v Canary Wharf [1997]

– Must have interest in land (no right to TV)

• Miller v Jackson [1977]

– Can still claim nuisance if claimant is the one who comes to nuisance

• Christie v Davey [1893]

– acts done deliberately to annoy will be a nuisance

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Defences

• Nichols v Marshlands (1876)

– Act of God (very limited application)
• Greenock Corp v Caledonian Rly [1917]- Nichols case doubted

• Rickards v Lothian (1913)

– Stranger caused nuisance (escape)

• Goldman v Hargrave [1967]

– EXCEPTIONS – landowner duty to stop potential nuisance

• Leakey v National Trust [1980]

– EXCEPTIONS – if landowner aware of potential nuisance, it must act
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Defences Cont…
• Peters v Prince of Wales Theatre (Birmingham)
Ltd (1943)
– No liability where a party consents to a dangerous thing
being brought to a place where it might cause harm if it
escapes, unless he can show negligence.

• Davey v Harrow Corp [1957]

– EXCEPTIONS - Nuisance will lie where tree branches or
roots extends to other’s lands.
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 Rule in Rylands v Fletcher

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Rule in Rylands v Fletcher

• A branch of the tort of private nuisance

• Strict Liability
• Defendant may be liable in the absence of any
negligent conduct – restrictive due to nature

• Rylands v Fletcher [1868]

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Rule in Rylands v Fletcher

• Requirements;
1. Accumulation on Defendant’s land
2. A material/substance likely to do mischief or cause harm
if it escapes
3. The material/substance does escape
4. The material/substance was a non-natural use of the land
5. Damage cannot be remote

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Rule in Rylands v Fletcher
• Defendant does not need to own land
– Charing Cross Electricity Supply Co v Hydraulic
Power Co [1914]

• Specific defence: Damage needs to be

reasonably foreseeable
– Cambridge Water Co Ltd v Eastern Counties
Leather plc [1994]
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 Dangerous Premises and
Occupier’s Liability

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Dangerous Premises

• A person who is in possession or ownership

of land or premises, owes a level of
responsibility towards other persons present
on those land or premises

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Dangerous Premises

• Contractor’s negligence
• Occupiers Liability Act 1957, s 2(4)(b)
• Cook v Broderip (1968)
• O’Connor v Swan Edgar Ltd [1963]

• Special Care for Children

• Phipps v Rochester Corp [1955]
• British Railways Board v Harrington [1972]
• Gough v National Coal Board
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Dangerous Premises

• Discharging Duty and Excluding Liability

• Billings (AC) & Sons Ltd v Riden [1958]

• Ashdown v Samuel Williams & Son Ltd [1957]

• Distinction between excluding duty and satisfying warning

• White v Blackmore [1972]

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 Occupier’s Liability Act 1957

• Occupiers have an obligation to ensure their

land is not hazardous to others
• The Occupiers’ Liability Act 1957 clarifies the
issues above in statute and the Occupiers’
Liability Act 1984 supplemented it (covering
trespassers)
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 Who is an Occupier?

• No statutory definition
• Occupier is essentially a person who exercises control
over premises – Wheat v E. Lacon & Co Ltd [1966]
• Varying degrees of control that can be exercised –
physical and legal control

• Harris v Birkenhead Corporation [1976]

• Physical occupation is not a requirement
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Common Duty of Care
• Under OLA 1957 – common duty of care owed to all
lawful visitors – s.1(2)
• Invitees – invited to come onto land (express permission)
• Licensees – those with an express or implied permission to be
there
• s.5(1) – those pursuant to a contract, paying guests at hotel or
paying visitors to enter
• s.2(6) – those who are there, exercising a right conferred by law

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Common Duty of Care
• OLA 1957 s.2(2)
• “The common duty of care is…to take such care as in all the
circumstances of the case is reasonable to see that the visitor
will be reasonably safe in using the premises for the purposes
for which he is invited or permitted by the occupier to be there”
• Problem with implied permission, for example a delivery driver,
implied permission to enter premises, but not to wander around
further than the purpose for which they entered

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Common Duty of Care

• OLA 1957 does not extend to

• Trespassers
• Invitees who exceed their permission
• Persons on the land exercising public right of way
• Persons on the land exercising private right of
way
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Special Duty of Care
• Has an agreement already been concluded?

• If so, the parties are locked in the “contract room”

• Acceptance must exactly fit offer

• Jones v Daniel (1894)

• Counter Offers “destroys” offer

• Hyde v Wrench (1840)

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Warning Signs

• Warnings given – OLA s.2(4)(a)

• Where the damage is caused to a visitor by a danger
of which he had been warned by the occupier, the
warning is not, to be treated without more as
absolving the occupier from liability, unless in all
circumstances it was enough to enable the visitor to
be reasonably safe
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Warning Signs
• Consider
• How specific was warning?
• What risk is being faced?

• How obvious was danger?

• Hidden dangers need to be highlighted

• Sign or safety measures?

• Barriers vs just words – failure to understand signs

• What visitor is targeted?

• Children need greater protection

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Liability for Independent Contractors

• OLA s.2(4)(b)
• Liable for work of independent contractor if;
• It was unreasonable to entrust the work to an independent contractor
• The occupier failed to take reasonable steps to ensure that the
contractor was competent
• The occupier failed to take reasonable care to ensure that the work was
carried out to an appropriate standard

• How to assess each circumstance

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Defences
• Volenti non fit injuria
• Found in s.2(5) OLA 1957 – if willingly accepted by the visitor, occupier
does not take risk

• Contributory Negligence
• Reduced under Law Reform (Contributory Negligence) Act 1945

• Exclusion of Liability
• Found in s.2(1) OLA 1957Can extend, restrict, exclude or modify his duty to
visitors in so far as he is free to do so
• Subject to Unfair Contract Terms Act 1977

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Occupiers Liability Act 1984

• Used to extend and supplement the OLA 1957, applies

to;
• Trespassers

• People lawfully exercising private rights of way

• Visitors to land covered by s.60 of the National Parks and

Access to the Countryside Act 1949

• s.1(1) only liable for injury, not damage to property

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Trespassers

• No statutory definition
• Generally accepted as;
someone who goes on the land without
invitation of any sort and whose presence is
either unknown to the proprietor or, if known,
is practically objected to
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Duty of Care

• Conditions that must be satisfied

• s.1(3) OLA 1984
• Occupier must be aware of the danger or have reasonable
grounds to believe that it exists (subjective)
• They know or have reasonable grounds to believe that a
trespasser is in the vicinity of the danger (subjective)
• The risk is one against which, in all circumstances, he may
reasonably be expected to offer some protection
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Beyond borders, sectors and expectations

DWF is a global legal business, © DWF LLP 2018. DWF LLP is a limited liability
partnership registered in England and Wales (registered
connecting expert services with number OC328794). DWF LLP is authorised and
regulated by the Solicitors Regulation Authority. DWF LLP
is also recognised as an incorporated practice with the
innovative thinkers across diverse Law Society of Scotland (registered number 43186). The
term Partner is used to refer to a Member of DWF LLP or
sectors. Like us, our clients recognise an employee or consultant with equivalent standing and
qualification. A list of the Members of DWF LLP and of the

that the world is changing fast and the Non-Members who are designated as Partners is open to
inspection at its registered office, 1 Scott Place, 2
Hardman Street, Manchester M3 3AA. Copyright in this
old rules no longer apply. document belongs to DWF LLP which asserts the right to
be identified as such and hereby objects to any misuse
thereof. This information is intended as a general
discussion surrounding the topics covered and is for

That’s why we’re always finding agile

guidance purposes only. It does not constitute legal advice
and should not be regarded as a substitute for taking legal
advice. DWF is not responsible for any activity undertaken
ways to tackle new challenges together. based on this information and makes no representations
or warranties of any kind, express or implied, about the

But we don’t simply claim to be different. completeness, accuracy, reliability or suitability of the
information contained herein. 290316

We prove it through every detail of our

work, across every level. We go beyond dwf.law
conventions and expectations.

Join us on the journey.

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