LLB Law with Business
LW188: Law of Torts
Outline Solutions – June 2015
Question 1
Candidates may start by examining the issue of the test of ‘reasonable foreseeability’ stemming
from the neighbour principle (Donoghue v Stevenson). It has become the test for a duty of care in
the area of physical harm that occurs in a straightforward manner. Mention may be made of the
historical debate over its significance related to policy and the floodgates principle. Candidates
may also briefly consider the Post Donoghue v Stevenson use of the “neighbour principle” and its
historical interpretation e.g. in 1970’s with Home Office v Dorset Yacht; Anns v London Borough of
Merton etc and how the expansionist period developed – a principle of “neighbourhood” applied
liberally. Based on a ‘liberal’ House of Lords willing to ignore the arguments of the past.
However, it is clear there are limits to the application of the neighbour principle as defined in the
late 1970’s/early 1980’s. – note the “resiling from Anns” and the more recent use of the ‘proximity’
test – Peabody; Yeun Kin Yeu, Hill v CC West Yorkshire etc, which is far more restrictive in its
application. Candidates may then analyse how ‘proximity’ operates by reference to any area of
liability e.g. economic loss, nervous shock, omissions, liability of local authorities, police etc.
Candidates should also recognise that ‘proximity’ is one required element in many complex/novel
areas of law but not always sufficient on its own - an understanding of the ‘just and
reasonableness’ test by reference to case law in any of the areas studied is also required. The
term ‘just and reasonableness’ principle emerged to limit development even further – e.g. Hill v CC
West Yorkshire; Alexandrou; Harris v Evans; Caparo; etc etc, predominantly due to policy reasons.
Thus policy is an ever present influence over judicial decision making and the duty of care issue.
General policy issues exist (e.g. the floodgates, lack of an alternative remedy) and specific policy
issues exist (e.g. re nervous shock – issue of fraud, economic loss – need to protect the rules of
contract, public bodies - need to protect their resources).
It may also be noted that the ‘just and reasonableness’ issue has been used in a novel manner to
support development as illustrated by White v Jones.
Question 2
Candidates should broadly refer to the following:
To determine whether a defendant has been careless the courts ask the question – has the
defendant measure up to the standard of care expected of the reasonable person? Has the
defendant acted in a reasonable and prudent manner taking into account the context and the facts
of the situation? It is thus a flexible test based on what a person in the position of the defendant,
would or would not, have done.
Certain characteristics of the defendant will be relevant – e.g. Liability of a child (Mullin v Richards),
those who profess a skill (Wells v Cooper; although note policy and Nettleship v Weston).
In determining breach the court would take into account what precautions, if any, would a
reasonable person have taken against the risk of injury. A number of issues would be considered
such as: the likelihood of harm occurring (Bolton v Stone); the potential severity of damage (Paris v
Stepney BC); the defendant’s purpose in taking the risk (Watt v Herts CC; Scutts v Keyse); the
practicability of taking precautions/resources (Latimer v AEC; Herrington v BRB).
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“Common practice” is a major factor to consider when examining whether an individual is in breach
of duty. The reasonable defendant complies with common practice in their
industry/occupation/profession re health and safety regimes, the method of doing the job etc. In the
medical field “common practice” has been interpreted in a specific way – see Bolam v Friern
Barnet and the test of responsible medical opinion and case law applying this approach e.g
Ashcroft v Mersey AHA, Wilsher v Essex HA. Test updated in Bolitho v City and Hackney HA –
does the medical opinion have a “logical basis”? Indeed is adherence to common practice always
the behaviour of a reasonable person!!
Question 3
Candidates need to initially examine the principle of liability for negligent misstatement by
reference to the ground breaking case of Hedley Byrne v Heller. An examination of the
“assumption of responsibility”/”special relationship” test based on the defendant’s knowledge of the
reliance and the claimant’s reasonable reliance on the information provided etc is required.
Since Hedley Byrne, a consideration of how elements of the “special relationship” test have
developed in relevant cases is necessary e.g. in Mutual Life v Evatt; Howard Marine v Ogden;
Chaudhury etc. A brief reference to the expansionist phase and the liberal interpretation of the
“special relationship” is relevant – exemplified by Yianni v Edwin Evans
Candidates then need to focus on Caparo v Dickman and the more restrictive interpretation of the
“special relationship” (proximity) demonstrated by numerous cases such as Morgan Crucible v Hill
Samuel Bank; Law Society v KPMG; Henderson v Merret; Aiken (the Lloyds cases) Goodwill v
BPAS,;McNaughten v Hicks; Precis v Mercer. These cases (post Hedley Byrne) illustrate how the
principles have been amended to limit the ‘floodgates of liability’ being opened.
However, it should also be noted that post Hedley Byrne there have been cases where duty has
been imposed without regard to the strict application of the test outlined in Hedley Byrne (as
amended by Caparo) - e.g. White v Jones and the other wills cases such as Carr-Glyn v
Frearsons; Spring v Guardian Assurance and the reference cases; Henderson v Merrett and the
professional services cases. This is a theme that needs to be developed to demonstrate how the
concept of special relationship first outlined in Hedley Byrne has been amended and re-considered
by the courts in more recent cases to fit the requirements of policy, amongst other reasons. In
conclusion, case law post Hedley Byrne has restricted and extended the test!
Question 4
Kate is a visitor and thus is owed a ‘common duty of care’ under the Occupiers Liability Act 1957
(s.2(1). The premises must be safe for the purpose of the visit. But the test for breach of duty is
one that requires the occupier to be at fault. The injury to Kate is arguably due to her unreasonable
behaviour; by running up the stairs oblivious to the danger. In discharging their duty an occupier is
entitled to expect a visitor to act appropriately (Clare v Perry; Lewis v Six Continents). Furthermore,
the warning and barrier would suggest the university had done what was ‘reasonable’ in securing
her safety for the purposes of her visit.
Under the OLA 1957, an occupier can avoid liability for injury caused by an independent contractor
providing that the criteria in s.2(4)(b) are met. Therefore the university will not be liable for the
injury to Josh if a) it was reasonable to entrust this specialist work to a contractor (Haseldine v Daw
cf Woodward v Mayor of Hastings) and b) and reasonable steps had been taken to ensure the
contractor was competent (Bottomley v Todmorden CC). It is very probable the university could not
satisfy this criteria - although the work was specialist the contractor was not selected from a bona
fide trade association list, no references had been asked for and it looks like they were selected for
personal reasons. Thirdly it would seem to be easy for the manager to do basic checks to ensure
the work was done properly.
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Jayshree and Gillian are trespassers as they ignore the sign. An occupier of premises can owe a
duty of care under the OLA 1984 to a trespasser if all the three criteria in s.1(3) are established.
But with Gillian, even before the criteria is applied, case law suggests he may not be able to
recover as the way the injury occurs is not covered by the provisions of the OLA 1984 - as it was
not due to a “defect” in the premises but Gillian’s silly behaviour (Donoghue v Folkstone Properties;
Tomlinson v Congleton BC). Alternatively, the three criteria would not be satisfied – a) as the
occupier wasn’t aware of the specific danger on the premises -the danger was created by her
behaviour, it wasn’t due to any defect on the premises (Keown v Coventry HA) nor was the
trespasser aware of the trespasser being within the vicinity of “danger” (Higgs v Foster).
However, with Jayshree the injury was due to a defect – the diving board. But the three criteria
would not be satisfied as although the university was aware of the danger there was no awareness
of the trespass by Jayshree.
Kevin and Christopher are visitors. The Act provides that an occupier must take account of the fact
that the child visitor may be less careful than adults (s.2(3)(a)).. However, when devising the safety
system on premises the occupier is also entitled to take into account the behaviour of prudent
parents (Phipps v Rochester Corporation; Simkiss v Rhondda BC). It is arguable that Kevin failed
to supervise his son as would have been expected, taking account of his age. See Tedstone v
Bourne Leisure; Marsden v Bourne Leisure.
Finally, issue of the exclusion notice – apply UFCTA 77 s.2(1)(2(2).
Question 5
This question is about private nuisance and the rule in Rylands v Fletcher. Candidates should
define the appropriate definitions and apply the relevant principles to the scenario.
The noise could constitute a private nuisance – an indirect, continuous and unlawful interference.
Unlawfulness will depend upon a number of factors, including locality, duration, extent etc. Apply
relevant case law e.g. Leeman v Montagu, Sampson v Pressinger. Locality is relevant, Halsey v
Esso Petroleum, Sturges v Bridgman. Peter lives on the edge of industrial estate – is it the type of
interference to be therefore expected? Arguably not. Public benefit will not be a relevant factor in
determining whether or not the noise is a nuisance (Bellow v Cement Co Ltd; Miller v Jackson).
Paul - the possibility of action using the Rule in Rylands v Fletcher. The storage of chemicals is a
‘non-natural use’ of the land (Transco v Stockport BC; Rylands v Fletcher) All those who suffered
loss would be eligible to sue because it is an ‘escape’ (Read v Lyons). As Rylands v Fletcher is an
extension of private nuisance, it would appear that personal injuries are not directly recoverable
although any property damage and financial loss re the lost revenue in closing the shop would be
(Cambridge Water v Eastern Counties Leather; Transco v Stockport BC).
Interference with TV reception was considered in Bridlington v Yorkshire Electricity Board and most
recently in Hunter v Canary Wharf. Both cases suggested that any right to TV reception is not
protected in the law of nuisance. However, Bridlington is an old authority and Hunter was
specifically about large buildings interfering with reception. Lord Cooke in obiter comments in
Hunter suggested electrical interference can be treated differently. Also note Network Rail v Morris
on electrical interference. Alastair could, however, argue that the large sign is an actionable
trespass (Kelsen v Imperial Tobacco)
On Jeremy’s complaint see the commentary re Peter’s problem and issue of noise. If Timmy acted
maliciously additional factor towards deciding interference is a nuisance (Christie v Davey). Smell,
not a nuisance if he is hyper sensitive. Dumping burgers is a trespass to land (Kynock v
Rowlands).
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Question 6
Battery is the intentional and direct application of force on another person without their consent.
Although Keith consented to the nose operation this did not mean he consented to the removal of
the birth mark. The additional procedure could only be justified if it was an essential action to save
his life and he was not able to give formal consent as he was unconscious (F v West Berkshire HA,
implied consent based on ‘acting in the patient’s best interests’). This clearly was not the case
here.
Although, on the face of it a “practical joke” Alex may still be liable for the assault of throwing the
knife in combination with the aggressive words. It seems clear Mohammed reasonably believed he
was about to be battered (even though he wasn’t) and the fact the knife was plastic and probably
couldn’t cause him much harm doesn’t affect the principle that fear of any battery can be an
assault (R v St George). One issue may be the history of ‘jokes’ being played between them –
does Alex have the required state of mind? (Bici v MOD).
Mohammed phoning George – potential liability under the rule in Wilkinson v Downton; not assault
nor battery by reference to their definition. The question here is – was the loss physical or
psychological, rather than mere distress? (Mina Wong v Parkside Health)
Mohammed being dragged to store room – This can be false imprisonment even if he falls asleep
(Meering v Grahame White Aviation). Furthermore, Alex demanding compensation before
releasing Mohammed is arguably not a reasonable condition for release - still false imprisonment
(Robinson v Balmain Ferry). Additional point – is the window a reasonable escape route (Wright v
Wilson)
Brian kissing Zoe’s hand – His actions “transcend the boundaries of lawfulness” as any “unwanted
touching” is capable of being a battery (F v West Berkshire HA). Battery is not based on verifiable
harm nor is hostility required despite the decision in Wilson v Pringle. Therefore the kiss is a
technical battery.
Nick’s comments to Jeff – This may not be an assault as Jeff does not necessarily fear he is about
to be battered. The words suggest the battery may happen in the future, not immediately (Thomas
v NUM; Tuberville v Savage). Nick throwing the keys hitting Penny is an example of transferred
intent, making him liable for the battery to Penny (Bici v MOD; Livingstone v MOD). He may also
have technically committed the tort of assault against Nick.
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