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www.oxfordtextbooks.co.uk/orc/statutes/ Blackstone’s Statutes have been trusted in over a million exams—why take a chance on anything else? www.oxfordtextbooks.co.uk/statutes * Survey of over 100 students feedback from law courses ‘Easy to use and great to have as a study aid, I would definitely not have achieved the marks I wanted without Blackstone’s Statute books.’ This page intentionally left blank www.ebook3000.com Casebook on Torts Twelfth Edition Richard Kidner MA, BCL Emeritus Professor of Law, Aberystwyth University Great Clarendon Street, Oxford OX2 6DP United Kingdom Oxford University Press is a department of the University of Oxford It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Richard Kidner 2012 The moral rights of the author have been asserted Ninth edition published 2006, Tenth edition published 2008, Eleventh edition published 2010 Impression: All rights reserved No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Contains public sector information licensed under the Open Government Licence v1.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/ open-government-licence.htm) Crown Copyright material reproduced with the permission of the Controller, HMSO (under the terms of the Click Use licence) British Library Cataloguing in Publication Data Data available Library of Congress Cataloguing in Publication Data Data available ISBN 978–0–19–964481–0 Printed in Great Britain by Ashford Colour Press Ltd, Gosport, Hampshire Links to third party websites are provided by Oxford in good faith and for information only Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work www.ebook3000.com O U T L I N E C O N T E N TS Introduction Negligence: The Basic Principles of Duty of Care 10 Breach of Duty: The Standard of Care 35 Causation and Remoteness of Damage 57 Special Duty Problems: Omissions 85 Special Duty Problems: Liability of Public Bodies 89 Special Duty Problems: Psychiatric Injury 107 Special Duty Problems: Statements, Services and Economic Loss 121 Special Duty Problems: Acts and Economic Loss 146 10 Special Duty Problems: Contract and Duty of Care 156 11 Special Duty Problems: Defective Structures 168 12 Special Duty Problems: Unborn Children, Wrongful Life and Wrongful Birth 176 13 Defences to Negligence 183 14 Damages for Death and Personal Injuries 203 15 Vicarious Liability 216 16 Breach of Statutory Duty 237 17 Product Liability 243 18 Occupiers’ Liability 259 19 Nuisance 284 20 Trespass to the Person 323 21 Trespass to Land 339 22 Defamation 347 23 Privacy and the Intentional Infliction of Distress 398 This page intentionally left blank www.ebook3000.com D E TA I L ED C O NT E N TS Preface New to this Edition Acknowledgements Table of Cases Table of Statutes Table of Statutory Instruments Table of Foreign Legislation Table of Treaties and Conventions Table of European Secondary Legislation xi xii xiii xiv xxviii xxxi xxxi xxxii xxxii Introduction SECTION 1: Examples of Torts SECTION 2: The Aims of The Law of Torts SECTION 3: Studying Torts Negligence: The Basic Principles of Duty of Care SECTION 1: Proximity 11 SECTION 2: The Unforeseeable Claimant 19 SECTION 3: Policy Factors—‘Fair and Reasonable’ 24 Breach of Duty: The Standard of Care SECTION 1: The Reasonable Man—The Level of Reasonable Risk 36 SECTION 2: The Skill of the Defendant 40 SECTION 3: Other Relevant Factors in the Standard of Care Owed 50 SECTION 4: A Statutory Version 56 Causation and Remoteness of Damage 57 SECTION 1: Causation 57 SECTION 2: Remoteness of Damage 71 Special Duty Problems: Omissions 10 35 85 viii Detailed Contents Special Duty Problems: Liability of Public Bodies SECTION 1: The Common Law SECTION 2: The Effect of The Human Rights Act 1998 Special Duty Problems: Psychiatric Injury SECTION 1: The Primary Victim 107 SECTION 2: The Secondary Victim 111 Special Duty Problems: Statements, Services and Economic Loss 89 90 101 107 121 SECTION 1: By Whom a Duty Is Owed 122 SECTION 2: To Whom the Duty Is Owed 128 SECTION 3: Liability to Third Parties 136 SECTION 4: The Effect of a Clause Disclaiming Responsibility 143 Special Duty Problems: Acts and Economic Loss 146 10 Special Duty Problems: Contract and Duty of Care 156 SECTION 1: Concurrent Liability 157 SECTION 2: Liability to Third Parties 159 11 Special Duty Problems: Defective Structures 168 12 Special Duty Problems: Unborn Children, Wrongful Life and Wrongful Birth 176 SECTION 1: Injuries to Unborn Children 176 SECTION 2: Wrongful Life 179 SECTION 3: Wrongful Birth 180 13 Defences to Negligence SECTION 1: Contributory Negligence 183 SECTION 2: Consent 191 www.ebook3000.com 183 Detailed Contents ix SECTION 3: Exclusion Clauses and Notices 196 SECTION 4: Participating in an Unlawful Act 198 14 Damages for Death and Personal Injuries SECTION 1: Types of Action for Damages 203 SECTION 2: Calculation of Loss of Earnings 208 SECTION 3: Intangible Losses 214 15 Vicarious Liability 216 SECTION 1: Who Is an Employee? 217 SECTION 2: Liability of the Employee 222 SECTION 3: The Course of Employment 225 SECTION 4: Liability for Independent Contractors 235 16 Breach of Statutory Duty 237 17 Product Liability 243 SECTION 1: Liability for Negligence 243 SECTION 2: Strict Liability 246 18 Occupiers’ Liability SECTION 1: Occupiers’ Liability and Negligence 261 SECTION 2: Who Is an Occupier? 264 SECTION 3: Who Is a Visitor? 267 SECTION 4: The Duty Owed to Visitors 269 SECTION 5: The Duty Owed to Trespassers and Other Non-Visitors 272 SECTION 6: Exclusion of Liability 281 19 Nuisance SECTION 1: Public and Private Nuisance SECTION 2: Private Nuisance: The Interests Protected 287 SECTION 3: Reasonable User 294 SECTION 4: Who Is Liable? 295 SECTION 5: Remoteness of Damage 300 203 259 284 284 Privacy and the Intentional Infliction of Distress 431 The Court considers that in order to prevent a serious chilling effect on freedom of expression, a reasonable belief that there was a “public interest” at stake would have to be sufficient to justify non-notification, even if it were subsequently held that no such “public interest” arose The parties’ submissions appeared to differ on whether “public interest” should be limited to a specific public interest in not notifying (for example, where there was a risk of destruction of evidence) or extend to a more general public interest in publication of the material The Court would observe that a narrowly defined public interest exception would increase the chilling effect of any prenotification duty 128 Second, and more importantly, any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without prenotification In the applicant’s case, there is no doubt that one of the main reasons, if not the only reason, for failing to seek his comments was to avoid the possibility of an injunction being sought and granted … Thus the News of the World d chose to run the risk that the applicant would commence civil proceedings after publication and that it might, as a result of those proceedings, be required to pay damages In any future case to which a pre-notification requirement applied, the newspaper in question could choose to run the same risk and decline to notify, preferring instead to incur an ex post facto fine 129 Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention It reiterates in this regard the need to take particular care when examining restraints which might operate as a form of censorship prior to publication It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention iii Conclusion 132 … However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article does not require a legally binding pre-notification requirement Accordingly, the Court concludes that there has been no violation of Article of the Convention by the absence of such a requirement in domestic law NOTES The Court approves the view of Eady J that there was no justification for the invasion of privacy, but nevertheless notes that each jurisdiction has a wide ‘margin of appreciation’ within which to frame the reasonable expectation of privacy and the public interest in publication This margin allows individual courts and jurisdictions an element of choice based on local values and culture, but this discretion will be diminished if there is wide consensus across the jurisdictions as to where the limits should be placed On the particular point at issue, the question of a ‘pre-notification’ rule, the Court considered that such a rule would have too great a ‘chilling effect’ so as to limit freedom of speech It would also be ineffective because large media companies would regard any fi ne as merely one of the costs of being in the newspaper business However, this problem is also bound up with the question of remedies—notably the ‘super-injunction’, which prevents anyone knowing that an injunction has been issued If there is no justification for pre-notification, how can a super-injunction be justified? This is discussed further in section 4B below 432 Privacy and the Intentional Infliction of Distress SECTION 4: REMEDIES A: Damages The level of damages in privacy cases has been relatively modest, having been guided by the European Court of Human Rights in Von Hannover (above), in which the award was £7,000 The amounts are nowhere near those awarded in defamation cases The relevant principles are discussed by Eady J in Mosley Mosley v News Group Newspapers Queen’s Bench Division [2008] EWHC 1777 The facts are given above and this extract deals solely with the issue of compensatory damages (Earlier, at para 197, Eady J decided that exemplary damages— which are designed to punish the defendant—were not allowable because ‘there is no existing authority (whether statutory or at common law) to justify such an extension and, indeed, it would fail the tests of necessity and proportionality’.) EADY J: The nature of compensatory damages in privacy cases 214 Because both libel and breach of privacy are concerned with compensating for infringements of Article 8, there is clearly some scope for analogy On the other hand, it is important to remember that this case is not directly concerned with compensating for, or vindicating, injury to reputation The claim was not brought in libel The distinctive functions of a defamation claim not arise The purpose of damages, therefore, must be to address the specific public policy factors in play when there has been “an old fashioned breach of confidence” and/or an unauthorised revelation of personal information It would seem that the law is concerned to protect such matters as personal dignity, autonomy and integrity 216 Thus it is reasonable to suppose that damages for such an infringement may include distress, hurt feelings and loss of dignity The scale of the distress and indignity in this case is difficult to comprehend It is probably unprecedented Apart from distress, there is another factor which probably has to be taken into account of a less tangible nature It is accepted in recent jurisprudence that a legitimate consideration is that of vindication to mark the infringement of a right: see e.g Ashley v Chief Constable of Sussexx [2008] WLR 975 at [21]-[22] and Chester v Afsharr [2005] AC 134 at [87] Again, it should be stressed that this is different from vindication of reputation (long recognised as a proper factor in the award of libel damages) It is simply to mark the fact that either the state or a relevant individual has taken away or undermined the right of another—in this case taken away a person’s dignity and struck at the core of his personality It is a relevant factor, but the underlying policy is to ensure that an infringed right is met with “an adequate remedy” If other factors mean that significant damages are to be awarded, in any event, the element of vindication does not need to be reflected in an even higher award As Lord Scott observed in Ashley, y ibid, “ … there is no reason why an award of compensatory damages should not also fulfil a vindicatory purpose” 217 If the objective is to provide an adequate remedy for the infringement of a right, it would not be served effectively if the court were merely to award nominal damages out of distaste for what the newspaper had revealed As I have said, that should not be the court’s concern It would demonstrate that the judge had been distracted from the main task The danger would be that the more unconventional the taste, and the greater the embarrassment caused by the revelation, the less effective would be the vindication The easier it would be for the media to hound minorities www.ebook3000.com Privacy and the Intentional Infliction of Distress 433 218 These are the elements which need to be recognised in an award of damages in this field but, of course, they must be proportionate and not open to the criticism of arbitrariness: see e.g Tolstoy Miloslavsky v UK K (1995) 20 EHRR 442 It has been recognised since the Court of Appeal decision in John v MGN Ltd d [1997] QB 586 that there must be a readily identifiable scale in the field of defamation so as to avoid, as far as possible, the vices pointed out in Strasbourg The guidance there provided can to that extent be transferred to the present environment Thus, it will be legitimate, in particular, to pay some attention to the current levels of personal injury awards in order to help maintain a sense of proportion 222 It must be recognised that it may be appropriate to take into account any aggravating conduct in privacy cases on the part of the defendant which increases the hurt to the claimant’s feelings or “rubs salt in the wound” … 224 So too, it may be appropriate that a claimant’s conduct should be taken into account (as it is in libel cases) Logically, it may be said, a claimant’s conduct has nothing to with whether or not his privacy has been invaded or the impact upon his feelings caused by such an intrusion There is no doctrine of contributory negligence On the other hand, the extent to which his own conduct has contributed to the nature and scale of the distress might be a relevant factor on causation Has he, for example, put himself in a predicament by his own choice which contributed to his distress and loss of dignity? 225 To what extent is he the author of his own misfortune? Many would think that if a prominent man puts himself, year after year, into the hands (literally and metaphorically) of prostitutes (or even professional dominatrices) he is gambling in placing so much trust in them There is a risk of exposure or blackmail inherent in such a course of conduct … 226 To a casual observer, therefore, and especially with the benefit of hindsight, it might seem that the Claimant’s behaviour was reckless and almost self-destructive This does not excuse the intrusion into his privacy but it might be a relevant factor to take into account when assessing causal responsibility for what happened It could be thought unreasonable to absolve him of all responsibility for placing himself and his family in the predicament in which they now find themselves It is part and parcel of human dignity that one must take at least some responsibility for one’s own actions … 227 An issue to which attention was directed in counsel’s submissions was that of deterrence Passing reference has been made in the authorities from time to time to this concept, but it seems at least questionable whether deterrence should have a distinct (as opposed to a merely incidental) role to play in the award of compensatory damages It is a notion more naturally associated with punishment It often comes into the court’s assessment of an appropriate punishment for prevalent criminal offences There is also the anomaly to be considered, already mentioned in the context of exemplary damages; namely, that if damages are paid to an individual for the purpose of deterring the defendant (or others) it would naturally be seen as an undeserved windfall 228 Furthermore, if deterrence is to have any prospect of success it would be necessary to take into account (as with exemplary damages) the means of the relevant defendant (often a newspaper group) Any award against the present Defendant would have to be so large that it would fail the test of proportionality when seen as fulfi lling a compensatory function There is also a concomitant danger in including a large element of deterrence by way of “chilling effect” 230 I am conscious naturally that the analogy with defamation can only be pressed so far I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between Thus, if journalists successfully avoid the grant of an 434 Privacy and the Intentional Infliction of Distress interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone’s sex life will carry no adverse consequences for them and (as Mr Thurlbeck put it in his April email) that the news agenda will move on 231 Notwithstanding all this, it has to be accepted that an infringement of privacy cannot ever be effectively compensated by a monetary award Judges cannot achieve what is, in the nature of things, impossible That unpalatable fact cannot be mitigated by simply adding a few noughts to the number first thought of Accordingly, it seems to me that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party That is all that can be done in circumstances where the traditional object of restitutio is not available At the same time, the figure selected should not be such that it could be interpreted as minimising the scale of the wrong done or the damage it has caused NOTES Mosley was awarded £60,000 plus costs of £420,000 He also sued in Germany, where he negotiated a settlement of €250,000 He was also awarded €7,000 in France The damages in Mosley were considerably higher than in other privacy cases Was this because of the allegations of the Nazi connotations of the proceedings, or perhaps because of the secret fi lming of what went on and the publication of the video on the Internet? Compare other awards: in Douglas v Hello! [2005] All ER 128, the claimants were awarded £3,750 each for unauthorized publication of wedding photographs; in McKennit v Ash [2007] WLR 194, the claimant was awarded £5,000 for stories about her personal and sexual relationships; in Lady Archer v Williams [2003] EWHC 1670, the claimant was awarded £2,500 for stories by her personal assistant [Note here also the risks of litigation: Lady Archer was awarded costs, but was unable to recoup them from the defendant She then sued her lawyers for wasting costs and lost that action too: see [2003] EWHC 3048.] B: Injunctions There has been much controversy and confusion in recent years about the granting of ‘super-injunctions’ in privacy cases—so much so that a special committee chaired by the Master of the Rolls was set up to discuss the issue (see The Report of the Committee on Super Injunctions: Super Injunctions, Anonymised Injunctions and Open Justice, 20 May 2011) There has been much confusion about nomenclature The Committee distinguished between ‘anonymized inunctions’ and ‘super injunctions’ as follows: a super-injunction can properly be defined as follows: an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, ii) publicising or informing others of the existence of the order and the proceedings (the ‘super’ element of the order) This is to be contrasted with an anonymised injunction, which is: an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated The Committee also noted that super-injunctions are now extremely rare and are granted only when there is a danger of a ‘tip off’—that is, when the defendant or his associates could frustrate the purpose of the order if he or they were to become aware of it in advance, for example in fraud cases in which the assets could be hidden before the order takes effect www.ebook3000.com Privacy and the Intentional Infliction of Distress 435 The Committee also said that the correct approach to anonymized injunctions is that taken in JIH v News Group Newspapers (below) It also recommended that official guidance should be issued and that a standard form of injunction should be drafted for interim non disclosure orders; this has been done JIH v News Group Newspapers Court of Appeal [2011] WLR 1645; [2011] EWCA (Civ) 42 The claimant, known for these purposes as ‘JIH’, was a well-known sportsman, who had, for some time, been in a long-term and conventional relationship with ‘X’ The story, the publication of which JIH was seeking to prevent, concerned an alleged sexual encounter that he had in 2010 with ‘Z’ In August 2010, JIH discovered that the defendants, News Group Newspapers Ltd, had been told by Z of this alleged encounter JIH began proceedings without revealing his identity in the publicly available court papers, to prevent publication about his alleged relationship with Z Held: JIH would be granted anonymity THE MASTER OF THE ROLLS, (LORD NEUBERGER): The cardinal importance of open justice is demonstrated by what is stated in Article of the Convention But it has long been a feature of the common law … The point was perhaps most pithily made by Lord Atkinson when he said “in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.” For a more recent affirmation of the principle, see R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65, paras 38–42, per Lord Judge CJ However, as with almost all fundamental principles, the open justice rule is not absolute: as is clear from Article 6, there will be individual cases, even types of cases, where it has to be qualified In a case involving the grant of an injunction to restrain the publication of allegedly private information, it is, as I have indicated, rightly common ground that, where the court concludes that it is right to grant an injunction (whether on an interim or final basis) restraining the publication of private information, the court may then have to consider how far it is necessary to impose restrictions on the reporting of the proceedings in order not to deprive the injunction of its effect In a case such as this, where the protection sought by the claimant is an anonymity order or other restraint on publication of details of a case which are normally in the public domain, certain principles were identified by the Judge, and which, together with principles contained in valuable written observations to which I have referred, I would summarise as follows: (1) The general rule is that the names of the parties to an action are included in orders and judgments of the court (2) There is no general exception for cases where private matters are in issue (3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large (4) Accordingly, where the court is asked to make any such order, it should only so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought (5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life 436 Privacy and the Intentional Infliction of Distress (6) (On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less (7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public (8) An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date (9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary (10) Notice of any hearing should be given to the defendant unless there is a good reason not to so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one Where, as here, the basis for any claimed restriction on publication ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule by restricting the extent to which the proceedings can be reported, and (b) if so, the judge ensures that the restrictions on publication are fashioned so as to satisfy the need for the encroachment in a way which minimises the extent of any restrictions In the present case, as in many cases where the court grants an injunction restraining publication of information, the claimant’s case as to why there is a need for restraints on publication of aspects of the proceedings themselves which can normally be published is simple and cogent If the media could publish the name of the claimant and the substance of the information which he is seeking to exclude from the public domain (i.e what would normally be information of absolutely central significance in any story about the case—who is seeking what), then the whole purpose of the injunction would be undermined, and the claimant’s private life may be unlawfully exposed In the course of his judgment, at [2010] EWHC 2818 (QB), paras and 9, Tugendhat J accepted the proposition advanced before him by Mr Tomlinson for JIH that: “Where the court has accepted that the publication of private information should be restrained, if the court is to avoid disclosing the information in question it must proceed in one of two alternative ways: (1) If its public judgment or order directly or indirectly discloses the nature of the information in question then it should be anonymised; (2) If the claimant is named in the public judgment or order then the information should not be directly or indirectly identified.” While that is not an unfair assessment in the present case, in other cases the position will sometimes be a little less stark However, in any case, it is plainly correct that, where the court permits the identity of the claimant to be revealed, it is hard to envisage circumstances where that would not mean that significantly less other information about the proceedings could be published than if the proceedings were anonymised Thus, if the identity of JIH could be published in the context of the present proceedings, it would not be appropriate to permit the publication of even the relatively exiguous information contained in paras 7–9 above As the Judge went on to say, the obvious corollary is that, if the claimant is accorded anonymisation, it will almost always be appropriate to permit more details of the proceedings to be published than if the claimant is identified NOTES Guidance on anonymized injunctions has now been issued See Master of the Rolls (2011) Practice Guidance: Interim Non-Disclosure Orders (available online at www.judiciary.gov.uk) The government is also gathering information about how often such orders are made Also on injunctions, see Terry v Persons Unknown [2010] EWHC 119, in which, on the ‘tipping-off’ point, Tugendhat J said: www.ebook3000.com Privacy and the Intentional Infliction of Distress 437 The reason why, on some occasions, applicants wish for there to be an order restricting reports of the fact that injunction has been granted is in order to prevent the alleged wrongdoer from being tipped off about the proceedings before an injunction could be applied for, or made against him, or before he can be served In the interval between learning of the intention of the applicant to bring proceedings, and the receipt by the alleged wrongdoer of an injunction binding upon him, the alleged wrongdoer might consider that he or she could disclose the information, and hope to avoid the risk of being in contempt of court Alternatively, in some cases, the alleged wrongdoer may destroy any evidence which may be needed in order to identify him as the source of the leak Tipping off of the alleged wrongdoer can thus defeat the purpose of the order This page intentionally left blank www.ebook3000.com INDEX Abatement private nuisance 317 trespass to land 345–6 Accounts duty of care 14–17 mistaken payments after freezing orders 126–8 to whom duty owed 131–6 Agency workers 219–20 Airspace aerial photographs 341–3 overhanging cranes 343–5 Allurement of children 267–9 Apologies no admission of liability 36 Assault 326–9 Auditors duty of care 14–17 to whom duty owed 131–6 Battery 326–9 Bereavement claims 206–7 functions of tort Breach of confidence application of ‘the new methodology’ towards privacy 424–6 balance between Arts and 10 417–20 current developments in the law 409–14 sources of confidential obligation 421–4 Breach of duty see Statutory liability ‘But for’ test 57–8 Care see Duty of care; Standard of care Causation ‘but for’ test 57–8 contributory negligence 185–6 dangerous escapes 313 health and safety at work 62–5 medical treatment 58–62, 65–8 vandalism to adjoining premises 68–71 wrongful birth 180–2 wrongful life 179–80 Children see also Unborn children negligent exercise of statutory powers adoption 92–4 in care 90–2 occupiers’ liability 267–9 private nuisance 288 protection of privacy 417–20 standard of care 48–50 Compensation see Damages ‘Compensation culture’ attempts to overcome 35–6 development of Concurrent liability in tort and contract liability to third parties 159–67 overview 156–7 Confidentiality see Breach of confidence Congenital disabilities product liability 249 statutory liability 176–8 Consent breaches of statutory duty 194–5 duty of care 121 general principles 191–5 infliction of distress 403 medical treatment standard of care 55 statutory limits in liability 56 trespass to the person 335–6 Consumer protection see Product liability Contractors concurrent liability in tort and contract 163–4 employees distinguished 217–21 vicarious liability 235–6 Contractual relationships concurrent liability in tort overview 156–7 time limits 157–9 impact on false imprisonment 330–2 Contributory negligence fatal accident claims 207 general principles 183–91 introduction road traffic accidents intoxication 188–9 multiple accidents 190–1 reasonable avoiding action 189–90 seat belts 186–8 trespass to the person 337–8 Control test 217–21 Damages attempts to overcome compensation culture 35–6 breaches of privacy 407–8, 432–4 defamation exemplary awards 393–5 general principles 389–93 offer of amends 395–7 harassment 403 overhanging cranes 344 personal injuries calculation of loss of earnings 208–14 intangible losses 214–15 types of action 203–8 private nuisance 288, 317–22 product liability 251 Dangerous escapes common law doctrine 310–17 overview 310 440 Index Death effect on causes of action 205 fatal accident claims 205–8 occupiers’ liability 272 product liability 249–50 Defamation accidental references to claimant 368–70 damages exemplary awards 393–5 general principles 389–93 offer of amends 395–7 defences honest comment 371–6 justification 370–1 qualified privilege 376–89 secondary publishers 351–7 freedom of information 389 impact of human rights 348–9 introduction 2–3 meaning of words defamatory 358–62 headlines 366–8 innuendo 362–8 overview 347 persons liable 351–7 standing 349–51 Defective structures extent of duty of care 171–5 statutory liability 168–71, 266–7 Defences defamation honest comment 371–6 justification 370–1 secondary publishers 351–7 highway maintenance 274 negligence consent 191–5 contributory negligence 183–91 exclusion of liability 196–8 unlawful acts 198–202 private nuisance planning permissions 304–6 statutory permission 302–4 product liability 251–3 trespass to land 339 trespass to the person consent 335–6 provocation 337–8 Disclaimers see Exclusion of liability Duress 336 Duty of care defective structures 171–5 economic losses 146–55 occupiers 260 occupiers’ liability trespassers and non-visitors 272–81 visitors 269–72 overview 10–11 policy issues 24–34 proximity 11–19 statements disclaimers 143–5 liability to third parties 136–43 by whom owed 122–8 to whom owed 129–31 unborn children injuries to unborn child 176–9 wrongful birth 180–2 wrongful life 179–80 unforeseeable claimants unforeseeable claimants 19–24 voluntary assumption of risk 121 Earnings see Loss of earnings Economic losses see also Statements functions of tort general principles 146–55 introduction 1–2 Egg shell skull principle causation 78–9 private nuisance 292 psychiatric injury 108, 119–20 Emergency services see Rescuers Emotional distress see Psychiatric injury Employees acting in course of employment connection between act and employment 227–35 time and space 226–7 defined 217–21 personal liability 222–5 Employers see Vicarious liability Ex turpi causa 198–202 Exclusion of liability concurrent liability in tort and contract 159–67 employees 222–5 occupiers 281–3 product liability 250 road traffic accidents 198 unfair terms 144–5, 196–8 Exemplary damages 393–5 Exercise of statutory powers children adoption 92–4 in care 90–2 failure to protect human rights 101–6 highway maintenance 96–101 overview 89–90 police complainants 94–6 Fair comment 371–6 False imprisonment 329–35 Fatal accidents see Death Fire see also Dangerous escapes duty of care to emergency services 28–31 occupers’ liability 263 Floodgates argument economic losses 147, 148 policy considerations 24 psychiatric injury 108, 119 rescuers 30 Foreseeability contributory negligence 185 duty of care 19–24 private nuisance 300–2 www.ebook3000.com Index relevant factors acting in a worthy cause 53–4 common practice 51–2 cost prevention 52–3 ‘heat of the moment’ actions 54–6 remoteness of damage 80–4 wrongful birth 180–2 wrongful life 179–80 Freedom of expression balanced against privacy 408 Convention provisions 408–9 impact on defamation 348 introduction Freedom of information 389 Freedom of thought, conscience and religion 349 Harassment common law approach 401–3 statutory offence 398–400 Hazardous activities see Dangerous escapes Health and safety at work ‘but for’ test 62–5 standard of care 51–2 ‘Heat of the moment’ defences 54–6 Highways maintenance 274 Honest comment 371–6 Human rights balance between free expression and privacy 408 Convention rights freedom of expression 408–9 privacy 408 freedom of expression Convention right 408–9 impact on defamation 348 impact on defamation 348–9 introduction limits on proximity for duty of care 26–8 privacy Convention right 408 failure to notify victim in advance of publication 427–31 private nuisance 306–10 statutory provisions freedom of expression 408 public authorities 406–7 remedies 407–8 standing 407 Illegality defence to negligence 198–202 vicarious liability 227–31 Imprisonment see False imprisonment Independent contractors see Contractors Infliction of distress common law approach 401–3 statutory harassment 398–400 Injunctions breaches of privacy 407–8, 434–7 harassment 403 overhanging cranes 344 private nuisance 317–22 trespass to land 339 441 Innuendo 362–8 Insurance functions of tort 6–7 introduction Intention assault and battery 328 defamation 368–70 infliction of distress 402–3 introduction trespass to land 340–1 Internet libel liability as publishers 352–7 qualified privilege 385–6 Intoxication consent 192–3 contributory negligence 188–9 liability for failure to act 88 Invasions of airspace aerial photographs 341–3 overhanging cranes 343–5 Justification 370–1 Land see Dangerous escapes; Defective structures; Occupiers liability; Trespass to land Local authorities duty of care general principles 13–14, 17–19 limits on proximity 26–8 planning permissions 171–5 negligent exercise of statutory powers child adoption 92–4 children in care 90–2 failure to protect human rights 101–4 highway maintenance 96–101 overview 89–90 Loss of amenity 214–15 Loss of chance 66–8 Loss of earnings 208–14 ‘Lost years’ 205 Malice defamation 365 nuisance 294 Medical treatment causation 58–62, 65–8 consent 6, 335–6 failure to protect human rights 101–6 omission to treat 87–8 standard of care 44–8, 50 Misstatements see Statements Negligence causation ‘but for’ test 57–8 health and safety at work 62–5 medical treatment 58–62, 65–8 vandalism to adjoining premises 68–71 defective structures extent of duty of care 171–5 statutory liability 168–71 defences consent 191–5 442 Index Negligence (cont.) contributory negligence 183–91 exclusion of liability 196–8 unlawful acts 198–202 duty of care overview 10–11 policy issues 24–34 proximity 11–19 unborn children 176–9 unforeseeable claimants 19–24 economic losses 146–55 exercise of statutory powers child adoption 92–4 children in care 90–2 failure to protect human rights 101–6 highway maintenance 96–101 overview 89–90 police complainants 94–6 introduction 1–3 occupiers’ liability 261–4 omissions 85–8 product liability 243–6 psychiatric injury primary victims 107–11 secondary victims 111–20 remoteness of damage damage unpredictable 71–7 ‘egg shell skull’ rule 78–9 reasonable foreseeability 80–4 standard of care children 48–50 defendant’s skill 40–1 learner drivers 42–3 medical treatment 44–8 overview 35–6 reasonableness 36–40 relevant factors 50–6 statutory limitations 56 statements disclaimers 143–5 duty of care 14–17 liability to third parties 136–43 overview 121 by whom owed 122–8 to whom owed 128–36 trespass to the person distinguished 323–5 Novus actus interveniens 313 Nuclear escapes 177–8, 250, 310, 316, 370 Nuisance see Private nuisance Occupiers’ liability dangerous escapes common law doctrine 310–17 duty of care trespassers and non-visitors 272–81 visitors 269–72 exclusion of liability 281–3 landlords 266–7 negligence 261–4 overview 259 resident managers 264–6 statutory provisions 259–61 visitors defined 267–9 duty of care 269–72 Offer of amends 395–7 Offers of redress 36 Omissions liability for failure to act 85–8 private nuisance 297 Pain and suffering 214–15 Part-time workers 219–20 Pearson Commission 6, 215 Periodical payments 203–4 Personal injuries damages calculation of loss of earnings 208–14 intangible losses 214–15 types of action 203–8 defamation damages compared 392 ‘egg shell skull’ rule 78–9 occupiers’ liability 272 product liability 249–50 Planning permissions defence to private nuisance 304–6 duty of care on local authorities 13–14, 17–19 extent of duty of care 171–5 Police limits on proximity for duty of care 24–6 negligent exercise of statutory powers failure to protect human rights 104–6 police complainants 94–6 psychiatric injury 112–20 Primary victims 107–11 Privacy application of ‘the new methodology’ 424–6 balanced against free expression 408 breach of confidence balance between Arts and 10 417–20 current developments in the law 409–14 sources of confidential obligation 421–4 common law approach 403–5 effect on nuisance 306–10 failure to notify victim in advance of publication 427–31 introduction 2–3 overview 398 positive obligations on state 414–17 remedies damages 432–4 injunctions 434–7 Private nuisance defences planning permissions 304–6 statutory permission 302–4 human rights privacy 306–10 introduction persons responsible 295–300 protected interests 287–94 public nuisance distinguished 284–7 reasonable user 294–5 remedies 317–22 remoteness of damage 300–2 Privilege common law doctrine 376–89 www.ebook3000.com Index statutory provisions 389 Product liability duty of care 11–13 negligence 243–6 strict liability EC Law 252–3 state of scientific knowledge defence 251–3, 253–8 statutory provisions 246–51 time limits 251 Professional services see Statements Provisional payments 204–5 Provocation 337–8 Proximity economic losses 140–6 general principles 11–19 policy issues 24–34 psychiatric injury primary victims 107–11 secondary victims 111–20 statements 122–8 unlawful acts 198–202 Psychiatric injury general principles 19–22 harassment 403 introduction limits on proximity for duty of care 24–6 primary victims 107–11 secondary victims 111–20 Public nuisance 284–7 Qualified privilege common law doctrine 376–89 statutory provisions 389 Reasonableness defamation accidental references to claimant 369 meaning of words 365 private nuisance 294–5 remoteness of damage 80–4 standard of care defendant’s skill 40–1 level of risk 36–40 unfair terms 197 Reliance economic losses 139 employee liability 224–5 Remarriage prospects 208 Remedies see Damages; Injunctions; Self help Remoteness of damage see also Proximity dangerous escapes 313–14 economic losses 146–55 ‘egg shell skull’ rule 78–9 private nuisance 300–2 reasonable foreseeability 80–4 unpredictability 71–7 Repairing obligations see Defective structures Rescuers duty of care limits on proximity 28–31 unforeseeable claimants 22–4 primary victims 110 443 psychiatric injury 116–20 Road traffic accidents contributory negligence intoxication 188–9 multiple accidents 190–1 reasonable avoiding action 189–90 seat belts 186–8 duty of care 19–22 exclusion of liability 198 learner drivers 42–3 loss of amenity 214–15 negligent exercise of statutory powers 96–101 psychiatric injury 107–11 Seat belts contributory negligence 186–8 functions of tort Secondary victims 111–20 Self help private nuisance 317 trespass to land 345–6 Services see Statements Shock 113–16 Solicitors concurrent liability in tort and contract 162–3 liability to third parties 140–3 Sporting events ‘heat of the moment’ defences 54–6 standard of care 37–9 Standard of care children 48–50 foreseeability relevant factors 50–6 learner drivers 42–3 medical treatment 44–8 overview 35–6 reasonableness defendant’s skill 40–1 level of risk 36–40 statutory limitations 56 Standing defamation 349–51 fatal accident claims 207 human rights 407 privacy 403–5 private nuisance 287–94 State of scientific knowledge 251–3 Statements disclaimers 143–5 duty of care proximity 14–17 by whom owed 122–8 to whom owed 128–36 liability to third parties 136–43 Statutory authorities consent to injury by trespassers 194–5 dangerous escapes 312–17 failure to protect human rights 104–6 highway maintenance 274 liability for failure to act 85–6 negligent exercise of statutory powers police complainants 94–6 river bank repairs 100 444 Index Statutory authorities (cont.) private nuisance 302–4, 307–10 standard of care 39–40 Statutory liability congenital disabilities 176–8 defective premises 266–7 defective structures 168–71 enforcement by civil action 239–41 harassment 398–400 occupiers 259–61 overview 237 safety regulations 237–9 scope 241–2 standard of care 56 Strict liability aircraft 342–3 introduction product liability EC Law 252–3 state of scientific knowledge defence 251–3, 253–8 statutory provisions 246–51 time limits 251 Subcontractors concurrent liability in tort and contract 165–7 vicarious liability 217–21 Surveyors limits on proximity for duty of care 31–4 unfair contract terms 144–5 to whom duty owed 129–31 Third parties causation 65–8 concurrent liability in tort and contract 159–67 dangerous escapes 313 exclusion of employee liability 222–5 occupiers’ liability 261 remedies for negligent statements 136–43 Time limits concurrent liability in tort and contract 157–9 defamation 357 product liability 251 trespass to the person and negligence distinguished 325 Torts aims of the law damages 6–8 deterrence 4–6 overview 3–4 concurrent liability in contract liability to third parties 159–67 overview 156–7 time limits 157–9 importance of cases 8–9 introduction 1–3 Trespass to land intention 340 introduction invasions of airspace aerial photographs 341–3 overhanging cranes 343–5 occupiers’ liability duty of care 272–81 visitors distinguished 267–9 overview 339 protected interests 339 unforeseeable claimants 22–4 vandalism to adjoining premises 68–71 Trespass to the person assault and battery 326–9 defences consent 335–6 provocation 337–8 false imprisonment 329–35 negligence distinguished 323–5 overview 323 Unborn children duty of care injuries to unborn child 176–9 wrongful birth 180–2 wrongful life 179–80 product liability 249 Unfair terms negligent statements 144–5 statutory provisions 196–8 visitors 288 Unlawful acts defence to negligence 198–202 vicarious liability 227–31 Vicarious liability contractors 235–6 employees acting in course of employment 226–35 defined 217–21 personal liability 222–5 introduction overview 216–17 secondary victims 117–18 Victims failure to notify in advance of publication 427–31 primary 107–11 secondary 111–20 Visitors defined 267–9 duty of care 269–72 exclusion of liability 282 Volenti non fit injuria see Consent Water see Dangerous escapes Wrongful birth 180–2 Wrongful life 179–80 www.ebook3000.com Essential Law Revision from Oxford University Press The perfect pairing for exam success For students who are serious about exam success, it’s time to Concentrate! ✓ Written by experts ✓ Developed with students ✓ Designed for success Each guide in the Concentrate series shows you what to expect in a law exam, what examiners are looking for and how to achieve extra marks ‘This jam-packed book is a fantastic source, giving a clear, concise and understandable presentation of the law which is essential for revision’ Stephanie Lawson, Law Student, Northumbria University ‘Every law student serious about their grades should use a Concentrate I would not revise without it’ Heather Walkden, Law Student, University of Salford Questions & Answers Keeping you afloat through your exams 10 ✓ Typical exam questions W L A ER IE S Q&A S LLER BESTSE ✓ Model answers N IE L SE N B O O K S CA N TA DA 20 ✓ Advice on exam technique Don’t just answer the question, nail it Law examiners share the secret of how to really answer typical 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With summaries, tips, and easyto-understand sample answers, Q&As really help with exam technique and how to structure answers’ Kim Sutton, Law Student, Oxford Brookes University For the full list of revision titles and additional resources visit: www oxfordtextbooks.co.uk/orc/lawrevision/ ✱ Scan this QR code image with your mobile device to access a range of law revision resources QR Code is registered trademark of DENSO WAVE INCORPORATED Techniques for exam success ✱ Written by experts ... 176 SECTION 1: Injuries to Unborn Children 176 SECTION 2: Wrongful Life 179 SECTION 3: Wrongful Birth 180 13 Defences to Negligence SECTION 1: Contributory Negligence 183 SECTION 2: Consent 191... Privilege 376 SECTION 9: Damages 389 23 Privacy and the Intentional Infliction of Distress SECTION 1: The Intentional Infliction of Distress 398 SECTION 2: Privacy at Common Law 403 SECTION 3: The Human... since publication of the eleventh edition, including: • New case extracts: – on liability of public bodies: Desmond v The Chief Constable of Nottinghamshire – on economic loss: Conarken v Network