Tort Law

Tort is a French word meaning “wrong”.

Torts are legal obligations which give rise to liability if they are breached.

If it can be shown that the defendant breached such an obligation and that the breach caused the claimant damage or loss, then D must pay compensation (damages) to C.

Tortious obligations apply generally to everyone. They do not need to be agreed in advance, unlike contractual obligations.

The existence of a general duty of care was established in Donoghue v Stevenson by Lord Atkin who decided that “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”.

Atkin defined your “neighbour” as  “…persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when directing my mind to the acts or omissions which are called into question”. 

To establish liability in negligence, the claimant must show on the balance of probabilities that:

• The defendant owed him a duty of care; AND
• The defendant breached that duty; AND
• The breach of duty caused the damage or loss C suffered.

C must show that D owed them a duty of care. In some situations, this has been established by case law, such as:

Nettleship v Weston A driver owes a duty of care to his passenger and other road users.

Montgomery v Lanarkshire A doctor owes a duty of care to his patient.

Condon v Basi A sportsman owes a duty of care to another sportsman playing in the same match.

Walker v Northumberland CC An employer owes a duty of care to their employees.

Arthur JS Hall & Co v Simons A lawyer owes a duty of care to their client.

If the situation is a novel (new) one which is not covered by an existing precedent, at that point the court, in applying the above approach, should consider other factors, such as:

• Is the harm/damage caused reasonably foreseeable?
• Is there proximity between the claimant and the defendant?
• Is it fair, just and reasonable to impose a duty of care on the defendant?
• The distinction between acts and omissions.

ALL 4 of the above must be satisfied for there to be a Duty of Care. 

This is an objective test; if a “reasonable man” would have foreseen the harm that occurred there is more likely to be a duty of care.

In Kent v Griffiths, it WAS held to be reasonably foreseeable that if an ambulance arrived late to a call that the waiting patient could suffer harm.

In Bourhill v Young, it was NOT considered reasonably foreseeable that a person 50 yards away from a motorbike accident who did not witness it could suffer shock and a miscarriage due to the rider’s lack of care.

This means closeness of relationship or in time and space. If this exists there is more likely to be a duty of care:

• In Bourhill v Young, there was NO proximity in terms of space as C did not witness the accident and went voluntarily to look at the aftermath.
• In McLoughlin v O’Brien, there WAS proximity in terms of a relationship as even though C did not witness the accident, she saw the immediate aftermath and had ‘close ties of love and affection’ with the victims.
• In Donoghue v Stevenson, there WAS proximity in terms of reliance as C relied on the manufacturer of the ginger beer.
• In Hill v CC West Yorkshire Police there was no proximity between the police and the relatives of the Yorkshire Ripper’s last victim after the police failed to catch him before he killed her – the police were held not to owe a duty to all the relatives of all the potential victims of crime.
• However in Osman v Ferguson, there WAS proximity between the police and the victims of an attack as the police had specific information as to the potential identified victim.

The judge will not impose a duty on D if it is unfair or against the wider interests of society (i.e. due to ‘public policy’ concerns). This is often the case where public bodies such as the police and fire brigade are concerned, and where imposing liability would ‘open the floodgates’ to a large number of claims that could not be afforded by them and/or would overwhelm the court system.

In Mulcahy v MoD, the court decided it was NOT fair just and reasonable to impose a duty of care on the army towards its soldiers in battle conditions.

In Capital & Counties plc v Hampshire CC, the court found that it WAS fair, just and reasonable to impose a duty of care on the fire brigade as their positive act of turning off the sprinklers had made the fire much worse.

Where D has done a positive act which has caused C harm, the court is more likely to impose a duty of care on D, such as D turning off the sprinklers in Capital & Counties plc v Hampshire CC. Conversely where there is an omission (failure to act) the court may be less likely to impose a duty.

Robinson v Chief Constable of West Yorkshire as this was a positive act (unlike the omission in Hill to catch someone, for example) the police did in this situation owe a duty of care to a passerby injured in the course of them carrying out their duties.

Sumner v Colborne and Others [2018] No duty was owed by the Highways Agency from their omission. Yetkin was not the same as it related to dangers ON the highway, not next to the highway, so the court were not prepared to extent the Agency’s duty to this new situation given that it involved an omission to cut back vegetation, rather than a positive act.

The court will consider what is expected of D and whether he failed to do it, or did it to a poor standard.

The standard expected is that of the reasonable man in the same circumstances as D – Blyth v Birmingham Waterworks.

No allowance is made for inexperience. In Nettleship v Weston, a learner driver was judged by the standard of the reasonable driver. However, where children are concerned, some allowance is made:

• In Mullins v Richards, a 15-year-old girl who injured a schoolmate while ‘fencing’ with plastic rulers was judged against the standard of the reasonable child of similar age under similar circumstances.

Professionals will be judged against the standard of a reasonable competent professional in that field:

• In Bolam v Friern, the standard required of a doctor was that he had followed a course of action that was supported by a reasonable body of medical opinion.
• In Bolitho v City and Hackney Health Authority clarified that the practice of such a reasonable body of medical opinion must be responsible and capable of logical analysis.
• Wilsher v Essex AHA Junior doctors will be judged by the same standard as a qualified doctor

The court will consider 4 factors when deciding the standard of care expected in the circumstances:

• Likelihood of harm or injury
• Seriousness of consequence
• Cost of reasonable precautions
• Social utility

The more likely the harm, the greater the care that is expected of D.

In Bolton v Stone, C was hit by a cricket ball which had been hit 100 yards and cleared a 17-foot fence. The fence had only been cleared six times in 28 years. The court held D had taken reasonable precautions given the small risk, and found NO breach of duty.

In Hilder v Associated Portland Cement, Ds allowed children to play football on waste ground with a low wall behind the goal, and balls often went over the wall into the road. A motorcyclist was struck by a ball, causing a fatal crash. The court held Ds WERE in breach of duty as they did not take reasonable precautions in view of the large risk.

A higher standard of care is expected from D where a serious injury is foreseeable.

In Paris v Stepney BC, C was blind in one eye. Ds WERE found in breach of duty for not providing him with safety goggles at work when he was blinded in the remaining eye, due to the foreseeable seriousness of the consequence.

The lower the cost of reasonable precautions, the higher the standard of care expected. D is not expected to take unreasonable precautions.

In Latimer v AEC, Ds put down as much sawdust as they could after a flood in their factory. C slipped on an untreated area of the floor and was injured. The court held there was NO breach of duty as Ds had taken reasonable precautions and closing the whole factory would have been disproportionately expensive.

If what D is doing is valuable to society then he may not be held in breach of duty.

In Watt v Herts CC, a fireman was injured when crushed by lifting gear that could not be properly secured as it had been loaded on to the wrong type of vehicle. The court held that the reasonable fire brigade would prioritise responding to an emergency quickly rather than delaying until the correct vehicle was available, and so D was NOT in breach of duty.

This applies where:

• D has exclusive management of the situation; AND
• There is no other explanation for C’s damage other than the negligence of D;

the burden of proof then shifts to D to prove he was not negligent.

• In Scott v St Katherine’s Docks bags of sugar fell from D’s warehouse on to C’s head. D had exclusive management of the warehouse and the harm could not have happened if they had taken proper care, so res ipsa loquitor applied.
• In Mahon v Osborne, swabs were left inside V after an operation. As the operation was under D’s exclusive management and there was no other explanation for the damage, res ipsa loquitor applied.

In both cases, D would then have to prove on the balance of probabilities that they were not negligent.

Both factual and legal causation (also known as ‘remoteness of damage’) must be established.

Factual causation is satisfied if the damage suffered by C would not have occurred “but for” D’s breach of duty. In Barnett v Chelsea Hospital, as the patient would have died anyway, despite the hospital’s breach of duty, it could not be said that he would not have suffered the damage “but for” the hospital’s breach. Therefore factual causation was NOT present.

Novus actus interveniens - 

• An intervening act of the claimant – where C is responsible for their own damage, as in McKew v Holland
• An intervening act of nature, which is unforeseeable and independent of D’s own negligence, as in Carslogie Steamship Co v Royal Norwegian Government.
• An intervening act of a third party, which was of such magnitude that it breaks the chain of causation, as in Knightly v Johns.

D will only be liable for damage that is reasonably foreseeable. If the damage is not reasonably foreseeable, it is referred to as being ‘too remote’ (The Wagon Mound No. 1). However, there are 3 situations in which legal causation can be satisfied even if it is not entirely reasonably foreseeable:

• Type of damage caused: if the general type of damage caused is reasonably foreseeable then it does not matter if the precise type of damage was not. (Bradford v Robinson Rentals)
• Sequence of events: if the type of damage that results from C’s breach of duty is reasonably foreseeable, it does not matter if the exact sequence of events leading to the damage is not.(Hughes v Lord Advocate)
• The ‘eggshell skull’ rule: as long as some damage is foreseeable, D will be liable for its full extent, even if this could not be foreseen. This also applied to property damage. (Smith v Leech Brain) 

A person will only be successful in a claim for psychiatric injury (also known as nervous shock) if:

• Their injury is a recognised psychiatric injury; and
• Causation is present; and
• The claimant is a primary or secondary victim.

C must have suffered a recognised psychiatric injury.

Frost v Chief Constable of South Yorkshire Police (1999): the presence of a psychiatric injury is a “matter for expert psychiatric evidence”, so C will need a report from an expert witness such as a psychiatrist establishing this.

Reilly v Merseyside Regional Health Authority (1994): the claimants, visiting their new-born grandson in hospital, became trapped in a lift for an hour and twenty minutes and became claustrophobic and fearful, suffering nightmares and difficulty in sleeping for several days afterwards.

In the Court of Appeal, Lord Justice Mann ruled that there must be more than normal human emotion for there to be a recognised psychiatric injury, and medical evidence is required. The claimants’ claim failed.

There must be a causal link between the defendant’s breach of duty and the damage - in this case, the psychiatric injury.

In Calascione v Dixon (1994), the defendant was responsible for the death of a young man in a motorbike accident. The defendant’s mother developed post-traumatic stress disorder.

However, the defendant was not responsible for this as the PTSD resulted from the stress of the inquest and private prosecution rather than the accident itself.

Claimants for psychiatric injury are limited to primary victims and secondary victims:

Those at the scene of the incident who are within the zone of danger created by D's negligence, and suffer mental injury.

• Dulieu v White & Sons (1901): C was deemed to be a primary victim and her claim was successful.
• Bourhill v Young (1943): C'S claim failed as she was not related to the motorcyclist and injury to her was not foreseeable.

Primary victims are not limited to those claimants who are involved in accidents.

• Donachie v Chief Constable of Greater Manchester (2004): C was a primary victim, and his appeal was successful.

Psychiatric injury need not be foreseeable:

• Page v Smith (1996): C’s claim could succeed because physical injury was foreseeable. Psychiatric injury itself need not be foreseeable, however.

Those who are not in personal physical danger, but witnessed either the accident itself or its aftermath and suffered psychiatric damage either as a result of someone else’s injury, or as a result of fear that such injury might occur. The leading cases are McLoughlin v O’Brien (1983) and Alcock v Chief Constable of South Yorkshire Police (1992)

• McLoughlin v O’Brien: C’s husband and children were in a car crash. C was informed and driven by a friend to the hospital, C saw her surviving family members in their injured states . C suffered nervous shock and brought a claim in negligence. Court found that she was entitled to claim, and set out criteria 2-5 below.
• Alcock v Chief Constable of South Yorkshire Police: multiple claimants sought to recover for psychiatric injury in the form of post-traumatic stress disorder, having witnessed their relatives come to harm in the Hillsborough disaster. Court approved and refined the criteria set out in McLoughlin.

Secondary victims can only claim for psychiatric injury if the following criteria apply:

• It was reasonably foreseeable that a person of normal fortitude would have suffered psychiatric injury as a result of the claimant’s negligence
• There are ‘close ties of love and affection’ between C and a person injured or endangered by the event in question
• There is proximity in time and space between C and the event or its ‘immediate aftermath’
• C must perceive the accident or its immediate aftermath with his or her own senses
• The mental injury must be caused by shock.

It must be reasonably foreseeable that a person of normal fortitude would have suffered psychiatric injury as a result of the Claimant’s negligence - Page v Smith (1996). In deciding this, the courts take into account the “robustness of the population at large to psychiatric illness” as noted by the Law Commission in their report number 249 of 1998.

Simmons v British Steel (2004): C suffered a head injury at work, following which he suffered depression and his psoriasis worsened. He could claim as a personal of reasonable fortitude would also have suffered.

Conversely, this was held not to be the case in Bourhill v Young as C’s pregnancy was regarded as making her particularly vulnerable.

McLoughlin v O’Brien it was held that such ties can be presumed between parent and child and spouses, and this was extended in Alcock v Chief Constable of South Yorkshire Police to fiancés. Other categories of relationship, including brothers, will be required to prove the existence of such ties.

However, the House of Lords did not rule out the possibility of a bystander with no such ties being able to claim if an especially horrific catastrophe were to occur close by, such as a passer-by witnessing a petrol tanker crashing into a school in session and bursting into flames.

Despite this, in McFarlane v EE Caledonia Ltd (1994) the Court of Appeal indicated it was not prepared to recognise a duty of care to a mere bystander who lacks close ties of love and affection even where a horrific accident was concerned.

There must be proximity in time and space between the claimant and the incident or its immediate aftermath (McLoughlin v O’Brien). This did not include visits to the mortuary nine hours later in Alcock v Chief Constable of South Yorkshire Police to identify the bodies, however. It also excluded claimants in different parts of the stadium, those sitting in a coach outside the ground, and those following events on the radio.

• Galli-Atkinson v Seghal (2003): C’s 16-year-old daughter was killed by a car which mounted the pavement. C went to look for her, saw the police cordon, and was informed of her daughter’s death, following which she saw her daughter’s disfigured face and head in the mortuary. The “immediate aftermath” in this case included the visit to the mortuary, unlike in Alcock, as it was an uninterrupted sequence of events and the claimant did not visit the mortuary solely to identify her daughter, but also in order to accept that her child was dead.
• In Walters v North Glamorgan NHS Trust (2003) the court found that a 36-hour period that began with a child suffering an epileptic fit and ended with the child dying in his mother’s arms constituted a single event that was entirely within the “immediate aftermath” of the negligent treatment the child received.

However, in Taylor v Novo (2013) when the claimant watched her mother die three weeks after she was injured at work, Lord Dyson held that there was no proximity in time and space.

This includes hearing, sight and touch – McLoughlin v O’Brien.

However, watching on TV, being told by someone else, or listening on the radio are excluded -Alcock v Chief Constable of South Yorkshire Police.

As opposed to a gradual build up through a serious of events.

In Sion v Hampstead HA (1994) C’s son had been injured in a motorcycle accident. Over a fortnight, C saw his son fall in to a coma and die. He sued the health authority alleging negligence. His claim was struck out as he could not demonstrate that his psychiatric injury resulted from a shock.

However, in Walters v North Glamorgan NHS Trust (2003) the court took a more flexible approach in ruling that a 36-hour period was a “single horrifying event” that amounted to a shock.

Rescuers, following the decision in White v Chief Constable of South Yorkshire Police, are no longer placed in any special category. Those at the scene of the accident within the zone of danger created by the defendant’s negligence will therefore also be categorised as primary victims. Those not exposed to such danger will be treated as secondary victims.

Hale v London Underground (1992): a fireman who developed PTSD after the King’s Cross fire was a primary victim.

In contrast, in White v Chief Constable of South Yorkshire Police (1998) a claim for nervous shock brought by an officer present at the Hillsborough disaster failed as the officer was not within the zone of danger, and so was not a primary victim.

Traditional approach taken by the courts is that a claimant cannot recover for ‘pure’ economic loss, which means that they cannot recover for losses unless they flow from actual physical damage. (Spartan Steel v Martin & Co Ltd (1973)). The exception to the rule that a claimant cannot recover for pure economic loss is where D makes a negligent misstatement (an inaccurate statement made due to the defendant’s negligence). (Hedley Byrne v Heller and Partners Ltd (1964)) However, in Hedley Byrne the House of Lords accepted that a duty of care can be owed in respect of pure economic loss where there is a negligent misstatement if certain criteria are met: This can be a written or verbal statement and must be relied on by the claimant to their financial detriment. This will only be the case if there is a special relationship between the parties. There are five key elements required to establish a special relationship.

• The defendant must possess a special skill or expertise
• D must voluntarily assume responsibility for his statements
• D knows or ought to know the identity of the person or class of persons who will rely on his statement.
• D will only be liable for his statement if when making it he knows or ought to know the purpose for which it will be used
• C must show both that he relied on the defendant’s statement, and that it was reasonable to do so.

• Smith v Eric S Bush (1990): the claimant bought a house, relying on a surveyor’s report. When the chimney breast collapsed, the claimant sued the surveyor for negligent misstatement. It was reasonably foreseeable that the defendant would rely on the surveyor’s report, given the surveyor’s expertise as a “professional man”.
• Lennon v MPC (2004): a personnel officer who had access to specialist knowledge was also held to fall within this category.

This can also be the case where C relies on D’s skill and judgement.

• Chaudhry v Prabhakar (1988): C had just passed her driving test. She asked D, who knew about cars, to find her a car to buy, stipulating that it should not have been involved in an accident. When the car that D advised her to buy turned out to be unroadworthy, having been involved in a major accident, C sued. There was a duty of care as C had relied on the D’s skill and judgment.
• Mutual Life v Evatt (1971): an insurance company representative gave free advice to the claimant, in a social situation, concerning a competitor’s products. There was only a duty of care in such situations if the defendant held himself out as being in the business of giving such advice.

This was not the case in Hedley Byrne, due to the disclaimer that the bankers put on their letter, but was the case in Lennon v MPC where a personnel officer assumed responsibility for giving an employee advice on his entitlement to benefits when moving jobs.

In other words, there must be a “known user”.

Caparo v Dickman: D prepared a set of annual accounts for a company. One of the shareholders, relying on the accounts, took over the company. The company was not worth nearly as much as the accounts suggested, and he sued the accountants for their negligent misstatement.

Held: D was not liable, as the accounts had not been prepared for the purpose of an individual shareholder to use for himself, but for the shareholders to use in the interests of the company as a whole. The claimant was not a “known user” because the accountants did not know he would be relying on the accounts in his capacity as an individual.

In other words, there must a “known purpose”. In Caparo, this criteria was not satisfied as the accounts were not drawn up for the purpose of assisting a takeover, but were prepared to allow the shareholders as a whole to control the company.

In contrast, in Law Society v Peat Marwick (2000) the defendant accountants missed the fact that money held by solicitors on behalf of clients had been stolen. The Law Society had to pay the firm’s clients back out of their compensation fund, and sued Ds to recover their losses.

Held: The Law Society were owed a duty of care as the accountants knew the Law Society would use the accounts to check for fraud because the regulations required it. Therefore the accountants knew or ought to have known the purpose for which their advice would be used.

It is likely to be reasonable to rely on advice given in a business meeting, but this is less likely to be the case if advice is given in a social setting.

In Smith v Eric S Bush it was reasonable for the purchaser of a house to rely on the surveyor’s report prepared for the building society which was granting a mortgage to the purchaser.

In contrast, in JEB Fasteners Ltd v Marks Bloom & Co (1983) Cs took over a company that was worth less than stated in the accounts prepared by the defendant. They could not claim because they had made the decision to buy the company based on their own view of the financial state of the business and had not relied on the accounts prepared by the defendant.

If all five elements are satisfied, a duty of care is owed by the defendant and the claimant’s claim for pure economic loss may succeed, although this will depend on causation and defences.

1) Contributory Negligence

2) Consent (Volenti Non Fit Injuria)

Where D can show that: C’s own behaviour was below the standard of the reasonable person; AND This behaviour contributed to C’s loss

…the defence of contributory negligence will be available under the Law Reform (Contributory Negligence) Act 1945. The court will consider issues relating to breach of duty and causation when deciding the above. The judge will decide that a certain percentage of the overall liability belongs to the claimant, and reduce the award of damages accordingly.

• Firstly, where C is partly to blame for the accident happening, contributory negligence may apply. In Brannon v Airtours, C was attending a party night organised by D. He climbed on a table in order to get out and collided with a low fan hanging from the ceiling. Although D had breached his duty in arranging the room so that C had to climb on the furniture, the court also held that C was partly to blame for standing on a table despite warnings not to. C’s damages were reduced by 50%.
• Secondly, where C has not caused the accident but their actions made their injuries or losses worse than they should have been. In Froom v Butcher, C did not wear a seatbelt in a car. The court held that in such situations damages should be reduced by between 15% and 25%.

This means “he who consents cannot be regarded as having been done an injury” - applies where C knows there is a risk of D acting negligently and freely consents to take that risk.

• In Morris v Murray, C and D spent several hours drinking, then decided to go for a trip in D’s light aircraft. The plane crashed, D was killed and C seriously injured. C’s action against D’s estate for the pilot’s undoubted negligence failed as C was fully aware of the risk of negligence on D’s part but went ahead anyway.

If consent is NOT freely given, the defence fails:

• In Smith v Baker, C was working on a railway line when he was injured by material falling from a crane that swung overhead. D argued that C consented to this risk as he had continued to work for several weeks while the crane was doing this. The court held that simply knowing of a risk did not amount to consent, particularly where C had little choice, as he needed the job.
• In Haynes v Harwood, a horse ran amok in a busy street due to D’s negligence. C tried to stop the horse and was injured. D argued he consented by choosing to get involved. The court held that consent was not freely given as C felt a moral obligation to try to help people in danger.

If consent is successfully established, it is a complete defence to liability and C will not receive damages.

Damages
This is the most common form of remedy. D pays money to C as compensation.

The aim is to put C back into their original position prior to D’s negligence (as far as this is possible), so the amount reflects the Claimant’s loss rather than the defendant’s fault.

There are two types of damages:

• Special Damages
• General Damages

Payment- Damages are either paid as a lump sum or, in the case of larger awards, as a structured settlement under the Damages Act 1996. This means the money is paid at regular intervals for a set period or for life.

Mitigation of Loss- C is under a duty to mitigate his losses – Motorways Ltd v Alwahabi. This means he must keep the losses to a reasonable level where possible.

These can be specifically calculated as they refer to expenses incurred by C between the incident and the judgment, e.g. loss of earnings up to trial, repair costs, etc.

Property damage can be calculated by reference to the replacement value (market value at time of destruction), the repair cost, or diminution in value.

These cannot be precisely quantified. For example, pain and suffering, or future loss of earnings.

Pecuniary losses - These are financial losses such as future medical expenses and future loss of earnings.The award for future loss of earnings is calculated by multiplying the number of years C for which C cannot work (the multiplier) by the annual cost of the medical expenses and/or loss of earnings up to the date of trial (the multiplicand). The calculation is therefore multiplier x multiplicand. Any benefits C receives as a result of his injuries (e.g. social security payments or criminal injuries compensation) will be deducted.

Non-pecuniary losses- These are losses that are not quantifiable in terms of money, and are awarded for: Pain and suffering – using the Judicial Studies Board Guidelines (JSB), and the tariff system set out in Kemp & Kemp (a textbook), Loss of amenity – this refers to changes in future lifestyle e.g. no longer being able to walk, Bereavement – under the Administration of Justice Act 1976 parents can claim for the loss of a child under 18, or a spouse for the loss of a partner

Under the OLA 1957 occupiers owe a duty of care to lawful visitors. As for negligence, duty, breach and causation must be established, and defences and remedies considered.

The occupier of premises has a duty to keep lawful visitors safe.

Under s1(2) OLA 1957 an occupier is a person who would be treated as such under common law.

Wheat v Lacon- If D has a sufficient degree of control over a property they will be occupiers. Ds WERE occupiers here because even though they employed a manager to live in their pub, they had reserved the right to enter to do repairs, and so had a sufficient degree of control.

Very little control is needed, and there can be more than one “occupier” if each has sufficient control.

s(1)(3)(a) OLA 1957 Any fixed or moveable structure, including any vessel, vehicle or aircraft.

Examples: land and buildings; a shed, bridge or scaffolding; a ladder.

Under s1(2) a lawful visitor is someone who would in common law have been treated as an invitee or licensee. This means a person with permission to enter. This can be express or implied.

It can be implied in one of 4 ways:

• Repeated visits
• The doctrine of allurement
• Entry in order to communicate
• Statutory Powers of Entry

If the occupier knows or should know that people are repeatedly visiting the premises but does nothing about it, there may well be implied permission to enter.

In Lowery v Walker, villagers habitually took a short cut across D’s field to get to the train station. D put a wild horse in the field without warning. It attacked C. The court held that the villagers had implied permission as D knew of the shortcut but did little to discourage its use. Therefore, C WAS a lawful visitor.

However, this is NOT the case if C exceeds their permission.

In Harvey v Plymouth CC, C did a runner from a taxi across open land at night, tripped over a low fence and fell down a five-foot drop, sustaining serious head injuries. Any implied permission did NOT extend to reckless and dangerous activities.

A child will not be a trespasser if he wanders on to land to investigate something that is both attractive and dangerous to children.

In Jolley v Sutton LBC, an abandoned boat on waste ground was an attraction to children and C, an injured child, WAS a lawful visitor.

There is an implied permission to walk up the front path of a house to the front door in order to communicate with the occupants.

In Robson v Hallett, this meant that police officers on the front step WERE lawful visitors.

This does not extend beyond the front door, even if open, and does not apply to any person forbidden entry by a notice on a gate.

This can include meter readers, firemen, or a police officer with a warrant.

These are lawful visitors even if the occupier objects.

Under s2(2) OLA 1957 an occupier owes a “common duty of care” to take such care as in all the circumstances is reasonable to make sure that the visitor will be reasonably safe in using the premises for the purposes for which he is permitted or invited by the occupier to be there.

This is a duty to keep the visitor, rather than the premises, safe.

The duty is to take reasonable care. Occupiers are not expected to guarantee the safety of lawful visitors. See the law on breach of duty

Children: under s2(3)(a) OLA 1957 an occupier must be prepared for children to be less careful than adults.

• In Moloney v Lambeth LBC, a four-year old child slipped through the banisters lining a staircase in a block of flats. D WAS in breach of duty as it was foreseeable that small children would be using the staircase. It was no defence that the gaps in the banister were too small for an adult to fall through.

However, an occupier is entitled to expect parents to take appropriate care of young children.

• In Phipps v Rochester Corporation, a 5-year-old boy who was a lawful visitor fell into a large trench dug by D on D’s land. The court held that reasonable parents would not allow their child to be put into a dangerous situation without proper supervision and protection, so D was NOT in breach of duty.

Specialist Visitors: Under s2(3)(b) OLA 1957 an occupier may expect that a specialist visitor will be aware of and will protect himself against risks within his own specialism.

• In Roles v Nathan, two chimney sweeps died from carbon monoxide poisoning when cleaning out D’s heating system. They had been properly warned of the danger. The court held that as the risk was one they should have been familiar with and known how to have dealt with, D was NOT in breach of duty.

Just as for the law on breach of duty in negligence, to avoid liability here an occupier must show that he acted as the reasonable man would have done in the same circumstances to keep the visitor safe. See the law on breach of duty.

In Tedstone v Bourne Leisure Ltd, C slipped on a pool of water near a Jacuzzi. The evidence was that no reasonable system of checking for spillages could have detected the problem in time to prevent the accident, so D was NOT in breach of duty.

Under s2(4) OLA 1957, D may be able to discharge his duty by providing reasonable warnings, whether implied (e.g. a fence or locked door) or express (notices). Notices should clearly explain the danger and be visible.

In Woollins v British Celanese, D WAS in breach of duty as the notice he had put up warning of a dangerous roof was not visible.

It must be established that the defendant’s breach of was the factual and legal cause of the damage C suffers (refer to past causation card :) )

1) s2(4)(b) Independent Contractors

2) s2(3) Contributory Negligence

3) s2(5) Consent

4) s2(1) Excluding Liability

The occupier is not liable if the visitor is injured by something dangerous that was created by faulty workmanship on the part of an outside contractor, provided that:

• It was reasonable for the occupier to have brought in an outside contractor; AND
• The occupier took reasonable steps to ensure that the contractor was competent; AND
• The occupier took reasonable steps to check that the work had been properly done.

In Haseldine v Daw, C was injured while visiting D’s premises when the lift he was in fell to the ground. D was NOT liable because a reasonable person would ask a reputable contractor to maintain the lift and would not be in a position to check the work.

In Bottomley v Todmorden Cricket Club, D hired a stunt team to carry out a firework display. They used ordinary gunpowder, petrol and propane gas rather than traditional fireworks, and used C, who was an unpaid amateur, to carry out the display. C was badly burnt when the display went wrong. Ds had no insurance. The court held that D WAS liable as it had failed to exercise reasonable care to choose safe and competent contractors.

In Woodward v Mayor of Hastings, an outside contractor swept snow from the steps of a school, but failed to deal with frozen snow underneath so the steps remained slippery. C, a pupil, fell and was badly injured. D WAS liable as a reasonable person ought to be able to check whether the steps are safe.

This states that when considering a claim under the OLA 1957, the court should consider both the care and lack of care which would ordinarily be looked for in a visitor.

s2(5) states that the defence of consent is available where the visitor consents to the risk of negligence on behalf of the occupier. The same rules apply as in negligence.

However, a visitor will not normally consent to such a risk.

In Geary v JD Weatherspoon plc, C, a customer in Ds bar, attempted to slide down the banisters of the large open staircase, fell onto the marble floor four metres below and was very seriously injured. Her claim failed as she was aware of the obvious risk in sliding down the banisters, and chose to take it, so D did NOT have a duty to protect her.

Under s2(1) OLA 1957 an occupier may restrict or exclude altogether the duty of care owed to his visitors.
This can be done by putting up a sign saying he does not accept responsibility for the safety of visitors, but it should be clearly worded and clearly visible.

In Ashdown v Samuel Williams & Sons Ltd C habitually took a shortcut across D’s railway goods yard to get to her work. She was hit by some railway trucks that were being shunted negligently. Her claim FAILED, as signs clearly stated that people took the shortcut at their own risk.

However, the Unfair Contract Terms Act 1977 has modified the law on excluding liability.
Under s2(1) UCTA 1977, liability cannot be excluded for death or personal injury of a visitor caused by D’s negligence; AND
Under s2(2) liability for other types of loss caused by negligence can only be excluded if it is reasonable for the occupier to do so.

However, under s1(3)(b) the occupier of business premises is able to exclude liability for visitors admitted for a recreational or educational purpose which is outside the occupier’s business.

A successful claimant can claim damages for death and personal injury.

Under s1(3) OLA 1957 he can also claim damages for damage to property (including damage to the property of others) and any consequential economic loss resulting from damage to property, such as the costs of recovery.

A trespasser is any person

• Who enters without an invitation; AND
• Whose presence is either
• Unknown to the occupier; OR
• Known to the occupier, but the occupier has objected to it in some practical way (e.g. a sign, locked gate, or verbal warning).

Trespass is a strict liability tort; D trespasses even if it is unintentional or inadvertent. Motive is irrelevant.
D may also become a trespasser if he exceeds the limits or restrictions on his permission to enter the land

1) Limit as to area
If the limits of the permission are unclear, the court will give C the benefit of the doubt:
Pearson v Coleman Bros (1948) C, a young girl, was mauled by a tiger having wandered into the zoo area when looking for the toilet in a visit to the circus. As there was a lack of signs and barriers she WAS able to claim as a lawful visitor as it was not clear that she should not have been in the area.

2) Limit as to time
A visitor who stays longer than they should becomes a trespasser e.g. after closing time at a museum.

3) Limit as to purpose
A visitor invited to premises for a particular purpose who then decides to undertake a different activity risks becoming a trespasser.
Scrutton LJ in The Calgarth (1927): “When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way which it is used”.
In Tomlinson v Congleton BC (2003), C visited a country park owned by D and chose to dive into a lake despite signs forbidding swimming. At that point C became a trespasser as he was undertaking an activity that was not permitted.

A trespasser is not a lawful visitor and is therefore not protected by OLA 1957.

Originally, the law offered such a person little, if any, protection, but this was a harsh approach and could be very unfair if for instance a wandering child was involved.

The House of Lords modified the law in British Railways Board v Herrington (1972). C, a child aged six, was badly injured when he trespassed onto D’s electrified railway line. The line ran next to a field open to the public and where the defendant knew that it was common for children to play. The fence between the field and the line had been trodden down for some time, but the defendant had done nothing about it.
The HoL held that the defendant WAS liable because common sense and common humanity suggested that if a company were to build something as dangerous as an electric railway line in the vicinity of an area in which children played they should take measures to protect the children, particularly where the danger, as here, was not obvious to a small child.

However, this duty of common humanity was uncertain in its scope, so Parliament clarified the position with the enactment of the Occupiers’ Liability Act 1984.

A potential claimant under OLA 1984 must overcome two preliminary hurdles before he can show that the occupier of premises owes him a duty under the Act at all.

• The claim must arise out of the dangerous state of the premises rather than the dangerous activities of the claimant himself. If the premises are safe, but the accident was caused by the claimant acting unwisely, then there is no duty under OLA 1984. (Keown v Coventry NHS Trust (2006) OR;Tomlinson v Congleton Borough Council (2003))
• s1(3) of OLA 1984: an occupier owes a duty in respect of a danger on his premises if: 1) he is aware of the danger or has reasonable grounds to believe that it exists, 2) he knows or has reasonable grounds to believe that someone else is in the vicinity of the danger or may come into the vicinity of the danger, 3) The danger is one which, in all the circumstances, he may reasonably be expected to offer some protection against. If the claimant cannot show that these three conditions all exist, then the defendant owes no duty of care and the claim fails (Donoghue v Folkestone Properties (2003)) 

Case law suggests that the courts will often decide this issue in favour of D, as in many circumstances there is a limit as to what the reasonable person would do to protect someone who should not be there. Factors which the judge might take into account include (Platt v Liverpool City Council (1997)): 

• Likelihood of trespass,
• Seriousness of the injury risked,
• The cost and practicality of precautions,
• The likely age of any trespasser,
• Visibility and attractiveness of any danger,
• Relative obviousness of the danger,
• Common sense,
• The fact that an occupier should not have to guard against an irresponsible minority.

The occupier may be able to discharge his duty by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk (s1(5) of OLA 1984).
This might include clear and visible warning signs, fences and secured entrances (Tomlinson v Congleton Borough Council (2003)) 

• Contributory negligence

Although OLA 1984 makes no specific mention of a defence of contributory negligence, it is clear that judges will accept the defence.

• Consent

s1(6) of OLA 1984 states that the defendant owes no duty in respect of risks willingly accepted by the trespasser.

Ratcliff v McConnell (1999) C, an adult student at the defendant college, dived one night into an outdoor swimming pool owned by the defendant, but misjudged his actions and suffered a broken neck. The claimant was a trespasser as he had ignored signs prohibiting use of the pool and had clambered over a fence to get to it. The court decided that the defendant did NOT owe a duty under OLA 1984, as the claimant was aware of the risk of diving into a pool in the dark and had accepted that risk.

A successful claimant can claim damages for death and personal injury. By s1(8) of OLA 1984, he cannot claim damages for any loss to his property.

A) Private nuisance: an activity which interferes with a person’s ability to use his own land in a reasonable way

B) The rule in Rylands v Fletcher (1868): a specific type of nuisance which covers an escape of a dangerous substance.

A private nuisance is an unlawful interference for a substantial length of time with a person’s right to enjoy or use his land in a reasonable way.
A claimant in an action for private nuisance must show that:

• he has the right to bring an action
• that the person they are suing is capable of being a defendant
• there is an interference in the form of either physical damage to the land or a loss of amenity (convenience) in using the land
• the interference is sufficiently serious in all the circumstances to be unlawful.

If the claimant is successful in all of these, the defendant may show one of the defences available in any action for private nuisance. If that fails, the claimant will be entitled to a remedy from the court, usually damages or an injunction or both.

A claimant must be someone with a legal interest in the affected land, such as an owner or a tenant, a rule confirmed in:

• Hunter v Canary Wharf (1997) A number of people were complaining about dust and interference with television reception caused by the building works relating to the Canary Wharf development. Some of them were UNABLE to pursue their claims because they lacked any legal interest in the affected land e.g. the wife who did not jointly own the family home with her husband.

The obvious defendant is the creator of the nuisance.

In addition, the occupier of the land, if they are a different person from thecreator of the nuisance, can also be a defendant if they adopt or continue the activities of the creator:

Sedleigh-Denfield v O’Callaghan (1940) A trespasser installed a pipe in a ditch on the defendant’s land. Three years later, the pipe became blocked and caused flood damage to the claimant’s land. The defendant WAS liable, even though they had not installed the pipe, as they knew of its existence.

Finally, it is possible for a landlord to be liable for the activities of a tenant if they authorised or approved those activities:

Tetley v Chitty (1986) A local council WAS liable for the noise and disturbance caused by a go-kart club after the council had leased land to the club for that express purpose.

1) Physical damage

2) Loss of amenity/enjoyment

3) Unlawfulness

Private nuisance covers physical damage to land, to plants and crops growing in the land and probably damage to goods stored on the land. It does not allow the recovery of damages for personal injury.

Examples of physical damage:

• gases from a factory killing or damaging flowers
• oil smuts from a refinery covering washing on a line or damaging paintwork
• an overflowing drain causing damage
• damage to foundations caused by vibrations from a generating plant.

Nuisance also covers cases where there is no physical damage, but where the claimant’s ability to use or enjoy his land is restricted by the activities of the defendant. This is known as loss of amenity. Examples include excessive noise preventing the claimant from getting a good night’s sleep, or unpleasant smells and fumes preventing the claimant from opening his windows.

The function of private nuisance is to balance the conflicting interests of neighbours. In general, people do have the right to use their own land as they wish, and it might be that their neighbours have to put up with the occasional late night party or with the noise from the building of a conservatory.

However, there is a limit beyond which activities become unlawful. The test that the courts use in deciding when this limit has been reached is whether the nuisance interferes with ordinary existence, in other words whether the impact on the claimant is so unreasonable that they should not be expected to put up with it.

Of course, certain activities will be lawful in some sets or circumstances but not in others, so it could be said that nuisance has a variable standard e.g. playing very loud music through the night in an isolated farmhouse is not a problem, but it would be in an urban block of flats.

The following are factors which the court might take into account when balancing the conflicting interests of neighbours:

• Locality- Generally, a wider range of activities is acceptable in, for instance, industrial zones than in residential areas: (Halsey v Esso (1961))
• Duration-The more often something happens, the more likely it is to be nuisance. However, in the right circumstances, even a single event can amount to nuisance: (Crown River Cruises v Kimbolton Fireworks)
• Degree of interference- The more serious or worse an interference, the more likely it is to be a nuisance. This can depend on the time of day. Building works acceptable at three o’clock in the afternoon might not be acceptable at three o’clock in the morning. If physical damage is involved, then relatively small nuisances are actionable. If a loss of enjoyment is involved, the threshold is higher: the court must decide if the nuisance materially interferes with ordinary existence: (Murdoch v Glacier Metal (1998))
• Sensitivity- If the claimant is using his property for an extra-sensitive use they are not entitled to sue in circumstances where a reasonable use would not need protection. (Bridlington Relay v Yorkshire Electricity (1965)) If the defendant’s activities would have interfered with an ordinary use of the claimant’s land, then the claimant can claim for the full extent of his loss even though the loss was partly caused by the extra-sensitive nature of his use. (McKinnon v Walker (1951))
• Social utility of the defendant’s conduct- The usefulness to society of the defendant’s conduct has a bearing on whether it is reasonable for the claimant to have to put up with it e.g. noise and dust from a building site over a limited period of time is allowable because it is useful to have new buildings. Often, social utility does not prevent what is a clear nuisance from being a nuisance, but it does have a bearing on remedies: (Dennis v Ministry of Defence (2003))
• Malice on the part of the defendant- If a defendant deliberately does something purely to annoy the claimant, the defendant’s malice can make unlawful something which might not otherwise be a nuisance. (Hollywood Silver Fox Farm v Emmett (1936))

1) Statutory authority

This means that the nuisance is created by a public body acting under a legislative duty or power. As long as the activity is carried out without negligence and with reasonable regard to, and care of, the interests of others, a person affected will not be able to sue in nuisance as the nuisance has effectively been authorised by Parliament.(Allen v Gulf Oil (1981))
It is also a defence for a public body to show that the Parliament has created an alternative remedy- (Marcic v Thames Water (2003).

2) Prescription

This means that the defendant’s activities become lawful because they have been carrying them out for the last twenty years.

By contrast, there are a number of possible arguments which the courts will not accept as a defence to a claim for private nuisance e.g. the Defendant cannot rely on the fact that they were creating the nuisance before the claimant moved to the area and that the claimant knew of the activity before they arrived:

Sturges v Bridgeman (1879) A doctor was able to bring an action for private nuisance after he built a consulting room in his garden on land adjacent to a confectioner. The noise from the confectioner interfered with the doctor’s ability to see his patients, and it was NO defence that the confectioner had been established first.

It is also NOT a defence to say that the claimant could have helped himself, for instance by shutting his windows; that the defendant was using reasonable care and skill; or that the nuisance was partly caused by someone else.

1) Injunction

2) Damages

3) Abatement

This is an order prohibiting or strictly controlling an activity. Frequently, what a claimant really wants is for the offending activity to stop. However, the courts will not grant an injunction for trivial matters or where it is in the public interest for the activity to continue. An injunction might impose a complete ban, or it might limit the activity.

Miller v Jackson (1977) The claimant sought an injunction to stop cricket being played on a pitch next to his house as a ball would occasionally land on his property and cause damage. The cricket club was a focus of village life and the court decided that the interest of the community outweighed the relatively minor inconvenience to the claimant.

Kennaway v Thompson (1981) D was a powerboat club that was organising an ever increasing number of races and other events with ever noisier boats. D admitted that they were causing a nuisance to C, who lived nearby, but they argued that, because their activities were of great interest to the public, damages only should be awarded. The court disagreed stating that, unlike Miller v Jackson (1977), the nuisance WAS substantial and that it was not part of English law that a D could effectively turn an unlawful activity into a lawful activity by paying over a large sum of money. The court imposed a partial injunction limiting the number of races.

In the case of physical damage, damages are awarded for consequential damage to land, plants, buildings and goods. In the case of loss of use / enjoyment, damages are equal to the loss in value to the land: Hunter v Canary Wharf (1997); Dennis v Ministry of Defence (2003)

When claiming damages, any loss must be reasonably foreseeable as the rules on remoteness are identical to those in negligence: The Wagon Mound (No. 2) (1966) as confirmed by Cambridge Water v Eastern Counties Leather (1994).

Abatement is a self-help remedy and it means the right of a claimant to take reasonable steps to deal with any nuisance themselves. The claimant must be careful not to overstep the limits of what is reasonable in the circumstances e.g. if they need to enter the defendant’s land they should first give proper notice, or. if they need to chop off the branches of any overhanging tree, they should only do so from the point at which they overhang the boundary, and should return any branches.

The courts are wary of the remedy because of the possibility of confrontation and a resulting breach of the peace.

A defendant is liable if, on his land, they accumulate a dangerous thing in the course of a non-natural use of that land, and the thing escapes and causes reasonably foreseeable damage.

Rylands v Fletcher (1868) D owned a water mill. He contracted builders to construct a reservoir. The builders sealed the bottom of the reservoir carelessly so that when it was filled, water leaked into the mine shafts below and escaped through connecting tunnels into C’s mines, causing considerable damage.

D WAS held liable for the actions of the builders even though there was no fault on his part.
The rule in Rylands v Fletcher is one of strict liability.#

Transco plc v Stockport MBC (2003) confirms that the rule is a type of nuisance, which means that some of the rules of nuisance apply here.

To establish liability in Rylands v Fletcher, six elements must be shown by C:

• Claimant’s legal position
• Accumulation
• A dangerous thing
• Non-natural use of land
• Escape
• Reasonably foreseeable damage.

Following Transco, C requires a legal interest in the land affected by the escape, as the rule in Rylands is a type of nuisance Hunter v Canary Wharf.

D must voluntarily bring on to his land an accumulation of the thing that escaped. This covers artificial accumulation of material (whether or not the material itself is artificial) but NOT a natural accumulation such as a lake (unless caused by a non-natural process such as rock blasting).

Giles v Walker D ploughed up his land, which then became self-sown with thistles, which spread to neighbouring land. D was NOT liable as this was a natural accumulation.

The accumulation must be on land D controls (as owner or tenant, for example). ‘Land’ can include the public highway, leaking pipes belonging to D but running across C’s land, or a boat moored on a river that was used to store fireworks.

Stannard v Gore A fire is not an accumulation unless started deliberately or negligently by the occupier.

The substance (thing) accumulated must be dangerous (likely to do mischief if it escapes). This
includes hazardous materials such as explosives, but also non-hazardous materials if stored in bulk e.g. the water in Rylands v Fletcher.

In Hale v Jennings Bros (1938) the dangerous thing was a chair from a “chair-o-plane” fairground attraction that had flown away from its moorings mid-ride.

In Transco plc v Stockport MBC (2003), it was held that the accumulated substance should pose an ‘exceptional risk’. C’s claim failed as water flowing through a pipe did not pose such a risk.

This means ‘not commonplace. It does not mean artificial or man-made.

Rickards v Lothian (1913) A tap overflowed in a part of the building leased by D, and the water escaped to a lower level damaging C’s goods. D was NOT liable as a tap supplied by a pipe was an ordinary and reasonable use of a building.

In Transco plc v Stockport MBC (2003), non-natural use was rephrased as a use that was ‘extraordinary or unusual’. Supplying water to a block of flats was not such a use.

Cambridge Water v Eastern Counties Leather (1994) Bulk storage of chemicals to be used in an industrial process (a tannery) WAS a non-natural use.

Harooni v Rustins (2011) Possessing a car with petrol in the tank or a can of paint was NOT an extraordinary and unusual use of land, but storing over 200,000 litres of flammable materials WAS.

C must show that the substance escaped. This means it has moved from land D controls to land they do not.

Read v Lyons & Co (1946) C was an inspector visiting D’s munitions factory who was injured by an exploding shell. As she was on D’s premises at the time, there had been NO escape and her claim in Rylands v Fletcher failed.

Only damage that is reasonably foreseeable can be recovered.

Cambridge Water v Eastern Counties Leather This case introduced the requirement that the damage must be reasonably foreseeable.

C’s claim failed as it was NOT reasonably foreseeable that chemicals from D’s tannery could seep through a concrete floor and contaminate C’s borehole a mile and a half away.

As R v F is a sub-species of nuisance as confirmed in Transco, only damage to land and goods stored on the land can be recovered, despite older cases such as Read v Lyons which appear to presume that personal injury is recoverable.

1) Act of a stranger

2) Act of God

3) Statutory Authority

4) Further Defences

D is not liable if the escape is caused by the deliberate and unforeseen act of a stranger (someone over whom D has no control).

Perry v Kendricks Transport D was NOT liable for the consequences of an explosion caused by a third party putting a lit match in the petrol tank of one of D’s coaches.

This is a natural event so enormous that it cannot be either foreseen or guarded against. D is not liable for an escape caused by an Act of God as there is nothing they could have done to stop it.

Nichols v Marsland D was NOT liable when water escaped from an artificial lake after the worst rainstorm in living memory caused the embankment of the lake to collapse under the extra pressure.

D is not liable if the escape occurs during activities authorised by an Act of Parliament, provided D is not negligent.

Green v Chelsea Waterworks Company (1894) D was NOT liable when one of its pipes burst and flooded C’s land, as D had a statutory duty to maintain a supply of water and was not negligent.

D is not liable if:

• the escape relates to something being maintained for common benefit of C and D e.g. water pipes to different parts of a large building; OR
• the escape is due to C’s fault – Dunn v Birmingham Canal Co (1872)

C’s damages will be reduced if:

• the escape was partly their fault or the damage is made worse due to the highly sensitive nature of his own property.

Vicarious liability is where D is responsible for the tort of another.

To establish this, 3 requirements must be met:

1) C must suffer loss or injury due to the tort; AND

2) There must be a relationship between the person who commits the tort (the tortfeasor- T) and D; AND

3) There must be a connection between the tortious act/omission and the relationship.

If these are met, D is liable for the tort whether or not D is at fault.

This is usually an employer/employee relationship.

The Control Test
The usual test is the control test, as per Bramwell B in Yewens v Noakes [1880]: - “a servant is a person subject to the command of his master as to the manner in which he shall do his work”.
So if T can be told both what to do and how to do it, he is an employee.(Hawley v Luminar Leisure (2006))

The Multiple Test
If the situation is more complex, e.g. where the employee knows more about how is work is done than the employer, then the multiple test may be used. This means the judge will look at multiple factors to decide whether or not T is an employee.(Ready Mixed Concrete v Minister of Pensions and NI (1968))
The most important 3 factors the court will consider when deciding the multiple test are:
1) Control – is the employer in charge of the worker and the work being done?
2) Personal performance – if the work is the sort that cannot be delegated to another, T is more likely to be an employee.(Express & Echo Publications v Tanton (1999))
3) Mutuality of Obligation – if both sides have obligations to
work in accordance with his contract, and the employer must pay him), he is more likely to be an employee.(Carmichael v National Power) These 3 factors are important but NOT conclusive. The court may also consider whether the worker:

• is paid a regular salary, or on commission;
• pays tax as an employee or as a self-employed person;
• can delegate his work to another without permission;
• uses his own premises, equipment and helpers, or if these are supplied;
• would be personally affected by his own management decisions

This is satisfied if the tort was committed in the course of T’s employment. If an act is an authorised one, it is committed in the course of T’s employment even if it is wrongful or done in a wrongful and unauthorised way. (Salmond and Heuston, 1996)

In Century Insurance v Northern Ireland Road Transport Board (1942) T was a tanker driver delivering petrol. He lit a cigarette and threw away a match. The resulting explosion damaged C’s property.

The court held that this was an improper way of carrying out an authorised act, and D WAS vicariously liable

Rose v Plenty (1971): T, a milkman, employed C, who was 13, to help him with his rounds. This was prohibited by notices at the defendant company’s depot. Due to T’s negligence, C was injured. The court held that this WAs an authorised act that was done in an unauthorised way, and found D vicariously liable, partly because C was actively contributing to D’s business.

This will NOT be the case without an economic benefit to the employer:

Twine v Beans Express where C, a hitchhiker, was injured by T’s negligence having been picked up by T in direct contravention of T’s instructions.

As D gained no benefit, this was deemed NOT to be an authorised act and D was NOT vicariously liable.

If the act itself is not authorised, D will NOT be vicariously liable.
Beard v LGO (1900), Hilton v Thomas Burton (1961),  Lister v Hesley Hall (2002)

Here, the House of Lords introduced a new test, called the Lister test, which can be used to establish whether T was acting in the course of employment:

Were the acts of the employee so closely connected with his employment that it was fair and just to hold the employer liable?

In Various Claimants v CCWS [2012], the court found in cases of deliberate wrongdoing by employees that such a close connection would exist if:

• D is in a position to use the employee to further its business interests, and
• D has done so in a way that created or significantly enhanced the risk that victims would suffer the wrongdoing.

This is known as ‘enterprise risk’.

In WM Morrisons plc v Various Claimants [2020] T leaked the payroll data of 123,000 Morrisons employees to the press (the tort of breach of confidence). A ‘close connection’ did not exist as T was not acting on D’s business but for purely personal reasons (to ‘frame’ someone else for the data leak).

The fact that his authorised activities gave him the opportunity to commit a tort was not enough for a ‘close connection’.

Note: for criminal torts, apply the test in Lister; for other torts, first apply the Salmond test and if this is not satisfied, apply Lister.

This is known as ‘enterprise risk’.

In WM Morrisons plc v Various Claimants [2020] T leaked the payroll data of 123,000 Morrisons employees to the press (the tort of breach of confidence). A ‘close connection’ did not exist as T was not acting on D’s business but for purely personal reasons (to ‘frame’ someone else for the data leak).

The fact that his authorised activities gave him the opportunity to commit a tort was not enough for a ‘close connection’.

Note: for criminal torts, apply the test in Lister; for other torts, first apply the Salmond test and if this is not satisfied, apply Lister.