Tort law case list | Law Study Club

Tort law cases and statutes

Liability in negligence

Occupiers' liability

Tort defences and remedies

Pure economic loss and psychiatric injury

Nuisance and Rylands v Fletcher

Vicarious liability

Negligence: Duty of care

Donoghue v Stevenson (1932)

Mrs Donoghue’s friend bought her a bottle of ginger beer in a café. After drinking some of the beer, Mrs Donoghue noticed there was a dead snail at the bottom of the bottle. This caused both physical and psychiatric suffering to Mrs Donoghue. Stevenson argued that no claim against him could be brought by Mrs Donoghue, because she had not bought the drink and there was therefore no contract between them.

Held: Stevenson had to compensate Donoghue because, despite not having a contract with her, he did owe her a duty of care. People owe a duty to “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation”.

Caparo v Dickman (1990)

Caparo Industries bought shares in another company (Fidelity plc). As part of their due diligence before buying the shares, Caparo read accounts that had been completed for Fidelity by Dickman (an accountant). The accounts had been prepared as part of Fidelity’s ordinary annual returns and had not been compiled for the purpose of the sale. Caparo later found out that Fidelity’s finances were in a much worse state than they thought before buying shares and brought an action against Dickman for negligent misstatement.

Held: Dickman did not owe a duty of care to Caparo. While the neighbour principle might be satisfied, the House of Lords held that duty of care should be more restricted. They applied a three-part test to establish whether a duty is owed:

Was the damage or harm reasonably foreseeable?
Was there a sufficiently proximate relationship between the claimant and the defendant?
Is it fair, just and reasonable to impose a duty?

Kent v Griffiths (2000)

The claimant was a pregnant woman suffering from an asthma attack. She called for an ambulance. For no good reason, and despite the control centre repeatedly reassuring her that an ambulance was on its way, the ambulance did not arrive within a reasonable time. The claimant suffered a respiratory arrest while waiting for the ambulance, causing the claimant to suffer a miscarriage and significant neurological and psychiatric harm.

Held: it was 'reasonably foreseeable' that the claimant would suffer further harm if the ambulance did not arrive promptly. Therefore, a duty of care was owed.

Bourhill v Young (1943)

The defendant was the estate of a deceased motorcyclist, whose negligence had caused an accident but who died as a result of it. The claimant was a pregnant woman who heard the sound of the accident while getting off a tram and then approached the accident and saw its aftermath, including blood on the road. The shock of seeing the aftermath of the accident caused the claimant to lose her baby.

Held: there was not a proximate enough relationship between the defendant and the claimant to establish a duty of care. There was no reason that the defendant could have foreseen that a bystander (who chose to approach the scene) would be harmed as a result of his negligence. In particular, the claimant was not proximate (close) enough to the accident in time or space.

McLoughlin v O’Brien (1982)

The defendant was a lorry driver whose negligence caused a road accident. The accident killed a child and seriously injured the child's father and siblings. The claimant was the wife of the man who was injured and the mother of the children. She was at home when the accident happened, but was told about it and rushed to the hospital. At the hospital, she was told of the death of one child and saw both her husband and other children before they had been treated. As a result, the claimant suffered serious psychiatric harm.

Held: despite not being proximate in space to the accident, the claimant's arrival at the hospital within two hours of the accident meant she was proximate enough in time for there to be a duty of care. It was also considered reasonably foreseeable that a victim's mother or spouse might be psychiatrically harmed by the defendant’s negligence.

Hill v Chief Constable of West Yorkshire (1989)

Hill was the mother of a 20-year-old woman who had been the last victim of the Peter Sutcliffe (the Yorkshire Ripper). Sutcliffe murdered thirteen women across Manchester and West Yorkshire. Hill sued the police force on the grounds that they already had enough information to be able to arrest Sutcliffe before he went on to murder her daughter. Hill claimed that, if the police hadn't been negligent in their investigation, her daughter would not have been killed. The question for the court (and for the House of Lords on appeal) was whether the police owed Hill a duty of care. In other words, do the police owe a duty of care to the general public in relation to their role in investigating crime.

Held: no duty of care was owed. While the House of Lords accepted that the murder of another woman was reasonably foreseeable, they held that it was not "fair, just and reasonable" to impose such a duty on the police. It was held that imposing such a duty would harm society, as it would lead to defensive policing and early arrests as police tried to avoid liability for failures to arrest people.

Robinson v Chief Constable of West Yorkshire (2018)

Mrs Robinson was an elderly lady who was knocked over in the street in Huddersfield by three men. Two of the men were police officers and the third was a drug dealer they were arresting. Robinson was injured by the fall. The officers accepted that they had foreseen the man might try to escape, but said they had not noticed Mrs Robinson, despite her being very close to the man they were attempting to arrest. The Court of Appeal held that no duty of care was owed. Using Hill as their precedent, they held that the police owe no duty of care to the general public in the course of their duties, as it is not 'fair, just and reasonable’ to impose such a duty. Robinson appealed to the Supreme Court.

Held: the Supreme Court overturned the Court of Appeal's ruling. It was held:

there is a distinction between police omissions in their role of investigating crime (as in Hill) and positive acts in their role of arresting suspects
The Hill ruling does not mean the police are completely immune from suit in tort law
The Caparo test does not need to be used to establish a duty of care in every negligence case. Where there is an established duty, or a duty can be found by analogy, the Caparo test does not need to be used. The Caparo test is only necessary in 'novel' cases.

Darnley v Croydon NHS Trust (2018)

The claimant arrived at A&E in Croydon with a head injury. He was misinformed about the waiting time by the receptionist and decided to return home instead of waiting for treatment. At home, his condition deteriorated and he suffered lasting brain damage as a result. Using the Caparo test, the Court of Appeal rejected the claim, on the basis that it was not 'fair, just and reasonable' to impose a duty of care on a hospital receptionist. The claimant appealed to the Supreme Court.

Held: the Supreme Court held that a duty of care was owed. They held that, "The present case falls squarely within an established duty of care." Following Robinson, the Supreme Court held that there was no need to apply the Caparo test, as it is well established that hospital staff owe a duty to patients.

Teaching and revision resources on liability in negligence

Negligence: Breach of duty

Bolam v Friern Barnet (1957)

The claimant was given electric shock treatment (ECT) as part of treatment for a psychiatric condition. He was not told of the risk of broken bones during the treatment, but suffered a broken pelvis.

Held: the hospital did not breach its duty. The court developed a two-part test in relation to professionals:

Did D’s conduct fall below the standard of an ‘ordinary, competent member of that profession’?
Is there a substantial body of opinion within the profession that would support the defendant’s course of action?

Bolitho v City and Hackney Health Authority (1998)

A child suffering from breathing problems went to hospital. The doctor who was called to attend did not receive the message because her pager had low battery. The child died. The hospital argued that the Bolam test meant they were not liable.

Held: there was no liability. However, the court clarified that the Bolam test also includes a requirement that the professional ‘acts reasonably and gets their facts right’.

Nettleship v Weston (1971)

Mr Nettleship was teaching Mrs Weston to drive. On her third lesson, Mrs Weston made a steering error, taking the car into a lamppost. The lamppost fell onto the car and injured Mr Nettleship.

Held: defendants who are learners must be held to the standard of an experienced, competent person doing the same thing. Mrs Weston had breached her duty to Mr Nettleship.

Mullin v Richards (1998)

Mullin and Richards were both aged 15. They were play-fighting with rulers in school, when one of the rulers shattered. Small pieces of plastic went into Mullin’s eye, causing her to lose sight in it.

Held: a child has to reach the standard of care expected of a reasonable child of the same age. Richards had met the standard expected of a 15-year-old, so was not liable.

Paris v Stepney Borough Council (1951)

Paris worked for the council. His employers knew he was blind in one eye as a result of a war injury, but employed him to work in a garage where there were risks of eye damage. He was not provided with safety goggles. A piece of metal hit his other eye, leaving him completely blind.

Held: the council was liable. The expected standard of care is raised when the defendant knows that the claimant has special characteristics that increase the risk.

Bolton v Stone (1951)

A cricket club had a 17-foot fence surrounding the field. In thirty years, a ball had only been hit out of the ground six times. The claimant was then hit by a cricket ball while walking along the street outside the ground.

Held: the club had not breached its duty. The risk was so unlikely that the precautions they had taken (the fence) were enough to meet the objective standard of care.

Haley v London Electricity Board (1965)

The electricity board dug a hole in the pavement in order to lay some cables. It put warning signs around the hole, but did not put up any barriers. The claimant was a blind man who fell into the trench and was injured.

Held: the electricity board was liable. Because it was foreseeable that blind people might walk along the street, the potential risk was high so more care should have been taken.

Latimer v AEC Ltd (1953)

After a factory floor was flooded with water and oil, the floor was covered with sawdust to minimise the risk of slipping. A worker then slipped on the floor and was injured.

Held: the company had not breached its duty. The only way to ensure the factory was completely safe was to close it down, which the court held was an unreasonable precaution to take.

Roe v Minister of Health (1954)

Roe was a patient who was given an anaesthetic from a glass tube immersed in a phenol solution. The phenol solution was poisonous, but was used to keep the glass tubes free from infection. Unknown to the staff, the glass tubes had microscopic cracks allowing the phenol to contaminate the anaesthetic. Roe was left permanently paralysed as a result.

Held: the hospital had not breached its duty of care, as staff did not know that there was a risk of contamination.

Watt v Hertfordshire CC (1954)

The fire brigade were called to release a woman who had been trapped underneath a car. The normal vehicle for transporting the car jack was not available, so the jack was placed on the back of a flat-bed truck. The claimant was a fireman who was injured when the jack fell on top of him on the way to the incident.

Held: the fire brigade had not breached its duty. The public benefit of responding quickly to the emergency situation outweighed the need for more precautions to secure the jack.

Fulham Football Club v Jones (2022)

Jones was tackled during an under-18 football match between Swansea and Fulham. The tackle was not called as a foul by the referee, but Jones claimed it left him with permanent ankle damage that ended his professional football career.

Held: the club was not liable. On appeal, the court held that a tackle in football must be viewed in its sporting context. The wider social benefit of continuing to allow contact sports to be played means that clubs cannot be expected to take precautions (beyond the rules of the game) to make the sport entirely safe.

Teaching and revision resources on liability in negligence

Negligence: Causation

Barnett v Chelsea and Kensington Hospital (1969)

The claimant was the widow of a man who had died of arsenic poisoning. The man had been to A&E complaining of feeling ill, but had been sent home and told to see his own doctor instead. A few hours later, he died. There was clearly a duty of care and the doctor who sent the patient home had breached that duty. Evidence was presented by the defendant that, even if the man had been seen by the A&E doctor, there would have been nothing the doctor could have done to save his life.

Held: the hospital was not liable as the doctor’s negligence was not the factual cause of the man’s death.

The Wagon Mound (1961)

The Wagon Mound was a repair wharf in Sydney Harbour. Crew members of a ship in the harbour made a mistake, causing oil to leak into the water. The oil directly caused minor damage to the wharf, but then caught fire two days later and damaged it significantly.

Held: the court held that the minor damage to the wharf (caused directly by the oil) was reasonably foreseeable, but that the fire damage was not. The fire damage was too remote from the original act of negligence to be claimed for.

Hughes v Lord Advocate (1963)

Two young children climbed into a hole in the ground that had been left unattended by Post Office workers. One of the boys knocked a paraffin lamp into the hole and was badly burned in the explosion that resulted. The defendants argued that the burns were too remote to be claimed for.

Held: the court held that the injuries were not too remote. While the exact course of events might not have been foreseeable, the general type of injuries (i.e. burns) were foreseeable.

Doughty v Turner Asbestos (1964)

A piece of asbestos was negligently knocked into a vat of molten metal. This led to an explosion that caused burns to the claimant. At the time, it was not known that the asbestos would react in this way to the metal.

Held: the defendants were not liable. While a claim for injuries caused by the metal splashing might have been successful, the type of injuries (i.e. from an explosion) was not foreseeable.

Smith v Leech Brain and Co. (1962)

The claim was brought on behalf of a steelworker who died of cancer. The claimant already had a pre-cancerous condition which made him more susceptible to serious illness. A piece of molten metal burned the man’s lip while he was at work, causing him to develop cancer and to die three years later.

Held: the factory owners were liable for the man’s death. Even though the harm was made worse by his pre-existing condition, this did not prevent the defendant from being liable for the full extent of the harm caused.

Scott v London and St Katherine Docks (1865)

The claimant was walking alongside a warehouse when six large bags of sugar fell on him and caused him injuries. The claimant didn’t know what had caused the bags to fall, but could prove that he had been injured by them.

Held: the defendants were liable under the rule of res ipsa loquitur (the thing speaks for itself). The warehouse was under the defendant’s control, large bags of sugar wouldn’t have fallen without someone being negligent and there was no other explanation for what happened.

Teaching and revision resources on liability in negligence

Occupiers' liability to lawful visitors

Occupiers’ Liability Act 1957

1 Preliminary

1. The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.

2. The rules so enacted in relation to an occupier of premises and his visitors shall also apply, in like manner and to the like extent as the principles applicable at common law to an occupier of premises and his invitees or licensees would apply, to regulate—

(a) the obligations of a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft; and

(b) the obligations of a person occupying or having control over any premises or structure in respect of damage to property, including the property of persons who are not themselves his visitors.

2 Extent of occupier’s ordinary duty

1. An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

2. The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

3. The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—

(a) an occupier must be prepared for children to be less careful than adults; and

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

Revill v Newbery (1996)

Mr Newbery was an elderly man who slept in the shed on his allotment because he believed trespassers were stealing from it. Revill tried to break into the shed, at which point Newbery fired a shotgun through a hole in the shed, injuring Revill. Revill brought an action under occupiers’ liability.

Held: the claim could not be brought under occupiers’ liability because the harm Revill suffered had nothing to do with the state of the premises.

Wheat v E Lacon & Co (1966)

The manager of a pub (who didn’t own the premises) was allowed by the owner to rent out rooms upstairs to paying guests. A guest fell down a badly lit staircase and died. His family brought an action against both the owner of the premises and the pub manager.

Held: the House of Lords held that both the manager and the owner were ‘occupiers’ of the premises for the purposes of occupiers’ liability.

Harris v Birkenhead Corporation (1976)

A local council had served a compulsory purchase order on an empty house, but had not yet boarded up or secured the property. A young child was injured in the house and an action was brought against the council.

Held: despite not yet having secured the property, the council was still held to be the occupier.

Bailey v Armes (1999)

The defendants rented a flat above a supermarket. Their son used to climb out of the flat window and play on the roof of the shop, without the shop management’s knowledge. The parents told their son not to take anyone else onto the roof, but he did so and his friend was injured.

Held: neither the owners of the supermarket nor the tenants of the flat were held to be occupiers of the shop roof.

Laverton v Kiapasha Takeaway Supreme (2002)

The claimant slipped on the floor of a takeaway shop during heavy rain and broke her ankle. The shop owners had fitted non-slip tiles to the floor and had already spent time mopping the floor to remove excess water.

Held: the Court of Appeal held that the shop management had taken reasonable care to make customers safe, so the claim failed.

Dean and Chapter of Rochester Cathedral v Debell (2016)

The claimant tripped and fell over a small piece of concrete at the base of a traffic bollard around Rochester Cathedral. The bollard had been run into by a car.

Held: the Court of Appeal held that the Cathedral did not have a duty to guarantee visitors’ safety, that no historic premises can be made completely safe from small trips and falls and that, for there to be a claim, there would need to be defects in the premises over and above normal defects found on any path or road.

Cole v Davis-Gilbert, The Royal British Legion and others (2007)

The claimant trapped her foot in a hole on the village green. She sued the owner of the village green, the Royal British Legion (who hadn’t filled in the hole after an event) and the local council.

Held: the Court of Appeal held that the hole had been there for so long and could not be linked directly to any of the defendants, so the claim failed.

The Calgarth (1927)

The claimant was the company who owned a tugboat (The Calgarth) and the defendant was the company who owned the Manchester Ship Canal. The Calgarth became damaged when it grounded itself on the bank of the canal and its propeller struck a chain on the bank.

Held: the Calgarth was a lawful visitor in the canal, but by moving onto the bank of the canal it had gone beyond the limits of its invitation to be there. Lord Scrutton, in the decision, wrote: “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 in which it is used.”

Glasgow Corporation v Taylor (1922)

A shrub in a public park in Glasgow had poisonous berries on it. The shrub wasn’t fenced off and there were no warning notices about it. A seven-year-old child picked a berry from the shrub and ate it. The child died.

Held: the council was liable. The berries on the shrub were an ‘allurement’ and the council should have been prepared that children would be less careful than adults and might be drawn to eat the berries.

Jolley v London Borough of Sutton (2000)

A boat had been abandoned on council land for two years. The council knew that children played on the boat and had failed to move it. Two fourteen-year-old boys used a jack to lift the boat up intending to repair it. The boat fell and seriously injured one of the boys. The Court of Appeal held that, though the boat was an allurement, the action taken by the boys was not foreseeable and the council was not liable.

Held: the House of Lords overturned the ruling. The exact course of events did not need to be foreseeable. The boat was an obvious allurement and the council should have removed it.

Phipps v Rochester Corporation (1955)

Two siblings, one aged seven and one aged five, were playing together on land owned by the council. The children were unsupervised. The five-year-old boy fell into a trench and was injured.

Held: while the council must be prepared for children to be less careful than adults, they can also expect that very young children would be supervised by their parents. The council was not liable.

Roles v Nathan (1963)

Two chimney sweeps had been warned that a boiler was not functioning properly. As they attempted to seal up a hole in the chimney, they both inhaled carbon monoxide fumes and died.

Held: the occupier was not liable. Under s 2(3)(b) OLA 1957, the occupier can expect a tradesperson to know and guard against special risks related to their trade.

Teaching and revision resources on occupiers' liability

Occupiers' liability to trespassers

Occupiers’ Liability Act 1984

1 Duty of occupier to persons other than his visitors.

(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine —

(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and

(b) if so, what that duty is.

(2) For the purposes of this section, the persons who are to be treated respectively as an occupier of any premises (which, for those purposes, include any fixed or movable structure) and as his visitors are —

(a) any person who owes in relation to the premises the duty referred to in section 2 of the Occupiers’ Liability Act 1957 (the common duty of care), and

(b) those who are his visitors for the purposes of that duty.

(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if —

(a) he is aware of the danger or has reasonable grounds to believe that it exists;

(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and

(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

(4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.

Ovu v London Underground (2021)

The claimant entered a non-public area of Canning Town tube station. The claimant passed through an emergency exit barrier into the non-public area. The station manager, who was alerted by a silent alarm on the barrier, went from his office and closed the barrier. The claimant came back to the locked barrier. Unable to get through it, he tried to find an alternative exit. In doing so, he fell down a flight of concrete stairs and died.

Held: the claimant was held still to be a trespasser as he had not yet re-entered the area he was allowed to be in.

Addie v Dumbreck (1929)

A coal mine had a large haulage system on it. The mine was surrounded by a large hedge, but the hedge had big gaps in it. The mine was used regularly by children as a playground and as a shortcut. A four-year-old boy was killed in the area when the wheel of the haulage system crushed him while he was playing there. His father brought a claim under occupiers’ liability.

Held: the boy was a trespasser at the mine. As such, he was owed no duty of care and the claim failed. This point of law was overruled in 1972 by British Rail Board v Herrington.

British Rail Board v Herrington (1972)

A live electric railway line was used regularly by children as a short-cut to a play area. The fence protecting the line had a large gap in it. The rail board knew about both the gap and the children that crossed the line regularly. A six-year-old boy was electrocuted and badly burned when he crossed the railway line on his way back from the park.

Held: the House of Lords used the 1966 Practice Statement to overrule the precedent from Addie v Dumbreck and to find for the claimant. The Lords held that, despite being a trespasser, the boy was owed a duty based on ‘common humanity’.

Rhind v Astbury Water Park (2004)

At the bottom of a lake on the water park, there was a submerged container that the occupiers were not aware of. The claimant jumped into the lake, despite a sign saying ‘Strictly no swimming’ and was injured by the container.

Held: because the occupier didn’t know about the danger, there was no requirement for them to protect trespassers against it.

Higgs v Foster (2004)

The claimant was a police officer who entered the premises for surveillance purposes. The defendant had no reason to expect a police officer would enter the premises. The officer fell down an uncovered pit and suffered serious injuries, forcing him into retirement.

Held: as the defendant had no reason to think a trespasser would be there, there was no liability.

Ratcliff v McConnell (1999)

The claimant was a student who climbed over a fence into his college’s swimming pool and dived headfirst into the pool. He hit his head on a ledge in a shallow end of the pool that was clearly marked as such. He was permanently paralysed as a result.

Held: as the danger was an obvious one, the occupier did not have any further duty to protect its students against it.

Tomlinson v Congleton Borough Council (2003)

The defendant owned a park including a large lake. There were signs telling people not to swim or dive into it due to hidden dangers, but the council knew that these signs were regularly ignored. The council planned to make the lake inaccessible using fencing, but this work was delayed due to lack of funds. The claimant swam in the lake and suffered paralysis from hitting his head on the bottom of the lake.

Held: the council was not liable. The cost of precautions to mitigate the danger was unreasonable. The court also held that the claimant was not injured by the state of the premises, but rather by diving into the water.

Keown v Coventry Healthcare NHS Trust (2006)

An eleven-year-old boy was showing off to his friends by climbing the fire escape of a hospital. He fell and suffered a broken arm and brain injuries. The defendant knew that children often liked to play around the fire escape.

Held: the fact that the claimant was a child was not relevant. The child clearly knew of the danger, as he was showing off to his friends. The court also held that the child was not injured by the ‘state of the premises’, because the fire escape was not faulty. He was injured by what he was doing on it.

Teaching and revision resources on occupiers' liability

Defences to an occupiers' liability claim

Occupiers’ Liability Act 1957

2 Extent of occupier’s ordinary duty

(1) An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—

(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

Unfair Contract Terms Act 1977

2 Negligence liability.

(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.

Consumer Rights Act 2015

65 Bar on exclusion or restriction of negligence liability

(1) A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence.

(2) Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader's liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice.

Rae v Mars (UK) Ltd (1990)

The claimant was injured due to a deep pit inside a dark shed. The occupier had posted a warning notice.

Held: The seriousness of the danger meant that a warning notice was not sufficient to make the visitor safe. To make the premises safe, there should have been a barrier around the pit.

Staples v West Dorset District Council (1995)

The defendant was a local authority that controlled the Cobb – a harbour wall in Lyme Regis. At the time of the incident, the wall was covered in slippery algae. The claimant slipped on the wall and suffered serious injuries. The claimant argued that there should have been a warning notice to alert visitors to the danger.

Held: On appeal, it was held that the defendant did not need to post a warning notice because the danger was obvious. A warning notice would not have given the claimant any new information that they didn’t already have.

Westwood v Post Office (1973)

The claimant was an employee of the Post Office. The claimant entered a room with a notice saying, “Only the authorised attendant is permitted to enter”. After entering the room, the claimant was injured by equipment inside, and argued that the Post Office had been negligent in making the premises safe.

Held: The claimant was a trespasser, and the warning notice was enough to make them safe because it alerted them to the danger.

Geary v Wetherspoon (2011)

The claimant suffered permanent paralysis after sliding down the banister of a Wetherspoons, slipping, and falling down several floors.

Held: The claimant had voluntarily assumed the risk when she chose to slide down the banister. The risk was created by the claimant sliding down the banister, not the state of the banister itself. She knew that sliding down the banisters was not permitted, but she chose to do it anyway. “The defendant owed no duty to protect [the claimant] from such an obvious and inherent risk. She made a genuine and informed choice and the risk that she chose to run materialised with tragic consequences.’”

Haseldine v Daw and Son Ltd (1941)

The claimant was injured in a lift that had not been properly maintained. The defendant was the landlord of the property, who paid an independent contractor to maintain the lift.

Held: The defendant was not liable and could pass the liability onto the independent contractor, as it was reasonable to entrust specialist work like maintaining a lift to an independent contractor.

Bottomley v Todmorden Cricket Club (2003)

The claimant was injured during a firework display held at the cricket club. The stunt team hired by the club used improvised pyrotechnics rather than traditional fireworks. The stunt team did not have their own liability insurance.

Held: The Court of Appeal held that the cricket club was liable. They had not taken reasonable care to ensure that the independent contractors (the stunt team) were competent, as they had not checked the team had their own insurance.

Gwilliam v West Hertfordshire NHS Trust (2002)

The claimant was injured at a hospital’s summer fair. The equipment she was using at the time was provided by a small company, who had told the hospital they had public liability insurance. In fact, the insurance expired four days before the event. The contractor settled the claim for £5,000 but the claimant then brought an action against the hospital for the difference between the £5,000 settlement and the amount she would have received if the contractor had been properly insured.

Held: The hospital was not liable. The contractors telling the hospital they had insurance cover was enough to make it reasonable to entrust the work to them.

Woodward v The Mayor of Hastings (1945)

A cleaner had brushed snow away from a step, leaving slippery ice exposed. The cleaner was an independent contractor. A claim was brought against the school governors on behalf of a child who slipped on the step.

Held: The school was liable for the claimant’s injuries because the school should have checked that the work had been properly completed.

Teaching and revision resources on occupiers' liability

Tort defences

Law Reform (Contributory Negligence) Act 1945

1 Apportionment of liability in case of contributory negligence.

1. Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

Sayers v Harlow Urban District Council (1958)

The claimant became stuck in a public toilet cubicle that had been negligently maintained by the council. She attempted to escape the cubicle by climbing over the door, with one foot on the toilet seat and one foot on the toilet roll holder. She was injured.

Held: The council was liable for her injuries due to their negligent maintenance of the cubicle. However, the claimant’s decision to climb out using the toilet-roll holder was a contribution to her own harm. Damages were reduced by 25%.

O’Connell v Jackson (1972)

A moped rider was injured in a road traffic accident. His injuries were made worse by the fact that he was not wearing a helmet at the time of the crash.

Held: Damages were reduced by 15% for his failure to wear the helmet.

Froom v Butcher (1976)

The claimant was injured in a car accident caused by the negligence of another driver. His injuries were made worse by the fact that he was not wearing a seatbelt at the time of the crash.

Held: Damages were reduced by 20% for his failure to wear the seatbelt.

Stinton v Stinton (1993)

The driver of the vehicle that caused an accident was over the legal alcohol limit to drive. The claimant knew the driver was drunk before he accepted a lift in the driver’s car. The claimant was injured in the accident.

Held: Damages were reduced by 33% for accepting a lift from a driver the claimant knew to be drunk.

Jayes v IMI (Kynoch) Ltd (1985)

The claimant was cleaning a dangerous machine at work. Despite warning signs, the claimant had removed the guard from the machine before cleaning it. He lost a finger.

Held: The employer was liable for their failure to ensure the guard remained in place. However, the claimant having removed the guard himself meant that damages were reduced by 100%.

Badger v Ministry of Defence (2005)

The claimant had been exposed to asbestos dust while working for the Ministry of Defence early in his career. The claimant died of lung cancer at the age of 63 and a claim was brought against the MOD for the harm caused by the asbestos dust. The MOD argued that the claimant having smoked cigarettes for most of his life (having known they were dangerous since 1971) should amount to contributory negligence.

Held: The court reduced the damages by 20% for the claimant having contributed to the risk of harm by smoking cigarettes.

Stermer v Lawson (1977)

The claimant was injured after borrowing the defendant’s motorbike and crashing it. The defendant had not shown the claimant how to ride the bike safely, but argued that the claimant knew the bike could be dangerous.

Held: Because the precise risks hadn’t been explained to the claimant, the defence of consent failed and the defendant remained liable.

Smith v Baker (1891)

The claimant was injured at work when rocks fell on him from a crane that was operating above his head. The claimant had previously raised concerns about the work going on over his head and had been told to continue with his work. The employer argued that, because he was a specialist, the claimant knew the risks involved and willingly accepted them.

Held: Because he was contractually required to continue his work, the claimant had not made a free choice. The defence of consent failed and the employer remained liable.

Haynes v Harwood (1935)

The claimant was a police officer who was injured while trying to restrain an agitated horse. The horse had not been tethered properly by the defendant. The defendant argued that the officer exercised a free choice in deciding to restrain the horse.

Held: The officer did not exercise a free choice because he was under a duty to protect the public. The defence of consent failed and the defendant remained liable.

Ogwo v Taylor (1987)

The defendant negligently set fire to his house during renovations. The claimant was a fire officer who suffered burns while attempting to tackle the fire, despite wearing appropriate protective equipment. The defendant argued that the claimant consented to the risk by becoming a firefighter.

Held: The defence of consent failed. ‘I can see no reason whatever why [a firefighter] should be held at a disadvantage compared to the layman entitled to invoke the principle of so-called “rescue” cases.’

Montgomery v Lanarkshire Health Board (2015)

The claimant was a woman who gave birth to a child who developed cerebral palsy as a result of complications at birth. The claimant had raised concerns about the baby’s size with medical staff, who failed to warn her that the size of the child could result in risks to the baby’s health. The hospital attempted to use the defence of consent, based on previous cases in which exact medical risks had not needed to be explained to patients.

Held: The defence of consent failed because medical staff did not warn the claimant of ‘any material risks involved… and of any reasonable alternative treatments’.

ICI v Shatwell (1965)

The claimant and his brother worked at a quarry. They had been given clear instructions by their employers about safe ways to use detonators. While ignoring these instructions, the claimant was injured by an explosion. The defendant argued that, by ignoring the employer’s instructions, the claimant had voluntarily assumed a risk.

Held: The defence of consent succeeded. The training the brothers had received meant they knew the precise risks involved.

Road Traffic Act 1988

149 Avoidance of certain agreements as to liability towards passengers

(3) The fact that a person so carried has willingly accepted as his the risk of negligence on the part of the user shall not be treated as negativing any such liability of the user (in a road accident).

Teaching and revision resources on tort defences

Tort remedies

Courts Act 2003

100 Periodical payments

(1) A court awarding damages for future pecuniary loss in respect of personal injury—

(a) may order that the damages are wholly or partly to take the form of periodical payments, and

(b) shall consider whether to make that order.

(5) An order for periodical payments may include provision—

(a) requiring the party responsible for the payments to use a method (selected or to be selected by him) under which the continuity of payment is reasonably secure;

(b) about how the payments are to be made, if not by a method under which the continuity of payment is reasonably secure;

(c) requiring the party responsible for the payments to take specified action to secure continuity of payment, where continuity is not reasonably secure

ATX v CRS and DPS (2018)

The claimant was a 7-year-old child who suffered injury as the result of negligence and required significant and expensive care, including round-the-clock care by a nurse and one other carer, for the rest of his/her life. The major dispute in court was on the amount of damages to be awarded. The claimant’s lawyers presented evidence that the child might live for a further 44 years, while the defence argued that the child’s life expectancy was closer to 10 years.

Held: The Court of Appeal awarded a lump sum of £3.1 million, as well as a periodical payments order worth £950,000 per year. The total value of the award was expected to be £45 million.

Teaching and revision resources on tort remedies

Pure economic loss

Spartan Steel v Martin (1973)

D dug up a road outside C’s steel factory. D’s negligence led to them cutting a cable supplying power to the factory. The steel being produced at the time of the power cut was damaged and could not be sold, and the factory could not operate for 15 hours while the power supply was being restored. C brought a claim for both damage to property and loss of profit.

Held: D was liable and compensation awarded for the damage to the steel bars that were in production at the time of the power cut. But the loss of profits while the factory was closed amounted to a pure economic loss that could not be compensated.

Weller v Foot and Mouth Disease Research Institute (1966)

The defendant institute accidentally released foot and mouth disease from a research laboratory, leading to a cull of all cattle in the local area. D paid compensation to the farmers whose cattle were killed, but did not compensate auctioneers who lost profit due to the cull. An auctioneer brought a claim for their loss of profit.

Held: the loss of profit was purely economic and could not be recovered. The court held that “the world of commerce would come to a halt and ordinary life would become intolerable” if liability were imposed for pure economic losses.

Candler v Crane, Christmas and Co. (1951)

The owner of a tin mine in Cornwall advertised in The Times for investors in the mine. The claimant responded asking to see accounts, which the mine owner asked the defendants to prepare. The defendants prepared the accounts negligently by misrepresenting the health of the mine’s finances. C invested in the mine on the basis of those accounts and then lost all his investment. C brought a claim against the defendant firm.

Held: the court held that the loss was purely economic and could not be compensated. However, Lord Denning gave a dissenting judgement in which he argued that pure economic loss should be compensated if it comes from a ‘negligent misstatement’ that the defendant knew would be relied on by the claimant.

Hedley Byrne v Heller (1963)

The claimant was an advertising firm that was asked by Easipower to run a campaign for them. Because they had not worked together before, C asked Easipower’s bank (the defendant) to provide a financial reference, which the bank did. C ran the campaign and was then not paid after Easipower went bankrupt. C sued the bank for their economic loss.

Held: the court upheld Lord Denning’s dissent from Candler v Crane, holding that pure economic loss could be compensated if it comes from a negligent misstatement and if there is a ‘special relationship’ between the claimant and the defendant. (In this case, Hedley Byrne’s claim failed because the bank had issued a disclaimer.)

D claims some special skill or expertise in the subject
C actually relies on the misstatement and it was reasonable to do so
The misstatement is made directly from D to C
D knows that the statement will be relied on by C for a specific purpose
D gives no disclaimer to C about the status of the advice

Esso Petroleum Co. v Mardon (1976)

C was negotiating with the petrol company about taking on the lease for a petrol station. The company hired expert advisors to estimate the profits C would make and C used these estimates to decide he would take on the tenancy. The figures turned out to be hugely inflated, meaning C couldn’t make a profit while paying the rent agreed with the company.

Held: the special relationship requirements from Hedley Byrne were met and C was able to recover his economic loss, even though the figures given were described as ‘estimates’.

Thomson v Christie Manson and Woods Ltd (2005)

The claimant bought two vases for nearly £2m at an auction, after the auctioneer’s expert assured him they dated from the reign of Louis XV of France. C later discovered they were probably from the nineteenth century and worth around £30,000. C brought a claim against the auctioneer for the pure economic loss.

Held: the ‘special relationship’ requirements of Hedley Byrne were met. However, this only gave the defendant a duty to use ‘reasonable care and skill’ in giving the advice. Because this skill was taken, the claim failed (i.e. the advice was wrong, but not negligent).

Welton v North Cornwall District Council (1997)

The claimant owned a guest house in Cornwall. An environmental health officer acting for the defendant council told C that, unless significant and costly work was done at the guest house, it would be closed down. C paid for this work to be done, but later found out it wasn’t actually necessary. C sued the council.

Held: the special relationship requirements from Hedley Byrne were met and the claim succeeded.

Caparo v Dickman (1990)

C held shares in Fidelity Ltd. The defendant acted as Fidelity’s accountant and prepared annual accounts for statutory purposes, which C then examined before launching a takeover bid for Fidelity. After the takeover was complete, it emerged that the accounts produced by D were wrong and that Fidelity, in fact, was almost worthless. C sued D under Hedley Byrne.

Held: D did not know that C was going to rely on the books for considering a takeover bid, so had not voluntarily assumed any responsibility. There was no duty owed and the claim failed.

Chaudry v Prabhakar (1989)

C was buying a car and asked D (her friend) to look at cars with her because he claimed to know a lot about cars. D recommended a car that was visibly damaged, but which D reassured C was in good condition and had not been in any accidents. C bought the car and it then turned out to be unroadworthy.

Held: despite being made in a social situation (i.e. between friends), D’s negligent misstatement met the special relationship requirements from Hedley Byrne and the claim succeeded.

JEB Fasteners v Marks Bloom (1983)

The claimant took control of a company after the defendant had produced that company’s accounts. There were errors in the accounts, but the claimant knew about some of these errors and had decided to proceed with the takeover anyway. C then claimed under Hedley Byrne on the basis of the negligent accounts.

Held: the claim failed. Because C already knew much of the real situation, they had not reasonably relied on the misstatement in making their decision so the misstatement was not the cause of the economic loss.

Teaching and revision resources on pure economic loss

Psychiatric injury

Hicks v Chief Constable of South Yorkshire (1992)

Sarah and Victoria Hicks were teenagers killed in the Hillsborough disaster when they were crushed and suffocated. There was evidence that both girls had become unconscious within seconds and then died around five minutes later. Their father, Trevor Hicks, brought an action on the girls’ behalf for the fear and distress they suffered before their deaths.

Held: The House of Lords dismissed Mr Hicks’ appeal. They held that ‘fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded’.

Page v Smith (1996)

Page was involved in a minor road accident caused by Smith’s negligence. Page wasn’t physically injured in the accident, but a pre-existing psychiatric condition – causing severe fatigue – had recurred as a result of the accident. The facts suggested that psychiatric injury was not foreseeable as a result of Smith’s negligence.

Held: As long as physical injury was reasonably foreseeable (even if it wasn’t suffered), a claimant can also recover damages for psychiatric injury. There is no requirement for psychiatric injury to be foreseeable. The case also confirmed that a primary victim is one who was in ‘the zone of physical danger’ – i.e. they could have been physically injured in the incident.

MacFarlane v E.E. Caledonia (1994)

MacFarlane was on a nearby ship when he witnessed the Piper Alpha oilrig explosion, which killed 167 people. He saw the whole event from the nearby ship but did not take part in any rescue attempt. He suffered psychiatric injury as a result of what he saw.

Held: MacFarlane could not be classed as a primary victim because he was never in physical danger, and he did not meet the criteria to be classed as a secondary victim. He was a bystander, meaning that the defendant did not owe him a duty in respect of psychiatric injury.

White v Chief Constable of South Yorkshire (1998)

The claimants were police officers who assisted in helping victims of the Hillsborough disaster. Some had tried to free people being crushed, while others had seen dead bodies lined up afterwards and others had supported survivors in the immediate aftermath. The claimants were never in physical danger and did not have close ties of love and affection to any primary victims.

Held: ‘Rescuers’ are not treated any differently from other claimants. If a rescuer places themselves in the ‘zone of physical danger’, they become a primary victim and can claim. If not, they must meet the criteria for secondary victims in order to claim.

Alcock v Chief Constable of South Yorkshire (1992)

The claimants were ten family members and friends of people who died in the Hillsborough disaster. Some had been at the ground, whilst others saw it on TV or heard about it on the radio. None were directly involved in the disaster, but all had close relationships with people who were.

Held: Those who were not at risk of physical injury are classed as ‘secondary victims’ and must fulfil more strict criteria in order to bring a claim for psychiatric injury.

A secondary victim can only claim for psychiatric injury if…

C had a ‘close tie of love and affection’ with a primary victim
C was proximate (close) enough in time and space to the incident or its immediate aftermath
C witnessed the incident or its aftermath with their own unaided senses
C suffered the psychiatric harm as a sudden shock rather than as a process of decline

Paul, Polmear and Purchase (2024)

The claimants’ appeals in three separate cases were combined by the Supreme Court into one appeal. In all three cases, the claimants had suffered psychiatric injury as a result of witnessing the death of a loved one following medical negligence (or alleged medical negligence) by the defendants.

Held: The claimants’ appeals were dismissed because none had witnessed an ‘accident’ that caused the psychiatric injury.

For a secondary victim to claim, they must witness an accident or its immediate aftermath (not just the injuries caused by it). ‘An accident is an external event which causes, or has the potential to cause, injury: it is not the injury.’
There is no need for the claimant to suffer a ‘sudden shock’ caused by a ‘horrifying’ event. Gradual development of psychiatric injury can be claimed for.
The length of time between the negligent act or omission and the accident that it caused is not relevant to the success of a claim.

Young v Downey (2020)

In 1982, when Young was 4 ½ years old, her father – a soldier – was killed by an IRA bomb attack in London. Downey was held liable for the attack in a separate case in 2019. Young had seen her father leave the barracks and then heard the bomb blast. Young’s evidence said, ‘I remember telling my Mum afterwards, “Daddy should be coming now”, but he never did.’ Young brought a claim against Downey for her own psychiatric injury.

Held: The requirement for a ‘close tie of love and affection’ also requires the claimant to know that their loved one has been or may have been a primary victim. Young’s claim was rejected because, at the time, she didn’t think her father had been in danger.

McLoughlin v O’Brian (1982)

McLoughlin’s husband and children were in a car that was hit be a lorry due to the lorry driver’s negligence. She arrived at the hospital two hours after the accident occurred, where she saw them being treated and learned that one of her children had been killed.

Held: Arriving two hours after the accident was soon enough to be considered within the ‘immediate aftermath’ of it.

n.b. claimants in Alcock who arrived eight hours after the disaster were not considered to have witnessed the ‘immediate aftermath’ of it.

Teaching and revision resources on psychiatric injury

Nuisance

Hunter v Canary Wharf (1997)

A claim was brought against the owners of the Canary Wharf tower by a group of local residents and their families because the building of the tower had interrupted their TV reception. The House of Lords had to decide whether claims could be brought by family members (who didn’t actually own or rent the land) and whether loss of TV reception amounted to an actionable nuisance.

Held: a claim can only be brought by someone with a legal interest in the land. The family members were not able to bring a claim under private nuisance.

Sedleigh Denfield v O’Callaghan (1940)

The defendant was an order of monks. The order owned land with a ditch that regularly filled with water. At the request of a neighbouring landowner, the council put a pipe in the ditch to allow water to drain away, but put a grate in the wrong place meaning that the pipe became blocked with leaves. The monks had occasionally cleared the grate but had never been told of the installation of the drain or its importance to prevent flooding.

Held: the monks were liable. Nuisance is a no-fault (or strict liability) tort, so not knowing about the nuisance or not being responsible for it does not prevent a claim being successful.

Adams v Ursell (1913)

D ran a fish and chip shop near to C’s house. C brought an action under private nuisance because a strong smell came from the shop between late morning and late at night. D argued that there was no nuisance because he used high-quality equipment and ingredients.

Held: the smell amounted to a nuisance. The smell was interfering with the claimant’s use and enjoyment of their land (loss of amenity).

Coventry v Lawrence (2014)

D ran a motocross track which produced considerable noise. Planning permission for the track was granted in 1975 and 1992. C bought a cottage nearby in 2006 and sued under nuisance for the noise. Alongside deciding on the importance of the planning permission and the claimant having moved to the nuisance, the Court of Appeal had to decide whether noise from a motocross track could amount to a nuisance.

Held: the noise from the track could amount to a nuisance (loss of amenity).

Miller v Jackson (1977)

C owned a house with a garden next to a cricket field owned by D. Cricket balls occasionally fell into C’s garden, causing some damage and causing C to feel too nervous to enjoy their garden. Alongside deciding whether the public interest of sport should outweigh the private interest of C enjoying their garden, the Court of Appeal had to decide whether cricket balls landing in a garden could amount to a nuisance.

Held: the Court of Appeal decided that the cricket balls did amount to a nuisance (although the Court refused to grant an injunction blocking the team from playing cricket).

Fearn v Tate Gallery (2023)

D owned the Tate Modern art gallery in London which, in 2016, opened its Blavatnik Building. The building included a viewing platform on its top floor, with views directly into a block of glass-walled luxury apartments next door. The platform was open daily and was visited by around 500,000 people each year. Some visitors stared and waved into the flats, while others took photographs and posted them on social media.

Held: the Supreme Court acknowledged that losing a view or being overlooked does not usually amount to a nuisance. However, the very high intensity of the interference in the case meant that it did amount to a nuisance.

Crown River Cruises v Kimbolton Fireworks (1996)

The claimants had a river boat moored permanently on a riverbank in a rural area. The defendants held a firework display lasting for twenty minutes, during which some burning debris landed on the claimant’s boat and set it alight. The claimants brought an action under private nuisance, but the defendant argued that an interference lasting only twenty minutes could not amount to a nuisance.

Held: the court held that, even though the interference only lasted twenty minutes, this was still long enough to amount to a nuisance because of the intensity of the interference.

De Keyser’s Royal Hotel v Spicer Bros (1914)

The claimants owned a hotel on the River Thames in London. The defendants were doing construction work nearby, excavating groundworks overnight for several weeks and using pile-drivers during the day. On one occasion, the pile driving continued through the night, meaning that hotel guests could not sleep or hear an after-dinner speech being given at the hotel.

Held: the interference amounted to a nuisance. The fact that the interference happened at night made the interference much more serious, as did the fact that the excavation works were taking place every night for several weeks.

Sturges v Bridgman (1879)

The claimant was a doctor who bought premises in a residential area and built a shed in his garden to act as a consulting room. The shed was adjacent to the defendant’s kitchen in which D produced sweets on a commercial scale. C brought an action in nuisance because the noise from the kitchen interfered with C’s use and enjoyment of his consulting room. The court had to decide whether the residential nature of the locality was relevant to the nuisance action.

Held: the court held that there was a nuisance. In the judgement, the court held that, “What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”, meaning that locality is sometimes relevant to deciding a nuisance case.

Robinson v Kilvert (1889)

D ran a factory making paper boxes and kept the factory warm to keep the boxes dry. C rented the ground floor of the building and used it to store brown paper that was unusually sensitive to heat. The heat from the box factory damaged the brown paper, and C brought an action in nuisance.

Held: there was no nuisance. The heat was only a problem because of the unusually sensitive brown paper and would not have been a problem for anyone using the ground floor for ordinary purposes.

Network Rail v Morris (2004)

C ran a recording studio in South London, 80 metres from the mainline railway from London to Brighton. When the defendants upgraded the electrical circuits that controlled the line’s signalling systems, the new circuits interfered with C’s recording equipment. C brought a claim under private nuisance for the interference.

Held: following Robinson v Kilvert, the court held that there was no nuisance because C’s equipment was unusually sensitive. However, in the judgement the Court of Appeal’s reasoning was based on a more general question of whether D could have foreseen that their actions would create a nuisance.

Christie v Davey (1893)

C was a music teacher who taught private piano lessons at her home. C’s family also played music themselves regularly. D lived in an adjoining house and regularly complained about the music being played. C consistently ignored D’s complaints. D began banging on walls and beating kitchen utensils loudly in order to disturb C’s music lessons.

Held: the claimant’s music lessons did not amount to a nuisance but the defendant’s retaliation was a nuisance, because it was done intentionally and maliciously to disturb the claimant.

Hollywood Silver Fox Farm v Emmett (1936)

The claimant bred silver foxes on his farm in order to get their fur. The defendant was a neighbouring farmer and animal rights activist. D sent his son repeatedly to fire a gun close to the foxes in order to scare them and impair their ability to reproduce, in the hope that this would ruin the claimant’s business.

Held: the firing of the gun did constitute a nuisance, even though the claimant’s foxes were unusually sensitive. The court held that the intentional nature of the interference meant the claimant’s sensitivity was not relevant.

Nuisance: defences

Sturges v Bridgman (1879)

C was a doctor who bought premises in a residential area and built a shed in his garden to act as a consulting room. The shed was adjacent to the defendant’s kitchen in which D had been producing sweets on a commercial scale for a number of years. C brought an action in nuisance because the noise from the kitchen interfered with C’s use and enjoyment of his consulting room. D argued that he had a ‘prescriptive right’ to continue because he had been producing the sweets for so long.

Held: the court rejected the defence of prescription because the nuisance only began when the consulting room was built. However, the court did accept that an interference continuing for 20 years without complaint could be a defence to a nuisance claim.

Coventry v Lawrence (2014)

D ran a motocross track which produced considerable noise. Planning permission for the track was granted in 1975 and 1992. C bought a cottage nearby in 2006 and sued under nuisance for the noise. One of the defendant’s arguments was that the interference had been continuing for 20 years without complaint and another was that the defendants had obtained planning permission from the local authority for the track.

Held: the court refined the rule from Sturges v Bridgman by holding that, for an effective a defence, the interference must have been a continuous, actionable nuisance for 20 years. The burden of proof is on the defendant to prove that this has been the case, which the Supreme Court said (obiter) is a high evidential bar to reach. The court also rejected the defence of planning permission, holding that planning permission alone is ‘normally of no assistance to the defendant’.

Miller v Jackson (1977)

C bought a house with a garden next to a cricket field owned by D. Cricket had been played on the field for around 70 years. Cricket balls occasionally fell into C’s garden, causing some damage and causing C to feel too nervous to enjoy their garden. One of the defendant’s arguments was that the claimant had ‘moved to the nuisance’ by knowingly buying a house next to a cricket field.

Held: the defence of ‘moving to the nuisance’ failed and is never effective. Nuisance is a land-based tort, so there was a nuisance continuing before C bought the house.

Allen v Gulf Oil Refining (1981)

A parliamentary statute gave authority for the defendant to build an oil refinery close to a coastal village. The claimant, a resident of the village, brought an action under private nuisance for smells, vibrations and noise from the refinery. C argued that Parliament had granted authority to build the refinery, but not to operate it.

Held: the claim failed. The court held that Parliament had obviously intended for the refinery to be operated when it gave authority for the refinery to be built. Parliamentary sovereignty means that the courts can’t overrule statutory authority.

Gillingham Borough Council v Medway Dock Co. (1993)

D had planning permission to convert a disused dock into a 24-hour commercial port, close to a residential area. A group of residents brought an action under private nuisance based on the noise coming from large vehicles driving to and from the port. D argued that the council had taken account of the locality when it granted planning permission.

Held: the defence of planning permission succeeded. Where planning permission has been given for a development that changes the nature of the area, the courts should view the nature of the locality in line with the development that has been approved and not as it was before the development took place.

Watson v Croft Promo-Sport (2009)

The defendants ran a motor-racing circuit that had operated with planning permission from 1963 to 1979. Between 1979 and 1994, the land was not used for racing, but was reopened by the defendants. The claimants brought a nuisance claim on the basis of noise from the circuit, which was defended on the basis that planning permission had been granted.

Held: the nuisance claim was upheld. The original planning permission had not changed the nature of the area, so did not provide a defence to a nuisance claim.

Shelfer v City of London Electric Lighting Co. Ltd (1895)

The defendant caused nuisance to the claimant. At first instance, the trial judge awarded damages but didn’t grant an injunction for the interference to stop. The claimant appealed.

Held: the Court of Appeal reversed the decision and laid out a four-part test for circumstances when damages may be awarded for nuisance instead of an injunction:

The injury to the claimant is small
The damage can be estimated in monetary terms
The damage can be adequately compensated by a small payment
It would be oppressive to the defendant to grant an injunction

Coventry v Lawrence (2014)

The Supreme Court held that there was a nuisance but also had to make a ruling on whether damages or an injunction was the correct remedy.

Held: An injunction can be the default remedy for nuisance

The defendant may argue that damages would be more suitable

The Shelfer test does not need to be applied rigidly and an injunction isn’t an automatic remedy for nuisance.

Miller v Jackson (1977)

C owned a house with a garden next to a cricket field owned by D. Cricket balls occasionally fell into C’s garden, causing some damage and causing C to feel too nervous to enjoy their garden. The court had to decide whether the public interest of sport should outweigh the private interest of C enjoying their garden.

Held: the wider public interest does not prevent there being a nuisance. However, it can be used by D to argue that damages would be a more appropriate remedy than an injunction

Teaching and revision resources on nuisance

Rylands v Fletcher

Rylands v Fletcher (1868)

The defendant hired a contractor to build a reservoir on the defendant’s land. The contractor failed to seal some disused mines before the reservoir filled with water. Water then flooded these mines and escaped to flood mines on the claimant’s neighbouring land. The claimant brought an action for the damage to their land.

Held: the House of Lords upheld the claim and developed a four-part test for tort claims based on the escape of a dangerous thing. Four requirements of a successful claim:

The bringing onto the land and accumulation…
… of a thing likely to cause mischief if it escapes…
… which amounts to a non-natural use of the land…
… and which does escape and causes (reasonably foreseeable) damage to the adjoining property.

Giles v Walker (1890)

Thistles grew naturally on the defendant’s land. Seeds from the thistles blew onto neighbouring farmland and damaged crops. The farmer brought a claim under the rule in Rylands v Fletcher for the damage caused by the seeds escaping onto his land.

Held: the defendant was not liable. Even though the rule in Rylands v Fletcher is a no-fault tort, the accumulation and storage of the dangerous thing must have been done voluntarily for there to be liability. Because the thistles grew naturally as weeds, there was no liability.

Ellison v Ministry of Defence (1997)

The defendant owned the military airfield at Greenham Common. Large amounts of rainwater fell onto the airfield and then ran off to flood neighbouring land, causing damage.

Held: there was no liability because the rainwater accumulated naturally on the land and wasn’t voluntarily brought onto or stored on the land.

Hale v Jennings Bros (1938)

D ran a ‘chair-o-plane’ ride at a fairground. While the ride was working, one of the chairs came loose and hit someone nearby, causing personal injury. A claim was brought under the rule in Rylands v Fletcher.

Held: the court held that the chair was a ‘dangerous thing’ for the purposes of Rylands v Fletcher and the claim was successful.

n.b. in Hunter v Canary Wharf (1997) and Transco v Stockport MBC (2003), it was suggested that personal injury can no longer be claimed for under the rule in Rylands v Fletcher.

British Celanese v A H Hunt Ltd (1969)

The defendant ran a company manufacturing electrical components, for which they stored large quantities of metal foil cut into strips. Wind caused some of the foil strips to blow into a neighbouring electricity substation, leading to an electricity outage.

Held: the claim failed because the court held that the storage of the foil strips was a ‘natural’ use of land, due to the economic benefits it brought to the local population.

Cambridge Water Co. v Eastern Counties Leather (1994)

The defendant company stored chemicals for use in leather production. Over time, large amounts of chemicals seeped into the soil and polluted the water supply, causing the claimants to have to move its water company elsewhere. The defendants argued that their use of the land was ‘natural’.

Held: the court held that, despite the leather plant being in an industrial area, the use of the land was non-natural because of the dangerous chemicals being stored. (n.b. the claim failed for other reasons.)

Transco v Stockport MBC (2003)

The defendant council owned a high-pressure water pipe that supplied a block of flats. The pipe leaked and caused damage to the claimant’s gas pipeline. The claimant sued under Rylands v Fletcher based on the damage caused by the water escaping.

Held: the claim failed because the court held that a domestic water supply is not a ‘non-natural use of land’ as required under Rylands v Fletcher. In the judgement, Lord Bingham commented that thinking about an ‘ordinary’ use of land is more useful than thinking about a ‘natural’ use of land.

Read v Lyons (1947)

The claimant was a weapons inspector who was injured when a shell exploded while he was inspecting a weapons factory. A claim was brought under Rylands v Fletcher.

Held: the claim was rejected because there was no escape. In the ruling, it was held that Rylands v Fletcher requires ‘an escape from a place where the defendant has occupation or control over land to a place which is outside his occupation or control.

Cambridge Water Co. v Eastern Counties Leather (1994)

Held: there was no liability. Here, the court added to the original requirements under Rylands v Fletcher by holding that the damage caused must be reasonably foreseeable by the defendant.

Stannard v Gore (2012)

D owned a tyre-fitting business and stored around 3000 tyres on his property. A fire broke out in a pile of tyres and the fire spread to a neighbouring property, causing damage. A claim was brought under both negligence and Rylands v Fletcher. The negligence claim failed, but the trial judge held D liable under Rylands v Fletcher. D appealed.

Held: the Court of Appeal overturned the decision. It was held that the tyres were not, in themselves, dangerous and that their storage didn’t amount to a non-natural use of the land. Crucially, no actual tyres escaped D’s property, so the escape requirement was missing. Although fire had escaped, the fire had not been voluntarily brought onto the land.

LMS International v Styrene Packaging (2005)

The defendant operated a packaging factory, in which flammable materials were stored next to hot machinery. A fire broke out and pieces of material that were on fire escaped onto neighbouring land and spread the fire, causing damage.

Held: the storage of the flammable materials was held to be a non-natural use of land and the materials were held to be dangerous. Because some of this material actually escaped onto the neighbouring land, the claim was successful.

Ponting v Noakes (1894)

The claimant’s horse reached over a fence to eat poisonous leaves from a tree on the defendant’s land. The horse died and the claimant brought an action under Rylands v Fletcher.

Held: the claim failed. The court held, firstly, that there was no escape of the dangerous thing from the defendant’s land. However, if there was an escape, it was the fault of the claimant and not the defendant.

Perry v Kendricks Transport (1956)

The defendant company owned a bus that was parked up with the petrol tank drained. A third party (a ‘stranger’) removed the cap from the petrol tank and a child then threw a lighted match into the tank, causing an explosion that injured another child. A claim was brought under Rylands v Fletcher.

Held: the claim failed. The defendant successfully argued that the escape was caused by the ‘act of a stranger’, so there was no liability.

Nichols v Marsland (1876)

The defendant built artificial lakes on his land. Water from the lakes escaped and damaged bridges on neighbouring land after exceptionally heavy rain and freak thunderstorms damaged the lakes. The defendant argued that the escape of the water was caused by an unforeseeable ‘act of God’ that he shouldn’t be held liable for.

Held: the defence succeeded and there was no liability. If the escape is caused by an unforeseeable natural event, there will be no liability under Rylands v Fletcher.

Teaching and revision resources on Rylands v Fletcher

Vicarious liability: employment status

Hawley v Luminar Leisure Ltd (2006)

A bouncer was employed by a security firm that supplied door staff to nightclubs. One night, the bouncer attacked a customer outside the defendant’s nightclub. The supply agency went bankrupt, so the victim sued the nightclub for the bouncer’s attack.

Held: the nightclub had sufficiently ‘detailed control’ over the bouncer’s work (e.g. by setting his hours, providing uniform and issuing a code of conduct) to be vicariously liable. The fact that the bouncer’s formal contract was with the security firm was overridden by the nightclub’s control of the bouncer.

Stevenson, Jordan Harrison v MacDonald & Evans (1952)

In a case about copyright ownership, the court had to decide whether an engineer who wrote a book using knowledge he learned while employed by a company was the owner of the book’s copyright based on whether he was actually their employee under a ‘contract of service’.

Held: Lord Denning partly relied on the control test, but then developed a new ‘integration test’. Someone is an employee if their work is an integral part of the organization, rather than an accessory to it. For example, a receptionist in an estate agency might be considered ‘integral’ to the business, whereas a window cleaner who cleans the agency’s windows might be considered an ‘accessory’ to it.

Ready Mixed Concrete v Minister of Pensions and NI (1968)

In a case about payment of National Insurance, the court had to decide whether drivers who hired work vehicles from a company were ‘employees’. The drivers set their own hours and rates, but the vehicles had to be painted in the company colours and showing the company logo. The drivers were only allowed to use the vehicles for work purposes.

Held: The court developed an ‘economic reality’ (or ‘multiple’) test of employment:

Did the employee agree to work in return for a wage?
Did the employee agree to be subject to the employer’s control?
Did the other elements of the contract suggest a relationship of employment?

Barclays Bank v Various Claimants (2020)

Barclays Bank hired a doctor to carry out health examinations for potential new employees. The doctor worked from an independent medical practice and set the appointments up based on his own diary, but did so at the request of Barclays and completed a medical form provided by the bank. During the exams, the doctor sexually assaulted several people, who then sued the bank under vicarious liability.

Held: the court confirmed that the test of employment status is whether there is a relationship ‘akin to employment’. This means a relationship ‘like employment’. In this case, it was held that there was no relationship akin to employment between the doctor and the bank.

Christian Brothers (2012)

The ‘Christian Brothers’ (or the Brothers of the Christian Schools) was a religious order which provided teachers to work in schools for vulnerable children. While teaching in one school, some of these teachers were alleged to have sexually assaulted 170 boys. The question was whether members of a religious order are ‘employees’ of that order for the purposes of vicarious liability.

Held: the court held that the Christian Brothers institute was liable and laid out five public policy reasons why it might sometimes be fair to impose vicarious liability on an organisation that is not an employer in the traditional sense. The five policy reasons are:

The employer is more likely to be able to pay compensation
The employee was likely to have been acting on behalf of the employer
The employee’s activity was probably part of the employer’s business
The employer created the risk of the tort by asking the employee to do the work
The employer will have had some control over the employee’s work.

Barclays Bank (2020) makes clear that this is not a five-part test of employment status. But these factors might be helpful in deciding whether a relationship is one ‘akin to employment’.

MXX v A Secondary School (2022)

A former pupil of a secondary school went back to his former school to do a week of work experience in the PE Department. While there, he met a female pupil and, after the week of work experience was over, contacted her on social media and subsequently had a sexual relationship with her. The question was whether the relationship between the former pupil and the school was one ‘akin to employment’.

Held: the court held that the work experience placement did create a relationship akin to employment, because the tortfeasor did some of the same tasks as a teacher or teaching assistant, was subject to the school’s safeguarding policies and was asked by pupils to refer to him formally as “Mr ___”. However, the claim then failed on the second part of the vicarious liability test.

Teaching and revision resources on vicarious liability

Vicarious liability: 'close connection'

Lister v Hesley Hall (2001)

The warden of a school for vulnerable children was convicted of sexually assaulting a number of pupils. Some of the pupils brought an action against the school. The school argued that the warden had been acting well outside of what he was employed to do, so they should not be held vicariously liable.

Held: the House of Lords held that there was a ‘close connection’ between the torts and what the warden was employed to do, because the assaults happened in the school and while he was supposed to be looking after the children.

Mohamud v WM Morrison (2016)

A petrol station attendant launched a brutal racist attack on a customer on the forecourt. The supermarket defended itself on the basis that this was well outside of the purpose of his employment and the terms of his contract so they could not be liable.

Held: the Supreme Court applied the test from Lister to hold that there was a ‘close connection’ between the employment and the tort. However, the judgement created some confusion by saying that the test is whether there is ‘sufficient connection’ to ‘make it right for the employer to be held liable under the principle of social justice’, which seemed to be easier to satisfy than the original test from Lister.

WM Morrison v Various Claimants (2020)

A disgruntled supermarket employee had access to payroll data for submission to an auditor. He made a copy of the data and uploaded it to a file-sharing website, causing lots of employee data to be obtained illegally by third parties. Several of the employees whose data was breached brought an action against the supermarket.

Held: the Supreme Court reinforced the original ‘close connection’ test from Lister. It was held that there was not a close connection between the tort and the employment, because the tortfeasor was not ‘furthering his employer’s business’ when he committed the tort and was actually pursuing a personal vendetta.

Rose v Plenty (1976)

A dairy had explicitly told its milkmen not to allow children to help them on their milk rounds. One milkman ignored this instruction and the boy helping was injured due to the milkman’s negligence while driving. The dairy was sued, but defended itself on the basis that they had specifically told their milkmen not to use child helpers.

Held: the court held that the employee having acted against orders did not provide an automatic defence to the claim. The milkman was still doing his job at the time of the negligence, even though he was ignoring instructions. The court also pointed out that, despite the instruction, the dairy was gaining a benefit from its milkmen ignoring the instruction not to use helpers because it made their work faster.

Century Insurance v Northern Ireland Transport Board (1942)

A petrol tanker driver lit a cigarette and threw the match onto the ground while he was delivering petrol to a forecourt. This caused an explosion, damaging both cars and houses. The employer defended itself on the basis that the driver was doing his job so badly at the time that they could not be held vicariously liable for the damage.

Held: the court held that the driver was still doing his job, even though he was doing it so badly as to be negligent.

Beard v London General Omnibus Co. (1900)

A bus conductor was employed by the bus company to collect fares. Without permission from his employer, the conductor drove a bus and injured the claimant while doing so. The company defended itself on the basis that the conductor was only supposed to collect fares and was not authorised to drive the bus.

Held: the court held that the conductor driving the bus was far enough outside of the course of employment that the employer was not vicariously liable.

Teaching and revision resources on vicarious liability