Common Law - Tort cases

Donoghue v. Stevenson (1932)

Regarding the tort of negligence

-Legal question: who should be sued in a situation where a harmful product goes from manufacturer → seller → consumer ?

-Solution: the manufacturer should be sued because he made the product wrong, causing a harm that was forseeable, having the consumer in mind.

-Created and developed the tort of negligence

-A claim in negligence (independently of a contract) requires the claimant to prove:

• That the defendant owed him a duty of care

• That the defendant broke that duty

• That the claimant has in consequence suffered loss

-Sets up the manufacturer’s duty to the ultimate consumer for defective products

-Lord Atkin: ”You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour (…), persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

Meadows v. Khan (2021)

Regarding the claim of a tort in negligence

-Facts: Dr. Khan did not say to Mrs. Meadows that she carried the gene of hemophilia, so she went on with her pregnancy and her child was born with hemophilia and autism.

-Legal question: regards the scope of duty of the doctor, to know if it encompassed autism or not.

→ This case adopted a differently structured and controversial analysis of a claim in negligence in an obiter.

Robinson v. Chief Constable of West Yorkshire Police (2019)

Regarding the tort of negligence and the way to establish the existence of a duty of care

• First : consider precedents

• If not previously decided : analogy with the existing law

• If no analogy possible : weigh up the reasons for imposing liability to see if the presence of a duty of care is just and reasonable

NB. : finding and determining the duty of care is a question of LAW (the jury simply decide on whether or not the duty of care, once established, has been breached)

Nettleship v. Weston (1971)

Regarding the duty of care

-Facts: Weston learns to drive with Nettleship, a friend who’s a non-professional driving instructor in this situation.
Weston harms property and injures Nettleship.

-Solution:

• Damages to share between Weston (that did not meet her duty of care) and Nettleship.

• Held that a learner driver on the road owes the same standard of care as a competent, qualified driver to other road users, both passengers in the car and those outside the car.

→ Controversial case

Fairchild v. Glenhaven Funeral Services Ltd

Regarding the establishment of a causal link between the breach of duty of care and the damage

-Facts: Claimant suffering from lung cancer due to the exposure to asbestos dust at work, but had been employed in more than one employments in which he’s been exposed to it.

-Solution: As the causation link could not scientifically be proven to know which employer asbestos caused the cancer, causation is established against BOTH employers, putting aside the normal rule for causation (which would have been to prove the causation link for each exposition to asbestos).

Barker v. Corus UK Ltd (2006)

Regarding the establishment of a causal link between the breach of duty of care and the damage

-Precisions regarding of the solution in Fairchild v. Glenhaven Funeral Services Ltd by saying the exception set by this case only applies when :

• The injury is caused by a single agent

• The difficulty of proof of causation is a result of the limitations of science

-Underlines that the liability in such a situation case is not joint: each defendant is liable for the proportion of the total damage
(Except for cases regarding mesothelioma caused by exposure to asbestos : there’s now joint liability according to Compensation Act 2006)

Durham v. BAI (Run Off) Ltd (2012)

Regarding the establishment of a causal link between the breach of duty of care and the damage

-Tackles the “risk” regarding liabilily in situations such as in Fairchild v. Glenhaven Funeral Services Ltd and Barker v. Corus UK Ltd (2006) :

→ the defendant is not being made liable for the risk he created but for the injury (because it’s only with the actual injury that the tort is committed : not with the sole risk that it could cause an injury)

The Wagon Mound (1961)

Regarding remoteness of damage

-Before that case : test under which the defendant must pay for all the damage he causes by his breach of duty

-Since this case : in the tort of negligence, the defendant is liable only for such of the claimant’s damage as is of a kind that the defendant could reasonably have foreseen at the time of his breach of duty

→ because liabilty cannot be infinite

Morris v. Murray (1990)

Regarding the defence of volenti non fit injuria

-Case where this defence was successful

-Facts and outcome: a passenger in a light aircraft could not sue for personal injury caused by the negligent flying of the aircraft, since he chose to go on the flight in the knowledge that the pilot had been drinking heavily (17 whiskies…)

→ but is quite an extreme case

Patel v. Mirza (2016)

Regarding the defence of illegality

-Before this case : general rule that a court will not allow a claimant a remedy which requires him to rely on an illegal act.

-Since this case : rejection of the underlying basis of the previous rule.
Now the claimant’s own illegal conduct does not debar his civil claim unless enforcing the claim would be “harmful to the integrity of the legal system”, by checking :

• The underlying purpose of the rule which makes the act illegal

• Whether denial of the tort claim would be a proportionate response to the illegality

… all while bearing in mind that punishment is a matter for criminal courts

Ultramares Corporation v. Touche (1931)

Regarding the scope of the tort of negligence

-Evokes the “floodgate” problem, which is a risk of “liability in an indeterminate amount for an indeterminate time to an indeterminate class.”

→ reason why we assume certain interests are more deserving of protection than others (which is a policy question), and why there’s a need to restrain the scope of the tort of negligence by imposing restrictive tests.

Stovin v. Wise (1996)

Regarding the absence of a duty of care regarding the defendant’s omission to act

-There is no duty of care regarding omissions because:

• In political terms: invasion of individual freedom to impose a duty to rescue/protect
  → technically, this question should a matter for the legislature

• In moral terms: why should one be held liable rather than another?

• In economic terms: there is no justification for requiring a person who is not doing anything to spend money on behalf of someone else

Alcock v. Chief Constable of South Yorkshire Police

Regarding secondary victims of psychological harm/nervous shock

-Facts: during a match, an overcrowding incident/stampede occured, leading to 95 deaths and 400 injuries. The South Yorkshire Police were responsible for crowd control.
16 actions were filed by individual who were not in the immediate area of the disaster, but had close relationships with the victims, thus claiming nervous shock.

-Legal question: were those 16 secondary victims owed a duty of care?

-Solution: For a claim to be successful, it needs to be reasonably foreseeable that someone in the plaintiffs’ position could suffer psychiatric injury due to the disaster, according to the proximity of relationship.

→ however, some dismissals by the court of appeal, saying there wasn’t a close enough relationship, can be seen as unreeasonable (for example, regarding a claimant who lost 2 brothers)

Paul v. Royal Wolverhampton NHS Trust (2024)

Regarding secondary victims of psychological harm/nervous shock

-Cases involving secondary victims who witness accidents involving their relatives cannot be extended by analogy to cases involving those who witness the death of their relatives from a medical condition which a doctor has negligently failed to diagnose.
→ why ? Because there is no sufficient proximity between the doctor and the relatives: the doctor doesn’t ought to have in contemplation members of the patient’s close family while caring for a patient.

-Therefore: only secondary victims that were present at the scene of the accident can recover damages for nervous shock.
→ Such a restriction is justified by a “need to restrict the class of eligible claimants to those who are most closely and directly connected to the accident, which the defendant has negligently caused”

N.B. : in any case, the family members that are executors of the deceased can still bring a claim in the deceased name, instead of their own.

Hedley Byrne & Co. Ltd v. Heller & Partners (1963)

Regarding the loss caused by reliance on statements made carelessly

-There could be a duty of care in making statements, but it should be closely defined. The defendant must have:

• Assumed a responsibility to the claimant for the accuracy of the information

  OR

• Provided the information to the claimant for a particular purpose

-Evokes the difference between negligent acts and negligent words (not really important)

→ case which is used to define the duty owed by professional advisers, and which has given rise to later cases, such as

-Caparo Industries plc v. Dickman, in which a test is deducted from Hedley to know if the necessary relationship between the maker of a statement or giver of advice (“the adviser”) and the recipient who acts in reliance upon it (“the advisee”) exists in order to get recovery from an economic loss caused by the careless statement

Caparo Industries plc v. Dickman

Regarding the loss caused by reliance on statements made carelessly

-Facts: inaccurate statement made by a company’s auditor about the company’s accounts. A shareholder bought more shares to take over the company, in reliance on the accounts (making a loss when the inaccuracy was discovered).

-Solution: the auditors did not owe a duty of care to the claimant even though it was forseeable that existing shareholder, like the claimant, might buy more shares and suffer loss if the statement was inaccurate

-Test deducted from Hedley Byrne to identify the existence of the necessary relationship between the maker of a statement or giver of advice, and the recipient who acts in reliance upon it:

• i) The advice is required for a purpose made known to the adviser at the time the advice is given

• ii) The adviser knows (actually or not) that his advice will be communicated to the advisee

• iii) It is known (actually or not) that the advice so communicated is likely to be acted upon by the advisee for that purpose

• iv) It is acted upon

Murphy v. Brentwood District Council

Regarding the duty of care not to cause economic loss

-Lord Oliver: “The infliction of physical injury to the person or property of another universally requires to be justified. The causing of economic loss does not. If it is to be categorised as wrongful it is necessary to find some factor beyond the mere occurrence of the loss and the fact that its occurrence could be foreseen.”

→ limitation on which economic loss can be recoverable

Spartan Steel v. Martin

Regarding the recovery of economic loss

-Facts: electricity cable negligently cut by the defendant’s contractor, cutting off power for the claimant’s factory. Claimant had to throw away ingots that ere being processed, and suffered a loss as being unable to process other ingots in the meantime.

-Solution: The defendant was liable for the damage to the furnace itself and to the metal which was in the furnace (and the profit on it) but not for the profits that were lost on the four loads of metal that could not be processed: that metal was not physically damaged.

Hunter v. Canary Wharf (1997)

Regarding the tort of private nuisance

-Facts: residents of an area claimed the Canary Wharf tower caused a nuisance by interfering with television reception and generating excessive.

-Solution: interference with television reception is not a nuisance and those affected by the dust could not bring an action.
Because claimants must have an interest in land to bring such a tort !! The property right is what’s being protected.

Miller v. Jackson

Regarding the tort of private nuisance

-Facts: Village that had a cricket ground, next to which houses were built. Their inhabitants were disturbed by the cricket club’s activity. One inhabitant asked a judge to make the activity stop, despite offers of the club to pay for security devices.

-Legal questions: are the defendants liable for negligence and/or nuisance? Should the court grant the injunction?

-Solution: the cricket club is liable for negligence and nuisance. Balance of interest between the club (public interest) and the private interests of the neighbours.
The only way the latter won’t get hurt, is for the cricket to stop being played (so injunction granted).
Doesn’t matter if the claimants came to a nuisance (meaning the disturbing activity existed prior to their arrival).

Coventry v. Lawrence

Pas sûre de la solution

Regarding the tort of private nuisance

-Facts: Claimants bought a bungalow next to a stadium and a racing track, and sought relief from the nuisance caused by their noise.

-Legal questions: is it a valid defence for the defendants to say the claimants came to a nuisance? Should the court grant an injunction of award damages?

-Solution: “coming to a nuisance” is not enough of a defence, the timing is not relevant.
To choose between damages or an injunction, the court should consider:

• The facts of the case

• The extent of the nuisance

• The consequences for both parties (including the public interest)

Rylands v Fletcher (1868)

Regarding the rule in Rylands v. Fletcher

-A person who brings onto his land and keeps something that is liable to do damages if it escapes is liable for the damage caused if it escapes.

-In that case, the claimant doesn’t have to prove how escape occurred/the defendant’s fault → strict liability

-Restrictions made in this case and following ones:

• Defendant’s only liable for potentially dangerous things on his land in the course of a non-natural use of the land

• Liability only for damage which he could reasonably have foreseen might occur

• Scope of the rule in Australia: should be absorbed within the general principles of the tort of negligence rather than being a rule of strict liability

-Discussion of the House of Lords regarding this case:

• Its rule is part of the tort of nuisance (meaning it protects property rights, can be brought only by someone having an interest in the land)

• It serves a useful social purpose to impose strict liability sometimes.

Berkoff v Burchill (1997)

Regarding the tort of defamation

-Facts: two articles were published about the claimant, a film director, basically calling him ugly.

-Legal question: are these statements defamatory?

-Solution: the appeal is dismissed, as it should be a jury who determines whether the words were defamatory or not.

→ A statement which is merely abusive and insulting is not necessarily defamatory. What matters is to see if the reputation has been lowered, even slightly.

Byrne v Deane (1937)

Regarding the tort of defamation

-Facts: a notice was put up on the wall of a golf club which said that the claimant had informed the police about some illegal gambling machines in the club.

-Solution: it is not defamatory, because the general public would not think it wrong to report a crime to the police

(N.B. : the intent of calling the defendant a snitch is irrelevant, because here the terms of the statement are what’s analysed)

Derbyshire County Council v. Times Newspapers (1993)

Regarding who can sue in a tort of defamation

-Facts: a newspaper reports about a council, accusing them of corruption.

-Legal question: can a local authority sue for defamation?

-Solution: appeal dismissed, as the council should not have an action for libel as it is too damaging to free speech.

→ so… councils can’t sue for defamation.

Reynolds v. Times Newspapers (1999)

Regarding defences against a defamation claim

Establishment of a defence against defamation regarding statements made in the public interest (“Reynolds defence”)

→ this defence is now contained in the Defamation Act 2013

Blake v. Fox (2022)

Regarding the jury’s presence in a defamation trial

The judge refused an application for jury trial, saying “A return to such an inconvenient mode of trial would require the most compelling justification before the court would exercise the discretion ... to order jury trial”

(N.B.: nowadays, there is no presumption for such trials to have a jury)