PART FOUR

THE LAW OF TORTS: AN

INTRODUCTION
 INTRODUCTION TO PART FOUR

The word 'tort' is derived from the Norman French from polluting the area with smoke and smells in
meaning 'wrong'. In English law 'tort' denotes which the plaintiff(s) lives. (Tort ofNuisance)
certain civil wrongs as distinct from other civil • For damages by the plaintiff for loss caused to
wrongs such as breach of contract and breach of a him/her by being tricked by the defendant into
trust, and from criminal wrong. The commission of a buying worthless shares. (Tort of Deceit)
tort will entitle a person who has suffered a wrong • For damages by the plaintiff for injury to his/
or injury to seek redress in the civil courts. Lord her reputation caused by a false accusation
Denning says of the 'province of tort' that it 'is of misconduct or incompetence made by the
to allocate responsibility for injurious conduct'. defendant. (Tort ofDefamation)
However , it is difficult to find a complete or
This random sample of cases indicates the
watertight definition of tort; in fact there are two
extraordinary diversity of tort or torts in the
schools of thought on whether we should speak of a
common law system. It is not surprising therefore
law of tort or of a law of torts. It may therefore be
that there are two schools of thought: one being
helpful to commence this chapter with a random
whether to define a law of tort by acknowledging one
selection of situations which indicate the types of
general principle of liability in tort that all harm is
case in which a claim in tort can be made. These are:
actionable in the absence of just cause or excuse; or
• For damages for death, physical injuries or nervous whether to recognise a law of torts: that there are a
shock to the plaintiff victim (or his/her next of kin number of specific torts, distinguishable from each
in the event of death) against a negligent party of a other, and that damage or injury must be brought
road accident. (Tort ofNegligence) within the scope of one of these torts according to
• For damages for monetary loss caused to the its common law principles. Professor P.H. Winfield's
.plaintiff because of reliance on inaccurate or well-known definition of the law of tort emphasises a
misleading advice carelessly given by a profes- general principle of liability: 'tortious liability arises
sional person in the course of business with from the breach of a duty primarily fixed by law;
another. (Tort of Professional Negligence) such duty is towards persons generally, and its
.• For an injunction of ejectment by the plaintiff breach is redressible by an action for unliquidated
owner or occupier of property to serve on damages.' However Salmond and Heuston, the
someone who has come on to his/her property writers of a law text significantly entitled On
without his/her express or implied consent. (Tort the Law of Torts question the existence of one
of Trespass to Land) fundamental general principle and offer a much
• For damages and/or a court order to return broader definition: 'a tort consists of some act done
goods belonging to the plaintiff wrongfully taken by the defendant whereby he has without just cause
or interfered with by the defendant. (Tort of or excuse caused some form of harm to the plaintiff.
Trespass to Goods) Th ey are of the view 'that there are a number of
• For damages and/or a court order of restraint by specific rules prohibiting certain kinds of harmful
the plaintiff for a common assault made against activity, and leaving all the residue outside the
him/her by the defendant. (Tort of Trespass to the sphere of legal responsibility'. Lord Salmond appears
Person) further to complicate the matter by his reference to
• For an injunction of prohibition by the plaintiff(s) what the law of torts is not rather than what it is: 'a
to serve on the defendant to prevent him/her civil wrong for which the remedy is a common law
204 A-LEVEL LAW IN ACTION

action for unliquidated damages and which is not ex- an introduction to outline the various standards of
clusively the breach of contract or the breach of trust conduct for tortious liability and also the general
or merely equitable obligation.' defences in tort before examining the specific torts
The authors of this text take the latter view that themselves.
maintains there are a number of specific torts and
that unless the damage or injury can be brought
within the scope of one or more of these torts there Various standards of conduct
is no remedy, so that we should therefore speak of a
law of torts. Standards of conduct for tortious liability may rest in
Nonetheless, there are some fundamental features some instances upon the state of mind of the defen-
of definition common to all torts. They are: dant and be regarded on the basis of
the objective test of the 'reasonable man' in the
1 Duty. Tortious liabilityis based upon a breach of a
circumstances at the time of the commission of the
duty and, unlike contract which is fixed by
tort. The mental elements variously are intention to
agreement of the parties, is fixed by law. The
harm, negligence, and the motive of malice.
breach of duty is recognised by law as actionable.
Some torts, such as trespass to the person, fraud
2 A tortious duty is owed to persons generally, not
and injurious falsehood , specifically require an
from an exclusive agreement entered into by the
intention of the wrongdoer to be proven. In criminal
parties (such as a contract).
law, the proof of intention (along with recklessness
3 A tort gives rise to a civil action for unliquidated
and gross negligence) is vital to criminal liability;
damages, that is, not a fixed sum but a sum
with the exception of crimes of strict liability, the
decided by the court at its discretion in order to
mens rea, the guilty mind, must be proven.
compensate the plaintifffor the loss he or she has
Intention in tort is another matter; here intention
suffered.
refers to the defendant's knowledge that the con-
However, as already indicated above, the law of sequences of his action are inevitable: whether
torts is an incomplete system. It only recognises loss directly or indirectly incurred as in trespass;
in specific areas: there are some losses for which it is whether desired or undesired, and whether fore-
not possible to compensate an injured person. Even seeably his conduct will bring about a harmful
though harm is done to a person the law does not result to the plaintiff - the tort of negligence relies
recognise a general right to compensation or seek to specifically on this latter principle.
provide a remedy. This is described as damnum sine It should be noted here that the expression
injuria (damage without legal wrong). For example, 'negligent' may not always apply specifically to the
the law does not recognise damage where it is caused tort of negligence; it has a different meaning in other
by a person authorised to act under statutory author- contexts, of failure by a person to comply with a
ity, or where competition from one trader causes strict duty laid upon him by law whereby the person
another trader economic loss and he is forced out of in question had his mind wholly or partly diverted
business. Conversely, there can be a situation where from what he was doing. This applies to certain torts
there is a legal wrong but no loss or damage has been where a person has done something potentially
caused. This is described as injuria sine damno. harmful and is required to take responsibility for his
Certain torts, such as trespass and libel, are action- actions even though he may have acted
able per se (that is, actionable in themselves). In these unintentionally and the consequences of his conduct
cases no loss need be proved or alleged. were unforeseeable. Examples are the rule in
Rylands v Fletcher (1868) - a tort of strict liability
(see below, page 243), and such legislation as the
Fundamentals of tortious liability Nuclear Installations Act 1965 with regard to unlaw-
ful contamination of persons and of the environment.
When looking for a standard of blame or culpability The presence or absence of the mental element of
in the law of torts there is no one clear test. In his malice in tort is, generally speaking, irrelevant.
commendable book , The Law of Torts, W.V.H. A malicious motive will not normally make an
Rogers writes: 'There is no single standard of fault otherwise lawful act unlawful:
... only a series of points along a scale of conduct
with liability only for intentionally caused harm at Bradford Corpn v Pickles (1895)
one end and for purely accidental and even unfore- Pickles, with the intention of forcing the
seeable harm at the other.' This leads us by way of corporation to purchase his land, made excava-
 INTRODUCTION TO PART FOUR 205

tions on the land and abstracted some of the Although it is easy to see that in both these cases
water that normally would have flowed into there has been an intentional act by one person to
a nearby reservoir owned by the Corporation. thrust a sharp implement into the body of another
The Corporation sued in nuisance but failed. person, we instinctively judge the first act to be an
The House of Lords ruled that Pickles' act of unacceptable battery on one person by another,
excavating his own land was lawful, even though whereas the surgical battery is quite acceptable. The
his intention may have been malicious. Lord fundamental difference is the absence or presence of
McNaghten said: 'It is the act, not the motive for 'consent'; one does not normally consent to being
the act that must be regarded.' attacked with a knife in the streets whereas one is
generally happy to consent to be operated on by a
Although in most torts it is unnecessary for the
surgeon whose duty it is to cure the patient. Without
plaintiff to prove malice in order to succeed, there are
the patient's consent, the surgeon could be liable in
some exceptions to this general rule. In order to
the tort of a trespass to the person. The plaintiffs
succeed in an action, a plaintiff must prove malice in
assumption of risk, or 'consent' to an intentional act
the torts of maliciousprosecution and maliciousfalse-
done to him or her, provides a defence for the
hood. Although malice is not an essential element in
defendant where normally a duty of care would be
the tort of nuisance, there are situations where the
owed. The consent must be freely given. Consent
plaintiff will succeed if he shows that the defendant
obtained by force or fraud will not stand the test.
acted maliciously by way of unreasonable behaviour
Other examples occur in games and sporting
which otherwise would be reasonable (see the cases
activities. Participant boxers or hockey players run
of Christie v Davy (1893) and Hollywood Silver Fox
the inherent risk of being injured when they engage
Farm Ltd v Emmett (1936), below page 241) . Also, in
in their respective sports. In these cases the partici-
the tort of defamation, proof of malice by the plaintiff
pants impliedly agree to somebody doing to them
may destroy the respective defences of qualifiedprivi-
not an intentional act of harm - that would otherwise
lege and fair comment.
be a tort of trespass to the person - but an accidental
act of injury. l'

The general defences in tort In Simms v Leigh Rugby Football Club (1969)
the plaintiff, a rugby player of a visiting team,
Certain defences apply to all torts and these are during the course of the game was injured by
often referred to as general defences. There are in being thrown towards a concrete wall as he was
addition certain special defences which are available tackled by the defendant, a member of the home
to particular tortious actions; an example of one such team. The distance of the wall from the touchline
particular defence is the prevention of trespass to wall was within the League's byelaws. It 'was
land by the use of reasonable force (see below, page held that the plaintiff must have willingly con-
233) . General and particular defences may be raised sented to the risks involved in playing on that
together in any action to which they are appropriate. field. The defendants, whose ground complied
Here we shall consider the general defences; par- with the byelaws of the Rugby League, were
ticular defences will be discussed in the context of found not to be liable either under the Occupiers'
particular torts. Liability Act 1957 or in general negligence.
Nonetheless, the law takes a stronger line against
Valenti non fit injuria ('no injury can be unnecessary violence in certain sports:
done to a willing person') In Condon v Basi (1985), the defendant made
a late and reckless tackle upon the plaintiff
A person who has consented expressly or impliedly who suffered a broken leg as a result, and the
to the commission of a tort and is injured may not defendant was sent off the field.
sue on it. To illustrate the meaning of this consider The Court of Appeal upheld the decision of the
these two cases: county court judge who had awarded damages for
(a) A stranger comes up behind you in the street the injuries sustained by the plaintiff, ruling that
and unexpectedly thrusts a knife into your back. participants in competitive sport owed a duty of
(b) You undergo medical treatment for appen- care to each other to take all reasonable steps not
dicitis in a hospital; a surgeon cuts your body with to cause injury to other participants to which they
a scalpel. could not reasonably have expected to consent.
206 A-LEVEL LAW IN ACTION

Spectators to sports meetings also voluntarily the risk of injury and impliedly waived the right to
undertake to run similar risks although, for there to claim for injuries caused by the pilot's negligence.
be a defence of volens, reasonable steps should be Less certain are 'rescue cases' where one person
taken by the organisers of sports meetings to puts himself or herself at risk in an attempt to save
prevent risk of injury to spectators. This was decided another from a perceived danger. The distinguishing
in Hall v Brooklands Auto-Racing Club (1933). factors seems to rest on the degree of negligence of
the defendant (Sims v L. Goodall & Sons Ltd (1966))
Hall, a spectator at a car race meeting, was one and the degree of foolhardiness of the plaintiff and
of two spectators who were killed by a car which whether the plaintiffacts under a legal duty or moral
shot over the railings after a collision. It was the duty (Haynes v Harwood (1935) and Chadwick v
first time that a car had gone through the rail- British Railways Board (1967)). (See Student
ings. The court held that the type of danger to Research, Question 2 below.)
spectators was inherent in the sport and that
Hall, who had paid for admission to see the
races, had consented to the risks of such an acci- Mistake
dent. The defendants could therefore rely on the
defence of volens. They also had taken adequate The general rule is that mistake, whether of the law
precautions to protect the spectators by putting or of fact, is no defence in tort. A defendant cannot
up the railings. argue that he or she did not know the law relevant to
his or her case. The maxim ignorantia legis non
In order to substantiate a defence of volenti nonfit excusat (ignorance of the law is no excuse) applies.
injuria a defendant must not only show that the In respect of a mistake of fact, there are some
plaintiff knew of the risk but that he voluntarily exceptions to the rule. They are:
consented to run the risk. However, the notion of
• Malicious prosecution. If a police officer or private
willingness to run a risk is somewhat vague in many
prosecutor commences a prosecution under the
cases and the courts appear to exercise considerable
mistaken belief that the plaintiff is guilty but the
discretion. Perhaps a less surprising example is the
plaintiffturns out to be innocent, this will provide
refusal to apply the defence in cases involving
a defence to an action for malicious prosecution.
passengers who knowingly sit in a vehicle driven by
• False imprisonment. If a police officer, without a
a drunken driver, or in an aircraft with a drunken
warrant, arrests the plaintiffin the mistaken belief
pilot as in Morris v Murray and another (1990) where
of reasonable suspicion that a person has com-
the Court of Appeal ruled that a passenger who
mitted an arrestable offence, the police officer is
voluntarily embarked on a pleasure flight in a light
not liable for false imprisonment. The police
aircraft flown by a pilot who he knew had consumed
officer has to show he had grounds for his belief.
a large quantity of a alcohol, was capable of appre-
ciating the dangerous nature and extent of the risk A trespass to land is actionable per se: so a trespass
he was taking. He thereby was volens: he accepted on to land which the trespasser mistakenly but

STUDENT RESEARCH
1 'The defence of volenti non fit injuria is applied in negligence. The rescuer knowingly faces the
the case of road users, who daily impliedly prospect that he may suffer damage from his
consent to the risk of harm arising from road and action.
traffic conditions, however they do not consent to
Can the defence of volens, the assumption of risk,
the risk of negligent harm' (Holmes v Mather
succeed in such cases? Using any text on Torts or
(1875)). Explain this distinction. Examine the role
the Law Reports, look up the following cases for
compulsory insurance cover for drivers has in this
the answer:
context when making a claim for legal damages.
Haynes v Harwood (1935)
Chadwick v British Railways Board (1967), and
2 Imagine a rescue case, where the plaintiff
Cutler v United Dairies (London) Ltd (1933).
is injured while heroically responding to the
ryour tutor may suggest alternative authorities.)
defendant who is in some danger due to his own
 INTRODUCTION TO PART FOUR 207

honestly believes belongs to him, or he believes he possibility' (Greenock Corpn v Caledonian Railway
has right of entry to, can be liablefor trespass. Co (1917)) . An event can be an Act of God only if it is
caused by natural forces without human inter-
vention. Damage caused by a lightning strike or
Self-defence excessive flooding are common examples . See the
rule in Rylands v Fletcher below, page 243.
The courts are always prepared to take into account
a defence of self-protection. A person may use
reasonable force having regard to all the circum- Statutory authority
stances to protect persons (oneself and others) and
property. The amount of force must not be It is a defence to an action in tort to show that a
excessive. This defence particularly applies to statute, or subordinate legislation, authorises, either
trespass and occupiers' liability. Also proof of absolutely or conditionally, the alleged wrong.
damage is not necessary. Where the authority is imperative it is absolute: for
example, in Vaughan v Taff Vale Railway Co (1860) a
railway, authorised by statute, ran across the
Necessity plaintiffs land; when sparks from the engine set fire
to the plaintiffs trees the company was found not to
A defendant may rely on this defence in instances
be liable. Where the authority is permissive, it is
when he or she may not have been under threat, as
conditional: this is illustrated in Metropolitan District
in self-defence, but nonetheless took tortious action
Asylum Board v Hill (1881). A hospital authority,
in order to protect himself or herself or another from
empowered by statute to build an isolation hospital
unfortunate circumstances he or she could foresee
for smallpox patients, made a decision to erect it in a
arising. Examples of such instances are: trespassing
residential district where the residents claimed it
on to another's land to prevent the spread of a fire,
caused a nuisance because of danger of infection.
throwing another's property overboard in order to
The court granted an injunction on the basis that the
save a ship, forcing entry into a stranger's vehicle in
statutory authority was permissive: the choice of site
which the driver appears to be suffering a heart
created a public nuisance .
attack, or, as in the case of Leigh v Gladstone (1909) ,
force-feeding a suffragette on hunger strike in
prison to prevent her death. The defence of limitation of tortious actions
necessity can succeed even if it turns out there
The LimitationAct 1980repealed the LimitationActs
was no danger. The test is that the damage was
of 1939, 1963 and 1975 and is now the major statute
reasonably foreseeable by the defendant.
governing limitation of an action . The 1980 Act
provides that an action in tort must be brought
Inevitable accident within six years of the date on which the right of
action accrued. It should be noted that there are
This defence is concerned with the argument that specific exceptions to this general rule.
the tortious action is one that was not intended and Section 2 of the 1980Act continues the rule prior
could not have been prevented by using ordinary to the Act that actions for negligence, nuisance and
care and skill. The defence succeeded in Stanley v breach of statutory duty must be brought within
Powell (1891). While out shooting game the defen- three years from the date at which the cause of
dant accidentally shot the plaintiffwhen by complete action accrued, or the date of the plaintiffs know-
mischance the pellet from his gun ricocheted on to a ledge whichever is the later.
tree and hit the plaintiff. The harm arose from some Section 33 of the 1980Act enables the courts to ex-
unusual occurrence that was not foreseeable at the ercise discretionary powers to extend the time limits
time the action took place. in respect of actions for personal injury or death ,
having regard to the circumstances of the case.

ActofGod
Parties in the law of torts
This defence is available 'in circumstances which no
human foresight can provide against, and which Who can be sued in the law of Torts? As a general
human prudence is not bound to recognise the rule anyone of full capacity may be sued in tort. The
208 A-LEVEL LAW IN ACTION

categories of persons whose capacity to commit a office expires; the latter then may be sued at any
tort is limited are: time between recall and their departure from the
jurisdiction.

The Crown and its servants

Judicial immunity
The Crown consists of the Monarch and her
ministers, together with central government A judge enjoys absolute .immunity for acts in his
departments, staffed by civil servants, the armed judicial [Link] immunity appears to extend to
forces and the Privy Council. Prior to 1947 the justices of the peace when acting within their
common law maxim 'The King can do no wrong' jurisdiction (Law v Llewellyn (1906)) . Counsel and
made it impossible to sue the Crown or its servants witnesses also have immunity in respect of matters
in tort. Since the Crown Proceedings Act 1947 the in court and surrounding court cases in which they
Crown in its public capacity shall be liable in tort in are concerned.
the same way as the Queen's subjects, although s 40
preserves the immunity of the Monarch in a
personal capacity from any liability in law. Action Corporations
may be brought against the government department
concerned, or when in doubt, against the Attorney A corporation as an artificial person can sue for any
General. appropriate tort committed against it. Clearly, it
The Crown is not liable for torts committed by would be impossible to have some torts, such as
local authorities, the police or Post Office. Local assault, committed against a corporation.
authorities are liable for their own torts. The Police A corporation can be sued in tort. Generally
Act 1964, s 48(1) provides that the chief officer of speaking torts committed by corporations have to be
police for any police area is liable for the torts of ultra vires (outside its powers) . Thus, the law
police officers, for example for a 'wrongful arrest'. distinguishes between the corporation's express and
Any damages and costs awarded in a tortious action non-express authority. A corporation will only be
are payable out of police funds. The Post Office, held liable if an employee or agent engages in an
although a public authority, is not an agent of the ultra vires activitywith express authority; where the
Crown. Liability of the Post Office and its servants is authority has not been expressly given, then
solely limited to loss of or damage to inland the corporation is unlikely to be held liable. A
registered postal packets (Post Office Act 1969, corporation may also be liable for an intra vires activ-
s 30), it does not include anything done or omitted to ity under the principles of vicarious liability for the
be done in regard to anything in the post or for torts committed by employees and agents in the
failure to collect the post (s 29). course of their employment.

Foreign sovereigns and ambassadorial Unincorporated associations

staffs
Associations such as clubs and societies have no
Normally, the heads of other sovereign states are independent legal personality; however, the organ-
immune from actions in tort. Similarly, High isation managers, committee or trustees can be held
Commissioners of Commonwealth countries, vicariously liable for torts committed by their
ambassadors of foreign countries and represent- members and be liable as 'occupiers' for any person
atives of certain international organisations, injured while on their premises (see under
members of their families and some of their em- Occupiers' Liability) . Otherwise individual members
ployees, enjoy immunity during their term of office are liable for their own torts.
(Diplomatic Privileges Act 1964) . A full list of the
privileged persons is maintained by the Foreign
Office. Where a person with immunity commits a Trade unions
serious tort he or she may be dealt with or removed
by the officials of the country concerned. Not Before the implementation of the Trade Union Act
immune are some less senior diplomats and all 1984 and subsequent legislation, the trade unions
ambassadorial personnel at the point their term of enjoyed wide-ranging statutory immunity if they
 INTRODUCTION TO PART FOUR 209

could show they were 'acting in contemplation or requisite intention required to commit a particular
furtherance of a trade dispute' (Trade Union and tort.
Labour Relations Act 1974, s 13), but now trade
unions are liable for torts in respect of acts of induc-
ing a person to break his employment contract or Spouses
interfere with its performance. The exception is
where industrial action is authorised or endorsed by Husbands and wives may sue a third party and be
a majority vote by way of a properly conducted sued independently of each other as if they were not
secret ballot. The industrial action must be aimed married, unless they are tortfeasors in an action.
only at their own employer. Secondary action, that They may also sue each other; however, the court
is, against an employer who does not employ the has powers to stay an action if it appears that no sub-
workers involved in the dispute, makes the unions stantial benefit would accrue to either party from a
liable in tort for damages or to have an injunction continuation of the proceedings (Law Reform
served against them. (Husband and Wife) Act 1962).

Minors Joint tortfeasors

Minors of any age are capable of being sued in tort If two or more people commit a tort jointly they will
but it is usually impracticable to claim damages from be 'jointly and severally' liable. This means they can
a minor under 16 or 18 who has no earnings. Also, in either be sued together in one action or sued alone
certain torts where the mental element of malicious in different actions. Under the Civil Liability
motive must be shown, it would be impossible to (Contribution) Act 1978 it is laid down that, if one
show that a young child's tort was activated by tortfeasor is sued by a third party and pays damages,
malice. There are some special rules relating to that one tortfeasor can claim a contribution from his
minors in the tort of negligence; for example a fellow tortfeasors.
parent can be held liable in negligence if he has
permitted or encouraged the child to commit a
wrong, however, in normal circumstances a parent Vicarious liability
cannot be held liable for the torts of his children.
A minor may sue in tort but must do so through This topic is considered in context in chapter 23.
an adult called a 'next friend'. The adult is usually a
parent or guardian or, when this is not possible, a
responsible adult.
Particular torts
Unborn children We now proceed to look at particular torts . Although
historically the tort of trespass is the oldest tort,
The Congenital Disabilities (Civil Liability) Act 1976 established in Norman times, and the tort of
provides protection for an unborn child against negligence is a more recent 20th century intro-
disablement resulting from an occurrence which duction by the courts, the following chapters will
affects the ability of either parent, usually the mother deal with the law of torts not in its historical order
during her term of pregnancy, to have a normal but giving the tort of negligence priority. This is
child. For example, where an expectant mother is because the tort of negligence has grown consider-
negligently prescribed a drug which turns out to ably in importance in recent years, its principles
have caused the child's deformity, the child, once being defined and redefined and further adapted to
born, may sue the tortfeasor, the manufacturer of meet various categories of negligence. However, one
the drug, for damages. should bear in mind that all torts having evolved
from trespass still have some basis in the historical
origins of a remedial or 'actions-base' system: for-
Persons suffering from mental disorders merly a tort was a wrong remediable by one of the
actions of 'trespass' - for direct wrongs, or 'trespass
Insanity is not a defence to an action in tort, but it upon the case' - for indirect wrongs. A plaintiffs
may prevent the defendant from forming the case must fit a particular tort.
210 A-LEVEL LAW IN ACTION

In the subsequent two chapters we shall examine negligence; causation, remoteness of damage;
the following torts and their particular defences and occupiers' liability.
remedies as follows: Chapter 13: Trespass - (t) to land; (it) to goods
Chapter 12: Negligence - Duty of care and the and wrongful interference with good s; (iit) to the
neighbour principle and its development; standard person; nuisance; strict liability and the rule in
of care and professional negligence; contributory Rylands v Fletcher, defamation.