PART FOURTHE LAW OF TORTS: AN

INTRODUCTION

INTRODUCTION TO PART FOUR

The word 'tort' is derived from the Norman Frenchmeaning 'wrong'. In English law 'tort' denotescertain civil wrongs as distinct from other civilwrongs such as breach of contract and breach of atrust, and from criminal wrong. The commission of atort will entitle a person who has suffered a wrongor injury to seek redress in the civil courts. LordDenning says of the 'province of tort' that it 'isto allocate responsibility for injurious conduct'.However , it is difficult to find a complete orwatertight definition of tort; in fact there are twoschools of thought on whether we should speak of alaw of tort or of a law of torts. It may therefore behelpful to commence this chapter with a randomselection of situations which indicate the types ofcase in which a claim in tort can be made. These are:

• For damages for death, physical injuries or nervousshock to the plaintiff victim (or his/her next of kinin the event of death) against a negligent party of aroad accident. (Tort ofNegligence)

• For damages for monetary loss caused to the.plaintiff because of reliance on inaccurate ormisleading advice carelessly given by a profes­sional person in the course of business withanother. (Tort ofProfessional Negligence)

.• For an injunction of ejectment by the plaintiffowner or occupier of property to serve onsomeone who has come on to his/her propertywithout his/her express or implied consent. (Tortof Trespass toLand)

• For damages and/or a court order to returngoods belonging to the plaintiff wrongfully takenor interfered with by the defendant. (Tort ofTrespass to Goods)

• For damages and/or a court order of restraint bythe plaintiff for a common assault made againsthim/her by the defendant. (Tort of Trespass to thePerson)

• For an injunction of prohibition by the plaintiff(s)to serve on the defendant to prevent him/her

from polluting the area with smoke and smells inwhich the plaintiff(s) lives. (Tort ofNuisance)

• For damages by the plaintiff for loss caused tohim/her by being tricked by the defendant intobuying worthless shares. (Tort ofDeceit)

• For damages by the plaintiff for injury to his/her reputation caused by a false accusationof misconduct or incompetence made by thedefendant. (Tort ofDefamation)

This random sample of cases indicates theextraordinary diversity of tort or torts in thecommon law system. It is not surprising thereforethat there are two schools of thought: one beingwhether to define a law of tort by acknowledging onegeneral principle of liability in tort that all harm isactionable in the absence of just cause or excuse; orwhether to recognise a law of torts: that there are anumber of specific torts, distinguishable from eachother, and that damage or injury must be broughtwithin the scope of one of these torts according toits common law principles. Professor P.H. Winfield'swell-known definition of the law of tort emphasises ageneral principle of liability: 'tortious liability arisesfrom the breach of a duty primarily fixed by law;such duty is towards persons generally, and itsbreach is redressible by an action for unliquidateddamages.' However Salmond and Heuston, thewriters of a law text significantly entitled Onthe Law of Torts question the existence of onefundamental general principle and offer a muchbroader definition: 'a tort consists of some act doneby the defendant whereby he has without just causeor excuse caused some form of harm to the plaintiff.Th ey are of the view 'that there are a number ofspecific rules prohibiting certain kinds of harmfulactivity, and leaving all the residue outside thesphere of legal responsibility'. Lord Salmond appearsfurther to complicate the matter by his reference towhat the law of torts is not rather than what it is: 'acivil wrong for which the remedy is a common law

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action for unliquidated damages and which is not ex­clusively the breach of contract or the breach of trustor merely equitable obligation.'

The authors of this text take the latter view thatmaintains there are a number of specific torts andthat unless the damage or injury can be broughtwithin the scope of one or more of these torts thereis no remedy, so that we should therefore speak of alaw of torts.

Nonetheless, there are some fundamental featuresof definition common to all torts. They are:

1 Duty. Tortious liabilityis based upon a breach of aduty and, unlike contract which is fixed byagreement of the parties, is fixed by law. Thebreach of duty is recognised by law as actionable.

2 A tortious duty is owed to persons generally, notfrom an exclusive agreement entered into by theparties (such as a contract).

3 A tort gives rise to a civil action for unliquidateddamages, that is, not a fixed sum but a sumdecided by the court at its discretion in order tocompensate the plaintifffor the loss he or she hassuffered.

However, as already indicated above, the law oftorts is an incomplete system. It only recognises lossin specific areas: there are some losses for which it isnot possible to compensate an injured person. Eventhough harm is done to a person the law does notrecognise a general right to compensation or seek toprovide a remedy. This is described as damnum sineinjuria (damage without legal wrong). For example,the law does not recognise damage where it is causedby a person authorised to act under statutory author­ity, or where competition from one trader causesanother trader economic loss and he is forced out ofbusiness. Conversely, there can be a situation wherethere is a legal wrong but no loss or damage has beencaused. This is described as injuria sine damno.Certain torts, such as trespass and libel, are action­able per se (that is, actionable in themselves). In thesecases no loss need be proved or alleged.

Fundamentals of tortious liability

When looking for a standard of blame or culpabilityin the law of torts there is no one clear test. In hiscommendable book , The Law of Torts, W.V.H.Rogers writes: 'There is no single standard of fault... only a series of points along a scale of conductwith liability only for intentionally caused harm atone end and for purely accidental and even unfore­seeable harm at the other.' This leads us by way of

an introduction to outline the various standards ofconduct for tortious liability and also the generaldefences in tort before examining the specific tortsthemselves.

Various standards of conduct

Standards of conduct for tortious liabilitymay rest insome instances upon the state of mind of the defen­dant and be regarded on the basis ofthe objective test of the 'reasonable man' in thecircumstances at the time of the commission of thetort. The mental elements variously are intention toharm, negligence, and the motive of malice.

Some torts, such as trespass to the person, fraudand injurious falsehood , specifically require anintention of the wrongdoer to be proven. In criminallaw, the proof of intention (along with recklessnessand gross negligence) is vital to criminal liability;with the exception of crimes of strict liability, themens rea, the guilty mind, must be proven.Intention in tort is another matter; here intentionrefers to the defendant's knowledge that the con­sequences of his action are inevitable: whetherdirectly or indirectly incurred as in trespass;whether desired or undesired, and whether fore­seeably his conduct will bring about a harmfulresult to the plaintiff - the tort of negligence reliesspecifically on this latter principle.

It should be noted here that the expression'negligent' may not always apply specifically to thetort of negligence; it has a different meaning in othercontexts, of failure by a person to comply with astrict duty laid upon him by law whereby the personin question had his mind wholly or partly divertedfrom what he was doing. This applies to certain tortswhere a person has done something potentiallyharmful and is required to take responsibility for hisactions even though he may have actedunintentionally and the consequences of his conductwere unforeseeable. Examples are the rule inRylands v Fletcher (1868) - a tort of strict liability(see below, page 243), and such legislation as theNuclear Installations Act 1965with regard to unlaw­ful contamination of persons and of the environment.

The presence or absence of the mental element ofmalice in tort is, generally speaking, irrelevant.A malicious motive will not normally make anotherwise lawful act unlawful:

Bradford Corpn v Pickles (1895)Pickles, with the intention of forcing thecorporation to purchase his land, made excava-

INTRODUCTION TO PART FOUR 205

tions on the land and abstracted some of thewater that normally would have flowed intoa nearby reservoir owned by the Corporation.The Corporation sued in nuisance but failed.The House of Lords ruled that Pickles' act ofexcavating his own land was lawful, even thoughhis intention may have been malicious. LordMcNaghten said: 'It is the act, not the motive forthe act that must be regarded.'

Although in most torts it is unnecessary for theplaintiff to prove malice in order to succeed, there aresome exceptions to this general rule. In order tosucceed in an action, a plaintiff must prove malice inthe torts of maliciousprosecution and maliciousfalse­hood. Although malice is not an essential element inthe tort of nuisance, there are situations where theplaintiff will succeed if he shows that the defendantacted maliciously by way of unreasonable behaviourwhich otherwise would be reasonable (see the casesof Christie v Davy (1893) and Hollywood Silver FoxFarm Ltd v Emmett (1936), below page 241) . Also, inthe tort of defamation, proof of malice by the plaintiffmay destroy the respective defences ofqualifiedprivi­lege and fair comment.

The general defences in tort

Certain defences apply to all torts and these areoften referred to as general defences. There are inaddition certain special defences which are availableto particular tortious actions; an example of one suchparticular defence is the prevention of trespass toland by the use of reasonable force (see below, page233) . General and particular defences may be raisedtogether in any action to which they are appropriate.Here we shall consider the general defences; par­ticular defences will be discussed in the context ofparticular torts .

Valenti non fit injuria ('no injury can bedone to a willing person')

A person who has consented expressly or impliedlyto the commission of a tort and is injured may notsue on it. To illustrate the meaning of this considerthese two cases:

(a) A stranger comes up behind you in the streetand unexpectedly thrusts a knife into your back.(b) You undergo medical treatment for appen­dicitis in a hospital; a surgeon cuts your body witha scalpel.

Although it is easy to see that in both these casesthere has been an intentional act by one person tothrust a sharp implement into the body of anotherperson, we instinctively judge the first act to be anunacceptable battery on one person by another,whereas the surgical battery is quite acceptable. Thefundamental difference is the absence or presence of'consent'; one does not normally consent to beingattacked with a knife in the streets whereas one isgenerally happy to consent to be operated on by asurgeon whose duty it is to cure the patient. Withoutthe patient's consent, the surgeon could be liable inthe tort of a trespass to the person. The plaintiffsassumption of risk, or 'consent' to an intentional actdone to him or her, provides a defence for thedefendant where normally a duty of care would beowed. The consent must be freely given. Consentobtained by force or fraud willnot stand the test.

Other examples occur in games and sportingactivities. Participant boxers or hockey players runthe inherent risk of being injured when they engagein their respective sports . In these cases the partici­pants impliedly agree to somebody doing to themnot an intentional act of harm - that would otherwisebe a tort of trespass to the person - but an accidentalact of injury. l'

In Simms v Leigh Rugby Football Club (1969)the plaintiff, a rugby player of a visiting team,during the course of the game was injured bybeing thrown towards a concrete wall as he wastackled by the defendant, a member of the hometeam. The distance of the wall from the touchlinewall was within the League's byelaws. It 'washeld that the plaintiff must have willingly con­sented to the risks involved in playing on thatfield. The defendants, whose ground compliedwith the byelaws of the Rugby League, werefound not to be liable either under the Occupiers'Liability Act 1957 or in general negligence.

Nonetheless, the law takes a stronger line againstunnecessary violence in certain sports:

In Condon v Basi (1985), the defendant madea late and reckless tackle upon the plaintiffwho suffered a broken leg as a result, and thedefendant was sent off the field.

The Court of Appeal upheld the decision of thecounty court judge who had awarded damages forthe injuries sustained by the plaintiff, ruling thatparticipants in competitive sport owed a duty ofcare to each other to take all reasonable steps notto cause injury to other participants to which theycould not reasonably have expected to consent.

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Spectators to sports meetings also voluntarilyundertake to run similar risks although, for there tobe a defence of volens, reasonable steps should betaken by the organisers of sports meetings toprevent risk of injury to spectators. This was decidedin Hall v Brooklands Auto-Racing Club (1933).

Hall, a spectator at a car race meeting, was oneof two spectators who were killed by a car whichshot over the railings after a collision. It was thefirst time that a car had gone through the rail­ings. The court held that the type of danger tospectators was inherent in the sport and thatHall, who had paid for admission to see theraces, had consented to the risks of such an acci­dent. The defendants could therefore rely on thedefence of volens. They also had taken adequateprecautions to protect the spectators by puttingup the railings.

In order to substantiate a defence of volenti nonfitinjuria a defendant must not only show that theplaintiff knew of the risk but that he voluntarilyconsented to run the risk. However, the notion ofwillingness to run a risk is somewhat vague in manycases and the courts appear to exercise considerablediscretion. Perhaps a less surprising example is therefusal to apply the defence in cases involvingpassengers who knowingly sit in a vehicle driven bya drunken driver, or in an aircraft with a drunkenpilot as in Morris v Murray and another (1990) wherethe Court of Appeal ruled that a passenger whovoluntarily embarked on a pleasure flight in a lightaircraft flown by a pilot who he knew had consumeda large quantity of a alcohol, was capable of appre­ciating the dangerous nature and extent of the riskhe was taking. He thereby was volens: he accepted

the risk of injury and impliedly waived the right toclaim for injuries caused by the pilot's negligence.

Less certain are 'rescue cases' where one personputs himself or herself at risk in an attempt to saveanother from a perceived danger. The distinguishingfactors seems to rest on the degree of negligence ofthe defendant (Sims v L. Goodall & SonsLtd (1966))and the degree of foolhardiness of the plaintiff andwhether the plaintiffacts under a legal duty or moralduty (Haynes v Harwood (1935) and Chadwick vBritish Railways Board (1967)). (See StudentResearch, Question 2 below.)

Mistake

The general rule is that mistake, whether of the lawor of fact, is no defence in tort. A defendant cannotargue that he or she did not know the law relevant tohis or her case. The maxim ignorantia legis nonexcusat (ignorance of the law is no excuse) applies.In respect of a mistake of fact, there are someexceptions to the rule. They are:

• Malicious prosecution. If a police officer or privateprosecutor commences a prosecution under themistaken belief that the plaintiff is guilty but theplaintiffturns out to be innocent, this will providea defence to an action for malicious prosecution.

• False imprisonment. If a police officer, without awarrant, arrests the plaintiffin the mistaken beliefof reasonable suspicion that a person has com­mitted an arrestable offence, the police officer isnot liable for false imprisonment. The policeofficer has to show he had grounds for his belief.

A trespass to land is actionable per se: so a trespasson to land which the trespasser mistakenly but

STUDENT RESEARCH

1 'The defence of volenti nonfit injuria is applied inthe case of road users, who daily impliedlyconsent to the risk of harm arising from road andtraffic conditions, however they do not consent tothe risk of negligent harm' (Holmes v Mather(1875)). Explain this distinction. Examine the rolecompulsory insurance cover for drivers has in thiscontext when making a claim for legal damages.

2 Imagine a rescue case, where the plaintiffis injured while heroically responding to thedefendant who is in some danger due to his own

negligence. The rescuer knowingly faces theprospect that he may suffer damage from hisaction.

Can the defence of volens, the assumption of risk,succeed in such cases? Using any text on Torts orthe Law Reports, look up the following cases forthe answer:

Haynes v Harwood (1935)Chadwick v British Railways Board (1967), andCutler v United Dairies (London) Ltd (1933).

ryour tutor may suggest alternative authorities.)

INTRODUCTION TO PART FOUR 207

honestly believes belongs to him, or he believes hehas right ofentry to, can be liablefor trespass.

Self-defence

The courts are always prepared to take into accounta defence of self-protection. A person may usereasonable force having regard to all the circum­stances to protect persons (oneself and others) andproperty. The amount of force must not beexcessive. This defence particularly applies totrespass and occupiers' liability. Also proof ofdamage is not necessary.

Necessity

A defendant may rely on this defence in instanceswhen he or she may not have been under threat, asin self-defence, but nonetheless took tortious actionin order to protect himself or herself or another fromunfortunate circumstances he or she could foreseearising. Examples of such instances are: trespassingon to another's land to prevent the spread of a fire,throwing another's property overboard in order tosave a ship, forcing entry into a stranger's vehicle inwhich the driver appears to be suffering a heartattack, or, as in the case of Leigh v Gladstone (1909) ,force-feeding a suffragette on hunger strike inprison to prevent her death. The defence ofnecessity can succeed even if it turns out therewas no danger. The test is that the damage wasreasonably foreseeable by the defendant.

Inevitable accident

This defence is concerned with the argument thatthe tortious action is one that was not intended andcould not have been prevented by using ordinarycare and skill. The defence succeeded in Stanley vPowell (1891). While out shooting game the defen­dant accidentally shot the plaintiffwhen by completemischance the pellet from his gun ricocheted on to atree and hit the plaintiff. The harm arose from someunusual occurrence that was not foreseeable at thetime the action took place.

ActofGod

This defence is available 'in circumstances which nohuman foresight can provide against, and whichhuman prudence is not bound to recognise the

possibility' (Greenock Corpn v Caledonian RailwayCo (1917)) . An event can be an Act of God only if it iscaused by natural forces without human inter­vention. Damage caused by a lightning strike orexcessive flooding are common examples . See therule in Rylands v Fletcher below, page 243.

Statutory authority

It is a defence to an action in tort to show that astatute, or subordinate legislation, authorises, eitherabsolutely or conditionally, the alleged wrong.Where the authority is imperative it is absolute: forexample, in Vaughan v Taff Vale Railway Co (1860) arailway, authorised by statute, ran across theplaintiffs land; when sparks from the engine set fireto the plaintiffs trees the company was found not tobe liable . Where the authority is permissive, it isconditional: this is illustrated in Metropolitan DistrictAsylum Board v Hill (1881). A hospital authority,empowered by statute to build an isolation hospitalfor smallpox patients, made a decision to erect it in aresidential district where the residents claimed itcaused a nuisance because of danger of infection.The court granted an injunction on the basis that thestatutory authority was permissive: the choice of sitecreated a public nuisance .

limitation of tortious actionsThe LimitationAct 1980repealed the LimitationActsof 1939, 1963 and 1975 and is now the major statutegoverning limitation of an action . The 1980 Actprovides that an action in tort must be broughtwithin six years of the date on which the right ofaction accrued. It should be noted that there arespecific exceptions to this general rule.

Section 2 of the 1980Act continues the rule priorto the Act that actions for negligence, nuisance andbreach of statutory duty must be brought withinthree years from the date at which the cause ofaction accrued, or the date of the plaintiffs know­ledge whichever is the later.

Section 33 of the 1980Act enables the courts to ex­ercise discretionary powers to extend the time limitsin respect of actions for personal injury or death ,having regard to the circumstances of the case.

Parties in the law of torts

Who can be sued in the law of Torts? As a generalrule anyone of full capacity may be sued in tort . The

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categories of persons whose capacity to commit atort is limited are:

The Crown and its servants

The Crown consists of the Monarch and herministers, together with central governmentdepartments, staffed by civil servants, the armedforces and the Privy Council. Prior to 1947 thecommon law maxim 'The King can do no wrong'made it impossible to sue the Crown or its servantsin tort. Since the Crown Proceedings Act 1947 theCrown in its public capacity shall be liable in tort inthe same way as the Queen's subjects, although s 40preserves the immunity of the Monarch in apersonal capacity from any liability in law. Actionmay be brought against the government departmentconcerned, or when in doubt, against the AttorneyGeneral.

The Crown is not liable for torts committed bylocal authorities, the police or Post Office. Localauthorities are liable for their own torts. The PoliceAct 1964, s 48(1) provides that the chief officer ofpolice for any police area is liable for the torts ofpolice officers, for example for a 'wrongful arrest'.Any damages and costs awarded in a tortious actionare payable out of police funds. The Post Office,although a public authority, is not an agent of theCrown. Liability of the Post Office and its servants issolely limited to loss of or damage to inlandregistered postal packets (Post Office Act 1969,s 30), it does not include anything done or omitted tobe done in regard to anything in the post or forfailure to collect the post (s 29).

Foreign sovereigns and ambassadorialstaffs

Normally, the heads of other sovereign states areimmune from actions in tort. Similarly, HighCommissioners of Commonwealth countries,ambassadors of foreign countries and represent­atives of certain international organisations,members of their families and some of their em­ployees, enjoy immunity during their term of office(Diplomatic Privileges Act 1964) . A full list of theprivileged persons is maintained by the ForeignOffice. Where a person with immunity commits aserious tort he or she may be dealt with or removedby the officials of the country concerned. Notimmune are some less senior diplomats and allambassadorial personnel at the point their term of

office expires; the latter then may be sued at anytime between recall and their departure from thejurisdiction.

Judicial immunity

A judge enjoys absolute .immunity for acts in hisjudicial capacity.This immunity appears to extend tojustices of the peace when acting within theirjurisdiction (Law v Llewellyn (1906)) . Counsel andwitnesses also have immunity in respect of mattersin court and surrounding court cases in which theyare concerned.

Corporations

A corporation as an artificial person can sue for anyappropriate tort committed against it. Clearly, itwould be impossible to have some torts, such asassault, committed against a corporation.

A corporation can be sued in tort. Generallyspeaking torts committed by corporations have to beultra vires (outside its powers) . Thus, the lawdistinguishes between the corporation's express andnon-express authority. A corporation will only beheld liable if an employee or agent engages in anultra vires activitywith express authority; where theauthority has not been expressly given, thenthe corporation is unlikely to be held liable. Acorporation may also be liable for an intra vires activ­ity under the principles of vicarious liability for thetorts committed by employees and agents in thecourse of their employment.

Unincorporated associations

Associations such as clubs and societies have noindependent legal personality; however, the organ­isation managers, committee or trustees can be heldvicariously liable for torts committed by theirmembers and be liable as 'occupiers' for any personinjured while on their premises (see underOccupiers' Liability) . Otherwise individualmembersare liable for their own torts .

Trade unions

Before the implementation of the Trade Union Act1984 and subsequent legislation, the trade unionsenjoyed wide-ranging statutory immunity if they

INTRODUCTION TO PART FOUR 209

could show they were 'acting in contemplation orfurtherance of a trade dispute' (Trade Union andLabour Relations Act 1974, s 13), but now tradeunions are liable for torts in respect of acts of induc­ing a person to break his employment contract orinterfere with its performance. The exception iswhere industrial action is authorised or endorsed bya majority vote by way of a properly conductedsecret ballot. The industrial action must be aimedonly at their own employer. Secondary action, thatis, against an employer who does not employ theworkers involved in the dispute, makes the unionsliable in tort for damages or to have an injunctionserved against them.

Minors

Minors of any age are capable of being sued in tortbut it is usually impracticable to claim damages froma minor under 16 or 18 who has no earnings. Also, incertain torts where the mental element of maliciousmotive must be shown, it would be impossible toshow that a young child's tort was activated bymalice. There are some special rules relating tominors in the tort of negligence; for example aparent can be held liable in negligence if he haspermitted or encouraged the child to commit awrong, however, in normal circumstances a parentcannot be held liable for the torts of his children.

A minor may sue in tort but must do so throughan adult called a 'next friend'. The adult is usually aparent or guardian or, when this is not possible, aresponsible adult.

Unborn children

The Congenital Disabilities (Civil Liability) Act 1976provides protection for an unborn child againstdisablement resulting from an occurrence whichaffects the ability of either parent, usually the motherduring her term of pregnancy, to have a normalchild. For example, where an expectant mother isnegligently prescribed a drug which turns out tohave caused the child's deformity, the child, onceborn, may sue the tortfeasor, the manufacturer ofthe drug, for damages.

Persons suffering from mental disorders

Insanity is not a defence to an action in tort, but itmay prevent the defendant from forming the

requisite intention required to commit a particulartort.

Spouses

Husbands and wives may sue a third party and besued independently of each other as if they were notmarried, unless they are tortfeasors in an action.They may also sue each other; however, the courthas powers to stay an action if it appears that no sub­stantial benefit would accrue to either party from acontinuation of the proceedings (Law Reform(Husband and Wife) Act 1962).

Joint tortfeasors

If two or more people commit a tort jointly they willbe 'jointly and severally' liable. This means they caneither be sued together in one action or sued alonein different actions. Under the Civil Liability(Contribution) Act 1978 it is laid down that, if onetortfeasor is sued by a third party and pays damages,that one tortfeasor can claim a contribution from hisfellow tortfeasors.

Vicarious liability

This topic is considered in context in chapter 23.

Particular torts

We now proceed to look at particular torts . Althoughhistorically the tort of trespass is the oldest tort,established in Norman times, and the tort ofnegligence is a more recent 20th century intro­duction by the courts, the following chapters willdeal with the law of torts not in its historical orderbut giving the tort of negligence priority. This isbecause the tort of negligence has grown consider­ably in importance in recent years, its principlesbeing defined and redefined and further adapted tomeet various categories of negligence. However, oneshould bear in mind that all torts having evolvedfrom trespass still have some basis in the historicalorigins of a remedial or 'actions-base' system: for­merly a tort was a wrong remediable by one of theactions of 'trespass' - for direct wrongs, or 'trespassupon the case' - for indirect wrongs. A plaintiffscase must fit a particular tort.

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In the subsequent two chapters we shall examinethe following torts and their particular defences andremedies as follows:

Chapter 12: Negligence - Duty of care and theneighbour principle and its development; standardof care and professional negligence; contributory

negligence; causation, remoteness of damage;occupiers' liability.

Chapter 13: Trespass - (t) to land; (it) to goodsand wrongful interference with goods; (iit) to theperson; nuisance; strict liability and the rule inRylands v Fletcher, defamation.