LAW 140: THE LAW OF TORT

TOPIC 1: SOURCES, MEANING FUNCTIONS AND GENERAL

CHARACTERISTICS OF TORTIOUS LIABILITY

Objectives

To understand the main sources on the law of torts, determine where the law is found and how
each source relates to the substance of torts.

I. Meaning of the Law of Torts

This is a branch of law which deals with allocation and prevention of losses which occur in
society due to human interaction.

That means a civil law, that is to say a wrong between private individuals

II. Sources of the Law of Torts

There are three main sources of the law of torts, namely, case law, statutes and the Constitution.
Out of these cases law is the prime source since the law of torts has mainly grown out of judicial
decisions. Secondly, there are a number of statutes that provide for different aspects of the law
of torts, i.e. statute law miscellaneous provisions Act, cap 5:01 of the Laws of Malawi. The
Constitution also has some provisions which are a source of the law of torts.

III. Tort Distinguished from other branches of law

Define the nature and scope of tortuous liability distinguish tortuous liability from other forms of
liability and understand the basic principles of liability in the law of torts.

1. Tort and Crime

Crimes are those acts and omissions which society as a whole prescribes as being completely
unacceptable. Crimes are normally prosecuted by the state through the criminal courts.

Whereas, a tort is a civil action which an individual prosecutes in a civil court at his discretion.

There are however, torts such as assault and battery, which may also be actionable as crimes and
a civil remedy may be obtained after the completion of the criminal proceedings. The result of
the criminal proceedings may be used as evidence in the civil claim and so its often admissible
for the victim to wait for the outcome of the criminal proceedings before launching his civil
action. However, an acquittal in a criminal case does not mean that a plaintiff will not be able to
prove his civil case as a balance of probabilities.

2. Tort and Contract

-Tort aims principally at prevention or compensation of harms, whereas the core of contract is
the idea of enforcing certain promises.
Further in tort the content of the duties is fixed by the law whereas the content of contractual
duties is fixed by the contract itself. Therefore, inorder to find out whether a person has
committed a tort you look at the law while to establish a breach of contract, you look at the terms
of the contract agreed by the parties.

However, in any factual situation then may be overlap between the law of torts and the law of
contract. For instance, a claim for damages arising from a defective product may involve a
complex web of issues under the Sale of Goods Act the law of misrepresentation, the tort of
negligence the consumer protection act and a chain of contractual indemnities among retailer,
middlemen and manufacturer.

The other difference is that in tort, the plaintiff’s claim is for unliquidated damages, while in
contract if for liquidated damages. In contract they are liquidated because they are measured by
the extent of the breach of the contract, while in tort they are unliquidated because they have to
be determined by law i.e. you cannot tell how much is to be paid for a broken leg.

iv. Functions of the Law of Torts

To understand the basic tortuous liability and determine whether such basis allows for new torts
emerging.

(i) Compensation
This is the prime function of the law of torts, where a person will be claiming
damages for the harm that she/he has suffered due to the wrongful act of a defendant.
The law of torts will therefore determine when one person must pay another
compensation for harm wrongfully caused.

(ii) Vindicate the right of the citizen and to sanction their infringement

A person’s rights of freedom of movement, physical integrity, land and possession of

good are protected by the law of trespass. Consequently, if some other person
interferes with a person’s physical integrity or land that person will be liable for
trespass. Likewise, a person’s right to reputation and a good name is protected by the
law of defamation.

(iii) Deterrence

There are some situations where courts award substantial sums in damages
(exemplary damages). It is said that in such cases the idea of compensation is
replaced by the need to deter the defendant from repeating the harm or wrongful act
that she/he caused. See Frost v chief Constable [1997] 3 WLR 1194

(iv) Justice
 In some cases, where damages are not usually available e.g. nuisance a plaintiff may
apply for an injunction, to prevent or stop the occurrence of the harm. In this way it
is said that the law of torts promotes justice.

(v) The Role of the Law of Torts in the Protection of Human Rights

The law of tort provides protection for a wide range of interests.

1. The law of torts provides protection for a person’s personal security. Thus,
where a person is assaulted by another then the victim may have an action in
the tort of battery. See section 18 of the Constitution

The law of torts also provides protection for a person’s reputation. A person
whose character is damaged by the writings or speeches of another person
may have a claim against that person in defamation for libel or slander. See
sections 19(1) and 21 of the Constitution.

2. The law of torts also provides protection for a person’s property. Thus a
person who interferes with another’s chattel, such as motor car may commit
one of the torts of interference with chattels, such as conversion. The torts of
trespass to land and nuisance provides protection for a person in the use and
enjoyment of his land. See section 21 & 28 of the Constitution.

2. Lastly, the law of torts may also provide protection for a person’s interest in
the life of another. Thus where the ‘breadwinner’ in a family is killed due to
the negligence of another, then the dependants of the victim may seek
compensation in respect of the loses which they have incurred through the loss
of the breadwinner.

Further, the law of torts provides protection for interests of a purely economic
nature. This employer who suffer loss as a result of the commission of
economic torts during the cause of industrial action may have a case of action
against those responsible for the commission of these torts.

(vi) General Characteristics of the Law of Torts

1. Forms of Liability

There are different ways in which liability in tort may arise:

(i) Liability may be imposed as a legal consequence of a person’s act or of his

omission if he is under a legal duty to act. Liability may also be imposed
upon one person as the legal consequence of the act or omission of another
person with whom he stands in some special relationship such as that of
employer and servant. This is known as vicarious liability.
 (ii) In some cases liability is based upon fault sometimes an intention to injure
is required but more often negligence is sufficient. In cases of strict
liability, liability is in varying degrees independent of fault.

(iii) Although most torts require damage resulting to the plaintiff which is not
too remote a consequence of the defendant’s conduct, a few, such as
trespass and libel do not require proof of actual damage.

2. Intention or Negligence or the Breach of Strict Duty

(i) Intention

Some torts require intention on the part of the wrongdoer. At law a

person’s intention is inferred from his or her conduct.

In Edgington v Fitzmaurice (1885) 29 Ch.D 459(at) 483 Bowen L.J. stated

that the state of a man’s mind is as much a fact as the state of his
digestion. ‘By this he meant that in law what a person thinks must be
deduced from what he says and does since no one can be perfectly certain
of what passes in the mind of another person.

In the law of torts there is no clear definition of intention as is the case in

criminal law, where it is said to exist where a defendant is/was aware that
the harm was virtually certain to result from her act.

However in cases of trespass to land, it has been said that indifference to a

risk that trespass will occur by animals in the defendant’s charge amounts
to intention.

(ii) Negligence
This is an independent tort with a number of elements. However, here we
are only concerned with negligence as the state of mind which is one
element of the tort and some other torts. In this sense it usually signifies
inadvertence by the defendant to the consequences of his or her behaviour,
e.g. a doctor who forgets that a patient is allergic to a treatment.

The above does not mean that a person who adverted or who remembers
the risk will escape liability in negligence if harm occurs. He/she will still
be liable and the same amount to recklessness as illustrated by the case of
Vaughan v Menlove (1837) 3 Bing NC 468, where the defendant had been
warned that his haystack was likely to overheat and catch fire, which
might spread to the land of his neighbours. He said he would chance it
and he was held liable for the damage which occurred when the stack
actually took fire.
 Negligence in this sense at times overlaps with recklessness which is not
an independent tort but an alternative to the element of intention.

(iii) Breach of Strict Duty

In same torts, the defendant is liable even though the harm to the plaintiff
occurred without intention or negligence as the defendant’s part.

In the case of Rylands v Fletcher (1868) LR 3 HL 330 at 340, it was laid

down that if a person brings or accumulates as his land anything which if
it should escape, may cause damage to his neighbours, he does so at his
peril. If it does escape and cause damage he is responsible however
careful he may have been and whatever precautions he may have taken to
prevent damage liability in nuisance may be strict where the defendant
himself or someone for whom he or she is responsible has created a
nuisance.

Liability for breach of a statutory duty is not dependent on proof of

negligence.

3. Reasonable and Reasonable Men

Reasonableness is an essential ingredient in the law of negligence, whether that word be used to
indicate an independent tort or a mental element in the commission of certain other torts.
According to Winfield & Jolowicz on Tort reasonableness or reasonable conduct might be
described as the behaviour of the ordinary person in any particular event or transaction, including
in such behaviour obedience to the special directions which the law gives him for his guidance in
that connection.

A reasonable man was described by Lord Bowen as the man on the Clapham Omnibus or as the
man who takes the magazines at home and in the evening pushes the lawn mower in his short
sleeves.

Hall v Brooklands Auto Racing Club [1933] 1 KB 205 @ 224

Lord Uhwatt in LPTB v Upsan [1949] AC 155 at 173, described him as a man who will not
anticipate folly in all its forms but he never puts out of consideration the teaching of experience
and so will guard against the negligence of others when experience shows soon negligence to be
common.

Lord Raid in AC Billings & Sons v Riden [1958] AC 240 @ 255 stated that he is a reasonable
man but he is neither a perfect citizen nor a paragon of circumspection.
However, where a person exercises any calling the law requires him in dealing with other people
in the cause of that calling to exhibit the degree of skill or competence which is usually
associated with its efficient discharge. In this regard, nobody expects a man on the Claphan
omnibus to have any skill as a surgeon or a lawyer unless he is one but if her professes to be one
then the law requires him to show such skill as any ordinary member of the profession or calling
to which he belongs or claims to belong would display.

4. Motive and Malice

Motive signifies the reason for conduct. While malice in a layman’s language is usually taken to
be an evil motive or it may signify doing an act willfully without just cause or excuse.

With regard to motive the general rule is that if conduct is presumptively unlawful a good motive
will not exonerate the defendant and that if conduct is lawful apart from motive, a bad motive
will not make him liable.
See Bradford Corporation v Prickles [1895] AC 587.

vi. Foundations of Tortious Liability

1. The Fault Principle

Liability in the Law of Torts is mainly determined on the basis of fault. The person who is at
fault is the one who must pay. The plaintiff must generally show that his injuries were caused by
the defendant’s fault.

There are two main arguments in favour of the fault based tort system. The first one is that it
acts as a deterrence on the person at fault to desist from harmful conduct. The second on is
promised on the notion of individual or corporate responsibility. This is to the effect that those
that are at fault should pay or be held accountable. However, despite this in most cases the one
at fault will not personally pay but his/her insurance company. Further, in some cases in
principle on vicarious liability the payment will be made by a different person.

There are a number of criticisms that have been leveled on this fault-based principle

(i) It is said that the tort system based upon fault is expensive. This is on the ground that a
person will have to go into litigation, i.e. go to court to prove liability on the part of the
person at fault before receiving compensation.

(ii) Secondly, it is said that a tort system based on fault is marred by problems of delay.
Since there are a lot of procedure to be followed in a court process, a case takes too long
before completion and the end result is that it aggravates pressure on a plaintiff to settle
out of court prematurely.

(iii) The unpredictability of the result of cases based upon fault liability may put plaintiffs
under pressure to settle their claims for amounts less than they would receive if their
claim went successfully to trial.
Further Reading

WVH Rogers ‘Winfield & Jolowicz on Tort’ Chapter 1

Brazier & Murphy ‘Street on Torts’ Chapter 1

D.G. Cracknell ‘Obligations: The Law of Tort’ – Chapter 1

End of Topic Assessment Questions

1. Which sort of interests does the law of torts most readily protect? Give same examples
and consider why

2. Contract and Tort are like cheese and biscuits: different but complementary: Discuss?

3. Without worrying about the correct legal principles, consider the arguments for and
against holding the following people liable to pay damages in tort.

(i) Chimwemwe, a junior hospital doctor, who has worked 90 hours per week for the last 2
months, incorrectly diagnoses Dickens’ condition as indigestion. Within hours of leaving
hospital, Dickens suffers a major heart attack and dies. Is their any liability? If so who is
liable, and on what basis.

(ii) Zakeyo works for Siku Transport as a delivery driver. One morning he is making a
delivery in Limbe when he decides to detour to Saachs Bakery to buy his favourite
yellow buns for lunch. As he parks his van, he knocks down and injures Takondwa.
Should any one pay damages to Takondwa? If so, who.
 TOPIC 2

CAPACITY

To determine persons who can sue/be sued in tort and the specific rules relating to each class of
people.

To understand and determine whether these rules and consonant wilh human rights and gender
principles.

Introduction

This refers to capacity to sue or liability to be sued in tort. Every system of law and every
branch of each system must recognize variations in favour of or against, abnormal members of
the community.

As a general rule anyone may bring an action in tort. Miners may sue in tort through their next
friend. In Burton v Islington Health Authority [1993] Q.13, 204, it was held that where a child
was born suffering from disabilities caused as a result of medical negligence, the child could
bring a negligence claim even though the child was not a person in the eyes of the law at the time
when the damage was negligently inflicted.

1. Liability

(i) Government
The government is liable in tort, as if it were a private person of full age and capacity in respect
of torts committed by its servants or agents. The nominal defendant in such cases is the Attorney
General.

(ii) Corporations
A Corporation is a legal entity separate and distinct from its members, and because of this it may
commit and have torts committed against it.

However, there are certain torts which, by their nature, cannot be committed against a
corporation, such as assault or false imprisonment.

Corporations are vicariously liable for the torts committed by their employees in the cause of
their employment.

A corporation may also be liable where the person who commits the tort is so much in command
of the company that his acts are treated as if they were the acts of the company.

See Lennard’s Carrying Co. v Asiatic Petroleum Co. Ltd [1915] AC 705.

(iii) Unincorporated Associations

Unlike corporations, unincorporated associations have no legal personality of their own which is
separate from that of their membership. Thus clubs cannot sue or be sued in their own right.
The members are themselves jointly and severely liable for their own torts and not for torts of
other members.

In some cases a representative action may be brought against an unincerparated association

where all the members have a common interest to defend. Such an action will be brought against
a representative of the club such as the secretary or chairman.

(iv) Trade Unions

Registered Trade Unions have the capacity to sue and be sued in their own name
Taff Vale Railway Co. v Amalgamated Society of Railway Servants [1901] AC 426

(v) Miners
Unlike under the law of contract, there is no minimum age for the existence of tortiars
responsibility miners are judges by ordinary tort principles.

However, a minor cannot be sued in tort where the action would have the effect of enforcing a
contract which is not binding upon him.
See R Leslie Ltd v Sheill [1914] 3KB 607

There is no general principle that a parent is vicariously responsible for the torts of his children.
But a parent may be liable in negligence for giving the child the opportunity to cast damage.
Thus in Newton v Edgerley [1959] 1 WLR 1031, a father was found to be liable in negligence
when he gave his 12 year-old son a 410 rifle without proper training and the son caused damage
to the plaintiff through this use of the gun.

(vi) Insanity
The exact effect of insanity upon a defendant ‘s liability in tort is uncertain. It is however, clear
that insanity is not recognized as a defence in tort actions.

In Morris v Mardsden [1952]1 All ER 925, the defendant attacked the plaintiff and caused him
serious injury. The defendant was found unfit to plead in the resulting criminal proceedings for
assault and battery but the plaintiff sued the defendant in tort. It was held that the defendant was
liable because he had intended to commit the attack even though he had no power to appreciate
that it was wrong.

(vii) Spouses
Until the 20th century, a husband was liable for the torts committed by the wife during marriage.
Suffice it now to say that as far as third parties are concerned there are no special rules governing
husband and wife and neither is liable for the other’s torts.

Each of the parties to the marriage also has capacity to bring an action against the other in tort as
if they were not married.

2. Immunity
In certain circumstances a defendant enjoys immunity from liability in tort. The following are
the most important ones.

(i) Judicial Immunity

Judges enjoy immunity from action in negligence, see Anderson v Gorrie [1895]1 QB 668

Witnesses in legal proceedings also enjoy such an immunity.

See Palmer v Durnford Ford (A Firm) [1992] 1 QB 483

Judicial immunity also applies to potential witnesses and persons investigating a crime
See Tayler v Serious Fraud Office [1998]4 AllER 801

(ii) Acts of State

An act of state may be defined as an act of the executive as a matter of policy performed in the
cause of its relations with another state including its relations with the subjects of that state
unless they are temporarily within the allegiance of the government.

Foreigners normally enjoy the same rights and in the same liabilities in tort as British nationals.
However, where an Act of state is involved then the foreigner may find that he has no cause of
action where he otherwise would have had one.

(iii) Foreign Sovereigns

A foreign sovereign state enjoys absolute immunity from liability before a court unless the
immunity has been waived by submission to the jurisdiction.

This has been codified under the Immunities and Privileges Act cap: 16:01 of the Laws of
Malawi. The fundamental provision is that a state is immune from the jurisdiction of the carts
except as provided by the Act.
See section 7 of the Immunities & Privileges

(iv) Statutory Immunity

If a statute makes what was formerly a tort at common law a lawful act then that act is no longer
a tortuous act. Similarly a statute may give immunity to a particular body a category of persons.

Further Reading
D.G. Cracknell ‘Obligations: The Law of Tort’ Chapter 2.

WVH Rodgers ‘Winfield & Jolowicz a Tort – Chapter 24

End of Topic Assessment Question

1. Humphrey Chibwe whose age is 13 is a student at Masongola Secondary School. He
stays at Chinamwali in Zomba. On 1st August 2004 he hired a Toyota Corolla from
Linda’s Company, to drive it to Chinamwali and fetch his bags and then take them to
Masongola. When Humphrey took the car he drove the car to as far as Domasi, where he
 was involved in an accident with the vehicle. Can Linda’s company successfully sue and
get damages from Humphrey?

2. Honourable Mahojane, Commissioner for the Republic of Zambia was involved in a road
accident while driving along the streets of Kawale. As a result of the accident Chewonga
sustained a knee, fracture. Can Chewonga successfully sue Mahojane?
TOPIC 3

NOMINATE TORTS

These are wrongs that are well known to exist but which for some reason or another lack a
compendious name. Consequently, in the cause of legal history certain forms of tortuous
liability have gained specific names, some as assault, battery, negligence, libel slander and
nuisance. It is argued that the fact that they acquired such names was due mere accidents of
terminology traceable probably to their frequent occurrence.

Despite the separate names, it is important to remember that torts are not exclusive of one
another and that there is no reason why a given set of facts should not contain the elements of
several of them.

Let us now look at the said nominate torts.

1.Trespass to the Person

Introduction
In its original legal meaning trespass means a ‘wrong’. Trespass to the person comprehends the
torts of battery, assault and false imprisonment. These torts provide us with some further
evidence of the role of the law of tort in protecting a person’s interest in his personal security.
They also demonstrate an overlap with the criminal law as the acts which give rise to the
tortuous liability of the defendant may also give rise to criminal sanctions.

There are three main common features of the above named three forms of trespass to the person.
The first is that the torts will be committed by international acts and only. The second is that the
wrong must be committed by direct means and lastly, the torts are actionable per se. This means
that there is no need for proof of damage.

(b) Battery
Battery is a direct and intentional act of defendant which has the effect of causing contact with
the body of the plaintiff without the latter’s consent. In short battery may also be defined as the
intentional and direct application of force to another person.

There are four ingredients of the tort and these ingredients are as follows:

(i) Direct Act

The act of the defendant must be the direct cause of the damage to the plaintiff. This is best
illustrated by the case of Scott v Shepherd (1773)2 WB1 892.

The defendant threw a lighted squib into a market place. The first recipient of this squib
instinctively threw the squib to the next stall where it was once again picked up and thrown to
another part of the market where it exploded and injured the plaintiff. It was held that the
defendant was liable for the injuries suffered by the plaintiff because they were a direct result of
the act of the defendant.

The acts of stakeholders in passing on the squib were instinctive and did not break the direct link
between the act of the defendant and the injury to the plaintiff.
See also Fagan v MPC [1969] 1QB 439.

(ii) Intentional Act

The act of into contact with the person of the plaintiff must be an intentional act.

Trespass to the person will not be actionable where it is accidental. If the act causing damage
was not intentional but was negligence one, then the action lays in negligence and not in trespass.
See Letang v Cooper [1965]1 QB 232
Miller v Jackson [1977] QB 966

(iii) Contact with the Plaintiff

There must be contact with the person of the plaintiff before there can be an action in tort of
battery. In Cole v Turner (1704)6 Mod 149, it was said that the least touching of another in
anger is a battery. This has been criticized to be too narrow approach, as it may not encompass
cases of an unwanted kiss which are as much actionable as a blow.

2. Negligence
Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired
by the defendant to the plaintiff. Thus stated the tort consists of three distinct elements.

(a) The first element is that the defendant must owe to the plaintiff a duty of care.

(b) The second element is that the defendant must breach the duty of care which he owes
to the plaintiff.

(c) The third element is that the plaintiff must suffer damages as a result of the
defendant’s negligence. This element has two main principles namely: that the
defendant’s negligence must have caused the damage to the plaintiff and the damage
which the plaintiff has suffered must not be too remote a consequence of the
defendant’s negligence.

(a) The Duty of Care

The modern source of duty of care requirement is found in the celebrated judgment of Lord
Atkin in Donoghue v Stevenson [1932]AC 562. It is of vital importance because it is via that
duty concept that the courts have sought to limit and control the circumstances in which liability
may be imposed upon a defendant for the consequences of his negligence.

Inorder to comprehend the present state of the law negligence, less start by briefly examining the
history of the duty of care. For a logical discussion we will divide the development of the duty
of care into 3 broad phases; (i) the emergence of a general principle, (ii) residing from the
general principle.

(i) The emergence of a general principle

A person is not liable for every negligent act which he or she commits. There has always been
some control device which has identified and limited the situating in which a person may be held
legally liable for the consequences of his negligence. As a result the principal control device is
the requirement that the defendant owe to the plaintiff a duty of care. This requirement was not
articulated as a general principle until the judgment of Brett MR in Heaven v Pender (1883) II
QBD 503. At that stage the tort of negligence was applicable to damage caused in certain
particular circumstances, such as road accidents but was not a principle of general application.
The innovation in the judgment of Brett MK was that he say to formulate a general principle for
identifying whether or not a duty of care existed, which principle could be applied to new
situations as well as to the traditional categories.

But it was not until the farmers case of Donoghue v Stevenson [1932]AC 562 that a general
principle was firmly established for determining the existence of a duty of care. The defendants
were manufacturers of ginger beer. A friend of the plaintiff purchase a bottle of ginger bear for
the plaintiff. The plaintiff break some of the ginger beer but when she poured off the remainder
of the contents of the bottle a decomposed snail floated out of the bottle. The plaintiff claimed
that she suffered severe shock and became very ill as a result of this incident. She was unable to
proceed against the manufacturers in contract because there was no contract between the parties.
So she brought an action in tort against the manufacturers. It was held that the defendants being
manufacturers of ginger beer owed a duty of care to the plaintiff as the ultimate consumer or
purchaser of the ginger bottle did not contain same substance which was likely to cause injury to
health. This decision is important for two particular reasons.

(i) The first is the judgment of Lord Atkin. His statement of principle still form the basis
of the modern law and its importance lies in its attempt to provide a general principle
which could be applied in all cases and thus could unify what had been a series of
discrete rules. He said:

“In English law there must be and is some general conception of relations giving rise to a
duty of care of which the particular case found in the books are but instances… The rule
that you are to love your neighbour becomes in law, you must not injure your neighbour
and the lawyers question, who is my neighbour? Receives a restricted reply. You must
take reasonable care to avoid acts or omissions which you can reasonably forsee would
be likely to injure your neighbour. Who then in law is my neighbour? The answer seems
to be 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.

(ii) The second point of significance was that their lordships freed the tort of negligence
from what was known as the contractual fallacy. According to this contract fallacy,
where a manufacturer had entered into a contractual relationship with another he
 could not have a duty of case in tort to a third party who was not privy to that contract
as illustrated by Winterbottom v Wright (1842) 10 M & W 109. Here the defendants
were couch-builders. They had a contract with the post-master general to deliver a
couch for the delivery of mail. The plaintiff was the driver of the couch and he was
seriously injured when he fell off the couch due to a latent defect in the construction
of the couch. It was held that the plaintiff could not recover from the defendants
because he was not privy to the contract for the delivery of the couch. But this fallacy
was exploded in Donoghue where the House of Lords held that it was irrelevant to the
plaintiff’s action in that she was not privy to a contract with the defendants for the
sale of the ginger beer.

(iii) The development of the general principle

Lord Atkin’s statement of principle has come to be known as the neighbour principle.
As noted, its importance lies in providing a general principle which can be applied to
new situations. However, some of the judiciary were reluctant to accept that this
statement of principle had the effect of constituting a general principle which was
applicable to new situations.

In Candler v Crane Christmas & Co. [1951] 2KB 164, the court of appeal was
unwilling to extend liability for negligent misstatement causing economic loss. Lord
Denning argued that the old authorities had to be re-examined the light of Donoghue
case but the majority of court of appeal rejected that argument.

Eventually in the landmark case of Hedley Byrne & Co. Ltd v Heller & Partners Ltd
[1964] AC 465, the House of Lords did extend liability for negligent misstatement,
although its crucial to note that they did not apply ordinary Donoghue principles for
fear that it would lead to too great an ambit of liability. Instead they preferred to
apply a more restrictive test.

However, in 1970, Lord Atkin’s statement of principle was given explicit recognition by the
House of Lords as being a statement of general principle which could be applied to all cases of
negligence. In Home Office v Dorset Yacht Co [1970] AC 1004 Lord Reid said that:

Donoghue v Stevenson may be regarded as a milestone and the well-known passage in Lord
Atkin’s speech should I think be regarded as a statement of principle. It is not to be treated as a
statutory definition. It will require qualification in new circumstances. But I think that the time
has come when we can and should say that it ought to apply unless there is some justification or
valid explanation for its exclusion.

This development of a general principle which could be applied to all cases was taken to stage
further in the judgment of Lord Wilberforce in Anns v Martin London Baraugh Council [1978]
AC 728. Lord Wilberforce said ‘inorder to establish that a duty of care arises in a particular
situation, it is not necessary to bring the facts of that situation within those of previous situations
in which a duty of care has been held to exist. The matter has to be approached in two stages.
First are not ask whether there was a sufficient relationship of ‘proximity or neighbourhood’
between the plaintiff and defendant such that in the defendant’s reasonable contemplation
carelessness on his part might cause damage to the plaintiff. If so, a prima facie, duty of care
arose. Ten at the second stage, it is necessary to consider whether there was any considerations
which ought to negative or to reduce or limit that duty on the class of persons to whom it is owed
or the damages to which a breach of it may give rise.

The two-tie approach provided a principle which could be applied to all cases and the effect of
its application in some cases was to expand considerably the boundaries of the tort of negligence.

(iii) Resiling from the general principle

The brood general principle established by Lord Wilberforce in Anns case has been subjected to
heavy criticisms.

Lord Keith in Yuen kun Yuen v Attorney General for Hong Kong [1988] AC 175 stated that Lord
Wilberforce’s approach had been elevated to a degree of importance greater than its merits and
greater perhaps than its author intended! He added that;

‘In view of the direction in which the law has since been developing, their lordship
consider that for the future it should be recognized that the two-stage test … is not to be
regarded as in all circumstances a suitable guide to the existence of a duty of care.’

Finally, in Murphy v Brentwood District Council, [1991]1 AC 398, 461 Lord Keith stated that he
considered the incremental approach adopted by Brenzan J in the High Court of Australia in
Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424 was preferable to the two-
stage test adopted by Lord Wilberforce in Anns.

(iv) The Incremental Approach

How then do the courts decide whether or not to impose a duty of care upon the defendant in a
particular case? A crucial factor is obviously earlier authorities. Where a duty of care has been
imposed in an earlier analogous case, a court will be more inclined to impose a duty on the facts
of the case before it unless it is satisfied that the analogy is not properly drawn.

Conversely, where the procedures are against the recognition of a duty of care a court will be
reluctant to impose a duty unless it considers that the earlier cases are not directly in point or it is
convinced that reasoning incrementally and by reference to the precedents, an extension of the
scope of liability is justified.

But what will the court do in novel cases, where there are no precedents to guide it. There are
three factors which are to be employed by the courts in deciding whether or not to impose a duty
of a care in a novel case, namely:

 That the loss must be reasonably foreseeable

 That there must be a ‘proximate relationship between the plaintiff and the defendant
 That it must be fair just and reasonable that the law should impose a duty of a given
scope upon the one party for the benefit of the other
Lost must be reasonably foreseeable

Reasonable foresight of harm is a necessary requirement but that it is not of itself sufficient. It
should be noted that it is the foresight of a reasonable man which is used in determining liability.
Thus it is not the foresight of the particular defendant which is in issue but the foresight of the
reasonable man standing in the shoes of the defendant. If the plaintiff cannot show that it was
reasonably foreseeable that he would loss as a result of the negligence of the defendant then he
cannot succeed in an action in negligence against the defendant. This is illustrated by the case of
Bourhill v Young [1943]AC 92, where the House of Lords held that no duty of care was owed to
the plaintiff because injury to her was not reasonably foreseeable. The plaintiff had witnessed a
motor accident caused by the negligence of the defendant and in which the defendant was killed.
She claimed that she heard the accident and saw the aftermath of it and that this had caused her
baby to be born stillborn. It was held that the plaintiff was so far away from the accident that she
was not owed a duty of care by the defendant because it was not reasonably foreseeable that she
would suffer nervous shock as a result of the accident.

A Proximate relationship - in ordinary language means nearness

In Yuen Kin Yeu v Attorney General of Hong Kong [1988]AC 175, Lord Keith stated that
proximity means the whole concept of necessary relationship between the plaintiff and the
defendant for this it appears that what the court looks far is a relationship of proximity.
However, what is clear is that proximity differs from one situation to another because a closer or
more direct nexus will be required with reference to some types of damage or some types of
conduct.

For instance in cases where a plaintiff sustains physical injury the courts do not appear to insist
upon a pre-existing relationship of proximity between the plaintiff and defendant e.g. suppose a
driver negligently knocks down a person with his car, causing her severe injury. In such a case a
court would not inquire into the nature of the relationship, before the accident occurred, rather it
is the negligent infliction of physical injury which of itself creates the required degree of
proximity.

But where the loss which the plaintiff suffers is economic in character or is that of mental
trauma, then the fact that the defendant has through his negligence caused the loss is not of itself
sufficient to create a relationship of proximity the court will in such a case inquire into the
relationship between the parties prior to the occasioning of the loss.

This suggest that the requirement that there must be a relationship of proximity between the
plaintiff and defendant may not be a universal one but that it is confined to particular contexts.

This also suggests that considerations of policy enter into the decisions as to whether or not a
relationship of proximity exists in a given case and this point was confirmed by Lord Oliver in
Alcok v Chief Constable of Satu Yorkshire [1992] 1 AC BIO @ 410, when he said that no doubt
policy if that is the right word or perhaps more properly, the impracticability or unreasonableness
of entertaining claims to the ultimate limits of the consequences of human activity, necessarily
plays a part in the court’s perception of what is sufficiently proximate.

Fair, Just and Reasonable

Even if there is requisite degree of proximity a duty of care may still be denied if in the court’s
view the imposition of liability would not be fair, just and reasonable. In Marca Rich & Co.
A.G. v Bishop Rock Marca Co. Ltd, [1996]A.C. 211, the vessel. The Nicholas H, developed a
crack while carrying lead and zinc from South America to Italy, Off Poerto Rico, a surveyor
employed by NKK, a mariner classification society, was called in by the master. The surveyor
eventually pronounced that the vessel was fit to complete the voyage with temporary welding
work. A few days later the ship sank with total loss of the cargo. The plaintiff owners of the of
the cargo, obtained U$500,000 by settlement against the ship owners this being the limit of their
liability under the conventions governing carriage by seal and claimed the balance of
U$5.7million against NKK. On preliminary issue of law, for the purposes of which it was
assumed that the surveyor was negligent and that the loss of the cargo was a forseable
consequence of that, a majority of the House of Lords held that, NKK have not duty of care to
the cargo owners. Marin LJ, proceeded upon the assumption that the requirement of proximity
was satisfied by the cumulative effect of a number of policy factors painted against a decision in
favour of the owners. ‘The liability of the ship owner was limited by statute and if the cargo
owner were allowed to bypass this by the device of a claim against the classification society such
bodied would likely seek to pass on the cost of their liability insurance to the ship owners
thereby disturbing the balance between cargo owners and carriers set by international
conventions.

Consequently when we say that the plaintiff must be a foreseeable victim we do no mean that he
need be identifiable by the defendant. It is enough that he should be one of a class within the
area of foreseeable injury.

In Haley v London Electricity Board [1965]AC 788, the defendants, with statutory authority,
excavated a trench in the street. They took processions for the protection of passersby which
were sufficient for a formal-sighted person, but the plaintiff who was blind suffered injury
because the precautions were adequate for him. It was held that the number of blind persons
who go about the streets alone was sufficient to require the defendants to have them in
contemplation and to take precautions appropriate to their condition.

Therefore, although Donoghue v Stevenson refers to the aspect of ‘neighbours’ the test is not one
of physical closeness but of foresight, for my neighbours are persons who are so closely and
directly affected by my act that I ought reasonably to have them in contemplation.

Some Categories of Cases where Duty of care is denied on restricted

(1) Rescuers/failure to act

The role is that I must not harm my neighbour not that I am required to save him. In Home office
v Darsert Yacht Co. Ltd [1970] AC look at 1060, Lord Diplock said The very parable of the
good Samaritan …. Which was invoked by Lord Atkin in Donoghue v Stevenson illustrates, in
the conduct of the priest and the … who passes by on the other side, an omission which was
likely to have as its reasonable and probable consequence damage to the health of the victim of
the thieves, but for which the priest and the lerite would have icum no civil liability in law.

In Storin v Wise [1996] AC 923, the role was regarded as justifiable by the House of Lords,
where Lord Hoffman said:

There are sand reasons why omissions require different treatment from positive conduct. It is
one thing for the law to say that a person who undertakes same activity shall take reasonable care
not to cause damages to others. It is another thing for the law to require that a person who is
doing nothing in particular shall take steps to prevent another from suffering harm from the acts
of third parties or natural cases. In political terms it is less of an invasion of freedom for the law
to require him to consider the safety of others in his actions than to impose upon him a duty to
rescue or protect.

In this case, the defendant road authority had resolved to improve a junction and then let the
matter go to sleep. Had the work been done, the plaintiff would probably not have been involved
in the accident which took place but the accident was nevertheless caused by what the authority
failed to do (improve the junction) not by anything it did.

However, if a person engaged in a rescue which he was not obliged to undertake negligently
inflicts some positive harm upon the plaintiff he may be liable for that, for he has then left the
plaintiff worse off than he was before.

See OLL Ltd v Secretary of State for Transport [1997]3 AllER 897

Cases where the law imposes a duty to act

On the other hand, a duty to act may be imposed where the plaintiff is under the care or control
of the defendant and is incapable of protecting himself. Thus claims have succeeded against
schools for failing to safeguard pupils and against the police for failing to prevent harm to
persons in their custody, even if it is self-inflicted.

See – Kirkham v Chief Constable of Greater Manchester [1990]2 QB 283, where a mentally
disordered person committed suicide.

Reeves v MPC [1998]2 All ER 387, liability was imported for failure to prevent suicide of a
same prisoner.

(2) Economic Loss

The law of tort has never hard any great difficulty in recognizing that a person can recover
damages for personal injury suffered as a result of the negligence of the defendant. Thus in road
accident cases we have no problem in recognizing that one road user owes another road user a
duty of care. But where the loss which the plaintiff has suffers is not physical injury or damage
to property, then difficulties can emerge in establishing the existence of a duty of care. This is
particularly so where the loss which the plaintiff suffers is economic loss.
There have been a number of cases recently which suggest that the courts do not attach as much
importance to the protection of a plaintiff’s economic well-being as they do to his physical well-
being.

For instance, in Murphy v Brentwood District Council [1991]AC 398 @ 487 Lord Oliver stated
that:
“The infliction of physical injury to the person or property of another universally requires
to be justified. The causing of economic loss does not.”

See also Capero Industries PLC v Dickman [1990]2 AC 605 and 618.

The views above shows that the law of tort accords less protection to a person’s economic well-
being than to his physical well-being and this calls for a definition of what economic loss entails
and also an elucidation of the reasons why it is more difficult to recover damages for economic
loss.

(i) What is Economic Loss

This is where a plaintiff only suffers pure economic or financial loss. This is best explained by
the following two illustrations

 If John negligently drives his care and runs down Peter who works at Shoprite. As a
result of the injuries which Peter sustained he gave up work for a month and
consequently he was not paid wages. The claim for the wages will easily succeed
because it is economic loss which is a consequence of Peter’s physical injuries.
 Wood Industries Corp Ltd v Malawi Rys Ltd [1991]14 MLR 516

 On the other hand, Ross v Caunters [1980] Ch 297 is a good illustration for pure
economic loss. The defendant who was a solicitor, failed to tell the testator that
attestation of the will by the spouse of a beneficiary would invalidate the gift to the
beneficiary. The plaintiff whose husband had signed the will sued the defendant in
negligence for the loss of her gift under the will. Thus was not a case where the plaintiff
suffered physical injury or damage her property. The only loss which she suffered was
that she did not receive the gift and this was classified as pure economic loss.

In Murphy v Brentwood District Council [1991]1 AC 398

The plaintiff purchased a house in 1970 from builders who constructed it in 1969. The house
was built upon a single concrete raft foundation because the site had been filled in and leveled.
The foundation raft was designed by a firm of civil engineers but its design was inadequate and
differential settlement of the ground beneath the raft caused it to distort and caused cracks to
appear in the building. When the plaintiff discovered the extent of the damage to the house he
decided that it was impractical to have the necessary remedial work carried out himself and so he
sold it, at a price considering below the market price of a house which was said to a builder who
knew the cause of the damage. The plaintiff then brought an action against the local authority
alleging that they had been negligent in passing plans which were inadequate. It was held that
his loss was economic and in many ways, this was obvious because he had realized his loss and
his claim was for the dimunition in value of his property, all cases in which a plaintiff seeks to
recover the cost of repairing the defect in the product itself are cases of economic loss.

(ii) Why are courts reluctant to compensate plaintiffs who suffer pure economic loss

The traditional reason is that of fear of floodgates. This fear of opening the floodgates could be a
reference either to the exposure of the defendant to too many claims or to too much liability or
infact, it could be a reference to a combination of the two. This fear of floodgates does not tend
to manifest itself in cases of physical injury, although in major tragedies the liability of the
defendant can be enormous.

In cases of pure economic loss, courts are reluctant because the defendant would be exposed to
indeterminate liability for an indeterminate amount to an indeterminate class. For instance,
suppose an accountant appears on Television Malawi and states that shares in Import and Export
Co. are band to be a good investment. Thousands of people go out and buy shares in the
company in reliance upon the advice. Unfortunately, the accountant was careless in making his
statement. The company goes into liquidation and the investors lose all their money. The
investors have all suffered pure economic less but to allow them all to recover from the
accountant would be to expose him to an indeterminate liability for an indeterminate amount to
an indeterminate class.

The second argument for the courts reluctant in awarding damages in pure economic loss cases is
that, courts are of the view that to do so would be to undermine established rules and principles
of the law of contract. This is illustrated by the case of D & F Estates Ltd v Church
Commissioners for England [1989]AC 177. The 3rd defendants, Wates Ltd were main
contractors engaged in building a block of flats on land aimed by the first defendant. The 1st
plaintiffs took a lease of one of the flats and they let into occupation a Mr & Mrs Tillman the 2 nd
and 3rd plaintiffs, the controllers of D & F. After they had moved in the plaintiffs discovered that
the plaster work, which had been done by a firm of independent contractors employed by the
defendants had been done defectively. So they sued the defendants for the cost of the remedial
work, the cost of cleaning the carpets loss of rent while the remedial work was being carried out
and damages for the disturbance to the 2nd and 3rd plaintiffs. The plaintiff’s claim was that the
plaster itself was defective and not that the defective plaster had caused damage to other property
of the plaintiffs or had cased personal injury. The claim was therefore are to recover damages
for pure economic loss.

Lord Bridge concluded that damages in tort do not generally extend to the cost of repairing the
defective product itself. Damages were recoverable in tort where the defective product caused
personal injury or damaged other property of the plaintiff but damages were not recoverable in
tort in respect of defect in the product itself; soon a claim lay, if at all in contract the sammed up
the general principle by using an illustration concerning a defect in a chattel supplied complete
by a manufacturer:

“If the hidden defect in the chattel is the case of personal injury or of damage to
property other than the chattel itself, the manufacturer is liable. But if the hidden
defect is discovered before any such damage is cause, there is no longer any room
 for the application of the Donoghue v Stevenson principle. The chattel is now
defective in quality but it is no longer dangerous. It may be valueless or it may be
capable of economic repair. In either case the economic loss is recoverable in
contract by a buyer or hirer of the chattel entitled to the benefit of a relevant
warranty of quality, but is not recoverable in tort by a remote buyer or hirer of the
chattel.

Let us now look at cases of economic loss where it is recoverable and where it is more
doubtful that it will be recoverable.

A. Where recoverable
(a) Consequential economic loss

The general rule is that a plaintiff can recover in respect of economic loss which is
consequential upon the physical injury and property damage. The case of Spontun Steel
& Alleys Ltd v Martin & Co. (contractors) Ltd [1973]QB 27 is the leading authority in as
far as economic loss consequential upon property damage is concerned. In this case the
defendant negligently cut through the power cable leading to plaintiff’s factory. The
power was cut off for some 14 hours. The plaintiffs had molten metal in finance at the
time of the power cut. The molten metal suffered damage assessed at £368 and the
plaintiffs lost £400 profit on the net. They also sought to recover £1,767 in respect of
profits which would have been earned on further melts which would have been made had
it not been for the power cut. It was held that the plaintiff could recover in respect of the
damage to the molten metal and the £400 consequential loss of profits but not the £1,767.
Lord Denning stated that only ‘truly consequential loss was recoverable and that apart
from that economic loss was irrecoverable.

(b) Negligent Misstatements

A plaintiff may also recover damages for economic loss which he has suffered if he/she
brings himself within the scope of the decision of Hedley Byren & Company Ltd v Heller
& Partners Ltd [1964]AC 465 which is to the effect that pure economic loss suffered as a
consequence of reasonable reliance placed upon a negligent statement offered by the
defendant is recoverable at least where there is a special relationship between the parties.

Prior to the Hedley Byrne case such economic loss was only recoverable where there was
a pre-existing contractual relationship between the parties or where there was a
relationship between the parties such as solicitor (client or doctor & patient which equity
regarded as being of a fijudiciary nature.
See Nocton v Lord Ashlarton [1914] HC 932

In Hedley Byrne, the plaintiffs were advertising agents and under one of their contracts
were personally liable if their clients failed to pay the bill so they asked their bank to find
out the financial standing of their clients. The bank obtained a reference from the
defendants which stated hat the clients were good for ordinary business transactions. The
defendants provided the reference subject to the condition that it was made without
responsibility. In fact the clients were in a bad way financially and they went into
liquidation shortly afterwards. The plaintiffs sued the defendants in respect of the losses
which they had suffered because they were personally liable under the contracts which
they had negotiated on behalf of the clients. On the facts it was held that the defendants
were not liable because they had provided the reference without responsibility. But had a
disclaimer not been issued by the defendants, it is clear that they would have owed a duty
of care to the plaintiffs and been in breach of it.

In reaching the conclusion above, the court did not apply the Donoghue principles
because of the fear that to have done so would have been to impose too great a burden
upon the makers of statements. Lord Reid stated that the law must treat negligent
statements differently from negligent acts for two reasons, namely:
 That even careful people are likely to make statements on social occasions which
may influence others, without making the care that they would normally take
during business transactions, whereas it was highly unlikely that a person would
casually put into circulation a negligently made product.

 That words have a greater propensity to spread e.g through newspapers and TV,
than acts and so liability for statements must be confined within …….bands.

Consequently, a plaintiff will only succeed on the basis of the Hedley Byrne Principle if,
the defendant voluntarily assumed a responsibility towards the plaintiff and that the
plaintiff must have reasonably relied upon the defendant.

However over the years, despite the presence of a number of factors that are relied upon b
the courts in deciding whether or not to impose a duty of care, three principal factors to
which the courts will regard to have emerged,

1. The purpose for which the statement was made

See Smith v Eric S Bush [1990]1 A.C 829
C/F Caparo v Dickman [1990]2 AC 605

2. The state of the defendant’s knowledge

The greater the knowledge the defendant has of the plaintiff and the purpose for which he
is likely to rely on his statement, the more likely it is that he will are to the plaintiff a duty
of care.

James McNaughten Paper Group PLC v Hicks Anderson & Company [1991]2 QB 113

3. The reasonableness of the plaintiff’s reliance upon the defendant’s statement

 There a number of circumstances in which it may not be reasonable for a plaintiff

to rely on the defendant’s statement.

 Where the plaintiff has his own independent adviser upon who he can rely.
 James MacNaughten Paper Group PLC v Hicks

 That it is not generally reasonable to rely upon a representation which is made on

a social occasion
Hedley Byrne v Heller, per Lord Reid

 But care must be taken in establishing the existence of a social occasion.

Chauding v Prabhakan [1989]

 The courts will draw a distinction between the passing on of information and the
giving of advice, holding that it is more reasonable to rely on the latter than the
former.

(c) Defective Product Economic Loss

It has already been said that the general rule is that damages are not recoverable in
tort in respect of the cost of repairing a defect in a negligently made product.
However, this general rule does admit a number of exceptions.

(i) The first exception arise out of the case of Junior Books Ltd v Veitchi Co. Ltd
[1983]1 AC 520. The defendants won contractors who specialized in laying
floors. The plaintiffs had entered into a contract with another firm of
contractors for the construction of a factory. The plaintiff nominated the
defendants to lay the floor in the factory. The work of laying the floor was in
fact subcontracted by the main contractors to the defendants. So there was a
contract between the plaintiffs and the main contractors and between the main
contractors and the defendants but there was no contract between the plaintiffs
and the defendants. The plaintiffs’ statement of claim alleged that the floor
had been laid defectively and that they had suffered loss in excess of
₤200,0000 in repairing the floor and in the consequent description of their
business. It was not alleged that the floor constituted a danger to health, it
was simply a claim to recover pure economic loss. It was held that there was
soon a relationship of proximity between the parties that the defendant owed a
duty of care that simply to prevent the infliction of harm upon the plaintiffs
but to avoid faults being present in the work which they had done.

A number of factors were emphasized by the court as giving rise to a sufficient degree of
proximity between the parties;

 That the plaintiffs had nominated the defendants to lay the floor and so they relied
upon the defendants to do the work properly;
 That the defendants knew that the plaintiffs were relying upon their skill in laying
the floor;
 The damage was a direct foreseeable result of the negligence of the defendants.
This case has been criticized in a number of subsequent cases. However, the case lays
down that the duty of care is dependent upon the finding of a ‘unique, albeit non-contract
roll relationship between the parties which has two essential ingredients, namely:

(1) That there should be reasonable reliance upon the defendant by the plaintiff

- In the Junior Books case this was easily satisfied because Junior Books
nominated Veitchi to lay the floor and so they relied upon the skill of
veitchi.

(2) Secondly there must be an assumption of responsibility by the defendant towards

the plaintiff.

- This element is very difficult to comprehend and prove, so that even in the
junior Books case itself the relationships were structured in such a way hat
the defendants assumed a legal responsibility towards the main contractors
and the main contractors assumed responsibility towards the plaintiffs.
Consequently it is difficult to accept the argument that the defendants did
assume a legal responsibility towards the plaintiffs.

In view of this second element, plaintiffs have plan--- in their attempt to establish that the
defendants have assumed a responsibility towards them. This is illustrated by the case of
Greater Nottingham Cooperative Society Ltd v Cementation Piling and Foundations Ltd
[1989] QB 71. Here the plaintiffs employed contractors to extend premises of theirs in
skegness. The defendants were nominated sub-contractors who were responsible for the
pile-driving. They carried at this task negligently with the result that the plaintiffs
suffered economic loss which included consequence of delay in completion of the
building. There was a contract between the plaintiffs and the defendants but the contract
only related to the supply of the materials and it did not extend to the manner in which
the work was done. The plaintiffs originally brought an action against the defendants in
both contract and tort but later abandoned the contractual action and proceeded only in
tort. The Court of Appeal held that the defendants did not owe a duty of care to the
plaintiffs because the contractual relationship between the parties precluded the existence
of a duty of care in tort.

Woolf J stated:

“Where, as here, the subcontractor has entered into a direct contract and expressly
undertaken a direct but limited contractual responsibility to the building owner, I
regard the direct contract as being inconsistent with any assumption of
responsibility beyond that which has been expressly undertaken. This does not
affect the subcontractor’s normal liability in tort but does negative the existence
of the exceptional circumstances needed for liability for economic loss.

(ii) The Second exception, was recognised by Lord Bridge in Murphy v Brentwood
District Council [1990] A.C. 398, when he stated at 475 that:
 “If a building stands so close to the boundary of the building owner’s land that
after discovery of the dangerous defect it remains a potential source of injury to
the person or property on neighbouring land or on the highway, the building
owner ought, in principle, to be entitled to recover in tort from the negligent
builder the cost of obviating the danger, whether by repair of by demolition so far
as that cost is necessarily incurred in order to protect himself from potential
liability to third parties.”

However the limits or indeed the rationale of this exception remains unclear.

(b) Where necessary is doubtful or difficult

In these cases it is mainly the character of the plaintiff or defendant which is crucial in
deciding whether or not a duty of care is owed.

1. The Character of the Plaintiff

Although the law has became mere liberal with the passage of time, there remain certain
classes of plaintiff where the courts remain reluctant, or have had difficulty in
recognizing, the existence of a duty of care.

 One case in point is the plaintiff who suffers injury while participating in a
criminal act as a result of the negligence of the defendant.

 This was the case in Ashton v Turner [1981] QB 137. The plaintiff suffered
injury as a result of the negligence of the defendant who at the time at which he
suffered injury was driving the gate away car from the scene of a burglary in
which they had both participated. The court held that an grounds of public policy,
the defendant did not owe to the plaintiff a duty of care. It is not however the
case that participation in criminal activity will inevitably deprive a plaintiff of the
protection of the law of tort; it is only where it is of sufficient gravity to involve
the madam ex turpi causa non oritor action that it will do so (from a base cause
no action can proceed).

 Secondly, although a child who was born disabled has a case of action in view of
the negligence of doctors during the pregnancy or at the time of birth, courts are
reluctant to recognize the existence of a duty of care where the plaintiff’s claim is
that his deformities are such that he should not have been born at all:

 In Mickery v Essex Area Health Authority [1982]QB 1166, the infant plaintiff was
born disabled as a result of her mother suffering an infection of rubella during
pregnancy. She claimed that but for the negligence of the defendants in failing to
treat the rubella, her mother would have had an abortion. It was held that the
plaintiff’s claim in effect was that she should not have been born at all and that
such a claim was contrary to public policy on the ground that it was violation of
the sanctity of life. The other problem was that the court had no means of
assessing damage for breach of such a duty, were it to exist, because damages
 would have to be assessed on the basis of the difference between life and the
termination of life, and that the court could not be calculated.

However parents can bring an action for the pain and suffering of giving birth to an
‘unwanted’ child and for the consequent disruption to family finances.

In Emeh v Kensington & Chelsea & Westminister AHD [1985]QB 1012, the plaintiff had
an abortion followed by a sterilization operation to prevent her from becoming pregnant
again. She had 3 children prior to the operation. The operation was however performed
negligently by the defendants and the plaintiff became pregnant once again and did not
discover this fact until she was 20 twenty weeks pregnant. She refused to have another
abortion and she gave birth to a child which was congenitally abnormal. She claimed
damages for the pain and suffering of giving maintenance of the child. It was held that
the plaintiff’s failure to have an abortion did not break the chain of causation and that the
defendants were liable to the plaintiff.

Thake v Maurice [1984]2 AllER 573

Allen v Blomsbury Health Authority [1993] AllER 657

McFarlane v Tayside Health Board [1999]4 AllER 961

2. The Character of the Defendant

There are a number of defendants who are a limited duty of care or even enjoy absolution
immunity from suit in negligence. This include judges, lawyers, police, fire brigade and
statutory authorities.

(i) Judges and Lawyers

As noted earlier on judges enjoy an absolute immunity from suit in negligence.

Following from this, a negligence action cannot be used as a vehicle to challenge
the decision of a competent jurisdiction. The proper method of challenge is to
appeal against the decision.

See Hunter v Chief Constable of West Midlands [1982] AC 529.

Thus an action against a lawyer will not be allowed where the effect of such an action
would be directly or directly to challenge the decision of a court of competent
jurisdiction.

Smith v Linskills [1996]2 AllER 353

However, this role will only apply where the plaintiff had a full opportunity to contest the
decision of the court. Where the plaintiff alleges that his legal adviser had failed to
advance a point of law which might have caused a decision adverse to the plaintiff to be
set aside, such an action does not amount to re-litigation of a decided issue and the
plaintiff may then sue his legal adviser.
Walpole v Patridge & Wilson [1993]WLR 1093

Lawyers do not enjoy the same immunity from suit as do judges. But they do enjoy some
immunity. In Rendel v Worsley [1969]1 AC 191, the House of Lords held that a barrister
has immunity from suit at the instance of his client in respect of his conduct and
management of a court case and in respect of the preliminary work connected with the
case such as preparation of pleadings.

In Saif Ali v Sydney Mitchell & Co. Ltd [1980] AC 198 it was held by the House of Lords
that the immunity declared in Randel was not confined to court work but that it extended
to pre-trial work provided that the pre-trial work was intimately connected with the
conduct of the case before the court and that it affected the way in which the case was to
be handled.

C/f Somasundarana v M Julius Melchior [1989]1 AllER 129

However, if time has been wasted by counsel during the conduct of proceedings and the
court is satisfied that counsel had acted negligently, unreasonably or improperly, the
court can make an order for caused costs against the lawyer.

Ridehaley v Horsefield [1994]3 WLR 463

This immunity of lawyers is not founded upon the lack of foreseeability of harm but on
considerations of public policy and in Yuen Kin Yeu v Attorney General of Hong Kong
[1988]AC 175 Lord Keith stated that Randel was one of the few cases where
considerations of policy or of what is just and reasonable will operate to deny the
existence of a duty of care. These considerations of policy are that a lawyer must be able
to carry out his duty to the court fearlessly, negligence actions against lawyer would
make a retrial of the original action inevitable and so lengthen proceedings and that a
lawyer has to accept any client however difficult he may be.

Where the considerations of policy in Randel are not present, in other words the
negligence does not relate to the conduct of the case in court, than a lawyer may are a
duty of care to the plaintiff. Ross v Counters [1980 Ch 297

C/f Magaleta v Savjan & Co. MLR

(ii) Police

The police do not enjoy a general exemption from the ordinary law of a country.

Marshall v Osmand [1983]QB 1034

Thus the police have been held liable in negligence when they have negligently infected
damage in the course of their work.

Kirkham v Chief Constable of Greater Manchester Police [1990]2 QB 283

Two problems have however arisen in relation to actions brought against members of the
police force.

 The first, is the role of public policy in denying the existence of a duty of care,
and

 Whether, and if so when, the police can be held liable for the deliberate
wrongdoing of third parties.

Role of Public Policy

This is illustrated by the case of Calveley v Chief Constable of the Merseyside Police
[1989]AC 1228.

Three police officers alleged that the defendant chief constable was licariously liable for
the negligence of investigating officers who were responsible for carrying out
investigations into complaints made by members of the public who had been arrested by
the plaintiff officers. The plaintiffs alleged that the investigating officers had been
negligent in failing to proceed expenditiously with their investigations and in failing to
provide them as soon as possible.

The House of Lords dismissed to plaintiff’s claim holding that no duty of care was owed
by the investigating officers to the plaintiff. The anxiety ill health and loss of reputation
allegedly suffered by the plaintiffs were not a reasonably foreseeable consequence of the
alleged negligence. It was also held it would be contrary to public policy to recognize the
existence of such a duty of care because there was a public interest in the fool and free
investigation of such complaints and the imposition of a duty of care might impede such
investigations.

See also Hughes v National Union of Mine Workers [1991]4 AllER 278.

Whether the police can be liable for loss caused by a third party

This refers to cases where a third party deliberately causes loss on the plaintiff, which
would have not been caused had the police taken same action.

In Hill v Chief Constable of West Yorkshire [1989] AC 53. The plaintiff was the mother
of Jacqueline Hill, who was the last victim of the Yorkshire Ripper. The plaintiff argued
that the defendant had failed to exercise all reasonable care and skill in seeking to
apprehend the perpetrator of these murders and that, had he exercise proper care and skill,
the perpetrator would have been apprehended earlier and her daughter would not have
been murdered. The House of Lords held that the claim disclosed no cause of action and
struck it out. It held further, that it was foreseeable that if a violent criminal was not
apprehended a citizen could suffer injury, but it was held that foreseeability of harm did
not if itself establish the existence of a duty of care. While at common law police officers
owe to the general public a duty to enforce the criminal law which is enforceable in an
appropriate case that duty could not be translated into a general duty of care to identify
and apprehend an unknown criminal.

Home Office v Dorset Yacht [1970]AC 1004

Clough v Bussan [1990]1 AllER 431

However, the police do not enjoy a blanket immunity in this area. In Swinney v Chief
Constable of Northumbria Police [1996]3 AllER 449, the plaintiff passed on to the police
certain information concerning the unlawful killing of a police officer. The person
implicated was known by the police to be violent. The informant requested total
confidentiality as she did not want the information to be truced back to her. A document
containing the information supplied together with the informant’s name, was left in an
unattended police car in an area where vehicle crime was common. The car was broken
into, and the person implicated in the killing obtained the document. There after, the
informant and her husband were threatened with violence and arson and both suffered
psychiatric damage. The plaintiff sued in negligence and the police applied to have the
action struck at. The court held, that a sufficient relationship of proximity existed
between the plaintiff and the police. As regards public policy, the court refused to accept
that the police have a blanket immunity and indeed stated that some considerations of
public policy, such as the need to protect and encourage informers, acted against the
police in this case.

See Costelle v Chief Constable of the Northumbria Police [1999]1 AllER 550

(ii) In Church of Jesus Christ of Latter Day Scuints v West Yorkshire Fire & Civil
Defence Authority [1997]2 AllER 865. A fire broke out in a classroom
attached to the plaintiff’s chapel. The fire brigade was called and of the 7
hydrants around the premises four failed to work and other 3 were found so
late as to be of little use. As a result water had to be obtained from half a mile
away and the plaintiffs claimed that a fire which should have been contained
to the classroom destroyed the entire chapel as well. The plaintiffs alleged
breach of duty in failing to inspect regularly the hydrants, failing to observe or
repair the defects and allowing one hydrant to became hidden by vegetation.
The High Court held that it was not fair, just and reasonable to impose a duty
of care on the brigade and used the same arguments that mitigated against
imposing a duty of care in the police in their operations.

(iii) See also John Munroe (Acrylics) Ltd v Landen Fire and Civil Defence
Authority [1997]2 AllER 865

However in Capital & Canties PLC [1997] 2 AllER 865 a different decision was reached.
Here a fire broke out in the roof space of the plaintiff’s premises. The premises,
including the roof space, were fitted with a sprinkler system. The fire officer in charge
mistakenly believed that there were no sprinklers in the roof, and thus that the sprinkler
system was not assisting in fighting the fire, but was instead hampering the firemen. He
therefore, ordered the whole sprinkler system to be turned off. Following this the fire
spread rapidly and the whole building was destroyed. The plaintiffs sued in negligence
and the High Court held that the fire brigade owed a duty of care not to commit position
acts of negligence, and in relation to such acts there were no public policy reasons why
the fire brigade should be immuned from a s.. in negligence.

(iv) Negligence in the exercise of a statutory power

A defendant who commits a tort in the cause of the exercise of a statutory power may
owe a limited duty of care. Different considerations apply where the negligence lies in
the exercise or non-exercise of a statutory power. The difficulty that arises mainly in the
cases of non-exercise of statutory powers is that the court must reconcile the principles of
the tort of negligence with public law doctrines relating to the control by the courts of the
exercise of statutory powers and the exercise of discretion conferred by parliament.

This is illustrated by Sheppard v Glossop Corporation [1921]3 KB 132. The defendants

were empowered to install street lighting but in the exercise of their discretion they
decided to turn the lamps off at 9pm. The plaintiff was injured when he fell in the street
in the dark. He brought an action in negligence against the defendants. The court of
appeal held that defendants could not be held liable in negligence when they had decided
in the exercise of their discretion, not to light the streets or only to light them for a certain
time. That to allow such an action to succeed would have the effect of exercising for the
defendants the discretion which parliament had conferred upon them.

In Home Office v Dorset Yacht Co. [1970] Ac 1004, Lord Doplock stated that where the
defendants made a decision of policy in the exercise of their discretion it must be shown
that the public body had acted ultra vires before a claim in negligence could succeed.
However, where the negligence had at the level of implementation of these policies,
referred to as the operational level, then the defendants would not enjoy an immunity
from suit because there are imposition of liability in tort would not conflict with the
exercise of the defendant’s discretion

There are some factors which courts have laid down to be the ones that militate against
the imposition of a duty of care in the exercise of statutory powers. These were laid
down in Rowling v Takaro Properties Ltd [1988]AC 473

 The first is that in many cases the plaintiff will be able to obtain judicial review
within a short space of time and so the only damage which will be suffered is the
cost of delay, which is unlikely to be large.

 That it will be very difficult to establish that an error in interpreting a statute is

negligent, because a misconstruction of a statute can be severely criticized
without it being held to be negligent.
  The court must bear in mind the danger of overkill in that the imposition of
liability may result in the cautions civil servant going to extreme lengths before
making a decision in order to escape liability in negligence.

 It will be very difficult to establish a case in which the minister is under an

obligation to seek legal advice as to the extent of his statutory powers.

Although the courts are reluctant to conclude that a defendant owes a common law duty
of care when exercising a statutory power, this does not mean that a negligence claim can
never lie in such circumstances. This is demonstrated by the case of Lonrho plc v Tebbit
[1992] 4 AllER 280

Psychiatric Injury or Nervous Shock

This means a mental injury or psychiatric illness and not simply grief and sorrow.

See Bruce v Brown [1984]1 AllER 997

The psychiatric injury must be induced by shock Lord Ackner noted in A Lock v Chief
Constable of South Yorkshire Police [1992]1 AC 310 that the shock must involve a
sudden appreciation by sight or sand of a horrifying event.

(a) The Historical Development of the Law

The original test applied in these causes was laid down in Victorian Railway
Commissioners v Coultas (1888) 13 App. Cas 222, where it was stated that no duty of
care was owed in respect of psychiatric injury which in the ordinary course of things,
would result from the negligence of another.

The fear behind this approach was that once it was admitted that a duty of case was owed,
the floodgates would be opened and plaintiffs would be encouraged to make
unmeritorious claims and an undue burden would be imposed upon the defendants.

This rigid approach was departed from in Dulieu v White [1901]2 KB 669, where it was
held that recovery could be granted in respect of psychiatric injury where the plaintiff
was put in fear of here own safety. The plaintiff, who was pregnant, suffered psychiatric
injury, which resulted in the premature birth of her baby, when an employee of the
defendants negligently drove his van into a public house where the plaintiff was serving
behind the bar. The plaintiff being put in fear of her own safety was held to be able to
recover damages from the defendants.

This test was however disapproved by the court of appeal in Hambrook v Stokes Bros
[1925] 1 KB 141. The defendant left his lorry at the top of a hill. The brakes of the lorry
were not properly on. The engine was also left running with the result that the lorry
started itself off and ran violently down the road. The plaintiff suffered psychiatric injury
on seeing the lorry running down the hill because she had just left her children in the
direction in which the lorry was traveling. It was held that the defendant was liable for
the psychiatric injury suffered by the plaintiff. Bankes LJ stated that the injuries suffered
by the mother were the normal consequences which any mother would suffer in such a
situation. Atkin LJ, stated that she perceived the accident with her own senses and not as
the result of being told by a third party.

The next case was that of Bourhill v Young [1943] AC 92. The plaintiff had witnessed a
motor accident caused by the negligence of the defendant and in which the defendant was
killed. She claimed that she heard the accident and saw the aftermouth of it and that this
had caused her baby to be stillborn. The House of Lords was not however clear as to
which test it thought was applicable.

Lords Thankerton, Russell & Macmillan held that the plaintiff was so far away from the
scene of the accident, that it was not reasonably foreseeable that she would suffer
physical injury. That she was not within the area of physical injury. However, Lords
Wright & Partner argued that what was determinative of liability was the foreseeability of
emotional injury and not the foreseeability of physical injury.

Another case of significance is King v Phillips [1953]1 QB 429

The defendant negligently backed his taxi cab over a small bay who had been riding on
his bicycle close to the taxi cab. The bay was slightly injured as a result of the accident.
The boys, mother, who was standing at her window some 70 yards away heard her son’s
scream and saw her son’s bicycle under the taxi cab, but she could not see her son at all.
She suffered psychiatric injury. It was held that it was not a reasonably foreseeable
consequence of his negligence. This case is important because both Denning LJ &
Singleton LJ held that the plaintiff need not be in the area of physical impact to be able to
recover in respect of psychiatric injury and they held that the plaintiff need not be put in
fear of her own safety to be able to recover for psychiatric injury. They held that the
appropriate test to apply was that the psychiatric injury must be reasonably foreseeable
but they adopted a rather narrow test of reasonable foreseeability so as to find that the
defendant was not liable to the plaintiff. The case which finally established the proper
test for the recoverability of damage for psychiatric injury was Mcloughlin v O’Brian
[1983]1 AC 410. The House of Lords held that the appropriate test to apply was whether
or not it was reasonably foreseeable that the plaintiff would suffer psychiatric injury as a
result of the negligence of the defendant.

In this case, the plaintiff’s husband and her 4 children were involved in a car accident
which was caused by the negligence of the defendant. One of the plaintiff’s children
was killed in the accident and the others were severely injured. The plaintiff was
informed an have later that an accident had occurred and she went to the hospital where
she saw her family and the extent of their injuries, in what were described as
circumstances which were distressing in the extreme. As a result of this experience, the
plaintiff suffered psychiatric injury. It was held that the plaintiff’s psychiatric injury was
a reasonably foreseeable consequence of the defendant’s negligence and so she was
entitled to recover damages. However 2 different approaches are discernible in the
judgments given.
The first approach was adopted by Lord Wilberforce who held, that because shock was
capable of affecting so many people, the law must place a limit upon the situation in
which a plaintiff could recover in respect of psychiatric injury. Consequently h held that
there were 3 elements inherent in any claim for psychiatric injury.

The first was the class of persons whose claims should be recognized. He held subject to
the special case of a rescuer so far… the cases do not extend beyond the spouse and
children of the plaintiff. He further stated that other cases involving less close
relationships must be very carefully scrutinized not that they should never be admitted.
That the closer the tie (in care & relationship) the greater the claim for consideration.

The dicta suggests that recovery will generally be allowed in respect of injury to close
members of the family but not to ordinary bystanders. The only exception relating to
bystanders is that a person who suffers psychiatric injury as a result of seeking to rescue
those involved in a terrible accident may be permitted to recover in respect of the injury
which he suffers.

White v Chief Constable of the South Yorkshire Police [1999]1 AllER 1

Chadwick v British Transport Commission [1967] 1 LWR 912

The second element was that of proximity of the plaintiff to the accident. That the
plaintiff must be both close in time and space. Such would include persons who saw or
heard the accident. It was also said that this category should also apply to someone who
came on the ‘aftermath’ of the accident, by which he meant ‘direct perception’ of some of
the events that go to make up the accident as entire event.

The third requirement related to the means by which the injury was caused. That the
injury must be caused by sight or hearing of the accident or its aftermath did not point out
whether some equivalent to sight or hearing e.g through simultaneous television would
suffice.

Consequently according to Lord Wilberforce, unless these three requirements were met
there was no liability for psychiatric injury because, if it were otherwise the floodgates
would be opened to unmeritorious claims.

The second approach was by Lord Bridge, who stated that the ritual question was
whether or not psychiatric damage was a reasonably foreseeable consequence of the
defendant’s breach of duty.
There was therefore no one voice and the lower courts were insure of the approach that
they had to follow until the decision of the horse of lands in Alcock v Chief Constable of
South Yorkshire [1992]1 AC 310 where Lord Wilberforce’s approach was followed. It
was stated that a plaintiff must show, not only that psychiatric injury was reasonably
foreseeable, but also that there existed a relationship of proximity between the plaintiff
and the defendant.

The Alcock case arose out of the Hisslborough disaster, where 95 football fans died as a
result of overcrowding cause by the admitted negligence of the defendant who was
responsible for policing at the stadium. The plaintiffs consisted of a broad range of
relations of people present, injured or killed in the tragedy including’ a wife, parents,
brothers, sisters, uncles, a grandfather, a brother inlaw, a fiancée and a friend.

The House of Lords held that a person could only recover for nervous shock which
caused psychiatric injury where;

(i) It was reasonably foreseeable that he would suffer nervous shock as his
relationship of love and affection with the primary victim was sufficiently
close;

(ii) His proximity to the accident or its immediate aftermath was sufficiently close
in both space and time; and

(iii) He suffered nervous shock through seeing or hearing the accident or its
immediate aftermath.

Let us examine the three requirements in detail

(i) The Class of Persons Eligible to Claim

As noted earlier on, in Mcloughlin case, the court stated that the cases do not extend
beyond the spouse or children of the plaintiff. However in Alcock’s case the court
adopted a rather expansive approach and held that the category of plaintiffs eligible to
claim was not confined spouses and parents but extended to all relationships which were
based upon ties of love and affection and where it demonstrated that the love and
affection for the victim was comparable to that of the normal parent, spouse or child of
the victim.
Consequently, the court held that only the parent who had lost a son and the fiancée were
within the category of plaintiffs eligible to bring a claim. In relations to the brothers and
brother inlaw, it was held that they were excluded because there was no evidence of any
particularly close ties of love and affection.

It is important to note that the class of plaintiff eligible to claim also extends to situations
where the relationship is with the property of the particular plaintiff. This is illustrated by
Attia v British Gas PLC [1988]QB 304. The defendants entered into a contract to install
central heating in the plaintiff’s house. The plaintiff returned to her home to find that it
was on fire as a result of the negligence of the defendants. She telephoned the fire
brigade but it took them four hours to bring the fire under control. The plaintiff claimed
that she had suffered psychiatric injury as a result of witnessing the extensive damage to
her house. The defendants admitted that they were liable for the damage to the plaintiff’s
house and its contents but they denied that they owed a duty of care in respect of the
plaintiff’s psychiatric injury. They argued that as a matter of law and public policy,
damages could only be recoverable for psychiatric injury where it was suffered as a result
of fear of death or personal injury to a person closely related to the plaintiff. The
argument was rejected because the court was not prepared to lay down as a rule of law
that in no circumstances could damages be recovered for psychiatric injury suffered as a
result of witnessing damage to property.

(ii) Proximity of the Plaintiff to the Accident

In the Alcock case the point in issue related to the scope of the immediate aftermath.

Some of the plaintiffs who identified the bodies of loved ones in mortuaries sought
unsuccessfully to bring themselves within the scope of the doctrine. But it was held that
these cases did not fall within its scope because the earliest identification of a victim
occurred 8 or 9 hours after the tragedy and this could not be said to be the immediate
aftermath.

Consequently the immediate aftermath operates within very narrow confines and courts
will be reluctant to extend it beyond the factual situation in Mcloughlin.

(ii) Means by which the shock was caused

The requirement is that the plaintiff psychiatric injury must be caused by his or her sight
or hearing of the event or its immediate aftermath.

In the Alcock case, the plaintiffs had watched the events unfold on television but the
court held that viewing the scenes of the tragedy on television was not sufficient because
it could not be equated with sight or hearing of the event or its immediate aftermath. This
was because the viewers on television did not see recognizable individuals.
This does not necessarily mean that television viewers are excluded in all cases.

Does it suffice for one to recover in respect of injuries for …shown where he/she gets
told of the accident and does not see it or its remedies aftermath.

Hevkan v Kuane [1991]3 AllER 65

Hunter v British Coul Corperation [1998]2 AllER 97

Breach of Statutory Duty

Introduction

A breach by the defendant of his statutory may give the plaintiff a cause of action in tort.
The difficulty which arises with breach of statutory duty lies in discerning which statutes,
in their breach give rise to a cause of action in tort.

Sometimes this can be clear, as when the statute is enacted for the very purpose of giving
the plaintiff a cause of action in tort in a situation in which he would not have had a cause
of action before e.g. The Occupiers’ Liability Act 1984.

But in vast majority of cases the statute is completely silent as to whether or not breach
give rise to a cause of action in tort. So we must look to the cases to see the principles
which the courts have applied in considering whether breach of statutory duty gives rise
to a cause of action in tort.

The standard required of the defendant, in a particular case depends on the wording of the
statute. The statute may in effect impose absolute liability upon the defendant or it may
require that the defendant by guilty of negligence before its provisions are breached.

However, the most important area of operation of the tort of breach of statutory duty is
that concerned with industrial safety.

Does the Breach confer a right of Action in Tort

In deciding whether the breach of statutory duty confers upon the plaintiff a cause of
action in tort, the general approach which the courts adopt in tort, the general approach
which the courts adopt is one construction, that is, does the Act, on its true construction
confer upon the plaintiff a right of action in tort in respect of breach of the statute.

In Cutler v Wandsworth Stadium Ltd [1947]Ac 398, the House of Lords stated that the
question whether legislation which makes the doing or omitting to do a particular act a
criminal offence renders the person guilty of such offence liable also in a civil action for
damage at the suit of any person who thereby suffers loss or damage is a question of
construction of the legislation.

In Lonrho v Shell Petroleum Co Ltd (No.2) [1982]AC 173, Lord Doplock stated that the
initial presumption was that, where the statute created an obligation and a means of
enforcing that obligation such as a criminal penalty, then the obligation cannot be
enforced in any other way. However, he held that there were two main exceptions in this
initial presumption. The first arose where the statute was enacted for the benefit of a
particular class of individuals and the second was where the statute created a ‘public
right’ and the plaintiff had suffered ‘special damage’ which was damage over and above
the damage suffered by the public at large.

The case of CBS Songs Ltd v Amstrad Consumer Electronics PLL [1988]Ch 61,
illustrates the importance of these presumptions. The defendants manufactured a twin-
deck tape-recording machine which could be used to copy directly from one tape on to
another. The plaintiffs, who were 3 record companies who were as representing other
copyright owners in the music industry, alleged that the defendants had advertised the
machines in such a way as to incited members of the public to commit the criminal
offence of taping copyright material in breach of the Copyright Act of 1956. The
plaintiffs sought an injunction to restrain the defendants from selling the machines unless
they ensured that the plaintiff’s copyright material would not thereby be infringed. The
court refused to grant the injunction and Nicholas LJ held that, the plaintiffs did not came
within either of the two exceptions to the initial presumption so that they could not
maintain an action in tort for breach of statutory duty. He rejected the idea that there was
a 3rd exception under which a court could in equity grant an injunction to a plaintiff to
restrain a breach of the criminal law. He conceded that the court might grant such an
injunction where the defendant’s crime infringed a property right of the plaintiff, but he
held that such a jurisdiction arose out of a concern to protect the property rights of the
plaintiff and not out of a desire to ensure that the criminal law was enforced.

Let us analyse the law by looking at cases where the Act itself makes provision for
remedy and cases of the two exceptions.

(i) The Remedy provided in the Act

One of the crucial issues in determining whether breach of the statute give rise to a case
of action in tort is the remedies provided or not provided in the Act for breach of its
provisions.

Where the Act imposes a duty upon the defendant, but provides no remedy for breach of
that duty, then the presumption is that breach does give rise to a cause of action in tort.

Thus in Thornton v Kirklees Metropolitan Borough Council [1997] QB626, the

defendants were in breach of the Housing (Homeless Persons) Act 1977 and the plaintiff
suffered loss thereby. There was no provision in the Act for a remedy for breach of the
Act’s provisions and so the court held that a cause of action lay in tort in respect of the
defendant’s failure to comply with their statutory obligations.
On the other hand, where the statute itself provides a remedy for breach of its provisions,
then it is much harder to show that the breach also give rise to a cause of action in tort.
This in Groves v Lord Wimborne [1998]2 QB 402 the defendants were subject to a fine of
Elovo for breach of their statutory duty in failing to put a fence around their machinery.
The plaintiff was injured by the infenced machinery. But the court pointed out that not
one penny of a fine imposed under the sections need ever go into the pocket of the
injured. The court further held that the object of the fine was to inflict a punishment upon
the employer for his breach of duty and that the compensation of the victim of the
employer’s failure to comply with his obligation was an entirely separate issue. The fine
imposed on the offender under the Act was a small one in comparison with the injury to
the plaintiff. It was also held that there was no reason why the plaintiff should be bound
by this limitation and this was held to be another reason for not denying to the plaintiff a
case of action in respect of the breach of the Act.

A different approach was taken in Atkinson v Newcastle Waterworks Co. (1877)2 EX D

441. The defendants who supplied water to Newcastle, were statutorily required to keep
their pipe’s at a certain pressure level. Failure to do so could result in a fine of ₤10, no
part of which was payable to the person affected by the defendant’s failure to comply
with their obligations. The plaintiff’s premises caught fire and due to the pressure in the
pipes being insufficient, there was no water to extinguish the fire and the premises were
burnt down. It was held hat the penalty imposed in the statute was an exclusive one and
that it could not have been intended that the defendants would become, in effect, on
insurer that sufficient water would be available to put out a fire. The fact that the fine
which was payable in respect of the breach did not go into the pocket of the individual
but was a public penalty was held to be evidence that the Act did not give a cause of
action to an individual in respect of a breach of its provisions and that the purpose behind
the fine was simply to impose a security for performance of a statutory duty.

These cases show that it cannot necessarily be assumed that the mere fact that the
statutory penalty is inadequate will lead a court to conclude that the plaintiff has available
to him a cause of action in tort in respect of he damage which he has suffered as a result
of the breach.

It should also be noted that the fact that the plaintiff had available to him a remedy at
common law may affect the willingness of the court to conclude that the plaintiff also has
available to him a tort action in respect of the breach of statutory duty.

In Phillips v Britannice Hygienic Laundry Co Ltd [1923]2 KB 832, the defendants were
in breach of the Motor Cars (use & Construction) Order 1904 because their vehicle was
in a defective condition. The reason for it being in a defective condition was the
negligence of the people to whom they had entrusted the car for repair. While the
defendants were using the vehicle in this defective state, it was involved in an accident in
which the plaintiff’s van was damaged. The plaintiff claimed damages in respect of the
breach of statutory duty. The regulations made provision for a criminal penalty in respect
of their breach but was silent as to a civil remedy. It was held that the duty owed under
the regulations was a public one and that it did not give a member of the public, and
therefore the plaintiff a cause of action respect of its breach. Altkins L J stated that:-

“The obligations of those who bring vehicles upon highways have already been
well provided for and regulated by the common law. It is not likely that the
legislature intended by these regulations to make them roadworthy in all events,
even in the absence of negligence.”

However it should not be thought that the availability of an alternative remedy makes it
impossible to show that the plaintiff also has a case of action in respect of the breach of
statutory duty.

Monk v Warbey [1935]1 KB 175

(ii) Statutes for the Benefit of a Class

This is the 1st exception to the presumption. If the Act was intended to protect the
plaintiff himself or a class of persons to which the plaintiff belongs, then the plaintiff has
a cause of action in tort.