Law of Tort

We continued our discussion on defences to battery with that of self-defence. This is available provided that reasonable force is used in defence of your person, your property, or another person. What is reasonable will depend on the circumstances of the case and the force used must be proportionate to the force offered: Revill v Newberry [1998]: Martin [2000].

We then turned to the third trespass to the person, i.e. false imprisonment. Here the defendant intentionally causes the claimants freedom of movement to be totally restrained without lawful justification. The tort does not require incarceration as such and may be committed by any unlawful detention, such as compelling a person to remain in a field by threatening them with a shotgun (this would also be an assault). The most common modern example is wrongful arrest by a police officer or store detective, so reference must be made to the powers of arrest under PACE.

Restraint must be total: Bird v Jones (1845). The claimant was prevented from crossing a bridge by a particular route. This was not false imprisonment as his restraint was not total.

The restraint will not be total if a person has a reasonable means of escape, such as stepping through a ground floor window. If the means of escape involves danger of physical injury, then it will not be reasonable to expect a person to use it, for example climbing out of a first floor window.

A person can be imprisoned without being aware, e.g. the claimant was asleep, drugged, or insane. Freedom of movement as such is protected. If knowledge is required then the tort protects against the mental effects of knowing that one is confined. Compare the cases of Herring v Boyle (1834) with Meering v Graham White Aviation (1919).

In Murray v Ministry Of Defence (1988) the House of Lords upheld the view in Meering, stating that knowledge was relevant to damages. This was an obiter statement.

Where there is no contractual or other legal duty to release the claimant, a failure to release a person is not false imprisonment. In Herd v Weardale Steel Co. (1915) miners ceased work and demanded to be taken to the surface. A refusal to do so by the employers was not false imprisonment as they were under no duty to return the men to the surface until the end of their shift.

Where a person enters the defendants’ premises subject to a condition of which he is or should be aware then the defendants are entitled to refuse to release him until he complies with those conditions, e.g. leave only through the indicated exit. In Robinson v Balmain Ferry Co. (1910) the claimant entered the defendant’s wharf intending to leave by ferry. When he realised that he had missed the ferry he attempted to leave by the turnstile without paying the required one penny. A refusal to allow him to leave was not false imprisonment. It was clearly stated on a notice board at the entrance that a penny was payable on exit from the wharf (usually after a return journey had been made).

No tort will be committed where the claimants detention can be justified by law, e.g. on arrest.

Briefly, following changes to PACE 1984 made in January 2006 the police now have extremely wide powers of arrest for any offence. The term used is ‘criminal offence’, but it is an all embracing term. A police officer may arrest any person where he has reasonable grounds to believe that the person is about to, is or has committed a criminal offence. In addition where he has only reasonable grounds to suspect that a criminal offence has been committed he may arrest any person who he has reasonable grounds to suspect to have committed it. This last, somewhat tortuous, power means that it is not necessarily the case that a criminal offence has been committed at all, the arrest will still be lawful.

The arrest requires a second ground to be satisfied, in that the arrest must be “necessary”. The times when this will apply are to be found in the old version of s25 PACE, and include where the person’s identity cannot be ascertained. Don’t bother learning the full list.

Upon arrest the officer must do three things, otherwise the arrest will be unlawful, and false imprisonment will occur. Upon arrest he must:

1. inform the detained person of the fact of his arrest (“you’re nicked will do)


2. inform him of the reason for the arrest (simple language only)


3. caution him. Minor deviations to the wording of the official caution are permitted

Civilian powers are limited to those committing or having committed an offence, but this excludes summary offences (the minor ones).

When judging the reasonableness of the grounds upon which a police officer makes an arrest without a warrant the House of Lords has stated that all the evidence should be weighed, including the source of the information, and the inferences drawn should be those that a reasonable man would make: O’Hara v Chief Constable of the RUC (1997) 1 ALL ER 129.

The arrested person must be handed over to a police officer within a reasonable time: Lewis v Times (1952), 60 minutes was okay.

There just about exists a rule from a case called Wilkinson v Downtown (1897), covering practical jokers. The defendant, as a practical joke, told the claimant that her husband had been in an accident and broken both legs. The claimant was awarded damages for the nervous shock which she suffered as a result.

This is not confined to the intentional causing of shock. Dress as a ghost to frighten someone who runs away and falls downstairs, will invite an action.

The decision hasn’t led to any significant claims, and the Protection From Harassment Act 1997 means it probably never will.

The Act came into force in June 1997. Section 3 provides for a civil remedy of damages to compensate for anxiety and financial loss in those circumstances where a breach of s1 has occurred or is apprehended.

Section 1 itself creates an (arrestable) offence of harassment, although the concept of “harassment” is not fully defined. The offence consists of a course of conduct (including speech) on at least two occasions. The harasser is judged by what he knows, or ought to know, will be conduct amounting to harassment of another.

Lau v DIP [2000]: the time between the two incidents may cause problems.

Hill [2001]: two incidents six months apart, with reconciliation in between, was not a course of conduct.

We then turned to the most important tort of all, the tort of negligence. We shall spend several weeks on this. In order to succeed in a negligence action, the claimant must prove that:

1. the defendant owed him a duty of care;


2. the defendant was in breach of that duty;


3. the claimant suffered damage, which was not too remote;


4. the absence of a defence, e.g. contributory negligence or volenti non fit injuria.

Duty relationships are well established, e.g. between one road user and another; doctor to patient; employer to employee; manufacturer to those affected by their products. Most of these have arisen through court decisions, Parliament playing almost no part.

I spoke earlier of certain differences between the law of contract and the law of tort - although both come under the umbrella of the “Law of Obligations”.

There has been a change of mood in the judiciary over the years, original thinking being that where a contract existed there was no possibility of a tort action. Nowadays, that isn’t the case. For example: GESSO v Maroon (1976), an oil company sued in contract and the defendant counter-claimed in negligence.

In favour of concurrent liability was expressed by Lord Goff in Henderson v Merit Syndicates Ltd (1994) in the House of Lords. He could find no “sound basis for a rule which automatically restricts the claimant to either a tortious or a contractual remedy.” He thought the result ‘untidy’ but thought that the claimant should be able to take advantage of the remedy which is most advantageous to him. Whilst this isn’t universally approved of, it is the accepted view.

There are, of course, tests for the existence of a duty of care, and our starting point is the evergreen Donohue v Stevenson (1932). The appellant brought an action against the manufacturer of ginger beer bought for her by a friend at Michelle’s café in Paisley. She drank some of the ginger beer, and when the rest was poured into her glass she saw the remains of a decomposed snail floating from the opaque bottle into her glass. She claimed to have suffered gastro-enteritis and nervous shock as a result of drinking some of the ginger beer and the nauseating sight of the foreign body in her drink. The case proceeded to the House of Lords to decide on the preliminary point as to whether an action existed in tort irrespective of the fact that that there was no contract between her and the manufacturer. The House of Lords (by a bare majority of three to two) laid down that a manufacturer of products owed a duty to take reasonable care to the ultimate consumer of the product. This is known as the “narrow rule” and will be considered later. Lord Atkins also stated his famous “neighbour principle test” (known as the “wide rule”) as a device to determine when a duty of care is owed. He said:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee 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.”

No-one expects you to remember this word-for-word, but you do need to have a good idea of its content.

Why is the case so important?:

• It destroyed the privet fallacy, an idea that where a defendant was liable to one person for a breach of contract, he could not be liable to a third party person in tort for the same act or omission.


• A new category of duty was created; that of manufacturers of dangerous products to their ultimate consumers - the ‘narrow rule’. Note that the defect must cause damage, poor quality is a matter of contract.


• Lord Atkins stated his neighbour test for determining whether a duty of care existed - the ‘wide rule’.

This test based on reasonable foreseeability of damage did not find immediate acceptance with the judiciary and expansion of duty areas was limited until the 1960s.

Home Office v Dorset Yacht Co. Ltd (1970), the House of Lords expressly approved Lord Atkins’ statement. Lord Reid said that although the neighbour principle would require qualification to meet new circumstances (judge’s can never leave well alone!), the time had come to say that it ought to apply unless there is some valid explanation for its exclusion.

This approval was taken up by the House of Lords in Ann’s v Merton London Borough Council (1978) AC 728 (now expressly overruled, although still the law in New Zealand)). Lord Wilberforce stated that the question has to be approached in two stages:

1. whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty arises. (proximity)


2. if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise. (considerations to negate)

What it means is:

1. does the neighbour principle apply?


2. if yes, is there any reason for not allowing the claim?

This two-stage test led to a considerable expansion in the areas covered by negligence, in particular took the tort into the area of recovery of pure economic loss caused by negligent conduct which had previously been thought to be the province of contract the law. Criticism was to follow, and eventually the case was overruled by the House of Lords in Murphy v Brentwood DC (1990), which we shall consider later.

In Hedley Byrne & Co. Ltd v Heller & Partners Ltd (1964), the House of Lords expanded negligence to include liability for negligent misstatement leading to economic loss. The original neighbour test was rejected, and a caveat introduced that required a special relationship between the parties. We’ll cover this shortly. Safe to say for now: it seems that you could recover an economic loss for a negligent misstatement, but not a negligent act.

Until next week…