17. Actions under Rylands v Fletcher

This chapter first looks at the idea of there being a form of strict liability for the escape of things brought onto and kept on land, arising from the case of Rylands v Fletcher. It continues by looking at the concept of ‘adopting a nuisance’; that is, allowing a nuisance on land to continue or failing to remove a natural hazard on land that ought to have been removed or been attended to, for example in order to prevent a one-off escape. Cases in this area have led to the existence of a ‘measured duty of care’, seemingly bringing the land torts closer to negligence.

15. Defamation

This chapter focuses on defamation. It examines the Defamation Act 2013 and explains who can sue for, and be liable in, defamation, when a statement is ‘defamatory’ and innuendo. It also considers the defences of truth, honest opinion, publication in a matter of public interest and privilege. It concludes with a discussion of damages for defamation.

7. Breach of duty: the standard of care

Once it has been established that there is a sufficient relationship between the parties to establish a duty, the question then arises whether the defendant has been in breach of this duty. This involves a number of issues, many of which involve the judgment of the ‘reasonable man’. The defendant’s behaviour must have fallen below the level of the standard of care owed, which defines the level of safety a claimant is entitled to expect.

4. Special duty problems: psychiatric harm

This chapter discusses the ‘special duty issue’ that arises when a person has suffered psychiatric harm as a result of the defendant’s negligence. This issue has an interesting history, for it was thought at first that a claimant could only succeed if he or she was within the range of physical impact. In other words, only the ‘primary’ victim could sue. Liability was later extended to secondary victims; that is, where the claimant was not at risk of physical injury, but saw or heard the accident which caused the shock with his or her own unaided senses.

1. Introduction

This introductory chapter begins by providing examples of torts. It then discusses the aims of the law of torts, the most significant being compensation and deterrence. Part of the justification for a tort is that it identifies what actions should be avoided and deters people from engaging in them. It is essential to know that action is wrongful, but a tort action may over-deter or under-deter. It may over-deter where the perception of the chance of liability is exaggerated. It may under-deter where either the chances of somebody suing to enforce their rights are small, or where the consequences to the individual tortfeasor may be slight. Originally tort was about ‘shifting’ or ‘transferring’ the loss from the victim to the defendant (corrective justice). The defendant themselves paid compensation to the victim. However, those days are gone and we are now in an era of ‘loss distribution’. In other words, it is not the defendant himself who pays, but it will be their, or their employer’s, insurer. The chapter then considers the study of torts. Tort law is almost wholly a case-driven subject and therefore a good knowledge of the cases and what they stand for is essential. The chapter presents three steps to studying cases.

18. Vicarious liability

Vicarious liability is a system whereby an employer is liable for the torts of his employees committed in the course of employment. The principle of placing liability on the employer as well as upon the individual tortfeasor is mainly justified by the concept of loss distribution; that is, that the employer will usually be better able to distribute the loss, either through insurance or through his customers. This chapter begins with a definition of an employee. It then discusses the liability of the employee; how an employer is liable for the torts of his employee only if the act is committed ‘in the course of his employment’; and liability for independent contractors.

14. Invasion of privacy

This chapter discusses different aspects of privacy. It shows that there is no general common law right to protection from invasion of privacy (the so-called ‘right to be let alone’), but that limitation has been largely subverted by the new law in the second section on the protection of personal information and the reasonable expectation of privacy that has developed significantly in recent years. This shows the potential power of the Human Rights Act 1998 and the European Convention on Human Rights, and is the subject of considerable controversy, especially in relation to the protection of celebrity privacy. The final section considers remedies in privacy cases.

13. Intentional interferences with the person

This chapter considers intentional interferences with the person, including the so-called trespass to the person torts, the tort in Wilkinson v Downton and the Protection from Harassment Act 1997. Trespass is an ancient set of wrongs which mainly deals with the direct, and usually intentional, invasion of a claimant’s interest in his person, his land or his goods. It is the right itself which is protected, and not just the freedom from resulting damage, and much of the law of trespass is the basis of civil liberties today. This chapter considers the torts of assault, battery and false imprisonment, together with various defences. The principal use today of these torts relates not so much to recovery of compensation but to the establishment of a right, or a recognition that the defendant acted unlawfully. The chapter then considers the tort in Wilkinson v Downton which provides a remedy in cases of indirect intentional infliction of distress and the statutory tort of harassment (Protection from Harassment Act 1997).

12. Breach of statutory duty

This chapter discusses liability for breach of statutory duty. There may be cases where a statute renders a certain activity a crime, and the law imposes an additional civil liability towards a person harmed by the act. While some statutes state this directly, most statutes make no mention of potential civil liability, but nevertheless liability may be imposed if the court believes that Parliament impliedly intended there to be a remedy. Not only are there difficulties about when a civil duty will be spelt out of a criminal or regulatory statute, but there are also problems about the role and function of the tort of statutory duty.

11. Product liability

This chapter deals with damage caused by defective products. It considers two separate legal regimes. The first is the ordinary law of negligence, and the second is the system of strict liability introduced by the Consumer Protection Act 1987, as required by a European Directive (85/374/EEC). The latter is limited to personal injuries and to damage to private property, so there are still many cases where a claimant has to rely on negligence. Also, the Act applies only to certain kinds of defendants (‘producers’), and a claimant will need to use negligence if, for example, he is injured by a defectively repaired product. One important point is that both systems apply only to damage to goods other than the defective product and not to damage which the defective product causes to itself: that is a matter solely for the law of contract.