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Part  6 The elements of liability

I.  Introductory remarks

Departing slightly from Koziol’s terminology, I would entitle this section » grounds 5 / 116 of liability « as this formulation indicates that the inquiry is into alternative bases

on which a person may be liable for damage suffered by another. It is thus to be preferred to the phrase » elements of liability «, which suggests a list of items that are necessary components of a claim. That is not the case as regards the items considered below.

II.  Wrongfulness

A.Damnum sine iniuria

» The world is full of harm for which the law furnishes no remedy. «240 A person may 5 / 117 sustain loss or damage and yet possess no remedy in tort, because his legal rights

have not been infringed in any way which the law regards as wrongful, with the result that he has suffered nothing that amounts in law to an injury241. This doctrine is embodied in the Latin phrase damnum absque iniuria. An entrepreneur can compete freely against a trade rival, provided he stays within the law, even if his strategy is to drive the rival out of business242. At common law, a landowner incurs no liability for erecting a structure on his land that spoils the pleasant view previously enjoyed by his neighbour243. Nor is there any liability for seducing another

person’s husband, wife or partner. It may also be noted in this context that no damages can be awarded in English law for a person’s death per se244 or for a per-

son’s expectation of death in consequence of personal injury ( as opposed to pain and suffering caused by awareness of a reduction in life expectancy )245.

240D v. East Berkshire Community Health NHS Trust [ 2005 ] UKHL 23, [ 2005 ] 2 AC 37, at [ 100 ] per Lord Rodger of Earlsferry.

241See also Day v. Brownrigg ( 1878 ) 10 Ch D 294, 304 per Jessel MR; Mayor of Bradford v. Pickles [ 1895 ] AC 587, 601 per Lord Macnaghten.

242Mogul Steamship Co. Ltd. v. McGregor, Gow & Co. [ 1892 ] AC 25.

243Bland v. Moseley ( unreported, 1587 ).

244Admiralty Commissioners v. Owners of Steamship Amerika [ 1917 ] AC 38.

245Administration of Justice Act 1982, sec 1.

B.What makes the infliction of harm wrongful ?

5 / 118 There is no general answer to the question, what makes the infliction of harm wrongful in English law, other than to say ( tautologously ) that the harm must occur in circumstances where the elements of a tortious cause of action are present. From this perspective, fault is regarded as an aspect of wrongfulness, and English lawyers quite frequently treat the two ideas as interchangeable. But, properly understood, there are aspects of wrongfulness that go beyond whether or not there was fault on the facts. For example, in the area of the economic torts, it is not enough for the claimant to show that the defendant intentionally caused him economic loss, for liability only arises if the defendant procures the violation of a right ( eg under a contract ) that the claimant enjoyed independently or used independently unlawful means ( eg intimidating threats ) to cause that loss246. And, to establish the general liability for negligence, it must be shown that the harm was inflicted in breach of a duty of care owed by the defendant to the claimant. This focuses partly on the defendant’s conduct, asking was it negligent with regard to the claimant, but the assessment whether or not the defendant owed the claimant any duty of care, and whether or not any duty that was owed extended to the harm the claimant suffered, has regard to all the circumstances of the case, including the harm actually sustained. Ultimately, the court must exercise its judgment whether, in the light of the foreseeability of the harm and the proximity of the relationship

between the parties, it is fair, just and reasonable to impose on the defendant a duty of care247.

C.A de minimis rule

5 / 119 Additionally, English law applies a de minimis rule whereby unwanted physical changes in the claimant’s person or property are treated as actionable damage only if they reach a given threshold. For example, where a group of claimants developed pleural plaques ( fibrous tissues on the membrane of the lung ) in consequence of their exposure to asbestos, it was ruled that this did not constitute actionable damage. Although pleural plaques are an indicator of an enhanced risk of developing other asbestos-related conditions in the future ( eg asbestosis or mesothelioma ), the plaques were not harmful in themselves and would not themselves cause the development of those other conditions248.

246See generally K. Oliphant, Economic Torts, in: idem, The Law of Tort 2 ( 2007 ) 1533.

247Caparo Industries plc v. Dickman [ 1990 ] 2 AC 605.

248Rothwell v. Chemical & Insulating Co. Ltd. Re Pleural Plaques Litigation [ 2007 ] UKHL 39, [ 2008 ] 1 AC 281.

the circumstances that give rise to such a duty, but the following categories are recognised in the literature: the defendant’s prior creation of a source of danger ( even if entirely without fault ); the defendant’s undertaking of responsibility for the claimant’s welfare253; the defendant’s occupation of an office or position of responsibility ( eg as the claimant’s parent or employer )254; and the ownership or occupation of land255.

249Sutradhar v. National Environment Research Council [ 2006 ] 4 All ER 490, where the House of Lords ruled that a British Government-sponsored survey of drinking water quality in Bangladesh did not entail a duty of care on the scientists to the population of that country such as to found liability for a major environmental disaster involving the contamination of drinking water with arsenic, which put millions of Bangladeshis at risk.

250Basic Questions I, no 6 / 45.

251J.C. Smith / P. Burns, Donoghue v. Stevenson – The Not So Golden Anniversary ( 1983 ) 46 MLR 147.

252Stovin v. Wise [ 1996 ] AC 923, 944 per Lord Hoffmann.

253See eg Kent v. Griffiths [ 2001 ] QB 36 ( ambulance service ). However, a fire brigade that answers an emergency call does not assume any responsibility towards the person whose property is on fire, because that might conflict with the brigade’s responsibility to the public generally:

Capital & Counties plc v. Hampshire County Council [ 1997 ] QB 1004. Indeed, the fire bridge does not even have any duty merely to answer the call ( ibidem ).

254See eg Barnes v. Hampshire County Council [ 1969 ] 1 WLR 1563 ( school teacher’s duty to small child under her supervision ).

255By statute, the occupier of land owes a duty of care in respect of dangers arising from things done or omitted to be done on the land: Occupiers’ Liability Act 1957 ( visitors ); Occupiers’ Liability Act 1984 ( non-visitors ).

E.Pure economic loss

5 / 122 English law adopts a general » no recovery « or » exclusionary « rule for pure economic loss. The approach is ascribed, variously256, to the fear that liability might extend to an indeterminate class of claimants, in an indeterminate amount, thereby imposing an undue burden upon the defendant257, the lesser value of economic interests relative to interests in the person or property258, the consideration that many pure economic losses are not social costs, but simply involve the transfer of wealth from one party to another259, a belief that economic losses are more effectively distributed throughout society if they are left to lie where they fall rather than being concentrated on the defendant260, a belief that economic risks are more effectively distributed throughout society if this is left to negotiated risk-allocations by the parties involved261, and the absence of any right to make economic gains that can be regarded as infringed if the defendant is caused an economic loss262.

5 / 123 The approach applies not just in cases where the economic loss suffered is entirely independent of personal injury or property damage, but also where it is suffered only because of injury to person263 or property264 of another ( » relational economic loss « ). A statutory exception is allowed by the Fatal Accidents Act 1976 in respect of claims for loss of dependency on another person’s death, though the claim is open only to a prescribed class of dependants, including ascendants, descendants, spouses and ( subject to conditions ) unmarried partners.

5 / 124 A less drastic approach applies to the intentional infliction of economic loss, though the law stops short of basing liability simply on the intention to cause economic harm or the unfairness of the conduct. Instead it is necessary to show that the loss resulted from the infringement of the claimant’s ( contractual or other )

right265 or from the defendant’s use of independently unlawful means to cause the harm266.

256For a critical overview, see Canadian National Railway Co. v. Norsk Pacific Steamship Co. [ 1992 ] 1 SCR 1021, 1147 ff per McLachlan J.

257Hedley Byrne & Co. v. Heller & Partners Ltd. [ 1964 ] AC 465, 536 f per Lord Pearce; Spartan Steel and Alloys Ltd. v. Martin & Co. Ltd. [ 1973 ] QB 27, 38 per Lord Denning.

258Canadian National Railway Co. v. Norsk Pacific Steamship Co. [ 1992 ] 1 SCR 1021, 1158 ff per McLachlan J ( dubitante ).

259W. Bishop, Economic Loss in Tort ( 1982 ) 2 Oxford Journal of Legal Studies ( OJLS ) 1.

260Spartan Steel and Alloys Ltd. v. Martin & Co. Ltd. [ 1973 ] QB 27, 38 per Lord Denning.

261C. Witting, Distinguishing between Property Damage and Pure Economic Loss in Negligence: A Personality Thesis ( 2001 ) 21 LS 481.

262Beever, Rediscovering the Law of Negligence 232 f; R. Stevens, Torts and Rights 21.

263West Bromwich Albion FC Ltd. v. El Safty [ 2006 ] EWCA Civ 1299, [ 2007 ] PIQR P7.

264Spartan Steel & Alloys Ltd. v. Martin & Co. ( Contractors ) Ltd. [ 1973 ] QB 27.

265Lumley v. Gye ( 1853 ) 2 Ellis & Blackburn’s Queen’s Bench Reports ( E & B ) 216.

266OBG Ltd. v. Allan [ 2008 ] 1 AC 1.

of proceeding in a rather unprincipled manner, on the basis of analogies with established pockets of liability rather than convincing legal arguments. In a series of articles, Stapleton has consequently suggested that the » pockets « approach should be replaced with an agenda of policy concerns that the courts should expressly take into account: ( a ) the absence or controllability of the threat of indeterminate liability; ( b ) the inadequacy of alternative means of protection; ( c ) that the area is not one more appropriate to Parliamentary action and; ( d ) that a duty would not allow a circumvention of a positive arrangement regarding allocation of risk which had been accepted by the plaintiff 271. The approach advocated seems to bear some resemblance to the » 10 commandments of liability for economic loss « proposed by Koziol in his Basic Questions272.

267Hedley Byrne & Co. v. Heller & Partners Ltd. [ 1964 ] AC 465.

268See eg Smith v. Eric S. Bush [ 1990 ] AC 831 ( valuation carried out for building society; liability to homebuyer ); Spring v. Guardian Assurance [ 1995 ] 2 AC 296 ( unfavourable employment reference ); White v. Jones [ 1995 ] 2 AC 207 ( negligence in preparing a will; liability to intended beneficiary ).

269Australia: Perre v. Apand Pty Ltd. ( 1999 ) 198 Commonwealth Law Reports ( CLR ) 180. Canada: Canadian National Railway Co. v. Norsk Pacific Steamship Co. [ 1992 ] 1 SCR 1021.

270Australia: Bryan v. Maloney ( 1995 ) 182 CLR 609; New Zealand: Invercargill C.C. v. Hamlin [ 1994 ] 3 New Zealand Law Reports ( NZLR ) 13; Canada: Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. ( 1995 ) 121 Dominion Law Reports ( DLR ) ( 4th ) 193 ( liability limited to costs of remedying dangerous defects ). Cf the English cases of D. & F. Estates v. Church Comrs [ 1989 ] AC 177;

Murphy v. Brentwood D.C. [ 1991 ] 1 AC 398.

271J. Stapleton, Duty of Care and Economic Loss: A Wider Agenda ( 1991 ) 107 LQR 249; J. Stapleton, Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence ( 1995 ) 111 LQR 301; J. Stapleton, Duty of Care Factors: A Selection from the Judicial Menus, in: P. Cane / J. Stapleton ( eds ), The Law of Obligations: Essays in Celebration of John Fleming ( 1998 ). See also P. Giliker, Revisiting Pure Economic Loss: Lessons to be Learnt from the Supreme Court of Canada ( 2005 ) 25 LS 49.

272Basic Questions I, no 6 / 62 ff.

responsible agent because it would mean that the ability to take reasonable care of the interests of others could no longer be regarded as an essential aspect of legal personality. On his account, it is only those who cannot ordinarily be expected to meet this basic standard of conduct who should be exempted from it.

the child intended or foresaw the consequences of his actions, or whether he satisfied the required standard of care. This is the standard of an ordinarily prudent and reasonable child of the defendant’s age283. The child’s age may thus be material in assessing whether or not the claimant’s injury was foreseeable as a » real risk « of the defendant’s conduct284 and also in determining what precautions the defendant could reasonably have been expected to take against the risk of injury285.

278See generally K. Oliphant, Children as Tortfeasors under English Law, in: M. Martín-Casals ( ed ), Children in Tort Law, vol 1: Children as Tortfeasors ( 2006 ). In principle, the approach taken as regards children could also be applied to persons of advanced years, though I am not aware of substantial jurisprudence or academic discussion of the issue.

279Cf the contrary approach adopted by most courts in the United States: see Prosser on Torts 5 180.

280Smith v. Stone ( 1647 ) Style’s King’s Bench Reports ( Style ) 65, 82 ER 533; Public Transport Commission v. Perry ( 1977 ) 137 CLR 107.

281Tillander v. Gosselin [ 1967 ] 1 The Ontario Reports ( OR ) 203, Ontario High Court ( 3-year-old boy ). The issue seems not to have been raised in any decided English case.

282Basic Questions I, no 6 / 76 ff.

283Mullin v. Richards [ 1998 ] 1 WLR 1304. See also Staley v. Suffolk County Council, 26 November 1985, unreported. In Gorely v. Codd [ 1967 ] 1 WLR 19, another negligent shooting case, Nield J. found liable a 16-year-old defendant with learning difficulties without considering what standard of care was appropriate.

284Ibidem.

285Cf Goldman v. Hargrave [ 1967 ] 1 AC 645 ( adult’s physical capacity to be taken into account ).

5 / 132 There is no formal rule whereby children are held to a higher standard of care if they engage in » adult activities «286. However, the care demanded of a child is effectively the same as that demanded of an adult in certain circumstances where the child engages in an adult activity. A 17-year-old motorist undoubtedly owes the same duty of care as an adult motorist287 and it has been submitted that even a child of under 17, who is unable to drive lawfully on a public road by reason of his age, may properly be held to the same standard if it chooses to drive ( whether on a public road or not ) and has sufficient understanding of the need for care288. It should be noted that the standard of care remains that of an ordinarily prudent and reasonable child of the defendant’s age; it is simply that the steps necessary to discharge the duty are the same as those required of an adult. A different result may well be warranted where the child is impelled to undertake an adult activity by force of circumstance – for example, where a child is left in a parked car whose handbrake fails, causing it to roll downhill, and the child attempts unsuccessfully to steer the car around a hazard before bringing it to a stop.

IV.  Liability for other persons and for things

5 / 133 Liability for other persons and for things is normally based on the defendant’s personal fault – for example, the failure to supervise a young child289 or leaving horses unattended290. Vicarious liability renders an employer liable for a tort committed by an employee within the scope of the latter’s employment: this liability is independent of any personal fault by the employer, but ( in the usual case ) requires fault on the part of the employee. The justifications for this liability are much debated, but it is generally accepted that they rest on a combination of different considerations, including efficient loss distribution, providing a just and practical remedy to prevent the injured person going uncompensated and, insofar as the employer chooses whom to employ and has control over what is done,

286The contrary approach has been adopted by courts in the United States: see Prosser on Torts 5 181-2.

287See Tauranga Electric-Power Board v. Karora Kohu [ 1939 ] NZLR 1040 ( New Zealand Court of Appeal ): 17-year-old cyclist.

288A. Mullis / K. Oliphant, Torts 4 ( 2011 ) 110 ( example of a 15-year-old tearaway who hot-rods a motorcar and drives away ). See also McEllistrum v. Etches ( 1956 ) 6 DLR ( 2d ) 1 and McErlean v. Sarel ( 1987 ) 61 OR ( 2d ) 396 ( both Ontario Court of Appeal ).

289Carmarthenshire C.C. v. Lewis [ 1955 ] AC 549.

290Haynes v. Harwood [ 1935 ] 1 KB 146.

deterring future harm291. Vicarious liability, however, does not apply to parents for the torts of their children, or to persons who commission others to help them with particular tasks, whether gratuitously or for reward292. However, where the defendant authorises another person to do something that constitutes a tort, or combines with another person for a common purpose, and the latter commits a tort effecting that purpose, the defendant may be liable as a joint tortfeasor – even though not at fault, and even though he has not caused the harm that results.

At common law, there was no liability independent of fault in respect of things 5 / 134 under one’s control other than dangerous animals ( for which liability is now gov-

erned by statute )293. Statutory strict liability for defective products was imposed on their producer and ( within limits ) their supplier by the Consumer Protection Act 1987, pursuant to the European Directive.

V.  Strict liability for dangerous activities

that such a high standard of care is applied as to produce almost the same outcomes as would result in a strict liability system298, my own impression is that this is not the case, though it is difficult to think what sort of evidence would be required to make a scientific judgement on the matter.

291G. Williams, Vicarious Liability and the Master’s Indemnity ( 1957 ) 20 MLR 220; P.S. Atiyah, Vicarious Liability ( 1967 ); Bazley v. Curry ( 1999 ) 174 DLR ( 4th ) 45 ( Supreme Court of Canada. » Fairness « in this context is based on notions of enterprise responsibility [ ibidem ] ).

292Morgans v. Launchberry [ 1973 ] AC 127.

293Animals Act 1971.

294( 1866 ) LR 1 Exch 265, ( 1868 ) LR 3 HL 330.

295See Oliphant, Enterprise Liability.

296See Transco plc v. Stockport Metropolitan B.C. [ 2004 ] 2 AC 1.

297Burnie Port Authority v. General Jones Pty Ltd. ( 1994 ) 179 CLR 520.

298Basic Questions I, no 6 / 145.

VI.  Permitted interference

5 / 137 The common law does not recognise a liability for harm resulting from an activity done with statutory authority299. However, a mere planning permission does not carry the same weight, and does not act as a defence against tortious liability, though its grant may be relevant in assessing whether the ordinary requirements of the tort are made out300. As noted above ( no 5 / 39 ff ), a person may be allowed to continue a tortious course of conduct if the court, in the exercise of its discretion, declines to prohibit it by injunction. In such circumstances, there is a statutory power to award damages for the future interference the person affected will suffer. But this is a liability for wrongful conduct that is tolerated rather than a liability for conduct that is actually permitted.

VII.  Other considerations

5 / 138 Perhaps because the scope of ( true ) strict liability in English law is so narrow, factors like the economic capacity to bear the burden, the realisation of profit, the availability of insurance, and the concept of a risk community, do not feature significantly in the legal discourse. Discussion of them is mainly limited to such contexts as vicarious liability301 and product liability302.

VIII.  Contributory conduct of the victim

5 / 139 Until 1945, the victim’s contributory negligence was a complete defence to tortious liability. This rule came to be regarded as unduly harsh, and its effects were

mitigated by various devices applied in aid by the courts, until finally the law was reformed by statute in 1945303. Under the Act, if the claimant304 is guilty of con-

tributory negligence, the court has a discretion to reduce the damages awarded

299London, Brighton and South Coast Rly v. Truman ( 1886 ) 11 AC 45.

300Gillingham B.C. v. Medway ( Chatham ) Dock Co. Ltd. [ 1993 ] QB 343; Wheeler v. J.J. Saunders Ltd.

[ 1996 ] Ch 19.

301See eg D. Brodie, Enterprise Liability and the Common Law ( 2010 ).

302See eg J. Stapleton, Product Liability ( 1994 ).

303Law Reform ( Contributory Negligence ) Act 1945.

304Or a person whose negligent contribution to the injury is attributed to the claimant, eg in circumstances where, had another person been injured, the claimant would have been vicariously liable: C. Sappideen / P. Vines, Fleming’s The Law of Torts 10 ( 2011 ) paras 12.220 and 12.230.

to such an extent as it thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. The word » share « used in the statute prevents the claimant being found 100 % contributorily negligent, but a claimant who shows a reckless disregard for his own safety may be regarded as having vol-

untarily assumed the risk of harm and so to be disentitled from compensation for it: volenti non fit iniuria 305.

In principle, the same approach applies to children. Just as there is no fixed 5 / 140 minimum age for children to be liable, neither is there any fixed minimum age

below which, as a matter of law, a child is deemed to be incapable of contributory negligence. Whether or not a very young child is guilty of contributory negligence is a question of fact to be assessed in the circumstances of the individual case306. Still it is doubtless true, as a practical matter, that » [ a ] very young child cannot be guilty of contributory negligence « 307. In 1978, a Royal Commission proposed a statutory rule prescribing that children under 12 should never have their damages reduced for contributory negligence when injured by a motor vehicle, submitting that this broadly reflected the existing practice of the courts308, but the proposal was never enacted.