Defences

 L.O:

• Explain the defence of volenti non fit injuria
• Explain contributory negligence
• Describe ex turpi causa non oritur action

Volenti non fit injuria

• This is Latin for "to a willing person, injury is not done"
• It is sometimes shortened to just volenti
• To use volenti successfully the defendant must prove that the claimant had knowledge of the risk and willingly consented to accept that risk
• Volenti is a complete defence that will mean there is no liability for injury or loss
• Where someone knew of a risk before the activity and still took part in it, it MAY be evidence of consent but it won't be conclusive AND any consent given under pressure will not amount to a defence

Cases

• Smith v Baker (1891)
• Claimant worked in a quarry, told his boss that he was uncomfortable with the risky working conditions, and was then later injured by falling debris from a crane
• The defence used volenti, saying that the claimant had turned up for work every day and was therefore content to work in a risky job that was 'instrinsically dangerous'
• HELD - The claimant had not consented to work in a job where the employer was not maintaining the required standard of care.
• Furthermore in the claimant's case he was pretty much obliged to work in the quarry as he didn't have any other options
• Imperial Chemical Industries v Shatwell (1965)
• Two claimants disobeyed their employer's instructions and tested an electric circuit with insufficient wiring, causing them to sustain injuries
• HELD - The claimants were engaged in a risky activity  of their own choosing, against the wishes of their employers, and so the defence of volenti worked and granted a full defence to the employer
• Kirkham v Chief Constable of Greater Manchester (1990)
• Mr Kirkham had made two suicide attempts
• The police arrested him and were told of his attempts by his wife
• The police failed to inform the prison authorities hat he was a sauicide risk
• He committed suicide
• Wife sued for negligence
• Police raised defences of volenti and ex turpi
• Claimant successful. Volenti would normally apply if the person in question was of sound mind. Mr Kirkham was not
• In terms of ex turpi, the courts applied the public conscience test and concluded that allowing the claimant to succeed would not affront the public conscience

The Effect of Disclaimers and Exclusion Clauses on Tortious Acts

• Exclusion clauses in contract can offer complete defences provided that the claimant was made fully aware of the contents
• HOWEVER the Unfair Contract Terms Act 1977  says that liability for death and personal injury cannot be excluded in a contract between consumers ALTHOUGH under the Consumer Rights Act (2015) such a clause might work between businesses, but not between a business and a consumer - the court would see this as an inequality of bargaining power. It also says that a person is not to be taken as accepting a risk simply because they were aware of a notice purporting to exclude liability

Special Cases

• Under the Road Traffic Act 1988, a driver of a car CANNOT say that a passenger gets into their car entirely at their own risk and use volenti as a defence for any injury
• Pitts v Hunt (1991)
• Claimant was a passenger on a motorbike that was being ridden by the defendant
• Defendant was drunk and the claimant knew this, even encouraging him to ride the bike irresponsibly
• Bike crashed, seriously injuring the claimant
• HELD - because of the Road Traffic Act 1988 volenti was not available as a defence
• ALSO because they had both been involved in an illegal action, the defence of illegality was more appropriate and succeeded

Morris v Murray (1990)

• The claimant (Morris) went drinking with his friend (Murray) who had a pilot's licence. The friend then invited the claimant to go for a flight in his light aircraft
• The friend piloted the plane so badly that it crashed. The friend was killed and the claimant was seriously injured
• The claimant brought an action against the deceased's estate for his injuries
• The trial judge awarded the claimant damages
• However - on appeal the CoA accepted the defence of volenti and overturned the decison

Passengers in Vehicles

• Volenti can be rarely used as a defence in negligent driving even if a passenger accepts a lift with an obviously drunk driver
• The Road Traffic Act 1988 s149(3) states:
• The fact that a person so carried has willingly accepted as his the risk of negligence on the part of the user shall not be treated as negativing any such liability of the user

Sporting Activities

• Volenti is usually a defence to injuries experienced during sporting activities because players are regarded as having consented to the risks associated with that particular sport provided any injuries were not caused by breaches of the rules of the game
• Some sporting activities carry risks for spectators such as being hit by a rugby ball while watching a match in a stadium or playing field. The approach by the courts seems to be that an error of judgement of lapse of skill does not give rise to liability as the spectator has accepted the risks in going to watch the live activity
• Simms v Leigh RFC (1969)
• Claimant tackled opponent and momentum carried him into a wall, breaking his leg
• HELD - RFC did owe the claimant a duty of care, but the tackle was within the rules of the game
• Volenti applied and club not liable
• Wooldridge v Sumner (1962)
• During a horse show, a photographer got in the path of a galloping horse. There was conflicting evidence but it was suggested that either the horse had taken fright or that the rider had taken a corner too fast
• HELD - the CoA held that there had been no breach of the duty of care owed as there was no evidence that the rider was being negligent
• Smoldon v Whitworth (1996)
• Referee in a rugby match allowed a scrum to collapse, which caused the claimant to sustain neck injuries
• Volenti raised as defence but dismissed by the CoA
• Claimant has consented to the risk of playing, but not to having a negligent referee
• Blake v Galloway (2004)
• Two 15 year olds were throwing bark at each other - one got hit in the eye
• The game was throwing bark, which is exactly what caused the injury so there was no departure from the game and volenti offered a defence

The Courts' Reluctance to Accept Vole

nti

• In practice the courts are often reluctant to accept volenti as a defence as volenti is a complete defence, and if successfully argued, the defendant will not be liable
• Since the Law Reform (Contributory Negligence) Act 1945, the courts have been reluctant to accept a defence of volenti preferring to apportion loss between the parties
• Volenti is an all or nothing approach. Apportioning loss on the basis of contributory negligence is seen as a more fair approach

Contributory Negligence

• Contributory negligence will reduce the damages payable by the defendant according to the extent to which the claimant's own carelessness contributed to his or her injuries
• Contributory negligence is a defence that can be used for a wide range of torts and not just negligence
• It is the defence where anyone who was even partly responsible  for the harm done to them could not recover anything in tort
• This was deemed to be unfair, so Parliament passed the Law Reform (Contributory Negligence) Act 1945 - this basically said that the claim need not fail, but the damages would be reduced to reflect the liability of the claimant (nowadays this is agreed before litigation by getting an 'Advice from Counsel on Liability

Using the defence of Contributory Negligence

• In order for a defence of contributory negligence to succeed it must be proved that:
• The claimant failed to take care of his own safety in a way that at least partially caused his or her injuries AND
• The claimant failed to recognise that he/she was risking his/her own safety even though the reasonable person would
• Baker v Willoughby (1969)
• On appeal the gunshot wound was held by the CoA to be an intervening act, and the claimant was found 50% responsible for the first injury for failing to get out of the way (he had plenty of time to do so)
• Other issues that would suggest contributory negligence are the lack of a seatbelt in RTAs, or for pedestrians not using a crossing (if one was nearby) and getting hit by a vehicle
• Spearman v RUH Trust (2017)
• Highlighted the need for claimant's in negligence (Occupier's Liability Act 1957) to objectively show the kind of care that the average man in the street would. The courts have made allowances for children and people with mental impairments
• Spearman admitted to hospital in hypoglycemic state, wandered through an unlocked and unmarked door (which led to the roof) and fell off of the roof, injuring himself
• The claimant was not contributorily negligent because he was in a state of mind which did not allow him to appreciate the danger he was in
• Badger v Ministry of Defence (2006) 
• The claimant had contracted lung cancer as a result of exposure to asbestos at work and died. His widow made a claim against his employer
• The High Court awarded damaged but reduced them by 20% because he had made his condition worse by smoking even though the health risks of smoking were widely known
• Blackmore v Department of Communities and Local Government (2017)
• A heavy smoker worked with asbestos and contracted lung cancer
• HELD - the claimant was 30% liable on a contributory negligence basis. The dangers of smoking were apparent, but the court felt that this was outweighed by the dangers posed to workers handling asbestos - to the extent that Parliament had passed laws specifically outlawing its use. They therefore insisted that the contributory negligence of the claimant should be no more than 30%

Limits on Contributory Negligence

• The courts have recognised that children are less to recognise risky conduct than adults
• The standard of care for a rescuer is that of the reasonable rescuer rather than that of the reasonable person
• In an emergency situation, the courts have accepted that a person may not have the time to take the best course of action
• The courts take the view that members of the public trying to help should not be penalised by the defence of volenti
• Haynes v Harwood (1935)
• Policeman who tried to control bolting horses in order to save two members of the public was deemed to have been acting in his statutory duty
• He could not be said to have voluntarily accepted the risk of being injured
• Liabikity was that of the owner of the horse drawn van who had left it unattended
• No volenti
• Chadwick v British Railway Board (1967)
• Claimant suffered sever psychiatric damage after helping when a train crashed
• Should volenti apply to members of the public who assist at the scene of accidents?
• HELD - volenti does not apply on public policy grounds as it would mean penalising people who risk their safety to help others
• Cutler v United Dairies (1933)
• Claimant tried to stop runaway horses that had run into a field and was injured
• Volenti operated. There was no danger to the public or anyone else and he had accepted the risk of injury by getting involved

Cases regarding children:

• Gough v Thorns (1966)
• 13 year old girl killed crossing the road
• Lorry driver had stopped and signalled for her to cross
• Overtaking lorry got her
• Court held that taking account of her age, she had not fallen below the expected standards of care so was not contributorily negligent
• Denning said a child should only be found contributorily negligent if they are at an age where they could be reasonably expected to take precautions for their own safety
• Morales v Eccleston (1991)
• Eccleston was driving at 20mph along a road that was 30ft wide.
• Morales (11 year old boy) followed a football into the road without looking
• Eccleston hit him and admitted he didn't see him until that point
• Weather was fine, road was dry and visibility was good. As Eccleston did not have a proper lookout he was held to be 80% to blame for the accident
• Defendant appealed to the CoA
• Appeal allowed
• Whilst there was some material showing that if the driver had had a proper lookout, he would've seen the plaintiff, the trial judge's conclusion on the appointment of blame was incorrect
• The plaintiff; negligence is plain as when a stream of traffic was approaching, he went into a road trying to recover a ball without looking, which demonstrated his recklessness and disregard of his own safety
• Therefore the plaintiff's contributory negligence is 75% of the blame for the accident
• Yachuk v Oliver Blais Co Ltd (1949)
• 9 year old boy deemed NOT to be contributorily negligent when he was sold and played with gasoline, burning himself
• At this age the court said he could not have been expected to know of the dangers of playing with gasoline
• Evans v Souls Garage (2001)
• 13 year old boy deemed to be contributorily negligent when he was sold and played with gasoline as he was deemed to have known of the dangers
• This led to a one third reduction in his damages
• Rule - children must be adjudged to know of risk and dangers in order to be contributorily negligent

The Standard of Care Required of Claimants in Emergency Situations

• Baker v TE Hopkins & Sons (1959)
• Mr Ward and Mr Wileman employed by Hopkins to clean out a well
• Mr Hopkins told Mr Ward and Mr Wileman not to go down the well until the fumes had cleared
• The next day he told them to still not go down there until he arrived, but Mr Ward went down anyway, the fumes overcame him and so Mr Wileman called for assistance and went down the well after him
• Claimant, Dr Baker tried to rescue them, but all died
• Defendant said Dr Baker going down the well was a novus actus interveniens and sought to invoke volenti
• HELD - no intervening act and no volenti. It was foreseeable that the doctor would try to help and his actions were not unreasonable - his actions did not count as freely and voluntarily accepting the risk
• Jones v Boyce (1816)
• The claimant was riding on top of the defendant's coach when one of the horses' reins broke and it looked like the carriage was going to topple over
• Claimant jumped from the coach, breaking his leg
• The coach didn't topple
• The court held that he had acted reasonably in the face of what appeared to be a dangerous situation and so was not contributorily negligent
• Objective test applied

Other

• Reeves v Metropolitan Police Commissioner (1999)
• Martin Lynch committed suicide in a police cell
• The doctor had said that he was not schizophrenic or depressed but was a suicide risk
• HELD - the act of suicide was the very thing that the police were under a duty of care to prevent (literally on suicide watch)
• Defendant liable, however damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945 as Lynch was of sound mind

If there was no avoiding the accident and the losses would have been just the same, the defence of contributory negligence will not help the defendant:

• Smith v Finch (2009)
• In a collision with a motorbike, the claimant suffered serious injury to the back of his head
• Agreed on the facts that normal cycling helmets would not have protected this area, hence there was no contributory negligence for not wearing one and there was no reduction in damages as a result

Apportioning Blame

• There are two factors taken into account in apportioning blame
• Causation: the extent to which the defendant's own actions caused his/her own injuries
• Culpability: the relative blameworthiness of the claimant and defendant for the claimant's injuries
• Stapley v Gypsum Mines Ltd (1953)
• Mr Stapley was killed when the roof of a mine fell on top of him. At the time of his death he was acting against his employer's orders. He and another employee Mr Dale had been told to bring the roof down as it was dangerous. The pair knew that this meant that they should not work in that part of the mine because of the risk. They attempted to bring down the roof but were unsuccessful in their attempts. They then decided to continue with the work they had originally been given
• At the time of the collapse, Mr Dale had briefly left that part of the mine and was uninjured. Mrs Stapely brought an action against his employer for breach of statutory duty in relation to the actions of Mr Dale
• The trial judge found for the Claimant, but reduced the damages by 50% under the Law Reform (Contributory Negligence) Act 1945. The CoA allowed an appeal by the defendant holding that Mr Stapely was solely responsible for his own death. The claimant appealed to the Lords
• HELD - 3:2 - the appeal was allowed but the damages were reduced by 80%
• In Froom v Butcher (1976), the CoA suggested the following reductions in damages awarded to a claimant in a car accident who failed to wear a seatbelt;
• if the claimant's injuries would have been avoided altogether if a seatbelt had been worn: 25% reduction
• if the claimant would have received less severe injuries if a seatbelt had been worn: 15% reduction
• if the claimant's injuries would have been the same even if a seatbelt was worn: no reduction
• Froom v Butcher (1976)
• The plaintiff was not wearing a seatbelt whilst driving because he did not like seatbelts and because he had seen drivers being trapped after a crash as a result of wearing a seatbelt. After a crash, the plaintiff suffered head and chest injuries along with a broken finger
• Had he worn his seatbelt, the head and chest injuries would have been avoided
• The crash was entirely the defendant's fault
• Defendant claimed contributory negligence
• Queen's Bench held in favour of the plaintiff on the grounds that there was no statutory compulsion to wear a seatbelt at the time
• Defendant appealed
• Appeal allowed:
• determining whether one is guilty of contributory negligence is a matter not of the cause of the accident, but of the cause of the damage
• the plaintiff's injuries, except for the broken finger, were caused by his failure to wear a seatbelt and therefore, he was guilty of contributory negligence
• For this reason the defendant's damages should be reduced by 20%
• McHugh v Okai-Koi (2017)
• McHugh jumped onto the bonnet of Okai-Koi's car to get her to stop
• When Okai braked, McHugh fell off, hit her head, and died
• HELD - defendant justified in fearing an attack from McHugh and her husband, but the courts said that she should not have tried to drive away with McHugh on the bonnet so liability apportioned 25/75 in the claimant's favour

Reduction of Damages According to Contributory Negligence

• Badger v MOD (2005)
• The level of contributory negligence was assessed at 20% to reflect when the claimant would have had no excuse to not be informed of the link between smoking and cancer (from the mid 70s)
• The defendant had breached health and safety laws in exposing the claimant to asbestos
• The court always look at what the claimant would havebeen awarded in the case of 100% liability, then they make the appropriate reduction based on actual liability
• Jackson v Murray (2015)
• 13 year old girl got off a clearly marked school bus
• It was a two way road, at dusk and without street lighting
• She was hit by a car travelling in the opposite direction
• At first the court said that she hadn't taken enough care and was deemed 90% contributorily negligent
• Reduced to 70% citing the likely lack of care that would have been taken by a 13 year old when compared with the level of care and awareness employed by an adult
• Further reduced to 50% by the Supreme Court when the courts decided that even adults would have faced a similar degree of risk in the circumstances

Activity: Considering Liability

• Scenario one: you accept a lift home from a driver who you do NOT know is drunk. The car crashes through the negligence of the driver
• Driver is liable. No reduction in damages awarded
• Scenario two: you accept a lift home from a driver who you KNOW is drunk. The car crashes through the negligence of the driver
• The driver is liable but your damages awarded will be reduced (probably by about 25%)
• Scenario three: you accept a lift home from a driver who you do not know is drunk, although the REASONABLE person would have know. The car crashed through the negligence of the driver
•  The driver is liable but your damages awarded will be reduced (probably by about 25%)

Ex Turpi Causa Non Oritur Actio

• This is Latin for: no action arises from a dishonourable claim
• It is often referred to as 'ex turpi'
• This means that there is no liability in tort for injustices sustained in an unlawful course of action or immoral act
• Such claims would be against public policy
• Claims arising out of criminal activity will be invalid on public policy grounds as people do not want to see others being rewarded for criminal activities
• Ashton v Turner (1981)
• Two burglars were trying to escape in a car being driven by the defendant when it crashed
• Could the claimant as a participant in a crime sue his co-defendant?
• HELD - no, on the basis of illegality
• NCB v England (1954)
• Concerned an injury caused by a coworker of the claimant.
• Claimant had contributed to the explosion by negligently wiring the charge, but the activity itself had not been illegal, just negligent
• Therefore, he COULD claim, but because he was involved ina negligent act his damages were reduced by 25% under the rules of contributory negligence
• Delaney v Pickett (2011)
• Claimant involved in a car accident when the vehicle was being driven by the defendant
• Sued the defendant for negligent driving and coincidentally had some cannabis in his pocket
• ISSUE - was the journey an illegal one?
• HELD - claimant's possession was merely incidental and his injuries did not rise from illegality so his claim was allowed
• Joyce v O'Brien (2014)
• Two defendants had stolen a set of step ladders and had put them in a van that was too short to contain them safely
• Claimant had to stand on the footplate at the back of the van to hold on to the ladders in order to prevent them falling out
• Due to the defendant's negligent driving, the claimant lost his grip, fell off of the van and hirt himself
• HELD - injuries caused directly by a criminal act so the defence of illegality applied
• Clunis v Camden and Islington Health Authority (1998)
• Claimant was a paranoid schizophrenic who had been released from hospital only to kill an innocent man on the tube
• Claimant said it was the defendant's fault for releasing him
• HELD - the defence of diminished responsibility worked, but his claim was still founded on the basis of a criminal act - the defence of illegality applied and the claim failed
• Vellino v Chief Constable of Greater Manchester Police (2001)
• Mr V tried to escape frompolice out of the window (as he usually would) and injured himself, causing brain damage and paralysis.
• He tried to sue the police, claiming it to be foreseeable that he would try to escape and that the injury might occur
• CoA said lmao no way, as what he was doing was illegal and if this was allowed it would be the same as allowing escaping prisoners to make claims if they hurt themselves

Public Policy

• Revil v Newberry (1996)
• Allotment owner was defending his shed as the claimant was trying to break in
• Discharged a shotgun through a hole in the door which injured the claimant
• HELD - Claimant contributorily negligent as a result of conducting an illegal activity BUT the defendant was also to blame for taking a disproportionate measure to protect his property
• Gray v Thames Trains Ltd (2009)
• Victim of Ladbroke Grove train accident went on to develop psychiatric problems, as a result of which he stabbed and killed an innocent pedestrian
• Claimant tried to recover damages for his illness as well as loss of earnings from his incarceration
• HELD - invoking public policy and following the Clunis decision, they decided it wouldn't be morally correct to allow him to recover losses that came from his own criminal act - illegality defence worked
• Hounga v Allen (2014)
• Illegally trafficked Nigerian woman had been employed by the defendant as a child minder
• She was physically abused and then fired by the defendant, who then pleaded illegality
• HELD - it would be against public policy to allow the defence of illegality to work in this case. The defendant had taken advantage of the claimant's status as an illegal immigrant
• Court also decided that it would contravene public policy on dealing with trafficked people for someone in the position of the defendant to succeed with this defence
• Jetivia v Bilta (2015)
• Fraudulent directors of a company alleged that the company itself could not bring an action against them because it was party to the criminal operation (the defence was based on the fact that in company law the company is a separate legal entity in its own right)
• HELD - Supreme Court said that on grounds of public policy one has to look first at the relationship of all the parties to each other and the transaction in question
• It would be morally abhorrent for the directors to use the illegality defence in this way
• Patel v Mirza (2016)
• Claimant tried to recover money paid to the defendant about a share sale that amounted to illegal insider training
• The defendant raised the defence of illegality
• HELD - referring to public policy, the court laid down three principles:
• In order to tell whether a claim had been tainted by illegality, the court must check:
• The underlying purpose of the illegality in question
• Any other aspect of public policy that might be offended if an illegality defence worked
• Whether the court is acting proportionately in the case by allowing/denying the defence

Illegality and Human Rights

• Sometimes people who are suing in tort, and whose claims might fail for illegality, could succeed if they have a legitimate human rights issue
• Al-Hassan-Daniel v Revenue and Customs Commissioner (2010)
• Drug smuggler who had swallowed bags of cocaine refused to take food from the customs authority so that the drugs would pass from his body
• Died of cocaine poisoning and his relatives sued the revenue
• Defence was that his death was caused by his own illegal act BUT the family appealed and said that his treatment breached article 2 of the ECHR - a right to life
• Appeal allowed as the defence of ex turpi could not be applied in a human rights case

A03 Arguments for the Reform of the Defence of Illegality (Ex Turpi) as Recommended by the Law Commission

• In deciding whether illegality should succeed as a defence, the court should have a look at:
• The seriousness of the illegality
• Claimant's knowledge and intent
• Whether denying the claim would be a deterrent
• Would this denial further the purpose of the law?
• Would denying the defence be fair or proportionate?
• The link between the illegal act and the facts that gave rise to the claim

The Defence of Statutory Authority

• Where someone is entitled to do something that would normally be considered a tort, but which will not give rise to a claim because the defendant was acting in the course of their statutory duty
• X v Bedfordshire CC (1996)
• HELD - statutory authority works as a defence unless the defendant acts unreasonably

Defences in Negligence that do not apply

• Necessity
• This can be where the defendant causes damage to something in order to avoid damaging something else e.g a motorist knocking down a wall in order to avoid a head on collision
• Necessity applies only to intentional damage and does not apply to negligence
• Mistake
• Won't apply because of the reasonable person test in tort
• If the mistake e.g by a doctor, falls below the standard expected from the reasonably competent doctor, then he has simply failed in his duty of care and mistake will not offer a defence
• Inevitable Accidents
• Not relevant because if the defendant can show that they exercised all relevant standards of care then their defence will succeed anyway, and supposed inevitability is irrelevant

Vicarious Liability

 L.O;

• Define vicarious liability
• Explain the tests for employee status
• Explain the liability of an employer for the torts of employees on a frolic of their own
• Explain the liability of an employer for the torts of employees doing an authorised act in an unauthorised manner
• Explain the liability of an employer for the torts of employees doing a criminal act

The Meaning of Vicarious Liability

• Vicarious liability is the term used to explain the liability of one person for the torts committed by another
• It mostly arises in employment when an employer might be liable for the torts of their employees
• Someone is only liable under vicarious liability if two questions are satisfied:
• Was the tortfeasor an employee of the defendant, and
• Was what they did committed in the course of their employment?
• For an employer to be liable the tortfeasor must:
• Be an employee of the defendant
• Be acting in the course of employment
• Have committed a tort

Tests

• The courts have established a number of different tests to establish if a person is an employee or not:
• The control test
• The organisation test
• The economic reality test

The Control Test

• The test was established in Yewen v Noakes (1880)
• It considers whether the employer has the power to control the nature of work done and how it is done. It is an old test that uses the concept of master-servant relationships
• Yewen v Noakes (1880)
• There was a statutory exemption for premises which were occupied by a "servant" or person occupying the premises "for the protection thereof". A man and his family occupied a number of rooms within an office building on the alleged basis that he was the caretaker of the building owner. The man was a clerk who was paid a salary of £150 per annum
• The question arose as to whether the man constituted an employee of the building owner for the purposes of exempting the premises from statutory tax duties
• HELD - The Court of Appeal held that an employee, or a servant to adopt the Court's nomenclature, is defined as a "person who is subject to the command of his master as to the manner in which he shall do his work". On the facts of the case, the Court held that the man was not a "servant" or an employee of the building owner as the owner had no right to control the man's work and manner in which it was done. The man earned a salary of 150 pounds per annum in his separate role as a clerk and merely enjoyed residence of the building with his family members. Thus, he did not constitute an employee of the building owner for tax purposes
• The oldest of the tests
• Derived from the days of the 'master and servant' laws
• In Yewen v Noakes (1880), the test was whether the master had the right to control what was done and the way in which it was done
• In Short v JW Henderson Ltd (1946), key features were identified that would show the master had control over the servant. These included the power to select the servant, the right to control the method of working, the right to suspend and dismiss, and the payment of wages
• Such a test is virtually impossible to apply accurately in modern circumstances. Nevertheless, there are circumstances in which a test of control is still useful, in the case of borrowed workers

Organisation Test

• This test relies on a distinction between a contract of service and a contract for service
• Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] established the organisation test
• The basis of the test is to ask who is entitled to tell the employee the way in which he is to do his work. It is not enough that the task being performed should be under his control, he must control the method of performing it
• According to this test, the master of a ship, a chauffeur and a reporter on the staff of a newspaper are all employees, when a pilot bringing a ship into port, a taxi driver and a freelance writer are not
• The test can work well in some circumstances, but there are still defects. Part-time examiners may be classed as employees for the purpose of deducting tax, but it is unlikely the exam board would be happy to pay redundancy when their services were no longer needed

Economic Reality Test

• The Economic Reality test was developed in Ready Mixed Concrete v Minister of Pensions (1968)
• The court had to decide whether lorry drivers contracted to move concrete made by the claimants were employees or not
• The drivers owned their own trucks but painted them with the company's logo and wore their uniform - so on the face of it they seemed like employees, but the court held differently
• HELD - The drivers were not employees but independent contractors because:
• They owned and maintained their lorries themselves
• They had the option of hiring replacement drivers if they themselves couldn't do a run for whatever reason
• They weren't guaranteed an income
• The Economic Reality test requires three things for a person to be considered an employee
• The person agrees to provide work or skill for the employer in return for payment
• He or she agrees (expressly or by implication) to be the subject of the employer's control
• The other terms of the contract are consistent with the existence of a contract of service
• Things that would suggest they were contractors might be:
• A requirement that the person pays for their own tools and equipment
• AND that they themselves have the right to hire someone else to do their job. Usually employment contracts state specifically that the person named on the contract has to do the work, or get paid sick pay if they can't
• Hall v Lorimer (1992)
• A claimant tried to say that he was an independent contractor because he didn't want to pay a higher rate of tax that he would have had to pay as an employee
• The Court of Appeal overturned a previous decision that he was freelance
• CoA stated that the following things made it more likely that he was an employee
• He didn't send out his own invoices
• He didn't have lots of different clients
• He didn't use his own kit
• He didn't have helpers or managerial responsibilities
• The Court added that just because someone performs a highly skilled function does not make them likely to be contractors - and it isn't really decisive if the person is described one way or another in their contracts - the court looks at all factors concerned
• Ferguson v Dawson (1976)
• The court said that simply calling someone self employed wasn't enough for them to be defined as such if circumstances suggested otherwise - such as type of work done and degree of control exercised
• Builder injured in industrial accident tried to sue his 'employer'
• HELD - he was in fact employed by the defendants as his work was 'provided' by them, the claimant didn't go out looking for it
• JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust (2012)
• A priest molested children (shock)
• ISSUE - Was his immediate superior (the Bishop) in the position of being an employer?
• HELD - Yes - the Bishop was vicariously liable as there was enough 'control' over what the priest

Position of Agency Workers

• The obvious advantage to using agency workers is that, wages aside, they are not as big of a responsibility as employees in terms of sick pay etc
• Hawley v Luminar Leisure (2006)
• Luminar leisure received the services of a bouncer from a separate agency. The bouncer injured the claimant, causing him brain damage
• The agency the bouncer came from went bust, so the claimant was trying to establish that Luminar effectively employed the bouncer. The court agreed
• The court noted that Luminar could've used their own people, and they told the bouncer when and where to work. There was control over what he did and Luminar would have been in a position to prevent the tort from occurring

Casual Workers

• Carmichael v National Power (2001)
• Claimants worked as tour guides at a power station on a 'casual basis'. At what point would these people have been employees?
• HELD - on the basis that the claimants turned up for work as and when they were needed, that they could refuse to work if they didn't fancy it, and that they would not face disciplinary action if they didn't, the court found that they were not employees
• There wasn't enough of an 'obligation' between the parties that would usually exist in an employer/employee relationship

The Position When Employees are Loaned to Other Companies - Who is Responsible for their Torts?

• Mersey Docks v Coggins (1947)
• The claimants loaned the defendants a crane driver who caused an accident due to his negligence. The issue was who employed him, as they would be responsible for paying damages to the victim of the negligencee
• HELD to be an employee of Mersey Docks, as a contract existed saying that he was an employee, they paid his wages, and had the power to sack him
• The court laid down a few guidelines for future similar cases
• The permanent employer will be the employer unless they can show that the person isn't their employee
• Who has the immediate right to control the employee's method of working?
• Identify the act of negligence and then work backwards to find who was best placed to prevent the act
• Who paid him? Who dismissed him? How long was the loan for?
• How the person is described in the contract is never conclusive - at best it is a statement of intent
• Viasystems v Thermal Transfer (2005)
• HELD - a worker can have more than one employer at the same time, who will be vicariously liable for the worker

Relationships that are Akin to Employment

• Various Claimants v Catholic Child Welfare Society (2012)
• Priests = nonces
• The school was deemed sufficiently in control of the priests for a relationship of employer/employee to exist
• The court established principles
• Who is likely to be in a financial position to compensate the victims?
• Tortious act done by employee on the behalf of the employer
• Was the tortious activity part of the employer's business activity?
• Has the employer essentially created the risk of the tort happening (they did allow nonces near children tbf)
• Was there control of the employee's activities (where, when, how, uniform)
• Cox v Ministry of Justice (2016)
• Where prisoners committed tortious acts it was obvious that the Prison Service was in the position of being able to pay out on claims, but more importantly, was best placed to assess what danger certain prisoners posed to others at key moments like meal times, and whether they were a risk in obviously dangerous areas like kitchens, Also, this was another case where the employer created the risk
•  Various Claimants v Barclays Bank PLC (2017)
• Bank arranged for potential employees to be medically examined by a doctor who abused the applicants
• HELD - the medical exams were to benefit the bank as they wanted to ensure the fitness of potential employees
• The bank may not have directed the doctor's actions, but created the conditions for the tort to be committed. The applicants didn't have much choice as a successful medical examination was a condition of employment set by the bank
• Armes v Nottinghamshire City Council (2017)
• Girl in foster care abused
• The council were vicariously liable - as this kind of liability was strict
• In addition, the council undertook a 'vetting and selection' process of parents, even though they didn't have control over the activities of the foster parents
• The council had the right to approve or disapprove of a placement and had the right to remove the child if they deemed it necessary

The Course of Employment

• An employer is not responsible for a tort committed by an employee outside the course of employment
• An employer may be responsible for a tort committed by an employee during the course of employment

A Frolic of his Own

• An employer is not liable for the torts committed by an employee who is on a frolic of his own. This means that if an employee does something not related to his work and is undertaken on his own count, then the employer will not be liable for a tort committed during the 'frolic'
• There are tests but the courts check vicarious liability on a case by case basis
• Storey v Ashton [1869]
• The defendant sent two employees in a horse and cart to deliver some wine. On the way back the two employees went on a diversion in order to do some business of their own. While doing this the claimant was run over, owing to the negligence of the employee driving the horse and cart
• HELD - the defendant was not liable for the negligence of his employee because he was on a frolic of his own
• Heasmans v Clarity Cleaning Co (1987)
• An employee hired to clean telephones was held to be acting outside his responsibilities when he used them for long distance calls

Frolics in the Context of Journeys and Detours

• Hilton v Thomas Burton (Rhodes) Ltd (1961)
• Four workmen allowed to use a van to travel to and from work were deemed to have acted outside their responsibilities by going to a cafe a short distance from the location of their job
• Employer not vicariously liable, as the journey was not permitted under the terms of employment
• Williams v Hemphill (1966)
• The employee's job was to carry passengers to Glasgow
• He took a detour
• The fact that he took a detour was not relevant. He had picked up passengers and so was still performing his role so the employers were vicariously liable
• Smith v Stages (1989)
• Employees who were paid for travel to and from work by means of being able to claim expenses caused an accident on the way home
• HELD - normally travel to and from work would not result in vicarious liability, unless the contract says otherwise. In this case the employer was vicariously liable as the employee was paid a normal day's wage for the day of travel
• The contract of employment is pretty much decisive in determining whether acts and journeys are things done in the course of a job for which an employer will be vicariously liable

An Authorised Act

• An employer is vicariously liable for the torts of his employee if the employee is doing an act authorised by the employer
• The general rule is that an employer is vicariously liable for an authorised act done in an unauthorised manner
• However, the employer is not responsible if the employee is acting beyond the scope of his or her employment
• Poland v Parr (1927)
• A contractor’s employee was, in the course of his employment, following close behind his employer’s wagon carrying sugar bags. Seeing a boy with a hand on one of the bags, the employee believed the boy to be stealing sugar and hit him. This caused the boy to fall and the wagon to run over his foot, leading to the loss of his leg. The boy had not, in fact, been stealing the sugar although the employee had believed so.
• Employer liable as there was an implied authority to act to protect the employer's property

An Authorised Act in an Unauthorised Manner

• Century Insurance v Northern Ireland Transport Board [1942]
• The defendants' employee, a petrol tanker driver, was unloading petrol from his tanker to underground storage in the claimant's garage when he struck a match to light a cigarette and then dropped the lighted match to the ground. This caused an explosion, damaging the claimant's property. The defendants were found to be vicariously liable for his negligence on the basis that what he was doing at the time was part of his job, even if he was doing it in a negligent way. It was agreed that the match was struck for his own purposes, not those of his employer, but nevertheless, in the circumstances in which it was done, it was still in the course of his employment
• Iqbal v London Transport Executive [1973]
• A bus conductor, trying to be helpful, drove a bus, although he was specifically forbidden to do so. His negligent driving caused damage
• HELD - the prohibition excluded a certain activity and therefore limited the sphere of the conductor's employment - hence the employers were not vicariously liable
• Why was the employer held to be vicariously liable in Century Insurance but not in Iqbal?
• In Century Insurance, the employee was acting in the course of his employment (i.e delivering petrol in a tanker) albeit in a negligent manner. However, in Iqbal, the employee was acting outside of the scope of his employment (i.e he was not employed as a driver) and there was an express prohibition forbidding him from driving a bus
• Bayley v Manchester Railway (1873)
• A railway porter pulled a passenger from a train, believing him to be on the wrong one, causing injury
• Employer held to be liable

Express Prohibition

• What happens when an employer specifically prohibits the employee from doing something, but they do it anyway?
• Limpus v London General Omnibus Co (1862)
• An omnibus driver who crashed whilst racing another bus was deemed to be performing his duties, albeit in a negligent wat, and the employer was still liable
• Twine v Bean´s Express Ltd (1942)
• A van driver was specifically told that he couldn't give lifts to certain classes of people
• He did and killed said person due to his negligent driving
• HELD - Employer not liable as picking up the person who died was not part of his job
• Rose v Plenty (1976)
• Milk float driver was told he couldn't pick up passengers or let children help with his deliveries
• Ignored both of these and hired a 13-year-old boy to help
• HELD - Employer liable, as the defendant was being negligent in the course of performing his duties
• SIDE NOTE - the courts may have been influenced in this case by the fact that the child had no one else to pursue for damages

An Unlawful Act of an Employee

• An employer will only be held to be vicariously liable for the unlawful acts of his/her employee if there is a closeness of connection between the employment and the unlawful act
• For instance, if a store security guard uses unreasonable and excessive force in stopping a shoplifter, then it is likely that their employer will be held to be vicariously liable. There is a closeness of connection between the employment and the unlawful act
• However, if the store detective punches a customer because she believes she is having an affair with her husband, then it is unlikely the employer will be vicariously liable. There is no closeness of connection between the employment and the unlawful act

What happens when the act is also a Tort?

• Lloyd v Grace, Smith & Co (1912)
• The solicitor's clerk's defrauding of the client was something that his employers were vicariously liable for because they should have been supervising him, as they were contracted to do as a part of his training
• Warren v Henley's Ltd (1948)
• Petrol pump attendant had a fight with a customer
• When the fight happened, the petrol had already been bought, so anything after that was not done in the course of the employee's job
• Employer not vicariously liable
• Lister and Others v Hesley Hall (2002)
• The claimants were residential students at a school for difficult children owned by the defendant. One of the wardens at the school had sexually abused a number of the children. The claimants argued that the owner of the school was vicariously liable for the harm they suffered as a result of the abuse
• HELD - The House of Lords held that the owner of the school was vicariously liable. They used a 'closeness of connection' test to determine the vicarious liability
• The test:
• A vicariously liable act was one in which:
• The wrongful act committed by the employee was authorised by the employer
• The employee carried out their duties in a wrongful or unauthorised way, but what they were doing was still their duty
• The court said an employer is liable for acts that they have not authorised, provided that the act itself is so connected with his authorised acts that it may be regarded simply as the way it was done
• The close link between the abuse and the duty of care of the warden made it fair to state that the employers were vicariously liable
• Dubai Aluminium v Salaam (2002)
• Where a fraud was perpetrated by someone who the solicitors in a firm had introduced to the claimants was deemed (under the Partnership Act 1980) to have been committed in the course of the solicitor's business
• The court used the 'so closely connected' test set out in Lister
• Which test do we use?
• The courts said that there isn't a definitive test. It involved a value judgment by the court based on all the facts. The Salmond test was only one such test
• Bernard v A-G of Jamaica (2004)
• A policeman who shot a member of the public over a disagreement concerning the use of a payphone was deemed to be acting in the course of his employment because:
• He had identified himself as a police officer
• He had shot the victim with a gun provided by his employers
• These two elements meant that what had happened was done in the performance of his duties
• Gravil v Carroll and another (2008)
• Fight between two rugby players during a match. Defendant broke a bone in Claimant's face
• CoA said that the defendant was doing his job (as a rugby player) in an unauthorised way, outside the instructions of his employer, but was still acting in the course of his employment, so the club was vicariously liable
• Mattis v Pollock (2003)
• Nightclub employed an unlicensed bouncer. After an altercation in the club, he went home, returned armed, and seriously assaulted the customer
• HELD - Club vicariously liable
• MAGA v Trustees of the Archdiocese of the Roman Catholic Church (2010)
• Issue whether or not the church was vicariously liable for child abuse committed against a non-catholic who had befriended the priest
• HELD - the church = vicariously liable
• The priest had a special role of working with young people and held a position of trust (passed the Lister test)
• Mohamud v Morrisons (2016)
• A cashier at a Morrisons petrol station got into a fight with a customer over printing a receipt
• Morrisons said there wasn't a sufficiently close connection between the cashier's job and his wrongdoing
• Supreme Court disagreed, stating that his job was to interact with the customers and respond to their enquiries 
• Unbroken series of events between attending to the claimant's enquiries and the fight so Morrisons held vicariously liable
• Various Claimants v Morrisons (2017)
• Employee committed a data breach
• The handling of data was something that the employee was authorised to do, but it was not done in the course of his duties and was therefore not so closely associated with his role that Morrisons should be held vicariously liable
• Frederick v Positive Solutions (2018)
• Fraudulent investment opportunity offered to the claimants via a virtual portal owned by the claimants did not give rise to vicarious liability
• The person they had been dealing with did work for the defendants, but the scam was part of a recognisably separate venture and not an integrated part of the defendant's business

Vicarious Liability and Statutory Duties

• Majrowski v Guy's and St Thomas' Hospital NHS Trust (2005)
• Claimant sought damages, saying that he had been bullied by his manager and that the bullying amounted to harassment under the 1997 Act
• HELD - employer liable
• BUT - is it fair in the circumstances to find vicarious liability on the part of the employer?
• NOTE - since everyone knows that harassment is an offence, if the person harassing demonstrates a pattern of behaviour that has not been addressed by the employer then they are much more likely to be vicariously liable

Violence Between Employees

• Weddall v Barchester Healthcare (2012)
• Employee was called by his boss and asked to do an extra shift
• Employee was drunk and formed the impression that the boss was mocking/making fun of him, so he went and assaulted him
• HELD - the 'close connection' test set out in Lister could not be established
• The employee was off duty at the time of the call
• Rather than acting spontaneously, the employee had to cycle for 20 minutes to the care home before the assault took place
• It was an independent venture for which the care home was not vicariously liable
• Wallbank v Wallbank Fox Designs (2012)
• CoA said that the employers were vicariously liable for the employee's act (the boss told him to do something and was attacked as a result) as it was a violent and instant response to what was being done by the boss
• EXAM TIP -Just deal with whether something has a 'close connection' with the employee's job and deal with it factually in terms of points that the court would think indicated vicarious liability

Employer's Indemnity for Liability Suffered in Vicarious Liability Situations

• A company/employer can successfully sue the employee in a separate claim to try and recover its losses paid out as a result of the employee's tortious act
• This type of damages recovery is called an indemnity
• Indemnity was established in a case called Lister v Romford Ice and Cold Storage (1957):
• A lorry driver employed by the defendants ran over and injured his own father who was also an employee of the firm. The firm then sued the son. This was allowed because:
• the careless driving was a tort and also a contractual breach of the implied duty of care to exercise reasonable care while exercising his duties
• CRITICISM OF DECISION
• under the principles of vicarious liability, the employer is frequently best placed to pay out damages. Allowing them to recover these sums essentially means that they aren't exposing themselves to any risk, and therefore they will not themselves be too careful about regulating the performance of the employees in doing their job
• PRESENT POSITION
• Insurers giving cover to employers have agreed that they will not take part in any indemnity payouts unless there is evidence a fraud had taken place in which the employer and employee have colluded

Position of Independent Contractors

• Principle - an employer is not usually responsible for the torts of an independent contractor on a vicarious liability basis
• Independent contractors CAN cause vicarious liability for employers when they complete jobs on behalf of them in certain circumstances
• This is where a duty exists on an employer for them to do something, but they delegate the performance of the job to a contractor. The problem in these situations is that the work might be capable of being delegated but the liability for poor performance is not

Delegation

• There are certain roles that cannot be delegated. If the employer tries to delegate one of said roles, and the contractor commits a tort, in certain circumstances they will never be able to avoid vicarious liability for the contractor's torts
• Typically, according to the Annie Woodland case, these would involve:
• Cases where duties to children, patients and other vulnerable persons are concerned
• Where a duty of care to protect from harm exists (both statute and common law available)
• Where the claimant had no control over the contractor's performance
• Where the employer had delegated an aspect of the duty of care to the contractor who then had control over the claimant's safety
• The contractor has simply been negligent in the performance of that duty - see also the duty of care imposed on Occupiers under the 1957 Occupier's liability Act - e.g a duty to pick a competent practitioner
• Razumas v Ministry of Justice
• The court found that there was a duty on the part of the ministry to provide access to healthcare - but especially NOT to oversee the quality of the treatment (they had delegated the duty to provide healthcare but they did not and could not control the quality of care
• Padbury
• Held that for an employer to be vicariously liable, the negligence of the contractor would have had to have been central to the work that they had been contracted to perform, and not merely incidental to it. Placing a tool required for the job in a position where it was likely to cause harm if it fell was deemed to be incidental to the main duties

Why is Vicarious Liability imposed? (Sean's summary)

• Where there is sufficient control by the employer over whatever it is the employee does as part of their job. Sometimes there is a question over employees that are very skilled, and the suggestion is that since they have a level of knowledge that no one else does, their work cannot be checked. In these circumstances, the employer should not be liable
• The courts have got around this by saying that as soon as employers start profiting from the work and expertise of staff, setting performance and fee earning targets for these people, so that sometimes there isn't enough time for them to do their job properly, then the employers should be responsible for any tort committed
• Benefits to employers
• If employers benefit, they must also shoulder the risk. There is also the argument that the party most financially able to meet a claim should therefore meet it
• Financial Resources
• Since the risk is usually passed on to the consumer in the case of big businesses - in the form of insurance and damage payouts, the courts are always reluctant to endorse an inequality of bargaining power
• Preventing Negligent Recruitment
• Vicarious liability will place this burden on employers, whose wrong selection of workers in technical/sensitive positions is often the prime source or tortious incidents in any event
• Recruitment aside, there is evidence that imposing vicarious liability promotes better standards

Torts Connected to Land: Trespass to Land

 L.O;

1. Define trespass to land
2. State the essential elements of a trespass to land
3. Explain the requirement for direct interference with the land
4. Explain the requirement for voluntary interference
5. Explain that trespass can be innocent
6. Explain that trespass is actionable per se
7. Explain the main defences to trespass
8. Explain the main remedies to trespass
9. Identify the introduction of trespass to criminal law

Definition

Trespass to land can be defined as the unjustifiable interference with land which is in the immediate and exclusive possession of another

The Essential Elements of Trespass to Land

There are four essential elements:

1. There is direct interference with the land
2. The interference must be voluntary
3. No need for the defendant to be aware that he/she is trespassing
4. No need for the claimant to experience harm or loss

Direct Interference

• Trespass requires direct interference with land such as physical entry to the land, throwing something onto the land or, if given the right to enter the land remaining there, when the right has been withdrawn
• For instance, if a person plants a tree and it overhangs a neighbouring property, it is indirect interference and more likely to be a private nuisance and not trespass. However, if a person cuts down a tree and throws the cut branches into his or her neighbour's garden, then it is direct interference and is likely to be a trespass
• Placing things on a person's land is also trespass

Southport Corporation v Esso Petroleum [1954]

• A small oil tanker ran aground due to carrying a heavy load and a steering fault in poor weather conditions. Oil was deliberately discharged in order to free the tanker. The oil drifted onto the claimant's land and a marine lake. The claimant brought an action for nuisance, negligence and trespass
• Held - The Court of Appeal decided that the defendants were liable for negligence
• The defendants were not liable for trespass because the discharge of oil was not done directly on their foreshore, but outside in the estuary. It was carried by the tide on to their land, but that was only consequential, not direct

Voluntary Interference with Land

• It can only be trespass to land if the person has voluntarily entered the land
• In Stone v Smith (1647) it was held that a person who was forcibly carried onto land by other persons was not trespassing

Awareness of Trespassing is Not Needed

• An innocent trespass is still a trespass. Mistake is no defence
• In Conway v George Wimpey & Co [1951] it was held by the Court of Appeal that a person could be liable for trespass even if he is mistaken about the ownership of land or wrongly believe he or she has permission to enter the land

Conway v George Wimpey & Co Ltd [1951]

• One of the defendant's lorry drivers had given a lift to the claimant who worked for another company. Both were working on an aerodrome. This was expressly prohibited by company rules. The claimant claimed that while dismounting from the lorry he was injured due to the negligence of the driver
• Held - The Court of Appeal held that because there was no proof that the defendant knew or must have known that the passengers from other companies were being given lifts, the claimant was a trespasser while on the lorry and as a result the defendants were not under any duty of care to him

No Need for the Claimant to Experience Harm or Loss

• Trespass to land is actionable per se (per se = in itself in latin)
• This means that there is no need for the defendant to have caused the claimant any damage or loss

Cuis est solum, eius est usque ad coelum et ad inferos

• This is Latin for 'who owns the land, owns to the heavens and down to hell'
• It is controversially used to explain the common law principle that ownership of land includes the air above and what is below the ground. This principle has been restricted through precedent and statute

Airspace

• In Bernstein v Skyviews and General Ltd (1977) the defendants had flown over the claimant's land to take an aerial photograph of his property which they then offered to sell to him
• HELD - The High Court stated that there was no trespass because the claimant did not have an unlimited right to all the airspace above his land but only the right to that airspace as was necessary for the ordinary use and enjoyment of his land buildings
• Anchor Brewhouse v Berkely House Developments (1987):
• Trespass occurred when the arm of a crane routinely swung over the claimant's property - thereby violating the airspace above the claimant's house

Below the Surface of Land

• In Star Energy Weald Basin Limited v Bocardo SA [2010], the Supreme Court held that the defendants had trespassed when, from an adjacent land, it had vertically drilled oil wells that were 244 metres to 853 metres below the surface of the claimant's land

Infrastructure Act 2015

• Since the Infrastructure Act 2015 s.43, land that is 300 metres below the surface (deep level land) can be exploited for "the purposes of exploiting petroleum or deep geothermal energy" without liability for trespassing
• Why is the Infrastructure Act 2015 s.43 controversial?
• It enables companies engaged in fracking to install pipes to transport the gas under private land without fear of incurring liability for trespass

Possession

• Possession does not mean ownership. In a rental scenario, it is always the tenant and not the owner/landlord who can sue
• For trespass to occur, you do not need to show that a boundary has been crossed, just that you have made physical contact with the land
• Placing things on a person's land can also amount to trespass, for example:
• Growing a creeping plant up the wall of a neighbour
• Leaning a bike against a shop window
• Stacking rubbish up against a neighbour's wall

Animals Straying onto Land

• The League Against Cruel Sports v Scott (1985)
• The League had bought areas of Exmoor and created a nature reserve and sanctuary for deer.
• The hunt repeatedly allowed their dogs to stray onto the land such that the claimants successfully obtained an injunction  to stop this
• Intention wasn't necessary, but it makes an injunction easier to obtain if it's an obvious pattern of behaviour

Cases

• Hickman v Maisey (1900)
• Claimant owned land that racehorses were being trained on
• The road the defendant travelled on crossed the claimant's land
• He stopped to observe the horses
• HELD - Trespass. Wouldn't have been if the defendant had been using the road for its normal purpose, but the particular activity exceeded this purpose
• DPP v Jones (1999)
• Protestors at Stonehenge were initially deemed to be trespassing for the same reason as in Hickman
• They weren't using the highway as a highway
• BUT on appeal they were found not liable as they had not acted in a destructive way, nor had they prevented other highway users from using the road
• City of London v Samede (2012)
• A camp outside St Paul's remained in place for a long time. The camp started out as a protest, but then took on a permanent residency at the site
• Defendant charged with trespass, and used the Human Rights right to demonstrate as a defence (under the ECHR)
• HELD - there is the right to demonstrate, but this does not allow you to interfere with the rights of other highway users and the right to enjoyment of the owner/occupier

Continuing Trespass

• Trespass doesn't have to be momentary - sometimes it can go on for years
• This happens especially in relation to things placed on the land such as shipping containers and sheds etc
• The law allows the defendant to be sued for the interference that lasts as long as the trespass. In terms of damages, this is hard to quantify, but a court will resort to punitive and exemplary damages to address the issue
• Holmes v Wilson (1839)
• Damages were payable in trespass for as long as buttresses built to contain a road that had been built on a claimant's land remained in place

Trespass by Relation

• This is what occurs when someone takes possession of land, which is then subsequently trespassed by the defendant
• The law states that you can sue for damages to cover the period from when possession first started and not when the nuisance began

Trespass Ab Initio

• 'Ab initio' is Latin for 'from the beginning'
• This is a form of trespass that occurs when a person enters land with authority given by law rather than with the permission of the person possessing the land subsequently commits an act that is an abuse of that authority
• The authority is cancelled retrospectively and the entry is deemed to have been a trespass from the beginning
• This type of trespass action was often used in cases against the police who exceeded the authority given to them with a search warrant when seizing stolen goods during a search of the premises
• Such an action may mean damages would be assessed on the fact that the police's whole conduct, rather than just the abuse of authority, was tortious
• Precedent and statute law have increased the power of the police when searching premises so such actions are rarely successful today and therefore, some textbooks regard trespass ab initio as having little relevance to English and Welsh law today
• However, actions for trespass ab initio are more common in other common law jurisdictions such as the USA. 
• The Six Carpenters (1610)
• They had failed to pay for a second round of wine, and the court initially held that this rendered their entire stay in the pub a trespass
• On appeal, the court said that a trespass based on an omission could not amount to a trespass
• Cinnamond v British Airports Authority (1980)
• The airport was trying to weed out taxi drivers that overcharged customers from the arrivals terminal
• Held that their wrongful picking up of passengers exceeded their permission to be there and made their trespass ab initio
• Elias v Pasmore (1934)
• The police collected evidence that was outside the scope of the warrant they had been granted by the court
• HELD - the entry amounted to trespass in regard to the illegally acquired items, but it did not undermine the overall authority granted by the warrant for them to enter the premises in the first place
• Chic Fashions (West Wales v Jones)(1968)
• Chic Fashions were accused of selling stolen designer clothes
• The police had a warrant to search the shops and home of the owner, but took items that were not identified in the warrant
• HELD - the entry authorised by the warrant was not illegal or wrongful
• Even though the police wrongly took items that had not been stolen, warrants allow the police to seize anything they reasonably believe to be stolen, so they do have some room for manouvre

Intention

• The courts decree that the very act of walking denotes an intention to move onto land
• Basely v Clarkson (1681)
• The act that led to the trespass (mowing grass) was an intentional one. This was all that was required
• League Against Cruel Sports v Scott (1985)
• The intention to engage on the activity (hunting with hounds) that led to trespass was sufficient in order to establish trespass
• River Wear Commissioners v Adamson (1879)
• A storm threw a boat that was being steered by the defendants against a harbour wall, damaging it
• HELD - Whether the trespass is accidental or mistaken does not matter. Liability for trespass will still be incurred

Defences

The following are the main defences to trespass to land:

1. Legal authority (or justification by law)
2. Consent (sometimes referred to as license) including contractual license
3. Necessity

Defences: Legal Authority

A person is not liable for trespass if he/she has legal authority permitting them to be on that land. Four examples are:

• The Countryside and Rights of Way Act 2000 gives the public certain rights of access to land provided that they comply with certain statutory restrictions
• The Police and Criminal Evidence Act 1984 gives constables certain rights to enter land to make arrests and to search premises
• Rights of way established under the common law. Rights of way are recorded on 'definitive maps' prepared by a local authority
• Common land which is land where although it might be owned by someone else, certain people have rights of access through custom for a particular purpose such as to graze livestock or cut peat for fuel

Defences: Consent

• A license to enter land can be received with either the express or implied consent of the person possessing the land
• Implied consent can be given in a number of ways. For instance, at the front of my house is a pathway to my front door which has a letterbox and a doorbell. I have given implied consent for persons to walk on my path and come to my front door and give me a letter or ring the bell to attract my attention
• A person becomes a trespasser once express or implied permission is withdrawn or if a person exceeds the limits of the permission. The defence of consent (or license) can no longer be used once permission is withdrawn
• For instance, although there may be implied permission for someone to come to my front door and deliver a letter, there is no implied permission for that person to come into my back garden or enter my property
• Even if there is a contractual license, this can be withdrawn. If, having bought a cinema ticket, you are asked to leave the cinema, you must do so or you will become a trespasser. In Wood v Leadbitter (1845) a man was ejected from a horse racecourse despite having bought a ticket. It was held that his contractual license could be revoked, making him a trespasser
• If having paid, you are asked to leave, you might have a remedy under the law of contract

Defences: Contractual License

• A contractual license to enter land covers situations when a purchaser receives permission to be on land as part of a purchase. For instance, if I buy a cinema ticket to see a film, I receive a contractual license to go to the cinema
• Where a licence has been revoked for any reason, you as the occupier must allow a reasonable time for the defendant to get themselves or their property off of your land, after which, trespass will occur

Defences: Just Tertii

• This is a defence when you can show that the land that you have supposedly trespassed over or onto does not actually belong to the claimant, but to someone else
• Doe d Carter v Barnard (1849)
• Here, a landlord granted a lease to a tenant
• He did not own the land that he granted the lease on, and therefore had no right to do anything with the land concerned
• HELD - jus tertii could usually be used, but not in the case of tenant and landlord

Defences: Necessity

• Necessity has two forms: private and public necessity
• Private necessity would involve an act needed to protect your own property against the threat of harm. Public necessity would involve an act to protect the wider public against harm
• The case of law of necessity when applied to trespass is uncertain. The general rule seems to be that there must be an actual danger and the acts of the defendant must be reasonable in light of all the facts
• In Rigby v Chief Constable of Northamptonshire [1985], the police had fired a CS gas canister into a shop to force a dangerous psychopath out. The gas canister caused the shop to catch fire. The police had not arranged for adequate fire-fighting equipment to be available. The shop was burned out. A claim was brought for negligence under the Rule in Rylands v Fletcher and trespass
• The High Court held that the police were liable for negligence for failing to provide adequate fire-fighting equipment
• However, the judge rejected liability for trespass, arguing that the defence of necessity was available in an action for trespass because there was no negligence on the part of police in creating or contributing to the necessity. They did not create the psychopath
• The judge also rejected liability under the Rule in Rylands v Fletcher because the rule applies only to an 'escape' and 'probably' does not apply to the intentional or voluntary release of a dangerous thing
• In Esso Petroleum v Southport, a ship's captain discharging oil from his tanks to protect his ship and the lives of his crew was not guilty of the trespass of oil onto the shoreline as a result
• Monsarato v Tilly (1999)
• Defendants entered claimant's land and pulled up crops on the grounds of public interest
• HELD - the fact that the defendants had only pulled up certain crops made it clear that they were trying to publicise their aims and their group. They obviously weren't doing it for public interest

Remedies to Trespass to Land

• Damages and injunctions are the usual remedies for trespass to land. Please see the presentation on tort remedies for details on these
• Orders for Possession: these are a court order and covered by the Civil Procedure Rules Part 55. They are issued by a court following a successful 'possession claim against trespassers'. The Order will instruct the defendant to leave the land by a particular date
• Self-Help (sometimes known as 'abatement'): this involves the common law right of a land owner or occupier to remove the trespasser themselves. This "self help" remedy consists of a person using "reasonable force" to remove trespassers. It is not available if the trespass is on a residential property

Only Reasonable Force Allowed:

• Collins v Renison (1754)
• A trespasser up a ladder was 'shaken off' the ladder from a low height, causing the defendant to fall to the ground. It was held to be unreasonable force. In cases like this, where the force used is unreasonable, it can amount to a non-fatal offence against the person

Ejectment

• This is a formal court procedure where you apply to the court for an order to get possession of the land back - this is especially useful against squatters, even if the claimant cannot identify whoever is in possession

Mesne Profits

• Special kind of court action which allows the claimant to recover from the defendant any profits that the latter has earned from wrongfully occupying the land. It also allows the claimant to recover sums in damages representing the costs of repair and court recovery
• Farra Leongreen (2017)
• Defendant remained in a flat after the lease expired, and the courts granted the claimant the right to recover the mesne profits of rent that he would have earned from a paying tenant - as well as the cost of repairing the flat as the defendant had left it in a terrible state

Distress Damage Feasant

• This is another way of saying that you can keep someone else's property that causes damage on your land until the damage has been paid for. E.g; a football that broke a window

Possession Claim Against Trespassers

The Civil Procedure Rules 55.6 state:

"Where, in a possession claim against trespassers, the claim has been issued against 'persons unknown', the claim form, particulars of claim and any witness statements must be served on those persons by:

(a)

(i) attaching copies of the claim form, particulars of claim and any witness statements to the main door or some other part of the land so that they are clearly visible and

(ii) if practicable, inserting copies of those documents in a sealed transparent envelope addressed to 'the occupiers' through the letter box; or

(b) placing stakes in the land in places where they are clearly visible and attaching to each stake copies of the claim form, particulars of claim and any witness statements in a sealed transparent envelope addressed to 'the occupiers'

Trespass in Criminal Law

• Trespass originates in civil law
• In recent years, Parliament has grown concerned by many incidents of trespass by protestors, hunt saboteurs, squatter and those attending open-air raves
• A number of statutory offences involving trespass have been created such as the offences of aggravated trespass and squatting in a residential building

SIDE NOTE - A detailed knowledge of these offences is not required, only a general awareness that in recent years elements of trespass have entered the criminal law

Aggravated Trespass

• Under the Criminal Justice and Public Order Act 1994 s.69 a person commits the offence of aggravated trespass if they trespass on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by them to have the effect:
• Of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity
• Of obstructing that activity or,
• Of disrupting that activity
• Under this order, trespass becomes both a tort and criminal offence in the cases of certain political demonstrations e.g Anti-Hunt activists. The complaint has been that this infringes rights under the Human Rights Act and that it criminalised legitimate activities

Offence of Squatting in a Residential Building

Under the LASPO 2012 Act s.144 a person commits a criminal offence if:

• The person is in a residential building as a trespasser having entered it as a trespasser
• The person knows or ought to know that he or she is a trespasser and
• the person is living in the building or intends to live there for any period

Torts Connected to Land: Rylands v Fletcher (and more Private Nuisance)

 L.O:

1. State the Rule in Rylands v Fletcher
2. Explain the essential parts of the Rule
3. Explain the development of the Rule
4. Explain the impact on the Rule of the decision in Cambridge Water Co Ltd v Eastern Counties Leather PLC (1993)
5. Explain the defences to the Rule
6. Explain criticisms of the Rule

Intro

• Facts: Fletcher had a reservoir built on his land. Some time later the reservoir burst and flooded a neighbouring mine run by Ryland
• Decision: The House of Lords held that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape
• Lord Cairns (the Lord Chancellor) added that the use of land must be non-natural. He suggested that if water had naturally accumulated on or below the surface of the land then liability would not have arisen

Prima facie - 

Vis major or Act of God

The Rule

The essential parts of the rule are:

1. Something must have been collected and kept on land
2. The use of land must be non natural
3. The thing brought onto the land must be likely to cause mischief if it escaped
4. The thing brought onto land must have escaped and caused damage

Some of these essential parts have been modified, refined and added to by precedent over the years

The Development of the Rule

Although the main principles of the rule have remained, precedent has adapted the rule in a number of ways. In particular, the courts have examined important issues such as:

1. Does the thing collected and kept have to escape itself?
2. What is the meaning of 'non-natural' use of land?
3. To what extent must the thing be likely to cause mischief?
4. Is foreseeability of harm needed?

Controlling the Land

• Smith v Scott (1973)
• The landlord was the council, but under the terms of the lease it was clear that the tenant was in control of the property
• When the tenants behaved in an anti-social manner, the neighbours sued the council as owners
• HELD - the council were not in control of the property, nor had they permitted the nuisance. Under these circumstances, the council would only have been liable if they permitted the nuisance
• Rigby v CC of Northamptonshire (1985)
• Shop owner's premises were damaged by the police using a gas canister that they knew was a fire risk
• There were sound Statutory and policy reasons for the police to use this type of equipment
• HELD - Court decided they were negligent in failing to have the means to put out any likely fire

Bringing or Accumulating on Land a Thing for an Unnatural Use

• Giles v Walker (1890)
• Defendant not liable for damage to crops caused when thistle seeds from plants growing on his land seeded themselves on the claimant's land
• Rickards v Lothian (1913)
• The defendant had not accumulated, nor permitted the accumulation of the water. The defendant was not using his property for an unnatural purpose and so the claim failed
• British Celanese v Hunt (1969)
• Claim failed because the strips of metal that caused the power cut were not a dangerous thing, and the use to which the defendant was putting the building was not unnatural as it was a brown field site/industrial estate
• The defendant successfully used the argument that there was a benefit to the wider community in that the activity was providing jobs for the area

The Thing Collected and Kept

The thing collected and kept on land need not be the thing that escapes. Something collected and kept on land that causes something else to escape can lead to liability

In Miles v Forest Granite Co Ltd (1918) explosives kept on land were detonated to break up some rocks. Some of the rocks were forced into the air and escaped the defendant's property, injuring the claimant. The explosives caused the rocks to escape the property. The defendant was held to be liable

Non-Natural Use: Rickards v Lothian (1913)

In Rickards v Lothian (1913) water had escaped from an overflow pipe connected to a washbasin where the tap had been left running and the washbasin's waste pipe had been blocked by an unknown peroson

The Judicial Committee of the Privy Council held that the water from the overflow pipe did not involve the non-natural use of land. It was also accepted that damage was caused by a third party (i.e the person who deliberately turned the tap on and blocked the wastepipe)

Why was the final appeal in Rickards v Lothian heard by the Judicial Committee of the Privy Council and not the House of Lords?

It was an Australian case and at that time the Judicial Committee of the Privy Council acted as the final court of appeal for Australia

Escape: Read v J Lyons & Co Ltd (1947)

• In Read v J Lyons & Co (1947) some explosives detonated in a munitions factory killing one person and injuring others. There was no evidence of negligence and the case was decided using the Rule in Rylands v Fletcher. It was held by the House of Lords that no liability arose because the persons injured were on the premises and there was no escape from the factory
• This case is also important because Lord Porter in the House of Lords stated that. in deciding whether something was being used in a non-natural way, all circumstances must be considered

Non-natural Use and Likelihood of Mischief

• Transco PLC v Stockport Metropolitan Borough Council [2004]
• A waterpipe took water to a block of flats owned by the council. Unknown to anyone, the pipe had failed and water was escaping. This water caused an embankment to collapse and leave a gas main exposed and unsupported. The gas company took the council to court to recover the cost of repairing the gas main. It was accepted by the House of Lords that the council had not been negligent. The case was decided using the Rule in Rylands v Fletcher
• The House of Lords decided in favour of the Council because the supply of water through the pipes was normal and did not create any special hazard
• An unnatural use of land in this case was described as 'extraordinary and unusual, taking into account the time and place in which the activity is carried out'

Non-Natural Use and Foreseeability of Harm

• Cambridge Water Co Ltd v Eastern Counties Leather PLC (1994)
• European Directive was issued controlling the presence of PCE in water. Because the solvent the defendant used eventually soaked through the concrete floor, the borehole was contaminated
• The House of Lords accepted that the storage of PCE by the defendants was a non-natural use of land
• The HoL decided that the claimants needed to show that the defendant should have foreseen the potential contamination of the water supply. It was held that they could not have foreseen this because at the time of the spillages, the reasonable factory supervisor would have expected any spillage to evaporate rapidly in the air and would not have been expected to seep through the floor of the building into the soil below
• Claim failed because of remoteness of damage, but the case is useful because of the attempted definition by the House of Lords of what an unnatural use of land is. They said the storage of chemicals, even in a factory, could be 'unnatural' in principle, and just because the activity provides jobs did not offer up any kind of defence
• This type of foreseeability was established in Wagon Mound (No.1)
• Foreseeability of the type of damage should be regarded as a prerequisite of liability in damages under the rule

What is a dangerous thing?

• Batchellor v The Tunbridge Wells Gas Company (1901)
• Gas
• National Telephone Company v Baker (1893)
• Electricity
• West v Bristol Tramways (1908)
• Creosote fumes
• Shiffman v The Order of St John (1936)
• Flagpole
• Crowhurst v Amersham Burial Board
• Planting a yew tree, especially since the leaves are poisonous to animals. Planting a poisonous tree is an unnatural use
• Hale v Jennings (1938)
• A chair from an aerial fairground ride broke loose and clonked the claimant on the head, causing injury. This was an escape for the purposes of Rylands v Fletcher
• For this limb of Rylands v Fletcher to apply, the thing must actually 'escape'. It won't count if the claimant gets injured by the thing whilst themselves actually being on the defendant's land
• Crown River Cruises v Kimbolton Fireworks Co (1996)
• Rylands v Fletcher was held to cover the intentional release of dangerous substances
• HOWEVER, on the facts the defendant was not liable under Rylands v Fletcher
• Stannard v Gore (2012)
• Pile of tyres on defendant's land caught fire causing black smoke to drift onto the claimant's land
• HELD - no claim under Rylands v Fletcher as the tyres hadn't escaped, it was the black smoke

Defences: Rylands v Fletcher

Possible defences that can be used in Rylands v Fletcher include:

• Consent
• Vis major or an Act of God
• Act of a stranger
• Statutory authority
• Contributory negligence
• Volenti non fit injuria

Volenti non fit injuria

• And the idea that the activity undertaken and the substances stored on the defendant's land were consented to and confer a 'common benefit' - this can offer a defence
• Example: water tanks and water pipes in a block of flats

Contributory Negligence

• This can be a defence if it was the claimant who actually caused the escape of the dangerous thing
• This will also be a defence if the damage caused is due to the sensitivity of the claimant's land/property
• See Eastern and South African Telegraph Co (1902) regarding the minor escape of electricity

Statutory Authority

• Green v Chelsea Waterworks Co (1894):
• Damage caused by water pipes did not give rise to a claim because the defendant had a statutory duty to provide water. There was a greater public good and the court decided that in such circumstances the occasional leak was a small price to pay for that
• BUT it depends on what the relevant statute says about the service provided. In Charing Cross Electric v Hydraulic Company (1914) the defendant did not actually have a defence of statutory authority because the relevant Act only gave them a power, and did not impose a duty to provide water. So, for the defence to work there must be an obligation and not a discretion to provide the service complained of

Act of a Stranger

• In the sense that their actions amount to an intervening act - this is a total defence
• The person does not literally have to be a stranger, just someone NOT acting under the direction of the defendant
• Box v Jubb (1879):
• Defendants not liable for damage caused by the flooding of their reservoir which was itself caused by the flooding of someone else's
• SIDE NOTE - You can still sue under normal negligence principles of the act of a stranger was something that the defendant should have reasonably foreseen, and taken steps to prevent

Act of God

• Nichols v Marsland (1876)
• The storm that caused the flooding of the claimant's property was genuinely a once in a lifetime event that the defendant could not have foreseen, so Act of God worked as a defence - but crucially, the construction of the pools was not negligent, which would have helped the defence work
• Greenock Corporation v Caledonian Railway Corporation (1917)
• There was a storm of enormous magnitude which the House of Lords decided did not qualify as an Act of God - so it depends on the storm, but construction will play a part in the decision making. The judge will ask the question (no matter how violent the weather event) should the structure have stood up to it?
• Whether something qualifies as an Act of God depends on the judge's assessment of it - simply pleading the defence is not guaranteed to succeed

The Relationship Between Rylands and Other Areas of Tort

• For Rylands v Fletcher you will need accumulation and the fact that the substance will cause damage if it escapes - and there is the issue of whether something is an 'unnatural use of land'
• None of these things are required for an ordinary private nuisance claim - apart from the need for physical damage to property
• In negligence, the duty of care is relevant. In Rylands v Fletcher it is less so. However, when the defences of Act of God, Act of a Stranger or Common Benefit are used, it does become relevant - especially the degree of responsibility to prevent loss that exists for the defendant

In order to have a claim that will work under the tort of nuisance, you will need:

1. Interference with someone's enjoyment of land
2. That interference was unreasonable
3. That interference resulted in physical damage

Whether the interference is unreasonable depends on four things

1. Locality
2. Sensitivity
3. Duration
4. Malice

In Rylands, you need:

1. The defendant to control the land that the nuisance comes from
2. He must have brought or accumulated on his land something that has escaped, and that could be dangerous in the sense that it could cause physical damage to neighbouring property
3. The use of the land by the defendant must be 'unnatural' in the sense that it is a use that the land has not supported before. It often comes down to whether the land causing the nuisance is industrial, residential or agricultural
4. The 'dangerous' thing must have escaped
5. The damage must be physical and relate directly to the escape of the dangerous material

Do you need to intend or be reckless as to the consequences of your material escaping onto adjoining land?

• It used to be the case that liability was strict
• Where the defences of Act of God, Statutory Authority or Common Benefit are used, the courts will see whether recklessness is present in the defendant's actions and whether they could have done more to avoid the damage occurring

Damage

• The damage done (to succeed under Rylands) must be indirect - whereas it can be direct in private nuisance

A03 Material for a Conclusion in Essays

• Rylands used to be a pretty rare kind of negligence to appear before the courts
• People would find it much easier to sue in Private Negligence because of the tests for damage and unreasonableness. The Cambridge Water Case revived Rylands v Fletcher and the hope was that it would become a useful tool in fighting environmental pollution. This hasn't really happened, and the Law Commission at one point recommended that Parliament provide statutory guidance for these matters, which it did to a certain extent indirectly in Delegated Legislation, but no Primary Legislation came into force
• In the case of Transco - Lord Bingham was all for relegating Rylands cases to being a sub species of nuisance - and he referred to environmental disasters such as the Aberfan disaster of the 1960s when a pit heap in Wales slid onto a school and some houses in a Welsh village, killing 140 people
• The problem with using Rylands is that people would only have been compensated for the loss of property. The death and personal injury aspect would have to be addressed through private nuisnace
• The situation is that Rylands cases are not common, but they have not completely disappeared

A03 - Is Rylands unfair in its typical reliance on strict liability?

• Using Rylands requires lawyers to understand the nature of collecting and keeping something, and to recognise the risk of damage if it escapes. Because this can result in serious property damage/physical harm - strict liability is surely necessary to maintain health and safety? The later development of some level of intention would surely reduce the effectiveness of a Rylands action as a deterrent. Strict liability has always been good for public health - see Miles v Forest Rock Granite
• Also, the concept of an 'unnatural use of land' is vague. Rickards v Lothian, Read v Lyon and Transco provide inconsistent direction on the issue
• "Likely to do mischief" is a vague concept. What degree of risk are we talking about, in terms of level of damage that would be actionable?
• Look at the defences to it. Contributory Negligence, Consent, Act of God and Statutory Authority in particular - these vary from case to case and require greater clarity in terms of judicial discretion
• There is still a strong argument for saying that Rylands is not really needed when you can invoke normal Tort principles, and can fall back on Private Negligence anyway
• Finally, many Torts have a cross over with criminal law in any case - since there are clearly drafted offences for environmental carelessness

The Rule in Rylands v Fletcher: A Review

• The rule was decided at a time when there was growing public concern over bursting reservoir dams which was damaging property
• Australia no longer follows the rule:
• Burnie Port Authority v General Jones Pty Limited (1994)
• The rule is not followed in Scotland
• RHM Bakeries Ltd v Strathclyde Regional Council (1985)
• In English and Welsh law it is increasingly being seen as part of the tort of nuisance rather than a separate tort itself