No additional materials are provided for the following ten 'knowledge' questions. Please read each question carefully and select an answer from those available.
Question 1
Marks: 1 Which of the following is the correct definition of assault:-
Choose one answer. A. A person intentionally causes another to fear for his or her own safety
B. A person intentionally causes another to fear immediate and unlawful force
C. A person intentionally causes another to apprehend the application of immediate and unlawful force
D. A person intentionally causes another to reasonably apprehend the application of immediate and unlawful force on his person
E. Don't know
Feedback
The correct answer is (c).
Apprehension, not fear, is required - therefore the answers mentioning fear are incorrect. Furthermore, the apprehension of immediate and unlawful force must be reasonable: see Thomas v NUM (South Wales Area) [1986] Ch 20.
Incorrect
Marks for this submission: 0/1.Question 2
Marks: 1 Can silence ever amount to an assault?
Choose one answer. A. No
B. Yes, if the victim apprehends the possibility of imminent force
C. Yes, provided that the other party intends to upset the victim
D. Yes, if the victim is intentionally caused to apprehend the possibility of imminent force due to silent telephone calls
E. Don't know
Feedback
The correct answer is (d).
The House of Lords in R v Ireland and Burstow [1998] A.C. 147 made it clear that mere words (and, in certain circumstances, silence) could amount to an assault, but much would depend on the circumstances. Lord Steyn commented that 'The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying, "Come with me or I will stab you." I would, therefore, reject the proposition that an assault can never be committed by words. That brings me to the critical question whether a silent caller may be guilty of an assault. The answer to this question seems to be to be "Yes, depending on the facts."... Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions ... As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller's potentially menacing call and calls on the victim' (at page 162). The liability is not confined to silent telephone calls and depends on the effect of the conduct on the victim (rather than on the other party's intention).
Incorrect
Marks for this submission: 0/1.Question 3
Marks: 1 Which of the following statements is not a battery?
Choose one answer. A. Giving a work colleague a kiss
B. Throwing water at a work colleague
C. Bumping into a work colleague in the corridor
D. Hitting a work colleague very hard on the back to congratulate him or her
E. Don't know
Feedback
The correct answer is (d).
A battery is the intentional and direct application of force to another person. Giving a work colleague a kiss is a battery unless, of course, there is consent. Bumping into a work colleague in the corridor may technically amount to a direct application of force to another person, but such ordinary contact will not be actionable: see Wilson v Pringle [1986] 2 All E.R. 440. Whilst bumping into a colleague may be seen as part of ordinary life, hitting her or him very hard on the back, even in congratulations, or throwing water would be seen as exceeding what is ordinarily acceptable in such circumstances.
Correct
Marks for this submission: 1/1.Question 4
Marks: 1 The tort of false imprisonment requires which of the following?
Choose one answer. A. Imprisonment
B. That the defendant falsely justifies his or her interference with the victim's freedom of movement
C. That the victim is confined by someone who is not a police officer
D. That there is a complete restriction on the victim's freedom of movement
E. Don't know
Feedback
That's correct.
The tort of false imprisonment does not require actual imprisonment, but that the defendant imposes a complete restriction on the victim's freedom of movement: see Bird v Jones (1845) 7 QB 742. It is not a requirement that the defendant is not a police officer, although a police officer will not be liable under this tort if his or her actions are expressly or impliedly authorised by law. The defendant's actions must be intentional, but need not involve any false statement of fact.
Correct
Marks for this submission: 1/1.Question 5
Marks: 1 Which of the economic torts typically involves the defendant threatening to act in an unlawful manner towards a third party with the intention to damage the economic interests of the claimant?
Choose one answer. A. Deceit
B. Intimidation
C. Intentionally inducing breach of contract
D. Conspiracy
E. Don't know
Feedback
That's correct.
The tort of intimidation typically involves an illegal action or threat by the defendant to a third party which aims to harm the economic interests of the claimant: see Rookes v Barnard [1964] A.C. 1129. It is distinct from intentionally inducing breach of contract which does not require that the defendant commits a wrongful act to persuade the third party not to enter into a contract with the claimant: see Lumley v Gye (1853) E & B 216. Conspiracy clearly involves more than one party and deceit requires a specific false statement of fact which is intended to (and which does) influence the claimant's conduct.
Correct
Marks for this submission: 1/1.Question 6
Marks: 1 What is the difference between pure purpose and unlawful means conspiracy?
Choose one answer. A. Only the former requires that the predominant purpose is to harm the claimant's interests
B. A pure purpose conspiracy will also amount to a criminal offence
C. It is a trick question - there is in reality no difference
D. Unlawful means conspiracy requires more than five conspirators
E. Don't know
Feedback
That's correct.
The two torts are distinct, although they are both forms of conspiracy requiring two or more persons to conspire: it is therefore incorrect to say either that there is no difference. The tort of conspiracy also has no relationship nowadays with criminal law despite their common origins and so it is incorrect to say that a pure purpose conspiracy will also amount to a criminal offence, although there may of course be a possibility that the conspirator's conduct amounts to a criminal offence. Only pure purpose conspiracy requires that the predominant purpose of the conspirators is to injure the claimant: see Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] A.C. 435. This is not the case for unlawful means conspiracy: see Lonrho v Fayed [1992] 1 A.C. 448.
Correct
Marks for this submission: 1/1.Question 7
Marks: 1 Defamation is a tort which protects:-
Choose one answer. A. The claimant's reputation
B. The claimant's privacy
C. The claimant's freedom of expression
D. The claimant's feelings
E. Don't know
Feedback
That's correct.
Defamation protects the claimant's reputation, not his or her feelings or privacy. On this basis, the tort will only occur when a third party discovers the allegation i.e. the words have been published.
Correct
Marks for this submission: 1/1.Question 8
Marks: 1 In which case did a judge make the following statement: 'not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff's] part, but also if it tends to make the plaintiff be shunned and avoided'?
Choose one answer. A. It was Millett L.J. in Berkoff v Burchill
B. It was Greene L.J. in Byrne v Deane
C. It was Slesser L.J. in Youssoupoff v MGM Pictures Ltd.
D. It was Lord Atkin in Sim v Stretch
E. Don't know
Feedback
That's correct.
In Youssoupoff, Slesser L.J. expanded the definition of defamatory to include words which cause a person to be shunned or avoided (at page 587). He continues: 'It is for that reason that persons who have been alleged to have been insane, or be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'
Correct
Marks for this submission: 1/1.Question 9
Marks: 1 The falsity of the defamatory statement:-
Choose one answer. A. Must be proved by the defendant
B. Must be proved by the claimant
C. Is presumed, unless the defendant proves otherwise
D. Is presumed
E. Don't know
Feedback
That's correct.
Defamatory statements are presumed to be untrue, unless the defendant proves otherwise. This can be achieved by establishing the defence of justification or truth. This gives the claimant a considerable advantage, but has not been found to be contrary to Article 10 of the European Convention on Human Rights.
Correct
Marks for this submission: 1/1.Question 10
Marks: 1 Which of the following is not a defence to the tort of defamation:-
Choose one answer. A. Qualified privilege
B. Mistake
C. Consent
D. Innocent dissemination
E. Don't know
Feedback
That's correct.
It is no excuse that the defendant is mistaken if his or her statements are defamatory, refer to the claimant and have been published. The mistake may, however, enable the defendant to rely on sections 2-4 of the Defamation Act 1996 (procedure for unintentional defamation).
Correct
Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers to an extract. Please make sure you read the relevant extract before answering the questions below.
Please read the speech of Lord Bingham in the case of Jameel v Wall Street Journal Europe SPRL (No 2) [2006] UKHL 44, [2006] 4 All E.R. 1279, then answer the six questions (Q11 - Q16) that follow. Note that this is a very recent case and so not covered in your Subject Guide, but deals with an application of the principles described at 12.3.3.
Context
The claimants (a prominent Saudi Arabian businessman and the trading company of which he was president and general manager which was incorporated in Saudi Arabia) began proceedings for defamation against the defendant. The defendant had published a newspaper article which had been edited and printed in Belgium and distributed in Europe, the United States and the Middle East which asserted that, at the request of United States enforcement agencies, the central bank of Saudi Arabia was monitoring certain bank accounts to prevent their use for channelling funds to terrorist organizations which included that of the claimants' trading group. Although the company neither owned property nor traded in the United Kingdom, it had a commercial reputation here. The defendant sought to rely on a defence of qualified privilege.
Question 11
Marks: 1 Why was the company able to sue for libel when it had not shown that it had suffered financial loss?
Choose one answer. A. Because it had a commercial reputation in the United Kingdom
B. Because it traded mainly in the United Kingdom
C. Because it was incorporated in the United Kingdom
D. Because the company owned property in the United Kingdom
E. Don't know
Feedback
That's correct.
Libel is actionable per se, that is, without proof of damage. Although the company did not trade, nor own property in the United Kingdom and was incorporated in Saudi Arabia, provided it can show that it possesses a commercial reputation in the United Kingdom, it may bring an action for libel. The courts draw no distinction between individuals and companies.
Correct
Marks for this submission: 1/1.Question 12
Marks: 1 The rule that companies can sue for defamation is, according to Lord Bingham, consistent with Article 10 of the European Convention on Human Rights because:-
Choose one answer. A. It has not been challenged in the European Court of Human Rights
B. English law should be permitted to establish its own rules of defamation
C. Article 10 gives only a qualified right to freedom of expression, which allows necessary and proportionate restrictions
D. The argument that defamation can have a chilling effect on freedom of expression is wrong
E. Don't know
Feedback
That's correct.
In paragraph 20, his Lordship makes it clear that the question of recovery of damages for defamation by a trading corporation which has not proved financial loss has been subject to challenge before the European Commission and Court and that the court did not hold the current rule to be necessarily inconsistent with Article 10. The Human Rights Act 1998 gave domestic effect to the European Convention on Human Rights and includes reference to Article 10: it is therefore incorrect to say that English law should be permitted to establish its own rules of defamation. His Lordship also notes that the chilling effect argument has been exaggerated in this context, but does not indicate that it has no force: it is therefore incorrect to say that the chilling effect argument is wrong. Paragraph 19 shows that the answer that Article 10 gives only a qualified right to freedom of expression is correct.
Correct
Marks for this submission: 1/1.Question 13
Marks: 1 Does Lord Bingham express any reservations about the ability of trading corporations to obtain damages for libel without proof of damage:-
Choose one answer. A. No. The tort of defamation exists to afford redress for all unjustified injuries to the reputation
B. Yes, if the damages awarded are excessive
C. Yes, where defamation of the company involves defamation of directors and individuals who are able to sue in their own right
D. No. The law is currently Convention-compliant
E. Don't know
Feedback
That's correct.
His lordship does express a reservation - see paragraphs 19 and 27 - and thus both "No" answers are incorrect. He expressly rejects the argument regarding a situation where directors and individuals are able to sue in their own right: see paragraph 21.
Correct
Marks for this submission: 1/1.Question 14
Marks: 1 To establish the defence of qualified privilege, it is necessary that:-
Choose one answer. A. The article published is in the public interest
B. The article published is of topical interest
C. The article published concerns a matter of political interest
D. The article published engages the interest of the public
E. Don't know
Feedback
That's correct.
Lord Bingham in paragraph 31 states that 'The necessary precondition of reliance on qualified privilege in this context is that the matter published should be one of public interest. In the present case the subject matter of the article complained of was of undoubted public interest. But that is not always, perhaps not usually, so. It has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest.' His Lordship thus distinguished the 'public interest' from something that engages the interest of the public. Public interest is also distinct from matters of topical and political interest, which may be in the public interest, but not necessarily so.
Correct
Marks for this submission: 1/1.Question 15
Marks: 1 In applying Lord Nicholls' ten criteria in Reynolds (2001), a court must:-
Choose one answer. A. Ensure that all 10 criteria are met
B. Examine whether the article could have been published without the inclusion of the particular ingredient complained of
C. Establish whether the thrust of the article is true
D. Use the criteria as pointers to indicate on the facts of each case whether the publication is protected by qualified privilege
E. Don't know
Feedback
That's correct.
Lord Bingham states that Lord Nicholl's criteria are guidance, not an absolute test. It is therefore incorrect to say that all ten must be met. Although the issue of whether the ingredient giving rise to the complaint was necessary for publication and the issue of the truth of the thrust of the article might be relevant to the court's decision, they will not always be significant: see paragraph 34. The use of the criteria as pointers as to whether or not the publication is protected by qualified privilege therefore represents his Lordship's view of the preferred approach to the Reynolds criteria.
Correct
Marks for this submission: 1/1.Question 16
Marks: 1 In Jameel, did his Lordship find the defence of qualified privilege to exist?
Choose one answer. A. Yes. On balance, the test of responsible journalism had been satisfied
B. No. The claimants should have been given a right of reply
C. Yes, because it is no longer necessary to attempt to give a right of reply or comment on the article
D. No. The article was not in the public interest
E. Don't know
Feedback
That's correct.
Despite his Lordship's doubts, Lord Bingham does find the publication to be protected by qualified privilege and so the two "No" answers are incorrect. The answer that "it is no longer necessary to attempt to give a right of reply or comment on the article" goes too far - his Lordship in paragraph 34 considers the impact of the newspaper's failure to obtain a comment, but finds, on balance, that it did not lead to a failure of responsible journalism.
Correct
Marks for this submission: 1/1.Application
Please answer the following four examination questions (Q17 - Q20):
Question 17
Marks: 1 David tells Goliath: 'if I was not studying for my Tort Multiple Choice Test, I would strike you dead.' He is, in fact, diligently studying for his Tort Multiple Choice Test. Which of the following is correct?
Choose one answer. A. David commits an assault
B. David commits a battery
C. David intentionally causes Goliath nervous shock
D. David doesn't commit assault or battery, nor does he intentionally cause nervous shock
E. Don't know
Feedback
That's correct.
Here, the words negate what would otherwise be an assault - Turberville v Savage (1669) 1 Mod Rep 3 - and so David does not commit an assault. Equally, there is no direct application of force amounting to a battery, nor any evidence of intentionally inflicted nervous shock. It must therefore be the case that David does not commit any of these torts.
Correct
Marks for this submission: 1/1.Question 18
Marks: 1 Keith tells Lenny that Lenny's fiancée has had an accident on the eve of their wedding. Lenny collapses with shock. Keith laughs and tells him that it was a joke. Which of the following actions could Lenny bring against Keith?
Choose one answer. A. Assault
B. Battery
C. Intentionally causing nervous shock
D. Defamation
E. Don't know
Feedback
That's correct.
Assault requires the reasonable apprehension of immediate and unlawful force on the person - there is no evidence that Lenny had any such apprehension. Battery requires the intentional and direct application of force to another person - again this has not occurred. The statement does not harm Lenny's reputation as required by defamation. The facts indeed resemble those of Wilkinson v Downton [1867] 2 Q.B. 57, whose principle is stated in the answer "Intentionally causing nervous shock".
Correct
Marks for this submission: 1/1.Question 19
Marks: 1 James, a journalist, writes the following story which is published in the local newspaper, the Daily Rag:
'We are sympathetic towards Dr Morris - after all, it must be upsetting to find out that no-one leaves her surgery alive!'
Several patients have recently died at Dr Morris' clinic due to natural causes. There is no evidence that Dr Morris is anything but an excellent physician. Which of the following is a jury likely to find?
Choose one answer. A. The statement is not defamatory as it is sympathetic towards Dr Morris' plight
B. The statement is defamatory, but James has a good defence of justification
C. The statement is defamatory due to an innuendo that Dr Morris is incompetent. This is not true
D. The statement is defamatory, but James, as a journalist, can rely on the defence of qualified privilege
E. Don't know
Feedback
That's correct.
The statement contains an innuendo that Dr Morris is incompetent. There is no evidence that it is true and no basis given to sustain a defence of qualified privilege under the Reynolds test of responsible journalism.
Correct
Marks for this submission: 1/1.Question 20
Marks: 1 Fred takes Barney to one side and tells him that he is a liar and a cheat. Barney's business partner, Betty, happens to be leaning out of a window above them and hears every word. As a result, she decides to terminate the partnership and Barney loses his investment in the business. Is Fred?
Choose one answer. A. Not liable in slander because he had no intention to publish the words
B. Not liable in slander because Barney suffers no damage
C. Not liable in slander because Betty should not be listening to private conversations
D. Not liable in slander because it was unforeseeable that Betty would overhear the words
E. Don't know
Feedback
That's correct.
Slander requires special damage in addition to the usual requirements for defamation, except in four exceptional cases. The words have been published if a third party hears them and intention is irrelevant. As a result it is incorrect to assert that Fred is not liable because he had no intention to publish the words. Barney suffers financial loss as a result of the statement and so it is incorrect to say he suffers no damage (arguably, it would be actionable per se in any event due to the damage to Barney's professional reputation under section 2, Defamation Act 1952). However, it must be reasonably foreseeable that someone would overhear (see Theaker v Richardson [1962] 1 W.L.R. 151). It is only by chance that Betty overhears what was meant to be a private conversation and so the answer is that Fred could not have foreseen this and is therefore not liable in slander. The courts will not, however, make moral judgements as to people listening to other people's conversations - the test is an objective one of reasonable foresight and therefore it is incorrect to use the subjective opinion that Betty should not have been listening.
Correct
Marks for this submission: 1/1.
Wednesday, April 29, 2009
HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Jameel and others (Respondents) v. Wall Street Journal Europe Sprl (Appellant
large circulation in the United States.
3. The respondents, claimants in the proceedings, are Saudi Arabian. The first respondent is a prominent businessman and president of the Abdul Latif Jameel Group, an international trading conglomerate based in the Kingdom of Saudi Arabia comprising numerous companies and with interests in cars, shipping, property and distribution of electronic goods. The second respondent is a company incorporated in Saudi Arabia and is part of the Group. The first respondent is the general manager and president of the company, which does not itself own property or conduct any trade or business here, but which has a commercial reputation in England and Wales.
4. On 6 February 2002 the newspaper published the article which gave rise to these proceedings. It was headed "Saudi Officials Monitor Certain Bank Accounts" with a smaller sub-heading "Focus Is on Those With Potential Terrorist Ties". It bore the by-line of James M Dorsey, an Arabic-speaking reporter with specialist knowledge of Saudi Arabia, and acknowledged the contribution of Glenn Simpson, a staff writer in Washington. The gist of the article, succinctly stated in the first paragraph, was that the Saudi Arabian Monetary Authority, the Kingdom's central bank, was, at the request of US law enforcement agencies, monitoring bank accounts associated with some of the country's most prominent businessmen in a bid to prevent them from being used, wittingly or unwittingly, for the funnelling of funds to terrorist organisations. This information was attributed to "U.S. officials and Saudis familiar with the issue". In the second paragraph a number of companies and individuals were
named, among them "the Abdullatif Jamil Group of companies" who, it was stated later in the article, "couldn't be reached for comment".
5. The jury in due course found that the article referred to was defamatory of both respondents. They may have understood the article to mean that there were reasonable grounds to suspect the involvement of the respondents, or alternatively that there were reasonable grounds to investigate the involvement of the respondents, in the witting or unwitting funnelling of funds to terrorist organisations. For present purposes it is immaterial which defamatory meaning the jury gave the passage complained of, neither of which the newspaper sought to justify.
6. The article was published some five months after the catastrophic events which took place in New York and Washington on 11 September 2001. During the intervening months the US authorities had taken determined steps, with strong international support, to cut off the flow of funds to terrorist organisations, including Al-Qaida. These steps were of particular importance in relation to Saudi Arabia, since a large majority of the suspected hijackers were of Saudi origin, and it was believed that much of their financial support came from Saudi sources. Yet the position of the Saudi authorities was one of some sensitivity. The Kingdom was an ally of the United States and condemned terrorism. But among its devoutly Muslim population there were those who resented the Kingdom's association with the United States and espoused the cause of Islamic jihad. Thus there were questions about whether, and to what extent, the Kingdom was co-operating with the US authorities in cutting off funds to terrorist organisations. This was, without doubt, a matter of high international importance, a very appropriate matter for report by a serious newspaper. But it was a difficult matter to investigate and report since information was not freely available in the Kingdom and the Saudi authorities, even if co-operating closely with those of the United States, might be embarrassed if that fact were to become generally known.
7. The trial of the action before Eady J and a jury lasted some three working weeks and culminated in verdicts for the respondents and awards of £30,000 and £10,000 respectively. Much evidence was called on both sides, of which the House has been referred to short excerpts only. The judge rejected the newspaper's argument on the damage issue ([2003] EWHC 2945 (QB), [2004] 2 All ER 92) and the Court of Appeal agreed with him ([2005] EWCA Civ 74, [2005] QB 904). The judge also rejected the newspaper's claim to Reynolds privilege ([2004] EWHC 37 (QB)). On this question also the Court of Appeal upheld his decision, but on a more limited ground. This calls for more detailed consideration.
8. The judge put a series of questions to the jury which, so far as relevant to Reynolds privilege, were directed to two matters: the sources on which Mr Dorsey, as reporter, relied; and his attempt to obtain the respondents' response to his inclusion of their names in his proposed article. Mr Dorsey testified that he had relied on information given by a prominent Saudi businessman (source A), confirmed by a banker (source B), a US diplomat (source C), a US embassy official (source D) and a senior Saudi official (source E). In answer to the judge's questions the jury found that the newspaper had proved that Mr Dorsey had received the information he claimed to have received from source A, but had not proved that Mr Dorsey had received the confirmation he claimed from sources B-E inclusive. The judge attached significance to these negative findings, since Mr Dorsey said in evidence that he would not have
written the article in reliance on source A alone. In the Court of Appeal, the judge's reliance on these negative findings was criticised by the newspaper. At the outset of his direction to the jury the judge had pointed out that there was no plea of justification and that therefore, if the jury found the article defamatory of the respondents, they should assume it to be untrue. This direction, it was said, may well have infected the jury's approach to the questions concerning sources B-E. The Court of Appeal refused the newspaper leave to raise a new ground of misdirection, and thought (para 66) that the jury had "almost certainly" based their answers on the impression made by witnesses in court. But the Court of Appeal preferred to base its decision on the other ground relied on by the judge to deny privilege.
9. Mr Dorsey described attempts to obtain a response from the Group about his proposed article. He said he had telephoned the Group office at about 9.0 a.m. and left a recorded message. The jury found that the newspaper had not proved on the balance of probabilities that that was so. There was, it was agreed, a telephone conversation between Mr Dorsey and Mr Munajjed, an employee of the Group, on the evening of 5 February, the day before publication. During that conversation, according to Mr Munajjed, he had asked Mr Dorsey to wait until the following day for a comment by the Group. He had, he said, no authority to make a statement and the first respondent was in Japan, where the time was 3.0 a.m. Mr Dorsey denied that Mr Munajjed had asked him to wait. But the jury found that Mr Munajjed had made that request. It was on this ground, as I understand, that the Court of Appeal upheld the judge's denial of Reynolds privilege:
"82. We turn to the judge's observation that the Jameels were not given sufficient time to comment on the proposed publication. It was to this matter that the jury's questions 6 and 7 were addressed. Mr Dorsey had given evidence that he had telephoned the Jameels' offices on the morning before the publication and left a recorded message. The jury found that this did not take place. What the jury did find had taken place was that Mr Dorsey had spoken to the Jameels' representative, Mr Munajjed, on the evening before publication, that the latter had asked for the publication to be postponed so that he could contact Mr Jameel, who was in Japan on business, and that Mr Dorsey had declined this request. The judge found that there was no compelling reason why Mr Jameel could not have been afforded 24 hours to comment on the article. We can see no basis for challenging this conclusion, nor did Mr Robertson suggest that there was one."
10. I turn to the two issues raised in the appeal.
I DAMAGE
11. The issue under this head is whether a trading company which itself conducts no business but which has a trading reputation within England and Wales should be entitled to recover general damages for libel without pleading and proving that the publication complained of has caused it special damage. To resolve this question it is helpful to distinguish three sub-issues:
(1) whether such an entitlement exists under the current law of England and Wales;
(2) whether, if so, article 10 of the European Convention on Human Rights requires revision of the current domestic law; and
(3) whether, if not, the current domestic law should in any event be revised.
(1) The current domestic law
12. The tort of libel has long been recognised as actionable per se. Thus where a personal plaintiff proves publication of a false statement damaging to his reputation without lawful justification, he need not plead or prove special damage in order to succeed. Proof of injury to his reputation is enough.
13. It was argued in South Hetton Coal Company Limited v North-Eastern News Association Limited [1894] 1 QB 133 that this rule did not apply to trading companies. The newspaper in that case had published an article strongly critical of the way in which the plaintiff, a colliery owner, housed its workers, and the company had not pleaded or proved any actual damage. It was argued for the publisher that a corporation could have no personal character, and that the article had not related to the business of the company (pp 134, 137). The Court of Appeal unanimously rejected this argument. Lord Esher MR held the law of libel to be one and the same for all plaintiffs (p 138). While he referred to obvious differences between individuals and companies (pp 138-139), his conclusion (p 139) was clear:
"Then, if the case be one of libel - whether on a person, a firm, or a company - the law is that damages are at large. It is not necessary to prove any particular damage; the jury may give such damages as they think fit, having regard to the conduct of the parties respectively, and all the circumstances of the case."
There need be no evidence of particular damage (p 140). Lopes LJ agreed (p 141): a company may maintain an action for a libel reflecting on the management of its business without alleging or proving special damage. Kay LJ also agreed (p 148): a trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special, although, where there is no such evidence, the damages given will probably be small.
14. In Lewis v Daily Telegraph Ltd [1964] AC 234, 262, Lord Reid pointed out that a company cannot be injured in its feelings but only in its pocket. There was, however, no challenge in that case to the principle laid down in South Hetton, which was not cited in either party's printed case, or in argument, or in any judgment.
15. Mr Robertson QC, for the newspaper, pointed out, quite correctly, that the Faulks Committee on Defamation, in its Report (Cmnd 5909, March 1975), para 336, recommended amendment of the South Hetton rule. The amendment recommended was, however, only to limit libel actions by trading corporations to cases where the trading corporation could establish either that it had suffered special damage or that the defamation was likely to cause it financial damage. This recommendation was made after considering trenchant criticisms of the existing rule made by Mr J A Weir ("Local Authority v Critical Ratepayer - a Suit in Defamation" (1972A) CLJ 238). It is not a recommendation to which Parliament has chosen to give effect.
16. In Derbyshire County Council v Times Newspapers Ltd the issue concerned the entitlement of a local authority, not a trading corporation, to sue in libel. But at first instance South Hetton was cited, and contributed to Morland J's conclusion that a local authority could sue: [1992] QB 770, 781, 783-788. On appeal, counsel for the newspaper distinguished South Hetton on the ground of the colliery company's trading character and counsel for the local authority relied on it: ibid, pp 792, 797. No member of the Court of Appeal questioned the decision. Balcombe LJ accepted South Hetton as binding for what it decided, but also (despite Mr Weir's criticism) expressed his agreement with it: p 809. In the House, counsel for the local authority cited the decision ([1993] AC 534, 536-537). Counsel for the newspaper did not criticise it, but distinguished it as applicable to a company with a business reputation which a local authority did not have (p 538). In his leading opinion, with which the other members of the House agreed, Lord Keith of Kinkel (who had been a member of the Faulks committee) cited South Hetton at some length, and also National Union of General and Municipal Workers v Gillian [1946] KB 81, in which a non-trading corporation (a trade union) had been assimilated to a trading corporation. He then continued (p 547):
"The authorities cited above clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it. The South Hetton Coal Co case [1894] 1 QB 133 would appear to be an instance of the latter kind, and not, as suggested by Browne J, an authority for the view that a trading corporation can sue for something that does not affect it adversely in the way of its business. The trade union cases are understandable upon the view that defamatory matter may adversely affect the union's ability to keep its members or attract new ones or to maintain a convincing attitude towards employers. Likewise in the case of a charitable organisation the effect may be to discourage subscribers or otherwise impair its ability to carry on its charitable objects. Similar considerations can no doubt be advanced in connection with the position of a local authority. Defamatory statements might make it more difficult to borrow or to attract suitable staff and thus affect adversely the efficient carrying out of its functions."
Lord Keith then went on to give his reasons for concluding that a local authority was to be distinguished from other types of corporation, whether trading or non-trading.
17. In Derbyshire the correctness of South Hetton was not challenged, but acceptance of its correctness was an important step in Lord Keith's reasoning and I find no ambiguity in the proposition he propounded: the authorities clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. In Shevill v Presse Alliance SA [1996] AC 959, decided some three years later by a differently constituted committee of the House, one of the plaintiffs was a trading corporation and the presumption of damage in libel cases was treated as part of our national substantive law. I conclude that under the current law of England and Wales a trading company with a trading reputation in this country may recover general damages
without pleading or proving special damage if the publication complained of has a tendency to damage it in the way of its business.
(2) Article 10
18. Article 10 of the European Convention provides:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The central importance of this article in the Convention regime is clear beyond question, and is reflected in section 12 of the Human Rights Act 1998. Freedom to publish free of unjustifiable restraint must indeed be recognised as a distinguishing feature of the sort of society which the Convention seeks to promote. The newspaper in this case relies on article 10 to contend that a domestic rule entitling a trading corporation to sue in libel when it can prove no financial loss is an unreasonable restraint on the right to publish protected by article 10.
19. This is not an unattractive argument, and it would be persuasive if, in such a case, excessive, punitive or exemplary damages were awarded. But the damages awarded to the second claimant in this case were not excessive, and the argument encounters three problems of principle. First, as the text of article 10 itself makes plain, the right guaranteed by the article is not unqualified. The right may be circumscribed by restrictions prescribed by law and necessary and proportionate if directed to certain ends, one of which is the protection of the reputation or rights of others. Thus a national libel law may, consistently with article 10, restrain the publication of defamatory material.
20. Secondly, the national rule here in question, pertaining to the recovery of damages by a trading corporation which proves no financial loss, has been the subject of challenge before the European Commission and Court in the context of libel proceedings brought by two corporate plaintiffs against two individual defendants. In S and M v United Kingdom (1993) 18 EHRR CD 172, 173, the challenge to the rule was somewhat oblique and the Commission made the points summarised in para 19 above. In Steel and Morris v United Kingdom (2005) 41 EHRR 403 the challenge was direct: see para 31 (a) and (b), p 419. The Court accepted that the domestic rule was as stated in Derbyshire (para 40) but held (para 94) that
"The state therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation."
The Court cited and echoed observations in an earlier decision, Märkt Intern and Beerman v Germany (1989) 12 EHRR 161, paras 33-38. Thus the Court did not hold the current rule to be necessarily inconsistent with article 10: it was a matter for the judgment of the national authorities.
21. Thirdly, the weight placed by the newspaper on the chilling effect of the existing rule is in my opinion exaggerated. Among the arguments it advances is that the rule is unnecessary since, it is said, defamation of a company involves defamation of directors and individuals who are free to sue as personal plaintiffs. I very much doubt if this is always so, although in some cases it will be. But, to the extent that it is so, I question whether the possibility of a claim by the company will add significantly to the chilling effect of a claim by the individuals.
22. I would accordingly answer this question in the negative.
(3) Revision of the current law
23. Since the European Court accords a generous margin of appreciation to the judgment of national authorities, and these include courts, it is appropriate for the House to review the merits of the South Hetton rule as re-stated in Derbyshire. The newspaper argues that, in accordance with the trend towards enhanced recognition of freedom of expression, the rule should be abrogated. Parliament could of course have legislated to abrogate or modify the rule, but it has not done so. It is accordingly necessary to revert to basic principles.
24. The tort of defamation exists to afford redress for unjustified injury to reputation. By a successful action the injured reputation is vindicated. The ordinary means of vindication is by the verdict of a judge or jury and an award of damages. Most plaintiffs are individuals, who are not required to prove that they have suffered financial loss or even that any particular person has thought the worse of them as a result of the publication complained of. I do not understand this rule to be criticised. Thus the question arises whether a corporation with a commercial reputation within the jurisdiction should be subject to a different rule.
25. There are of course many defamatory things which can be said about individuals (for example, about their sexual proclivities) which could not be said about corporations. But it is not at all hard to think of statements seriously injurious to the general commercial reputation of trading and charitable corporations: that an arms company has routinely bribed officials of foreign governments to secure contracts; that an oil company has wilfully and unnecessarily damaged the environment; that an international humanitarian agency has wrongfully succumbed to government pressure; that a retailer has knowingly exploited child labour; and so on. The leading figures in such corporations may be understood to be personally implicated, but not, in my opinion, necessarily so. Should the corporation be entitled to sue in its own right only if it can prove financial loss? I do not think so, for two main reasons.
26. First, the good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public and even its own staff, make people less ready to deal with it, less willing or less proud to work for it. If this were not so, corporations would not go to the lengths they do to protect and burnish their corporate images. I find nothing repugnant in the notion that this is a value which the law should protect. Nor do I think it an adequate answer that the corporation can itself seek to answer the defamatory statement by press release or public statement, since protestations of innocence by the impugned party necessarily carry less weight with the public than the prompt issue of proceedings which culminate in a favourable verdict by judge or jury. Secondly, I do not accept that a publication, if truly damaging to a corporation's commercial reputation, will result in provable financial loss, since the more prompt and public a company's issue of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue.
27. I do not on balance consider that the existing rule should be changed, provided always that where a trading corporation has suffered no actual financial loss any damages awarded should be kept strictly within modest bounds.
II REYNOLDS PRIVILEGE
28. The decision of the House in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 built on the traditional foundations of qualified privilege but carried the law forward in a way which gave much greater weight than the earlier law had done to the value of informed public debate of significant public issues. Both these aspects are, I think, important in understanding the decision.
29. Underlying the development of qualified privilege was the requirement of a reciprocal duty and interest between the publisher and the recipient of the statement in question: see, for example, Harrison v Bush (1855) 5 E & B 344, 348; Pullman v Hill & Co Ltd [1891] 1 QB 524, 528; Adam v Ward [1917] AC 309, 334; Watt v Longsdon [1930] 1 KB 130, 147, all cases cited in Duncan & Neill on Defamation, 2nd ed (1983), pp 93-94, paras 14.04-14.05. Some of these cases concerned very limited publication, but Adam v Ward did not, and nor did Cox v Feeny (1863) 4 F & F 13; Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400; Perera v Peiris [1949] AC 1 and Webb v Times Publishing Co Ltd [1960] 2 QB 535. Thus where a publication related to a matter of public interest, it was accepted that the reciprocal duty and interest could be found even where publication was by a newspaper to a section of the public or the public at large. In Reynolds the Court of Appeal restated these tests ([2001] 2 AC 127, 167, 177), although it suggested a third supplemental test which the House held to be mistaken.
30. I do not understand the House to have rejected the duty/interest approach: see Lord Nicholls of Birkenhead, pp 194-195, 197, 204; Lord Steyn, p 213; Lord Cooke of Thorndon, pp 217, 224, 227; Lord Hope of Craighead, pp 229, 235; Lord Hobhouse of Woodborough, pp 237, 239. But Lord Nicholls (p 197) considered that matters relating to the nature and source of the information were matters to be taken into account in determining whether the duty-interest test was satisfied or, as he preferred to say "in a simpler and more direct way, whether the public was entitled to know the particular information."
31. The necessary pre-condition of reliance on qualified privilege in this context is that the matter published should be one of public interest. In the present case the subject matter of the article complained of was of undoubted public interest. But that is not always, perhaps not usually, so. It has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest.
32. Qualified privilege as a live issue only arises where a statement is defamatory and untrue. It was in this context, and assuming the matter to be one of public interest, that Lord Nicholls proposed (at p 202) a test of responsible journalism, a test repeated in Bonnick v Morris [2003] 1 AC 300, 309. The rationale of this test is, as I understand, that there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify. As Lord Hobhouse observed with characteristic pungency (p 238), "No public interest is served by publishing or communicating misinformation". But the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication.
33. Lord Nicholls (at p 205) listed certain matters which might be taken into account in deciding whether the test of responsible journalism was satisfied. He intended these as pointers which might be more or less indicative, depending on the circumstances of a particular case, and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege. Lord Nicholls recognised (at pp 202-203), inevitably as I think, that it had to be a body other than the publisher, namely the court, which decided whether a publication was protected by qualified privilege. But this does not mean that the editorial decisions and judgments made at the time, without the knowledge of falsity which is a benefit of hindsight, are irrelevant. Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner.
34. Some misunderstanding may perhaps have been engendered by Lord Nicholls' references (at pp 195, 197) to "the particular information". It is of course true that the defence of qualified privilege must be considered with reference to the particular publication complained of as defamatory, and where a whole article or story is complained of no difficulty arises. But difficulty can arise where the complaint relates to one particular ingredient of a composite story, since it is then open to a plaintiff to contend, as in the present case, that the article could have been published without inclusion of the particular ingredient complained of. This may, in some instances, be a valid point. But consideration should be given to the thrust of the article which the publisher has published. If the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might if the whole thrust of the article is untrue.
35. These principles must be applied to the present case. As recorded in para 8 above, the Court of Appeal upheld the judge's denial of Reynolds privilege on a single ground, discounting the jury's negative findings concerning Mr Dorsey's sources: that the newspaper had failed to delay publication of the respondents' names without waiting long enough for the respondents to comment. This seems to me, with respect, to be a very narrow ground on which to deny the privilege, and the ruling subverts the
liberalising intention of the Reynolds decision. The subject matter was of great public interest, in the strictest sense. The article was written by an experienced specialist reporter and approved by senior staff on the newspaper and The Wall Street Journal who themselves sought to verify its contents. The article was unsensational in tone and (apparently) factual in content. The respondents' response was sought, although at a late stage, and the newspaper's inability to obtain a comment recorded. It is very unlikely that a comment, if obtained, would have been revealing, since even if the respondents' accounts were being monitored it was unlikely that they would know. It might be thought that this was the sort of neutral, investigative journalism which Reynolds privilege exists to protect. I would accordingly allow the appeal and set aside the Court of Appeal judgment.
36. I am in much more doubt than my noble and learned friends what the consequence of that decision should be. The House has not, like the judge and the jury, heard the witnesses and seen the case develop day after day. It has read no more than a small sample of the evidence. It seems to me a large step for the House, thus disadvantaged, to hold that the publication was privileged, and I am not sure that counsel for the newspaper sought such a ruling. But I find myself in a minority, and it serves no useful purpose to do more than express my doubt.
3. The respondents, claimants in the proceedings, are Saudi Arabian. The first respondent is a prominent businessman and president of the Abdul Latif Jameel Group, an international trading conglomerate based in the Kingdom of Saudi Arabia comprising numerous companies and with interests in cars, shipping, property and distribution of electronic goods. The second respondent is a company incorporated in Saudi Arabia and is part of the Group. The first respondent is the general manager and president of the company, which does not itself own property or conduct any trade or business here, but which has a commercial reputation in England and Wales.
4. On 6 February 2002 the newspaper published the article which gave rise to these proceedings. It was headed "Saudi Officials Monitor Certain Bank Accounts" with a smaller sub-heading "Focus Is on Those With Potential Terrorist Ties". It bore the by-line of James M Dorsey, an Arabic-speaking reporter with specialist knowledge of Saudi Arabia, and acknowledged the contribution of Glenn Simpson, a staff writer in Washington. The gist of the article, succinctly stated in the first paragraph, was that the Saudi Arabian Monetary Authority, the Kingdom's central bank, was, at the request of US law enforcement agencies, monitoring bank accounts associated with some of the country's most prominent businessmen in a bid to prevent them from being used, wittingly or unwittingly, for the funnelling of funds to terrorist organisations. This information was attributed to "U.S. officials and Saudis familiar with the issue". In the second paragraph a number of companies and individuals were
named, among them "the Abdullatif Jamil Group of companies" who, it was stated later in the article, "couldn't be reached for comment".
5. The jury in due course found that the article referred to was defamatory of both respondents. They may have understood the article to mean that there were reasonable grounds to suspect the involvement of the respondents, or alternatively that there were reasonable grounds to investigate the involvement of the respondents, in the witting or unwitting funnelling of funds to terrorist organisations. For present purposes it is immaterial which defamatory meaning the jury gave the passage complained of, neither of which the newspaper sought to justify.
6. The article was published some five months after the catastrophic events which took place in New York and Washington on 11 September 2001. During the intervening months the US authorities had taken determined steps, with strong international support, to cut off the flow of funds to terrorist organisations, including Al-Qaida. These steps were of particular importance in relation to Saudi Arabia, since a large majority of the suspected hijackers were of Saudi origin, and it was believed that much of their financial support came from Saudi sources. Yet the position of the Saudi authorities was one of some sensitivity. The Kingdom was an ally of the United States and condemned terrorism. But among its devoutly Muslim population there were those who resented the Kingdom's association with the United States and espoused the cause of Islamic jihad. Thus there were questions about whether, and to what extent, the Kingdom was co-operating with the US authorities in cutting off funds to terrorist organisations. This was, without doubt, a matter of high international importance, a very appropriate matter for report by a serious newspaper. But it was a difficult matter to investigate and report since information was not freely available in the Kingdom and the Saudi authorities, even if co-operating closely with those of the United States, might be embarrassed if that fact were to become generally known.
7. The trial of the action before Eady J and a jury lasted some three working weeks and culminated in verdicts for the respondents and awards of £30,000 and £10,000 respectively. Much evidence was called on both sides, of which the House has been referred to short excerpts only. The judge rejected the newspaper's argument on the damage issue ([2003] EWHC 2945 (QB), [2004] 2 All ER 92) and the Court of Appeal agreed with him ([2005] EWCA Civ 74, [2005] QB 904). The judge also rejected the newspaper's claim to Reynolds privilege ([2004] EWHC 37 (QB)). On this question also the Court of Appeal upheld his decision, but on a more limited ground. This calls for more detailed consideration.
8. The judge put a series of questions to the jury which, so far as relevant to Reynolds privilege, were directed to two matters: the sources on which Mr Dorsey, as reporter, relied; and his attempt to obtain the respondents' response to his inclusion of their names in his proposed article. Mr Dorsey testified that he had relied on information given by a prominent Saudi businessman (source A), confirmed by a banker (source B), a US diplomat (source C), a US embassy official (source D) and a senior Saudi official (source E). In answer to the judge's questions the jury found that the newspaper had proved that Mr Dorsey had received the information he claimed to have received from source A, but had not proved that Mr Dorsey had received the confirmation he claimed from sources B-E inclusive. The judge attached significance to these negative findings, since Mr Dorsey said in evidence that he would not have
written the article in reliance on source A alone. In the Court of Appeal, the judge's reliance on these negative findings was criticised by the newspaper. At the outset of his direction to the jury the judge had pointed out that there was no plea of justification and that therefore, if the jury found the article defamatory of the respondents, they should assume it to be untrue. This direction, it was said, may well have infected the jury's approach to the questions concerning sources B-E. The Court of Appeal refused the newspaper leave to raise a new ground of misdirection, and thought (para 66) that the jury had "almost certainly" based their answers on the impression made by witnesses in court. But the Court of Appeal preferred to base its decision on the other ground relied on by the judge to deny privilege.
9. Mr Dorsey described attempts to obtain a response from the Group about his proposed article. He said he had telephoned the Group office at about 9.0 a.m. and left a recorded message. The jury found that the newspaper had not proved on the balance of probabilities that that was so. There was, it was agreed, a telephone conversation between Mr Dorsey and Mr Munajjed, an employee of the Group, on the evening of 5 February, the day before publication. During that conversation, according to Mr Munajjed, he had asked Mr Dorsey to wait until the following day for a comment by the Group. He had, he said, no authority to make a statement and the first respondent was in Japan, where the time was 3.0 a.m. Mr Dorsey denied that Mr Munajjed had asked him to wait. But the jury found that Mr Munajjed had made that request. It was on this ground, as I understand, that the Court of Appeal upheld the judge's denial of Reynolds privilege:
"82. We turn to the judge's observation that the Jameels were not given sufficient time to comment on the proposed publication. It was to this matter that the jury's questions 6 and 7 were addressed. Mr Dorsey had given evidence that he had telephoned the Jameels' offices on the morning before the publication and left a recorded message. The jury found that this did not take place. What the jury did find had taken place was that Mr Dorsey had spoken to the Jameels' representative, Mr Munajjed, on the evening before publication, that the latter had asked for the publication to be postponed so that he could contact Mr Jameel, who was in Japan on business, and that Mr Dorsey had declined this request. The judge found that there was no compelling reason why Mr Jameel could not have been afforded 24 hours to comment on the article. We can see no basis for challenging this conclusion, nor did Mr Robertson suggest that there was one."
10. I turn to the two issues raised in the appeal.
I DAMAGE
11. The issue under this head is whether a trading company which itself conducts no business but which has a trading reputation within England and Wales should be entitled to recover general damages for libel without pleading and proving that the publication complained of has caused it special damage. To resolve this question it is helpful to distinguish three sub-issues:
(1) whether such an entitlement exists under the current law of England and Wales;
(2) whether, if so, article 10 of the European Convention on Human Rights requires revision of the current domestic law; and
(3) whether, if not, the current domestic law should in any event be revised.
(1) The current domestic law
12. The tort of libel has long been recognised as actionable per se. Thus where a personal plaintiff proves publication of a false statement damaging to his reputation without lawful justification, he need not plead or prove special damage in order to succeed. Proof of injury to his reputation is enough.
13. It was argued in South Hetton Coal Company Limited v North-Eastern News Association Limited [1894] 1 QB 133 that this rule did not apply to trading companies. The newspaper in that case had published an article strongly critical of the way in which the plaintiff, a colliery owner, housed its workers, and the company had not pleaded or proved any actual damage. It was argued for the publisher that a corporation could have no personal character, and that the article had not related to the business of the company (pp 134, 137). The Court of Appeal unanimously rejected this argument. Lord Esher MR held the law of libel to be one and the same for all plaintiffs (p 138). While he referred to obvious differences between individuals and companies (pp 138-139), his conclusion (p 139) was clear:
"Then, if the case be one of libel - whether on a person, a firm, or a company - the law is that damages are at large. It is not necessary to prove any particular damage; the jury may give such damages as they think fit, having regard to the conduct of the parties respectively, and all the circumstances of the case."
There need be no evidence of particular damage (p 140). Lopes LJ agreed (p 141): a company may maintain an action for a libel reflecting on the management of its business without alleging or proving special damage. Kay LJ also agreed (p 148): a trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special, although, where there is no such evidence, the damages given will probably be small.
14. In Lewis v Daily Telegraph Ltd [1964] AC 234, 262, Lord Reid pointed out that a company cannot be injured in its feelings but only in its pocket. There was, however, no challenge in that case to the principle laid down in South Hetton, which was not cited in either party's printed case, or in argument, or in any judgment.
15. Mr Robertson QC, for the newspaper, pointed out, quite correctly, that the Faulks Committee on Defamation, in its Report (Cmnd 5909, March 1975), para 336, recommended amendment of the South Hetton rule. The amendment recommended was, however, only to limit libel actions by trading corporations to cases where the trading corporation could establish either that it had suffered special damage or that the defamation was likely to cause it financial damage. This recommendation was made after considering trenchant criticisms of the existing rule made by Mr J A Weir ("Local Authority v Critical Ratepayer - a Suit in Defamation" (1972A) CLJ 238). It is not a recommendation to which Parliament has chosen to give effect.
16. In Derbyshire County Council v Times Newspapers Ltd the issue concerned the entitlement of a local authority, not a trading corporation, to sue in libel. But at first instance South Hetton was cited, and contributed to Morland J's conclusion that a local authority could sue: [1992] QB 770, 781, 783-788. On appeal, counsel for the newspaper distinguished South Hetton on the ground of the colliery company's trading character and counsel for the local authority relied on it: ibid, pp 792, 797. No member of the Court of Appeal questioned the decision. Balcombe LJ accepted South Hetton as binding for what it decided, but also (despite Mr Weir's criticism) expressed his agreement with it: p 809. In the House, counsel for the local authority cited the decision ([1993] AC 534, 536-537). Counsel for the newspaper did not criticise it, but distinguished it as applicable to a company with a business reputation which a local authority did not have (p 538). In his leading opinion, with which the other members of the House agreed, Lord Keith of Kinkel (who had been a member of the Faulks committee) cited South Hetton at some length, and also National Union of General and Municipal Workers v Gillian [1946] KB 81, in which a non-trading corporation (a trade union) had been assimilated to a trading corporation. He then continued (p 547):
"The authorities cited above clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it. The South Hetton Coal Co case [1894] 1 QB 133 would appear to be an instance of the latter kind, and not, as suggested by Browne J, an authority for the view that a trading corporation can sue for something that does not affect it adversely in the way of its business. The trade union cases are understandable upon the view that defamatory matter may adversely affect the union's ability to keep its members or attract new ones or to maintain a convincing attitude towards employers. Likewise in the case of a charitable organisation the effect may be to discourage subscribers or otherwise impair its ability to carry on its charitable objects. Similar considerations can no doubt be advanced in connection with the position of a local authority. Defamatory statements might make it more difficult to borrow or to attract suitable staff and thus affect adversely the efficient carrying out of its functions."
Lord Keith then went on to give his reasons for concluding that a local authority was to be distinguished from other types of corporation, whether trading or non-trading.
17. In Derbyshire the correctness of South Hetton was not challenged, but acceptance of its correctness was an important step in Lord Keith's reasoning and I find no ambiguity in the proposition he propounded: the authorities clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. In Shevill v Presse Alliance SA [1996] AC 959, decided some three years later by a differently constituted committee of the House, one of the plaintiffs was a trading corporation and the presumption of damage in libel cases was treated as part of our national substantive law. I conclude that under the current law of England and Wales a trading company with a trading reputation in this country may recover general damages
without pleading or proving special damage if the publication complained of has a tendency to damage it in the way of its business.
(2) Article 10
18. Article 10 of the European Convention provides:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The central importance of this article in the Convention regime is clear beyond question, and is reflected in section 12 of the Human Rights Act 1998. Freedom to publish free of unjustifiable restraint must indeed be recognised as a distinguishing feature of the sort of society which the Convention seeks to promote. The newspaper in this case relies on article 10 to contend that a domestic rule entitling a trading corporation to sue in libel when it can prove no financial loss is an unreasonable restraint on the right to publish protected by article 10.
19. This is not an unattractive argument, and it would be persuasive if, in such a case, excessive, punitive or exemplary damages were awarded. But the damages awarded to the second claimant in this case were not excessive, and the argument encounters three problems of principle. First, as the text of article 10 itself makes plain, the right guaranteed by the article is not unqualified. The right may be circumscribed by restrictions prescribed by law and necessary and proportionate if directed to certain ends, one of which is the protection of the reputation or rights of others. Thus a national libel law may, consistently with article 10, restrain the publication of defamatory material.
20. Secondly, the national rule here in question, pertaining to the recovery of damages by a trading corporation which proves no financial loss, has been the subject of challenge before the European Commission and Court in the context of libel proceedings brought by two corporate plaintiffs against two individual defendants. In S and M v United Kingdom (1993) 18 EHRR CD 172, 173, the challenge to the rule was somewhat oblique and the Commission made the points summarised in para 19 above. In Steel and Morris v United Kingdom (2005) 41 EHRR 403 the challenge was direct: see para 31 (a) and (b), p 419. The Court accepted that the domestic rule was as stated in Derbyshire (para 40) but held (para 94) that
"The state therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation."
The Court cited and echoed observations in an earlier decision, Märkt Intern and Beerman v Germany (1989) 12 EHRR 161, paras 33-38. Thus the Court did not hold the current rule to be necessarily inconsistent with article 10: it was a matter for the judgment of the national authorities.
21. Thirdly, the weight placed by the newspaper on the chilling effect of the existing rule is in my opinion exaggerated. Among the arguments it advances is that the rule is unnecessary since, it is said, defamation of a company involves defamation of directors and individuals who are free to sue as personal plaintiffs. I very much doubt if this is always so, although in some cases it will be. But, to the extent that it is so, I question whether the possibility of a claim by the company will add significantly to the chilling effect of a claim by the individuals.
22. I would accordingly answer this question in the negative.
(3) Revision of the current law
23. Since the European Court accords a generous margin of appreciation to the judgment of national authorities, and these include courts, it is appropriate for the House to review the merits of the South Hetton rule as re-stated in Derbyshire. The newspaper argues that, in accordance with the trend towards enhanced recognition of freedom of expression, the rule should be abrogated. Parliament could of course have legislated to abrogate or modify the rule, but it has not done so. It is accordingly necessary to revert to basic principles.
24. The tort of defamation exists to afford redress for unjustified injury to reputation. By a successful action the injured reputation is vindicated. The ordinary means of vindication is by the verdict of a judge or jury and an award of damages. Most plaintiffs are individuals, who are not required to prove that they have suffered financial loss or even that any particular person has thought the worse of them as a result of the publication complained of. I do not understand this rule to be criticised. Thus the question arises whether a corporation with a commercial reputation within the jurisdiction should be subject to a different rule.
25. There are of course many defamatory things which can be said about individuals (for example, about their sexual proclivities) which could not be said about corporations. But it is not at all hard to think of statements seriously injurious to the general commercial reputation of trading and charitable corporations: that an arms company has routinely bribed officials of foreign governments to secure contracts; that an oil company has wilfully and unnecessarily damaged the environment; that an international humanitarian agency has wrongfully succumbed to government pressure; that a retailer has knowingly exploited child labour; and so on. The leading figures in such corporations may be understood to be personally implicated, but not, in my opinion, necessarily so. Should the corporation be entitled to sue in its own right only if it can prove financial loss? I do not think so, for two main reasons.
26. First, the good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public and even its own staff, make people less ready to deal with it, less willing or less proud to work for it. If this were not so, corporations would not go to the lengths they do to protect and burnish their corporate images. I find nothing repugnant in the notion that this is a value which the law should protect. Nor do I think it an adequate answer that the corporation can itself seek to answer the defamatory statement by press release or public statement, since protestations of innocence by the impugned party necessarily carry less weight with the public than the prompt issue of proceedings which culminate in a favourable verdict by judge or jury. Secondly, I do not accept that a publication, if truly damaging to a corporation's commercial reputation, will result in provable financial loss, since the more prompt and public a company's issue of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue.
27. I do not on balance consider that the existing rule should be changed, provided always that where a trading corporation has suffered no actual financial loss any damages awarded should be kept strictly within modest bounds.
II REYNOLDS PRIVILEGE
28. The decision of the House in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 built on the traditional foundations of qualified privilege but carried the law forward in a way which gave much greater weight than the earlier law had done to the value of informed public debate of significant public issues. Both these aspects are, I think, important in understanding the decision.
29. Underlying the development of qualified privilege was the requirement of a reciprocal duty and interest between the publisher and the recipient of the statement in question: see, for example, Harrison v Bush (1855) 5 E & B 344, 348; Pullman v Hill & Co Ltd [1891] 1 QB 524, 528; Adam v Ward [1917] AC 309, 334; Watt v Longsdon [1930] 1 KB 130, 147, all cases cited in Duncan & Neill on Defamation, 2nd ed (1983), pp 93-94, paras 14.04-14.05. Some of these cases concerned very limited publication, but Adam v Ward did not, and nor did Cox v Feeny (1863) 4 F & F 13; Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400; Perera v Peiris [1949] AC 1 and Webb v Times Publishing Co Ltd [1960] 2 QB 535. Thus where a publication related to a matter of public interest, it was accepted that the reciprocal duty and interest could be found even where publication was by a newspaper to a section of the public or the public at large. In Reynolds the Court of Appeal restated these tests ([2001] 2 AC 127, 167, 177), although it suggested a third supplemental test which the House held to be mistaken.
30. I do not understand the House to have rejected the duty/interest approach: see Lord Nicholls of Birkenhead, pp 194-195, 197, 204; Lord Steyn, p 213; Lord Cooke of Thorndon, pp 217, 224, 227; Lord Hope of Craighead, pp 229, 235; Lord Hobhouse of Woodborough, pp 237, 239. But Lord Nicholls (p 197) considered that matters relating to the nature and source of the information were matters to be taken into account in determining whether the duty-interest test was satisfied or, as he preferred to say "in a simpler and more direct way, whether the public was entitled to know the particular information."
31. The necessary pre-condition of reliance on qualified privilege in this context is that the matter published should be one of public interest. In the present case the subject matter of the article complained of was of undoubted public interest. But that is not always, perhaps not usually, so. It has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest.
32. Qualified privilege as a live issue only arises where a statement is defamatory and untrue. It was in this context, and assuming the matter to be one of public interest, that Lord Nicholls proposed (at p 202) a test of responsible journalism, a test repeated in Bonnick v Morris [2003] 1 AC 300, 309. The rationale of this test is, as I understand, that there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify. As Lord Hobhouse observed with characteristic pungency (p 238), "No public interest is served by publishing or communicating misinformation". But the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication.
33. Lord Nicholls (at p 205) listed certain matters which might be taken into account in deciding whether the test of responsible journalism was satisfied. He intended these as pointers which might be more or less indicative, depending on the circumstances of a particular case, and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege. Lord Nicholls recognised (at pp 202-203), inevitably as I think, that it had to be a body other than the publisher, namely the court, which decided whether a publication was protected by qualified privilege. But this does not mean that the editorial decisions and judgments made at the time, without the knowledge of falsity which is a benefit of hindsight, are irrelevant. Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner.
34. Some misunderstanding may perhaps have been engendered by Lord Nicholls' references (at pp 195, 197) to "the particular information". It is of course true that the defence of qualified privilege must be considered with reference to the particular publication complained of as defamatory, and where a whole article or story is complained of no difficulty arises. But difficulty can arise where the complaint relates to one particular ingredient of a composite story, since it is then open to a plaintiff to contend, as in the present case, that the article could have been published without inclusion of the particular ingredient complained of. This may, in some instances, be a valid point. But consideration should be given to the thrust of the article which the publisher has published. If the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might if the whole thrust of the article is untrue.
35. These principles must be applied to the present case. As recorded in para 8 above, the Court of Appeal upheld the judge's denial of Reynolds privilege on a single ground, discounting the jury's negative findings concerning Mr Dorsey's sources: that the newspaper had failed to delay publication of the respondents' names without waiting long enough for the respondents to comment. This seems to me, with respect, to be a very narrow ground on which to deny the privilege, and the ruling subverts the
liberalising intention of the Reynolds decision. The subject matter was of great public interest, in the strictest sense. The article was written by an experienced specialist reporter and approved by senior staff on the newspaper and The Wall Street Journal who themselves sought to verify its contents. The article was unsensational in tone and (apparently) factual in content. The respondents' response was sought, although at a late stage, and the newspaper's inability to obtain a comment recorded. It is very unlikely that a comment, if obtained, would have been revealing, since even if the respondents' accounts were being monitored it was unlikely that they would know. It might be thought that this was the sort of neutral, investigative journalism which Reynolds privilege exists to protect. I would accordingly allow the appeal and set aside the Court of Appeal judgment.
36. I am in much more doubt than my noble and learned friends what the consequence of that decision should be. The House has not, like the judge and the jury, heard the witnesses and seen the case develop day after day. It has read no more than a small sample of the evidence. It seems to me a large step for the House, thus disadvantaged, to hold that the publication was privileged, and I am not sure that counsel for the newspaper sought such a ruling. But I find myself in a minority, and it serves no useful purpose to do more than express my doubt.
Tort Law Assessment II
Question: In the case of Wheat v E Lacon & Co Ltd [1966] A.C. 552 , the House of Lords defined the occupier of premises under the Occupiers' Liability Act 1957 as someone who:-
Choose one answer. A. Lives on the premises
B. Owns the premises
C. Has sufficient control of the premises
D. Occupies the premises
E. Don't know
Feedback
The correct answer is (c)
The word "occupier" is not defined in either the Occupiers' Liability Act 1957 nor the Occupiers' Liability Act 1984. The House of Lords in Wheat v Lacon, therefore, relied on the common law definition which requires control of the premises. As Lord Denning explains at page 577 : ' In the Occupiers' Liability Act, 1957, the word "occupier" is used in the same sense as it was used in the common law cases on occupiers' liability for dangerous premises. It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises.'
Correct
Marks for this submission: 1/1.Question 2
Marks: 1 Is the following a sufficient warning to protect a visitor to your premises?
Choose one answer. A. 'Watch out!'
B. 'Care should always be taken on the premises'
C. 'Enter at your peril'
D. 'Please use alternative door as this door is faulty'
E. Don't know
Feedback
The correct answer is (d)
Warnings are expressly mentioned in both the Occupiers' Liability Act 1957 (s2(4)(a)) and the Occupiers' Liability Act 1984 (s1(5)) as means by which an occupier can discharge his or her duty of care to the visitor or non-visitor. Under the 1957 Act, the common duty of care will only be discharged if the warning is sufficiently detailed to enable the visitor to be reasonably safe. In Roles v Nathan [1963] 1 W.L.R. 1117, Lord Denning gives an example of a footbridge over a stream which was rotten and dangerous. The occupier would be liable if he only put up a notice stating "This bridge is dangerous," where the visitor had no option but to go over the bridge. Only if there were two footbridges, one of which was rotten, and the other safe a hundred yards away, could the occupier escape liability by putting up a notice: "Do not use this footbridge. It is dangerous. There is a safe one further upstream." Such a warning is sufficient because it does enable the visitor to be reasonably safe. In the question, therefore, the incorrect answers lack sufficient detail. The visitor is not given sufficient information to enable him or her to avoid the danger. 'Please use alternative door as this door is faulty' explains the problem and gives an alternative means of entry - this would be sufficient to enable the visitor to be reasonably safe.
Correct
Marks for this submission: 1/1.Question 3
Marks: 1 Which of the following statements is correct?
Choose one answer. A. A duty is owed to trespassers if the occupier is aware of the danger (or has reasonable grounds to believe that it exists), knows (or has reasonable grounds to believe that) the trespasser is (or may come) into the vicinity of the danger, and the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection
B. The duty owed to trespassers is to avoid any wilful act undertaken with the deliberate intention of harming him or her
C. The duty owed to trespassers is one of common humanity
D. No duty of care is owed to trespassers
E. Don't know
Feedback
The correct answer is (a)
If these conditions are satisfied, section 1(4) specifies that 'Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned'.
"The duty owed to trespassers is to avoid any wilful act undertaken with the deliberate intention of harming him or her" and "The duty owed to trespassers is one of common humanity" represent the earlier common law tests which existed prior to the Act (Addie v Dumbreck [1929] A.C. 358 and BRB v Herrington [1972] A.C. 877 respectively). "No duty of care is owed to trespassers" is obviously incorrect.
Correct
Marks for this submission: 1/1.Question 4
Marks: 1 Which of the following statements is correct?
Choose one answer. A. An employer has no direct duty towards its employees in tort. Liability only exists under the law of contract
B. An employer may be both primarily and vicariously liable for injury to its employees
C. An employer may only be liable in tort towards its employees under the tort of breach of statutory duty
D. The doctrine of vicarious liability means that the employer can be liable vicariously for injury to its employees by other employees. This, together with protection under the tort of breach of statutory duty, determines when an employer will be liable towards its employees
E. Don't know
Feedback
The correct answer is (b)
There are three possible ways in which an employer may be liable towards its employees: primarily in negligence (see Wilsons and Clyde Coal Co Ltd v English [1938] A.C. 57) or for breach of statutory duty (e.g. Groves v Lord Wimborne [1898] 2 Q.B. 402), and vicariously under the doctrine of vicarious liability which renders it liable for torts committed by employees in the course of their employment.
Correct
Marks for this submission: 1/1.Question 5
Marks: 1 Section 4(1)(e) of the Consumer Protection Act 1987 states that 'In any civil proceedings by virtue of this Part against any person ("the person proceeded against") in respect of a defect in a product it shall be a defence for him to show that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control'.
This means that:
Choose one answer. A. The producer has a good defence if he is unable to discover the defect in the product
B. The producer has a good defence if a reasonable producer, possessing the scientific and technical knowledge accessible at the time the product was put into circulation, could not have detected the defect
C. The producer has a good defence if, having taken reasonable steps to investigate scientific and technical developments, he could not have detected the defect
D. The producer has a good defence if, although aware of the risk of a defect, he could not due to the state of scientific and technical knowledge at the relevant time detect the defect in the product
E. Don't know
Feedback
That's correct.
"The producer has a good defence if he is unable to discover the defect in the product" is subjective and thus incorrect. "The producer has a good defence if, although aware of the risk of a defect, he could not due to the state of scientific and technical knowledge at the relevant time detect the defect in the product" represents the position in A v National Blood Authority [2001] 3 All E.R. 289, which Burton J found not to satisfy section 4(1)(e). "The producer has a good defence if, having taken reasonable steps to investigate scientific and technical developments, he could not have detected the defect" is closer but, according to EC v United Kingdom [1997] All ER (EC) 481, is not strict enough - the producer is expected to be aware of ALL accessible knowledge which may require more than reasonable steps to acquire this knowledge.
Correct
Marks for this submission: 1/1.Question 6
Marks: 1 The primary aim of the tort of private nuisance is to:
Choose one answer. A. Prevent neighbourhood disputes
B. Protect the environment from pollution
C. Protect the occupiers' use and enjoyment of land
D. Protect the use and enjoyment of land of those with rights to land
E. Don't know
Feedback
That's correct.
Although preventing neighbourhood disputes and protecting the environment from pollution might be the result of the tort of private nuisance, its primary aim is to protect the use and enjoyment of those with rights to land: see Hunter v Canary Wharf Ltd [1997] A.C. 655. "Protect the occupiers' use and enjoyment of land" is too broad as occupiers might include persons without rights to land.
Correct
Marks for this submission: 1/1.Question 7
Marks: 1 Which of the following determine 'reasonable user' in all cases of private nuisance?
Choose one answer. A. The duration and frequency of the interference
B. The nature of the locality
C. Both the duration and frequency of the interference and the nature of the locality
D. The utility of the defendant's conduct
E. Don't know
Feedback
The correct answer is "The duration and frequency of the interference".
St Helen's Smelting Co v Tipping (1865-66) L.R. 1 Ch. App. 66 indicates that where physical damage to the property has been caused, the court will pay little attention to the nature of the locality. "The nature of the locality" cannot therefore be said to determine 'reasonable user' in ALL cases of private nuisance, rendering two of the answers above incorrect. Utility is relevant, but tends to influence the courts in exercising its equitable jurisdiction whether to grant an injunction (see Miller v Jackson [1977] Q.B. 966) and cannot therefore be said to satisfy the question.
Incorrect
Marks for this submission: 0/1.Question 8
Marks: 1 Which of the following is not a defence to the tort of private nuisance:-
Choose one answer. A. Statutory authority
B. Twenty years' prescription
C. Coming to the nuisance
D. Consent
E. Don't know
Feedback
That's correct.
Coming to the nuisance is not a defence: Bliss v Hall (1838) 4 Bing N.C. 183. "Statutory authority", "twenty years' prescription" and "consent" are all good defences to the tort of private nuisance.
Correct
Marks for this submission: 1/1.Question 9
Marks: 1 Which of the following statements is correct?
Choose one answer. A. A private individual can always bring an action for public nuisance
B. A private individual can only bring an action for public nuisance when a crime has been committed
C. A private individual can only bring an action for public nuisance with the support of the Attorney General
D. A private individual can only bring an action for public nuisance when he can show special damage
E. Don't know
Feedback
That's correct.
A private individual must show special damage i.e. damage in excess of that suffered by the public at large. If he or she cannot prove this, then the only other option is to persuade the Attorney General to bring a relator action or the local authority to bring an action under section 222 of the Local Government Act 1972.
Correct
Marks for this submission: 1/1.Question 10
Marks: 1 Under the doctrine of vicarious liability, an employer will not be liable for the torts of its employees committed in the course of his or her employment if:-
Choose one answer. A. The employee has been prohibited from acting in that way
B. The employee's act is not connected with his employment
C. The employee has harmed another employee under the doctrine of common employment
D. The employer is not insured
E. Don't know
Feedback
That's correct.
The courts will not consider the provision of insurance in their judgments.
A mere prohibition of the act in question will not necessarily take it outside the course of employment: see Rose v Plenty [1976] 1 W.L.R. 141 where the employee had been expressly instructed not to employ minors to assist on his milk round, but did so and injured his thirteen-year-old assistant. The employer was vicariously liable for his actions.
Although the doctrine of common employment did prevent vicarious liability for the tortious infliction of injury by one employee on another, this was abolished in 1948 by the Law Reform (Personal Injuries) Act 1948, section 1.
"The employee's act is not connected with his employment" therefore most accurately reflects the current legal position: see Lister v Hesley Hall Ltd [2002] 1 A.C. 215.
Correct
Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers to an extract. Please make sure you read the relevant extract before answering the questions below.
Please read the speech of Lord Bingham in the case of Transco Plc v Stockport MBC [2003] UKHL 61 [2004] 2 A.C. 1, then answer the six questions (Q11 - Q16) that follow.
Context
The case examined the scope of the rule in Rylands v Fletcher. In 1966 the claimant was granted a right to install a gas main along a stretch of disused railway line which included an embankment at Brinnington in Stockport. On a nearby site owned by the defendant local authority lay a tower block of flats which was supplied with water by means of a water pipe which the authority had constructed between the tower block and the water main. In 1972 part of the disused line, including the embankment, was purchased by the authority, with the claimant continuing to have an easement of support in respect of its gas main. In 1992, without any negligence on the part of the authority, the water pipe leading to the block of flats fractured. As a result large quantities of water escaped underground and caused the collapse of the embankment, leaving the gas main exposed and unsupported. The claimant, having been compelled to carry out emergency repair work to its gas main, brought an action to recover the cost of the remedial work on the ground, inter alia, that the authority was strictly liable for non-natural user of land under the rule in Rylands v Fletcher.
Question 11
Marks: 1 In setting out the rule in Rylands v Fletcher, Blackburn J believed that:-
Choose one answer. A. He was creating a new legal principle
B. He was responding to recent flooding disasters
C. He was developing a rule to deal with the escape of water
D. He was not laying down any new principle of law
E. Don't know
Feedback
That's correct.
In paragraph 3, Lord Bingham explains the historical background to the judgment of Blackburn J in Rylands v Fletcher and that the judge did not conceive himself to be laying down any new principle of law, but regarded the case as one of an isolated interference with the claimant's use and enjoyment of land.
Correct
Marks for this submission: 1/1.Question 12
Marks: 1 According to Lord Bingham, what is the relationship between the rule in Rylands v Fletcher and the tort of private nuisance?
Choose one answer. A. The rule in Rylands v Fletcher is a sub-set of nuisance
B. The rule in Rylands v Fletcher has been absorbed into the tort of private nuisance
C. None. The rule in Rylands v Fletcher has been absorbed into the tort of negligence
D. The rule in Rylands v Fletcher is a separate tort to that of private nuisance
E. Don't know
Feedback
That's correct.
Lord Bingham, in paragraph 9, states that the rule in Rylands v Fletcher is a sub-set of nuisance. This means that the rule can be considered a 'type' of nuisance, but not that they are necessarily exactly the same: it is therefore incorrect to say either that the rule has been subsumed into the tort of private nuisance, or that it is a separate tort from it. His Lordship refused to follow the High Court of Australia which in Burnie Port Authority v General Jones Pty Ltd (1994) 120 A.L.R. 42 treated the rule as governed by the principles of ordinary negligence: the rule therefore cannot have been subsumed into the tort of negligence. Transco does not exclude future claims under the rule in Rylands v Fletcher, although it indicates that few claims will in reality succeed.
Correct
Marks for this submission: 1/1.Question 13
Marks: 1 Which of the following is a consequence of the rule in Rylands v Fletcher being a sub-species of the tort of private nuisance:-
Choose one answer. A. Claimants can no longer recover damages for death or personal injury
B. Claimants do not now have to demonstrate an escape from one set of premises to another
C. Claimants need not now show a non-natural use of land
D. It is no longer necessary to demonstrate that the loss suffered was reasonably foreseeable
E. Don't know
Feedback
That's correct.
Lord Bingham states at paragraph 9 that claims for death or personal injury will no longer be permitted under the rule in Rylands v Fletcher, despite decisions to the contrary in the past: see Shiffmann v Order of the Hospital of St John of Jerusalem [1936] 1 All E.R. 557. The other requirements of the tort, however, remain.
Correct
Marks for this submission: 1/1.Question 14
Marks: 1 The mischief or danger test is satisfied if something is brought onto the land which:-
Choose one answer. A. Is likely to cause harm if it escapes
B. Is likely to cause serious harm if it escapes
C. Is likely to give rise to an exceptionally high risk of harm if it escapes
D. Is likely to cause a catastrophe if it escapes
E. Don't know
Feedback
That's correct.
In requiring an 'exceptionally high risk of danger or mischief' in paragraph 10, Lord Bingham is restricting the scope of the rule beyond the likelihood of harm or serious harm being caused, although not to the extent of being likely to cause a catastrophe.
Correct
Marks for this submission: 1/1.Question 15
Marks: 1 'Non-natural user' is described by Lord Bingham as:-
Choose one answer. A. Use of anything not growing naturally on the land
B. A use which is not for the general benefit of the community
C. An extraordinary and unusual use of the land
D. Unreasonable use of the land
E. Don't know
Feedback
That's correct.
Lord Bingham in paragraph 11 helpfully reviews the alternative explanations of the 'non-natural user' requirement and prefers this description.
Correct
Marks for this submission: 1/1.Question 16
Marks: 1 The piping of water to the block of flats was a natural use of land because:-
Choose one answer. A. Water occurs naturally on land
B. The piping of water to premises is a normal and routine use of the land
C. The piping of water to premises is necessary for the use of land
D. The quantity of water was far less than that contained in a reservoir
E. Don't know
Feedback
That's correct.
Lord Bingham in paragraph 13 emphasises that although water in quantity can almost always cause some damage if it escapes, the rule in Rylands v Fletcher does not cover the routine piping of a water supply from the mains to the storage tanks in a block of flats. It cannot be characterised as 'extraordinary or unusual'. Only the argument that "the piping of water to premises is a normal and routine use of the land" satisfies the test set by his Lordship in Transco.
Correct
Marks for this submission: 1/1.Application
Please answer the following four examination questions (Q17 - Q20):
Question 17
Marks: 1 Alexander decides to go for a walk in the park run by Borcestershire Council on a hot summer's day. Feeling warm, he decides to dive into a natural lake in the centre of the park despite clear signs saying "Dangerous - do not swim - you could drown." He dives into the lake and hits his head on a rock at the bottom of the lake. He suffers serious injuries. In assessing whether Borcestershire Council is liable as an occupier, should a court consider its liability:
Choose one answer. A. In negligence
B. Under the Occupiers' Liability Act 1957
C. Under the Occupiers' Liability Act 1984
D. In relation to the defence of consent
E. Don't know
Feedback
That's correct.
The case resembles that of Tomlinson v Congleton BC [2004] 1 A.C. 46, where John Tomlinson chose to dive into a lake formed from a disused quarry in a park, despite notices stating 'Dangerous water: No swimming'. The majority of the House of Lords treated him as a trespasser - therefore placing his claim under the Occupiers' Liability Act 1984. Lord Hoffmann found that in diving into the water, Mr Tomlinson crossed the line between the status of lawful visitor and that of trespasser. Lord Scott, however, disputed this. Mr Tomlinson was prohibited from swimming. At no point did he swim - his accident occurred as a result of his disastrous dive! He therefore remained a visitor. This rather technical approach was not adopted by his brethren.
Correct
Marks for this submission: 1/1.Question 18
Marks: 1 In assessing Alexander's claim in Q17 above, is the court likely to find:
Choose one answer. A. Breach of the common duty of care under the Occupiers' Liability Act 1957
B. Breach of the section 1 duty of care under the Occupiers' Liability Act 1984
C. That Alexander cannot succeed under either Occupiers' Liability Act
D. That Alexander has a good claim for negligence
E. Don't know
Feedback
That's correct.
In Tomlinson v Congleton BC [2004] 1 A.C. 46, the House of Lords was of the view that Mr Tomlinson's injury had not arisen from any danger due to the state of the premises or to things done or omitted to be done on them and so his claim fell outside both the 1984 and 1957 Act. In the words of Lord Hoffmann, 'Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises'.
Correct
Marks for this submission: 1/1.Question 19
Marks: 1 Clarence decides to buy a house in the country and finds a cottage next to a lake in a beautiful location. He is delighted and moves in immediately. When Spring arrives, however, he is disturbed by the constant buzz of jet-skis on the lake. He discovers that there is a local jet-ski club, which is about to host an international competition lasting a week. The club has received support from the local council for its activities and encourages local youths to take part in this growing sport.
Which of the following is a court most likely to find?
Choose one answer. A. That there is a nuisance, but an injunction on terms would be the correct response
B. That there is a nuisance, but damages would be an adequate remedy
C. That there is no nuisance due to the public utility of the club's activities, as recognised by the local council
D. That there is no nuisance because the club has permission from the council for its activities
E. Don't know
Feedback
The correct answer is "that there is a nuisance, but an injunction on terms would be the correct response".
The noise is likely to amount to a private nuisance. Any public utility or support from the council will not prevent a court finding a nuisance. However, the court will consider the public utility of the club's activities in assessing which remedy to give. Whilst Miller v Jackson [1977] Q.B. 966 suggests that the court would be reluctant in such circumstances to grant an injunction, the later case of Kennaway v Thompson [1981] Q.B. 88 suggests a more robust approach. In that case, the Court of Appeal was not prepared to allow the public interest to prevail over the private interest, but did not grant an absolute injunction, but chose to grant an injunction on terms which specified when motor-boat racing would be permitted on the lake. A similar result is likely to be achieved here.
Incorrect
Marks for this submission: 0/1.Question 20
Marks: 1 Dominic wishes to complain about the conduct of his neighbour, Elspeth. During a recent storm, a tree on her land was struck by lightning and set on fire. Elspeth cut down the tree which extinguished the fire and then rushed to catch a train to visit her aunt. In her absence, the wind picked up and reignited the fire which has now spread to Dominic's land and damaged his crops. Which of the following would suggest that Elspeth will be found liable in private nuisance?
Choose one answer. A. It is proved that a tree on her land caused the damage
B. It is proved that the fire caused a nuisance to Dominic's land
C. It is proved that she failed to take reasonable steps to deal with the fire
D. It is proved that she failed to take reasonable steps to deal with the fire in the light of her personal resources and ability to act
E. Don't know
Feedback
That's correct.
In Goldman v Hargrave [1967] 1 A.C. 645, Lord Wilberforce found similar conduct to amount to a continuation of the nuisance. A 'measured duty of care' would arise to deal with natural hazards which could foreseeably harm another: 'the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances. Thus, less must be expected of the infirm than of the able-bodied: the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more' (at page 663). In Goldman, the occupier was found liable for merely cutting down a tree when he could easily have prevented any subsequent re-ignition of the fire by dowsing it with water.
Correct
Marks for this submission: 1/1.
Choose one answer. A. Lives on the premises
B. Owns the premises
C. Has sufficient control of the premises
D. Occupies the premises
E. Don't know
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The correct answer is (c)
The word "occupier" is not defined in either the Occupiers' Liability Act 1957 nor the Occupiers' Liability Act 1984. The House of Lords in Wheat v Lacon, therefore, relied on the common law definition which requires control of the premises. As Lord Denning explains at page 577 : ' In the Occupiers' Liability Act, 1957, the word "occupier" is used in the same sense as it was used in the common law cases on occupiers' liability for dangerous premises. It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises.'
Correct
Marks for this submission: 1/1.Question 2
Marks: 1 Is the following a sufficient warning to protect a visitor to your premises?
Choose one answer. A. 'Watch out!'
B. 'Care should always be taken on the premises'
C. 'Enter at your peril'
D. 'Please use alternative door as this door is faulty'
E. Don't know
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The correct answer is (d)
Warnings are expressly mentioned in both the Occupiers' Liability Act 1957 (s2(4)(a)) and the Occupiers' Liability Act 1984 (s1(5)) as means by which an occupier can discharge his or her duty of care to the visitor or non-visitor. Under the 1957 Act, the common duty of care will only be discharged if the warning is sufficiently detailed to enable the visitor to be reasonably safe. In Roles v Nathan [1963] 1 W.L.R. 1117, Lord Denning gives an example of a footbridge over a stream which was rotten and dangerous. The occupier would be liable if he only put up a notice stating "This bridge is dangerous," where the visitor had no option but to go over the bridge. Only if there were two footbridges, one of which was rotten, and the other safe a hundred yards away, could the occupier escape liability by putting up a notice: "Do not use this footbridge. It is dangerous. There is a safe one further upstream." Such a warning is sufficient because it does enable the visitor to be reasonably safe. In the question, therefore, the incorrect answers lack sufficient detail. The visitor is not given sufficient information to enable him or her to avoid the danger. 'Please use alternative door as this door is faulty' explains the problem and gives an alternative means of entry - this would be sufficient to enable the visitor to be reasonably safe.
Correct
Marks for this submission: 1/1.Question 3
Marks: 1 Which of the following statements is correct?
Choose one answer. A. A duty is owed to trespassers if the occupier is aware of the danger (or has reasonable grounds to believe that it exists), knows (or has reasonable grounds to believe that) the trespasser is (or may come) into the vicinity of the danger, and the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection
B. The duty owed to trespassers is to avoid any wilful act undertaken with the deliberate intention of harming him or her
C. The duty owed to trespassers is one of common humanity
D. No duty of care is owed to trespassers
E. Don't know
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The correct answer is (a)
If these conditions are satisfied, section 1(4) specifies that 'Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned'.
"The duty owed to trespassers is to avoid any wilful act undertaken with the deliberate intention of harming him or her" and "The duty owed to trespassers is one of common humanity" represent the earlier common law tests which existed prior to the Act (Addie v Dumbreck [1929] A.C. 358 and BRB v Herrington [1972] A.C. 877 respectively). "No duty of care is owed to trespassers" is obviously incorrect.
Correct
Marks for this submission: 1/1.Question 4
Marks: 1 Which of the following statements is correct?
Choose one answer. A. An employer has no direct duty towards its employees in tort. Liability only exists under the law of contract
B. An employer may be both primarily and vicariously liable for injury to its employees
C. An employer may only be liable in tort towards its employees under the tort of breach of statutory duty
D. The doctrine of vicarious liability means that the employer can be liable vicariously for injury to its employees by other employees. This, together with protection under the tort of breach of statutory duty, determines when an employer will be liable towards its employees
E. Don't know
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The correct answer is (b)
There are three possible ways in which an employer may be liable towards its employees: primarily in negligence (see Wilsons and Clyde Coal Co Ltd v English [1938] A.C. 57) or for breach of statutory duty (e.g. Groves v Lord Wimborne [1898] 2 Q.B. 402), and vicariously under the doctrine of vicarious liability which renders it liable for torts committed by employees in the course of their employment.
Correct
Marks for this submission: 1/1.Question 5
Marks: 1 Section 4(1)(e) of the Consumer Protection Act 1987 states that 'In any civil proceedings by virtue of this Part against any person ("the person proceeded against") in respect of a defect in a product it shall be a defence for him to show that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control'.
This means that:
Choose one answer. A. The producer has a good defence if he is unable to discover the defect in the product
B. The producer has a good defence if a reasonable producer, possessing the scientific and technical knowledge accessible at the time the product was put into circulation, could not have detected the defect
C. The producer has a good defence if, having taken reasonable steps to investigate scientific and technical developments, he could not have detected the defect
D. The producer has a good defence if, although aware of the risk of a defect, he could not due to the state of scientific and technical knowledge at the relevant time detect the defect in the product
E. Don't know
Feedback
That's correct.
"The producer has a good defence if he is unable to discover the defect in the product" is subjective and thus incorrect. "The producer has a good defence if, although aware of the risk of a defect, he could not due to the state of scientific and technical knowledge at the relevant time detect the defect in the product" represents the position in A v National Blood Authority [2001] 3 All E.R. 289, which Burton J found not to satisfy section 4(1)(e). "The producer has a good defence if, having taken reasonable steps to investigate scientific and technical developments, he could not have detected the defect" is closer but, according to EC v United Kingdom [1997] All ER (EC) 481, is not strict enough - the producer is expected to be aware of ALL accessible knowledge which may require more than reasonable steps to acquire this knowledge.
Correct
Marks for this submission: 1/1.Question 6
Marks: 1 The primary aim of the tort of private nuisance is to:
Choose one answer. A. Prevent neighbourhood disputes
B. Protect the environment from pollution
C. Protect the occupiers' use and enjoyment of land
D. Protect the use and enjoyment of land of those with rights to land
E. Don't know
Feedback
That's correct.
Although preventing neighbourhood disputes and protecting the environment from pollution might be the result of the tort of private nuisance, its primary aim is to protect the use and enjoyment of those with rights to land: see Hunter v Canary Wharf Ltd [1997] A.C. 655. "Protect the occupiers' use and enjoyment of land" is too broad as occupiers might include persons without rights to land.
Correct
Marks for this submission: 1/1.Question 7
Marks: 1 Which of the following determine 'reasonable user' in all cases of private nuisance?
Choose one answer. A. The duration and frequency of the interference
B. The nature of the locality
C. Both the duration and frequency of the interference and the nature of the locality
D. The utility of the defendant's conduct
E. Don't know
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The correct answer is "The duration and frequency of the interference".
St Helen's Smelting Co v Tipping (1865-66) L.R. 1 Ch. App. 66 indicates that where physical damage to the property has been caused, the court will pay little attention to the nature of the locality. "The nature of the locality" cannot therefore be said to determine 'reasonable user' in ALL cases of private nuisance, rendering two of the answers above incorrect. Utility is relevant, but tends to influence the courts in exercising its equitable jurisdiction whether to grant an injunction (see Miller v Jackson [1977] Q.B. 966) and cannot therefore be said to satisfy the question.
Incorrect
Marks for this submission: 0/1.Question 8
Marks: 1 Which of the following is not a defence to the tort of private nuisance:-
Choose one answer. A. Statutory authority
B. Twenty years' prescription
C. Coming to the nuisance
D. Consent
E. Don't know
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That's correct.
Coming to the nuisance is not a defence: Bliss v Hall (1838) 4 Bing N.C. 183. "Statutory authority", "twenty years' prescription" and "consent" are all good defences to the tort of private nuisance.
Correct
Marks for this submission: 1/1.Question 9
Marks: 1 Which of the following statements is correct?
Choose one answer. A. A private individual can always bring an action for public nuisance
B. A private individual can only bring an action for public nuisance when a crime has been committed
C. A private individual can only bring an action for public nuisance with the support of the Attorney General
D. A private individual can only bring an action for public nuisance when he can show special damage
E. Don't know
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That's correct.
A private individual must show special damage i.e. damage in excess of that suffered by the public at large. If he or she cannot prove this, then the only other option is to persuade the Attorney General to bring a relator action or the local authority to bring an action under section 222 of the Local Government Act 1972.
Correct
Marks for this submission: 1/1.Question 10
Marks: 1 Under the doctrine of vicarious liability, an employer will not be liable for the torts of its employees committed in the course of his or her employment if:-
Choose one answer. A. The employee has been prohibited from acting in that way
B. The employee's act is not connected with his employment
C. The employee has harmed another employee under the doctrine of common employment
D. The employer is not insured
E. Don't know
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That's correct.
The courts will not consider the provision of insurance in their judgments.
A mere prohibition of the act in question will not necessarily take it outside the course of employment: see Rose v Plenty [1976] 1 W.L.R. 141 where the employee had been expressly instructed not to employ minors to assist on his milk round, but did so and injured his thirteen-year-old assistant. The employer was vicariously liable for his actions.
Although the doctrine of common employment did prevent vicarious liability for the tortious infliction of injury by one employee on another, this was abolished in 1948 by the Law Reform (Personal Injuries) Act 1948, section 1.
"The employee's act is not connected with his employment" therefore most accurately reflects the current legal position: see Lister v Hesley Hall Ltd [2002] 1 A.C. 215.
Correct
Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers to an extract. Please make sure you read the relevant extract before answering the questions below.
Please read the speech of Lord Bingham in the case of Transco Plc v Stockport MBC [2003] UKHL 61 [2004] 2 A.C. 1, then answer the six questions (Q11 - Q16) that follow.
Context
The case examined the scope of the rule in Rylands v Fletcher. In 1966 the claimant was granted a right to install a gas main along a stretch of disused railway line which included an embankment at Brinnington in Stockport. On a nearby site owned by the defendant local authority lay a tower block of flats which was supplied with water by means of a water pipe which the authority had constructed between the tower block and the water main. In 1972 part of the disused line, including the embankment, was purchased by the authority, with the claimant continuing to have an easement of support in respect of its gas main. In 1992, without any negligence on the part of the authority, the water pipe leading to the block of flats fractured. As a result large quantities of water escaped underground and caused the collapse of the embankment, leaving the gas main exposed and unsupported. The claimant, having been compelled to carry out emergency repair work to its gas main, brought an action to recover the cost of the remedial work on the ground, inter alia, that the authority was strictly liable for non-natural user of land under the rule in Rylands v Fletcher.
Question 11
Marks: 1 In setting out the rule in Rylands v Fletcher, Blackburn J believed that:-
Choose one answer. A. He was creating a new legal principle
B. He was responding to recent flooding disasters
C. He was developing a rule to deal with the escape of water
D. He was not laying down any new principle of law
E. Don't know
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That's correct.
In paragraph 3, Lord Bingham explains the historical background to the judgment of Blackburn J in Rylands v Fletcher and that the judge did not conceive himself to be laying down any new principle of law, but regarded the case as one of an isolated interference with the claimant's use and enjoyment of land.
Correct
Marks for this submission: 1/1.Question 12
Marks: 1 According to Lord Bingham, what is the relationship between the rule in Rylands v Fletcher and the tort of private nuisance?
Choose one answer. A. The rule in Rylands v Fletcher is a sub-set of nuisance
B. The rule in Rylands v Fletcher has been absorbed into the tort of private nuisance
C. None. The rule in Rylands v Fletcher has been absorbed into the tort of negligence
D. The rule in Rylands v Fletcher is a separate tort to that of private nuisance
E. Don't know
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That's correct.
Lord Bingham, in paragraph 9, states that the rule in Rylands v Fletcher is a sub-set of nuisance. This means that the rule can be considered a 'type' of nuisance, but not that they are necessarily exactly the same: it is therefore incorrect to say either that the rule has been subsumed into the tort of private nuisance, or that it is a separate tort from it. His Lordship refused to follow the High Court of Australia which in Burnie Port Authority v General Jones Pty Ltd (1994) 120 A.L.R. 42 treated the rule as governed by the principles of ordinary negligence: the rule therefore cannot have been subsumed into the tort of negligence. Transco does not exclude future claims under the rule in Rylands v Fletcher, although it indicates that few claims will in reality succeed.
Correct
Marks for this submission: 1/1.Question 13
Marks: 1 Which of the following is a consequence of the rule in Rylands v Fletcher being a sub-species of the tort of private nuisance:-
Choose one answer. A. Claimants can no longer recover damages for death or personal injury
B. Claimants do not now have to demonstrate an escape from one set of premises to another
C. Claimants need not now show a non-natural use of land
D. It is no longer necessary to demonstrate that the loss suffered was reasonably foreseeable
E. Don't know
Feedback
That's correct.
Lord Bingham states at paragraph 9 that claims for death or personal injury will no longer be permitted under the rule in Rylands v Fletcher, despite decisions to the contrary in the past: see Shiffmann v Order of the Hospital of St John of Jerusalem [1936] 1 All E.R. 557. The other requirements of the tort, however, remain.
Correct
Marks for this submission: 1/1.Question 14
Marks: 1 The mischief or danger test is satisfied if something is brought onto the land which:-
Choose one answer. A. Is likely to cause harm if it escapes
B. Is likely to cause serious harm if it escapes
C. Is likely to give rise to an exceptionally high risk of harm if it escapes
D. Is likely to cause a catastrophe if it escapes
E. Don't know
Feedback
That's correct.
In requiring an 'exceptionally high risk of danger or mischief' in paragraph 10, Lord Bingham is restricting the scope of the rule beyond the likelihood of harm or serious harm being caused, although not to the extent of being likely to cause a catastrophe.
Correct
Marks for this submission: 1/1.Question 15
Marks: 1 'Non-natural user' is described by Lord Bingham as:-
Choose one answer. A. Use of anything not growing naturally on the land
B. A use which is not for the general benefit of the community
C. An extraordinary and unusual use of the land
D. Unreasonable use of the land
E. Don't know
Feedback
That's correct.
Lord Bingham in paragraph 11 helpfully reviews the alternative explanations of the 'non-natural user' requirement and prefers this description.
Correct
Marks for this submission: 1/1.Question 16
Marks: 1 The piping of water to the block of flats was a natural use of land because:-
Choose one answer. A. Water occurs naturally on land
B. The piping of water to premises is a normal and routine use of the land
C. The piping of water to premises is necessary for the use of land
D. The quantity of water was far less than that contained in a reservoir
E. Don't know
Feedback
That's correct.
Lord Bingham in paragraph 13 emphasises that although water in quantity can almost always cause some damage if it escapes, the rule in Rylands v Fletcher does not cover the routine piping of a water supply from the mains to the storage tanks in a block of flats. It cannot be characterised as 'extraordinary or unusual'. Only the argument that "the piping of water to premises is a normal and routine use of the land" satisfies the test set by his Lordship in Transco.
Correct
Marks for this submission: 1/1.Application
Please answer the following four examination questions (Q17 - Q20):
Question 17
Marks: 1 Alexander decides to go for a walk in the park run by Borcestershire Council on a hot summer's day. Feeling warm, he decides to dive into a natural lake in the centre of the park despite clear signs saying "Dangerous - do not swim - you could drown." He dives into the lake and hits his head on a rock at the bottom of the lake. He suffers serious injuries. In assessing whether Borcestershire Council is liable as an occupier, should a court consider its liability:
Choose one answer. A. In negligence
B. Under the Occupiers' Liability Act 1957
C. Under the Occupiers' Liability Act 1984
D. In relation to the defence of consent
E. Don't know
Feedback
That's correct.
The case resembles that of Tomlinson v Congleton BC [2004] 1 A.C. 46, where John Tomlinson chose to dive into a lake formed from a disused quarry in a park, despite notices stating 'Dangerous water: No swimming'. The majority of the House of Lords treated him as a trespasser - therefore placing his claim under the Occupiers' Liability Act 1984. Lord Hoffmann found that in diving into the water, Mr Tomlinson crossed the line between the status of lawful visitor and that of trespasser. Lord Scott, however, disputed this. Mr Tomlinson was prohibited from swimming. At no point did he swim - his accident occurred as a result of his disastrous dive! He therefore remained a visitor. This rather technical approach was not adopted by his brethren.
Correct
Marks for this submission: 1/1.Question 18
Marks: 1 In assessing Alexander's claim in Q17 above, is the court likely to find:
Choose one answer. A. Breach of the common duty of care under the Occupiers' Liability Act 1957
B. Breach of the section 1 duty of care under the Occupiers' Liability Act 1984
C. That Alexander cannot succeed under either Occupiers' Liability Act
D. That Alexander has a good claim for negligence
E. Don't know
Feedback
That's correct.
In Tomlinson v Congleton BC [2004] 1 A.C. 46, the House of Lords was of the view that Mr Tomlinson's injury had not arisen from any danger due to the state of the premises or to things done or omitted to be done on them and so his claim fell outside both the 1984 and 1957 Act. In the words of Lord Hoffmann, 'Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises'.
Correct
Marks for this submission: 1/1.Question 19
Marks: 1 Clarence decides to buy a house in the country and finds a cottage next to a lake in a beautiful location. He is delighted and moves in immediately. When Spring arrives, however, he is disturbed by the constant buzz of jet-skis on the lake. He discovers that there is a local jet-ski club, which is about to host an international competition lasting a week. The club has received support from the local council for its activities and encourages local youths to take part in this growing sport.
Which of the following is a court most likely to find?
Choose one answer. A. That there is a nuisance, but an injunction on terms would be the correct response
B. That there is a nuisance, but damages would be an adequate remedy
C. That there is no nuisance due to the public utility of the club's activities, as recognised by the local council
D. That there is no nuisance because the club has permission from the council for its activities
E. Don't know
Feedback
The correct answer is "that there is a nuisance, but an injunction on terms would be the correct response".
The noise is likely to amount to a private nuisance. Any public utility or support from the council will not prevent a court finding a nuisance. However, the court will consider the public utility of the club's activities in assessing which remedy to give. Whilst Miller v Jackson [1977] Q.B. 966 suggests that the court would be reluctant in such circumstances to grant an injunction, the later case of Kennaway v Thompson [1981] Q.B. 88 suggests a more robust approach. In that case, the Court of Appeal was not prepared to allow the public interest to prevail over the private interest, but did not grant an absolute injunction, but chose to grant an injunction on terms which specified when motor-boat racing would be permitted on the lake. A similar result is likely to be achieved here.
Incorrect
Marks for this submission: 0/1.Question 20
Marks: 1 Dominic wishes to complain about the conduct of his neighbour, Elspeth. During a recent storm, a tree on her land was struck by lightning and set on fire. Elspeth cut down the tree which extinguished the fire and then rushed to catch a train to visit her aunt. In her absence, the wind picked up and reignited the fire which has now spread to Dominic's land and damaged his crops. Which of the following would suggest that Elspeth will be found liable in private nuisance?
Choose one answer. A. It is proved that a tree on her land caused the damage
B. It is proved that the fire caused a nuisance to Dominic's land
C. It is proved that she failed to take reasonable steps to deal with the fire
D. It is proved that she failed to take reasonable steps to deal with the fire in the light of her personal resources and ability to act
E. Don't know
Feedback
That's correct.
In Goldman v Hargrave [1967] 1 A.C. 645, Lord Wilberforce found similar conduct to amount to a continuation of the nuisance. A 'measured duty of care' would arise to deal with natural hazards which could foreseeably harm another: 'the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances. Thus, less must be expected of the infirm than of the able-bodied: the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more' (at page 663). In Goldman, the occupier was found liable for merely cutting down a tree when he could easily have prevented any subsequent re-ignition of the fire by dowsing it with water.
Correct
Marks for this submission: 1/1.
Transco plc (formerly BG plc and BG Transco plc) (Appellants) v. Stockport Metropolitan Borough Council (Respondents)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Transco plc (formerly BG plc and BG Transco plc) (Appellants) v. Stockport Metropolitan Borough Council (Respondents)
[2003] UKHL 61
LORD BINGHAM OF CORNHILL
My Lords,
1. In this appeal the House is called upon to review the scope and application, in modern conditions, of the rule of law laid down by the Court of Exchequer Chamber, affirmed by the House of Lords, in Rylands v Fletcher (1866) LR 1 Exch 265; (1868) LR 3 HL 330.
2. I need not repeat the summary given by my noble and learned friend Lord Hoffmann of the facts giving rise to the dispute between the parties to this appeal. The salient facts appear to me to be these. As a multi-storey block of flats built by a local authority and let to local residents, Hollow End Towers was typical of very many such blocks throughout the country. It had been built by the respondent council. The block was supplied with water for the domestic use of those living there, as statute has long required. Water was carried to the block by the statutory undertaker, from whose main the pipe central to these proceedings led to tanks in the basement of the block for onward distribution of the water to the various flats. The capacity of this pipe was much greater than the capacity of a pipe supplying a single dwelling, being designed to meet the needs of 66 dwellings. But it was a normal pipe in such a situation and the water it carried was at mains pressure. Without negligence on the part of the council or its servants or agents, the pipe failed at a point within the block with the inevitable result that water escaped. Since, again without negligence, the failure of the pipe remained undetected for a prolonged period, the quantity of water which escaped was very considerable. The lie and the nature of the council's land in the area was such that the large quantity of water which had escaped from the pipe flowed some distance from the block and percolated into an embankment which supported the appellant Transco's 16-inch high-pressure gas main, causing the embankment to collapse and leaving this gas main exposed and unsupported. There was an immediate and serious risk that the gas main might crack, with potentially devastating consequences. Transco took prompt and effective remedial measures and now seeks to recover from the council the agreed cost of taking them.
Rylands v Fletcher
3. Few cases in the law of tort or perhaps any other field are more familiar, or have attracted more academic and judicial discussion, than Rylands v Fletcher. This relieves me of the need both to summarise the well-known facts of the case and to
rehearse yet again the passages cited by Lord Hoffmann in which Blackburn J (1868) LR 1 Exch 265, 279 and Lord Cairns LC (1868) LR 3 HL 330, 338-339 expressed the ratio of their decisions. I content myself with three points, none of them controversial:
(1) The plaintiff framed his claim as one of negligence: see (1866) LR 1 Exch 265. It was only when a majority of the Court of Exchequer (Pollock CB and Martin B, Bramwell B dissenting: (1865) 3 H & C 774), held against him, ruling that no claim would lie in the absence of negligence, that the plaintiff changed tack and contended that defendants were liable even if negligence could not be established against them.
(2) Blackburn J did not conceive himself to be laying down any new principle of law. When, in Ross v Fedden (1872) 26 LT 966, 968, it was later suggested to him by counsel that the question in Rylands v Fletcher had never been decided until the adjudication of that case, he rejected the suggestion in robust terms. The Lord Chancellor regarded the principles on which the case was to be determined as "extremely simple": (1868) LR 3 HL 330, 338. Had the House regarded the case as raising issues of great moment, steps might no doubt have been taken to assemble a stronger quorum to hear the appeal: see Heuston, "Who was the Third Lord in Rylands v Fletcher?" (1970) 86 LQR 160-165. It seems likely, as persuasively contended by Professor Newark ("The Boundaries of Nuisance" (1949) 65 LQR 480, 487-488), that those who decided the case regarded it as one of nuisance, novel only to the extent that it sanctioned recovery where the interference by one occupier of land with the right or enjoyment of another was isolated and not persistent.
(3) Those involved in Rylands v Fletcher, as counsel or judges, must have been very much alive to the catastrophic results which may ensue when reservoir dams burst. Professor Brian Simpson has drawn attention ("Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v Fletcher" (1984) 13 Journal of Legal Studies 209) to two such catastrophes, one in 1852, some eight years before the inundation of Mr Fletcher's colliery, the second in 1864, after Fletcher's case had been heard at first instance but before the hearing in the three appellate courts. In the Court of Exchequer Chamber, Blackburn J expressly referred to the case of damage done by the bursting of waterworks companies' reservoirs: (1866) LR 1 Exch 265, 270. Lord Cairns, as Sir Hugh Cairns QC, had advised on the payment of compensation when the second disaster occurred. No matter how broadly the principle was expressed when judgment was given, the risk of escape of water from an artificially constructed reservoir was one which the judges must have had vividly in mind. The damage suffered by Fletcher was not the result of a dam failure, but nor was Rylands' reservoir a mere pond: inspecting it before writing his article, Simpson found it still in use, with a capacity of over 4 million gallons and covering 1½ acres when full.
The future development of Rylands v Fletcher
4. In the course of his excellent argument for the council, Mr Mark Turner QC canvassed various ways in which the rule in Rylands v Fletcher might be applied and developed in future, without however judging it necessary to press the House to accept any one of them. The boldest of these courses was to follow the trail blazed by a majority of the High Court of Australia in Burnie Port Authority v General Jones Property Ltd (1994) 120 ALR 42 by treating the rule in Rylands v Fletcher as absorbed by the principles of ordinary negligence. In reaching this decision the
majority were influenced by the difficulties of interpretation and application to which the rule has undoubtedly given rise (pp 52-55), by the progressive weakening of the rule by judicial decision (pp 54-55), by recognition that the law of negligence has been very greatly developed and expanded since Rylands v Fletcher was decided (pp 55-65) and by a belief that most claimants entitled to succeed under the rule would succeed in a claim for negligence anyway (pp 65-67).
5. Coming from such a quarter these comments of course command respect, and they are matched by expressions of opinion here. Megaw LJ observed in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 519 that application of the decision and of the dicta in Rylands v Fletcher had given rise to continual trouble in the law of England. In its report on Civil Liability for Dangerous Things and Activities (1970) (Law Com No 32), p 12, para 20(a) the Law Commission described the relevant law as "complex, uncertain and inconsistent in principle". There is a theoretical attraction in bringing this somewhat anomalous ground of liability within the broad and familiar rules governing liability in negligence. This would have the incidental advantage of bringing the law of England and Wales more closely into line with what I understand to be the law of Scotland (see RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SLT 214, 217, where Lord Fraser of Tullybelton described the suggestion that the decision in Rylands v Fletcher had any place in Scots law as "a heresy which ought to be extirpated"). Consideration of the reported English case law over the past 60 years suggests that few if any claimants have succeeded in reliance on the rule in Rylands v Fletcher alone.
6. I would be willing to suppress an instinctive resistance to treating a nuisance-based tort as if it were governed by the law of negligence if I were persuaded that it would serve the interests of justice to discard the rule in Rylands v Fletcher and treat the cases in which it might have been relied on as governed by the ordinary rules of negligence. But I hesitate to adopt that solution for four main reasons. First, there is in my opinion a category of case, however small it may be, in which it seems just to impose liability even in the absence of fault. In the context of then recent catastrophes Rylands v Fletcher itself was understandably seen as such a case. With memories of the tragedy at Aberfan still green, the same view might now be taken of Attorney General v Cory Brothers and Co Ltd [1921] 1 AC 521 even if the claimants had failed to prove negligence, as on the facts they were able to do. I would regard Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 AC 465, and Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264 (had there been foreseeability of damage), as similarly falling within that category. Second, it must be remembered that common law rules do not exist in a vacuum, least of all rules which have stood for over a century during which there has been detailed statutory regulation of matters to which they might potentially relate. With reference to water, section 209 of the Water Industry Act 1991 imposes strict liability (subject to certain exemptions) on water undertakers and Schedule 2 to the Reservoirs Act 1975 appears to assume that on facts such as those of Rylands v Fletcher strict liability would attach. If the law were changed so as to require proof of negligence by those previously thought to be entitled to recover under the rule in Rylands v Fletcher without proving negligence, the effect might be (one does not know) to falsify the assumption on which Parliament has legislated, by significantly modifying rights which Parliament may have assumed would continue to exist. Third, although in
Cambridge Water [1994] 2 AC 264, 283-285, the possibility was ventilated that the House might depart from Rylands v Fletcher in its entirety, it is plain that this suggestion was not accepted. Instead, the House looked forward to a more principled and better controlled application of the existing rule: see, for example, p 309. While this is not a conclusive bar to acceptance of the detailed argument presented to the House on this occasion, "stop-go" is in general as bad an approach to legal development as to economic management. Fourth, while replacement of strict Rylands v Fletcher liability by a fault-based rule would tend to assimilate the law of England and Wales with that of Scotland, it would tend to increase the disparity between it and the laws of France and Germany. Having reviewed comparable provisions of French and German law, van Gerven, Lever and Larouche (Cases, Materials and Text on National, Supranational and International Tort Law (2000), p 205) observe:
"Even if the contours of the respective regimes may differ, all systems studied here therefore afford a form of strict liability protection in disputes between neighbouring landowners."
The authors indeed suggest (p 205) that the English rule as laid down in Rylands v Fletcher is "the most developed of these regimes".
7. Should, then, the rule be generously applied and the scope of strict liability extended? There are certainly respected commentators who favour such a course and regret judicial restrictions on the operation of the rule: see Fleming, The Law of Torts, 9th ed (1998), p 377; Markesinis and Deakin, Tort Law, 5th ed (2003), p 544. But there is to my mind a compelling objection to such a course, articulated by Lord Goff of Chieveley in Cambridge Water [1994] 2 AC 264, 305:
"Like the judge in the present case, I incline to the opinion that, as a general rule, it is more appropriate for strict liability in respect of operations of high risk to be imposed by Parliament, than by the courts. If such liability is imposed by statute, the relevant activities can be identified, and those concerned can know where they stand. Furthermore, statute can where appropriate lay down precise criteria establishing the incidence and scope of such liability."
It may be added that statutory regulation, particularly when informed by the work of the Law Commission, may take such account as is judged appropriate of the comparative law considerations on which I have briefly touched.
8. There remains a third option, which I would myself favour: to retain the rule, while insisting upon its essential nature and purpose; and to restate it so as to achieve as much certainty and clarity as is attainable, recognising that new factual situations are bound to arise posing difficult questions on the boundary of the rule, wherever that is drawn.
9. The rule in Rylands v Fletcher is a sub-species of nuisance, which is itself a tort based on the interference by one occupier of land with the right in or enjoyment of land by another occupier of land as such. From this simple proposition two consequences at once flow. First, as very clearly decided by the House in Read v J Lyons & Co Ltd [1947] AC 156, no claim in nuisance or under the rule can arise if the
events complained of take place wholly on the land of a single occupier. There must, in other words, be an escape from one tenement to another. Second, the claim cannot include a claim for death or personal injury, since such a claim does not relate to any right in or enjoyment of land. This proposition has not been authoritatively affirmed by any decision at the highest level. It was left open by Parker LJ in Perry v Kendricks Transport Ltd [1956] 1 WLR 85, 92, and is inconsistent with decisions such as Shiffman v Order of St John of Jerusalem [1936] 1 All ER 557 and Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918) 34 TLR 500. It is however clear from Lord Macmillan's opinion in Read at pp 170-171 that he regarded a personal injury claim as outside the scope of the rule, and his approach is in my opinion strongly fortified by the decisions of the House in Cambridge Water [1994] 2 AC 264 and Hunter v Canary Wharf Ltd [1997] AC 655, in each of which nuisance was identified as a tort directed, and directed only, to the protection of interests in land.
10. It has from the beginning been a necessary condition of liability under the rule in Rylands v Fletcher that the thing which the defendant has brought on his land should be "something which . . . will naturally do mischief if it escape out of his land" ((1865) LR 1 Exch 265, 279 per Blackburn J), "something dangerous … " (ibid), "anything likely to do mischief if it escapes … " (ibid), "something … harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's …" (ibid, at p 280), "… anything which, if it should escape, may cause damage to his neighbour . . ." ((1868) LR 3 HL 330, 340 per Lord Cranworth). The practical problem is of course to decide whether in any given case the thing which has escaped satisfies this mischief or danger test, a problem exacerbated by the fact that many things not ordinarily regarded as sources of mischief or danger may nonetheless be capable of proving to be such if they escape. I do not think this condition can be viewed in complete isolation from the non-natural user condition to which I shall shortly turn, but I think the cases decided by the House give a valuable pointer. In Rylands v Fletcher itself the courts were dealing with what Lord Cranworth ((1868) LR 3 HL 330, 342) called "a large accumulated mass of water" stored up in a reservoir, and I have touched on the historical context of the decision in paragraph 3(3) above. Rainham Chemical Works [1921] 2 AC 465, 471, involved the storage of chemicals, for the purpose of making munitions, which "exploded with terrific violence". In Attorney General v Cory Brothers and Co Ltd [1921] 1 AC 521, 525, 530, 534, 536, the landslide in question was of what counsel described as an "enormous mass of rubbish", some 500,000 tons of mineral waste tipped on a steep hillside. In Cambridge Water [1994] 2 AC 264 the industrial solvents being used by the tannery were bound to cause mischief in the event, unforeseen on the facts, that they percolated down to the water table. These cases are in sharp contrast with those arising out of escape from a domestic water supply (such as Carstairs v Taylor (1871) LR 6 Exch 217, Ross v Fedden (1872) 26 LT 966 or Anderson v Oppenheimer (1880) 5 QBD 602) which, although decided on other grounds, would seem to me to fail the mischief or danger test. Bearing in mind the historical origin of the rule, and also that its effect is to impose liability in the absence of negligence for an isolated occurrence, I do not think the mischief or danger test should be at all easily satisfied. It must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be.
11. No ingredient of Rylands v Fletcher liability has provoked more discussion than the requirement of Blackburn J ((1866) LR 1 Exch 265, 280) that the thing brought on to the defendant's land should be something "not naturally there", an expression elaborated by Lord Cairns ((1868) LR 3 HL 330, 339) when he referred to the putting of land to a "non-natural use": see Stallybrass, "Dangerous Things and the Non-Natural User of Land" (1929) 3 CLJ 376-397; Goodhart, "Liability for Things Naturally on the Land" (1932) 4 CLJ 13-33; Newark, "Non-Natural User and Rylands v Fletcher" (1961) 24 MLR 557-571; Williams, "Non-Natural Use of Land" [1973] CLJ 310-322; Weir, "Rylands v Fletcher Reconsidered" [1994] CLJ 216. Read literally, the expressions used by Blackburn J and Lord Cairns might be thought to exclude nothing which has reached the land otherwise than through operation of the laws of nature. But such an interpretation has been fairly described as "redolent of a different age" (Cambridge Water [1994] 2 AC 264, 308), and in Read v J Lyons & Co Ltd [1947] AC 156, 169, 176, 187 and Cambridge Water at p 308 the House gave its imprimatur to Lord Moulton's statement, giving the advice of the Privy Council in Rickards v Lothian [1913] AC 263, 280:
"It is not every use to which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community."
I think it clear that ordinary user is a preferable test to natural user, making it clear that the rule in Rylands v Fletcher is engaged only where the defendant's use is shown to be extraordinary and unusual. This is not a test to be inflexibly applied: a use may be extraordinary and unusual at one time or in one place but not so at another time or in another place (although I would question whether, even in wartime, the manufacture of explosives could ever be regarded as an ordinary user of land, as contemplated by Viscount Simon, Lord Macmillan, Lord Porter and Lord Uthwatt in Read v J Lyons & Co Ltd [1947] AC 156, 169-170, 174, 176-177, 186-187). I also doubt whether a test of reasonable user is helpful, since a user may well be quite out of the ordinary but not unreasonable, as was that of Rylands, Rainham Chemical Works or the tannery in Cambridge Water. Again, as it seems to me, the question is whether the defendant has done something which he recognises, or ought to recognise, as being quite out of the ordinary in the place and at the time when he does it. In answering that question, I respectfully think that little help is gained (and unnecessary confusion perhaps caused) by considering whether the use is proper for the general benefit of the community. In Rickards v Lothian itself, the claim arose because the outflow from a wash-basin on the top floor of premises was maliciously blocked and the tap left running, with the result that damage was caused to stock on a floor below: not surprisingly, the provision of a domestic water supply to the premises was held to be a wholly ordinary use of the land. An occupier of land who can show that another occupier of land has brought or kept on his land an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances is in my opinion entitled to recover compensation from that occupier for any damage caused to his property interest by the escape of that thing, subject to defences of Act of God or of a stranger, without the need to prove negligence.
The present appeal
12. By the end of the hearing before the House, the dispute between the parties had narrowed down to two questions: had the council brought on to its land at Hollow End Towers something likely to cause danger or mischief if it escaped? and was that an ordinary user of its land? Applying the principles I have tried to outline, I think it quite clear that the first question must be answered negatively and the second affirmatively, as the Court of Appeal did: [2001] EWCA Civ 212.
13. It is of course true that water in quantity is almost always capable of causing damage if it escapes. But the piping of a water supply from the mains to the storage tanks in the block was a routine function which would not have struck anyone as raising any special hazard. In truth, the council did not accumulate any water, it merely arranged a supply adequate to meet the residents' needs. The situation cannot stand comparison with the making by Mr Rylands of a substantial reservoir. Nor can the use by the council of its land be seen as in any way extraordinary or unusual. It was entirely normal and routine. Despite the attractive argument of Mr Ian Leeming QC for Transco, I am satisfied that the conditions to be met before strict liability could be imposed on the council were far from being met on the facts here.
14. I would accordingly dismiss the appeal with costs.
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Transco plc (formerly BG plc and BG Transco plc) (Appellants) v. Stockport Metropolitan Borough Council (Respondents)
[2003] UKHL 61
LORD BINGHAM OF CORNHILL
My Lords,
1. In this appeal the House is called upon to review the scope and application, in modern conditions, of the rule of law laid down by the Court of Exchequer Chamber, affirmed by the House of Lords, in Rylands v Fletcher (1866) LR 1 Exch 265; (1868) LR 3 HL 330.
2. I need not repeat the summary given by my noble and learned friend Lord Hoffmann of the facts giving rise to the dispute between the parties to this appeal. The salient facts appear to me to be these. As a multi-storey block of flats built by a local authority and let to local residents, Hollow End Towers was typical of very many such blocks throughout the country. It had been built by the respondent council. The block was supplied with water for the domestic use of those living there, as statute has long required. Water was carried to the block by the statutory undertaker, from whose main the pipe central to these proceedings led to tanks in the basement of the block for onward distribution of the water to the various flats. The capacity of this pipe was much greater than the capacity of a pipe supplying a single dwelling, being designed to meet the needs of 66 dwellings. But it was a normal pipe in such a situation and the water it carried was at mains pressure. Without negligence on the part of the council or its servants or agents, the pipe failed at a point within the block with the inevitable result that water escaped. Since, again without negligence, the failure of the pipe remained undetected for a prolonged period, the quantity of water which escaped was very considerable. The lie and the nature of the council's land in the area was such that the large quantity of water which had escaped from the pipe flowed some distance from the block and percolated into an embankment which supported the appellant Transco's 16-inch high-pressure gas main, causing the embankment to collapse and leaving this gas main exposed and unsupported. There was an immediate and serious risk that the gas main might crack, with potentially devastating consequences. Transco took prompt and effective remedial measures and now seeks to recover from the council the agreed cost of taking them.
Rylands v Fletcher
3. Few cases in the law of tort or perhaps any other field are more familiar, or have attracted more academic and judicial discussion, than Rylands v Fletcher. This relieves me of the need both to summarise the well-known facts of the case and to
rehearse yet again the passages cited by Lord Hoffmann in which Blackburn J (1868) LR 1 Exch 265, 279 and Lord Cairns LC (1868) LR 3 HL 330, 338-339 expressed the ratio of their decisions. I content myself with three points, none of them controversial:
(1) The plaintiff framed his claim as one of negligence: see (1866) LR 1 Exch 265. It was only when a majority of the Court of Exchequer (Pollock CB and Martin B, Bramwell B dissenting: (1865) 3 H & C 774), held against him, ruling that no claim would lie in the absence of negligence, that the plaintiff changed tack and contended that defendants were liable even if negligence could not be established against them.
(2) Blackburn J did not conceive himself to be laying down any new principle of law. When, in Ross v Fedden (1872) 26 LT 966, 968, it was later suggested to him by counsel that the question in Rylands v Fletcher had never been decided until the adjudication of that case, he rejected the suggestion in robust terms. The Lord Chancellor regarded the principles on which the case was to be determined as "extremely simple": (1868) LR 3 HL 330, 338. Had the House regarded the case as raising issues of great moment, steps might no doubt have been taken to assemble a stronger quorum to hear the appeal: see Heuston, "Who was the Third Lord in Rylands v Fletcher?" (1970) 86 LQR 160-165. It seems likely, as persuasively contended by Professor Newark ("The Boundaries of Nuisance" (1949) 65 LQR 480, 487-488), that those who decided the case regarded it as one of nuisance, novel only to the extent that it sanctioned recovery where the interference by one occupier of land with the right or enjoyment of another was isolated and not persistent.
(3) Those involved in Rylands v Fletcher, as counsel or judges, must have been very much alive to the catastrophic results which may ensue when reservoir dams burst. Professor Brian Simpson has drawn attention ("Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v Fletcher" (1984) 13 Journal of Legal Studies 209) to two such catastrophes, one in 1852, some eight years before the inundation of Mr Fletcher's colliery, the second in 1864, after Fletcher's case had been heard at first instance but before the hearing in the three appellate courts. In the Court of Exchequer Chamber, Blackburn J expressly referred to the case of damage done by the bursting of waterworks companies' reservoirs: (1866) LR 1 Exch 265, 270. Lord Cairns, as Sir Hugh Cairns QC, had advised on the payment of compensation when the second disaster occurred. No matter how broadly the principle was expressed when judgment was given, the risk of escape of water from an artificially constructed reservoir was one which the judges must have had vividly in mind. The damage suffered by Fletcher was not the result of a dam failure, but nor was Rylands' reservoir a mere pond: inspecting it before writing his article, Simpson found it still in use, with a capacity of over 4 million gallons and covering 1½ acres when full.
The future development of Rylands v Fletcher
4. In the course of his excellent argument for the council, Mr Mark Turner QC canvassed various ways in which the rule in Rylands v Fletcher might be applied and developed in future, without however judging it necessary to press the House to accept any one of them. The boldest of these courses was to follow the trail blazed by a majority of the High Court of Australia in Burnie Port Authority v General Jones Property Ltd (1994) 120 ALR 42 by treating the rule in Rylands v Fletcher as absorbed by the principles of ordinary negligence. In reaching this decision the
majority were influenced by the difficulties of interpretation and application to which the rule has undoubtedly given rise (pp 52-55), by the progressive weakening of the rule by judicial decision (pp 54-55), by recognition that the law of negligence has been very greatly developed and expanded since Rylands v Fletcher was decided (pp 55-65) and by a belief that most claimants entitled to succeed under the rule would succeed in a claim for negligence anyway (pp 65-67).
5. Coming from such a quarter these comments of course command respect, and they are matched by expressions of opinion here. Megaw LJ observed in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 519 that application of the decision and of the dicta in Rylands v Fletcher had given rise to continual trouble in the law of England. In its report on Civil Liability for Dangerous Things and Activities (1970) (Law Com No 32), p 12, para 20(a) the Law Commission described the relevant law as "complex, uncertain and inconsistent in principle". There is a theoretical attraction in bringing this somewhat anomalous ground of liability within the broad and familiar rules governing liability in negligence. This would have the incidental advantage of bringing the law of England and Wales more closely into line with what I understand to be the law of Scotland (see RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SLT 214, 217, where Lord Fraser of Tullybelton described the suggestion that the decision in Rylands v Fletcher had any place in Scots law as "a heresy which ought to be extirpated"). Consideration of the reported English case law over the past 60 years suggests that few if any claimants have succeeded in reliance on the rule in Rylands v Fletcher alone.
6. I would be willing to suppress an instinctive resistance to treating a nuisance-based tort as if it were governed by the law of negligence if I were persuaded that it would serve the interests of justice to discard the rule in Rylands v Fletcher and treat the cases in which it might have been relied on as governed by the ordinary rules of negligence. But I hesitate to adopt that solution for four main reasons. First, there is in my opinion a category of case, however small it may be, in which it seems just to impose liability even in the absence of fault. In the context of then recent catastrophes Rylands v Fletcher itself was understandably seen as such a case. With memories of the tragedy at Aberfan still green, the same view might now be taken of Attorney General v Cory Brothers and Co Ltd [1921] 1 AC 521 even if the claimants had failed to prove negligence, as on the facts they were able to do. I would regard Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 AC 465, and Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264 (had there been foreseeability of damage), as similarly falling within that category. Second, it must be remembered that common law rules do not exist in a vacuum, least of all rules which have stood for over a century during which there has been detailed statutory regulation of matters to which they might potentially relate. With reference to water, section 209 of the Water Industry Act 1991 imposes strict liability (subject to certain exemptions) on water undertakers and Schedule 2 to the Reservoirs Act 1975 appears to assume that on facts such as those of Rylands v Fletcher strict liability would attach. If the law were changed so as to require proof of negligence by those previously thought to be entitled to recover under the rule in Rylands v Fletcher without proving negligence, the effect might be (one does not know) to falsify the assumption on which Parliament has legislated, by significantly modifying rights which Parliament may have assumed would continue to exist. Third, although in
Cambridge Water [1994] 2 AC 264, 283-285, the possibility was ventilated that the House might depart from Rylands v Fletcher in its entirety, it is plain that this suggestion was not accepted. Instead, the House looked forward to a more principled and better controlled application of the existing rule: see, for example, p 309. While this is not a conclusive bar to acceptance of the detailed argument presented to the House on this occasion, "stop-go" is in general as bad an approach to legal development as to economic management. Fourth, while replacement of strict Rylands v Fletcher liability by a fault-based rule would tend to assimilate the law of England and Wales with that of Scotland, it would tend to increase the disparity between it and the laws of France and Germany. Having reviewed comparable provisions of French and German law, van Gerven, Lever and Larouche (Cases, Materials and Text on National, Supranational and International Tort Law (2000), p 205) observe:
"Even if the contours of the respective regimes may differ, all systems studied here therefore afford a form of strict liability protection in disputes between neighbouring landowners."
The authors indeed suggest (p 205) that the English rule as laid down in Rylands v Fletcher is "the most developed of these regimes".
7. Should, then, the rule be generously applied and the scope of strict liability extended? There are certainly respected commentators who favour such a course and regret judicial restrictions on the operation of the rule: see Fleming, The Law of Torts, 9th ed (1998), p 377; Markesinis and Deakin, Tort Law, 5th ed (2003), p 544. But there is to my mind a compelling objection to such a course, articulated by Lord Goff of Chieveley in Cambridge Water [1994] 2 AC 264, 305:
"Like the judge in the present case, I incline to the opinion that, as a general rule, it is more appropriate for strict liability in respect of operations of high risk to be imposed by Parliament, than by the courts. If such liability is imposed by statute, the relevant activities can be identified, and those concerned can know where they stand. Furthermore, statute can where appropriate lay down precise criteria establishing the incidence and scope of such liability."
It may be added that statutory regulation, particularly when informed by the work of the Law Commission, may take such account as is judged appropriate of the comparative law considerations on which I have briefly touched.
8. There remains a third option, which I would myself favour: to retain the rule, while insisting upon its essential nature and purpose; and to restate it so as to achieve as much certainty and clarity as is attainable, recognising that new factual situations are bound to arise posing difficult questions on the boundary of the rule, wherever that is drawn.
9. The rule in Rylands v Fletcher is a sub-species of nuisance, which is itself a tort based on the interference by one occupier of land with the right in or enjoyment of land by another occupier of land as such. From this simple proposition two consequences at once flow. First, as very clearly decided by the House in Read v J Lyons & Co Ltd [1947] AC 156, no claim in nuisance or under the rule can arise if the
events complained of take place wholly on the land of a single occupier. There must, in other words, be an escape from one tenement to another. Second, the claim cannot include a claim for death or personal injury, since such a claim does not relate to any right in or enjoyment of land. This proposition has not been authoritatively affirmed by any decision at the highest level. It was left open by Parker LJ in Perry v Kendricks Transport Ltd [1956] 1 WLR 85, 92, and is inconsistent with decisions such as Shiffman v Order of St John of Jerusalem [1936] 1 All ER 557 and Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918) 34 TLR 500. It is however clear from Lord Macmillan's opinion in Read at pp 170-171 that he regarded a personal injury claim as outside the scope of the rule, and his approach is in my opinion strongly fortified by the decisions of the House in Cambridge Water [1994] 2 AC 264 and Hunter v Canary Wharf Ltd [1997] AC 655, in each of which nuisance was identified as a tort directed, and directed only, to the protection of interests in land.
10. It has from the beginning been a necessary condition of liability under the rule in Rylands v Fletcher that the thing which the defendant has brought on his land should be "something which . . . will naturally do mischief if it escape out of his land" ((1865) LR 1 Exch 265, 279 per Blackburn J), "something dangerous … " (ibid), "anything likely to do mischief if it escapes … " (ibid), "something … harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's …" (ibid, at p 280), "… anything which, if it should escape, may cause damage to his neighbour . . ." ((1868) LR 3 HL 330, 340 per Lord Cranworth). The practical problem is of course to decide whether in any given case the thing which has escaped satisfies this mischief or danger test, a problem exacerbated by the fact that many things not ordinarily regarded as sources of mischief or danger may nonetheless be capable of proving to be such if they escape. I do not think this condition can be viewed in complete isolation from the non-natural user condition to which I shall shortly turn, but I think the cases decided by the House give a valuable pointer. In Rylands v Fletcher itself the courts were dealing with what Lord Cranworth ((1868) LR 3 HL 330, 342) called "a large accumulated mass of water" stored up in a reservoir, and I have touched on the historical context of the decision in paragraph 3(3) above. Rainham Chemical Works [1921] 2 AC 465, 471, involved the storage of chemicals, for the purpose of making munitions, which "exploded with terrific violence". In Attorney General v Cory Brothers and Co Ltd [1921] 1 AC 521, 525, 530, 534, 536, the landslide in question was of what counsel described as an "enormous mass of rubbish", some 500,000 tons of mineral waste tipped on a steep hillside. In Cambridge Water [1994] 2 AC 264 the industrial solvents being used by the tannery were bound to cause mischief in the event, unforeseen on the facts, that they percolated down to the water table. These cases are in sharp contrast with those arising out of escape from a domestic water supply (such as Carstairs v Taylor (1871) LR 6 Exch 217, Ross v Fedden (1872) 26 LT 966 or Anderson v Oppenheimer (1880) 5 QBD 602) which, although decided on other grounds, would seem to me to fail the mischief or danger test. Bearing in mind the historical origin of the rule, and also that its effect is to impose liability in the absence of negligence for an isolated occurrence, I do not think the mischief or danger test should be at all easily satisfied. It must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be.
11. No ingredient of Rylands v Fletcher liability has provoked more discussion than the requirement of Blackburn J ((1866) LR 1 Exch 265, 280) that the thing brought on to the defendant's land should be something "not naturally there", an expression elaborated by Lord Cairns ((1868) LR 3 HL 330, 339) when he referred to the putting of land to a "non-natural use": see Stallybrass, "Dangerous Things and the Non-Natural User of Land" (1929) 3 CLJ 376-397; Goodhart, "Liability for Things Naturally on the Land" (1932) 4 CLJ 13-33; Newark, "Non-Natural User and Rylands v Fletcher" (1961) 24 MLR 557-571; Williams, "Non-Natural Use of Land" [1973] CLJ 310-322; Weir, "Rylands v Fletcher Reconsidered" [1994] CLJ 216. Read literally, the expressions used by Blackburn J and Lord Cairns might be thought to exclude nothing which has reached the land otherwise than through operation of the laws of nature. But such an interpretation has been fairly described as "redolent of a different age" (Cambridge Water [1994] 2 AC 264, 308), and in Read v J Lyons & Co Ltd [1947] AC 156, 169, 176, 187 and Cambridge Water at p 308 the House gave its imprimatur to Lord Moulton's statement, giving the advice of the Privy Council in Rickards v Lothian [1913] AC 263, 280:
"It is not every use to which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community."
I think it clear that ordinary user is a preferable test to natural user, making it clear that the rule in Rylands v Fletcher is engaged only where the defendant's use is shown to be extraordinary and unusual. This is not a test to be inflexibly applied: a use may be extraordinary and unusual at one time or in one place but not so at another time or in another place (although I would question whether, even in wartime, the manufacture of explosives could ever be regarded as an ordinary user of land, as contemplated by Viscount Simon, Lord Macmillan, Lord Porter and Lord Uthwatt in Read v J Lyons & Co Ltd [1947] AC 156, 169-170, 174, 176-177, 186-187). I also doubt whether a test of reasonable user is helpful, since a user may well be quite out of the ordinary but not unreasonable, as was that of Rylands, Rainham Chemical Works or the tannery in Cambridge Water. Again, as it seems to me, the question is whether the defendant has done something which he recognises, or ought to recognise, as being quite out of the ordinary in the place and at the time when he does it. In answering that question, I respectfully think that little help is gained (and unnecessary confusion perhaps caused) by considering whether the use is proper for the general benefit of the community. In Rickards v Lothian itself, the claim arose because the outflow from a wash-basin on the top floor of premises was maliciously blocked and the tap left running, with the result that damage was caused to stock on a floor below: not surprisingly, the provision of a domestic water supply to the premises was held to be a wholly ordinary use of the land. An occupier of land who can show that another occupier of land has brought or kept on his land an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances is in my opinion entitled to recover compensation from that occupier for any damage caused to his property interest by the escape of that thing, subject to defences of Act of God or of a stranger, without the need to prove negligence.
The present appeal
12. By the end of the hearing before the House, the dispute between the parties had narrowed down to two questions: had the council brought on to its land at Hollow End Towers something likely to cause danger or mischief if it escaped? and was that an ordinary user of its land? Applying the principles I have tried to outline, I think it quite clear that the first question must be answered negatively and the second affirmatively, as the Court of Appeal did: [2001] EWCA Civ 212.
13. It is of course true that water in quantity is almost always capable of causing damage if it escapes. But the piping of a water supply from the mains to the storage tanks in the block was a routine function which would not have struck anyone as raising any special hazard. In truth, the council did not accumulate any water, it merely arranged a supply adequate to meet the residents' needs. The situation cannot stand comparison with the making by Mr Rylands of a substantial reservoir. Nor can the use by the council of its land be seen as in any way extraordinary or unusual. It was entirely normal and routine. Despite the attractive argument of Mr Ian Leeming QC for Transco, I am satisfied that the conditions to be met before strict liability could be imposed on the council were far from being met on the facts here.
14. I would accordingly dismiss the appeal with costs.
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