By Brandon Clark,2014-06-26 21:38
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    Tort Law update

    This update highlights some of the more important issues which have emerged since

    the publication of Unlocking Tort Law. It is not intended to be a complete update of all

    case decisions in that time.

     ndUnlocking Torts Update 2 November 2006

Chapter 2

    On page 54

Case Example

    Wainright v Home Office [2004] AC 406; [2003] UKHL 53 The claimants, a mother and her son (who suffered from cerebral palsy and

    arrested development), went to prison to visit her other son who was on remand.

    The prison had a drug problem and the son on remand was suspected of

    supplying drugs so the governor had instructed that his visitors should be strip

    searched and denied their visiting rights if they refused, though the claimants

    were unaware of this order in advance of the visit. They were taken to separate

    rooms. The mother’s naked upper body was first examined and then her sexual

    organs and anus were visually examined, causing her great and visible distress.

    The son was at first reluctant to take off his underwear, suffered fits of sobbing

    and shaking, and when the officer examined his naked body that officer also lifted

    up his penis and pulled back his foreskin. The trial judge held that there was

    liability in battery and that the strip search was a course of action intended to

    cause physical or psychiatric harm for which the defendant’s were also liable.

    The Court of Appeal disagreed with this latter point, doubted the existence of the

    tort of Wilkinson v Downton in the modern context, and upheld the defendant’s

    appeal. The claimants appealed to the House of Lords on the basis that, firstly

    there was a tort of invasion of privacy (this was rejected by the House of Lords

    see 14.6.2.) and alternatively that damages could be awarded for emotional

    distress falling short of psychiatric harm where it was intentionally inflicted. The

    House of Lords accepted the continued existence of the tort in Wilkinson v

    Downton but held that there could be no liability for distress falling short of a

    recognised psychiatric injury and that, on the facts of the case, the intention

    essential for proving the tort could not be proved. The appeal was dismissed.


    On the requirements for an action in Wilkinson v Downton Lord Hoffman stated

    “Commentators and counsel have been … unwilling to allow Wilkinson v

    Downton to disappear beneath the surface of the law of negligence … I do not

    resile from the proposition that the policy considerations which limit the heads of

    recoverable damage in negligence do not apply equally to torts of intention. If

    someone actually intends to cause harm by a wrongful act and does so, there is

    ordinarily no reason why he should not have to pay compensation. But I think

    that … you have to be very careful about what you mean by intend… imputed

    intention will not do. The defendant must actually have acted in a way which he

    knew to be unjustifiable and intended to cause harm or at least acted without

    caring whether he caused harm or not.”

On page 58

    There has been much recent case law with quite different results. The best

    publicised of these cases is Green.

    Case Example

    Green v DB Group Services (UK) Ltd [2006] EWHC 1989

    The claimant worked as an assistant company secretary for Deutsche Bank. She

    was subjected to constant abuse by a group of female staff, was constantly

    undermined by a male colleague and despite reporting this to her manager and

    seeking help the company did nothing to support or help her. She suffered a

    period of sickness with depression as a result and on returning to work suffered a

    relapse and was unable to return to work. The judge awarded her ?800,000 for

    personal injury and loss of future earnings for the mental illness resulting from the

    bullying. The award was based on both negligence and breach of the 1997 Act.

    In Howlett v Holding [2006] EWHC 41 the Act was used to grant an injunction to

    put a stop to a campaign of victimisation waged against a former mayor by a

    disgruntled constituent. However, in Merilie v Newcastle PCT [2006] EWHC 1433

    a dentist failed in a claim for harassment against her former employers because

    she suffered a lifelong personality disorder making her evidence unreliable since

    it was based only on her own perceptions.

Chapter 5

On page 128

    The House of Lords has had a more recent opportunity to review the law on ‘loss of a


    Case Example

Gregg v Scott [2005] UKHL 2; [2005] 2 WLR 268

    The claimant was concerned about a lump under his arm but his GP failed to refer

    him to a hospital for tests, dismissing the lump as harmless fatty tissue. When the

    claimant saw another GP nine months later, by which time the he was in

    considerable pain, he was referred to hospital for tests and cancer of the lymph

    glands was diagnosed which it was established had spread considerably during the

    delay. The claimant argued negligence on the part of the original doctor and it was

    shown that if his condition had been diagnosed on the first visit and treatment had

    started at that point he would have had a 42% chance of being alive and disease free

    in ten years whereas as a result of the delay in treatment his chances of being alive

    and disease free after ten years had reduced to 25%. The House of Lords, on a split

    decision 3:2, was unwilling to depart from the principle in Hotson by awarding the

    claimant a proportion of what he would have recovered if the doctor’s negligence had in fact caused his premature death. Interestingly the House added that, had the

    claimant sought damages for the pain and suffering experienced during the delay in

    treatment these might have been awarded.

The majority judges and the dissenting judges were clearly unconvinced by each

    other’s irreconcilable reasoning.


Lord Hoffman delivering the leading judgment held that “Academic writers have

    suggested that in cases of clinical negligence, the need to prove causation is too

    restrictive … In the present case it is urged that Mr Gregg has suffered a wrong and

    ought to have a remedy [and that] the exceptional rule in Fairchild should be generalised and damages awarded in all cases in which the defendant may have

    caused an injury and has increased the likelihood of the injury … It should be first

    noted that adopting such a rule would involve abandoning a good deal of authority.”

Lord Nicholls dissenting, on the other hand stated “Given the uncertainty of outcome,

    the appropriate characterisation of a patient‟s loss in this type of case must surely be

    that it comprises the loss of a chance of a favourable outcome, rather than the loss of

    the outcome itself. Justice so requires … And this analysis of a patient‟s loss accords

    with the purpose of the legal duty … to promote the patient‟s prospects of recovery

    by exercising due skill and care in diagnosing and treating the patient‟s condition.

    This approach also achieves a basic object of the law of tort. The common law

    imposes duties and seeks to provide appropriate remedies in the event of a breach of

    duty. If negligent diagnosis … diminishes a patient‟s prospects of recovery, a law

    which does not recognise this as a wrong calling for redress would be seriously

    deficient …

Ultimately the legal justification for failing to provide a remedy in the ‘loss of a chance

    cases lies in the fact that the claimant’s arguments on causation rests on a possibility

    rather than a probability of harm occurring, and on a simple balance of probabilities

    test the claims fail.

On page 137

Case Example

Barker v Corus (UK) (formerly Saint Gobain Pipelines plc); Murray v British

    Shipbuilders (Hydromatics) Ltd; Patterson v Smiths Dock Ltd and Others

    [2006] UKHL 20; [2006] All ER (D) 23 This involved three appeals concerning questions left unanswered in Fairchild.

    Barker had died as a result of mesothelioma. He had been exposed to asbestos

    fibres during three different periods, once in the employment of the defendant, once

    during different employment and once during a period of self employment. The

    defendant argued that causation could not be proves since the disease could have

    been contracted solely during the period of self-employment, and alternatively that,

    although mesothelioma was an indivisible injury that damages should be apportioned

    between the different possible causes so that the defendant should not be bound to

    pay full damages. The trial judge allowed a claim under Fairchild subject to a 20%

    reduction for contributory negligence for a failure by Barker to protect himself during

    his self-employment. The Court of Appeal also applied Fairchild, accepted that the

    defendant was jointly and severally liable and rejected the possibility of

    apportionment. The House of Lords held that in such circumstances a defendant

    could only be liable for the share of damages equivalent to the share of the risk of

    contracting mesothelioma created by his breach of duty, and therefore apportioned

    damages accordingly.


Lady Hale commenting on the potential injustice caused by the relaxation of standard

    rules of causation in Fairchild stated “… for the first time in our legal history, persons are made liable for damage even though they may not have caused it at all, simply

    because they have materially contributed to the risk …”. Lord Hoffman explaining the position taken by the court stated “… since this is a case in which science can only

    deal with probabilities the law should accept that position and attribute liability

    according to probability.”

The decision was praised in certain quarters:

     “The pragmatic decision ... reflects a desire not only to ensure that the

     traditional causation tests remain the cornerstones for Tort based

     compensation claims but to redress the inequities thrown up by … Fairchild”

     Joe McManus „Playing it fair‟ New Law Journal 26 May 2006 p871

However, the decision was regretted by the Prime Minister and in effect, in the case

    of mesothelioma claims only, was reversed by a hastily included provision in the

    Compensation Act 2006. Undoubtedly the law is left in a state of some uncertainty.

    As Alison McAdams suggests:

     “…it is difficult for any party to be confident how this area of law will develop,

     since the rationale being adopted seems to be one of proceeding by way of

     compromise…” and “It is also uncertain whether the „single agent‟ rule will be

     interpreted narrowly or widely in the future.”

Chapter 7

On page 229

    There is now a developing law on the failure of public bodies to act in respect of

    statutory duties to children including education cases and abuse cases. An

    interesting aspect of this is whether public bodies owe a common law duty of care to

    parents when they are acting in respect of a statutory duty to their children.

    Case Example

    D v East Berkshire Community Health NHS Trust [2005] UKHL 23; [2005] 2 WLR 993

    Three joined appeals involved either doctors or social workers who had carried out

    investigations of parents where there was a suspicion of child abuse. The

    investigations revealed that the suspicions were unfounded. The parents then

    claimed that the original suspicion was unfounded and negligent and sought

    damages for psychiatric injury. The House of Lords held that there was no duty owed

    to the parents since this would conflict with the statutory duties owed to the children

    to investigate.

Chapter 14

     thOn page 377 in 9 line of 14.1:

    In Steel and Morris v UK [2005] (Application no 68416/01) ECHR two environmental

    campaigners who had lost a defamation action made against them by McDonalds

and were ordered to pay extensive damages successfully proved that the trial had

    infringed their human rights under Article 6 and Article 10 of the convention. This was

    because the nature of English defamation law and the absence of any form of legal

    aid meant that the campaigners had to run their own defence against a large

    corporate body.

Chapter 17

    On page 479 The House of Lords has subsequently had the opportunity to review the principles

    laid down in Hatton. Case Example

Barber v Somerset County Council [2004] UKHL 13; 1 WLR 1089

    This appeal involved one of the original claimants in the joined appeals in Hatton,

    having lost his appeal in the Court of Appeal. The claimant was a maths teacher who

    was given additional co-ordinating and managerial responsibilities in order to

    maintain his current income following a restructuring of the school in which he

    worked. As a result his working hours increased to between 61 and 70 hours a week

    and after some months of trying to cope he complained of being overloaded to his

    deputy head teacher. Nothing was done and a few months later, after consulting his

    GP for stress and enquiring into the possibility of early retirement, he suffered a bout

    of stress and depression and was absent from work for three weeks. Again nothing

    was done by the school to address his problems and he continued to see his doctor

    for stress. He finally broke down, shook a pupil, and left the school permanently.

    Psychiatrists agreed that he was suffering moderate to severe depression. The

    claimant had won at first instance on the basis that the school ought to have

    appreciated that the risk to the claimant’s health was significantly greater than to

    another teacher with a high workload and yet had done nothing. This was reversed

    by the Court of Appeal in the joined Hatton appeals. The House of Lords held that the

    Court of Appeal had failed to pay sufficient attention to the claimant’s three week

    sickness absence and the medical reasons for it and held that the local authority was

    in breach of its duty of care by being aware of the difficulties that the increased

    workload were having on the claimant and the medical consequences but failing to

    do anything to remedy it.

Following Barber the Court of Appeal applied the Hatton criteria to individual cases in

    joined appeals, Hartman v South Essex Mental Health & Community Care NHS Trust;

    Best v Staffordshire University; Wheeldon v HSBC Bank Ltd; Green v Grimsby &

    Scunthorpe Newspapers Ltd; Moore v Welwyn Components Ltd; Melville v The

    Home Office [2004] EWCA Civ 06.

Chapter 18

On page 503

    One recent important development is that it is now possible to impose vicarious

    liability where there is a breach of a statutory duty imposed on the individual

    employee rather than also on the employer. In this way a successful claim of

    vicarious liability can be made under s3 Protection from harassment Act 1997.

    Case Example

Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34; [2006] All ER (D)


    The claimant who was employed by the NHS trust claimed that he had been bullied

    and harassed by his departmental manager because of his homosexuality. He

    complained internally and following investigation his complaints were accepted and

    the Trust accepted that there had indeed been harassment. The claimant brought an

    action against the Trust under s3 Protection from Harassment Act 1997. At first

    instance the claim was struck out but the claimant won his appeal in the House of


The case of Green v DB Group Services (UK) Ltd [2006] EWHC 1989 (see 2.6.3)

    also represents a major development in respect of use of s3.

Another important recent development is that dual vicarious liability is now also a


    Case Example

Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd, S & P Darwell Ltd

    and CAT Metalwork Services [2005] EWCA Civ 1151

    The claimant hired Thermal Transfer to instal air conditioning in its factory. Thermal

    Transfer sub-contracted ducting work to Darwell which in turn hired fitters from CAT

    on a labour only basis. One of these fitters, through his negligence caused a flood

    damaging the claimant’s property. Thermal Transfer was liable to the claimant under

    its contract. The trial judge held that CAT was also liable as the fitter’s employer.

    CAT appealed that Darwell should be considered the fitter’s employer in the

    circumstances and the Court of Appeal agreed and held both liable.

On page 510

Case Example

    Mattis v Pollock [2003] EWCA Civ 887; [2003] 1 WLR 2158; [2003] ICR 1335 A bouncer employed by a nightclub got involved in a fight with customers and the

    claimant intervened. The bouncer then left the club went home, returned with a knife

    and intent on revenge stabbed the claimant outside the club. In the Court of Appeal

    Lord Justice Judge identified that the simple question that the court had to decide

    was whether what the bouncer did was so closely connected to what his employer

    expected of him that the employer should be held vicariously liable. The court held

    that this was indeed the case. The whole point of the bouncer’s employment was that

    he should physically manhandle customers and he was encouraged and was

    supposed to intimidate them and be able to win any fight.


Trespass to the Person detention for medical purposes (see main text at pp.

    19-21 and pp. 45-46).

    th October 2004 - Application No 45508/99) the In H.L. v The United Kingdom (5

    European Court of Human Rights examined the application of Article 5 to a person

    detained under the common law doctrine of necessity in a psychiatric hospital.

Article 5

    (1) Everyone has the right to liberty and security of person. No one shall be

    deprived of his liberty save in the following cases and in accordance with

    a procedure prescribed by law …

     (e) the lawful detention … of persons of unsound mind,…

    (4) Everyone who is deprived of his liberty by arrest or detention shall be

    entitled to take proceedings by which the lawfulness of his detention shall

    be decided speedily by a court and his release ordered if the detention is

    not lawful.

Facts of the case

HL suffered from autism, was unable to speak and had limited understanding. He

    was frequently agitated and had a history of self-harming. He resided with carers and

    attended a day centre regularly. When he became agitated and started to bang his

    head against a wall, he was referred to a psychiatric hospital. He did not meet the

    criteria for compulsory detention pursuant to the Mental Health Act 1983 but as he

    was compliant and did not resist admission, he was duly detained and did not try to

    leave. The view was taken by the UK courts (R v Bournewood Community and Mental Health NHS Trust, ex.p L [1999] AC 458) that as he did not try to leave, he was not being forcibly restrained and therefore no action for false imprisonment could

    arise. HL appealed to the ECtHR alleging breach of Article 5.


On the basis of the factual situation it was held that HL had been deprived of his

    liberty within the meaning of Article 5(1) (para. 94) but that the evidence justified

    detention by reason of his unsound mind (para. 101). However, where a person is

    deprived of his liberty, Article 5(4) requires there to be an effective and speedy

    system for the review of the lawfulness of the detention. The court rejected the

    argument that ‘the requirements of Article 5.4 were … satisfied … by judicial review

    and habeas corpus proceedings.’ (para. 140) It concluded that there had been a violation of Article 5(4) (para. 142).

Comment (March 2005)

This case has led to a change in practice by mental health professionals and the

    doctrine of necessity is no longer extensively used. The Draft Mental Health Bill

    published in September 2004 sets out proposals to allow voluntary patients similar

    rights for review of hospitalisation as those detained under section. The Bill is

    presently in the process of Parliamentary scrutiny. It is also likely that the Mental

    Capacity Bill, currently being considered by the House of Lords, will have some effect.

    Both Bills are subject to substantial amendment so that it is not possible to foretell

    with any certainty what changes are likely.

Further reading

    Department of Health, "Bournewood" Consultation, March 2005.


2.1 Chester v Afshar [2004] UKHL 41 (see main text p.108 for facts)

This case has now been considered by the House of Lords, which, by a majority of

    three to two, upheld the decision of the Court of Appeal. Important points in relation


    ? the duty to inform a patient of the potential risks of medical treatment; and

    ? the issue of causation

    have emerged.


    The duty to inform

    The judges unanimously held that there was ‘a duty to warn Miss Chester of a small (1%-2%) but unavoidable risk that the proposed operation might lead to a seriously

    adverse result.’ (Ld. Bingham at para. 5) Ld Hope, in paras. 48 – 59 reviews the law

    relating to the duty and concludes:

    The function of the law is to protect the patient‟s right to choose. If it is to fulfil

    that function it must ensure that the duty to inform is respected by the doctor.

    It will fail to do this if an appropriate remedy cannot be given if the duty is

    breached and the very risk that the patient should have been told about

    occurs and she suffers injury. (para. 56)

The issue of causation

Having held that Mr Afshar was in breach of his duty to warn, the court turned its

    attention to the issue of causation. Lord Hoffman explained (para. 32):

    On ordinary principles of tort law, the defendant is not liable. The remaining

    question is whether a special rule should be created by which doctors who fail

    to warn patients of risks should be made insurers against those risks.

Lord Bingham and Lord Hoffman both held that the failure to warn could not be said

    to have caused Miss Chester’s injury. The appeal should be allowed - her claim must

    fail as she was unable to establish legal causation.

Lord Steyn, dismissing the appeal by Mr Afshar, held (paras. 24 - 25):

    I have come to the conclusion that, as a result of the surgeon‟s failure to warn

    the patient, she cannot be said to have given informed consent to the surgery

    in the full legal sense. Her right of autonomy … ought to be vindicated by a

    narrow and modest departure from the traditional causation principles. … This

    result is in accord with one of the most basic aspirations of the law, namely to

    right wrongs.

Lord Hope, also dismissing the appeal, held (paras. 86-87):

    … [T]he duty to warn … has at its heart the right of the patient to make an

    informed choice…

In discussing the patient in the position of Miss Chester, who did not know what her

    decision would have been had she been warned, Lord Hope went on to say:

    To leave the patient who would find the decision difficult without a remedy, as

    the normal approach to causation would indicate, would render the duty

    useless … the function of the law is to enable rights to be vindicated and to

    provide remedies when duties have been breached. … The injury … was the

    product of the very risk that she should have been warned about …[s]o I

    would hold that it can be regarded as having been caused, in the legal sense,

    by the breach of that duty.


The decision was clearly influenced by the concern of the majority that an honest

    claimant, who freely admitted that she did not know what might have been her

    decision had she received the warning, would be in an unfavourable position when

    compared to the claimant who was able to establish that consent would not have

    been given. In both cases, the extent of the injury would be similar. It can be argued

    that the decision is based on policy grounds. Lord Walker summarised the position

    (para. 101):

    I agree … that such a claimant ought not to be without a remedy, even if it

    involves some extension of existing principle …Otherwise the surgeon‟s

    important duty [to warn] would in many cases be drained of its content.

    It was argued that the decision in Chester v Afshar indicated that the judges were prepared to loosen the traditional links between the breach of duty and causation of

    injury. This argument was rebutted in the later case of Gregg v Scott (see para. 2.2

    below). It seems that the rules will be loosened only in most exceptional

    circumstances and that Chester v Afshar was decided on its own particular facts; it does not introduce a new general principle.

2.2 Gregg v Scott [2005] UKHL 2


Mr Gregg found a lump under his arm which Dr Scott negligently diagnosed as

    benign when in fact it was cancerous. As a result, treatment for the cancer was

    delayed for about 9 months. The delay in treatment reduced Mr Gregg’s chances of survival for 10 years from 42% to 25%.


Mr Gregg’s claim failed, both at first instance and before the Court of Appeal, the

    courts basing their decision on the rules set out in Hotson v East Berkshire Area Health Authority [1987] 1 All ER 210 (for facts and discussion of Hotson, see main

    text at pp. 127 128). The House of Lords upheld the decision of the lower courts by

    a majority of three to two.

It was agreed by all the judges that the issue was complicated by the fact that the

    potential outcome for Mr Gregg was very uncertain. Statistical evidence did not clarify

    what effect the delay in treatment may have had and in any case, Mr Gregg had

    already demonstrated that, in his case, the progress of the disease was atypical.

The minority judgments

Both Lord Nicholls and Lord Hope took the view that Mr Gregg’s loss was:

    the loss of a chance of a favourable outcome, rather than the loss of the

    outcome itself. (Lord Nicholls at para. 24)

Hotson was distinguished on the basis that factual issues raised in that case could be

    identified and measured thus the case could be decided on an all or nothing basis of

    the balance of probabilities. The present case differed in that the extent of Mr

    Gregg’s loss could only be assessed on the uncertain basis of statistics, the outcome

    for Mr Gregg being uncertain at all times. Both judges held that Mr Gregg had

    suffered loss as a result of the negligent failure to diagnose the cancer. They argued

    that the loss must be valued on the same principles whether the prospects of

    recovery were better or less than 50%.

The majority judgments

Lord Phillips identified the problem facing the court:

    Should this House introduce into the law of clinical negligence the right of a

    patient who has suffered an adverse event to recover damages for the loss of

    a chance of a more favourable outcome? (para. 125)

    Acknowledging the difficulty of using statistical data ‘to identify the effect that clinical negligence has had on the chance of a favourable outcome’, Lord Phillips went on:

    A robust test which produces rough justice may be preferable to a test that on

    occasion will be difficult, if not impossible, to apply with confidence in practice.

    (para. 170)

Lord Phillips concluded that this case should not be used to introduce a new principle

    into the law of clinical negligence.

Lord Hoffman, having reviewed the case law relating to causation, suggested that:

    … a wholesale adoption of possible rather than probable causation as the

    criterion of liability would be so radical a change in our law as to amount to a

    legislative act. (para. 90)

He concluded that ‘any such change should be left to Parliament.’ (para. 90)

Baroness Hale accepted that ‘[w]ell settled principles may be developed or modified

    to meet new situations and new problems‟ (para. 192) giving the decisions in Fairchild v Glenhaven Funeral Services Ltd [2003] and Chester v Afshar [2004] as

    examples. Dismissing the appeal, Baroness Hale suggested:

    But damage is the gist of negligence. So it can never be enough to show that

    the defendant has been negligent. The question is still whether his negligence

    has caused actionable damage.

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