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
On page 54
Wainright v Home Office  AC 406;  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.
Green v DB Group Services (UK) Ltd  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  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  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.
On page 128
The House of Lords has had a more recent opportunity to review the law on ‘loss of a
Gregg v Scott  UKHL 2;  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
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
Barker v Corus (UK) (formerly Saint Gobain Pipelines plc); Murray v British
Shipbuilders (Hydromatics) Ltd; Patterson v Smiths Dock Ltd and Others
 UKHL 20;  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
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.”
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.
D v East Berkshire Community Health NHS Trust  UKHL 23;  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
thOn page 377 in 9 line of 14.1:
In Steel and Morris v UK  (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
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  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  EWCA Civ 06.
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.
Majrowski v Guy’s and St Thomas’ NHS Trust  UKHL 34;  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  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
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd, S & P Darwell Ltd
and CAT Metalwork Services  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
Mattis v Pollock  EWCA Civ 887;  1 WLR 2158;  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.
1. TORT LAW AND HUMAN RIGHTS
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.
(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
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  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.
Department of Health, "Bournewood" Consultation, March 2005.
2.1 Chester v Afshar  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
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
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
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
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  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  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.
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  and Chester v Afshar  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.