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This, and the following three chapters, deal solely with the first element – the establishment of a duty of care – in a variety of scenarios. English courts have long drawn a distinction between the existence of a duty of care in the context of loss caused by physical injury or property damage, on the one hand (the subject of analysis in this chapter); and where economic loss or psychiatric injury is caused, on the other. In the latter scenarios, special rules apply for the establishment of a duty of care, which are the subject of consideration in Chapters 4 and 5, respectively.
A private nuisance is an act or omission by D which constitutes a violation of C’s real property rights, entailing either an interference with C’s legal interest in the land (including some easement or other right which C possesses in connection with that land) or an interference with the amenity of the land, i.e., C’s right to use and enjoy that land.
In his negligence suit against D, C can only recover damages from D where D caused, or materially contributed to, C’s harm; or where, exceptionally, some weaker causal link is established between D’s breach and C’s harm.
Liability for negligently-inflicted financial losses is both complex and challenging. This is due, in part, to the reluctance of English appellate courts to settle upon any one test by which to establish whether D owed C a duty of care to avoid the pure economic loss which C suffered.
Remoteness is the fourth limb of the negligence action, and represents the final opportunity for the court to circumscribe D’s liability. This element asks whether the damage complained of, although factually caused by D’s act or omission, was legally too remote. This principally (but not solely) involves an enquiry as to whether the kind or type of damage was reasonably foreseeable by D at the relevant time. As a general rule, D cannot be liable in law for damage that was not reasonably foreseeable.
It is an unfortunate truism that the topic of negligently-inflicted pure psychiatric illness is afflicted with many vagaries and complexities. That has been openly admitted, judicially. Recently, in RE v Calderdale and Huddersfield NHS Foundation Trust,2 the court described the law, in something of an understatement, as ‘not an area which is straightforward and without controversy’ – while, in Taylorson v Shieldness Produce Ltd, Ralph Gibson LJ remarked that the relevant principles are ‘as unconvincing as they are surprising’.
The defences available in negligence comprise the following: (1) contributory negligence, i.e., that C carelessly contributed to his own injury; (2) volenti, i.e., that C fully and freely assumed the risk of injury created by D’s breach; (3) illegality, i.e., that C was engaged in an illegal purpose when harmed by D;1 (4) exclusion clauses, i.e., that D can take advantage of a limitation of liability clause in his agreement/contract with C;2 (5) therapeutic privilege, i.e., that D withheld information about material risks from C, because disclosure might harm C’s health and well-being; and (6) necessity, i.e., that D’s negligence was committed because it was necessary to save life, limb, or property.
Within the last decade, the Supreme Court has made two telling observations. First, vicarious liability is ‘on the move’ (per Catholic Child Welfare Socy v Institute of the Brothers of the Christian Schools (Child Welfare Socy)1); and second, ‘[t]he risk of an employee misusing his position is one of life’s unavoidable facts’ (per Mohamud v WM Morrison Supermarkets plc2). To that, add the Court of Appeal’s recent observations that employers do not ‘[become] insurers for violent or other tortious acts by their employees’ (per Bellman Northampton Recruitment Ltd3); but that ‘there will indeed be cases of independent contractors where vicarious liability will be established’ (per Barclays Bank plc v Various Claimants4).
Where D deliberately accumulates something on his land which amounts to a ‘non-natural user’ of his land, and which is likely to do damage to C’s land if it escapes, D is required by law to prevent its escape, and is liable for all the direct and foreseeable consequences of its escape.
The law of occupiers’ liability is a true mix of statutorily-stated principles and common law negligence. Both Acts impact, to some degree, as to whether the occupier owed a duty of care or breached that duty, and the defences available to him; while causation and remoteness are entirely governed by the common law.