Modern Tort Law (Seventh edition)

577 Pages·2009·2.95 MB·English

by  Vivienne Harpwood

MODERN TORT LAW
Seventh Edition
Modern Tort Law is a comprehensive, accessible and up-to-date introduction to the law of
tort. Now in its seventh edition, Vivienne Harpwood’s popular, student-friendly text
explains the principles of all aspects of tort law in a lively and thought-provoking
manner. The broad coverage of modern tort law makes this an ideal textbook for any
undergraduate tort law course.
Students are encouraged to understand and apply the principles of tort law effec-
tively throughout, and particular attention is paid to the context within which the law is
evolving, making these topics both accessible and enjoyable.
This seventh edition has been revised and updated to take into account develop-
ments since publication of the previous edition including in the areas of privacy, neg-
ligence, personal injury and defamation. Human Rights issues are integrated throughout
the text rather than treating the topic in isolation, in line with the way the subject is
commonly taught.
Now more accessible an d student-friendly, it includes:
(cid:127) advice on further reading at the end of each chapter which is intended to point
students towards sources of further study and critical debate
(cid:127) new chapter introductions, rewritten to reflect learning outcomes.
Modern Tort Law is now supported by a Companion Website which offers lecturer
resources available to adopters of the book, including ‘think points’ designed to encour-
age reflection and debate and PowerPoints of diagrams and flowcharts contained within
the text. A dedicated student section also offers weblinks, a flashcard glossary and a test
bank of multiple choice questions.
http://www.routledge.com/textbooks/9780415458467
Vivienne Harpwood is Professor of Law and Course Director for the LLM degree at
Cardiff Law School. She lectures and publishes widely in the fields of tort and medical
law, and her main research interests are general aspects of the law of tort, clinical
negligence and the institutional framework of healthcare.

MODERN TORT LAW
Seventh Edition
Vivienne Harpwood
Seventh edition published 2009 by Routledge-Cavendish
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Simultaneously published in the USA and Canada
by Routledge-Cavendish
270 Madison Avenue, New York, NY 10016
This edition published in the Taylor & Francis e-Library, 2009.
To purchase your own copy of this or any of Taylor & Francis or Routledge’s
collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.
Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business
© 2003, 2005, 2009 Harpwood, V
Previous editions published by Cavendish Publishing Limited
Fifth edition 2003
Sixth Edition 2005
Seventh Edition 2009
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or
retrieval system, without permission in writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Harpwood, Vivienne.
Modern tort law / Vivienne Harpwood. – 7th ed.
p. cm.
Includes index.
1. Torts–England. 2. Torts–Wales. I. Title.
KD1949.H37 2008

346.4203–dc22 2008015010
ISBN 0-203-86881-1 Master e-book ISBN
ISBN 10: 0-415-45845-5 (hbk)
ISBN 13: 978-0-415-45845-0 (hbk)
ISBN 10: 0-415-45846-3 (pbk)
ISBN 13: 978-0-415-45846-7 (pbk)
PREFACE
Tort is a broad church and many hymns, ancient and modern, can be heard within it. It is
an ideal subject for undergraduate study because it shows how the law develops and
responds to changing social and economic conditions. The origins of tort can be traced
to the early years of the last millennium and it has survived to enter this millennium
while still undergoing a process of evolution. Jurisprudentially, it is intriguing because
it demonstrates the shifting boundaries of judicial creativity. All the traditional subject
matter of tort is analysed here in detail but particular emphasis is placed on exploration
of complex and contentious areas and topics which students find perplexing.
This seventh edition updates the material in the previous edition in the light of
recent developments in this fast moving area of law. There is discussion of numerous
cases decided at appellate level, including those concerning duty of care, liability for
psychiatric injury, breach of duty, quantum and occupiers’ liability, as well as other
mainstream areas of tort studied on undergraduate and professional courses. Develop-
ments concerning the effects of the Human Rights Act 1998 on the law of tort are also
discussed. The substantive law is set in the context of the Civil Procedure Rules 1998,
changes in the availability of public funding and other institutional and social changes.
The book is carefully structured and has been updated with the student very much in
mind.
This book is the product of many years of lecturing and tutoring tort and would not
have been possible without the stimulus and encouragement of colleagues and students
too numerous to mention.
Vivienne Harpwood 2008

CONTENTS
Preface v
Table of Cases xxiii
Table of Statutes lvi
Table of Statutory Instruments lx
Table of European Legislation lxii
1 AN OVERVIEW OF THE LAW OF TORT 1
1.1 WHAT IS TORT? 1
1.2 TORT AND CONTRACT 1
1.2.1 Duties fixed by law 1
1.2.2 The relationship between the parties 2
1.2.3 Choosing tort or contract 2
1.2.4 Unliquidated damages 5
1.3 TORT AND CRIMINAL LAW 5
1.4 INSURANCE AND THE LAW OF TORT 6
1.5 AN OVERVIEW OF THE LAW OF TORT 7
1.6 CASE LAW 10
1.7 OTHER SYSTEMS OF COMPENSATION 10
1.8 TORTS OF STRICT LIABILITY 10
1.9 HUMAN RIGHTS ACT 1998 11
1.10 A SUMMARY OF THE OBJECTIVES OF TORT 13
1.10.1 An illustration of the operation of the tort system 14
1.10.2 The scenario 14
1.10.3 Are the objectives of tort met in this case? 15
FURTHER READING 17
2 INTRODUCTION TO THE TORT OF NEGLIGENCE 19
2.1 FAULT 19
2.2 DONOGHUE v STEVENSON AND THE MODERN TORT OF
NEGLIGENCE 19
2.2.1 The policy arguments 20
2.2.2 The significance of the decision 21
2.3 ESTABLISHING LIABILITY FOR NEGLIGENCE 21
2.3.1 What must be proved: duty; breach; damage 22
2.3.2 Duty of care 22
2.3.3 Breach of duty 23
2.3.4 Causation and remoteness of damage 24
FURTHER READING 25
3 DUTY OF CARE – GENERAL PRINCIPLES 27
3.1 DUTY OF CARE 27
3.2 THE TEST FOR DETERMINING THE EXISTENCE OF A DUTY
OF CARE 27
3.2.1 Foresight 28
viii Contents
3.2.2 Proximity 29
3.2.3 What is fair, just and reasonable 29
3.3 THE OPERATION OF JUDICIAL POLICY IN NEGLIGENCE 31
3.4 DEFINITION OF ‘POLICY’ 31
3.5 FACTORS INFLUENCING JUDICIAL POLICY 31
3.5.1 Legal reasoning 33
3.6 LATENT POLICY DECISIONS 33
3.7 EXPLICIT POLICY DECISIONS 34
3.8 THE INCREMENTAL APPROACH – THE THREE-STAGE TEST 34
3.9 HUMAN RIGHTS CONSIDERATIONS 34
FURTHER READING 35
4 DUTY OF CARE – PSYCHIATRIC INJURY 37
4.1 WHAT IS ‘NERVOUS SHOCK’? 37
4.1.1 Recognised symptoms of psychiatric injury 38
4.2 DEVELOPMENT OF THE LAW 41
4.2.1 Fear for relatives and friends 42
4.2.2 The impact theory 42
4.2.3 The ‘area of shock’ theory 43
4.2.4 Rescuers 44
4.3 EXPANSION OF LIABILITY IN THE 20TH CENTURY 44
4.3.1 Cases involving the ‘immediate aftermath’ 45
4.4 CONTRACTION OF LIABILITY FOR NERVOUS SHOCK 46
4.4.1 Restrictions on the scope of the duty 46
4.4.2 Proximity 47
4.4.3 The close tie of love and affection 47
4.4.4 The means by which the shock was sustained 48
4.4.5 Breaking ‘bad’ news 48
4.5 THE IMMEDIATE EFFECTS OF ALCOCK 48
4.5.1 Pre-acci dent terror 50
4.6 MORE RECENT DEVELOPMENTS 50
4.6.1 Primary and secondary victims 50
4.6.2 Rescuers – a new approach 52
4.6.3 The role of foresight 55
4.6.4 Employees 55
4.6.5 Sudden shock or slow appreciation 56
4.6.6 The immediate aftermath again 58
4.6.7 A summary of developments since Alcock 58
4.7 THE FUTURE OF PSYCHIATRIC INJURY CLAIMS – A
DEVELOPING AREA OF LAW 63
4.7.1 Psychiatric injury suffered in the workplace 65
4.7.2 Liability for psychiatric injury at work under the
Protection from Harassment Act 1977 66
4.8 PSYCHIATRIC INJURY AND OTHER TORTS 66
4.9 HUMAN RIGHTS ACT CLAIMS 67
Contents ix
4.10 THE LAW COMMISSION REPORT 67
FURTHER READING 71
5 DUTY OF CARE – ECONOMIC LOSS 73
5.1 ECONOMIC LOSS CAUSED BY CARELESS STATEMENTS 73
5.1.1 Statements made by the defendant 74
5.1.2 The special relationship 74
5.1.3 Reliance 75
5.1.4 Reliance must be reasonable 76
5.1.5 Discharging the duty 77
5.1.6 A ‘case by case’ approach 77
5.1.7 Summary of Caparo 78
5.1.8 Further developments 79
5.1.9 Wrongful birth cases 82
5.1.10 Statements made by a third party 83
5.1.11 Advice as opposed to information 85
5.1.12 Judicial discretion 85
5.1.13 Misrepresentation Act 1967 86
5.2 ECONOMIC LOSS CAUSED BY NEGLIGENT ACTS 86
5.2.1 ‘Pure’ economic loss distinguished from other types of
economic loss 87
5.2.2 Expansion of liability 88
5.2.3 The ‘high-water’ mark 89
5.2.4 Contraction of liability 90
5.2.5 The courts recognise the artificial distinctions made in
previous cases 90
5.2.6 The new limits on liability 91
5.3 OTHER NEGLIGENT ACTS 92
5.4 SUMMARY 93
FURTHER READING 93

6 DUTY OF CARE – SOME PROBLEM AREAS 95
6.1 APPLICATION OF THE LAST LIMB OF THE CAPARO v
DICKMAN TEST 95
6.2 LAWYERS 95
6.3 LEGAL PROCEEDINGS 96
6.4 OTHER SOURCES OF COMPENSATION 97
6.5 CLAIMANT IS A MEMBER OF AN INDETERMINATELY
LARGE CLASS OF PERSONS 97
6.6 WRONGFUL LIFE 98
6.7 THE POLICE 98
6.7.1 The human rights arguments 107
6.8 CLAIMANT CAUSED HIS OR HER OWN MISFORTUNE 108
6.9 RESCUE CASES 108
6.10 LOCAL AUTHORITIES AND NHS ORGANISATIONS 109
6.10.1 Health authorities and local authorities 110