Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4
The claimant was a 76-year-old pedestrian when she was injured during an attempted arrest carried out by the police. The arrest had taken place in a busy shopping street in a city centre, and those officers involved had recognised that the suspect was likely to resist arrest. The Supreme Court held that the police in this case did owe the claimant a duty of care because they had actively created a risk of harm to passers-by and they had foreseen that such harm might well result from their actions. The Court made it clear that it was applying normal common law principles of negligence in reaching the result, from which the police were not immune.
The Supreme Court also took the opportunity to re-evaluate the impact of the Caparo test to the determination of a duty of care and emphasising the role of precedent in determining duty of care principles, stating
It is neither necessary nor appropriate to treat Caparo Industries v Dickman [1990] 2 AC 605 as requiring the application of its familiar three-stage examination afresh to every action brought. Where the law is clear that a particular relationship, or recurrent factual situation, gives rise to a duty of care, there is no occasion to resort to Caparo, at least unless the court is being invited to depart from previous authority. … In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.
James-Bowen v Commissioner of Police for the Metropolis [2018] UKSC 40
The claimants were police officers who alleged that the Commissioner had been negligent in defending proceedings brought against her by a suspected terrorist. In those proceedings, the suspect claimed that the Commissioner’s officers (the claimants) had subjected him to gratuitous violence during his arrest, and that she was vicariously liable for his damage. In not conducting her defence reasonably, the officers claimed that the commissioner had thereby caused them reputational and economic harm, and that she owed them a duty of care in relation to these interests. In the Supreme Court, the claimants’ case was based on there being an implied duty of trust and confidence between them and the Commissioner, such a term being one implied into all contracts of employment. Whilst police officers do not have contracts of employment, their argument was that their relationship with the Commissioner was sufficiently analogous to an employment relationship that the same term could be implied. The Supreme Court did not agree that the implied duty of trust and confidence could be extended to generate a general duty to protect employees (or quasi-employees) from reputational and economic harm, and further found that no duty arose using the principles derived from Caparo and Robinson. Lord Lloyd-Jones was very clear about the fact that:
The present case is very clearly one in which it is sought to extend a duty of care to a new situation. As Lord Reed explained in Robinson, in determining whether such a duty should be recognised the law will proceed incrementally and by analogy with previous decisions… In addition, the proposed duty will be tested against considerations of legal policy and judgement will have to be exercised with particular regard to both the achievement of justice in the particular case and the coherent development of the law.
The judgment goes on to consider the legally significant features of several cases which could be said to have certain similarities to the facts of James-Bowen, before concluding that an analogy could not be made with those on which a duty of care had been found to exist. Lord Lloyd-Jones then went on to exercise ‘legal judgment’ to decide whether this new situation should nevertheless be one in which a duty of care should be recognised. It is worth setting out the ‘considerations of legal policy’ which were employed in this reasoning:
The interests of an employer who is used on the basis that he is vicariously liable for the tortious conduct of his employees differ fundamentally from the interests of those employees. The financial, commercial and reputational standing of the employer may be at stake. It is the employer who will incur the cost of defending the proceedings of which, however successful the defence may be, is most unlikely to be recovered in full, and who, if unsuccessful, will bear the liability to the claimant. The employer must be able to make his own investigation into the claim and to assess its strength based on the conduct of his employee and the prospects of a successful defence. In this regard, he will need to form his own view as to the reliability and veracity of his employee and as to how the employee is likely to perform as a witness. The interests of insurers may have to be taken into account…
These stark differences between the interests of employer and employee strongly suggest that it would not be fair, just or reasonable to impose on an employer a duty of care to defend legal proceedings so as to protect the economic or reputational interests of his employee.
In the present case, moreover, the Commissioner is not merely in a position analogous to that of an employer. She also holds public office and has responsibility for the Metropolitan Police Service. This adds a further dimension to this appeal because in the conduct of the proceedings against her she must be free to act as she considers appropriate in accordance with her public duty. This duty is, to my mind, totally inconsistent with her owing a duty of care to protect the reputational interests of her employees when defending litigation based on vicarious liability for their alleged misconduct.
In concluding his judgment with the words, ‘For these reasons I would allows the appeal. The imposition of the claimant duty would not be fair, just or reasonable’, Lord Lloyd-Jones demonstrates that the Caparo considerations, whilst not to be regarded as a standalone test, are clearly still highly influential in the duty of care inquiry. Lord Lloyd-Jones returned to that inquiry some months later in Darnley v Croydon NHS Trust [2018] UKSC 50.
Darnley v Croydon NHS Trust [2018] UKSC 50
The claimant had attended the defendant’s Accident and Emergency Department with his friend, having incurred a heading injury during an unprovoked attack. The administrative receptionist on duty informed him that he would have to wait up to four or five hours before being seen by a medical practitioner. In fact, the standard procedure was for head injury patients to be seen within 30 minutes by a triage nurse. As a result of being given misleading information about the likely length of wait, the claimant decided that he felt too ill to stay in the waiting room, and went home to bed. Had he known he was likely to be seen within 30 minutes, he would have stayed and been examined. He was later returned to hospital by ambulance and had to undergo emergency neurosurgery. Ultimately, however, he was left with permanent brain damage as a result of his injuries. Both the trial judge and the Court of Appeal found in favour of the NHS Trust, the latter by majority on the basis that the hospital owed no duty of care to advise patients about waiting times. The Supreme Court allowed the claimant’s appeal, finding that the case fell within an established duty of care situation for NHS Trusts. At [16], Lord Lloyd-Jones, with whom the other members of the Panel agreed, said:
To my mind… the present case falls squarely within an established category of duty of care. It has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards. The duty is one to take reasonable care not to cause physical injury to the patient (Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, per Nield J at pp 435-46). In the present case, as soon as the appellant had attended at the respondent’s A&E department seeking medical attention for the injury he had sustained, had provided the information requested by the receptionist and had been ‘booked in’, he was accepted into the system and entered into a relationship with the respondent of patient and health care provider… This is a distinct and recognisable situation in which the law imposes a duty of care. Moreover, the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extends to a duty to take reasonable care not to provide misleading information, which may foreseeably cause physical injury. While it is correct that no authority has been cited in these proceedings which deals specifically with misleading information provided by a receptionist in an A&E department causing physical injury, it is not necessary to address, in every instance where the precise factual situation has not previously been the subject of a reported judicial decision, whether it would be fair, just and reasonable to impose a duty of care. It is sufficient that the case falls within an established category in which the law imposes a duty of care.
Poole BC v GN [2019] UKSC 25
The claimants in this case were brothers, aged nine and seven at the relevant time, who were housed with their mother by the defendant council next door to a household known for its anti-social behaviour. The family was subjected to prolonged abuse and harassment by its neighbours, and, although attempts were made by the local authority to address the situation, these were not successful. As a result, the claimants and their mother suffered from threats, damage to their house and car, and physical assault, resulting in physical and psychological damage. Both children were assessed as being in need under the children Act 1989; one was physically and mentally disabled and the other became mentally unwell as a result of the events giving rise to the claim. They were not rehoused for five years. The claimants’ case was that the local authority owed them a duty of care at common law when exercising its functions under s 17 and s 47 of the Children Act 1989.
Lord Reed clarified the position of public authorities with respect to the existence of a common law duty of care. The message fits with the recent Supreme Court decisions discussed above: public bodies are not treated differently to private parties for this purpose. They are not therefore generally liable for failing to confer a benefit, or for harms caused by third parties. Lord Reed reiterated the point made by the Supreme Court in Robinson v Chief Constable of West Yorkshire – a public authority will only be liable where it foreseeably causes physical harm to another through a positive act amounting to negligence. The test in Caparo Industries plc v Dickman does not apply to such a case.
Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB)
The claimant was the partner of a woman who had committed suicide after her mother had sought the help of the defendant police force. He alleged that, in taking the mother’s call and assuring her that it would attend the deceased’s house, the police force had assumed a duty of care which it then breached by not responding within a reasonable time. King J in the High Court regarded it as crucial that:
The police, on the facts found by the Recorder, in giving the assurances they did, were focused on a particular individual and a particular individual’s welfare. They were not purporting to be performing their public duty directed at investigation or prevention of crime (albeit it might be said they were in relation to the protection of life). There is force in my judgment that, properly analysed, on the facts as found by the Recorder, the Appellant was in effect agreeing to perform the same function as the ambulance service in coming to the aid of something reported to be in extremis – in need of welfare assistance – specifically in agreeing to go around to check on that individual and to arrange for her transfer to hospital if necessary. In these circumstances the fact it was the police who agreed to perform this function rather than some other emergency service should not in my judgment deprive the person in need of a private law remedy in that, if the facts otherwise support a finding of an assumption of responsibility towards her… these facts are not covered by the core Hill principle protecting the police in their carrying out their public duty in the investigation and prevention of crime.
The Airport Authority v Western Air Ltd [2020] UKPC 29
The Respondent’s aircraft in the Bahamas was stolen in 2007. The Respondent claimed damages against the Appellant, Airport Authority of Bahamas, claiming the Appellant was solely responsible for the security of the airport. The key question for the UK Privy Council was whether the Appellant was liable for a criminal act committed on its premises by an independent third party where the act had resulted in damage and loss to the respondent. The Privy Council considered whether the Airport Authority was negligent in failing to act to protect against the theft of the aircraft. The Privy Council determined that the case could be characterised as one where the loss stemmed from omissions by the appellant rather than any action on its part. Citing Lord Browne-Wilkinson in X v Bedfordshire County Council, the Privy Council emphasised that there cannot be an exemption to liability simply because the loss stemmed from omissions by the Appellant as opposed to a positive action on its part. The ordinary rules applicable to the common law of negligence continue to apply, and in equal measure, to negligent omissions as they do to actions which are lawfully remiss. This is especially so on facts, such as the present case, where the Appellant had created a potential danger (namely, an insufficient parameter surrounding the aircrafts that would prevent potential thefts) that they failed to protect against.
Applying the common law of negligence, therefore, the Privy Council held: i) that the proximity of the relationship between the Airport Authority and Western Air was readily established; ii) the foreseeability of harm was readily established – although theft of an aircraft is a highly unusual occurrence, the exact nature of harm need not be precisely foreseen. It was enough that the possibility of harm to unguarded aircraft was anticipated; iii) finally, it was fair and reasonable that the appellant be held liable as it was uniquely placed to provide the necessary protections. A duty of care could therefore be established, which had been breached by the appellant’s insubstantial protection of the aircraft.
Finally, the Privy Council reviewed the doctrine of res ipsa loquitur and held that all three requirements were present: i) the theft of the airplane was an unexplained occurrence; ii) it would not have happened in the ordinary course of things without negligence on the part of someone other than the respondent, and; iii) the circumstances pointed unmistakeably to the negligence in question being that of the appellant, rather than any other person or agency. On this basis, the Privy Council dismissed the appeal and the Airport Authority was held liable for the theft of the aircraft by a third party.
PURE ECONOMIC LOSS
Banca Nazionale del Lavoro SPA v Playboy Club London Ltd and others [2018] UKSC 43
Here, the claimant was the Playboy Club in London which had, in accordance with its usual practice, sought assurances of creditworthiness from a client’s bank before advancing gambling credit to the client. Given the name and reputation of the club, it used a different entity, Burlington, in order to approach clients’ banks. It was, therefore, to Burlington that BNL gave assurances in this case. When, despite those assurances (which were, in any event, given when the client was not even a customer of BNL) the client defaulted on the credit agreement, the claimant sought to recover its £800,00o loss from BNL on the basis of Hedley Byrne.
The Supreme Court held that there was insufficient proximity in this case between BNL and the Playboy Club, since BNL gave the information to Burlington and not to the claimant. This is known as a situation of undisclosed agency, in which one party can enter into contractual relations on behalf of another under certain circumstances. The undisclosed agency relationship, however, within which a party can contract with another party whose identity is not known to it, was deemed by the Supreme Court not to be ‘akin to contract’ in the way that Hedley Byrne liability requires. BNL was not therefore liable to the Playboy Club. It would seem, then, that a defendant must know to whom its statement is directed if the facts are to give rise to the requisite special relationship under Hedley Byrne.
PSYCHIATRIC INJURY
There are no cases in the past 3 years
BREACH OF DUTY
There are no cases in the past 3 years
CAUSATION
The Financial Conduct Authority (Appellant) v Arch Insurance (UK) Ltd and others [2021] UKSC 1
The proceedings were brought by the Financial Conduct Authority (the FCA) as a test case following an agreement made with eight insurance companies to resolve issues of general importance as a result of COVID-19. In particular, the appeals sought to clarify a variety of insurance policy wordings covering business interruption losses resulting from the COVID-19 pandemic and public health measures taken by UK authorities in response to the pandemic from March 2020.
The Court considered 21 sample insurance policy wordings. Because of the importance and urgency of the issues raised, the appeals proceeded directly from the High Court to the Supreme Court under the ‘leapfrog’ procedure, bypassing the Court of Appeal.
The Supreme Court was asked to consider 6 issues arising on the appeals. Of particular interest for causation purposes was whether business interruption losses consequent on public health measures taken in response to COVID-19 were, in law, caused by cases of the disease that occurred within the specified radius of the insured premises.
The Supreme Court, in agreement with the High Court, held that all individual cases of COVID-19 which had occurred by the date of any Government measure were equally effective ‘proximate’ causes. It was therefore deemed sufficient for an insurance policyholder to show that at the time of any relevant Government measure there was at least one case of COVID-19 within the geographical area covered by the clause.
In reaching this conclusion, the Supreme Court rejected the Insurers’ arguments: (i) that one event cannot in law be a cause of another unless it can be said that the second event would not have occurred in the absence of (‘but for’) the first; and (ii) that cases of disease occurring inside and outside the specified radius should be viewed in aggregate, so that the overwhelmingly dominant cause of any Government measure will inevitably have been cases of COVID-19 occurring outside the geographical area covered by the clause.
The Supreme Court further explained why the ‘but for’ test of causation is sometimes inadequate and that there can be situations (of which the present case is one) where a series of events all cause a result although none of them was individually either necessary or sufficient to cause the result itself.
REMOTENESS
Hughes-Holland v BPE Solicitors [2017] UKSC 21
The claimant was a trustee in bankruptcy, claiming in relation to losses incurred by G. G had lent £200,000 to a friend, L, believing that those funds were to be used to develop a particular property. In actual fact, L never intended to use those funds to the development of the property, but instead to discharge a bank loan and other debts he had incurred. G’s solicitors drew up the loan documentation for him, and negligently included terms which confirmed G’s mistaken belief in how the funds were to be used. The development project failed, and G sued his solicitors for the full extent of his loss (which was the full £200,000). At first instance, G succeeded, the judge taking the view that, but for the solicitors’ negligence, he would not have lent the money and so not suffered any loss at all. The Court of Appeal reduced his damages to nil on the basis that, even had G’s money been used for the purposes which G believed they would be, the project would still have failed and he would still therefore have lost all of his money. The Supreme Court agreed, and confirmed the SAAMCO distinction between a duty to provide information a duty to advise: where, as here, a defendant had a duty to provide information, it would be liable only for the consequences of that information being wrong. Where, by contrast, a defendant has a duty to advise, it will be liable for the consequences of that course of action being taken. This is so, even where the defendant knows that the information it supplies is critical to the claimant’s decision.
At [55] in Hughes-Holland, Lord Sumption summarised the effect of the application of SAAMCO to the facts of BPE:
On the footing that BPE was not legally responsible for Mr Gabriel’s decision to lend the money, but only for confirming his assumption about one of a number of factors in his assessment of the project, the next question is what if any loss was attributable to that assumption being wrong. The answer is that if it had been right, Mr Gabriel would still have lost his money because the expenditure of £200,000 would not have enhanced the value of the property. The development would have been left incomplete, the loan unpaid and the property substantially worthless when it came to be sold into a depressed market under the chargee’s power of sale. None of the loss which Mr Gabriel suffered was within the scope of BPE’s duty. None of it was loss against which BPE was duty bound to take reasonable care to protect him. It arose from commercial misjudgments which were no concern of theirs.
OCCUPIERS’ LIABILITY
The White Lion Hotel v Deborah Jayne James [2021] EWCA Civ 31
Christopher James (the deceased) died on 5 July 2015 when he fell from a second-floor window while a visitor at the White Lion Hotel. The claim was brought by the Respondents pursuant to section 2 of the OLA 1957 alleging a failure to take reasonable care for the safety of the deceased. The judge at first instance found that the appellant was in breach of the common duty of care pursuant to section 2 of the 1957 Act in failing to take reasonable care for the safety of the deceased in using the room but made a finding of 60% contributory negligence.
Further grounds of appeal were raised to the Court of Appeal, namely whether s 2(5) of the OLA 1957 applied, such that the appellant had no obligation to the deceased in respect of the risk of falling from the window.
The Court of Appeal examined ss 1(1) and 2(1)-(5) of the OLA 1957, as well as various judgments including Tomlinson v Congleton Borough Council. The first question for the Court of Appeal to consider was whether the judge at first instance was correct to find that the deceased was owed a duty of care pursuant to section 2 of the OLA 1957 and, if so, whether that duty was breached. This, the Court of Appeal emphasised, is essentially a factual assessment based upon the particular circumstances of each case. In this case, it involved addressing the following four questions, namely:
i) was there a danger due to the state of the premises;
ii) was there a breach of duty in respect of that danger to the deceased;
iii) was that breach of duty the cause of the deceased’s fall;
iv) should a finding have been made pursuant to section 2(5) of the OLA 1957 that the deceased was not owed the duty by reason of his voluntary acceptance of the risk created by the danger.
Given the relevant findings of facts, the Court of Appeal concluded that the appellant did owe a duty to the deceased, who was a lawful visitor, that there was a foreseeable risk of serious injury due to the state of the premises, and that preventative measures would have been at minimal cost to the appellant.
It followed, therefore, that the question for the Court of Appeal was whether a defence was available to the Appellant pursuant to section 2(5) of the OLA 1957. The Appellant argued that a person of full age and capacity who chooses to run an obvious risk cannot found an action against a defendant on the basis that the latter has either permitted him to do so, or not prevented him from so doing. The Court of Appeal did not find support for this claim in the various judgments cited by the Appellant, including Tomlinson.
Further, the Court of Appeal held that while the deceased may have had knowledge of the general risk, he was not aware of, and expressly or impliedly accepting of, the risk that had been created by the appellant’s breach of duty. Therefore, the requirements of section 2(5) were not met.
The claim was therefore allowed; however, damages were reduced by 60% due to contributory negligence by the deceased.
PRODUCT LIABILITY
There are no cases in the past 3 years
NUISANCE AND THE RULE IN RYLANDS V FLETCHER
Fearn and others v Board of Trustees of the Tate Gallery [2020] 2 WLR 1081
Flat owners here sought an injunction to close part of the Tate Modern art gallery’s new viewing platform on the basis that it overlooked their living spaces. Visitors to the platform frequently looked into their flats, which had floor-to-ceiling windows, and had also been known to use binoculars and cameras to do so. The flat owners’ argument was that the use of certain sections of the viewing gallery unreasonably interfered with their interests in their flats, and therefore amount to a nuisance. They also argued that the use of that viewing gallery infringed their rights under Article 8 of the European Convention of Human Rights, and that the Tate, as a public authority, was therefore in breach of s 6 of the Human Rights Act 1998.
The Court of Appeal dismissed the flat owners’ appeal on the basis that the overwhelming weight of judicial authority indicated that the mere overlooking of a property was not capable of giving rise to a cause of action in private nuisance, and there was no existing authority to suggest that it could. The Court pointed to Hunter v Canary Wharf Ltd as an authoritative demonstration of the point that the law does not provide redress for every annoyance to a landowner. In deciding whether to extend private nuisance to cover overlooking, the Court considered that there exist other ways of protecting landowners from overlooking, such as planning laws and control. In essence, the issue in cases of overlooking is closer in substance to invasion of privacy more than it is damage to interests in property, and there are other laws which protect this interest. Ultimately, the Court of Appeal delt that it would be more appropriate for Parliament to formulate a means of protecting landowners from overlooking, should it be deemed appropriate, than for it to extend the tort of private nuisance to do so.
Similarly, there had never been a Strasbourg case in which it had been held that mere overlooking amounted to a breach of Article 8. In reaching its conclusion on this basis, the Court went on to consider, in obiter dicta, that it would not be constructive to try and overlay the tort of private nuisance with Article 8 rights in this respect, principally because private nuisance is a tort exclusively to protect interests in land, whereas Article 8 protects anyone who has a reasonable expectation of privacy. Since the considerations involved in assessing these two forms of protection do not overlap, it would be counter-productive to try and align them in the way suggested by the flat owners in this case.
THE ECONOMIC TORTS
There are no cases in the last 3 years
INTENTIONAL TORTS AGAINST THE PERSON
R (on the application of Jalloh) v Secretary of State for the Home Department [2020] UKSC 4
This case considered whether a curfew and home detention were sufficient constrains to constitute false imprisonment. The claimant was granted asylum in 2003, but convicted of various offences in 2006, and a deportation order was made against him in 2008. There was a further conviction in 2013, and, when the custodial sentence was completed, the claimant was issued with a document headed ‘NOTICE OF RESTRICTION’. This imposed a number of restrictions on him, including reporting to an immigration officer three times a week, living in a specified home address, electronic monitoring and staying at home between 11pm and 7am every day. If he did not comply with these restrictions, there was a potential penalty of £5,000 and/or six months’ imprisonment.
The curfew was in place for 891 days. Although there were a number of occasions when the claimant breached the curfew, either for the entire night or part of it, he generally sought to comply with the restrictions. In 2016, the curfew was lifted when the Court of Appeal held that the Secretary of State did not have the power to impose a curfew by way of restriction.
The claimant successfully sued for false imprisonment and was awarded £4,000. The Secretary of State appealed this decision to the Court of Appeal and then Supreme Court, contending that the curfew did not amount to imprisonment at common law.
In the Supreme Court, the Secretary of State made five arguments as to why the curfew did not amount to false imprisonment. First, imprisonment requires constraint on a person’s freedom of movement, and this usually occurs with physical or human barriers. The claimant’s voluntary compliance with the curfew was therefore insufficient to amount to false imprisonment. Secondly, if the constraint is not by physical barriers, it must be sufficient to keep the detained person in the same place. Thirdly, the constraint must result in a ‘total’ or ‘complete’ restriction on the individual (referring specifically to Bird v Jones). Fourthly, it is not false imprisonment if the individual can leave by another route, even if that is not the way he wants, and the route involves trespassing. Finally, it is not sufficient that the act of leaving would trigger an adverse response, such as prosecution or arrest. On the basis of these arguments, the Secretary of State stated the claimant’s situation cannot be compared with being detained in open prison or psychiatric hospital. As the claimant was not locked in his home, there was nothing preventing him from leaving, he broke the curfew on a number of occasions and he was not physically constrained, the curfew did not result in false imprisonment.
The Supreme Court rejected all of these arguments. It distinguished the curfew from cases like Bird v Jones where the claimant could cross the bridge by another route, or Robinson v Balmain where the claimant merely had to pay the agreed fare to leave. The Court held that the defendant had defined the place that the claimant had to stay between the hours of 11pm and 7am. The claimant did not voluntarily comply with curfew, and instead the restrictions were forced on him with electronic monitoring and threats of punishments in the event of a breach. Lady Hale commented that ‘all of this was backed up by the full authority of the State, which was claiming to have the power to do this. The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.; The Supreme Court therefore dismissed the appeal, holding that the home detention and curfew amounted to false imprisonment. In doing so, it referred to the 2007 House of Lords decision in Secretary of State for the Home Department v JJ [2007] which commented that a curfew enforced by electronic tagging, clocking in and clocking out, and arrest or imprisonment for breach was a ‘classic detention or confinement’.
DEFAMATION
Bent v Platnick 2020 SCC 23
Mrs Bent was a lawyer who had been elected as president of the Ontario Trial Lawyers Association (OTLA), whose members represented people hurt in car accidents. Dr. Platnick was a doctor. He was hired by insurance companies to look at reports written by other medical professionals. He would write final reports giving medical opinions on how badly people were hurt. In 2014, Ms. Bent sent an email to the OLTA mailing list. She said that Dr. Platnick had misrepresented and changed other doctors’ reports to make her clients’ injuries look less serious. This meant the people who were hurt would get fewer insurance benefits. This email was shared to an insurance industry magazine, which published the email in full.
Dr. Platnick claimed Ms. Bent was wrong. He explained that in one case he clearly made his own conclusions based on information from other doctors who did not know Ontario’s accident benefits law. In another case, a doctor made a mistake in a report and later fixed it. He decided to sue Ms. Bent and her law firm for defamation asking for over $16 million CAD in damages and lost income.
Ms. Bent argued that this was a ‘strategic lawsuit against public participation’, or SLAPP. In Canada, SLAPPs are lawsuits used to stop people from speaking out on something that is important to the public. Ontario has a law to stop SLAPPs before they go to trial. The motion judge agreed with Ms. Bent that the defamation suit was a SLAPP and should be stopped. The Court of Appeal, however, argued it was not a SLAPP and could proceed.
The majority of the Supreme Court of Canada agreed with the Court of Appeal and allowed the trial to go forward. Additionally, the Court agreed that Dr. Platnick had shown the necessary elements for establishing that a trial should proceed. In particular, the Supreme Court held that the motion judge had made mistakes applying the law on SLAPPs, about defamation law itself, and about the evidence. The Supreme Court believed Dr. Platnick would have a likely chance of winning because Ms. Bent’s email was sent to 670 OLTA members and spoke of Dr. Platnick by name. Additionally, Dr. Platnick could evidence that he lost c.$600,000 CAD in income from the damage to his reputation and that he may not have changed the doctor’s report.
Further, the Court outlined weaknesses in Ms. Bent’s case, including that her accusations were not necessarily true and that her comments were not necessary because she did not have to mention Dr. Platnick by name. Even if Ms. Bent thought the email list was confidential, she spoke to the magazine about the incident and let them publish it. The Court therefore agreed that the harm to Dr. Platnick was, in this instance, more important to the public than protecting Ms. Bent’s freedom of expression.
PRIVACY
Fearn and others v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104
The residents of Neo Bankside apartments brought a claim in nuisance and under the Human Rights Act 1998 for protection of their ‘rights of privacy’. Their living areas are extensively glassed and look directly onto the new extension of the Tate Modern viewing gallery. The people on the viewing gallery could therefore see directly into their windows, and this was a breach of their privacy. The residents sought an injunction for the closure of the viewing gallery.
Mann J held that the tort of nuisance could be used to protect privacy rights, but further stated that ‘whether anything is an invasion of privacy depends on whether, and to what extent, there is a legitimate expectation of privacy. That inquiry is likely to be closely related to the sort of inquiry that has to take place in a nuisance case into whether a landowner’s use of land is, in all the circumstances and having regard to the locality, unreasonable to the extent of being a nuisance.’
After reviewing the specific facts of the case, Mann J held that the owners did not have a reasonable expectation of privacy, and therefore there was no cause of action in nuisance or under the Human Rights Act 1998. The judge noted that the residents of the apartments were able to undertake a range of protective measures, including installing solar blinds, privacy films or net curtains, or even placing plants in the windows. His Honour stated that the flat owners ‘could choose to leave his or her view open, with the concomitant ability for outsiders to look in, or the owner could adopt remedial measures’.
The residents appealed the decision to the Court of Appeal, and it was dismissed. The Court of Appeal, however, disagreed with the approach taken by Mann J, and held that the tort of nuisance cannot, in the absence of statute, protect invasions of privacy. The privacy right in this case was the ‘overlooking’ by the visitors of the Tate Gallery into the residents’ living space. The Court commented that:
Unlike such annoyances as noise, dirt, fumes, noxious smells and vibrations emanating from neighbouring land, it would be difficult, in the case of overlooking, to apply the objective test in nuisance for determining whether there has been a material interference with the amenity value of the affected land. While the viewing of the claimants’ land by thousands of people from the Tate’s viewing gallery may be thought to be a clear case of nuisance at one end of the spectrum, overlooking on a much smaller scale may be just as objectively annoying to owners and occupiers of overlooked properties. The construction of a balcony overlooking a neighbour’s garden which results in a complete or substantial lack of privacy for all or part of the garden, with particular significance in the summer months, and which may even diminish the marketability or value of the overlooked property, would appear to satisfy the objective test. There would also be a question whether, in such a case, it makes any difference if there was more than one balcony or more than one family using the balcony or balconies. It is difficult to envisage any clear legal guidance as to where the line would be drawn between what is legal and what is not, depending on the number of people and frequency of overlooking.
The judges therefore held that any protection from overlooking is better dealt with by planning laws and regulations, as opposed to an extension of the common law of private nuisance.
Whilst this decision does not completely overrule the ability for nuisance to provide some level of protection against invasions of privacy, it is a strong indication that this cause of action will not be used to protect privacy rights in and of themselves without evidence of inference with other protected rights. As the common law does not provide a complete protection of privacy, it now must be considered what additional statutory safeguards exist.
ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329
The claimants were two companies and a senior executive. Five employees of the companies had previously made serious allegations against the executive. After receiving independent legal advice, the complainants were given substantial payments under settlement agreements. All of these settlements included a non-disclosure agreement to keep the relevant information confidential. A journalist from the defendant media group contacted the claimants to obtain their comments on a story about the complainants’ allegations, the settlement and the non-disclosure agreements. The claimants believed that confidential information had been disclosed, and commenced proceedings preventing the publication of the information, arguing that it was a breach of confidence.
The trial judge refused to grant an interim injunction on the grounds that (a) the information was reasonably credible, (b) there could be little or no reasonable expectation of confidentiality or privacy in respect of the information, (c) a considerable amount of information was already in the public domain, (d) it had not been demonstrated that the information had been obtained in breach of the non-disclosure agreements, and (e) publication of the information was in the public interest. The claimants appealed the refusal of an injunction.
The Court of Appeal allowed the appeal and ordered an interim injunction. It held that there was a real prospect that the publication would cause immediate, substantial and potentially irreversible harm to the claimants. The fact that the complainants had entered into settlements which included non-disclosure agreements could be used to support the claim that there was a reasonable expectation of privacy. Sir Terence Etherton MR, Underhill V-P LJ and Henderson LJ gave a joint decision, commenting that:
The weight which should be attached to an obligation of confidence may be enhanced if the obligation is contained in an express contractual agreement. One type of situation where this consideration is likely to have a significant influence on the balancing exercise which the court has to perform is where the obligation in question is contained in an agreement to compromise, or avoid the need for, litigation, whether actual or threatened. Provided that the agreement is freely entered into, without improper pressure or any other vitiating factor, and with the benefit (where appropriate) of independent legal advice, and (again, where appropriate) with due allowance for disclosure of any wrongdoing to the police or appropriate regulatory or statutory body, the public policy reasons in favour of upholding the obligation are likely to tell with particular force, and may well outweigh the article 10 rights of the party who wishes to publish the confidential information.
Contractual agreements can therefore be evidence of a party’s reasonable expectations of privacy, although this is not absolute. It will only form part of the balancing exercise conducted by the court, and it will have to be shown that the agreement was freely entered into without any improper pressure and with access to independent legal advice.
Richard v BBC [2018] 3 WLR 1715
In 2014, the South Yorkshire Police commenced an investigation of Sir Cliff Richard in relation to allegations of a historic sex offence. This resulted in a search of Sir Cliff’s residence. The BBC became aware of the investigation and search, giving it prominent and extensive television coverage both in real time and after the event. This included filming into his home from both the ground and by helicopter, and taking photographs of the officers searching the apartment. No changes were laid, and the investigation was dropped in 2016.
Sir Cliff commenced an action for damages against the BBC. He claimed that the broadcasting of the police search of his residence had breached his right to privacy under Article 8 of Schedule 1 to the HRA 1998. Mann J held that there had been an infringement and that Sir Cliff was entitled to damages, awarding £190,000 compensation damages and £20,000 exemplary damages. When determining an appropriate level of compensation, Mann J commented that
Awards of damages are not to be such as to have a chilling effect on the right of freedom of expression. I do not consider that an award of that amount should have a chilling effect of the kind which is to be avoided. A claimant is entitled to proper compensatory damages and the figure I have specified is a proper figure for that purpose. I do not consider that it requires any modification on the footing that such figures would have a chilling effect on the exercise of a newspaper’s right of freedom of expression. It is not an excessive figure; there is no punitive element; it is a genuine compensatory figure; the reason that the story existed as a story was because information was acquired in breach of a right of privacy in the first place, and then confirmed by less than straightforward means by the BBC’s reported; and it was entirely the decision of the BBC to present the story at all, and then to present it as it did. One of the main motivations of the BBC was the excitement of its scoop. None of that requires any modification of damages otherwise properly payable to Sir Cliff on the basis that responsible journalism would be disincentivised.
This case highlights that the balancing of competing rights enshrined in Article 8 with those in Article 10 and 12 is therefore relevant for both the finding of a breach of confidence and also when determining an appropriate remedy for any breach that occurs.
VICARIOUS LIABILITY
Armes v Nottinghamshire CC [2017] UKSC 60
The appellant, who had been physically and sexually abused by her foster parents, claimed that the local authority should be vicariously liable for the actions of her foster parents. There was no argument in this appeal that the authority had been negligent in its selection of her foster parents. The Supreme Court held the local authority vicariously liable for the activities of those foster parents. The Court considered that the principles outlined in Cox v Ministry of Justice pointed towards the imposition of vicarious liability on the local authority for the torts committed by the foster parents. Specifically, this was because they committed the relevant torts in the course of an activity carried on for the benefit of the local authority, and because the local authority exercised a significant degree of control over how the foster parents carried out their responsibilities. The Court also considered it to be material that most foster parents would have insufficient means to be able to meet a substantial award of damages, and that local authorities would more likely be able to compensate the victims of abuse.
Barclays Bank Plc v Various Claimants [2020] UKSC 13
The defendant bank appealed against a finding of vicarious liability in relation to alleged sexual assaults perpetrated by a doctor who carried out medical examinations on its prospective employees over a number of years. The bank directed its candidates to the doctor, provided the form on which the results of the examinations were to be recorded, and paid a fee for each procedure carried out. There was no retainer paid and the examinations were carried out on the doctor’s private premises. The bank’s argument was simply that, despite the recent perceived expansion of vicarious liability in recent years, it remains the case that employers are not vicariously liable for wrongs committed by independent contractors. The claimants, by contrast, argued that the policy factors outlined by the Supreme Court in recent cases (CCWS, Cox and Armes) had generated a more nuanced approach to the question, which approximated more closely to an inquiry into whether it was fair, just and reasonable to impose vicarious liability on a given set of facts.
In allowing the defendant’s appeal, the Supreme Court stated that the essential legal distinction for the purposes of vicarious liability remains one between those wrongdoers who are acting in the furtherance of their own business, and those whose actions are integral to another’s business. The Court went on to clarify that it would only be necessary to consider the five policy considerations outlined in CCWS in borderline cases in which the distinction between an employee and an independent contractor was not clear. On the facts of this case, it was clear that the doctor had been acting in the furtherance of his own business, and was not in a relationship with the defendant bank that was either one of employment or one ‘sufficiently akin’ to employment for vicarious liability to be imposed.
WM Morrison Supermarkets Plc v Various Claimants [2020] UKSC 12
In this case, the defendant employer appealed against a finding that it was vicariously liable to its employees in respect of the disclosure of their personal information by a former employee, who had worked for the employer as an internal IT auditor. Whilst in that position, he took and copied the personal data of a large number of employees and uploaded it to a publicly accessible file-sharing website. As a result, he was convicted of various criminal offences. The employees whose data he had shared claimed damages from the employer for misuse of private information, breach of confidence, and breach of statutory duty under the Data Protection Act 1998, s 4(4).
In allowing the defendant’s appeal, the Supreme Court closely analysed the reasoning of Lord Toulson in Mohamud. In particular, it paid close attention to his references to the connection between the employee’s conduct and his employment, which the lower courts in this case appeared to have regarded as referring to an unbroken temporal or causal chain of events, and his Lordship’s statement that the employee’s motive was irrelevant. Were such an interpretation to be correct, Mohamud would have effected a major change in the law. In the view of the Supreme Court, this was not the consequence of Mohamud: the general principle, as set out in Dubai Aluminium Co Ltd v Salaam [2002] remained definitive: the wrongful conduct had to be so closely connected with acts the employee was authorised to do that, for the purposes of the liability of the employer to third parties, it might fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment. In this way, Lord Toulson’s comments that there was an ‘unbroken sequence of events’ and ‘a seamless episode’ did not refer to the temporal or causal connection between employment and action, but between the capacity in which the employee was acting and the events which took place. His statement that motive was irrelevant should not be read in isolation, and he was saying that the reason for the employee’s actions in that case could not make a material difference.
On the facts of this particular case, the disclosure of employee data was not deemed to form part of the employee’s functions or field of activities. The Supreme Court also reiterated that the five policy factors in CCWS were not relevant considerations here, since they were concerned with the distinct question of whether the relationship between the wrongdoer and the defendant was sufficiently akin to employment to engage vicarious liability. By contrast, the question in the instant case was whether there was a sufficient connection between the relationship and the wrongdoing. Finally, although there was a close temporal link and an unbroken chain of causation between the employee being given the data and his disclosing of it on the internet, this did not in itself satisfy the close connection test: rather, that test required a consideration of whether the substance and nature of the employee’s position was connected with the wrong he committed. In answering this question, the employee’s motive was not irrelevant: whether he was acting on his employer’s business or for purely personal reasons was highly material. When he disclosed the data, the employee in question was pursuing a personal vendetta and not acting in the furtherance of his employer’s business. As such, it was not so closely connected with acts which he was authorised to do that it could fairly and properly be regarded as done by him while acting in the ordinary course of his employment.
DEFENCES
Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43
The claimant was suffering from paranoid schizophrenia and had a long history of mental health difficulties. From 2003 she had various formal and informal hospital admissions. In 2010 her condition worsened, and while experiencing a particularly severe psychotic episode she stabbed her mother to death. During the episode, the claimant was under the care of the defendant and there were a number of failings in the care and treatment that was provided. It was admitted by the defendant that the killing of the claimant’s mother was preventable, and if it had provided adequate treatment, the incident probably would not have occurred.
The claimant was charged with the murder of her mother, and the prosecution accepted a plea of manslaughter by reason of diminished responsibility. She was detained under a hospital order and will not be released for a significant period of time. The defendant admitted liability and consented to judgment being entered, with damages to be assessed. The damages claimed were under six heads:
1)General damages for personal injury (a depressive disorder and PTSD);
2)General damages for loss of liberty caused by her compulsory detention;
3)General damages for loss of amenity arising from the consequences of having killed her mother;
4)The sum of £61,944, being the share of her mother’s estate;
5)The cost of psychotherapy; and
6)The cost of a care manager /support worker.
The defendant submitted that the entirety of the claim should be defeated on illegality or public policy grounds. The claimant argued that, despite the factual similarities with Clunis, this case did not survive the Supreme Court’s discretionary approach laid down in Patel v Mirza. Jay J dismissed the claim entirely on the basis that he was bound by the decisions in Gray and Clunis.
The claimant appealed to the Court of Appeal, which stated that ‘the Clunis and the Gray cases are binding authority that [the] claim for damages is barred on the ground of public policy unless the Clunis case has been overruled and the Supreme Court [in Patel v Mirza] decided to depart from its previous decision in the Gray case in a material respect’. The question before the Court of Appeal was whether the Gray and Clunis cases survived the judgment of the Supreme Court in Patel v Mirza. After considering all three cases, it was held that both cases remain binding and the entirety of the claim was dismissed on the grounds of illegality.
The case was then appealed to the Supreme Court. There were three principal issues considered in the appeal: (1) whether Gray could be distinguished, (2) whether Gray should be departed from and Clunis overruled, and (3) whether all heads of loss claimed were irrevocable.
On the first point, the appellant argued that there was a lower degree of personal responsibility in the current case when compared with that of Gray. This was unsuccessful and the Supreme Court held that Gray could not be distinguished as it ‘involved the same offence, the same sentence and the reasoning … applies regardless of the degree of personal responsibility for the offending’.
On the second point, the Supreme Court considered three separate arguments: (a) that the reasoning in Gray could not stand with the approach to illegality adopted in Patel, (b) that Gray should be held not to apply where the claimant has no significant personal responsibility for the criminal act and/or there was no penal sentence imposed, and (c) the application of the ‘trio of considerations’ approach in Patel leads to a different outcome. The Supreme Court rejected these three approaches, again emphasising the similarities of the current case with Gray and the fact that the appellant was convicted of the serious offence of culpable homicide. The Supreme Court emphasised that the wrongdoing by the appellant was ‘heightened’ due to the fact that NHS funding is of significant public interest and importance. Taking funds from the NHS budget to compensate someone for the consequences of her criminal conviction for unlawful killing would go strongly against the public confidence. The Court also confirmed that there was no conflict between Gray and Patel, and the public policy-based rules in the former case are ‘Patel compliant’ thus should be applied and followed in comparable cases.
On the final point, the Supreme Court held that all heads of loss claimed are irrevocable. The damages for loss of liberty and loss of amenity during the appellant’s detention were barred by the narrower rule. The other heads of loss were barred by the wider rule as they were expressly consequences of the appellant killing her mother.
Stoffel & Co v Grondona [2020] UKSC 42
Ms Grondona agreed to use her good credit history to raise capital for Mr Mitchell which he would not otherwise have been able to obtain. In return, Ms Grondona was to receive 50% of any profit on any subsequent sale of the property. In order to secure the mortgage advance, Ms Grondona made a number of fraudulent misrepresentations.
Stoffel & Co, a solicitors firm, were retained by Ms Grondona, Mr Mitchell and the mortgagee (Birmingham Midshires) to act on the transaction. The Solicitors negligently failed to register the transfer and charge, leaving Mr Mitchell as the registered owner, and Birmingham Midshires without a charge on the property. When Ms Grondona defaulted on the repayments, Birmingham Midshires obtained a judgment against her for £78,000 (the value of the unencumbered property). Ms Grondona sought damages from the Solicitors.
Defending the claim, the Solicitors argued that the purpose of the transaction was illegal, in that it was a conspiracy to obtain finance for Mr Mitchell by misrepresentation. The trial judge applied the reliance test and held that the illegality defence did not apply. Applying the recently-decided Patel v Mizra ‘range of factors’ test, the Court of Appeal also held the illegality defence did not bar Ms Grondona’s claim. The Solicitors appealed to the Supreme Court on the ground that the Court of Appeal had erred fundamentally in its application of the Patel v Mizra guidelines.
The Supreme Court dismissed the appeal and held that Ms Grondona’s fraudulent conduct should not bar her negligence claim against the Solicitors. In so doing, the Supreme Court balanced competing policy considerations as considered in Patel v Mizra. The Supreme Court doubted that permitting a civil remedy against a negligent solicitor would undermine the criminalisation of mortgage fraud to any significant extent, as the risk of being left without a civil remedy was unlikely to feature in the thinking of the fraudster. Refusal of relief would not therefore enhance the deterrent effect of the prohibition against mortgage fraud.
Conversely, the Supreme Court deemed there to be an important countervailing policy that conveyancing solicitors should perform their duties to their clients diligently and without negligence and that clients should be entitled to recover their loss in the event of negligent breach. To allow the Solicitors to escape liability for negligence would run entirely counter to this policy. The Supreme Court considered that there was more chance of mortgage fraud being prevented if the defence failed and if solicitors appreciated that they should question any potential irregularities in a transaction.
Central to the Court’s decision was the need to avoid inconsistency which would be damaging to the integrity of the legal system. As the law allowed an equitable interest in the property to pass to Ms Grondona despite the illegality of the transfer, there would be an incoherent contradiction in refusing, on the grounds of the same illegality, to allow the claim against the Solicitors for failing to protect that equitable interest. In addition, the Supreme Court concluded that denying the claim would be disproportionate due to the lack of centrality of the illegal conduct to the breach of duty by the Solicitors.
DAMAGES
Whittington Hospital NHS Trust v XX [2020] UKSC 14
The claimant became infertile due to the defendant’s negligence. The NHS Trust had not detected signs of cancer form the claimant’s cervical screening tests in 2008 and 2012. When the cancer was detected in 2013, it was so advanced that the treatment made the claimant, who was 29 at the time, infertile. She was able to collect and freeze some eggs prior to her treatment, and it was probable – with the use of surrogacy – that she would be able to have two children with her own eggs. Commercial surrogacy is illegal in the UK, but occurs in a number of other jurisdictions, including California. The claimant and her partner always wanted four children, so she claimed damages for the cost of two further children through commercial surrogacy in California with donor eggs. The NHS argued that this cost should not be awarded as it was against public policy.
The Supreme Court held that the claimant was entitled to damages for physical injury of surgery and chemotherapy, long-term disabilities and psychiatric injury, as well as the complete loss of fertility. The claimant was also entitled to damages for the cost of surrogacy arrangements using her own eggs and the cost of using donor eggs. The majority of the Supreme Court held that the claimant was also entitled to the cost of international commercial surrogacy.
Lady Hale started her judgment by stating that:
The object of damages in tort is to put the claimant, as far as possible, back in the position in which she would have been had the tort not been committed. Money has to compensate, as far as it can, for those injuries that cannot be cured. For some women, the ability to bear and to rear children is a vital part of their identity. What then should be the measure of damages for a woman who had been wrongfully deprived of the ability to bear children herself? Along with general damages for pain, suffering and loss of amenity, should it include the cost of making surrogacy arrangements with another woman to bear a child for her to bring up? In particular, should it include the cost of making commercial surrogacy arrangements abroad?
After considering the relevant legal issues, her Ladyship commented that ‘attitudes to commercial surrogacy had changed… perceptions of the family had also changed and using donor eggs could now be regarded as restorative’? and ‘the courts have bent over backwards to recognise the relationships created by surrogacy, including foreign commercial surrogacy. The government now supports surrogacy as a valid way of creating family relationships.’
This case is a useful example of how complicated the assessment of tort law damages can become. The aim of tort law is to put the person into the position they would have been in had the tort not been committed against them. The court was therefore required to find a monetary equivalent to the claimant’s infertility and inability to have her own family, which raised complicated issues of public policy, family relationships and restorative justice.
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