Ken Oliphant

Tort law in the jurisprudence of the European Court of Human Rights

The goal of this study is to provide a general overview and thorough analysis of how the European Court of Human Rights (ECtHR) deals with tort law issues such as damage, causation, wrongfulness, fault and compensation - namely when applying Art. 41 of the European Convention on Human Rights (ECHR). Methodological approaches to the tort law of the ECHR as well as the perspectives of human rights and tort law and public international law are also addressed.

Occupier’s Liability

This chapter is concerned with the liability of an occupier of premises for injury caused or damage done to persons or their property whilst on the premises. The law in this area is now statutory and is governed by the 1957 and 1984 Occupiers’ Liability Acts. This chapter does not deal with the situation where things done on the occupiers’ premises affect other premises; this is the province of the law of ‘nuisance’ and Rylands v. Fletcher (1868) L.R. 3 H.L. 330 (see Chapters 19 and 20). The 1957 and 1984 Acts replaced a somewhat complex regime of common law, distinct from that developed from Donoghue v. Stevenson under which an occupier owed different standards of duty depending on the status of the person who came on to his land. Those entering under a contract were owed the highest duty, while progressively lower duties were owed to those entrants the law classified as invitees, licencees or trespassers. The position today is that the Occupiers’ Liability Act 1957 governs liability to lawful visitors and the 1984 Act governs the duty owed to those entrants loosely referred to as ‘trespassers’. In the first part of this chapter we will look at the Occupiers’ Liability Act 1957.

European Tort Law 2010

The Social Action, Responsibility and Heroism Act 2015 received the Royal Assent on 16 February 2015.1 Its purpose is set out in its Introduction, which describes it as ‘[a]n Act to make provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty.’ Lying behind this is a belief that the current law discourages benevolent interventions for the benefit of others. The ulterior objective is to correct this misperception and to reassure volunteers, etc, about their potential liabilities. As the Government minister (Lord Faulks) put it when introducing the Bill’s second reading in the House of Lords: ‘Its core aim is to provide reassurance to people who act in socially beneficial ways, behave in a generally responsible manner, or act selflessly to protect someone in danger by ensuring that the courts recognise their actions and always take that context into account in the event that something goes wrong and they are sued.’2 The Act explicitly formed part of the then Coalition government’s wider programme of measures to tackle what it saw as unjustified and dubious claims and to reduce fears of litigation.3 The Act’s scope of application is prescribed in sec 1: ‘This Act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care.’ In the standard taxonomy of duty, breach and causation, the Act addresses the question of breach of duty, which entails a comparison of the defendant’s conduct in causing the injury with the conduct that would be expected of the reasonable person. The Act’s key concepts are: (1) ‘Social Action’: ‘when the person was acting for the benefit of society or any of its members’ (sec 2); (2) ‘Responsibility’: ‘de-

Aggregation and Divisibility of Damage

Whether the harm for which compensation is sought in an action in tort is regarded as a single indivisible loss or a plurality of losses can have a number of important ramifications for the law of tort, for example, in considering compensable damage, the apportionment of responsibility between multiple tortfeasors, and the application of limitation periods and (where they exist) caps and thresholds. These issues may have particular significance in the context of mass torts, and raise questions of private international law and civil procedure as well as substantive tort law. They are also of considerable practical importance for insurers. In this comparative study, country reports from twelve legal systems and special reports on private international law and insurance provide an insight into the interaction of tort law, civil procedure, and insurance in this hitherto largely neglected area of legal science.

The Nature and Assessment of Damages

The main purpose of damages in EC Tort Law is compensation, though it is recognised that they also serve a variety of other functions, including acting as a deterrent,1 or as a sanction2 or penalty.3 These other functions may be undermined if the amount of compensation is artificially limited or subject to undue off-sets.4 Damages may also serve as nominal recognition that a person’s rights have been infringed,5 and, in appropriate circumstances, nominal rather than compensatory damages may be awarded. Whether and in what circumstances exemplary or punitive damages may be awarded is considered further below.

Landmarks of No-Fault in the Common Law

My starting point is an observation of the great Canadian judge and jurist, Justice Allen Linden, a longstanding enthusiast of no-fault compensation. “[N]o-fault,” he wrote, “means different things to different people.”1 It is, in fact, a term applied to a variety of alternatives to compensation by way of traditional, private law processes, not a unitary phenomenon. A major theme of this paper is that the shape no-fault has taken in different contexts has been dependent upon the social problem it was designed to solve. Yet it is still possible to find enough commonality in the different schemes that have emerged to make no-fault in the common law a worthy subject of study in its own right.

The Rule in Rylands v. Fletcher

Rylands v. Fletcher (1866) LR 1 Exch 265, (1868) LR 3 HL 330 lays down a rule of strict liability for harm caused by escapes from land applied to exceptionally hazardous purposes. Although historically it seems to have been an offshoot of the law of nuisance, it is sometimes said to differ from nuisance in that its concern is with escapes from land rather than interference with land. Accordingly, some authorities hold that there is no requirement — like that in the tort of nuisance — that the plaintiff be the owner or occupier of the land affected by the escape, though the point is far from uncontroversial (see 19.4). If this is so, the rule in Rylands v. Fletcher may be thought to have a role in protecting not just interests in real property but also interests in the person and in personal property. But its possible development into a general principle of strict liability for ultrahazardous activities has been obstructed by a number of limitations on its scope, notably the requirement of escape.

Remoteness of Damage

In order to recover damages in respect of injury caused by another’s negligence, you must establish that injury of that type was a foreseeable consequence of the negligence. This rule was laid down by the Privy Council in the case Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co Ltd, The Wagon Mound [1961] AC 388; although the English courts were not in strict law bound by the decision, it was nevertheless reasonably foreseeable that they would accept the principle, as one contemporary commentator wryly predicted (Goodhart, 1966). The rule is one of a number of mechanisms by which the law limits liability for the consequences of one’s negligence; most notable among the others are the principles concerning selection from among causally relevant factors and those concerning the existence and scope of the duty of care.

Breach of Statutory Duty

Each year Parliament enacts a substantial number of statutes which impose duties on public bodies, private individuals and others. Some of these statutes specifically create a detailed scheme of civil liability of a tortious nature. The Occupiers’ Liability Acts of 1957 and 1984, the Animals Act of 1971 and the Consumer Protection Act of 1987 are all examples. Claims brought under these statutes are often described as actions for breach of statutory duty. Whilst there is nothing inherently wrong with this description, claims under these statutes do not create any of the problems normally associated with the tort of breach of statutory duty. The creation of an express tortious action in these cases is clear and the person who has suffered loss has his remedy in the statute.

VII. England and Wales

In 2006, the claimants acquired a house in the vicinity of the defendant’s speedway racing stadium, which had been constructed following the grant of planning permission in 1975 and used for speedway racing and similar pursuits for most of the intervening period. The claimants alleged that the noise from the racing constituted an unreasonable interference with the use and enjoyment of their land and was thus actionable in the tort of private nuisance. They issued proceedings in which they sought damages for the interference they had suffered to date and an injunction to regulate the use of the stadium for speedway racing in the future. Following hearings in the High Court and Court of Appeal, the case was brought to the Supreme Court.