Seminar 2: Psychiatric Illness SUMMARY- Law generally looked upon per sonal injury claims more favourably than psychiatric claims - Idea being that we’re expected to deal with a certain amount of distress in life- This imbalance was somewhat addressed in McLoughlin where a woman who wasn’t ‘directly involved’ as such was allowed to claim for psychiatric injury. Some requirements are imposed to keep claims down though. Namely proximity of relationship and proximity of time and space. - This is taken further inAlcockwhere there’s a distinction drawn, with regards to psychiatric injury suffered, between primary and secondary victims. - Primary Victims– (Per Alcock, those involved mediately o r immediately and includes rescuers. Changed in White to those in the zone of foreseeable danger) - Secondary victims– claims subject to stricter conditions oProximity of relationship (burden on C . Some relationships would have this assumed. E.g. parent-child, spouses) oProximity of time and space (witness event or immediate aftermath– e.g. mcloughlin) oExperience the event ‘unaided’; i.e. with your own senses (not on TV or through a TP. E.g. McLoughlin she saw them before they were cleaned up. In Alcock, a claim by someone who saw the primary victim in a morgue a few hours later, cleaned up as well, failed) o“Shock” (can’t be a gradual onset)- Definition of primary victim refined in White. Becomes ‘zone of foreseeable danger’ (note the concern to avoid differential treatment between police and bereaved relatives. - The definition of primary victims may not be settled though oW v Essex–class of primary victims isn’t closedoRe Organ– Parents treated as primary victims Analogy with doctor-patient relationship The need to have some primary victim - There is a further category of prima ry victim. This may be described as ‘being an unwitting instrument of another’s negligence’. It applies in situations where C believes he has caused another’s death or injury. This can only succeed if C was actually present when the death or injury occurred. E.g. in Hunter, the owner of the mine was negligent in not having the minimum safety clearance distance in the mine. C a driver struck a hydrant and when he was away ge tting helped, someone else was killed by an explosion from the hydrant causing C to have a psychiatric injury.
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- Also, it seems that with regards to psychiatric injury for primary victims, only some physical
harm needs to be foreseeable. (see Page v Smith)
- But note how this was not followed in Grieves (RothwellI)
o Risk of physical harm wasn’t immediate
o Intervening event (medical report)
- Also, where the primary victim is the negligent defendant, he is not liable for any psychiatric
injury suffered by secondary victims (Greatorex v Greatorex )
Employees
- As White makes clear, there is no special protection for Employees as secondary victims
- However, as stated in Hatton/Barber (CA) and confirmed by Barber (HL), where an employee has
suffered PI from stress at work, it is not necessary to show that the employee was within the
primary/secondary requirements to establish a DoC.
-Rather, it needs to be shown that the PI was reasonably foreseeable for the specific employee.And without more, employers were entitled to assume employees could deal with everyday
stresses. (Note how they seemingly had ‘notice’ in Barber (HL))
- In Hartman the CA say that even though there may be some superficial difference between the
language used by HL and CA in the Barber cases, that difference isn’t important.
- The basic principles are still whether the PI was foreseeable because if it was, a DoC arises and
the focus has to be on whether the employer has breached that duty. (So this is the basic
importance of Hartman confirming Hatton and stuff)
- One of the Hartman cases is Melville which is particularly important as it shows that the division
between the primary/secondary classification and the employee stress at work cases isn’t a neat
division.
o Note the distributive justice point
Prisoners
- It is clear from the nature of the relationship that prisons owe prisoners a duty of care to ensure
their health and safety. The question is then whether D knew or ought to have known that C
was a prisoner vulnerable to psychiatric harm, taking account of inevitable constraints imposed
by what was reasonably practicable In a prison community.
-The law doesn’t like claims for PEL (Spartan Steel )
o We specifically try to cause economic loss often
o Idea of what we should bear
o Burden sharing theory
o There might be ‘unlimited liability’
- Broadly, there are 4 categories we see PEL
1. ‘relational’ economic loss (economic loss caused by damage to property of another party – e.g.
Spartan Steel
General rule against liability
2.
Economic loss caused by acquiring a product that turns out to be defective (Murphy )
Generally, there’s no liability but note the room for argument in murphy
With regards to latent/patent distinction, note Targett v Torfaen Borough Council [1992]
3 All ER 27
3. Economic loss caused by reliance on negligent misstatement (Hedley Byrne)
4. ‘Extended’ Hedley Byrne Liability (Cases after hb)
- With regards to category 3, we see in HB this idea of:
o
A voluntary assumption of responsibility (making a statement knowing it will be reliedon)
o Reasonable reliance on the statement
- In Smith v Bush, this idea seems to be distorted and a new test is suggested to fit the facts
- This essentially becomes the 3-stage Caparo test
o Foreseeability (harm)
o Proximity (relationship)
o FJR (liability)
-In later cases however, we see a resurgence of this ‘assumption of responsibility’ idea (seeespecially Lord Bridge in Spring, Henderson and White). Nonetheless, it is now clear that the
assumption is not voluntary, but objective (see especially William)
- There was thus a conflict then in the test for a DoC in relation to economic loss which had to be
resolved. The CA wrestled with the difficulty, saying that they were alternative tests which
- You typically have a breach of duty where D has been negligent. Per Blyth v Birmingham
Waterworks negligence is doing something a RP person wouldn’t or not doing something a
reasonable person would.
- When we talk about the RP here, we mean it is judged from an objective standard (Nettleship v
Weston) taking into account the context (Wooldrige v Summer, Blake v Galloway ), and without
the benefit of hindsight (Roe v Minister of Health)
- However, certain characteristics of the particular D can be taken into account. Notably:
o Age, especially young age (Mullins v Richards)
o
Profession (Phillips)
o Disability (Weetabix )
- When considering the factors a RP would take into account, there are 4 main things we look at
o Likelihood of harm occurring (Bolton v Stone, The Wagon Mound (no 2), Whippey v
Jones)
o Gravity of the harm (Paris)
o Cost and practicability of precautions (Latimer v AEC )
o Purpose (so socially desirable purposes will have a lower standard of duty owed to C –
Watt; nb. Compensation Act 2006 s1)
- Note also the specific issues regarding breach of duty concerning professionals
o
Bolam and Bolitho
- Also take note of the learned hand formula
SUMMARY
- Starting point is ‘but for’ causation (Barnett )
- There is an exception where D was responsible for a material contribution to the damage
(Bonnington)
- There is a further exception where D is responsible for a material increase in risk of damage
(Barker but also important are the cases leading up to Barker )
o
McGhee – material increase in risk of damage was sufficient for liabilityo Wilsher – material increase of risk was not sufficient. McGhee reinterpreted
o Fairchild – Essentially follows McGhee and says that a material increase in risk of
damage was sufficient and while they reject the Wilsher analysis, they approve the
result
- Barker – resolves the tension between Fairchild and Mcghee somewhat
- Illegality (some dispute as to whether it’s a defence)
Consent
- Easiest way is to see if there’s some express consent. Consent to the risk is not the same as
knowledge of the risk (Woodley v metropolitan district railway )
- Where the consent is not express, courts have indicated there are 2 main situations in which it
can be inferred (Dann)
o Implied consent to the risk; (more) objective standard (Shatwell )
o Deciding to enter an obviously dangerous situation (Morris)
Subjective test (Morris and Corr )
Also in situations witch large groups, particularly sporting events, it might make
more sense to lower the standard of care rather than enquiring into the
individual’s state of mind (Wooldridge)
Contributory negligence
- Covered by the Law Reform (Contributory Negligence) Act 1945
o S1 – explains the workings
o S4 – defines fault (essentially uses breach of duty analysis)
o Pre-1945, contributory negligence was a complete defence. This was somewhat
mitigated by the ‘last opportunity’ doctrine.
- So first to work, both parties actually have to have contributed.
o Fault essentially uses a breach of duty analysis (E.g. in Gough, it was reasonable for the
girl to rely on the directions of the lorry driver and thus, she didn’t contribute) o Also, with regards to ‘contributed’, there is a different concept of causation. You look at
whether C’s act has been relegated to history and if so, there’s no causation ( Jones)
- And the court then makes an award that is ‘fair and just’
o E.g. if one part is ‘more careless’ than the other, the award is adjusted to reflect that
- The problem with contributory negligence is deciding how responsible each party is. Denning
suggests some guidelines in Froom but they aren’t really followed so really it’s up to the judge.
Illegality (4 theories on it)
- It is unfair to allow an illegality defence where C would otherwise be entitled to compensation
at law (Revill )
o It is likely that this now isn’t going to be persuasive because it takes this view that
illegality is irrelevant to tort liability and does so for reasons no one’s found convincing.
In particular, this emphasis on OLA 84. i.e. because trespassers can claim, parliament
wanted liability towards criminals.
o It’s possible to have trespassers who lack the mens rea to be criminals.
- Illegality comes in at the stage of deciding whether a DoC exists as something to be considered
under stage 3 of the Caparo test (Only taken by Sedley LJ in Vellino and not really pursued since)
- Illegality alters the standard of care C is entitled to expect (Pitts v Hunt )
- There is an illegality defence (Majority in Vellino. Gray v Thames Trains: note the broad and
narrow interpretations)
Illegality problem question
- Start with Gray and apply the narrow and broad interpretation.
o Narrow: C shouldn't be allowed to recover for the consequences of a criminal sanction
o Broad: C can’t claim where the illegality caused the damage.
- Note also how though speeches in Gray suggest this is the extent of the defence; it must surely
still be the case that you cannot recover damages when you are relying on your own illegality to
do so.
-Note also Hoffman in Gray and the possible need to distinguish between illegality causing thedamage and illegality merely creating the opportunity for the damage to be suffered.
-Pre 1957, the law on OL was a mess. 4 different categories and the lines were getting blurredetc. No duty owed to trespassers and different duties for the rest
- OL Act 1957 to attempt to codify and harmonise
o Occupier – someone who exerts a reasonable degree of control over the premises
(wheat v lacon)
o Visitor – s1(2); invitees, licensees, contractors (licenses can be implied – Glasgow corp)
o Duty owed? A common duty to take care to ensure reasonable safety. (s2(1), (2) to all
visitors, which can be modified by agreement and to the extent they are allowed in the
premises) in respect of dangers arising from the premises and things done or not
done(s1(1))
Fairchild – seems to draw a distinction between activities done on the premises
and the sort of static state of the premises saying only the latter is covered Tomlinson – distinction drawn between risks due to the (static) state of the
premises and risks due to the acts of the claimant
o Exceptions to the common duty
Children (s2(3)(a)) – suggests a higher standard might be owed
Phipps – if the kids are/ought to be supervised, that is enough to require
only the standard duty (won’t always apply and means the duty may
vary by area)
Jolley – example of a higher standard being owed. Also useful for RoD.
People exercising their calling (s2(3)(b)). Note the lingering question of the
scope of ‘their calling’
Warning signs (s2(4)(a)) – enough to make the premises ‘reasonably safe’
Darby – the area was reasonably safe and though there was an extra
risk of disease which was not adequately warned off, it was not relevant
to the death of the claimant and thus not explored
Independent contractors
Haseldine; reasonable reliance
Gwilliam; reasonable reliance can extend to checking insurance
Payling; seems gwilliam is rare. Requirement may exist with regards to
one-off contracts as opposed to recurring ones but even if it does, it is
only as to enquire whether the contractor has insurance not to take
further steps
- Old CL positions remained for trespassers. 2 qualifications though
o
Doctrine of allurement (Glasgow corp)o Duty of common humanity (british railways board )
- Law with regards to trespassers changed by the Occupier’s liability act 1984
o If D is aware of the danger, knows or has reason to believe C will encounter the danger,
and the danger is one which he might be expected to protect against… Then, he has a
duty to take reasonable care to ensure C doesn’t suffer the risk
o Donoghue v Folkstone – The act is limited to the particular claimant and the particular
(c) Subjected it to an industrial process (e.g. in relation to agricultural produce)
o “Product” means any good or electricity and includes products comprised in others
whether they be raw materials or manufactured
- S2(2) Liability for defective products
(a) Producer
(b)
Those who hold themselves out to be a producer (e.g. Supermarket brands)(c) Those who import into the EU from outside it for the purpose of supplying it
- S2(3) Suppliers may be liable if they fail to give information about those higher up the supply
chain
- S3(meaning of defect)
(1) Safety is not such as persons are reasonably entitled to expect
(2) In deciding what they are reasonably entitled to expect, regard shall be had to all the
circumstances including
(a) The way the product was marketed including warnings and instructions
(b) What might reasonably be expected to be done with the product
(c)
Time of supply- S4 (defences)
(d) Defect did not exist at the time
(e) State of the art
- S6(4); contributory negligence applies
Application of the Act
A v National Blood Authority
- There was liability. Blood was a product as it was produced and supplied
o
Need not be for profito Act not limited to ‘traditional products’
- Seemed to ‘read down the act’. He affirms strict liability but goes on to say that though s3(2)
says ‘all the circumstances’ to maintain strict liability, and to avoid it slipping into a test of
negligence, only ‘relevant circumstances’ should be considered and things like avoidability and
- If an act is motivated by malice, that may turn a reasonable interference into an unreasonable
one (Christie v Davey, Hollywood Silver Fox Farm v Emmett )
- However, we do have the case of Bradford Crop v Pickles which is potentially hard to reconcile
o
Olliphant suggest that the best explanation is suggested in Winfield. Namely, that wherethe right is an absolute one, motive is irrelevant. However, where it is a relative right
(e.g. noise/smell), motive is relevant
Public benefit
- Without more, the mere fact that an act is for the public utility does not prevent it from being a
nuisance (Bamford v Turnley )
- However, there are suggestions that the court will consider it when assessing whether the use
of the land is reasonable
- Further, it may affected the remedy (Dennis v MoD)
Statutory Authority
- Acts which are expressly authorised by statutes will only be a nuisance if done negligently
- ‘expressly authorised’ in this context means it is an inevitable consequence of carrying out the
statutorily permitted activity ( Allen v Gulf Oil Refining)
o Thus with this area, the question is often one of statutory construction/interpretation
Planning Permission
- Planning permission can change the character of an area and the reasonableness of the user will
have to be assessed by reference to the new character (Gillingham DC v Medway Dock Co)o There was some suggestion that the judge meant perhaps something wider however it
was made clear in Hunter that the comments were limited to the above principle.
- If planning permission is held not to change the character, the fact that permission was granted
in itself does not prevent the act from being a nuisance. (Wheeler v JJ Saunders – intensification
of pig farming caused it to amount to a nuisance despite the planning permission)
(c) Foreseeability and Fault
Where D creates the nuisance
-
Cambridge Water Co Ltd v Eastern Counties Leather o Here, it is mentioned that when seeking an injunction, the question of fault is irrelevant
as D already knows his act is causing C inconvenience so the only question is whether he
amounts to an unreasonable user of land
o It is almost made clear that it is not necessary to establish a failure to take care in
carrying out an activity on the land for a claim in nuisance.
o Nonetheless, it is possible to construe it as a form of fault based liability as a defendant
will only be liable for reasonable foreseeable consequences (even as an unreasonable
user)
o Note that an alternative view is that there is really no difference between the fault
requirements in negligence and in nuisance, at least insofar as damages are sought
rather than an injunction.
- Delware Mansions ltd v Westminister (liability for encroaching tree roots)
o This is one of the cases where it’s recognised that the occupier of land may owe a duty
to act positively to prevent harm to his neighbour. Lord Cooke says at 333 “The label of
nuisance or negligence is treated as of no real significance. In this field, I think the
concern of the common law lies on working out the fair and just content and incidents
of a neighbour’s duty rather than affixing a label and inferring the extent of the duty
form it.”
o Also, in the case the damage is described as being caused by a nuisance but in reality, it
would be negligence as well and further, damage is determined according to negligence.
-
Network Rail Infrastructure v Morris
o Here, D did not amount to an unreasonable user of land as the interference was not
reasonably foreseeable (so clearly suggests it is fault based in their view here)
Third parties/natural events
- It is established that a nuisance is continued or adopted if the defendant knew or ought to have
known of the existence or the possibility of a nuisance on his land and failed to take reasonable
steps to bring the nuisance to an end. (So very much fault-based)
- An occupier of land can owe a duty to his neighbour to remove any hazards, whether natural or
man-made. The duty is based on the occupier’s knowledge of the hazard and foresight of damage to his neighbour if the failed to act. The standard of care required of the occupier was
what it was reasonable to expect of him in his circumstances. The PC was clearly of the opinion
here that liability arose in negligence. (Goldman v Hargrave)
o Note: since the duty to act was imposed on the occupier, the individual resources of the
occupier were to be considered in assessing whether his response was reasonable
(Goldman, Leakey v National Trust )
NB. The result of these cases is that where the alleged nuisance is caused by a natural occurrence, an
action may be commenced in either nuisance or negligence, but that liability will be determined
according to the principles applicable to the law of negligence.
The only exception is where the damage C alleges is not sufficient to found an action in negligence but
would be in nuisance.
(d) The rule in Rylands v Fletcher (1886)
1. ‘dangerous thing’ (likely to cause damage if it escapes)
- HL specifically refused a woolin style intent recognising that the purposes of the 2 strands of law
were different. If anything though, one would imagine tort would have a wider definition
(B) Assault
- To cause another person to apprehend the infliction of immediate unlawful force on his person
-
Note that the apprehension need only be reasonable and not an actual possibility (Stephens v Myers)
- As for the immediacy requirement, take note that even silence can constitute an assault (R v
Ireland – note that it is contextual as well. Phone call therefore D can be anywhere including
right in the immediate vicinity)
(C) Battery
- The intentional and direct unlawful application of force to a person
- Note that though a hostility requirement was suggested in Wilson v Pringle, this was
d isapproved by HL in Re F .
- A positive act is required. (Innes v Wylie)
-
With regards to directness, this is absent in the criminal law. It is uncertain whether trap casessuffice for the tort. Case law seems to indicate t the danger must be created in a relatively short
time period before the damage for it to be actionable.
(D) Intentional infliction of physical or emotional harm
Wilkinson v Downton
- A person who has “wilfully done an act calculated to cause physical harm to the claimant and
has in fact thereby caused physical harm to her” has provided a good cause of action. (Wilkinson
v Downton)
o Harm needs to be specifically intended (as opposed to intending the application of
force)o Damage needs to be suffered (As opposed to assault and battery which are actionable
‘per se’)
- In Khorasandjian v Bush (1993), the CA grant an injunction on the basis of Wilkinson to prevent
the tort happening (c would have suffered damage due to the stalking and harassment)
o It seemed like Wilkinson might grow into a useful tort however the need for it to grow
has been reduced by the Protection from Harassment Act 1997
- Section 1 prohibits a course of conduct which amounts to or he ought to know amounts to
harassment (which would be if a reasonable person in possession of the same information
would think it amounted to harassment)
- Importantly, per s7(3), a “course of conduct” must involve conduct on at least two occasions
- S3 allows for civil remedies such as damages and an injunction. It also makes it a criminal
offence.
o Importantly, s3 allows claims for actual or apprehended breaches of s1
- In Majrowski v Guy’s and St Thomas’ NHS Trust (2007), Lord Nicholls was clear that there was a
certain amount of irritations and such in everyday life and that for conduct to amount to
harassment, it’d have to be “oppressive and unacceptable” and “the gravity of the misconduct
must be of an order which would sustain criminal liability under s2”
o Here the HL also confirms that the tort imposes vicarious liability
- In Ferguson v British Gas Trading, these ideas were reaffirmed, namely, that individuals are
expected to tolerate a certain amount of annoyance and “the impugned course of conduct had
to be grave, in that it was oppressive and unacceptable before either the criminal or civil law
would intervene”
o This case also highlights how the act is drafted broadly enough to take account of all
sorts of harassments and is not limited to stalkers or threats of violence.- The mental element required for liability under the act is that of subjective recklessness
(Wainwright v Home Office (CA) - Lord Woolf)
o Note that one of the judges thought objective recklessness would suffice however, given
that the criminal law reverted to fully subjective recklessness after R v G [2003], and
that the criminal liability and civil liability under the Act seem intertwined, that the
liability is subjective seems fairly certain.
The Role of Wilkinson Today (Mostly from Wainwright v Home Office (HL))
- Lord Hoffman stresses that the scope of Wilkinson has been reduced today
- At the time, there was no liability for psychiatric injury generally however that is no longer the
case- Lord Hoffman personally feels that Wilkinson should’ve been swept into the law of negligence
o Nonetheless, he does not rule out the potential of a tort based on or amending
Wilkinson which would cover ground not currently protected by the law of negligence or
the Protection from Harassment Act.
This would have to be a non-recognised psychiatric injury such as grief
And would have to be the result of a one-off incident
o He goes on to say that if you did have such a tort, you’d have to be very careful as to
how you defined intention (and seemed to suggest actual intention would be required
and that recklessness wouldn't suffice)
- Also, Lord Scott was unequivocally opposed to the idea that the infliction of humiliation and
distress by conduct calculated to humiliate and cause distress was, without more, tortious at CL.
(2) Defences
(A) Consent
1. C must have capacity co consent
o Re MB – C must be capable of understanding and retaining the information and using it
- Why should a surgeon who mistakenly but reasonably believes she has consent to operate on a
patient commit a battery VS a police officer who deliberately shoots another in the mistaken but
reasonable belief that he is under attack has a defence?
- Note: S329 of the Criminal Justice Act 2003 applies to both private individuals and the police –
provide a defence to an action for trespass to the person where C was convicted of animprisonable offence on the same occasion as the conduct alleged to amount to trespass to the
person. Should this similar treatment to police also apply to tort?
- Seems to be NO reason for self-defence to stand alone amongst the other defences (of
battery) in allowing a reasonable belief to found the defence.
If the test is set up as what a reasonable person in the position of D would have reasonably concluded
given what he ACTUALLY knew about the situation (objective):
- Complication of the test: whether we take into account what D OUGHT TO have known?
(subjective)
Even if it is taken to be sufficient, what factors can be taken into account to determine reasonableness?
Difficulties arise when the mistake is induced by the conduct of 3RD
PARTIES, that is to make you
perceive a threat that otherwise you wouldn’t have perceived it.
- Here, it was due to the briefing to the police officers by the police force. Should you be allowed
to have such a defence based on information by a 3 rd party, such that you will perceive a threat
when otherwise you would not have perceived such a threat? No.
- If it is allowed, it would be contrary to the rules that apply to the defence of consent : it is no
defence to an action for battery for a surgeon to say that he reasonably thought, as a result of a
clerical error by hospital staff, that a consent form had been signed if it had not.
Response to the threat must be Proportionate:
- Lane v Holloway: 64 year old C struck 23 year old D on the shoulder, and D responded by hitting
C in the eye with such severity that he was in hospital for a month
- CA held that the blow was out of all proportion to the original act of C = no defence of consent
o Gives a defence of QP to 2 distinct categories of publications.
o One category gains the defence simply by falling within the list of requirements
Reports on shareholders meetings or public meetings for example
Note McCartan Turkington Breen v Times Newspapers which holds that press
conferences count as public meetings for the purpose of s15 as their
fundamental purpose is to publicise the information.
o The second category only counts as being protected by QP provided C has been given
the opportunity to reply (and the comment is published with the report)
Reports of proceedings in overseas legislatures
(E) Absolute Privilege
- Powerful defence only that apples irrespective of D’s mental state but only applies in 2 broad
categories with 1 other minor exception (5 more specific categories)
o Statements made in court
o Bill of Rights 1689 art 9 – provides for free speech in parliament
Defamation Act 1996 s13 gives an option to wave parliamentary privilege (see
eg Hamilton v Al Fayed )
o Communications made by a minister or other officer of state to another in the course of
his official duty (Chatterton v Secretary of State for India in Council – this seems to have
been rejected in subsequent cases just not authoritatively removed)
(3) Remedies
(A) Compensatory damages
-
Courts and Legal Services Act 1990 s8; gives CA power to substitute its own award for jury’s - John v MGN; CA said the award was too high and in the future, jurors should be told to think
about comparable awards for personal injury damages. So it seems we have to factor
consistency across the law
(B) Exemplary damages
- Punitive; can be awarded for example where there’s proof
(C)Mitigation
- It seems that little can be done to mitigate damages. Per Scott v Sampson, D can’t adduce
evidence that is not relevant to the specific claim
- The result of this is that defendants will seek to claim that if interpreted properly the words
have a very wide claim so as to adduce more general evidence as the justification stage.
- Later cases have made clear it is an objective test about the reasonably expectation of privacy
which the law might protect.
(B) Expectation of Privacy
- Problems with the subjective tests are highlighted in Murray v Sunday Express. Subjectively, we
wouldn't think two year olds would be highly offended by such a publication.
- In Author of a Blog v Times Newspapers, it is made clear that the test is an objective one that
takes the suggested two-stage approach
- So it reasonably clear the test is objective and perhaps ‘more objective’ than other such tests as
the claimant’s age is not taken into account at the first stage.
(C) There are cases where certain competing interests outweigh the expectation of privacy
- The typical countervailing right is article 10 (FoE)
- S12 HRA seems to tilt the favour towards art. 10 but that doesn’t mean the BoP is always on C.
-
HL in Campbell said you don’t treat all types of speech the same way. Hale suggests a hierarchywith political speech at the top of the list (idle celebrity gossip). As we get further down, courts
seem to be looking at the degree of interference with the rights to privacy as compared to
focusing on the importance of freedom of speech.
o E.g. Mosley ; not in the public interest to have legal sexual habits exposed
- At the proportionality stage, it seems courts have taken a strong view when it comes to
protecting the rights of children. (Murray )
- Also, the courts are clear that there is no decisive factor at this stage, and all the factors such as
thing previously said or done and the nature of the invasion for instance need to be considered.
(4) The influence of the European Convention on Human Rights
- It is clear art. 8 is important and in force due to the HRA. The HRA however covers public bodies
and though there is this on-going academic debate about whether the HRA provides horizontal
direct effect by virtue of the courts being public bodies, this is yet undecided.
- Also, while Strasbourg jurisprudence may have persuaded domestic courts, they have stressed
that they have developed breach of confidence (or misuse of private information rather)
independent of Strasbourg.
- It is important to note that the ECHR seems to accept that certain incidents which take place in
public can still fall within someone’s private and family life and for which they can have a
reasonable expectation of privacy (Peck v UK )
- Indeed, in Von Hannover , the state (Germany) was held to have violated her legal rights by
failing to provide adequate protection against the sort of photographs of C going about daily life
in public, something Hale in Campbell was clear wasn’t protected.
- So it is clear courts will have to directly deal with the issue of how to engage the Strasbourg
- The basis is debated but usually seen as based on denying a wrongdoer any profit from his
wrongdoing. A yet unanswered question relates to what wrongs should allow this remedy
o MoD v Ashman
(3) Injunctions
(A) Types of injunction
- Final/perpetual (given at the completion of trial)
o Can be mandatory or prohibitory
- Interim (to keep things the same until trial)
- Quia timet (=because s/he fears)
(B) General Principles
(i) Inadequacy of CL remedy (e.g. with regards to a nuisance)
(ii) Clean hands (Measure Bros v Measures – general principle of equity)
(iii) Delay and acquiescence
(iv) Equity will not act in vain (AG v Observer )
(v) Public interest
o Dennis v MoD
o Miller v Jackson
o Kennaway v Thompson (powerboat racing)
Highlights how the courts have the power to tailor injunctions.
(C) Special rules for defamation
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The importance of Freedom of Speech means that in defamation cases, an interim injunctionsshould not be permitted where D pleads a valid defence (Bonnard v Perryman)