LLB Recent developments 2011

Recent developments 2011

2660001 Law of tort

Current edition of the subject guide

The current edition of the subject guide was published in 2005.

The following developments should be noted

Chapter 1: Introduction
1.3 Recommended reading
There are new editions of the following books now available. You
should always use the most recent edition of any book.
Markesinis, B and S. Deakin Tort Law. (Oxford: Oxford University
Press, 2007) sixth edition [ISBN 9780199282463].
Murphy, J. Street on Torts. (Oxford: Oxford University Press, 2007)
twelfth edition [ISBN 9780199291663].
Rogers, W.V.H. (ed.) Winfield and Jolowicz on Tort. (London:
Sweet and Maxwell, 2010) eighteenth edition [ISBN
9781847037930].
Matthews, M., J. Morgan and C. O’Cinneide Hepple and Matthews’
Tort: cases and materials. (Oxford: Oxford University Press, 2008)
sixth edition [ISBN 9780199203840].
Lunney, M. and K. Oliphant Tort Law; Text and Materials. (Oxford:
Oxford University Press, 2010) fourth edition [ISBN
9780199571802].
Giliker, P. and S. Beckwith Tort. (London: Sweet and Maxwell,
2008) third edition [ISBN 9780421949805].
McBride, N. and R. Bagshaw Tort Law. (Harlow: Longman, 2008)
third edition [ISBN 9781405859493].
Cane, P. Atiyah’s Accidents, Compensation and the Law.
(Cambridge: Cambridge University Press, 2006) seventh edition
[ISBN 9780521689311].
Steele, Jenny Tort Law: Text, Cases and Materials (Oxford: Oxford
University Press, 2010) second edition [ISBN 9780199550753]

Chapter 2: Negligence: basic principles

and
Chapter 6: Negligence: particular relationships
6.1 Liability of occupiers
Section 1 of the Compensation Act 2006 provides that:
‘a court considering a claim in negligence or breach of
statutory duty may… have regard to whether a requirement

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to take [particular steps to meet a standard of care] might (a)

prevent a desirable activity from being undertaken at all, to a
particular extent or in a particular way, or (b) discourage
persons from undertaking functions in connection with a
desirable activity.’
This is intended to deal with the ‘compensation culture’ and is akin to a
statutory enactment of the approach in the Tomlinson case.
Section 2 provides that:
‘an apology, an offer of treatment or other redress, shall not
of itself amount to an admission of negligence or breach of
statutory duty.’

Chapter 2: Negligence: basic principles

Nature of damage
In:
 Rothwell v Chemical & Insulating Co Ltd: Re Pleural Plaques
Litigation [2007] UKHL 39; [2007] 3 WLR 876; [2007] 4 All ER
1047
the court considered a number of test cases in which the claimants had
been exposed to asbestos dust. This had resulted in (i) pleural plaques
which were symptomless and invisible, (ii) the possibility of developing
an asbestos-related disease in the future and (iii) anxiety that they
would suffer such a disease. It was held that head (i) did not amount
to damage and that it was not possible to establish a claim by
aggregating the three heads, none of which on its own amounted to
damage. See further under 5.2.
This case has attracted criticism and has been reversed in Scotland by
the Damages (Asbestos-related Conditions) (Scotland) Act 2009 but
not in England and Wales.

Chapter 3: Negligence: duty of care and breach of duty

3.1 Duty of care
For general observations on the duty of care, see:
 Sutradhar v Natural Environment Research Council [2006] UKHL
33; [2006] 4 All ER 490.

3.3 Breach of duty

 Harris v Perry [2008] EWCA Civ 907; [2009] 1 WLR 19
No breach of duty by parents when child injured by being accidentally
kicked by another child on bouncy castle at children’s party. Discussion
of standard of supervision to be expected.

3.3.5 Proving breach of duty: res ipsa loquitur

 George v Eagle Air Services [2009] UKPC 21; [2009] 1 WLR 2133

Chapter 4: Negligence: causation and remoteness of damage

4.2.2 Uncertainty of the facts
In the discussion of Fairchild v Glenhaven Funeral Services Ltd, the
crucial factors ‘… conveniently listed by Lord Bingham of Cornhill’
should be ‘at [2]’, not ‘in Chapter 3, section 3.1’.

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Two issues left unanswered in Fairchild have now been considered by

the House of Lords in:
 Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 WLR 1027;
[2006] 3 All ER 785.
a. In Fairchild all possible defendants had wrongly exposed the
deceased to asbestos. The House has now held that this is not a
necessary criterion for liability and that a defendant who wrongly
exposed the deceased to the risk may still be liable even though the
other exposures were non-tortious, by natural causes or by the act
of the deceased himself.
b. The other issue requires some explanation. If a claimant suffers
injury as the result of the combined negligence of two or more
defendants, they are said to be jointly and severally liable – that is,
each defendant is liable to pay the full amount of damages to the
claimant but may seek to recover contribution from the others. In
this way the risk that one of the defendants cannot pay – usually
because he has no money and is uninsured – falls on the other
defendants (who have to pay everything) and not on the claimant
(who still gets full damages). For example, a passenger in a car is
injured by the negligence of the driver and a cyclist. The passenger
is likely to sue the driver and leave the driver (or the driver’s
insurance company) to recover contribution from the cyclist. By a
majority the House of Lords held that this did not apply where the
defendant is being held liable on the Fairchild basis. Each
defendant is liable only to the extent that he increased the risk to
the claimant.
The effect of this second aspect has, however, been reversed by the
Compensation Act 2006, s.3, which holds that all the defendants are
jointly and severally liable. The statute applies only to mesothelioma,
so that if there are other diseases with the same characteristics they are
apparently left to the common law. It should also be noted that a
majority of the judges in Barker reached their decision on point (a)
only because there would be no injustice since each defendant would
be liable only for his own share, but Parliament has now removed this
justification for point (a).
On the interpretation of the Act see:
 Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159: [2010] 2
WLR 951
See further:
 Bailey v Ministry of Defence [2008] EWCA Civ 883; [2009] 1 WLR
1052.

4.5.4 Intervening conduct by the claimant

In:
 Corr v IBC Vehicles [2008] UKHL 13; [2008] 1 All ER 943; [2008]
2 WLR 499
the defendant employers, who admitted that their negligence had
caused an accident to their employee resulting in head injuries and
depression, were held liable for his suicide six years later and his
deliberate act was not a new intervening cause. The rationale of the
principle that a novus actus interveniens breaks the chain of causation is
fairness.
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Chapter 5: Negligence: special problems

5.1 Liability for pure economic loss and for negligent
misstatements
Economic loss
There is an important decision in:
 Customs and Excise Commissioners v Barclays Bank plc [2006]
UKHL 28; [2006] 3 WLR 1; [2006] 4 All ER 256.
This should be studied carefully as it contains useful and quite brief
reviews of the scope of liability for economic loss, and of the different
tests that have been deployed to solve this problem. Although the
judges accepted that many factors pointed towards imposing a duty of
care, they decided in the end for rather narrow reasons that there was
no such duty. You should consider and evaluate the reasons they
advance for imposing and in the end for denying a duty.
 Islington LBC v University College London, The Times, 28 June 2005
the Court of Appeal rejected an argument that a negligent hospital
authority owed a duty to the local council that was required to provide
support for the injured patient.
 Calvert v William Hill Credit Ltd [2008] EWCA 1427; [2009] 2
WLR 1065
A compulsive gambler was not entitled to damages from a telephone
bookmaker which had failed to implement an agreement to prevent
him from placing telephone bets.

5.2 Liability for psychiatric injury

In the Rothwell case (see Chapter 2) one of the claimants had suffered
not merely anxiety but a recognised psychiatric illness because of fear
that he would suffer a serious illness in the future. The House of Lords
rejected the claim: (a) they refused to extend the decision in Page v
Smith to the present facts and (b) they held that years earlier the
defendants could not have foreseen such psychiatric illness as the
result of their negligence.

5.2.4 Other cases

For a situation where psychiatric damage was too remote, see:
 French v Chief Constable of Sussex Police, The Times, 5 April 2006.

5.2.4(v)
See also:
 Butchart v Home Office [2006] EWCA Civ 239; [2006] 1 WLR
1155.

5.3. and 5.4

There is detailed consideration of the issue of non-exercise of statutory
powers in:
 Connor v Surrey County Council [2010] EWCA Civ 286; [2010] 3
All ER 905.
The facts are rather lengthy and there is a long account of some of the
earlier cases. The essence is that there was a pre-existing established
duty of care (the duty of the defendant as employer to protect the
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claimant head teacher from stress and psychiatric injury as a result of a

lengthy campaign by some members of the governing body). The CA
upheld the decision that it was a breach of that duty for the council not
to use its statutory powers to remove the governing body and to
appoint an interim executive board so as to relieve the stress on the
claimant. This was therefore not a case where it was argued that a duty
of care should be created out of a statutory power. Sedley LJ states (at
[124]):
‘The need for the authority to act decisively much sooner than
it did arose equally from its public law and its private law
duties. Although… it is the latter that give rise to this claim, it
is because the former offered no obstacle that the deputy
judge was entitled to find in the claimant’s favour. What
might have been the proper outcome had the two things
pulled in opposite directions is a question for another day and
another claim.’

5.4.4 and 5.4.5

There are two important cases decided by the House of Lords together
and reported as:
 Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50;
[2008] 3 All ER 977. The other case is called Smith v Chief
Constable of Sussex Police.
Van Colle was a witness in a forthcoming trial and was shot dead. That
claim was argued solely on the basis of a breach of Article 2 ECHR and
failed in the House of Lords (although it had succeeded in the lower
courts). The House held that the stringent test laid down by the ECtHR
in Osman was not satisfied and no lower test was called for just
because the deceased had been called as a witness by the state.
Smith sustained serious injuries in an attack by his former partner, who
had made many threats against him. His claim was brought solely at
common law (since he was not dead Article 2 was not relevant) and
was rejected by a majority, Lord Bingham dissenting. The majority
thought that the existence of a duty of care would have a detrimental
effect on the way the police carried out their duties.

5.4.5 Further cases

In:
 D v Bury Metropolitan Borough Council [2006] EWCA Civ 1; [2006]
1 WLR 917
a local authority did not owe a duty of care to the parents of a child
who was the subject of a child abuse investigation: care professionals
had to be able to carry out their work without fear of such an action.
The ECtHR has twice considered these issues. In:
 AD and OD v UK (2010) 51 EHRR 8 (arising out of the Bury
case)
and in:
 MAK and RK v UK (2010) 51 EHRR 14 (arising out of the East
Berkshire case)
the Strasbourg court held that there was a breach of Articles 8 and 13
ECHR in respect of both the children and the parents. The court

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accepted that mistaken judgments did not in themselves render social

work professionals liable, but the mistakes in these cases amounted to
a breach of Convention rights.
See also:
 Lawrence v Pembrokeshire County Council [2007] EWCA Civ 446;
[2007] 1 WLR 2991.
In:
 Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ
598; [2007] 1 WLR 2861
there is a discussion of the scope of the duty of care and the conclusion
that the Child Support Agency did not owe a duty of care to claimants
in the assessment of support due from an absent father. Other
remedies, including appeals and the possibility of judicial review, were
available and it would not be compatible with the statutory scheme to
permit a common law negligence action.
In:
 Jain v Trent Strategic Health Authority [2009] UKHL 4; [2009] 2
WLR 248
the House of Lords held that the health authority was not liable to the
owners of a care home for the immediate closure of which they had
obtained an emergency order from a magistrate under statutory
powers. The closure order was later reversed on appeal because the
evidence on which it was based was flawed, but the owners could not
revive their business. The House held that the duty was owed to the
vulnerable residents and not to the owners in respect of their economic
loss. The facts occurred before the Human Rights Act 1998 was in
force. The House held that, if the facts were to occur now, the proper
course would be to seek a declaration that the statutory provisions
were incompatible with the European Convention. There was no need
to distort the law of negligence in order to provide a claim for
compensation in tort.
There is a very important decision of the House of Lords in:
 Mitchell v Glasgow City Council [2009] UKHL 11; [2009] 2 WLR
481.
The widow and daughter of M, a man attacked and killed by his
neighbour, D, a tenant of the council, had no claim against the council
either:
a. in negligence for failing to warn M that D had left a meeting with
them in an angry mood after being told that they might take action
to recover possession of his house; or
b. on the basis that the council’s behaviour was incompatible with M’s
rights under Article 2 of the ECHR.

Chapter 6: Negligence: particular relationships

Occupiers’ liability
6.1.3 (iv)
On the ability of an occupier to rely on the work done by an
independent contractor, see:

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 Maguire v Sefton Metropolitan Borough Council [2006] EWCA Civ

316; [2006] 1 WLR 2550.

6.1.5
See also:
 Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39;
[2006] 1 WLR 953
A fire escape is inherently dangerous. Any injury to a person climbing
on it improperly, knowing of the danger, was due to the activity and
not to the state of the premises and the occupier was not liable.

6.3.2 Work-related stress

See the interesting application of the principles in:
 Daw v Intel Corporation UK Ltd [2007] EWCA Civ 70; [2007] 2 All
ER 126.

Chapter 7: Breach of statutory duty

See also:
 Robb v Salamis (M & I) Ltd [2007] UKHL 56; [2007] 2 All ER 97
 Smith v Northamptonshire County Council [2009] UKHL 27; [2009]
4 All ER 557 (which shows the importance of careful attention to
the precise wording of any statutory regulations)
 Morrison Sports Ltd v Scottish Power UK [2010] UKSC 37 [2010] 1
WLR 1934.

7.3 The Human Rights Act 1998

See the discussion of the following cases, noted under Chapter 5.
 Van Colle v Chief Constable of Hertfordshire Police
 Jain v Trent Strategic Health Authority.

Chapter 8: Particular statutory regimes: strict liability

8.2.3 Non-dangerous animals
The difficulties in interpreting s.2(2) of the Animals Act 1971 have
been explored further in:
 Welsh v Stokes [2007] EWCA Civ 796; [2008] 1 All ER 921.

Chapter 9: Intentional injuries to the person

9.1. Trespass and case
In:
 A v Hoare [2008] UKHL 6; [2008] 2 All ER 1
the House of Lords overruled its own previous decision in Stubbings v
Webb and held that damages for personal injury for an intentional
trespass do fall within s.11 of the Limitation Act 1980.

9.3 False imprisonment

In:
 Prison Officers Association v Iqbal [2009] EWCA Civ 1312
[2010] 2 All ER 663

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it was held by a majority that no claim lies against prison officers who
take strike action which results in a prisoner, who would otherwise
have been allowed to leave his cell to work etc, being confined to his
cell.

9.4 Intentionally causing nervous shock

In:
 Wainwright v United Kingdom (application no. 12350/04) (2007)
44 EHRR 40
the European Court of Human Rights held that the treatment of Mrs
Wainwright and her son violated their rights under Article 8 ECHR and
the failure to provide a remedy in tort in domestic law was a violation
of their rights under Article 13. (This case also applies to 7.3 above.)

9.5.4 Self-defence
In:
 Ashley v Chief Constable of Sussex Police [2008] UKHL 25; [2008] 3
All ER 573
it was held that self-defence to a civil law claim for tortious assault and
battery, in a case where the assailant had acted in a mistaken belief
that he was in imminent danger of being attacked, required that the
assailant had acted under a mistaken belief that was not only honestly
but also reasonably held.

Chapter 10: Interference with economic interests

10.2 and 10.3 The economic torts
The whole structure of the so-called economic torts has been
reconsidered by the House of Lords in:
 OBG Ltd v Allan [2007] UKHL 21; [2007] 2 WLR 920.
It is essential that study of this subject now begins with this case. It has
rendered much of the original text obsolete. The House decided three
cases together: the speeches consider the broad issues of principle and
then apply them to the facts of the three cases. The cases deal with a
number of topics (privacy, conversion) that do not fall within the scope
of the syllabus, but the discussion of the economic torts does. For the
historical development and general principles see particularly [3] to
[64] and especially [39] to [64] (speech of Lord Hoffmann) and [143]
to [195] (speech of Lord Nicholls of Birkenhead). The essential points
of this restatement are:
a. the rejection of any attempt to create a unified concept of causing
loss by unlawful means
b. the statement of the content of the tort of inducing breach of
contract, requiring:
i. knowledge that the defendant was inducing a breach
ii. intention to induce a breach
iii. an actual breach
c. the statement of the elements of the tort of causing loss by
unlawful means involving:
i. a wrongful interference with the actions of a third party
ii. an intention thereby to cause a loss to the claimant.
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It should also be noted that Lord Hoffmann (at [61]) states that
nothing in this case is intended to deal with cases of two-party
intimidation.

10.3.3 Unlawful means conspiracy

See also:
 Revenue and Customs Commissioners v Total Network SL [2008]
UKHL 19; [2008] 2 WLR 711
holding that criminal conduct at common law or by statute could
constitute unlawful means and be actionable as a conspiracy whether
or not it was actionable against a single individual as some other tort.

Chapter 11: The law of nuisance and the rule in Rylands v Fletcher
11.2.5 Remedies
On damages in lieu of an injunction, see:
 Watson v Croft Promosport Ltd [2009] EWCA Civ 15; [2009] 3 All
ER 249
On the possibility of damages for an infringement of Article 8 ECHR by
a claimant who did have a claim in nuisance and a claimant (such as a
child) who did not, see:
 Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28; [2009] 3
All ER 319.
The long-standing principle that damages for personal injuries can be
recovered in public nuisance is still the law. See:
 Re Corby Group Litigation [2008] EWCA Civ 463; [2009] 2 WLR
609.

Chapter 12: Defamation

Introduction
In:
 Jameel (Yusuf) v Dow Jones Co Inc [2004] EWCA Civ 75; [2005] 2
WLR 1614
it was held that the presumption of damage in a libel claim is not an
infringement of Article 10 ECHR.

12.2.3 Publication
A claimant is not entitled to rely on any presumption of law that
material on an internet website has been substantially published within
the jurisdiction. This must be proved directly or by inference:
 Al Amoudi v Brisard [2006] EWHC 1062 (QB); [2006] 3 All ER
294.

12.3.2 Fair comment (now honest comment)

In:
 Joseph v Spiller [2010] UKSC 53; The Times, December 3, 2010
the Supreme Court ruled that the defence should be renamed honest
comment and suggested that there was need for reform in this area.
The Supreme Court considered the extent to which a defendant relying

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on honest comment had to identify with sufficient particularity the

subject matter of the comment.
There is a very interesting decision in:
 British Chiropractic Association v Singh [2010] EWCA Civ 350;
[2011] 1 WLR 133
on the question of whether the defendant has made a statement of fact
(which would have to be proved true) or expressed an opinion (which
would only have to meet the requirements of honest comment). The
case has been widely commented on as giving greater protection to
academic and scientific comment and criticism and the court quoted
the dictum that ‘scientific controversies must be settled by the methods
of science rather than by the methods of litigation’.

12.3.3 Privilege
Absolute privilege
On absolute privilege attaching to a statement made to the police, see:
 Buckley v Dalziel [2007] EWHC 1025; [2007] 1 WLR 2933
 Westcott v Westcott [2008] EWCA Civ 818; [2009] 2 WLR 838.

Qualified privilege
The Jameel case has now been reversed by the House of Lords:
 Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006]
UKHL 44; [2006] 3 WLR 642; [2006] 4 All ER 1279.
There is important discussion of the importance of the protection for
freedom of speech and of the meaning of responsible journalism. The
case should be read closely in conjunction with the Reynolds case. The
House also held by a majority that a trading company which itself
conducted no business but had a trading reputation within the
jurisdiction was entitled to recover damages for libel without pleading
or proving special damage if the publication had a tendency to damage
it in the way of its business.
In:
 Charman v Orion Publishing Group Ltd [2007] EWCA Civ 962;
[2008] 1 All ER 750
and
 Roberts v Gable [2007] EWCA Civ 721; [2008] 2 WLR 129
there are further important considerations of the Reynolds defence and
the distinction between, on the one hand, mere reporting by D that A
had said something about B and, on the other hand, the adoption of A’s
words by D as his own.
In an action against a former Prime Minister of Jamaica, the Privy
Council has held that the Reynolds qualified privilege defence is not
only available to the press and broadcasting media but also has a wider
ambit. It is available in respect of publications made by anyone who
publishes material of public interest in any medium, provided that the
Reynolds conditions are satisfied. The defendant was liable because he
had failed to take sufficient care to check the reliability of the
information which he disseminated at a speech at a public meeting in a
hotel at which media representatives were present. See:
 Seaga v Harper [2008] UKPC 9; [2008] 1 All ER 965.
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On the elements of responsible journalism in relation to qualified

privilege, see:
 Flood v Times Newspapers Ltd [2010] EWCA Civ 804; [2011] 1
WLR 153
On qualified privilege under statute, see:
 Curistan v Times Newspapers Ltd [2008] EWCA Civ 432; [2008] 3
All ER 923.
A candidate in an election is, in general, entitled to rely on a defence of
qualified privilege in respect of words in election literature and s.10 of
the Defamation Act 1952 merely means that a candidate cannot claim
a special privilege by virtue only of publishing words that were
material to a question at issue in the election:
 Culnane v Morris [2005] EWHC 2438 (QB); [2006] 1 WLR 2880;
[2006] 2 All ER 149.
On the extent to which a public authority can rely on qualified
privilege where it publishes a report critical of a user of the authority’s
services to a large number of its employees and others, see:
 Clift v Slough Borough Council [2010] EWCA Civ 1171; The Times,
January 25, 2011.

12.3.4 Innocent dissemination

On the position of internet service providers, see:
 Bunt v Tilley [2006] EWHC 407 (QB); [2006] 3 All ER 336.
 Metropolitan International Schools Ltd v Designatech Corp [2009]
EWHC 1765; [2010] 3 All ER 1158

12.3.5 Offer of amends

On whether an offer of amends can be withdrawn once accepted, see:
 Warren v Random House Group Ltd [2008] EWCA Civ 834; [2009]
2 WLR 314.

12.4 Remedies
In:
 Greene v Associated Newspapers [2004] EWCA Civ 1462; [2005] 3
WLR 281
it was held that the rule in Bonnard v Perryman should be followed and
was not a violation of Article 8 ECHR. Comments were made on the
relation between Articles 8 and 10.

Chapter 13: Miscellaneous

13.1 Vicarious liability
13.1.2 (i)e
In:
 Viasystems v Thermal Transfer [2005] EWCA Civ 1151; [2005] 4
All ER 1181
the Court of Appeal decided (a) that in principle in cases of borrowed
servants there was no reason why both employers should not be
vicariously liable and (b) that was the fairest solution to the particular
problem.
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In:
 Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2008]
EWCA Civ 1257; [2009] 3 WLR 324
the court considered Viasystems and other cases and held that it would
be very exceptional for a contractor to be vicariously liable for the
negligence of a subcontractor. It also held that the notion that a party
could be vicariously liable for the negligence of an independent
contractor in respect of ultra-hazardous activities was applicable only
in extreme situations.

13.1.2 (iii)B
In:
 Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34;
[2006] 3 WLR 125; [2006] 4 All ER 395
the House of Lords affirmed the decision of the Court of Appeal
([2005] EWCA Civ 251; [2005] 2 WLR 1503) that an employer could
be vicariously liable where an employee, in the course of his
employment, committed a breach of a statutory obligation sounding in
damages. The employer could therefore be liable for a breach of the
new wrong created by s.3 of the Protection from Harassment Act 1997
where a claimant alleged that he had been unlawfully harassed by his
departmental manager.
In:
 Gravil v Carroll [2008] EWCA Civ 689; The Times, July 22, 2008
a rugby club was held vicariously liable for injury caused by a tortious
assault by a player on a member of the opposing team immediately
after the final whistle had been blown.
There is a striking application of the Lister test in:
 Maga v Trustees of the Birmingham Archdiocese [2010] EWCA
Civ 256; [2010] 1 WLR 1441

13.2.1 Contributory negligence

In:
 Badger v Ministry of Defence [2005] EWHC 2941 (QB); [2006] 3
All ER 173
a widow’s claim for damages for her husband’s death from asbestosis
causing lung cancer was reduced by 20 per cent because he had
continued smoking after a prudent man would have known of the risks
and after he had been told to stop.
In:
 St George v Home Office [2008] EWCA Civ 1068; [2008] 4 All ER
1039
the claimant’s addiction to drugs and alcohol was too remote to be
regarded as a cause of his injuries and did not amount to contributory
negligence in respect of injuries sustained by negligence of prison staff.

13.2.3 Illegality
See:
 Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 3 WLR 167

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where the House of Lords, reversing the CA in part, held that the
claimant, whose personality had been changed by the negligent act of
the defendant, could not recover damages for losses, including those
for loss of earnings, after he had been found guilty of manslaughter
and detained in a mental hospital.

13.3.3 (v) Deductions

See:
 Crofton v NHS Litigation Authority [2007] EWCA Civ 71; [2007] 1
WLR 923
and note the comments at [89] about the policy issue as to whether it
was a sound policy that the costs should fall on the public purse rather
than the defendant.

13.3.5 Effect of death on damages

For an example of the assessment of damages under the Fatal
Accidents Act, see:
 McIntyre v Harland and Wolff plc [2006] EWCA Civ 287; [2006] 1
WLR 2577.

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