on 11-Jul-2016 (Mon)

There are effectively three torts to consider, namely assault, battery and false imprisonment. They are actionable per se i.e. without proof of damage and require an act to have been committed. An omission will not suffice.

An assault is an act of the defendant which directly and intentionally causes the claimant to apprehend a battery or physical contact.

There has been some dispute as to whether words can amount to an assault. See R v Wilson [1955] 1 All ER 744 where it was argued that words alone might suffice for an assault, the logical argument being that if the essence of an assault is creating the apprehension of battery, then threatening words from a violent thug could be more intimidating than a shaken fist from a weak man!

Silence, which can cause psychiatric damage, may also amount to assault (See R v Ireland [1997] 3 WLR 534).

A threat to harm in the future is unlikely to be an assault. In Thomas v NUM [1986] Ch 20 the claimant was being transported to work during the miners' strike and was subjected to taunts and threats as he passed the picket line. He was in an adequately protected vehicle and therefore the threats were not an assault.

Contrast this with the case of Stephens v Myers (1830) 4 C&P 349 where the defendant lunged at the claimant in a meeting and was forcibly restrained by those close to the claimant. In that case there was an assault since the threat was very much an immediate and pressing threat which might well have been carried out but for the timely intervention of others.

The other problem is whether the test is based on what the actual claimant feared or what a reasonable claimant would have apprehended in those circumstances. The preferable view is that it is the effect on the reasonable claimant. This would ensure that blameless people do not find themselves tortfeasors because they happen to make an innocent gesture in front of a neurotic individual.

It is well-recognised that a defendant can be responsible for deliberately inflicting harm on the claimant. In Wilkinson v Downton (1897) 66 LJQB 493 the defendant told the claimant, as a joke, that her husband had been badly injured in an accident. The claimant suffered nervous shock, for which the defendant was held liable. Thus liability can also arise where a defendant deliberately acts or makes a statement which is calculated to cause physical harm to the claimant and which does in fact achieve that result.

Battery may be defined as the direct and intentional application of force by the defendant to the claimant without lawful justification.

Battery, as with any trespass, must be committed intentionally. For a while it was thought that it might be sufficient for trespass to the person if there was a negligent act. However, as the tort of negligence has developed the courts have insisted that intentional harm be dealt with as a battery while negligently caused harm should be the subject of an action in negligence. In Fowler v Lanning [1959] 1 QB 426 the claimant had been shot by the defendant and had issued proceedings. The statement of claim did not specify whether the shooting was intentional or negligent and only alleged the fact of the shooting. On a procedural point Lord Diplock said:

[T]respass to the person does not lie if the injury to the claimant, although the direct consequence of the act of the defendant, was caused unintentionally and without fault on the defendant's part.

The later case of Letang v Cooper [1965] 1 QB 232, followed this approach and restricted trespass to intentional acts.

In addition, there must be a direct act for there to be trespass to the person. This was explained in Reynolds v Clarke (1725) 93 ER 747 in the following way: If a man throws a log on the highway, and in that act it hits me I may maintain a trespass because it is an immediate wrong.

As to what can constitute an act, consider the case of Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 in which a man who had unwittingly parked his car on a policeman’s foot refused to remove it for some minutes, despite requests to the contrary. The court held (by a majority) that his actions could not be regarded as a mere omission and that a battery had occurred.

In Cole v Turner (1704) 6 Mod 149 it was stressed that the least touching of another in anger is battery. In R v Cotesworth (1704) 6 Mod 172 spitting in a doctor's face was held to be a battery.

In Wilson v Pringle [1986] 2 All ER 440 the Court of Appeal described battery as an intentional touching accompanied by hostility. In that case two schoolboys had been playing in the playground and one had been hurt. It was held that there would be no battery if the touching could have been expressly or impliedly consented to. This would depend on all the circumstances of the case.

Areas where consent may negative a battery are in the field of medical treatment, Chatterton v Gerson [1981] l All ER 257, and sporting occasions. Lord Brown-Wilkinson reconfirmed this point in Airedale NHS Trust v Bland [1993] 1 All ER 821, 881:

Any treatment given by a doctor to a patient which is invasive ... is unlawful unless done with the consent of the patient: it constitutes the crime of battery and the tort of trespass to person.

Whether it is possible to consent to a battery in areas outside medical treatment and lawful sport is open to question. The criminal case of R v Brown [1992] 2 All ER 552 held that if actual bodily harm was suffered then it is immaterial that there was consent.

Self-defence can be pleaded by a defendant if they have used reasonable force in self- protection or to protect another person, or property. What is reasonable force is a question of fact in each case. See Lane v Holloway [1968] 1 QB 379.

Until recently it seemed that contributory negligence would be available as a defence to assault and battery, although its application was uncertain, particularly as there are authorities which deny that provocation can be a defence, see Barnes v Nayer, The Times, 19 December 1986. The situation has now been clarified in the case of Co-operative Group (CWS) Ltd v Pritchard [2011] EWCA 329. The Court of Appeal in this case made it clear that the defence of contributory negligence is not available in the torts of assault and battery as a matter of law.

Ex turpi causa has been argued in cases involving fights, but has usually failed due to disproportionate force being used by one party, e.g. Lane v Holloway (see paragraph 2.4.1). In Lane v Holloway [1968] 1 QB 379 an argument occurred between the plaintiff (aged 64) and the defendant (aged 23) outside the plaintiff’s house. The defendant’s wife had previously told the plaintiff and his friends to be quiet as they had come back from the pub and were standing outside her window. The plaintiff had replied, ‘shut up you monkey-faced tart’. The plaintiff smacked the defendant believing he was about to be hit. The defendant responded by punching the plaintiff in the eye causing a cut requiring 19 stitches and a month in hospital. It was agreed by the court that the defendant had a right to defend himself but it was felt that his response was out of proportion to the danger (in consideration of the age difference) and, therefore, both ex turpi and the defence of self- defence was denied.

The normal rules on the defence of Consent, or volenti apply. As previously stated, the law distinguishes between express and implied consent. See Collins v Wilcock [1984] 1 WLR 1172 and Herd v Weardale Steel, Coke and Coal Co [1915] AC 67. Implied consent is used as a defence during the playing of sports, provided the rules of the game are adhered to.

A number of statutes authorise trespass to the person in specific circumstances e.g. s3(1) Criminal Law Act 1987 (Lawful Arrest). See Percy v Hall [1996] 4 All ER 523.

It used to be the case that parents and teachers could use physical punishment against children in their charge. The Education Act 1986 banned chastisement in state sector schools. This was extended to all schools by s 548 Education Act 1996. Parents can no longer rely on ‘reasonable punishment’ as a defence in any civil proceedings for battery causing actual bodily harm, as a result of s 548 of the Children Act 2004.

False imprisonment is an act of the defendant that directly and intentionally causes the complete restriction of the claimant's liberty without lawful justification. It is easiest to examine this tort by first establishing the element of imprisonment or restriction of liberty and then examining whether this is false, i.e. without lawful justification.

In order for there to be imprisonment it is necessary to show that the claimant's liberty has been restricted in all directions and that they are being confined or constrained within limits imposed by another. It is not sufficient for the claimant to show that they have been inconvenienced or restricted in one direction only. In Bird v Jones [1845] 7 QB 742 the claimant was prevented from walking on part of a bridge. He was not falsely imprisoned as he was free to take an alternative route. If the claimant is being confined then they will be imprisoned unless there is a reasonable means by which they can exit or gain their freedom. They are not expected to take dangerous or unusual methods of exit, e.g. jumping from a fifth storey window.

It is not necessary for there to be mental awareness by the claimant of their plight. In Meering v Grahame-White Aviation (1919) 122 LT 44 the claimant was asked to go to his boss's office which he did. He waited there quite happily without realising that his colleagues were outside the office door with instructions not to let the claimant leave because he was suspected of theft. Despite the fact that the claimant was unaware of his plight the court held that he had been falsely imprisoned.

The act must be a direct act by the defendant. See Sayers v Harlow Urban District Council [1958] WLR 623.

There is also no need for any force; words can be enough such as ‘stay here, otherwise I’ll kill you.’ See Davidson v Chief Constable of North Wales [1994] 2 All ER 597.

The confinement must be demonstrated to be without lawful justification. There may be justification if the imprisonment was because the claimant failed to comply with a contractual condition.

In Robinson v Balmain New Ferry [1910] AC 295 the claimant paid one penny to cross the river by ferry. At the entrance was a sign stating that the penny was payable at the terminal to cross the river and again after a return journey. The claimant passed through the turnstile and then having missed the ferry he sought to exit. However, he refused to pay the further penny required so the turnstile operator refused to allow him to exit. There was no false imprisonment since:

…the claimant was merely called upon to leave the wharf in the way in which he contracted to leave it. There is no law requiring the defendants to make exit from their premises gratuitous to people who come there upon a definite contract which involves their leaving the wharf by another way.

Again in Herd v Weardale Steel (see paragraph 2.4.4) a miner refused to continue working his nine-hour shift and demanded to be brought to the surface. The defendants refused and there was no false imprisonment. "…it is not false imprisonment to hold a man to conditions he accepted when he goes down the mine."

The other possible justification is that there has been a lawful arrest, in which case imprisonment and confinement of persons remanded in custody pending a hearing or for questioning, etc, is authorised by statute (see the Police and Criminal Evidence Act 1984 (PACE)). If the grounds for arrest exist, then the claimant must be informed of the arrest, Christie v Leachinsky [1947] AC 573, and s 28 PACE 1984, and taken to a designated police station as soon as practicable, s 30 and John Lewis v Tims [1952] AC 676.

Note: where there is a wrongful continuation of an original lawful imprisonment, an action may be brought for false imprisonment (see Roberts v Chief Constable of Cheshire [1999] 2 All ER 326).

Similarly, when a prisoner has been detained on the basis of an unlawful policy, this will constitute false imprisonment even if the prisoner could and would have been detained on the basis of an alternative lawful policy: R (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12. Note that damages will be nominal since no loss or damage has been suffered in these circumstances.

The offence of theft is found in s 1(1) Theft Act 1968, which provides: 'A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it …’

This section defines theft, explaining the five elements required for the offence. The prosecution must prove all these elements in order to secure a conviction for theft.

1. Actus reus
   1. Appropriation (TA 1968, s 3)
   2. Property (TA 1968, s 4)
   3. Belonging to another (TA 1968, s 5)
2. Mens rea
   1. Dishonestly (TA 1968, s 2)
   2. With the intention to permanently deprive (TA 1968, s 6)

The word 'appropriation' is defined in part in the TA 1968, s 3(1): 'Any assumption by a person of the rights of an owner amounts to an appropriation …'

R v Morris [1983] 3 All ER 288 FACTS: The defendant took items from a shelf in a self-service shop. He removed the correct price labels and replaced them with labels taken from lower-priced goods. At the checkout, the defendant paid the lower price for the items. He was arrested and subsequently convicted of theft. HELD: Both the Court of Appeal and the House of Lords dismissed his appeal against conviction. It was held that it is only necessary to assume one of the rights of the owner. It was the owner’s right to label his goods, so when Morris swapped the labels this was an appropriation. Two important points emerge from this case.
(1) The assumption of any one of the rights of an owner amounts to an appropriation.
(2) D may be guilty of theft although he does not intend by the act of appropriation itself to deprive P permanently of the property.

The issue was settled in R v Gomez [1993] 1 All ER 1 (HL), where the majority in the House of Lords decided that a defendant can appropriate property even with the consent of the owner.

The decision in Gomez (R v Gomez [1993] 1 All ER 1 (HL)), that appropriation is a neutral act, makes it possible for there to be theft of a gift. R v Hinks [2000] 4 All ER 833 FACTS: The defendant became friendly with a 53-year-old man of limited intelligence. Every day she took him to his building society and he withdrew the maximum daily amount of £300. She influenced, persuaded, or coerced him into giving her this money. Ultimately, he gave her £60,000. She was charged with theft. The trial judge directed the jury to consider the donor's state of mind when he gave the defendant the money and whether the defendant was dishonest. The defendant was convicted. She appealed against her conviction on the grounds that the trial judge had failed to clearly direct the jury that she could not be guilty of theft if the donor had made a valid gift to her. HELD: The House of Lords dismissed the appeal and held: (a) appropriation is a neutral act and the state of mind of the donor is irrelevant to appropriation; (b) therefore appropriation could take place with or without the consent of the owner; and (c) therefore a person could be guilty of stealing a valid inter vivos gift.

In such circumstances, when the defendant does form the necessary mens rea later it will then be necessary to apply the TA 1968, s 3(1), which provides for a later assumption of the owner’s rights to amount to an appropriation:

'Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.' (Emphasis added.)

This section can be applied when the initial assumption of the rights of the owner does not amount to theft. It provides that a later assumption of a right, either by keeping it or by dealing with it, will be an appropriation. The theft will therefore take place when the defendant forms the mens rea, subject to the remaining elements also being present.

The TA 1968, s 3(2) exempts a defendant from liability for theft where the defendant purchases goods in good faith and for value, then later discovers that the seller had no title to the property, but decides to keep it. Note that mala fides (bad faith) precludes the protection afforded by the TA 1968, s 3(2).

In R v Adams [1993] Crim LR 72, the defendant purchased goods not knowing that they were stolen. The trial court convicted him of theft on the basis that there had been a later appropriation under the TA 1968, s 3(1) when he kept the goods after finding out that they were stolen. However, the conviction was quashed on appeal on the ground that the judge failed to direct the jury that he had a defence under the TA 1968, s 3(2).

In order to prove theft it must be established that the defendant has appropriated property. The TA 1968, s 4 defines what property may be stolen. Generally, all property may be stolen, although there are certain exceptions in relation to land, things growing wild, and wild creatures.

In Oxford v Moss, it was held that confidential information cannot fall within the definition of intangible property contained in the TA 1968, s 4(1). (1978) 68 Cr App R 183.)

The Theft Act 1968, s 5(1) provides:

'Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest ...'

This is a wide definition, which extends beyond ownership to include those having possession or control of it or a proprietary interest in it at the moment of appropriation.

Property can cease to belong to another if it has been abandoned. However, the courts do not readily find that property has been abandoned. In Williams v Phillips (1957) 41 Cr App R 5), it was held that a householder does not abandon goods that he puts in his dustbin. He intends the goods to be collected by the local authority, so a dustman could be guilty of theft if he appropriates goods from a dustbin with the relevant mens rea.

Property is not abandoned just because the owner has stopped looking for it. David Ormerod and Karl Laird in Smith and Hogan’s Criminal Law p938 note that a husband who has lost his wedding ring and has long since given up looking for it, will not have abandoned it. In Hibbert McKiernan [1948] 1 A;; ER 860 it was held that lost golf balls had not been abandoned by their owners. However, this does not mean that property cannot be abandoned. It will depend on whether the owner wants the property himself or to go to another party, or whether he does not mind what happens to it.

The TA 1968, s 5(1) states that property belongs to those having possession or control of it. The courts have found that property can belong to persons who have possession or control, not just of the specified property, but over the land upon which it was found. This can be so even if the owner of the land is unaware of its existence.

R v Woodman [1974] 2 All ER 955 HELD: The Court of Appeal held that, because the factory owners had taken steps to exclude trespassers, there was evidence that they were in control of the factory and thereby had control of the scrap metal, which unknown to them, had been left inside the factory.

Parker v British Airways Board [1982] 1 All ER 834 FACTS: The defendant was an airline passenger who found a gold bracelet in a British Airways executive lounge. The court considered whether British Airways had possession or control of the bracelet. HELD: The court decided that the company did not, but stated that if it had shown an intention to exercise control over the building and things in it, the company could have secured possession of the bracelet before the defendant found it. The court held that British Airways could have demonstrated this intention either expressly, for example by putting up a notice, or impliedly. However, in this case it had shown no such intention. When the original owner did not come forward to claim the bracelet it could be kept by the passenger.

R v Turner (No 2) FACTS: The defendant took his car to a local garage. He later contacted the mechanic to check if the car was ready and was told that it was. The defendant took the car using his spare keys without paying the bill. He was convicted of theft and appealed. HELD: The Court of Appeal held that the mechanic was in possession and control of the car and, therefore, the car did 'belong to another'.

The TA 1968, s 5(3) enables the prosecution to prove that the property still belongs to another for the purposes of the Act, without the need to use the TA 1968, s 5(1), which could involve much more complex legal issues. The TA 1968, s 5(3) provides:

'Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.'

However, the TA 1968, s 5(3) will only operate where the accused is under a legal obligation to use the property for the purpose given.

R v Hall [1972] 2 All ER 1009 FACTS: The defendant, a travel agent, took money for flights. Instead of using the money to buy airline tickets, he put it into the business account and it was used to pay off his creditors. Subsequently, the defendant went bankrupt and the customers lost the money they had paid to him. HELD: The Court of Appeal held that the TA 1968, s 5(3) did not apply because it was not established that his clients expected him to retain and deal with the money in a particular way, or that an obligation to do so was undertaken by him. Although the clients expected tickets in return for their money, they did not expect their the money to be kept separately, but rather to go towards the general running of the business.

Davidge v Bunnett [1984] Crim LR 297 FACTS: The defendant shared a flat with others. They all shared the costs of bills. On receipt of a gas bill for the sum of £159.75, the defendant was given cheques to the value of £109.75 towards the cost of the bill to which she was expected to add the outstanding £50.00. The defendant cashed the cheques and spent the money on Christmas presents. She was convicted of theft. The Queens Bench Division held that she was under a legal obligation to apply the proceeds of the cheques to the payment of the gas bill. HELD: The defendant's conviction for theft was upheld. This case confirms that obligations can be imposed upon domestic/social arrangements.

R v Breaks and Huggan [1998] Crim LR 349 FACTS: The defendants (B and H) were the directors of an insurance brokerage company, which placed insurance on behalf of clients with Lloyds of London, through Lloyds' brokers. They failed to keep funds given to them by clients separate from their private funds and the company's account. They did not pay the money into a separate client account. The money was used for unauthorised purposes and the defendants were charged with theft. The prosecution alleged that while the money was in the defendants' account, they were under a legal obligation to forward this money on to the insurance brokers. Accordingly, under the TA 1968, s 5(3), the money still belonged to the clients and the defendants were guilty of stealing it when they dishonestly used it for an unauthorised purpose. The trial judge ruled that the object of the TA 1968, s 5(3) was to avoid the effects of civil law regarding the passing of title in money. The TA 1968, s 5(3) would effectively and automatically apply when money was given with the expectation that it would be used for a particular purpose. The accused were convicted and appealed to the Court of Appeal against their convictions. HELD: The Court of Appeal held that the TA 1968, s 5(3) had no automatic application. It was for the trial judge to decide, in each individual case, whether the accused was under a legal obligation according to civil law, to deal with the property in a particular way. B and H's convictions were quashed.

R v Klineberg and Marsden [1999] 1 Cr App R 427
FACTS: The defendants (K and M) set up a company to buy a timeshare development under construction in Lanzarote and to sell the timeshares. The purchasers were told that their money would be paid to a stake-holding trust company to be held on trust until the development had been completed and was ready for occupation. Various purchasers paid a total of £500,000 for timeshares of which only £233 was paid to the trust company. The rest was paid into the company's bank account and 'lost' when the company went into liquidation. K and M were convicted of ten counts of theft. They appealed against their convictions, arguing that once the money was paid into the company's account, it no longer belonged to the customers. HELD: The Court of Appeal dismissed the appeal in part and upheld six of the ten convictions. They stated that K and M's express assurances that the money would be safeguarded by payment to a stake-holding trust company meant that they were under a legal obligation to do just that. The prosecution had proved that on six counts that the defendants were under an obligation to deal with the money in a particular way. Accordingly, under the TA 1968, s 5(3) the money would be deemed to belong to the purchasers.

R v Wain [1995] 2 Cr App R 660 FACTS: The defendant raised money in a telethon for a charity. He deposited the monies into a separate bank account, but when asked for the proceeds by the charity organisers he made excuses not to hand the money over and obtained permission to pay it into his own bank account. He then handed cheques drawn on his own account to the organisers but these were not met. At the same time, he was withdrawing money from the account for his own use. HELD: The Court of Appeal held:

'[B]y virtue of section 5(3), the appellant was plainly under an obligation to retain, if not the actual notes and coins, at least their proceeds, that is to say the money credited in the bank account which he opened for the trust with the actual property. When he took the money credited to that account and moved it over to his own bank account, it was still the proceeds of the notes and coins donated which he proceeded to use for his own purposes, thereby appropriating them.'

The TA 1968, s 5(3) does not prevent the defendant having legal ownership, but it provides that, for the purposes of the Act, the property also belongs to another. Under these circumstances, the prosecution would still have to prove that there was a dishonest appropriation, and that a defendant intended to permanently deprive. The TA 1968, s 5(3) only deals with one element of theft – 'belonging to another'.

The TA 1968, s 5(4) caters for the situation where title has passed to the defendant due to another's mistake and allows property to belong to another for the purposes of the Act. The TA 1968, s 5(4) was enacted to eliminate the problem highlighted in Moynes v Cooper.

Moynes v Cooper [1956] 1 QB 439 FACTS: D, a labourer, had an advance on his wage. By mistake, the advance was not deducted from his wage packet at the end of the week. D discovered this when he arrived home and then decided to keep the full wages. HELD: His conviction for larceny was quashed. Ownership of the money passed when it was given to him. At this time he had not formed the dishonest intention to keep the money. The TA 1968, s 5(4) provides:

'Where a person gets property by another's mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.'

A-G's Reference (No 1 of 1983) [1984] 3 All ER 369 FACTS: The defendant, a policewoman, was mistakenly overpaid £74.74 for overtime that she had not worked and the money was credited to her bank account. At the original trial, the judge misdirected the jury to acquit the defendant, therefore the prosecution appealed to the Court of Appeal on a point of law. HELD: The Court of Appeal held that although ownership of the money had passed to the defendant, from the moment she became aware that the mistake had been made, she was under a legal obligation to restore the money. Consequently, by virtue of the TA 1968, s 5(4) [1988] Crim LR 465 for the purposes of the Theft Act 1968, the money would be regarded as belonging to the police authority.

The Theft Act 1968 does not define the term 'dishonesty'. It is for a jury to decide whether an appropriation is dishonest. However, the TA 1968, s 2 specifies three situations, in which an appropriation of property is not to be regarded as dishonest.

The TA 1968, s 2(1) sets out three separate circumstances in which a person will not be dishonest.

1. By the TA 1968, s 2(1)(a), a defendant who believes he has in law the right to deprive the other of the property, either for himself or another, will not be dishonest.
2. By the TA 1968, s 2(1)(b), a defendant who believes the person to whom the property belongs would have consented had he known of the appropriation and the circumstances of the appropriation will not be dishonest.
3. By the TA 1968, s 2(1)(c), a defendant who believes that the person to whom the property belongs cannot be discovered by taking reasonable steps will not be dishonest. There is no need for him to take reasonable steps; it is only necessary to believe that such steps will not enable him to find the owner.

Although the TA 1968, s 2(1)(c) may apply to the original finding, if the owner becomes known to the accused later, then with the application of the TA 1968, s 3(1) (later appropriation), keeping the property at this later stage could be dishonest and therefore theft.

The act does not require the defendant's belief to be reasonably held. As long as it is genuinely held he will not be dishonest. This has been confirmed by the courts in R v Robinson. [1977] Crim LR 173.

In R v Ghosh, [1982] QB 1053. Lord Lane stated: 'In determining whether the prosecution have proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people to consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.' (Emphasis added.)

The TA 1968, s 2(2) provides that a person can appropriate property dishonestly, despite being willing to pay for the property. This allows people to be convicted of theft when they take property that the owner does not wish to sell, intending to pay for that property.

A person cannot be convicted of theft if he only forms the dishonest intent after ownership of the property has passed to him. An example can be found in Edwards v Ddin ([1976] 1 WLR 942.). The general civil rule is that title in property passes at the time at which the parties intend it to pass.

Ownership of property usually passes when it is paid for, but ownership of food passes when it is eaten – Corcoran v Whent ([1977] Crim LR 52.) (at which point it also ceases to be property) – or possibly earlier, e.g. when it is ordered and cooked in a restaurant. Ownership of petrol passes when it is put in a petrol tank. In the absence of mens rea from the outset, the appropriate charge for this type of offence would be making off without payment under s3 Theft Act 1978 which was brought in to cover those who were unable to be convicted of theft in these situations.

The TA 1968, s 1(1) requires that the accused must 'intend to permanently deprive' the owner of his property. There is no requirement that the owner is actually deprived of his property permanently. The defendant must have the intention to permanently deprive at the time of the appropriation.

The Act does not define intention to permanently deprive and it should be given its ordinary everyday meaning. The TA 1968, s 6 should not be referred to where it is clear that the defendant does intend the owner to lose his property permanently: R v Lloyd ([1985] 2 All ER 661.)

The TA 1968, s 6(1) extends the meaning of intention to permanently deprive to cover certain circumstances when the defendant does not intend the owner to lose his property itself. The TA 1968, s 6(1) states that if the defendant has an intention to treat the thing as his own to dispose of regardless of the others rights, this will amount to an intention to permanently deprive.

R v Scott [1987] Crim LR 235 FACTS: Scott 'stole' a pair of curtains from a store intending to return them the following day, alleging that she had purchased them and claiming a refund. HELD: Her conviction for theft was upheld since she had treated the thing as her own to dispose of regardless of the other's rights.

R v Raphael [2008] EWCA Crim 1014 FACTS: The defendants had taken the victims' cars by force, demanding money in return for their return. HELD: The Divisional Court agreed that this situation was covered by the TA 1968, s 6(1).

DPP v J [2002] EWHC 291 FACTS: The defendants had accosted a boy on his way home from school. One of them snatched the boy's headphones and another defendant snapped them in two. HELD: Silber J noted that once the headphones had been snapped, they were useless and could be said to have been dealt with definitely, to have been got rid of, or finished. He said that the intention of the defendants has to be inferred from their acts, thus this defendant had demonstrated an intention to treat the headphones as his own to dispose of regardless of the owner's rights.

The dictionary definition accords with what had been stated previously by Lord Lane in R v Lloyd ([1985] 2 All ER 661.). He said the first part of the TA 1968, s 6(1) covers situations where the defendant takes things and then offers them back to the owner to buy if he wishes. He said it also covers 'ransom cases' where D will only return the owner's property on the fulfilment of a condition.

R v Cahill [1993] Crim LR 141 FACTS: In this case, the defendant and his co-accused, Jenner, were returning home after a night out. Both defendants were intoxicated. Two plain-clothed officers watched the defendants as they headed down the street. Cahill stumbled over a pile of newspapers meant for the nearby newsagents. It was alleged by the prosecution that Jenner took one of the papers and that Cahill picked up the package of newspapers and walked off with them. Both men were immediately arrested and subsequently convicted of theft. Cahill argued that he thought that he had picked up a bag of rubbish and he was under the impression that it would be left on a friend's doorstep as a practical joke.
HELD: His conviction for theft was quashed, on the basis that the original trial judge misdirected the jury on the meaning of the TA 1968, s 6(1), by failing to mention the words 'to dispose of'. The Court of Appeal determined that the phrase 'to dispose of' limited the operation of the TA 1968, s 6(1) to where the accused intended to: 'To deal with definitely: to get rid of; to get done with, finish. To make over by way of sale or bargain, sell.'

R v Fernandes [1996] 1 Cr App R 175
FACTS: Fernandes was a solicitor who transferred money out of his clients' accounts and invested it in a risky money-lending business. The money was lost. He claimed not to have had an intention to permanently deprive as he intended to return the money. It was argued on his behalf that the TA 1968, s 6(1) only covered cases of selling the owner his own property, of borrowing and of pawning (which is covered by the TA 1968, s 6(2) see below). HELD: The Court of Appeal held that these were merely three examples of treating property as your own to dispose of regardless of the other's rights and there could be others – Auld LJ:

'We consider that section 6 may apply to a person in possession or control of another's property who, dishonestly and for his own purpose, deals with that property in such a manner that he knows he is risking its loss.'

R v Mitchell [2008] EWCA Crim 850 FACTS: The defendant was believed to be part of a gang who took a car by force in order to escape from the police. The car was found abandoned a short while later with its doors open and hazard lights on. Following his arrest, the defendant was charged with robbery, which requires as part of the rules, that a complete theft had been committed (see Chapter 14). HELD: The Court of Appeal criticised the trial judge direction to jury as he had omitted any reference to the words 'to dispose of'. The Court of Appeal stated that it is not enough to merely deal with the property as your own. They referred to the dictionary definition as quoted in Cahill and, on the facts, did not feel that the car had been 'got rid of, sold or bargained with'. Nor did the judges feel that the defendant had dealt with the car in a manner knowing that he was risking its loss, as per Fernandes. The manner in which the car was left suggested that they knew the owner of the car would get it back. On that basis, the defendant was successful in his appeal and his conviction was quashed, the defendant had not intended to treat the car as his own to dispose of regardless of the owner's rights.

A review of all the important cases on this element was undertaken by the Court of Appeal in R v Vinall. ([2011] EWCA 6252.) The court did not even mention the case of Lavender and it is no longer thought to be good law. Instead, in R v Vinall Pitchford LJ said:

'What section 6(1) requires is a state of mind in the defendant which Parliament regards as the equivalent of an intention permanently to deprive, namely "his intention to treat the thing as his own to dispose of regardless of the other's rights". The subsection does not require that the thing has been disposed of, nor does it require that the defendant intends to dispose of the thing in any particular way. No doubt evidence of a particular disposal or a particular intention to dispose of the thing will constitute evidence of the defendant's state of mind but it is, in our view, for the jury to decide upon the circumstances proved whether the defendant harboured the statutory intention.'

The second half of the TA 1968, s 6(1) states that borrowing or lending of property can amount to intending to treat it as his own to dispose of regardless of the other's rights. This will be the case if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

R v Lloyd [1985] QB 829 FACTS: Lloyd was a projectionist in a cinema. He borrowed films from the cinema, and with others, he copied them onto videotape, sold the videotapes, and then returned the original films to the cinema ready for the next show. Lloyd and his co-accused were convicted of conspiracy to steal (theft). HELD: On appeal, the Court of Appeal quashed the convictions. Refusing to hold that their actions were covered by the TA 1968, s 6(1), Lord Lane CJ said:

'In this case we are concerned with the second part of s 6(1), namely the words after the semi-colon: "and a borrowing or a lending of it may amount to so treating if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal." This half of the subsection ... is intended to make it clear that a mere borrowing is never enough to constitute the necessary guilty mind, unless the intention is to return the "thing" in such a changed state that it can truly be said that all its goodness or virtue has gone: for example: R v Beecham (1891) 5 Cox CC 181, where the defendant stole railway tickets intending that they should be returned to the railway company in the usual way only after the journeys had been completed ... The judge in the present case gave another example, namely the taking of a torch battery with the intention of returning it only when its power is exhausted. The goodness, the virtue, the practical value of the films to the owners has not gone out of the article. The film could still be projected to paying audiences, and, had everything gone according to the conspirators' plans, would have been projected in the ordinary way to audiences at the Odeon Cinema, Barking, who would have paid for their seats. Our view is that those particular films which were the subject of this alleged conspiracy had not themselves diminished in value at all. What had happened was that the borrowed film had been used or was going to be used to perpetrate a copyright swindle on the owners whereby their commercial interests were grossly and adversely affected ...'

So the question to ask where property has been borrowed is: 'Was the intention to return it minus all its goodness, virtue and practical value?' If the answer is 'yes', then this will be equivalent to an outright taking or disposal, which the TA 1968, s 6(1) states counts as treating it as his own to dispose of regardless of the other's rights, which is equivalent to having an intention to permanently deprive.

The TA 1968, s 6(2) states that a person who parts with property under a condition as to its return, which he may not be able to perform, is deemed to be treating the property as his own to dispose of regardless of the other's rights. This subsection covers cases where D pledges P's property as security for a loan. At the time he may intend to redeem the loan and return the property to P. However, he has parted with the property under a condition as to its return which he might not be able to fulfil.

R v Velumyl [1989] Crim LR 299 FACTS: The defendant had borrowed money from his employer's safe, even though he knew this was against company rules. He said he intended to repay it on the following day after a debt had been repaid to him. HELD: It was held by the Court of Appeal that intending to return coins of an equivalent value is not the same as intending to return the identical ones that were taken. Therefore, although such an intention may be relevant to the issue of dishonesty, it does not negative the intention to permanently deprive the owner of the original notes and coins.

Where one is dealing with a single cause for the damage, the test that must be satisfied is to show that ‘but for’ the defendant’s breach of duty the claimant would not have suffered the loss. See Cork v Kirby Maclean Ltd [1952] 2 All ER 402. Even where the situation is more complex, the ‘but for’ test should always be the starting point for trying to establish what kind of situation is present. It may also help to identify whether an alternative test is necessary and, if so, which one.

In Barnett v Kensington and Chelsea Hospital [1969] 1 QB 428 the hospital breached the duty of care owed to a patient in that a doctor failed to carry out a proper examination. The patient died of arsenic poisoning. However, the evidence showed that he would have died even if the doctor had examined him. Therefore, there was no factual causation, the ‘but for’ test having not been satisfied. It was, however, accepted that the doctor had been in breach of his duty.

Note: it is not always clear what would have happened but for the defendant’s negligence. In Mount v Baker Austin [1998] PNLR 493, solicitors failed to pursue their client’s claim sufficiently quickly with the result that it was ‘struck out’, i.e. dismissed by the court as having no real merit for trial. The client sued the solicitors for the delay. The court held that the client had failed to show that his original claim had a realistic prospect of success, and, therefore, it could not be said that the solicitors’ negligence had caused any loss.

Independent Causes In some situations the claimant has suffered a loss that is known to have been caused by one factor working independently (A or B = loss). A good example of a case to illustrate this is Wilsher v Essex AHA [1988] AC 1074. In this case the plaintiff had been born prematurely. He suffered a condition that caused him to go blind. There was evidence that his blindness could have been caused by any of five different factors, only one of which was tortious (i.e. an excess of oxygen given incorrectly). The others were all the natural result of his premature birth. The evidence suggested that these factors did not operate together to cause the blindness – one factor was solely responsible for the loss. The court applied the ‘but for’ test in this situation. The plaintiff had to prove that but for the defendant’s breach he would not have suffered the blindness. As the standard of proof in civil actions is the balance of probabilities, the plaintiff had to establish that is was more likely than not (i.e. 51 per cent) that the blindness was caused by the negligence as opposed to any of the other possible factors. The plaintiff was unable to do this on the evidence available and so did not succeed.

Where there are several possible independent causes of a loss and it is not possible to prove from the evidence available which one actually caused the loss then the claimant will fail. This is because the claimant has the burden of proof when applying the but for test. There is one notable exception to this – Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32 discussed below.

In some situations a loss is known to have been caused by two or more factors operating together (A + B = loss). A case which illustrates this is Bonnington Castings v Wardlaw [1956] AC 613. The plaintiff claimed compensation in negligence from his employers for a respiratory disease. Whilst it was clear that the cause of the disease was exposure to dust at work, only part of this exposure was due to the defendant’s breach of duty. Some of the exposure was deemed to be a natural consequence of the work being carried out (and therefore non-tortious). Here the tortious and non-tortious factors operated cumulatively to produce the loss. The application of the ‘but for’ test, in this situation, is more complex than when dealing with independent causes. The plaintiff would not have suffered the loss but for the exposure to dust. It was impossible to tell, however, how much of the loss was caused by the tortious exposure to the dust and how much by the non-tortious exposure as they operated together. The House of Lords resolved the issue by introducing the material contribution test. If the defendant’s breach could be proved to have materially contributed to the plaintiff developing the disease then the defendant would be liable for all the loss.

This approach was followed in McGhee v National Coal Board [1973] 1 WLR 1 (HL) where the plaintiff had contracted dermatitis as a result of exposure to brick dust. The plaintiff worked with brick dust during his working hours and there was no breach in relation to this exposure (i.e. it was non-tortious). His employers, however, were in breach of duty for failing to provide washing facilities for him to wash the brick dust off his skin at the end of the working day. As a result the brick dust was on his skin for an extended amount of time including his cycle journey home. Again, the plaintiff would not have contracted dermatitis but for the exposure to brick dust. The medical experts could not state with certainty whether the dermatitis was caused by the exposure during the working day (non-tortious) or through the extended time that the dust remained on his skin (tortious). The House of Lords again imposed liability on the defendant on the basis that their breach had materially increased the risk of the claimant’s injury. It seems that despite a difference in terminology there is no practical difference between materially contributing to the risk and materially increasing the risk in that case.

It has been suggested in the past that the test in Bonnington Castings and McGhee was particularly suited to cases involving industrial disease, whereas the approach in Wilsher was more relevant to medical negligence cases. However, the recent case of Bailey v Ministry of Defence [2008] EWCA Civ 883 shows that this simplistic analysis is not always appropriate. The case involved negligent medical treatment. The medical experts were unable to say whether the negligent treatment was on the balance of probabilities the cause of the claimant’s cardiac arrest and brain damage. They were able to determine, however, that the brain damage was caused by the negligence working together with the natural progression of the claimant’s condition (i.e. factors working together cumulatively rather than independently). The Court of Appeal therefore applied the Bonnington test and concluded that factual causation was satisfied because the negligence materially contributed to the risk.

The material increase in risk approach was also used in Mountford v Newlands School [2007] EWCA Civ 21, where the defendant schoolmaster was held to have increased the risk of the claimant suffering injury in a school rugby match by selecting a player who was older than the age limit for the team. This demonstrates the willingness of the courts to apply the material contribution test in cases beyond industrial disease.

The conclusion to be drawn so far from this line of authority is this: you should always begin by applying the but for test, if only to explain why it does not work or why it produces the result that it does. This was the approach adopted in Wilsher, etc. So where there are a number of potential causes of the claimant’s damage, each acting independently of the other, then the approach adopted in Wilsher should be followed. The claimant must therefore prove, on a balance of probabilities, that it was the defendant’s breach that caused the damage (applying the ‘but for’ test). However, where the various potential causes work cumulatively together to produce the damage, the court might be prepared to deviate from the standard but for test, and apply the material contribution/material increase in risk approach. This is particularly likely, as emphasised in Bailey v Ministry of Defence, where medical or other expert witnesses are unable, because of a lack scientific knowledge, to identify which of the various causes was likely to be most important.

Applying the Fairchild test in Barker v Corus UK Ltd [2006] UKHL 20, the House of Lords held that liability should be apportioned according to each defendant’s contribution to the total risk of mesothelioma. This has been reversed in respect of mesothelioma claims by s 3 Compensation Act 2006 which restored joint and several liability. The Supreme Court has since confirmed that it is the mesothelioma itself rather than the risk of mesothelioma that forms the gist of the negligence action: Durham v BAI (Run Off) Ltd [2012] UKSC 14 (employers’ liability policy ‘trigger’ litigation).

A straightforward example of this can be found in the case of Performance Cars v Abraham [1962] 1 QB 33. Here, a collision occurred between two cars, one being the plaintiff’s Rolls Royce, as a result of the negligence of the other driver. The damage to the Rolls Royce required a respray of the whole car to remedy it. Two weeks later, a second collision between the same Rolls Royce and a different car, driven by the defendant, caused similar damage which also required a respray to repair it. The Court of Appeal concluded that, as the requirement for a respray already existed before the second collision, there was effectively no damage arising from that second collision.

A more complex situation is illustrated in Baker v Willoughby [1970] AC 467. The plaintiff suffered a leg injury in a road traffic accident caused by the defendant’s negligent driving. At a later date, whilst at work, the plaintiff was shot in a robbery and his injured leg had to be amputated. The House of Lords held that the first defendant should continue to be liable for the original injuries to the leg, beyond the time of the second defendant’s intervention. In such situations it would be for the intervening tortfeasor (here the robber) to compensate for any additional losses caused.

By contrast, in Jobling v Associated Dairies [1982] AC 794, the defendant negligently injured the plaintiff in a work accident. Some time later, the plaintiff suffered a further back injury, (non tortious) arising from an illness unconnected to the accident. This further injury meant he was unable to work. It was held that the defendant’s liability ceased at the point that the further back injury developed. He did not have to compensate the plaintiff for the ‘vicissitudes of life’.

Natural events will not break the chain of causation if they could have been foreseen by the defendant and they should have taken them into account as events that were likely to happen. If the natural event was wholly unconnected with the defendant’s acts (independent and unforeseeable) the chain will be broken. In Humber Oil Terminal Trustee Ltd v Sivand [1998] CLC 751, further expenses incurred in the repair of harbour installations caused by the collapse of the sea bed were still recoverable. The collapse was not a novus actus in that it was in the realms of foreseeability.

However, if the later illness can itself be linked to the defendant’s breach, then there will be no break in the chain. In Meah v McCreamer (No 1) [1985] 1 All ER 367 the plaintiff suffered injury in a road accident which later led to him developing a personality disorder. This disorder led to the plaintiff committing various criminal acts including rape. As the disorder was linked to the original tort, it could not be said to break the chain of causation.

Where the subsequent event is the act of a third party, the courts have viewed it as breaking the chain of causation if it is unforeseeable. In Knightley v Johns [1982] 1 WLR 349, the first defendant caused a road traffic accident. Subsequently, a police inspector negligently handled traffic control following the accident. This negligence led to the plaintiff, a police officer, being killed (he had been ordered to travel down a tunnel against the flow of oncoming traffic). The first defendant successfully argued that the negligent handling by the police inspector broke the chain of causation between his negligence and the death of the officer.

If the third party has acted instinctively (as in ‘the heat of the moment’) then there will be no break in the chain of causation (Scott v Shepherd (1773) 2 Wm.BC.892.

As a matter of policy, the courts are also reluctant to hold that medical treatment breaks the chain of causation. When a defendant causes injury, he takes the risk that the claimant may not respond well to medical treatment, or that the medical treatment may not be perfect. Only medical treatment that is manifestly unreasonable or ‘palpably wrong’ will break the chain of causation.

In Robinson v The Post Office [1974] 2 All ER 737 the plaintiff was injured through the defendant’s negligence and was given an anti-tetanus injection, to which he proved allergic. This did not break the chain of causation as it was not regarded as ‘palpably wrong’ (and would not have been necessary had it not been for the defendant’s negligence in the first place). Moreover the negligent administration of the anti-tetanus injection was not a ‘but for’ cause of the claimant’s injury (since it would still have been administered even if the doctor had done an allergy test first) so it could not break the chain of causation.

the basic situation is that acts will break the chain when they are unforeseeable but will not break the chain where they can be foreseen by the defendant. Unforeseeable acts by the claimant will generally be those that are also unreasonable. A helpful case on this issue is Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404, in which Lord Justice Sedley states that the question of where to halt liability is governed, overall, by the concept of fairness:

Fairness, baldly stated, might be thought to take things little further than reasonableness. But what it does is acknowledge that a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to let it continue. In relation to tortious liability for personal injury, this point is reached when (though not only when) the claimant suffers a further injury which, while it would not have happened without the initial injury, has been in substance brought about by the claimant and not the tortfeasor.

In Emeh v Kensington and Chelsea Health Authority [1985] QB 1012, the defendants negligently performed a sterilisation operation on the plaintiff who later fell pregnant and refused to have an abortion. She sued for the cost of bringing up her child. The defendants argued that her refusal to have an abortion broke the chain of causation. The court held that the plaintiff had not acted unreasonably and, therefore, her refusal did not break the chain.

The actions of the claimant will not be treated as a novus actus where the duty of care on the defendant requires them specifically to prevent the claimant from taking such an action. In Reeves v MPC [2000] 1 AC 360, the House of Lords decided that the Metropolitan Police were under a duty to ensure that a prisoner, who was a known suicide risk, did not take his own life while he was in their custody. As a result of failings by the custody officers, the prisoner was able to kill himself. The House of Lords held that a successful argument that the prisoner’s action amounted to a novus actus would, in effect, remove the impact of imposing the duty of care on the defendant.

The effect of the suicide of the victim was also considered in Corr v IBC Vehicles [2008] 2 WLR 499. Unlike Reeves and Kirkham, the duty of care owed by the defendant in this case did not relate specifically to a responsibility to prevent the claimant’s suicide. Mr Corr suffered a severe head injury in an accident at work. This not only caused physical injuries, but also led to significant psychological symptoms, including post-traumatic stress disorder (PTSD) and depression. Six years after the accident, he killed himself. Defence counsel argued that, except where the defendant had a specific responsibility to prevent the claimant from actively harming himself, the act of the injured person in committing suicide would amount to a novus actus unless he or she was legally insane, and therefore not in control of his actions. The House of Lords rejected this approach.

Mr Corr's suicide was not a voluntary, informed decision taken by him as an adult of sound mind making and giving effect to a personal decision about his future. It was the response of a man suffering from a severely depressive illness which impaired his capacity to make reasoned and informed judgments about his future, such illness being, as is accepted, a consequence of the employer's tort. It is in no way unfair to hold the employer responsible for this dire consequence of its breach of duty, although it could well be thought unfair to the victim not to do so [per Lord Bingham].

The defence of volenti is applicable in cases where the claimant has consented to the risk(s) involved and cannot, therefore, complain of the consequential damage. In order to succeed in this defence the defendant must show that the claimant:

1. knew of the nature and extent of the risk; and,
2. voluntarily agreed to the risk of being injured by the defendant; and, in some cases,
3. voluntarily agreed that there should be no legal liability for this. If successful, volenti acts as a complete defence.

The claimant must know of the risk and its extent before they can be said to be volens. This is subjective – did that particular claimant know? It is not a question of whether the reasonable claimant would have known, i.e. objective. For example, in Morris v Murray [1991] 2 QB 6 the plaintiff accepted a lift with a drunken pilot. The plaintiff was drunk as well and this had to be taken account of by the court in determining whether he appreciated the danger involved.

The claimant can only be volens if they acted voluntarily.

A man cannot be said to be ‘willing’ unless he is in a position to choose freely, and freedom of choice predicates not only full knowledge of the circumstances of which the exercise of choice is conditional, so that he may be able to choose wisely, but the absence of any feeling of constraint so that nothing shall interfere with the freedom of his will. (Scott LJ in Bowater v Rowley Regis Corporation [1944] KB 476).

In Smith v Charles Baker & Sons [1891] AC 325 (in which the plaintiff was hit by a rock from a crane) it was stressed that the requirement of voluntary consent was in addition to knowledge of the risk. Employees who know of the risks of their jobs are not necessarily voluntarily running those risks, since they may have little real option if they wish to keep their job.

Consent may be given expressly, e.g. a written agreement, or by implied conduct, e.g. sporting events. In Hall v Brooklands Auto Racing Club [1933] 1 KB 205 the plaintiff was injured while watching a race. The plaintiff’s claim failed because ‘the type of danger to spectators was inherent in the sport and the plaintiff must be taken to have assented to the risk of such an accident...’

The claimant must possess the mental capacity to consent. This was clearly stated in Kirkham v Chief Constable of Greater Manchester [1990] 2 QB 283 in which the defence of consent, when a prisoner committed suicide in police custody, failed The prisoner was not of sound mind.

The defences of consent will not apply where the claimant, acting under a legal, moral or social duty, has deliberately faced a risk in order to rescue another from imminent danger of personal injury or death. In Haynes v Harwood [1935] 1 KB 146 the defendant’s horse injured the plaintiff, a police officer, who was trying to stop the horse bolting. The plaintiff’s claim succeeded. However, a claimant who was merely interfering in a non-urgent situation, and who, therefore, cannot be classed as a rescuer, might be volens. See Cutler v United Dairies [1933] 2 KB 297 where in similar facts to Haynes, the horse had come to rest and posed no danger. Here the plaintiff, a passer by, lost their claim.

In Nettleship v Weston [1971] 2 QB 691 the plaintiff was a driving instructor who sued his pupil for injuries caused by the pupil’s negligent driving. The fact that he knew she was a learner driver did not mean he agreed to being injured by her

In Dann v Hamilton [1939] 1 KB 509 the plaintiff accepted a lift with someone he knew to be drunk. Again, there was no volenti since there was knowledge of the risk of injury, but no implied agreement to it unless the risk was so extreme that it was the equivalent of ‘meddling with an unexploded bomb’.

As previously discussed, in Morris v Murray [1991] 2 QB 6, where the plaintiff accepted a lift with an obviously drunken pilot, the risk of injury was so great as to be the equivalent of ‘meddling with an unexploded bomb’. Therefore, an implied agreement to run the risk of injury could be established. A similar decision was reached in Ratcliffe v McConnell [1999] 1 WLR 670, when a drunken student dived into a swimming pool not having checked its depth (this case is discussed with reference to Occupiers’ Liability in a later Chapter). See also Sacco v Chief Constable of South Wales Constabulary [1998] (unreported) where a 17 year-old claimant hit his head having jumped from a police van. His drunken state did not negate the defence of volenti.

Consent may be negated by Statute, E.g. s 149 Road Traffic Act 1988 This section prevents the use of volenti as a defence by motorists against their passengers, i.e. a drunk driver cannot rely on the defence of volenti to defeat the claim of a passenger who voluntarily accepts a lift from him and is injured as a result.

Unfair Contract Terms Act 1977 Section 2 prevents the use of contract terms, notices or other means of limiting or excluding liability for death or personal injury and permits exclusion for other damage only in so far as it is reasonable. The Act applies to all those acting in the course of business (s 1(3)). For details, refer to your Contract Manual, Chapter 11. Johnstone v Bloomsbury AHA [1991] 2 All ER 293 involved a junior doctor claiming compensation for damage to his health through working long hours. He had contractually agreed to do this but the Court of Appeal suggested that such terms, which purported to make him volens, were subject to the Unfair Contract Terms Act.

By far the most commonly raised and successful defence is that of contributory negligence. It is not a complete defence, although historically it used to be, but it does give the defendant the opportunity to reduce their liability, i.e. they are rendered partially liable. The basis for the defence is to be found in s 1 Law Reform (Contributory Negligence) Act 1945 which provides that if a person suffers damage partly through his own fault and partly through the fault of another, his damages are to be reduced to the extent that the court considers just and equitable. Section 1(1) states:

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the plaintiff’s share in the responsibility for the damage.

In Jones v Livox Quarries [1952] 2 QB 608 the plaintiff was riding on the tow bar of a vehicle when it was involved in an accident. His being in a dangerous position was regarded as ‘fault’:

a person is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man, he might be hurt himself.

The method of determining contributory negligence can be clearly seen in economic loss cases such as Cavendish Funding Ltd v Henry Spencer & Sons Ltd [1998] PNLR 122, in which an obviously incorrect valuation by the defendants should have put the plaintiff on alert to request more detail.

The claimant is required to take the same degree of care that a reasonable and prudent man would take. The standard is objective and the claimant’s own personal beliefs are disregarded. The standard is, therefore, exactly the same as the standard applied in determining breach of duty

It does not matter that the claimant has not broken the law. In Froom v Butcher [1976] QB 286, even though the wearing of seat belts was not compulsory, the plaintiff was contributorily negligent for failing to wear one since it was imprudent, and the failure to wear the belt contributed to the plaintiff’s injuries.

Allowances are made for the claimant who has been placed in an emergency or difficult dilemma. In Jones v Boyce (1816) 1 Stark 493, a runaway horse and carriage case, the plaintiff’s decision to jump from it was not contributorily negligent. The defendant could not criticise the plaintiff’s attempts to avoid the danger created by the defendant.

In cases where the claimant is a child, the court will take into account their age in determining the standard of care to be expected. In Gough v Thorne [1966] 3 All ER 398 a 13 year-old girl was hit by a lorry driven by the defendant whilst crossing a road. Earlier, a driver had indicated to her that the road was safe to cross. The court held that, taken into account her age, she had not contributed to her own injuries.

Likewise, in Yachuk v Oliver Blais Co Ltd [1949] AC 386 the plaintiff, a nine year-old, purchased petrol from the defendant’s garage claiming it was for his mother. In the event, he was seriously injured whilst lighting fires with the substance. The defendants were found liable in supplying petrol to a child of that age and there was no contributory negligence on the part of the plaintiff, who could not have been aware of the danger.

Rescuers are generally protected from contributory negligence. However, in Harrison v BRB [1981] 3 All ER 679 the court felt that such protection would not be justified if the rescuer had negligently helped to create the emergency in the first place.

The claimant’s fault must contribute to this injury, although it need not contribute to the accident. Therefore, failure to wear a seat belt will be contributory negligence if wearing a seat belt would have reduced or avoided injury (Froom v Butcher [1976] QB 286) (see below). Also, failing to wear a crash helmet (O’Connell v Jackson [1972] 1 QB 270) or even failing to wear a crash helmet properly (Capps v Miller [1989] 1 WLR 839) can contribute to a person’s injury.

The claimant is only contributorily negligent if his injuries are caused by the risk the claimant ran. For example, in Jones v Livox Quarries (above) the plaintiff ran the risk that he would fall from the vehicle if he rode in an unsuitable position. He would not have been contributorily negligent if he had been struck by a rock whilst on the tow bar, since that was not the risk he was running. If it is established that the claimant is at fault, the court will take account of this by making a reduction from the sum of damages to be awarded to the claimant. The court has a discretion on how great a reduction to make. The claimant’s degree of culpability will generally be expressed in percentage terms, taking into account the respective culpability of the defendant and claimant. An equivalent percentage of the damages will then be deducted from the claimant’s award.

The court looks at what is just and equitable in all the circumstances of the case and will be likely to order a greater reduction if the claimant has contributed to the accident as well as his injury. In Froom v Butcher [1976] QB 286, Lord Denning suggested a reduction of 25 per cent if the wearing of the seat belt would have avoided injury and 15 per cent if it would have reduced it. However, these figures are not cast in stone and vary depending on all the circumstances. See also Stanton v Collinson [2010] EWCA Civ 81; Smith v Chief Constable of Nottinghamshire Police [2012] EWCA Civ 161.

The maxim ‘ex turpi causa non oritur actio’ means 'no action may be based on an illegal cause' and appears to rest on the idea that the courts will not help/compensate a claimant where it would be 'an affront to the public conscience' to do so, and might encourage the claimant, or others, in illegal activities. Basically, it operates to deny compensation to a wrongdoer. The principle is based on public policy considerations and there is uncertainty in both its application and justification. Again, it is a complete defence

The crimes of knowingly participating in corruption and intentional handling of stolen cars were considered serious enough for the defence of ex turpi to succeed in Marsh v Pauline Clare (Chief Constable of Lancashire Constabulary) [2003] EWCA Civ 284.

In Pitts v Hunt [1991] 1 QB 24, Dillon LJ stated:

It is clear for a start that the fact that a plaintiff was engaged in illegal activity which brought about his injury does not automatically bring it about that his claim for damages for personal injury as a result of the negligence of the defendant must be dismissed.

The facts of the case were that the plaintiff and defendant had been on a joint drinking spree and were both heavily intoxicated. The plaintiff rode pillion on the defendant's motorbike encouraging the defendant to drive recklessly. The Court of Appeal stated that the joint illegality made it impossible to apply a standard of care and, therefore, the action should fail.

In Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218 the police arrived at the claimant’s flat and arrested him on an outstanding warrant. The claimant managed to free himself from the police and jumped from a second floor window. The court held that no duty of care existed and, in any event, by breaking away from custody, the claimant was committing a crime and ex turpi may well apply.

Many cases still use the affront to public conscience test, as cited in Kirkham v Chief Constable of Greater Manchester [1990] 2 QB 283. The defence has been criticised as being too much of a blunt instrument. If successful no liability is imposed and, in some cases, this can lead to a degree of injustice.

The recent trend is to adopt a causal analysis in cases of joint criminal enterprise. In Delaney v Pickett [2011] EWCA Civ 1532 the claimant was injured in a motor vehicle accident due to the defendant’s negligent driving, but was found to be carrying a large packet of cannabis which the court found the claimant and defendant were travelling to sell. The ex turpi causa defence failed because the claimant’s injury was not caused by his illegal act, the illegality merely provided the occasion for the injury. The court similarly adopted a causal analysis in Joyce v O’Brien [2013] EWCA Civ 546.

Where trust property is vested in the trustees, the trust is said to be ‘completely constituted’. It is then binding on the settlor, who cannot change their mind and revoke the trust (unless the trust specifically authorises revocation – which is rare). The beneficiaries have enforceable rights even though they may have given no consideration for the trust.

If the trust property is not vested in the trustees, the trust is incompletely constituted. If no consideration has been given for the incompletely constituted trust, it is void, subject to certain exceptions. Equity will not compel the settlor to make the trust completely constituted (i.e. to perfect an imperfect gift). The equitable maxim ‘equity will not assist a volunteer’ will generally be applied. If consideration has been given, the incompletely constituted trust may be specifically enforced. ‘equity regards as done that which ought to be done.’

The leading case on constitution is Milroy v Lord (1862) 31 LJ Ch 798, which provides a clear general statement of the issues. The settlor executed a voluntary deed purporting to transfer shares in the Bank of Louisiana to Lord to be held for the plaintiffs. The shares could only be legally transferred by the appropriate transfer form (not by a deed) followed by registration of the new owner in the company’s books, which was never done. The settlor handed the share certificates to Lord, who had a general power of attorney to act on behalf of the settlor that would have enabled him to register the shares in his name. Dividends were subsequently received by Lord and validly distributed to the plaintiffs until the settlor’s death, three years later. The Court of Appeal in Chancery decided that, as the shares had not vested in Lord, there was no trust of the shares, despite the settlor’s clear intention to create one.

Turner LJ mentions three important issues which will be discussed below:

1. The methods appropriate to transferring different types of property;
2. The different methods of conferring a benefit on another; and
3. That equity will not perfect an imperfect gift.

In order to transfer the legal estate in land, the requirements of LPA 1925, s 52(1) must be satisfied. The transfer must be in a deed. (And see Richards v Delbridge (1874) LR 18 Eq 11, below.)

A deed is defined in the Property (Miscellaneous Provisions) Act 1989, s 1. It must be:

1. Written;
2. Signed;
3. Witnessed by at least one independent witness;
4. Describe itself as a deed; and
5. Be delivered.

If the title to the land is unregistered freehold, the deed is called a conveyance. If it is registered at HM Land Registry, a deed called a transfer is used. Legal title to registered land does not pass until registration of the transfer at the Land Registry.

In order to transfer a subsisting equitable interest in land, the settlor must comply with LPA, s 53(1)(c)

In general, with shares of a public limited company (a plc), the directors may not refuse to register the transfer of shares. However, with a private limited company, there is frequently some provision in the company’s articles of association (part of its constitution) restricting the transfer of the company’s shares. Depending on the terms of the articles of association, the directors of a private limited company may refuse to register the transfer. (Further, see Re Rose, 5.6.1.)

The Stock Transfer Act 1963 requires shares to be transferred by the transferor signing a stock transfer form in favour of the transferee. (Electronic transfers are now used to transafer shares in public companies under the CREST system.) The transfer must be registered in the share register of the company (in respect of which the shares are being transferred). To do this, the existing share certificate together with the stock transfer form must be sent to the company’s registrar. Title only passes on registration of the transferee as the new shareholder.

Chattels may be transferred either by a deed of gift or by actual delivery (Re Cole [1964] Ch 175) accompanied by the transferor intending to transfer them.

Cheques (and other bills of exchange) made in favour of the transferor may be transferred to a third party (i.e. someone other than the named payee) by the transferor endorsing the cheque (i.e. signing his name on the back of the cheque), according to the Bills of Exchange Act 1882. (Note: the Cheques Act 1992, and see Jones v Lock (1865) LR 1 Ch App 25, below.)

Money This is transferred by delivery. Merely writing a cheque in someone’s favour and handing it over to the payee does not transfer the money to them until the cheque has been cleared. A cheque is a mandate (instruction) to the payer’s bank to transfer the money from the payer’s account to the payee (or their account). If the payer dies before the cheque has been cleared, their death countermands the instructions to the bank. If the payee has given no consideration for the cheque, they cannot enforce payment.

Equitable Interests These are transferred by signed writing (LPA 1925, s 53(1)(c)).

There are three ways in which a settlor/donor (S) may, during his lifetime, confer the benefit of his property on another, the beneficiary/donee (B). These have been mentioned in Chapter 4 above but are also mentioned below. (Note: that for gifts and trusts taking effect on death, the testator must comply with Wills Act 1837, s 9.)

1. S may make an absolute gift to B; if made effectually, legal title will vest in the donee, who will also enjoy the property beneficially;
2. S may transfer the property to trustees to hold on trust for B; S parts with legal title to the property and the beneficial interest; this method may, for convenience, be called settlement by transfer;
3. S may retain legal title in the property but declare that henceforth they hold it on trust for B; S has ceased to be the beneficial owner of the property, but remains the legal owner; this method is frequently called a declaration of trust, shorthand for the settlor declaring themself a trustee, but the declaration of trust requirements of Law of Property Act, s 53(1)(b) apply to settlements by transfer under 2 as well as 3.

In Timpson’s Executors v Yerbury, Romer LJ said that equitable interests could be disposed of by their owner in four ways (see 4.4 above).Note that a settlor may confer on a trustee the power to create new equitable interests by declaring new trusts for persons within the ambit of the power: such declarations fall outside LPA, s 53(1)(c) but if land is involved will fall within s 53(1)(b).

The general rule is that, if an attempted transfer of property to trustees is imperfect, the trust is not completely constituted and, as equity will not assist a volunteer, no effective trust is created.

If, as in Milroy v Lord (at 5.2 above), the settlor intends to create a settlement by transfer, but fails to vest the legal estate in the trustees, equity will not interpret that transaction as a declaration of trust. The settlor will not be treated as a trustee. A failed method 2 in 5.4 above will not be construed as an effectual method 3.

If the donor intended an absolute gift, but failed to effectively transfer the property, equity will not construe the failed absolute gift (method 1) as a declaration of trust (method 3). The donor will not be treated as a trustee of the property for the intended donee.

In Jones v Lock (1865) LR 1 Ch App 25, Robert Jones returned home without a present for his baby and, on being chided for this, produced a cheque for £900 payable to himself and said, ‘I give this to baby; it is for himself.’ Robert died shortly afterwards. As he had not endorsed the cheque to his son, the property in it had not been transferred and the court rejected the argument that he had declared himself a trustee of the cheque. He had intended an absolute gift, which entails giving away all benefit to, control of and obligation for the property. This is distinct from the intention to declare oneself a trustee, where the settlor/trustee retains control of the property and assumes the onerous obligation of a trustee.

In Richards v Delbridge (1874) LR 18 Eq 11, a grandfather endorsed on his lease a memorandum saying ‘This deed and all thereto belonging I give to Edward [a minor] from this time forth.’ The grandfather later died. It was held that the lease had not been legally assigned. (Endorsement on the deed is ineffective; a separate deed should have been used.) Neither could the attempted transfer be construed as a declaration of trust, because he had not intended to declare a trust but to make an outright gift.

In contrast to the above cases, see Paul v Constance [1977] 1 WLR 527 at 3.2 above, where an effective declaration of trust was found because the court found sufficient intention on the part of Constance to make himself a trustee of the money in the account.

Also see Shah v Shah [2010] EWCA Civ 1408. In that case, the Court of Appeal construed a letter referring to a transfer of shares as a declaration of trust of the shares, rather than a gift. The transferor delivered a letter to the transferee, M. The letter referred to the transferor ‘holding’ shares for M and describing the letter as a ‘declaration’. The transferor did not, however, deliver the share certificates to M, and the forms of transfer and then registration were not completed until a later date. The transferor later challenged the disposition on the ground that the letter constituted a gift, and, as the gift was not completely constituted, it was of no effect. The CA held that on construction the letter was a declaration of trust. This trust took effect until the transfer of legal title took effect by registration of the donee.

The Privy Council was recently asked to reconsider the principle from Milroy v Lord in the case of T. Choithram International S.A. and Others v Lalibai Thakurdas Pagarani and Others [2001] 1 WLR 1. It affirmed the principle but construed the unusual circumstances in benign fashion as amounting to a declaration of trust. A donor orally declared his intention to make a gift on trust to a charity, but he did not actually transfer the legal title to the property to the charity before he died. However, the Privy Council was prepared to uphold the gift, because the donor was himself one of the trustees of the charity and could be regarded as having manifested an intention that, instead of being legal beneficial owner of the property, he would hold it as trustee. Because one of the trustees already had the trust property vested in him, and all trustees are entitled to have the trust property vested in them jointly, the PC ordered the personal representative of the deceased trustee to vest the property in all the surviving trustees.

Where a transfer to a donee or to trustees is incomplete, the general rule is that equity will not assist. Turner LJ in Milroy v Lord (at 5.2 above) said that ‘the settlor must have done everything which was necessary to be done in order to transfer the property and render the settlement binding upon him.’ This has been interpreted as meaning that, where the settlor has done everything within their power, equity may regard the transfer as complete.

In Re Rose [1952] Ch 499, Mr Rose executed two transfers of shares in a private company on 30 March 1943, one by way of gift and the other to trustees. The transfers and share certificates were delivered to the transferees but the directors did not register the transfers until 30 June 1943. It was necessary for estate duty purposes to know when the transfers became effective. Even though legal title did not pass until registration, the Court of Appeal held that the transfers were effective in equity once Mr Rose had done everything in his power to vest the shares in the transferees. Pending registration, the settlor held the legal title to the shares on constructive trust for the transferees. What then would have happened if the directors had refused to register the transfer? The legal title would remain with the settlor but he would have to pay the dividend income to the transferees and vote as directed by them.

Compare Re Fry [1948] Ch 312 where the transferor who was domiciled abroad had not obtained Treasury consent (as required by statute at the time) and died before it was obtained. The transfer of shares was ineffective.

Further, see Zeital v Kaye [2010] EWCA Civ 159, where the Court of Appeal held that the deceased owner of an absolute equitable interest in a shareholding had not done everything in his power to transfer the shareholding when he had not handed over the share certificate, although he had handed over a share transfer form signed by the registered shareholder.

Following the cases of Re Rose and Mascall, it was generally considered that, for the principle to apply, the transfer and other documents must either have been sent off for registration or delivered to the donee or his agent, so as to put it out of the donor’s power to change his mind.

However, the more recent decision of the Court of Appeal in Pennington v Waine [2002] EWCA Civ 227 suggests that this is not necessarily essential. Ada Crampton owned 1500 of the 2000 issued shares in a private company and was one of its two directors. About two months before her death, she told Mr Pennington (a partner in the company’s auditors) that she wished to immediately transfer 400 of her shares to her nephew, Harold. Ada’s share certificates were held by the company. Ada signed a share transfer form and gave it to Mr Pennington, who placed it on his file relating to the company. No further action was taken. (Mr Pennington was held not to be the company’s agent but Ada’s agent when he received the form, i.e. the form was not viewed as having been delivered to the company.) Ada told Harold that she wanted him to become a director. Under the company’s articles, he could not be a director unless he held at least one share. Mr Pennington sent him a form of consent to act as director and Harold and Ada both signed this. Harold then took on the benefits and burdens of being a director It was argued that, for the principle in Re Rose to apply, Ada must have done all in her power ‘irrevocably to transfer ownership’, and that this meant that she would have to have given the relevant documents to the company or Harold or his agent, as otherwise she could change her mind at any time. The Court of Appeal upheld the judge’s decision that the gift to Harold was effective in equity and that there was no legal requirement for the form to be delivered to the donee or the company.

Equitable Proprietary Estoppel This doctrine has sometimes been used to give effect to imperfect gifts – see, e.g. Gillett v Holt [2000] 2 All ER 289 and Thorner v Major [2009] UKHL 18. Proprietary estoppel arises where there is an assurance, reliance and detriment, so that it would be unconscionable to go back on the assurance. The award is based on the 'minimum equity required to do justice', so the claimant does not necessarily receive what he had been led to expect.

Where a donor intends to make a gift during their lifetime but fails to vest the legal estate in the donee, the gift may still be perfected if legal title vests in the donee because they become personal representative to the donor (now deceased), provided the donor had a continuing intention to make the gift up until death. In Strong v Bird (1874) LR 18 Eq 315, Bird borrowed £1,100 from his stepmother who was living with him, paying £212 rent per quarter. The loan was to be repaid, over 11 quarters, by the stepmother deducting £100 per quarter from the rent paid to Bird. She made the deductions for two quarters but then expressly forgave the debt and insisted on paying the full rent per quarter till her death. Bird was appointed her executor and proved her will. The stepmother’s residuary legatees sought an account of Bird for the £900 balance on the basis that the oral release of the debt was ineffective. Jessel MR held that the debt was released at common law by Bird’s appointment as executor as he could not sue himself. Although in equity Bird would normally have been liable to account, this was displaced by proof of the stepmother’s unchanged intention to forgive the debt followed by Bird becoming her executor, so that by her act of making him executor he was not able to sue himself at common law In Strong v Bird equity passively allowed the simplistic common law position to prevail, so that what would normally have been the imperfect release of a debt was perfected.

In Re Stewart [1908] 2 Ch 251, the rule was extended to perfect an imperfect gift of bonds to the donor’s wife, equity positively intervening to oust the common law position, the donor being responsible for her acquiring title to the bonds as one of his appointed executors. Note, however, that the rule in Strong v Bird does not apply to an intention to make a gift in the future, which is in effect merely a promise (not enforceable in the eyes of the law) to make a gift at some later date.