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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> D. Pride & Partners (a firm) & Ors v Institute for Animal Health & Ors [2009] EWHC 685 (QB) (31 March 2009) URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/685.html Cite as: [2009] EWHC 685 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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D. Pride & Partners (a firm) & ors |
Claimant |
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- and - |
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Institute for Animal Health & ors |
Defendant |
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Michael Beloff QC , Mr Charles Pugh and Mr Ben Cooper (instructed by Manches) for the First Defendant
Mr Jonathan Sumption QC, and Mr Tom Adam QC (instructed by Covington & Burling LLP) for the Second Defendant
Mr Nigel Wilkinson QC and Mr David Barr (instructed by DEFRA) for the Third Defendant
Hearing dates: 23-24-25 February 2009
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Crown Copyright ©
Mr Justice Tugendhat :
INTRODUCTION
"Mr. Eveleigh says that, since the defendants should have foreseen the damage to his clients but nevertheless failed to take proper precaution against the escape of the virus, their liability is established. It may be observed that if this argument is sound, the defendants' liability is likely to extend far beyond the loss suffered by the auctioneers, for in an agricultural community the escape of foot and mouth disease virus is a tragedy which can foreseeably affect almost all businesses in that area. The affected beasts must be slaughtered, as must others to whom the disease may conceivably have spread. Other farmers are prohibited from moving their cattle and may be unable to bring them to market at the most profitable time; transport contractors who make their living by the transport of animals are out of work; dairymen may go short of milk, and sellers of cattle feed suffer loss of business. The magnitude of these consequences must not be allowed to deprive the plaintiffs of their rights, but it emphasises the importance of this case."
THE CLAIM
THE APPROACH TO BE ADOPTED BY THE COURT
"[3] Under CPR 24.2 the court has power to give summary judgment against a claimant if it considers that (a) he 'has no real prospect of succeeding on the claim . . . and (b) there is no other compelling reason why the case or issue should be disposed of at a trial'... The new power has been described by Lord Woolf MR (in Swain v Hillman [2001] 1 All ER 91 at 92) as salutary:
'It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words "no real prospect of succeeding" do not need any amplification, they speak for themselves. The word "real" distinguishes fanciful prospects of success . . .
[4] Lord Woolf went on to say (at 94, 95):
'It is important that a judge in appropriate cases should make use of the powers contained in Pt 24. In doing so he or she gives effect to the overriding objectives contained in Pt 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position . . .
Useful though the power is under Pt 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial.'
[5] These remarks were approved by this House in Three Rivers DC (No 3) v Bank of England [2001] UKHL 16, [2001] 2 All ER 513, [2003] 2 AC 1 (see Lord Hope of Craighead (at [91]–[93]); Lord Hutton (at [134])). In addition, as Lord Millett said in the same case (at [192]) the 'most important principle of all is that justice should be done. But this does not mean justice to the plaintiff alone'. It is not just to a defendant to subject him to a lengthy and expensive trial when there is no realistic prospect of success.
[6] I therefore approach this appeal on the basis that the claimant's allegations of primary fact must (unless plainly fanciful, which is not the case here) be accepted as true and allowance must be made for the possibility that further facts may emerge on discovery or at trial. The question is whether, on these assumptions, he has a real prospect of success."
THE FACTS TO BE ASSUMED
- "Farmers were unable to move cattle and sheep freely to fresh grazing within farms, necessitating supplementary feeding and leaving areas of fresh pasture ungrazed for the duration of the restriction;
- Milk production was lost as calved cows were unable to be moved back from outlying fields to the main farm;
- Farmers were unable to move fattened stock to slaughter at the optimum time, particularly within the pig sector and in the protection and surveillance zones leading to the loss of condition, welfare problems and additional feeding costs;
- Light lambs destined for the export market had to be kept on hill farms, resulting in loss of income, welfare concerns and the necessity for additional fodder;
- Pig breeder and rearing units were overstocked, leading to welfare problems and costs;
- There were delays in putting rams to ewes, leading to disruption in established production patterns;
- The traditional sale of animals through livestock markets, from farms where they were bred to other farms for rearing/or fattening was disrupted;
- Farmers were unable to export live animals (beef calves, older sows and cows, breeding stock) and derivative products abroad at all or at the optimum time".
"EFFECTS ON LIVESTOCK AND FARM OF 2007 OUTBREAK
Holdings situated within the Protection, Surveillance and Restricted Zones in the first part of the outbreak and within the Surveillance and Restricted Zones in the second part of the outbreak…
As a result of the movement restrictions, cattle could not be sold for breeding or sold for meat as the cattle could not be moved until the restrictions were lifted.
Cattle could not be moved onto the main holding, to be brought in for the winter, from the grazing at the other holdings.
The animals that would ordinarily be sold for breeding have been kept at a cost to the partnership, until the market improved. Some of the animals that would have been sold for breeding have instead been sold for meat at a lower price in order to generate income. Cattle had to calve away from the main holding as they could not be moved back to the main holding and some of the calves were lost [emphasis added]
Female cattle could not be moved across the holdings to see the bull at the usual time.
Replacement straw had to be purchased as straw originally intended for the partnership had to be left in the field, as it was in close proximity to an infected premises.
Cattle have had to be fed extra silage to improve their condition as they were left out at grass for too long.
Extra labour had to be employed to look after the cattle out at grass on the holdings and staff also had to assist the DEFRA veterinary teams when they came to inspect the cattle.
An arranged tour and subsequent sale to promote the business due to take place in September 2007 had to be cancelled…
Losses resulting from disinfecting of livestock farms and equipment (including disposal of contaminated materials)
£390.59 plus VAT (disinfectant purchased to increase biosecurity on holdings during the outbreak – knapsack sprayers, disinfectant, buckets and brushes and barrier tape).
Losses resulting from being unable to move livestock on and off the farms such as to market or for export.
£2,800 (losses on sale prices of four bulls sold for breeding after the outbreak).
£3,625 (5 heifers sold for meat that would usually have been sold for breeding, at a loss of around £725 per animal)
£1,050 (3 cows sold for meat that would ordinarily have been kept loss of around £350 per animal)
£11,250 (cost to business of keeping 15 bulls that would ordinarily have been sold for breeding, at £25 per bull per week for 30 weeks-bulls eventually sold in March 2008)
£24,750 (cost to business of keeping 30 females that would ordinarily have been sold for breeding, at £15 per female per week for 55 weeks-females not yet sold and costs ongoing)
£1,053 (3 calves lost as heifers carved away from the main holding, at £350 per calf) [emphasis added]
£1,600-2,400 (estimated loss of profit on for females that should have been sold during/after the tour-not yet sold)
£X - as yet unquantified losses arising as a result of delays to breeding programme where females did not see the bull at usual time
£X - as yet unquantified losses on sale of 20 female animals that would have been exported to European buyer or breeding at an agreed price of £2,000 per animal-not yet sold
Extra Labour Costs
£500 (cost of additional staff taken on to assist during outbreak)
£3,202 (2 full-time staff spent 80% of their time dealing with outbreak for two months-usual salary £1000 per month per employee)
Additional Expenses
£43.33 plus VAT (cost of vet visiting farm and completing certificate or the movement of cattle)
£96.90 plus VAT (vet fee and injection cost for eight heifers whose calves had to be aborted)
£432.99 (additional mobile phone costs-£359.58+ £139.41 less typical costs of £33 and £33 respectively)
Management Time
£3,200 (80% of the time spent dealing with outbreak for two months – usual salary £2,000 per month)
Consequential losses caused by the disruption to farming business
£165 (cost of storing frozen embryos and semen that could have been sold during tour that was cancelled - £15 per month for 11 months)
£10,000 (estimated loss of profit on potential future sales of breeding animals lost following cancellation of tour)
£2,750 cost of buying replacement silage – 500 tonnes at £5.50 per ton.
£600 to £800 (loss of profit on 100 bales of straw that would have been sold)
£6,645 (additional cost incurred in buying replacement straw – 590 bales at £8 per bale more than usual cost and 175 bales at £11 per bale more than usual cost)
£440 (estimated cost of buying in a further 220 bales of straw that would have usually been saved from previous year's supply – 220 bales at additional estimated cost of £2 per bale)
Additional financing costs
Up to £1000 (estimated interest charges on additional overdraft)
Estimated total losses at 1 September 2008 (subject to revision) £75,588.81 - £76,588.81"
"Losses Resulting from Slaughter of Livestock or Disposal of Livestock Products
£900 (estimated value of cow which had to be shot on land near Pirbright – the animal did not have FMDV but had to be shot by a DEFRA vet because it was unwell and a local vet willing to treat the cow could not be found)
£207 (cost of burial of cow, invoiced by Animal Health) …
Losses resulting from being unable to move livestock on and off the farms, such as to market or for export
£1,700 (loss on sale price of cattle – valued at £500 a head in August but lost condition and sold for £400 a head after restrictions were lifted - £100 loss on each of 17 cattle sold)…" [emphasis added]
"Losses resulting from being unable to move livestock on and off the farms, such as to market or for export
£72,357 (losses on sale prices of finisher pigs that went to the abattoir oversized – calculated from actual losses, but averaging around £99.26 loss on each of 729 pigs.
£2,374 (losses on sale prices of sows that went to the abattoir oversized – calculated from actual losses, but averaging around £23.98 loss on each of 99 sows)
"£11,717 (prices paid by the abattoirs were lower for pigs that had grown overweight owing to the delay in sending them to the abattoir. On average [the Twelfth Claimant] was paid 16-20p per kilo (deadweight) less for the whole pig than it would have received before the outbreak. Therefore 58,585 kilos at 20p per kilo)".
CAUSATION AND FORESEEABILITY
PLEADING DUTY OF CARE - NEGLIGENCE
"IAH[/Merial] owed the Farmers a duty at common law to take reasonable care in and about IAH[/Merial]'s operation at Pirbright and its working with FMDV so as not to cause escape of FMDV therefrom and in consequence an outbreak of FMD and the losses sustained as a result by the Farmers as set out below".
"The Secretary of State owed the Farmers a duty of care at common law to take reasonable care in and about the licensing of IAH and/or Merial to work with FMDV at the Pirbright site so as not to cause an escape of FMDV therefrom and in consequence an outbreak of FMD and the losses sustained by the Farmers as a result set out below".
"(7) Where livestock and/or livestock farms were infected by foot and mouth disease virus as a result of the outbreak, the farmers concerned suffered physical damage to their property [emphasis added].
(8) Even where livestock and/or livestock farms were not actually infected by FMDV, the farmers concerned suffered physical damage alternatively damage analogous to physical damage or physical interference with property [emphasis added] since their goods (the livestock) and/or land (the livestock farms) were directly affected by the measures. The measures were imposed to deal with the threat of injury to the livestock and the farms in the form of foot and mouth disease. The measures were the very kind of thing likely to happen in the event of a carelessly caused outbreak. The outbreak and the measures constituted injury impairing the value or usefulness of the livestock and the livestock farm. In view of the restrictions upon movement and use, the livestock and livestock farms were materially harmed. Such loss and damage does not fall to be viewed as pure economic loss; further or alternatively it is recoverable in any event".
"(12) in view of the above facts and matters, there was a special relationship between IAH [and/or Merial] and the livestock farmers in Great Britain and/or IAH [and/or Merial] assumed responsibility to them to perform [their] operations in and about the handling and treatment of FMDV at the Pirbright facility with reasonable skill and care.
(13) Further or alternatively, in all the circumstances including the relationship of proximity between IAH [and/or Merial] and the farmers it is fair, just and reasonable to impose such a duty upon IAH [and/or Merial].
"(11) [DEFRA]'s state of knowledge of the dangers and risks of foot and mouth disease virus was at least as good as that of IAH and/or Merial.
(12) The farmers were in a particularly vulnerable position and dependent on [DEFRA] carefully to perform his responsibility for licensing the work with foot and mouth disease virus by IAH and/or Merial … Such reliance by the Farmers … was entirely reasonable.
(13) In view of the above facts and matters, there was a special relationship between DEFRA and the livestock farmers in Great Britain and/or [DEFRA] assumed responsibility to them to take reasonable skill and care in and about the licensing of IAH and/or Merial…
(14) Further or alternatively, in all the circumstances including the relationship of proximity between [DEFRA] and the farmers, it is fair, just and reasonable to impose such a duty upon [DEFRA]".
PLEADING NUISANCE
"undue or unreasonable interference with the use or enjoyment by the Farmers of their land by:
(a) causing physical damage to the land or damage which in law is analogous to and should be treated as physical damage to such land. Paragraph … (8) [in para 39 above] is repeated; and/or
(b) unduly interfering with the Farmers in their convenient enjoyment of their land in the form of the measures imposed upon them in relation to their farms which materially impaired the amenity of the property".
"(a) [this pleads physical damage to land, and so is applicable only to the First to Eighth Claimants].
(b) Damage analogous to physical damage to such land as a result of the measures imposed upon the Farmer's farms in order to identify whether there had been foot and mouth disease infection, to remove potential infection even where this was not established and/or to prevent the spread of infection.
(c) The loss of amenity value arising from the contamination of the farms whether by way of actual infection, potential or threatened infection and/or the impairment caused by compliance with the restrictions which themselves directly affected and impaired the Farmers' use of their land.
(d) Consequential loss flowing from the matters set out in (a) to (c) above, which includes the losses arising upon the … threatened infection of livestock (the threat being evidenced by the imposition of the measures set out above),… the postponing of their [the livestock's] sale or export, the reduction of their sale price, the extra holding or sale expense and other lost profits or increased costs arising from the Farmers' livestock businesses operated upon or from their livestock farms".
PLEADING RYLANDS v FLETCHER
PHYSICAL DAMAGE OR ECONOMIC LOSS
"The infliction of physical injury to the person or property of another universally requires to be justified. The causing of economic loss does not. If it is to be categorised as wrongful it is necessary to find some factor beyond the mere occurrence of the loss and the fact that its occurrence could be foreseen [emphasis added]. Thus the categorisation of damage as economic serves at least the useful purpose of indicating that something more is required …"
"Physical damage, in the context of Lord Oliver's dictum, means actual tangible harm to the fabric of the property, or to the land itself, caused by a factor external to the property".
"Defects in the property which simply render it less valuable, affect quality, but which do not affect safety, do not constitute physical damage".
"[2] Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action.
[7] ….a claim in tort based on negligence is incomplete without proof of damage. Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a physical change, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one's health or capability."
"[the Claimants] suffered the requisite (direct) physical damage or damage analogous to physical damage… the fact that [the Defendants] concede that [the Claimants] have sustained certain damage 'of a more orthodox kind' (the 'small rump') merely serves to show that it is impossible to separate out certain types of loss in the context of these claims. All the Farmers have suffered losses born of their being 'on the cattle trail' [for this expression see para 68 below]. Their losses are not purely economic but arise due to a real effect on the Farmers' tangible property".
"[at p577] to the effect that a plaintiff suing in negligence for damages suffered as a result of an act or omission of a defendant cannot recover if the act or omission did not directly injure, or at least threaten directly to injure, the plaintiff's person or property but merely caused consequential loss…
[at p583] … only those whose property is injured, or at least directly threatened with injury, can recover." [emphasis added]
"The affected beasts must be slaughtered, as must others to whom the disease may conceivably have spread".
"The duty of care arose only because a lack of care might cause direct injury to the person or property of someone, and the duty was owed only to those whose person or property were foreseeably at risk".
"the criminal test is one of fact and degree … Relevant considerations are whether there has been 'injury impairing value and usefulness' of the property in question, and the need for work and the expenditure of money to restore the property to its former usable condition is material".
"a person whose property was in such physical propinquity to the place where the acts of omissions of the dredge … had their physical effect that a physical effect on the property of that person was foreseeable as the result of such acts or omissions".
"The damage suffered was the immobilization through the pipeline of the processed crude oil".
"first, that a physical effect, short of physical injury, is a kind of injury the risk of which, if it be foreseeable, there may be a duty of care to avoid; and secondly that there will be such a duty where there is a physical propinquity of the plaintiff's property to the place where the defendant's act or omission has its physical effect".
"I must not be taken, however, as saying that economic loss is always too remote. There are some exceptional cases when it is the immediate consequence of the negligence and is recoverable accordingly. Such is the case when a banker negligently gives a good reference on which a man extends credit, and loses the money. The plaintiff suffers economic loss only, but it is the immediate - almost, I might say, the intended - consequence of the negligent reference and is recoverable accordingly: see Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] AC 465. Another is when the defendant by his negligence damages a lorry which is carrying the plaintiff's goods. The goods themselves are not damaged, but the lorry is so badly damaged that the goods have to be unloaded and carried forward in some other vehicle. The goods owner suffers economic loss only, namely, the cost of unloading and carriage, but he can recover it from the defendant because it is immediate and not too remote. It is analogous to physical damage: because the goods themselves had to be unloaded. Such was the illustration given by Lord Roche in Morrison Steamship Co. Ltd. v. Greystoke Castle (Cargo Owners) [1947] A.C. 265. Likewise, when the cargo owners have to pay a general average contribution. It is not too remote and is recoverable.
Seeing these exceptional cases you may well ask: How are we to say when economic loss is too remote or not? Where is the line to be drawn? Lawyers are continually asking that question. But the judges are never defeated by it. We may not be able to draw the line with precision, but we can always say on which side of it any particular case falls."
THE EXCLUSIONARY RULE
"to the effect that a plaintiff suing in negligence for damages suffered as a result of an act or omission of a defendant cannot recover if the act or omission did not directly injure, or at least threaten directly to injure, the plaintiff's person or property but merely caused consequential loss as, for example, by upsetting the plaintiff's business relations with a third party who was the direct victim of the act or omission. The categories of negligence never close, but when the court is asked to recognise a new category, it must proceed with some caution."
"In the present case the objection is technical and against the merits, and we should be glad to avoid giving it effect. But if we did so, we should establish an authority for saying that, in such a case as that of Fletcher v. Rylands … the defendant would be liable, not only to an action by the owner of the drowned mine, and by such of his workmen as had their tools or clothes destroyed, but also to an action by every workman and person employed in the mine, who in consequence of its stoppage made less wages than he would otherwise have done. And many similar cases to which this would apply might be suggested. It may be said that it is just that all such persons should have compensation for such a loss, and that, if the law does not give them redress, it is imperfect. Perhaps it may be so. But, as was pointed out by Coleridge, J., in Lumley v. Gye … , Courts of justice should not "allow themselves, in the pursuit of perfectly complete remedies for all wrongful acts, to transgress the bounds, which our law, in a wise consciousness as I conceive of its limited powers, has imposed on itself, of redressing only the proximate and direct consequences of wrongful acts." In this we quite agree."
"Mr. Clarke [as he then was] said, rightly in my view, that the policy reason for excluding a duty of care in cases like [Candlewood otherwise known as] The Mineral Transporter and what I earlier called the other non-recovery cases was to avoid the opening of the floodgates so as to expose a person guilty of want of care to unlimited liability to an indefinite number of other persons whose contractual rights have been adversely affected by such want of care. Mr. Clarke went on to argue that recognition by the law of a duty of care owed by shipowners to a c.i.f. or c. and f. buyer, to whom the risk but not yet the property in the goods carried in such shipowners' ship has passed, would not of itself open any floodgates of the kind described. It would, he said, only create a strictly limited exception to the general rule, based on the circumstance that the considerations of policy on which that general rule was founded did not apply to that particular case. I do not accept that argument. If an exception to the general rule were to be made in the field of carriage by sea, it would no doubt have to be extended to the field of carriage by land, and I do not think that it is possible to say that no undue increase in the scope of a person's liability for want of care would follow. In any event, where a general rule, which is simple to understand and easy to apply, has been established by a long line of authority over many years, I do not think that the law should allow special pleading in a particular case within the general rule to detract from its application. If such detraction were to be permitted in one particular case, it would lead to attempts to have it permitted in a variety of other particular cases, and the result would be that the certainty, which the application of the general rule presently provides, would be seriously undermined. Yet certainty of the law is of the utmost importance, especially but by no means only, in commercial matters. I therefore think that the general rule, re-affirmed as it has been so recently by the Privy Council in The Mineral Transporter [1986] AC 1, ought to apply to a case like the present one, and that there is nothing in what Lord Wilberforce said in Anns' case [1978] AC 728 which would compel a different conclusion."
"…Mr. Kidwell said that the contractors here owed a duty of care to the electricity board which owned the cable, because their cable was liable to be directly injured and the contractors ought reasonably to have foreseen it. But the contractors, he said, owed no duty to the factory owners because their factory was not liable to be directly injured, but only indirectly (by having the current cut off). He admitted that the injury to them might reasonably be foreseen, but nevertheless said that the contractors were under no duty to avoid it…. I cannot accept Mr. Kidwell's proposition. The distinction between "direct" and "indirect" has been attempted before, but it has proved illusory. It was decisively rejected in a parallel field in The Wagon Mound [1961] AC 388 and should not be revived here. The cases, too, do not warrant the distinction. A man may owe a duty of care to those whom he foresees may be indirectly injured, as well as to those whom he foresees may be directly affected. A good example is wilful damage done by an escaping borstal boy. Such damage is as indirect as can be, but, being reasonably foreseeable, a duty of care is owed to those in the neighbourhood who may be injured by it: see Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004."
"Counsel for the cargo owners argued that the present case involved the infliction of direct physical loss. At first glance the issue of directness may seem a matter of terminology rather than substance. In truth it is a material factor. The law more readily attaches the consequences of actionable negligence to directly inflicted physical loss than to indirectly inflicted physical loss. For example, if the N.K.K. surveyor had carelessly dropped a lighted cigarette into a cargo hold known to contain a combustible cargo, thereby causing an explosion and the loss of the vessel and cargo, the assertion that the classification society was in breach of a duty of care might have been a strong one. That would be a paradigm case of directly inflicted physical loss… The role of the N.K.K. was a subsidiary one. In my view the carelessness of the N.K.K. surveyor did not involve the direct infliction of physical damage in the relevant sense. That by no means concludes the answer to the general question. But it does introduce the right perspective on one aspect of this case."
"He expressly said that the fact that the carelessness of the surveyor did not involve the direct infliction of physical damage did not exclude the existence of a duty of care; indeed he could not have done so without overruling previous authority. As I have attempted to explain, established principle shows that this is not a requirement. The highest that the point can be put is that where the conduct would amount to a direct invasion of property or personal rights amounting to or closely analogous to trespass, a special justification is required to negative liability."
"For the fisherman I am considering, the pollution of the waters in which he regularly fishes does no physical harm to his person or his property; the oil does not touch him or anything belonging to him; there is no contamination of him or of his vessel or equipment. Nevertheless, it appears to me that the loss of his livelihood is properly described as damage that is caused directly and immediately by contamination resulting from the discharge or escape of oil from the ship. The contamination does not set in train a chain of events that eventually results in his suffering loss or damage. On the contrary, the contamination is both the immediate, direct and, in such a case, the only cause of his loss. The contamination occurs at the very point at which he carries on his economic activity, fishing. But, because he does not own the waters in which he fishes or the fish which swim there, that loss is properly described as pure economic loss; because what he loses is not the fish or the waters but the intangible prospect of making a net profit by selling any fish that he might otherwise have caught in the waters had they not been contaminated. That loss of prospective profit is pure economic loss. In a figurative sense what he has in the waters is a direct economic interest. That interest is directly affected by the contamination. By contrast, the trader who regularly supplies him with the diesel and the nets without which he cannot catch any fish has himself no direct interest in the waters in which the fisherman fishes. That trader's economic interest - in making a profit out of the sale of diesel and nets - has its location, at least figuratively speaking, in the place where he supplies the goods that the fisherman buys from him. There is no contamination there. The trader's loss of profit, which begins to occur when his expected sales do not eventuate, is essentially relational loss. It is, of course, pure economic loss; but it is not that which is important; what is important is that it is not a loss that is caused directly by contamination. In the same way, the wholesaler who supplies the diesel in bulk to the trader, or the netmaker who sells the trader nets for onward sale to fishermen may be economically prejudiced by the disruption of his market; but his economic prejudice, or loss, is not caused directly by oil pollution, or contamination. It is directly caused by the trader's decision not to buy what he has to sell. It is also relational loss. In my opinion, therefore, the so-called concession does not lead in itself to the conclusion that all relational loss falls under the head of "damage" in the statute provided it can be shown to have resulted on a "but for" basis from the oil escape and contamination."
"The whole corpus of cases cited to us from different fields in which the common law or the legislature have conferred rights to compensation, reparation or damages for loss demonstrates, in my view, that the test of remoteness is too well established to be excluded except by express and unambiguous enactment. That test would exclude a claim such as is now advanced by Landcatch on the ground that it was indirect, relational pure economic loss which is too remote from the causal factor which makes the causer liable. I do not consider that Landcatch have succeeded in showing that the words used in the statutes creating liability for this particular compensation have displaced these familiar principles."
"Just as the culling of the smolt in Landcatch was simply the by-product of the interference with the pursuer's ability to sell the smolt, so the alleged 'loss of condition' to the animals in the present case was simply the by-product of the Claimant's inability to deal with them as economic units at the 'optimal time'. The actual loss in both cases is, on proper analysis, 'nothing more than relational economic loss'".
NEGLIGENCE – DUTY OF CARE
"Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation. A correct description of the loss for which the valuer is liable must precede any consideration of the measure of damages. For this purpose it is better to begin at the beginning and consider the lender's cause of action.
A duty of care such as the valuer owes does not however exist in the abstract. A plaintiff who sues for breach of a duty imposed by the law (whether in contract or tort or under statute) must do more than prove that the defendant has failed to comply. He must show that the duty was owed to him and that it was a duty in respect of the kind of loss which he has suffered. Both of these requirements are illustrated by Caparo Industries Plc. v. Dickman 1990] 2 AC 605. The auditors' failure to use reasonable care in auditing the company's statutory accounts was a breach of their duty of care. But they were not liable to an outside take-over bidder because the duty was not owed to him. Nor were they liable to shareholders who had bought more shares in reliance on the accounts because, although they were owed a duty of care, it was in their capacity as members of the company and not in the capacity (which they shared with everyone else) of potential buyers of its shares. Accordingly, the duty which they were owed was not in respect of loss which they might suffer by buying its shares. As Lord Bridge of Harwich said, at p. 627:
"It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless."
In the present case, there is no dispute that the duty was owed to the lenders. The real question in this case is the kind of loss in respect of which the duty was owed.
How is the scope of the duty determined? … In the case of tort, it will similarly depend upon the purpose of the rule imposing the duty."
"… the Measures provide a complete answer to any allegation by the Defendants as to indeterminacy or floodgates since they provide a ready made guillotine which defines the relevant class: the duty is owed to those who would have to submit to the Measures in the event of a confirmed FMD outbreak".
"Control of animal gatherings and gatherings of people in a restricted zone
6.—(1) Subject to sub-paragraph (5), no person shall—
(a) hold any animal gathering which includes susceptible animals in a restricted zone; or
(b) hold any gathering of people on premises in a restricted zone in connection with the sale of any susceptible animal kept there at which more than two people (other than the owner or keeper of the animal and his representatives) are present, except under the authority of a licence granted by the Secretary of State.
(2) Subject to sub-paragraph (5), no person shall hold or take part in the following activities in a restricted zone—
(a) hunting any drag or other trail; or
(b) stalking,
except under the authority of a licence granted by the Secretary of State.
(3) Subject to sub-paragraphs (4) and (5), no person shall shoot deer except under the authority of a licence granted by the Secretary of State.
(4) The occupier of any land, members of his household, persons employed by him as beaters and any member of a shooting party of not more than three persons authorised by him may shoot deer found on that land…"
"whether loss to the claimant was a reasonably foreseeable consequence of what the defendant did or failed to do; whether the relationship between the parties was one of sufficient proximity; and whether in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimant".
"It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed'. .. I incline to agree with the view …, that the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test or principle which identifies the legally significant features of a situation. The closer the facts of the case in issue to those of a case in which a duty of care has been held to exist, the readier a court will be, on the approach of Brennan J adopted in Caparo Industries plc v Dickman, to find that there has been an assumption of responsibility or that the proximity and policy conditions of the threefold test are satisfied. The converse is also true."
"The current willingness of the English appellate courts to articulate policy reasoning rather than to rely on bright lines excluding liability, suggests that the incremental approach in Perre might be followed".
CONCLUSION
NUISANCE AND RYLANDS v FLETCHER
"Private nuisances are of three kinds. They are (1) nuisance by encroachment on a neighbour's land; (2) nuisance by direct physical injury to a neighbour's land; and (3) nuisance by interference with a neighbour's quiet enjoyment of his land. In cases (1) and (2) it is the owner, or the occupier with the right to exclusive possession, who is entitled to sue… the basis of the cause of action in cases (1) and (2) is damage to the land itself, whether by encroachment or by direct physical injury."
"for an action in private nuisance to lie in respect of interference with the plaintiff's enjoyment of his land, it will generally arise from something emanating from the defendant's land. Such an emanation may take many forms - noise, dirt, fumes, a noxious smell, vibrations, and suchlike. Occasionally activities on the defendant's land are in themselves so offensive to neighbours as to constitute an actionable nuisance, as in Thompson-Schwab v. Costaki [1956] 1 W.L.R.335, where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to fall into that category. Such cases must however be relatively rare."
DEFRA AS JOINT TORTFEASORS
SUMMARY