STRICT LIABILITY: RULE IN RYLANDS v. FLETCHER
HAVING considered the tort of nuisance, we now turn to a further tort which had its origins in nuisance but which has developed in such a way that it is now quite distinct from it.
This is the rule in Rylands v. Fletcher.
THE RULE IN RYLANDS v. FLETCHER
The facts of this case were as follows.
B, a millowner, employed independent contractors, who were apparently competent, to construct a reservoir on his land to provide water for his mill.
In the course of the work the contractors came upon some old shafts and passages on B's land.
They communicated with the mines of A, a neighbour of B, although no one suspected this, for the shafts appeared to be filled with earth.
The contractors did not block them up, and when the reservoir was filled the water from it burst through the old shafts and flooded A's mines.
It was found as a fact that B had not been negligent, although the contractors had been.
A sued B and the House of Lords held B liable.
The litigation originated in an unusual way.
It began as an action upon the case (apparently for negligence) at Liverpool Assizes, and A secured a verdict, subject to the award of an arbitrator, who was afterwards empowered by a judge's order to state a special case instead of making an award.
This he did, and so the case came before the Court of Exchequer which, by a majority, decided in favour of the defendant.
The Court of Exchequer Chamber unanimously reversed this decision and held the defendant liable, and the House of Lords affirmed their decision.
The judgment of the Exchequer Chamber was delivered by Blackburn J. and it has become a classical exposition of doctrine.
' We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. '
This may be regarded as the ' rule in Rylands v. Fletcher, ' but what follows is equally important:
' He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.
The general rule, as above stated, seems on principle just.
The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour 's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property.
But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences.
And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches. '
The judgment for the plaintiff was upheld by the House of Lords, but Lord Cairns L.C. rested his decision on the ground that the defendant had made a ' non-natural use ' of his land, though he regarded the judgment of Blackburn J. as reaching the same result and said he entirely concurred in it.
It may well be true, therefore, that there were two rules in Rylands v. Fletcher, the fairly closely defined formulation of Blackburn J. and the more flexible one stated by Lord Cairns, but the effect of the subsequent case law is to add the non-natural use requirement to Blackburn J. 's formulation, a development which has played a not insignificant part in the restriction of this form of strict liability.
Genesis of the principle
Such were the facts and decision in the case.
Although Lord Cairns regarded the principles applicable as extremely simple, it seems clear that the common law was faced by a new and important problem which could not be solved by merely applying the existing authorities.
This was not the first time that water had been collected in bulk, but hitherto those who indulged in the practice had generally been powerful bodies, like water or railway companies, who had acted under powers given them by legislation which at the same time made them liable for harm done by its escape.
But here there was no statutory authority, and although there were several paths that seemed to lead to a solution, none of them went the whole way.
Trespass did not really fit the case because the harm was consequential, not direct.
There was a finding that the contractors were at fault with regard to the old shafts, but it is not clear that they should have realised that their conduct would affect the plaintiff's land and even if this had been the case there would have been a serious issue at that times whether the defendant was liable for the negligence of his contractor.
Nor was nuisance considered applicable, apparently on the basis that the defendant had no reason to foresee the injury.
Look at the decision of the Exchequer Chamber how we may, it laid down a new principle.
True, in the judgment itself it might appear that the court was making a pontifical statement of existing principle rather than laying down a new rule, for they regarded their own proposition as having been anticipated by Holt.
C.J. some 160 years earlier in Tenant v. Goldwin, and they cited as instances of it the rules relating to cattle-trespass, the escape of mischievous animals and nuisance by the escape of fumes.
But in fact Holt C.J. 's decision related to the escape of filth and his formulation of principle was limited to that and to cattle-trespass; it was not nearly so sweeping as the rule expressed in Rylands v. Fletcher, which was reached by methods extremely characteristic of judicial development of the law  the creation of new law behind a screen of analogies drawn from existing law.
And whatever views the Exchequer Chamber may have had about their decision, succeeding generations have regarded it as the starting-point of a liability wider than any that preceded it.
Scope of extension
It seems unsound, then, to dismiss the rule as a convenient summary of the theory underlying several specific torts which had existed long before 1868, or even as the old cattle-trespass rule raised to a high power.
The substantial advances which it made on the earlier law were two:
1.
In the direction of things for the escape of which an occupier of land is subjected to strict liability.
2.
In the direction of the persons for whose defaults in connection with such escape the occupier is vicariously responsible.
As to 1, the court took a rule of liability which had been more or less clearly perceived in connection with the escape of fire, cattle or unruly beasts, and extended it to the escape of mischievous things generally.
As to 2, they held in effect that the occupier from whose land these things escaped and did damage is liable not only for the default of his servant, but also for that of an independent contractor and (as later decisions show) for that of anyone except a stranger.
' Absolute ' liability of a misnomer
It was unfortunate that Blackburn J. chose to describe liability under the rule as resting upon ' an absolute duty to keep it [ sc.
the water ] in at his peril. '
Though stated as a rule of absolute liability, there ' are so many exceptions to it that it is doubtful whether there is much of the rule left. '
The liability may be strict, but it is not absolute as the exceptions to the rule indicated by Blackburn J. himself show.
Recently, moreover, as we shall see, the courts have tended to erode and rationalise the rule so as to reduce the ambit of strict liability and to bring the rule more into line with the predominant modern philosophy of no liability without fault.
As a result of this development the rule in Rylands v. Fletcher is sometimes unavailable at times when it is most needed, i.e.
when the plaintiff can not prove that the defendant was at fault.
SCOPE OF THE RULE
Like all broad formulations of principle, the rule in Rylands v. Fletcher had to be worked out in detail by later decisions, and it has been applied to a remarkable variety of things.
Fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation, a flag-pole, a ' chair-o-plane ' and even (in a case of very questionable validity) noxious persons.
As we shall see below, there is no liability under the rule unless there is some ' escape ' from the defendant's land, but there is no necessity that the thing be likely to escape.
What matters for this purpose is that if it escapes it is likely to do mischief and this is the meaning to be given to ' dangerous thing ' in this context.
Too much stress should not be laid upon Blackburn J. 's illustrations in support of the rule since new law was being created.
He was certainly not purporting to compile a representative list of ' extra-hazardous' activities  though one of the fundamental problems about Rylands v. Fletcher is perhaps that the law has never made up its mind whether the rule is aimed at such activities.
Escape necessary
Unless there is an ' escape ' of the substance from the land where it is kept, there is no liability under the rule; this was the ground of the House of Lords' decision in Read v. Lyons &amp; Co.
Ltd.,
where the plaintiff was employed by the Ministry of Supply as an inspector of munitions in the defendants' munitions factory and, in the course of her employment there was injured by the explosion of a shell that was being manufactured.
It was admitted that high explosive shells were dangerous.
The defendants were held not liable.
There was no allegation of negligence on their part and Rylands v. Fletcher was inapplicable because there had been no ' escape ' of the thing that inflicted the injury.
' Escape ' was defined as' escape from a place where the defendant has occupation or control over land to a place which is outside his occupation or control. '
Viscount Simon stated that Rylands v. Fletcher is conditioned by two elements which he called (a) ' the condition of ' escape ' from the land of something likely to do mischief if it escapes, ' and (b) ' the condition of ' non-natural ' use of the land. '
But the House of Lords emphasised that the absence of an ' escape ' was the basis of their decision.
The rule is probably inapplicable to a deliberate release of the thing, the cause of action in that situation being trespass.
Personal injuries
The House of Lords in Read v. Lyons also considered whether under the rule in Rylands v. Fletcher a plaintiff can recover damages for personal injuries.
According to Lord Macmillan, the rule ' derives from a conception of mutual duties of neighbouring landowners' and is therefore inapplicable to personal injuries.
' An allegation of negligence, ' he continued, ' is in general essential to the relevancy of an action of reparation for personal injuries. '
Viscount Simon and Lord Simonds reserved their opinions on this question, and Lord Porter considered that opinions expressed supporting the application of the rule to personal injuries are an undoubted extension of it, ' and may some day require examination. '
Lord Macmillan's view must however be considered in context.
It is generally accepted that in the related tort of nuisance, an occupier can sue in respect of his personal injuries and the same was established in the tort of cattle trespass.
Even after Read v. Lyons, therefore, there is no reason to doubt the correctness of decisions such as Hale v. Jennings Bros.
in which the Court of Appeal held that an occupier of land was entitled to damages for personal injuries under the rule in Rylands v. Fletcher.
But before Read v. Lyons, the courts had gone further, holding that even a non-occupier may sue for personal injuries under the rule, and it is probably this development that their lordships had in mind.
In Shiffman v. Order of St. John, for instance, the plaintiff was injured in Hyde Park when he was struck by a falling flag-pole belonging to the defendants.
Although it was found that the defendants had been at fault, Atkinson J. considered that, irrespective of this, the defendants would have been liable under the rule in Rylands v. Fletcher.
Judged from a strictly historical point of view, Lord Macmillan's approach is doubtless correct.
It is, however, open to the criticism that it helps to preserve the anachronistic situation in which proprietary interests receive more protection than the interest in physical security.
Perhaps because of this the courts have in subsequent cases generally declined to follow Lord Macmillan's view.
In Perry v. Kendricks Transport Ltd.,
for instance, Parker L.J.
did not ' think it is open to this court to hold that the rule applies only to damage to adjoining land or to a proprietary interest in land and not to personal injury. '
In Weller v. Foot and Mouth Disease Research Institute, however, Widgery J. briefly held that the defendants could not be liable to the plaintiffs under the rule in Rylands v. Fletcher, because the plaintiffs, who were cattle auctioneers, had no interest in any land to which the virus could have escaped.
The plaintiffs' loss of business was pecuniary or economic damage.
Widgery J. 's conclusion that the plaintiffs could not recover under the rule for economic injury alone seems perfectly correct at that time.
But this was not due, it is suggested, to the absence of any proprietary interest on their part, but because of the restrictive attitude of the law towards the recovery of pecuniary loss which is not the consequence of a tangible, physical injury.
This does not in the least mean that in all cases a plaintiff can not recover under the rule unless he proves interference to his proprietary interest.
It is submitted with respect that Widgery J. 's view is inconsistent with the trend of modern authorities and should not be followed.
Land
The rule as originally formulated refers to a person who for his own purposes brings on to his lands and collects and keeps there anything likely to do mischief if it escapes.
The words for his own purposes will be discussed later.
The rule is not confined to the case of adjacent freeholders.
It applies, for instance, to a local authority which is required by statute to receive sewage into its sewers.
It applies where the defendant has a franchise, such as right to use land founded on a statute or upon private permission, e.g. for laying pipes to carry gas, or cables for electricity.
One who uses land by permission of the tenant or occupier (i.e.
a licensee) and brings on to it a dangerous thing is liable for its escape.
Although there are conflicting dicta it seems that an owner who is not in occupation of the land at the time when the thing escapes is liable if he has authorised the accumulation, and that anyone who collects the dangerous thing and has control of it at the time of the escape would be liable, perhaps even when he is carrying it along the highway and it escapes therefrom.
Non-natural user
For some time before Rylands v. Fletcher the courts had been concerned with the extent of a person's liability for the escape of an accumulation of water from his land during the normal course of mining operations.
Their conclusions may be formulated as follows: if A conducts mining operations on his own land in such a way as to cause water to flood his neighbour's mine and the inundation is due to mere gravitation, A is not liable (or at least he is not strictly liable under Rylands v. Fletcher), but if the flooding is due to A's accumulation of the water (e.g. by pumping), A is liable.
This distinction was developed in Rylands v. Fletcher into the rule that as a prerequisite to liability the defendant must have brought onto the land something ' which was not naturally there. '
As one author has put it, non-natural use was originally ' an expression of the fact that the defendant has artificially introduced onto the land a new and dangerous substance. '
This term ' natural ' is inherently confusing for it has two distinct meanings.
In its primary sense it signifies' that which exists in or by nature and is not artificial. '
The term was used in this sense by Lord Cairns in Rylands v. Fletcher.
It also means, however, ' that which is ordinary and usual, even though it may be artificial. '
As Professor Newark has pointed out, the courts now understand non-natural user in the latter sense.
The most frequently quoted definition of non-natural user is that given by the Judicial Committee in Rickards v. Lothian, ' It must be some special use bringing with it increased danger to others and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community. '
It is suggested that the concept of non-natural user is now understood by the courts as being similar to the idea of unreasonable risk in negligence.
In Read v. Lyons, Lord Porter commented that ' non-natural user seems to be a question of fact... and in deciding this question I think that all the circumstances of time and practice of mankind must be taken into consideration so that what may be regarded as dangerous or non-natural may vary according to the circumstances. '
The courts balance the magnitude of the risk (i.e.
the extent of the accumulation and the injury potential of the thing accumulated) with the desirability or necessity of the activity from the point of view of the defendant and the public.
This equating of non-natural user with unreasonable risk in negligence seems to have been recognised by MacKenna J. in Mason v. Levy Auto parts of England Ltd.
The defendants stored on their land large quantities of combustible materials which ignited in mysterious circumstances.
In determining whether the defendants ought to be held liable under the rule in Rylands v. Fletcher, the learned judge considered that he ought to pay regard to (i) the quantities of combustible materials which the defendants brought onto the land; (ii) the way in which they stored them; and (iii) the character of the neighbourhood.
' It may be, ' he concluded, ' that these considerations would also justify a finding of negligence.
If that is so, the end would be the same as I have reached by a more laborious, and perhaps more questionable route. '
As Lord Porter recognised, it is inevitable that the courts' view of what is non-natural should change in response to changing social conditions and needs.
A striking illustration of such a change is afforded by a comparison of some of the dicta in Read v. Lyons and the case of Rainham Chemical Works Ltd.
v. Belvedere Fish Guano Co.
In the former, Lord Macmillan hesitated ' to hold that in these days and in an industrial community it was a non-natural use of land to build a factory on it and conduct there the manufacture of explosives. '
The House declined to consider itself bound by the Rainham Chemicals case where it seems to have been taken for granted that such an activity constituted a non-natural use of land.
The identification of non-natural user with conduct creating an abnormal risk that ought not to be borne by the public has given to the courts a device for determining liability in accordance with what they consider to be public policy.
There is no objective universal test of what is non-natural.
The court must make its own value judgment on the defendant's conduct, taking into account its social utility and the care with which it is carried out.
Because of this some of the early cases may require consideration.
It may well be, for example, that courts in the future will be reluctant to hold that the use of land for the supply of power or other necessities to a great city is non-natural.
The following have in the past been regarded as a natural user of land; water installations in a house or flat, a fire in a domestic grate, burning stubble in the normal course of agriculture, electric wiring and gas pipes in a house or shop, the ordinary working of mines and minerals on land, erecting or pulling down houses or walls, trees whether planted or self-sown (if not poisonous).
Generating steam on a steamship is not ' non-natural. '
But the storing of water as in Rylands v. Fletcher, or industrial water under pressure, or gas and electricity in bulk in mains is a non-natural use of land.
It has been held that keeping a motor-car in a garage with petrol in the tank, and a motor-coach in a parking ground after the tank has been emptied is a non-natural use of land, but the decisions have been criticised.
Things naturally on the land
The distinction between natural and non-natural user has at times been confused with the distinction between things naturally on the land and things artificially there.
The former defines the nature of the user of the land; the latter the cause of accumulation thereon.
Only when it has been determined that the accumulation on the land is a deliberate one, need the court consider whether the defendant's user is non-natural.
The rule in Rylands v. Fletcher applies only to things which the occupier brings onto his land and collects and keeps there.
It was quickly established that the occupier could not be liable under the rule merely for permitting a spontaneous accumulation (e.g. of water, vegetation, birds) on his land, or even for inducing a spontaneous accumulation as an undesired by-product of the normal working of the land.
In Pontardawe R.D.C.
v. Moore-Gwyn, for instance, there was no liability for the fall of rocks from an outcrop, when the fall was due to the natural process of weathering.
An occupier, therefore, is not liable to his neighbour under the rule in Rylands v. Fletcher for damage caused by ordinary trees which are self-sown because they are naturally on the land.
Nor in general is he liable even if he has planted the trees because he has not used his land in an extraordinary or non-natural manner.
' To grow a tree is one of the natural users of the soil. '
In contrast, in Crowhurst v. Amersham Burial Board, the defendants planted on their land a yew tree which grew so as to project over onto the land of the plaintiff on which cattle were pastured.
The leaves of yew trees are poisonous to cattle.
The plaintiff's horse ate some leaves and died and the defendants were held liable under the rule in Rylands v. Fletcher.
It was not in the circumstances a natural use of the land to plant on it a poisonous tree.
A further illustration of the application of these principles is afforded by the interesting case of Giles v. Walker.
Thistle-seed was blown in large quantities by the wind from the defendant's land to that of the plaintiff; it was held that ' there can be no duty as between adjoining occupiers to cut the thistles, which are the natural growth of the soil, ' and that the defendant was not liable.
Upon the facts the decision seems to have been correct so far as the rule in Rylands v. Fletcher goes, for all that the defendant had done was to plough up some forest land on which there had previously been no thistles but from which, for some unexplained reason, an immense crop of them sprang up in two successive years.
But even in relation to the rule in Rylands v. Fletcher, the principle seems to have been stated too widely.
If, for example, an occupier deliberately plants weeds in large quantities, he would surely be liable under the rule for damage caused by their escape, for it is not a natural use of one's land to cultivate weeds in bulk.
It must be stressed that although a natural condition can not give rise to liability under the rule in Rylands v. Fletcher it may still constitute a nuisance for which an occupier may be liable if he has knowledge or means of knowledge of its existence and if it is reasonable to require him to take the necessary steps to abate it.
Moreover, an occupier may be liable if he deliberately causes the escape of things naturally on his land.
DEFENCES TO THE RULE
In Rylands v. Fletcher possible defences to the rule were no more than outlined and we must look to later decisions for their development.
Consent of the plaintiff
Where the plaintiff has expressly or impliedly consented to the presence of the source of danger and there has been no negligence on the part of the defendant, the defendant is not liable.
The exception merely illustrates the general defence, volenti non fit injuria, and would not need special mention here but for the fact that the Court of Appeal and the House of Lords have considered it expedient to take particular notice of it.
The main application of the principle of implied consent is found in cases where different floors in the same building are occupied by different persons and the tenant of a lower floor suffers damage as the result of water escaping from an upper floor.
In a block of premises each tenant can normally be regarded as consenting to the presence of water on the premises if the supply is of the usual character, but not if it is of quite an unusual kind, or defective or dangerous, unless he actually knows of that.
The defendant is liable if the escape was due to his negligence.
Common benefit
Where the source of the danger is maintained for the common benefit of the plaintiff and the defendant, the defendant is not liable for its escape.
This is akin to the defence of consent of the plaintiff, and Bramwell B. in Carstairs v. Taylor treated it as the same thing.
There A had hired from B the ground floor of a warehouse, the upper part of which was occupied by B. Water from the roof was collected by gutters into a box, from which it was discharged by a pipe into drains.
A rat gnawed a hole in the box and water leaked through it and injured A's goods.
There was no negligence on B's part.
B was held not liable.
In Peters v. Prince of Wales Theatre (Birmingham) Ltd.,
the Court of Appeal regarded ' common benefit ' as no more than an element (although an important element) in showing consent in cases of the type of Carstairs v. Taylor.
In other judicial dicta the exception has been regarded as an independent one.
The precise ambit of ' common benefit ' has never been properly determined.
Until recently, for example, it was not considered to apply between consumers of gas or water and the public industries which supply them.
If an explosion occurs owing to the escape of gas, it does not seem to have been suggested that the defences of common benefit or consent of the plaintiff would be available to the defendants, possibly because the plaintiff has no choice as to the source of his supply of gas, whereas in other cases he can decide for himself whether he will accept the arrangement offered to him by his landlord.
It is submitted that this is the correct approach, but in Dunne v. North Western Gas Board Sellers L.J., delivering the judgment of the Court of Appeal, considered that common benefit was an important factor.
' It would seem odd that facilities so much sought after by the community and approved by their legislators should be actionable at common law because they have been brought to the places where they are required and have escaped without negligence by an unforeseen series of mishaps. '
In addition the learned judge did not think that a nationalised industry can be said to accumulate a substance for its own purposes.
Act of stranger
If the escape was caused by the unforeseeable act of a stranger, the rule does not apply.
In Box v. Jubb the defendant's reservoir overflowed partly because of the acts of a neighbouring reservoir-owner and the defendant escaped liability.
The plaintiff also failed in his claim in Rickards v. Lothian where some third person deliberately blocked up the waste-pipe of a lavatory basin in the defendant's premises, thereby flooding the plaintiff's premises.
It has been suggested that the defence is limited to the ' mischievous, deliberate and conscious act of a stranger, ' and therefore excludes his negligent acts.
However, as Jenkins L.J.
pointed out in Perry v. Kendricks Transport Ltd.
the basis of the defence is the absence of any control by the defendant over the acts of a stranger on his land and therefore the nature of the stranger's conduct is irrelevant.
The onus is on the defendant to show that the escape was due to the unforeseeable act of a stranger without any negligence on his own part.
If, on the other hand, the act of the stranger could reasonably have been anticipated or its consequences prevented, the defendant will still be liable.
In North western Utilities Ltd.
v. London Guarantee and Accident Co.
Ltd.,
an hotel belonging to and insured by the plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas.
The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below street level and belonging to the defendants, a public utility company.
The fracture was caused during the construction of a storm sewer, involving underground work beneath the defendants' mains, by a third party.
The Privy Council accepted that the defences of act of God and act of third party prevent a plaintiff from succeeding in a claim based on the rule in Rylands v. Fletcher but held the defendants liable for negligence.
The risk involved in the defendants' operations was so great that a high degree of care was expected of them.
They knew of the construction of the sewer, and they ought to have appreciated the possibility of damage to their mains and taken appropriate action to prevent or rectify it.
While it is clear that a trespasser is a ' stranger ' for this purpose, we can only conjecture who else is included in the term.
For the defaults of his servants in the course of their employment, the occupier is of course liable; he is also liable for the negligence of an independent contractor unless it is entirely collateral; for the folly of a lawful visitor in tampering with a potentially dangerous machine provided for his amusement; and it may well be for the misconduct of any member of his family on the premises, for he has control over them.
Moreover, it has been argued that he ought to be responsible for guests or licensees on his land.
But perhaps a distinction ought to be taken here.
It would be harsh to hold a person liable for the act of every casual visitor who has bare permission to enter his land and of whose propensities to evil he may know nothing; e.g. an afternoon caller who leaves the garden gate open or a tramp who asks for a can of water and leaves the tap on.
Possibly the test is, ' Can it be inferred from the facts of the particular case that the occupier had such control over the licensee or over the circumstances which made his act possible that he ought to have prevented it?
If so, the occupier is liable, otherwise not. '
In connection with this exception to the rule in Rylands v. Fletcher, we must consider whether the rule applies to a danger created on the premises by the occupier's predecessor in title.
It may be inferred from the decision in the Northwestern Utilities case that if the occupier knew or might with reasonable care have ascertained, that the danger existed, he is liable for its escape.
If, however, this condition is not satisfied, it is submitted that he ought not to be liable.
There is no direct decision on the point, but the rule itself seems to make it essential that the defendant should ' bring on his lands' the danger.
It is true that this is qualified by the North western Utilities case, but that decision does not apply to an occupier who neither knows nor could reasonably have discovered the existence of a danger created by his predecessor.
Moreover, Eve J. in an obiter dictum in Whitmores Ltd.
v. Stanford said that the rule in Rylands v. Fletcher does not extend to making the owner of land liable for the consequences of the escape of a dangerous element brought on the owner's land by another person, not for the purposes of the owner but for the purposes of that other person.
It is evident from the Northwestern Utilities case that once the defendant proves the act of a stranger, the point is reached when a claim based on the rule in Rylands v. Fletcher merges into a claim in negligence, so that if there is no fault the plaintiff will not succeed.
The original basis of liability under the rule was responsibility for the creation of an exceptional risk which happened to ripen into injury.
By means of the defence of act of a stranger the basis of the liability is shifted to responsibility for culpable failure to control the risk.
The rule in Rylands v. Fletcher thus ceases to be available at the very moment when the plaintiff needs it.
One can compare liability under the rule with the liability at common law for dangerous animals which was stricter.
It seems that the non-malicious act of a stranger was not a valid defence to the scienter action, because it was within the risk that must be accepted by anyone who knowingly chooses to keep a dangerous animal.
Statutory authority
The rule in Rylands v. Fletcher may be excluded by statute.
Whether it is so or not is a question of construction of the particular statute concerned.
In Green v. Chelsea Waterworks Co.,
for instance, a main belonging to a waterworks company, which was authorised by Parliament to lay the main, burst without any negligence on the part of the company and the plaintiff's premises were flooded; the company was held not liable.
On the other hand, in Charing Cross Electricity Co.
v. Hydraulic Power Co.,
where the facts were similar, the defendants were held to have no exemption upon the interpretation of their statute.
The distinction between the cases is that the Hydraulic Power Co. were empowered by statute to supply water for industrial purposes, that is, they had permissive power but not a mandatory authority, and they were under no obligation to keep their mains charged with water at high pressure, or at all.
The Chelsea Waterworks Co. were authorised by statute to lay mains and were under a statutory duty to maintain a continuous supply of water; it was an inevitable consequence that damage would be caused by occasional bursts and so by necessary implication the statute exempted them from liability where there was no ' negligence. '
Where a statutory authority is under a mandatory obligation to supply a service, whether with a saving or nuisance clause (that nothing shall exonerate it from proceedings for nuisance) or whether without such a clause, the authority is under no liability for anything expressly required by statute to be done, or reasonably incidental to that requirement, if it was done without negligence.
Where the statutory authority is merely permissive, with no clause imposing liability for nuisance, the authority is not liable for doing what the statute authorises, provided it is not negligent; but it is liable when there is a clause imposing liability for nuisance, even if it is not negligent.
As to the escape of water from reservoirs, even express statutory authority for their construction will not by itself exonerate their undertakers since the Reservoirs (Safety Provisions) Act 1930, now replaced by the Reservoirs Act 1975.
The Dolgarrog Dam disaster of 1925 led to the passing of this legislation.
A reservoir 1,400 feet above sea level and holding 200 million gallons of water burst and caused great devastation and loss of life.
One important question in this area awaits a final answer: if, on its proper construction, the statutory authority exempts the undertaker from Rylands v. Fletcher liability and imposes only an obligation to use due care, upon whom does the burden of proof lie?
A bare majority of the High Court of Australia has held that the burden lies upon the plaintiff to prove lack of such care; but the contrary arguments of the minority seem more convincing in principle and allow for the grave difficulties facing a plaintiff with the task of proving negligence against the supplier of a public utility such as gas or electricity.
The question whether the rule in Rylands v. Fletcher applies in all its strictness to local authorities has been considered but not decided.
In Smeaton v. Ilford Corporation Upjohn J. found it unnecessary to express a concluded view on the question whether a local authority exercising statutory duties is altogether outside the rule as suggested by Denning L.J., or prima facie within the rule subject only to express or implied statutory modification as tentatively suggested by Evershed M.R. in the Pride of Derby case.
Act of God
Where the escape is caused directly by natural causes without human intervention in ' circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility, ' the defence of act of God applies.
This was recognised by Blackburn J. in Rylands v. Fletcher itself and was first applied in Nichols v. Marsland.
In this case the defendant for many years had been in possession of some artificial ornamental lakes formed by damming up a natural stream.
An extraordinary rainfall, ' greater and more violent than any within the memory of witnesses' broke down the artificial embankments and the rush of escaping water carried away four bridges in respect of which damage the plaintiff sued.
Judgment was given for the defendant; the jury had found that she was not negligent and the court held that she ought not to be liable for an extraordinary act of nature which she could not reasonably anticipate.
Whether a particular occurrence amounts to an act of God is a question of fact, but the tendency of the courts nowadays is to restrict the ambit of the defence, not because strict liability is thought to be desirable but because increased knowledge limits the unpredictable.
In Greenock Corporation v. Caledonian Ry.,
the House of Lords criticised the application of the defence in Nichols v. Marsland, and four of their lordships cast doubt on the finding of facts by the jury in that case.
The Corporation constructed a concrete paddling pool for children in the bed of the stream and to do so they had to alter the course of the stream and obstruct the natural flow of the water.
Owing to a rainfall of extraordinary violence, the stream overflowed at the pond, and a great volume of water, which would normally have been carried off by the stream, poured down a public street into the town and caused damage to the plaintiffs' property.
The House of Lords held that the rainfall was not an act of God and that the Corporation were liable.
It was their duty ' so to work as to make proprietors or occupiers on a lower level as secure against injury as they would have been had nature not been interfered with. '
Similar considerations apply to an extraordinary high wind and an extraordinary high tide.
Lightning, earthquakes, cloudbursts and tornadoes may be acts of God but there seems to be no English decision in which they have been involved.
In law, then, the essence of an act of God is not so much a phenomenon which is sometimes attributed to a positive intervention of the forces of nature, but a process of nature not due to the act of man and it is this negative side which deserves emphasis.
The criterion is not whether or not the event could reasonably be anticipated, but whether or not human foresight and prudence could reasonably recognise the possibility of such an event.
Even in such limited form, however, this defence, like the defence of act of a stranger, shifts the basis of the tort from responsibility for the creation of an exceptional risk to culpable failure to control that risk.
This has been criticised on the ground that an accidental escape caused by the forces of nature is within the risk that must be accepted by the defendant when he accumulates the substance on his land.
As Scrutton L.J.
put it in his strong dissenting judgment in Att. -Gen.
v. Cory Bros.,
' the fact that an artificial danger escaped through natural causes was no excuse to the person who brought an artificial danger there. '
Nevertheless, the defence is now firmly part of the law and brings the rule in Rylands v. Fletcher closer to the tort of negligence.
As Lord Greene M.R. accepted in J. J. Makin Ltd.
v. L.N. E.R.,
a proprietor can avoid the ordinary liability based on the rule in Rylands v. Fletcher if he can show that the water had escaped without his negligence.
Default of the plaintiff
If the damage is caused solely by the act or default of the plaintiff himself, he has no remedy.
In Rylands v. Fletcher itself, this was noticed as a defence.
If a person knows that there is a danger of his mine being flooded by his neighbour's operations on adjacent land, and courts the danger by doing some act which renders the flooding probable, he can not complain.
So, too, in Ponting v. Noakes, the plaintiff's horse reached over the defendant's boundary, nibbled some poisonous tree there and died accordingly, and it was held that the plaintiff could recover nothing, for the damage was due to the horse's own intrusion and, alternatively, there had been no escape of the vegetation.
Had it been grown there expressly for the purpose of alluring cattle to their destruction, the defendant would have been liable, not on the grounds of Rylands v. Fletcher, but because he would have been in the position of one who deliberately sets traps baited with flesh in order to attract and catch dogs which are otherwise not trespassing at all.
Where the plaintiff is contributorily negligent, the apportionment provisions of the Law Reform (Contributory Negligence) Act 1945 will apply.
If the injury due to the escape of the noxious thing would not have occurred but for the unusual sensitiveness of the plaintiff's property, there is some conflict of authority whether this can be regarded as default of the plaintiff.
In Eastern S.A. Telegraph Co.
Ltd.
v. Cape Town Tramways Companies Ltd.,
an escape of electricity stored and used by the defendants in working their tramcars, interfered with the sending of messages by the plaintiffs through their submarine cable.
The plaintiffs failed to recover as no tangible injury had been done to their property  no apparatus had been damaged.
The defendants' operations were not destructive of telegraphic communication generally, but only affected instruments unnecessarily so constructed as to be affected by minute currents of the escaping electricity.
With regard to such instruments it was said, ' A man can not increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure. '
However, in Hoare Co.
v. McAlpine, where vibrations from pile-driving caused structural damage to a large hotel on adjoining land, Astbury J. held it to be a bad plea that the vibrations had this effect only because the hotel was so old as to be abnormally unstable; but he found also that the evidence did not establish that it was in such a condition.
Thus the question remains an open one, and it can hardly be said that the hotel proprietor had put his property to any special or unusually sensitive use.
REMOTENESS OF DAMAGE
The defendant under Rylands v. Fletcher can not be liable ad infinitum and in Blackburn J. 's formulation of the rule he ' is prima facie answerable for all the damage which is the natural consequence of its escape. '
The Privy Council in The Wagon Mound (No. 1) stated that their Lordships had not found it necessary to consider the rule in Rylands v. Fletcher in relation to remoteness of damage and it has been suggested that the inference is that causation, not foreseeability, is the test under the rule.
There is no very compelling reason, however, why foreseeability should not be utilised as the test of remoteness in cases where it is irrelevant to the initial determination of liability: ' granted that an escape takes place, albeit unforeseeably, what would a reasonable man regard as the foreseeable consequences of such an escape? '
It will also be recollected that so many qualifications have been placed upon the decision in The Wagon Mound (No. 1) that the concept of foreseeability is now applied in a very broad and liberal manner and there is unlikely to be much practical difference between an inquiry whether a consequence is foreseeable or natural.
The natural or foreseeable consequences of a dam bursting are, inter alia, the inundation of subjacent land, damage to buildings, roads and personal injuries.
If the water flows into the shaft of an adjoining mine, with the result that the mine can not be worked for six months, the mine owner may recover damages, but the miners who lose their wages during that period probably have no remedy, not because the loss is' unnatural ' or ' unforeseeable ' but because it is a loss of a type for which the law restricts recovery.
Even if the escaping water flows into a carbide factory and thereby generates gas which causes a tremendous explosion it is unlikely that much will be achieved by seeking to draw distinctions between what is natural and foreseeable.
As in all such cases the issue is finally one of legal policy.
MODERN POSITION OF THE RULE IN RYLANDS V. FLETCHER
The rule in Rylands v. Fletcher, then, had its origins in the law of private nuisance and has often been treated as a particular species of nuisance.
In Read v. Lyons, for instance, Lord Simonds remarked that ' the judgment of Blackburn J. in the case itself shows that the law of nuisance and the rule in Rylands v. Fletcher might in most cases be invoked indifferently. '
The rule of course has in many senses a more restricted application than nuisance; there must be an accumulation, and it must be of a substance likely to cause injury if it escapes, neither of which is essential to liability in nuisance.
Moreover, the condition of non-natural user, though similar to unreasonable user in nuisance, normally involves some degree of exceptional risk which unreasonable user does not.
Nevertheless in many factual situations, a plaintiff will succeed equally well either under the rule or in nuisance.
Despite the original relationship of the rule to nuisance, however, the former has been developed in such a way that it provides a remedy which is basically quite different from nuisance.
Private nuisance remains fundamentally a remedy for the infringement of a proprietary interest in land.
There are, as we have seen, different types of nuisance and because of this the burden of proof placed on the plaintiff varies.
But the basic characteristic common to all types of private nuisance is that of interference with the plaintiff's proprietary interest in land.
For this reason a non-occupier can not maintain a claim in nuisance and an occupier's right to damages for his personal injuries is ancillary to his claim for compensation for damage to his property.
In contrast, it now seems good law that the rule in Rylands v. Fletcher protects all interests including the interest of a non-occupier, e.g. a user of the highway, in his personal security.
As one writer has put it, the rule provides a remedy for what is' essentially a wrong arising from occupation of land (and it is irrelevant whether the person suffering the injury occupies land or not). '
This serves to distinguish it quite fundamentally from nuisance.
At the same time as the area covered by the rule in Rylands v. Fletcher has been enlarged, the usefulness of the rule has been reduced by the unwillingness of the courts to apply it in circumstances where the defendant could not be said to have been at fault.
In Dunne v. North Western Gas Board, Sellers L.J.
asserted that in the present time the defendant's liability in Rylands v. Fletcher itself ' could simply have been placed on the defendant's failure of duty to take reasonable care, ' and it seems a logical inference from this and from the judgment as a whole that the Court of Appeal considered the rule to have no useful function in modern times.
Because of this policy, ' the rule in Rylands v. Fletcher, by reason of its many limitations and exceptions, today seldom forms the basis of a successful claim in the courts' and it seems fair to remark that the rule ' has hardly been taken seriously by modern English courts. '
The most important restriction on any extended application of the rule is the requirement of non-natural user.
As it is now interpreted, this excludes from the ambit of the rule those accumulations which in the judgment of the court (there being no objective test) do not involve an unreasonable risk or an extraordinary use of land.
Such an interpretation allows the courts to hold that a common activity such as the collection and storage of gas or water does not constitute a non-natural use of land, even though the injury potential of the activity is high.
Moreover, in determining what is extraordinary or unreasonable the courts can have regard not only to the interests of the defendant but to the public interest as well.
The benefit to the public accruing from the activity in question was an important element in both Read v. Lyons and Dunne v. North Western Gas Board and was again emphasised in British Celanese Ltd.
v. A.H.
Hunt Ltd.
In this case the defendants, who were manufacturers of electronic components, collected on their land a large number of strips of metal foil, light enough to be blown about in the wind.
Lawton J. refused to regard this as a non-natural use of land.
' The manufacturing of electrical and electronic components in the year 1964... can not be adjudged to be a special use nor can the bringing and storing on the premises of metal foil be a special use in itself....
The metal foil was there for use in the manufacture of goods of a common type which at all material times were needed for the general benefit of the community. '
It would seem therefore that normal industrial activities properly carried out may no longer involve a non-natural use of land and many of the older authorities on this point will need reconsidering.
Moreover, as a result of the defences of act of God, act of a third party and statutory authority, the courts must investigate not only the reasonableness of the accumulation, but also the defendant's responsibility for its actual escape.
The nature and quality of the defendant's conduct are therefore factors of great importance, and although the decisional process is different from that in negligence, the result is almost always the same.
We have virtually reached the position where a defendant will not be considered liable when he would not be liable according to the ordinary principles of negligence.
Unfortunately, it is precisely at the point when the plaintiff can not succeed in a claim in negligence that he needs to have recourse to the rule in Rylands v. Fletcher.
It may well be contrary to modern judicial philosophy that a defendant should be liable in the absence of fault but this involves as its consequence that an innocent plaintiff should bear the loss.
The injustice that may be caused by this was clearly illustrated by the case of Pearson v. North Western Gas Board.
The plaintiff was seriously and her husband fatally injured by an explosion of gas which also destroyed their home.
On the facts of the case, even assuming the doctrine of res ipsa loquitur to operate in favour of the plaintiff, Rees J. was compelled to hold that the expert evidence adduced by the defendants rebutted any prima facie case in negligence.
As the plaintiff was precluded from relying on the rule in Rylands v. Fletcher by the decision in Dunne v. North Western Gas Board, the action failed.
It is suggested that the decline of the rule in Rylands v. Fletcher in recent times has left the individual injured by the activities of our industrial society without adequate protection.
It has been said on high authority that
'... to regard negligence as the normal requirement of responsibility in tort, and to look upon strict liability as anomalous and unjust seems to... mistake present values as well as past history.
In an age when insurance against all forms of liability is commonplace, it is surely not surprising or unjust if law makes persons who carry on some kinds of hazardous undertakings liable for the harm they do, unless they can excuse or justify it on some recognisable ground. '
Judicial ideas are no more immutable than any others and it may be that the above account is too pessimistic, but it seems likely that any future extension of strict liability will come only from the legislature.
Some instances of modern statutory liability are considered in a later section of this chapter but a more generalised revival of the Rylands v. Fletcher idea is proposed in two modern law reform proposals.
The Law Commission in its Report on Civil Liability for Dangerous Things and Activities suggested the concept of ' special danger '  i.e.
activities involving ' a more than ordinary risk of accidents or a risk of more than ordinary damage if accidents in fact result '  as a basis for future development of the law.
The problem remains, however, of how this should be implemented.
One possibility would be a statutory reformulation of Rylands v. Fletcher shorn of the qualifications and defences which so emasculate it now, perhaps on the lines of the Restatement, which imposes strict liability on one who carries on an ' abnormally dangerous activity, ' but this would be open to varying judicial inclinations and would give rise to considerable uncertainty for a very long period of time.
Accordingly the Royal Commission on Civil Liability and Compensation for Personal Injury recommended a different approach (but only for death or personal injury) in the form of a parent statute which would empower a Minister to ' list ' dangerous things or activities as giving rise to strict liability.
Listing would be by statutory instrument made on the advice of an advisory committee.
There was some disagreement in the Commission as to the scope of the admissible defences but there was a unanimous recommendation that statutory authority should not, of itself, provide immunity from strict liability.
Such a scheme would undoubtedly provide a greater degree of certainty than under the present law but would be open to the objection that it would leave without redress any persons suffering injury from an unlisted activity, whether omission arose from ignorance of the risk or commercial or political pressures on the government of the day.
The retention of the rule in Rylands v. Fletcher as a form of ' back-up ' to this liability would go some way to meet this point, though the Royal Commission's preference, for reasons of certainty, was for the abolition of that rule.
In conclusion it should be noted that power already exists to utilise delegated legislation to go a good deal of the way along the road proposed by the Royal Commission.
The purposes of the Health and Safety at Work etc.
Act 1974 go beyond the securing of safety in employment and include:
(1)
' protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work ';
(2)
' controlling the keeping and use of explosive or highly flammable or otherwise dangerous substances,... ';
(3)
' controlling the emission into the atmosphere of noxious or offensive substances... '
In order to promote these purposes the Secretary of State, normally on the advice of the Health and Safety Commission, has power to make ' health and safety regulations' which will give rise to civil liability except in so far as they provide otherwise.
To the extent that these regulations impose absolute duties they may, accordingly, provide any persons injured thereby with an effective civil remedy.
FIRE
Common law
Winfield has traced the history of the earlier forms of action available as remedies for damage caused by the spread of fire.
The usual remedy was the special action of trespass on the case for negligently allowing one's fire to escape in contravention of the general custom of the realm which we first hear of in Beaulieu v. Finglam.
The allegation in the action for fire that the defendant tam negligenter ac improvide ' kept his fire that it escaped, ' referred to negligence in its older sense  one mode of committing a tort.
Centuries later remedies became available under the rule in Rylands v. Fletcher in nuisance and in negligence.
Although it is repeatedly said that at common law a man must keep his fire ' at his peril, ' research shows that we can not be sure that at any period in the history of the common law a man was absolutely liable for the escape of his fire.
He is liable for damage done by his fire if it has been caused wilfully, or by his negligence, or by the escape without negligence of a fire which has been brought into existence by some non-natural user of the land.
It has been pointed out that the last type of liability is not quite the same as liability under the rule in Rylands v. Fletcher in that the thing accumulated on the land does not itself escape.
The criterion of liability is: ' Did the defendants... bring to their land things likely to catch fire, and keep them there in such conditions that if they did ignite the fire would be likely to spread to the plaintiff's land? '
With this qualification liability is the same as under the rule in Rylands v. Fletcher.
Exactly what ' negligenter ' meant can only be conjectured, for the old authorities are confused, but it certainly excluded liability where the fire spread or occurred (a) by the act of a stranger over whom he had no control, such as a trespasser, and (b) by the act of nature.
He is responsible for the default of his servant, his wife, his guest or one entering his house with his leave and for his independent contractor.
The second exception was established in Tuberville v. Stamp where it was held that liability extended to a fire originating in a field as much as to one beginning in a house, but if the defendant kindles it at a proper time and place and the violence of the wind carry it to his neighbour's land, that is fit to be given in evidence.
The common law liability still remains in all cases which are not covered by statutory provision.
Statutes
(1) Fires beginning accidentally on the defendant's land
The common law liability has been modified in respect of fires spreading from the defendant's land by the Fires Prevention (Metropolis) Act 1774, which provides that no action shall be maintainable against anyone in whose building or on whose estate a fire shall accidentally begin.
This section of the Act is of general application and is not limited to London.
In Filliter v. Phippard the word ' accidentally ' was interpreted restrictively so as to cover only ' a fire produced by mere chance or incapable of being traced to any cause. '
In other words a fire caused by negligence or due to a nuisance will give rise to a cause of action.
The immunity of a defendant under the statute is illustrated by Collingwood v. Home and Colonial Stores Ltd.
A fire broke out on the defendants' premises and spread to those of the plaintiff.
It originated in the defective condition of the electrical wiring on the defendants' premises, but as there was no negligence on their part they were held not liable.
Nor was the rule in Rylands v. Fletcher applicable, for the installation of electric wiring, whether for domestic or trade purposes, was a reasonable and ordinary use of premises.
Even if the fire is lit intentionally, providing it is lit properly, there is no liability if it spreads without negligence and causes damage, e.g.
a spark jumps out of an ordinary household fire and causes it to spread.
It would be different, of course, if the fire were made too large for the grate.
However, the statute does not confer protection on one who was not at fault so far as the origin of the fire is concerned but who was negligent in letting it spread.
In Musgrove v. Pandelis, the plaintiff occupied rooms over a garage and let part of the garage to the defendant who kept a car there.
The defendant's servant, who had little skill as a chauffeur, started the engine of the car and without any fault on his part the petrol in the carburettor caught fire.
If he had acted like any chauffeur of reasonable competence he could have stopped the fire by turning off the tap connecting the petrol tank with the carburettor.
He did not do so and the fire spread and damaged the plaintiff's property.
The defendant was held liable, for the fire which did the damage was not that which broke out in the carburettor but that which spread to the car and this second or continuing fire did not ' accidentally ' begin.
The same principle applies where the fire originated as a consequence of an act of nature.
In Goldman v. Hargrave, a redgum tree on the defendant's land was struck by lightning and caught fire in a fork eighty feet above ground.
The defendant had the tree felled the following morning, but then, instead of extinguishing the fire with water as he could have done, he left it to burn itself out.
Three days later a wind came up and revived the fire which spread to and damaged the plaintiff's land.
It was held in the circumstances that the defendant was negligent in not completely extinguishing the fire and that the Act of 1774 provided no defence.
The burden of proving such negligence is on the plaintiff; it is not for the defendant to prove that the fire was accidental.
Even though a plaintiff can not prove negligence, if the fire originated from a non-natural user of the defendant's land, the Act of 1774 does not provide a defence and the defendant will be liable.
(2) Railway engines
Other statutes deal with the escape of sparks from railway engines.
Where, as is commonly the case, a railway is constructed and worked under statutory powers, and there is no negligence in the construction or use of locomotives, there is no liability for fires caused by the escape of sparks from locomotives; such was the decision in Vaughan v. Taff Vale Ry.,
where the defendants had taken every precaution that science could suggest to prevent injury of this sort, and it was held that as Parliament had authorised the use of locomotives it was consistent with policy and justice that the defendants, in the absence of any negligence, should not be liable.
But this view was rather hard upon farmers with crops adjacent to a railway line and a compromise was effected by the Railway Fires Acts 1905 and 1923, which cast upon railways a liability not exceeding 200, even if the total damage claimed and done is much in excess, for damage caused to agricultural land or agricultural crops by fire arising from the emission of sparks or cinders from their locomotives, although the locomotive was used under statutory powers.
Presumably this puts the liability of the railway company up to 200 on the same level as that fixed by the common law and, on the other hand, does not deprive it of any of the defences pleadable at common law which are discussed above, e.g.
default of the plaintiff.
STRICT LIABILITY UNDER MODERN LEGISLATION
We saw, when considering nuisance, how that branch of the common law has been supplemented (indeed, in some respects almost obliterated) by detailed statutory provisions governing pollution of the environment.
Most of this legislation is of a ' regulatory ' nature and does not give rise to liability in damages.
We have also seen that for the purposes of civil liability there have been proposals for a generalised statutory scheme for exceptional risks.
The reader should be aware, however, that recent years have seen the enactment of a number of important statutory forms of liability in particular areas of exceptional risk which go a long way towards avoiding the likelihood of protracted litigation inherent in the ill-defined nature of the rules of strict liability at common law.
Full accounts of these Acts must be sought elsewhere but the following is a summary of the civil liability aspects of some of the more important of them.
Nuclear incidents
The major factors requiring the enactment of legislation on liability for nuclear incidents were the risk of widespread damage, possibly involving losses of millions of pounds, from a single emission of ionising radiations and the possible injustice in the Limitation Acts owing to the long periods which might elapse between the impact of ionising radiations on the plaintiff and his suffering ascertainable damages.
By the Nuclear Installations Act 1965 no person other than the United Kingdom Atomic Energy Authority shall use any site for the operation of nuclear plant unless a licence to do so has been granted in respect of that site by the Minister of Power.
Liability arises only when there is a nuclear incident which occurs at or in connection with certain nuclear installations, or in the course of transport of nuclear substances, and it can arise only in connection with licensed nuclear sites.
Section 7(1) enacts:
' It shall be the duty of the licensee to secure that  (a) no such occurrence involving nuclear matter as is mentioned in subsection (2) of this section causes injury to any person or damage to any property of any person other than the licensee, being injury or damage arising out of or resulting from the radioactive properties, or a combination of those and any toxic, explosive or other hazardous properties, of that nuclear matter; and (b) no ionising radiations emitted during the period of the licensee's responsibility  (i) from anything caused or suffered by the licensee to be on the site which is not nuclear matter; or (ii) from any waste discharged (in whatever form) on or from the site, cause injury to any person or damage to any property of any person other than the licensee. '
The liability of the licensee under section 7(1) (a), once damage within the Act is proved to have resulted, is a strict one.
There is no need to prove negligence on the part of anyone.
Any person, other than the licensee, may sue provided he can prove ' injury ' (which means' personal injury ' and includes loss of life) or ' damage to any property. '
There is no need that the dangerous matter should ' escape ' from the site on which it was kept onto other land.
The Act creates a statutory right of action for damages, where injury or damage has been caused in breach of a duty.
Where liability in respect of the same injury is incurred by two or more persons, both or all of those persons shall be treated as jointly and severally liable in respect of that injury or damage.
It is a defence that the breach of duty under the Act is attributable to hostile action in the course of any armed conflict, but it is not a defence that it is attributable to a natural disaster, notwithstanding that the disaster is of such an exceptional character that it could not reasonably have been foreseen.
The amount of compensation payable may be reduced by reason of the fault of the plaintiff, ' but only if, and to the extent that, the causing of that injury or damage is attributable to the act of [ the plaintiff ] committed with the intention of causing harm to his person or property or with reckless disregard for the consequences of his act. '
Under the Law Reform (Contributory Negligence) Act 1945 both the degree of blame-worthiness and the causative potency of the act have to be considered in reducing damages.
But under the 1965 Act once the plaintiff is found to be intentional or reckless within the meaning of the subsection, the amount of the reduction rests solely on the extent to which the harm is caused by the plaintiff's act.
If after the plaintiff has been harmed his damages are increased by his failure to have proper medical attention, this failure by him to mitigate his damage would have prevented him from recovering that portion of his loss which is attributable to his omission, and it is doubtful whether section 13(6) of the 1965 Act has a different effect.
It may well be that in an extreme case the plaintiff's claim will fail completely by a plea of ex turpi causa non oritur actio.
Section 12(1) provides that ' where any injury or damage has been caused in breach of a duty imposed ' by the Act, then subject to certain exceptions' no other liability shall be incurred by any person in respect of that injury or damage. '
Section 15(1) enacts that ' notwithstanding anything in any other enactment, a claim under the Act shall not be entertained after the expiration of 30 years from the date of the occurrence which gives rise to the claim, or, where that occurrence was a continuing one, or was one of a succession of occurrences all attributable to a particular happening ' on a particular site, the date of the last event in the course of that occurrence or succession of occurrences is the relevant one.
The period runs from the defendant's act, not from the infliction of damage.
However, the licensee's liability is in fact limited to a period of 10 years.
He is required to make such provision (either by insurance or some other means) as the Minister may, with the consent of the Treasury, approve for sufficient funds to be available, generally up to a total of 20m. to cover compensation during this period.
In other cases (where the claim exceeds the statutory limit or after the expiry of 10 years) claims are to be directed to the Government, which satisfies them out of moneys provided by Parliament.
The Act applies in certain circumstances to occurrences outside the United Kingdom.
Oil Pollution
The Merchant Shipping (Oil Pollution) Act 1971 imposes civil liability upon the owner of a ship carrying a cargo of persistent oil in bulk for escape or discharge of persistent oil from the ship.
From a date to be appointed the Act is amended by the Merchant Shipping Act 1988 and the account here is of the Act as amended.
Liability extends to damage caused in the United Kingdom, the cost of any measures reasonably taken for the purpose of preventing or reducing such damage, or damage caused by any measures so taken.
The Act provides three defences, namely, that the discharge or escape 
(i)
resulted from an act of war, hostilities, civil war, insurrection or an exceptional, inevitable and irresistible natural phenomenon or
(ii)
was due wholly to anything done or left undone by another person, not being a servant or agent of the owner, with intent to do damage or
(iii)
was due wholly to the negligence or wrongful act of a government or other authority in exercising its function of maintaining lights or other navigational aids.
The Act provides a complete code of liability of shipowners for such occurrence and any common law liability is generally abolished.
There are also provisions for compulsory insurance and for limitation of liability.
The Law Reform (Contributory Negligence) Act 1945 applies to proceedings under the Act.
Poisonous Waste
The Control of Pollution Act 1974 provides that where any damage is caused by poisonous, noxious or polluting waste which has been deposited on land, any person who deposited it or caused or knowingly permitted it to be deposited is civilly liable for the damage, provided that his act constituted an offence under section 3(3) or section 18(2) of the Act.
To constitute an offence under those sections the waste must have been deposited on an unlicensed site or in breach of the conditions in the licence, must amount to an ' environmental hazard ' and must have been deposited in such circumstances or for such a period that whoever deposited it there may reasonably be assumed to have abandoned it there or to have brought it there for the purpose of its being disposed as waste.
The Act provides the following defences to a civil action:
(i)
that the defendant took care to inform himself, from others who were in a position to provide the information, as to whether the deposit would constitute an offence and had no reason to suppose that the information given to him was false or misleading;
(ii)
that the defendant acted under instructions from his employer and neither knew nor had reason to suppose that the deposit was unlawful;
(iii)
in the case of an action arising from making a deposit otherwise than in accordance with conditions specified in a disposal licence, that the defendant took all such steps as were reasonably open to him to ensure that the conditions were complied with;
(vi)
the damage was wholly due to the fault of the person who suffered it.
(v)
the damage was suffered by a person who voluntarily accepted the risk thereof.
The Law Reform (Contributory Negligence) Act 1945 applies to liability arising under the Act.
ANIMALS
AT common law a person might be liable for damage caused by an animal on one or more of three distinct grounds, namely, ordinary liability in tort, liability under the scienter rule and liability for cattle trespass.
The law was substantially modified with regard to two of these matters by the Animals Act 1971; but its structure is still in large measure the same and it is convenient to retain the common law headings for the purposes of exposition.
ORDINARY LIABILITY IN TORT
There are many possible ways in which one may incur tortious liability through the instrumentality of an animal under one's control, but the fact that the agent happens to be animate rather than inanimate is immaterial, for while the common law, like other legal systems, developed special or additional rules of liability for animals, it did not deny the applicability to them of the general law.
A good example of this is nuisance, for you can be liable for nuisance through the agency of your animals, just as you can be for nuisance through the agency of anything else you own.
A man who keeps pigs too near his neighbour's house commits a nuisance, but that is not solely because they are pigs.
He would commit a nuisance just as much if what he owned were a manure heap.
There is no independent tort called ' nuisance by pigs, ' or ' nuisance by animals. '
Indeed, nuisance may be the only appropriate remedy where there is no ' escape ' and where the animal is not dangerous, e.g.
obstruction of the highway by large numbers of animals, or stench from pigs or the crowing of cockerels.
Generally there is no liability for the escape of noxious animals on the defendant's land in the ordinary course of nature, such as rabbits, rats or birds.
But if a landowner deliberately collects rabbits or game on his land for any purpose, he is liable for damage by them to neighbouring owners if it is caused by his' extraordinary, non-natural or unreasonable action. '
Again, if a dog-owner deliberately sets his dog on a peaceable citizen he is guilty of assault and battery in the ordinary way just as if he had flung a stone or hit him with a cudgel.
So, too, if a man teaches his parrot to slander anyone, that is neither more nor less the ordinary tort of defamation than if he prefers to say it with his own tongue rather than with the parrot 's.
Similarly, ordinary trespass can be committed by means of animals.
Trespass by beasts so often takes the form of ' cattle trespass' (with which we deal separately) that one does not meet with many ordinary actions for trespass in the reports.
However an indirect example is Paul v. Summerhayes where fox hunters persisted in riding over the land of a farmer in spite of his protests and were held to have committed trespass.
Liability for animals may also be based on negligence:
' Quite apart from the liability imposed upon the owner of animals or the person having control of them by reason of knowledge of their propensities, there is the ordinary duty of a person to take care either that his animal or his chattel is not put to such a use as is likely to injure his neighbour  the ordinary duty to take care in the cases put upon negligence. '
In an action based upon the breach of such a duty to take care, the ordinary rules in an action of negligence apply.
There is abundant authority to show that the action for negligence for harm done through animals is quite distinct from both the cattle trespass rule and the scienter rule.
In one respect, however, the common law failed to extend the principles of negligence to cases involving animals.
It was the rule for centuries that if animals (or at least, ordinary tame animals) strayed from adjacent land on to the highway neither the owner of the animals nor the occupier of the land was liable for any ensuing damage even though it could have been prevented by controlling the animal or by fencing.
This immunity has now been abolished by the Animals Act 1971, so that where damage is caused by animals straying on the highway the question of liability is to be decided in accordance with the ordinary principles of negligence.
It is provided, however, that if a person has a right to place animals on unfenced land, he is not to be regarded as in breach of a duty of care by reason only of his placing them there, so long as the land is in an area where fencing is not customary or is common land or a town or village green.
It is important to note that the Act does not require all landowners to fence against the highway: in moorland areas of Wales and the north of England this would be an intolerable burden and in such areas a motorist must be expected to be on the look out for straying livestock.
LIABILITY FOR DANGEROUS ANIMALS
At common law the keeper of an animal was strictly liable, independently of negligence, for damage done by the animal if (a) the animal was ferae naturae (i. e.
belonged to a dangerous species) or (b) the animal was mansuetae naturae (i.e.
did not belong to a dangerous species) and he knew of its vicious characteristics.
These forms of strict liability have been retained by the Animals Act 1971 and, though they have been subjected to considerable modification, much of the old learning will continue to be relevant.
It is, however, important to remember that the only source of the law is now the words of the Act and these must always prevail.
Animals belonging to a dangerous species
Where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage.
A dangerous species is defined as' a species (a) which is not commonly domesticated in the British Islands and (b) whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe. '
A number of points arise on this definition.
First, it seems that as was the case at common law in classifying animals as' ferae naturae, ' the question of whether an animal belongs to a dangerous species is one of law for the court.
It is therefore to be expected that where an animal had been classified as ferae naturae at common law it will be regarded as belonging to a dangerous species under the Act (e.g.
a lion, an elephant and at least certain types of monkeys).
In two respects, however, the definition is wider than at common law in that the Act (a) renders a species dangerous if it poses a threat to property and (b) allows for a species to be considered dangerous if it is not commonly domesticated in Britain, even though it may be so domesticated overseas.
Secondly it will remain the case that once a species has been judicially classified as dangerous, then, subject to the doctrine of precedent, there is no room for distinctions based upon the fact that some variants or individual animals within the species may not in fact be at all dangerous: in other words, the law continues to ignore ' the world of difference between the wild elephant in the jungle and the trained elephant in the circus... [ which ] is in fact no more dangerous than a cow. '
Thirdly, the Act clearly adopts as the test of danger either ' the greater risk of harm ' or ' the risk of greater harm ': an elephant may not in fact be very likely to get out of control and do damage, but if it does so, its bulk gives it a great capacity for harm.
For the purposes of this form of liability a person is a ' keeper ' of the animal if ' (a) he owns the animal or has it in his possession; or (b) he is the head of a household of which a member under the age of 16 owns the animal or has it in his possession; and if at any time an animal ceases to be owned by or to be in the possession of a person, any person who immediately before that time was a keeper thereof... continues to be a keeper of the animal until another person becomes a keeper thereof... '
Other animals
Section 2(2) provides:
' Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage... if:
(a)
the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and
(b)
the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and
(c)
Those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keeper's servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen. '
The purpose of this somewhat complex provision is to preserve, with some modifications, the old rule of scienter liability for tame animals.
Paragraph (a) follows the pattern of section 2(1) in adopting likelihood of injury or likelihood that any injury that may be caused will be severe.
Paragraph (b), however, is likely to give rise to difficulty with its concept of ' abnormal ' characteristics, if only because it may be so difficult to determine the ' normal ' characteristics of a species.
In a case like Barnes v. Lucille Ltd.,
where the plaintiff was bitten by a bitch with pups, he would still presumably succeed, since the ' normal ' bitch is aggressive only at such times.
A more difficult case would be Fitzgerald v. A. D. and E. D. Cooke Bourne Farms Ltd.
where the plaintiff's injuries were inflicted by the frolics of a young filly, behaviour which is perfectly normal for such animals.
However, it may be that the norm here is' horse ' not ' filly ' so that the frolicsomeness would be a characteristic found only at a particular time, viz.
during the animal's youth.
The requirement of knowledge in paragraph (c) is clearly of ' actual ' rather than of constructive knowledge, though a person who ought to know of his animal's vicious characteristics may, of course, still be liable for negligence.
In some cases the knowledge is imputed to the keeper by process of law under paragraph (c), but this does not mean that knowledge of a person not mentioned in that paragraph will be irrelevant: if, for example, the wife of the keeper has knowledge of the animal's propensities it may be proper for the court to infer as a matter of fact that the keeper also knew of them.
It should be noted with regard to both types of dangerous animals, that the Act, unlike the common law, contains no requirement that the animal must escape from control, nor that there must be any sort of attack.
If, therefore, an elephant slips or stumbles or a sheep transmits a virulent disease to another's flock, strict liability will apply.
The definition of ' keeper ' for this head of liability is the same as that for animals belonging to a dangerous species.
Defences
The Act provides that it is a defence to an action brought under section 2 that the damage was wholly due to the fault of the person suffering it or that he voluntarily assumed the risk thereof (though a person employed as a servant by a keeper of the animal is not to be treated as accepting voluntarily risks incidental to his employment).
Contributory negligence, is, of course, a partial defence.
There is special provision for injury to trespassers by dangerous animals.
Section 5(3) provides that a person is not liable under section 2 for any damage by an animal ' kept on any premises or structure to a person trespassing there, if it is proved either (a) that the animal was not kept there for the protection of persons or property; or (b) (if the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable. '
It would seem unreasonable to protect your premises with a lion or a cobra, but not, perhaps, with a fierce dog.
This subsection does not, of course, affect any liability for negligence which the defendant may incur qua occupier of the premises or keeper of the animal, but it is thought that the keeping of guard dogs is consistent with the occupier's duty to trespassers, provided at least some warning of their presence is given.
LIABILITY FOR STRAYING LIVESTOCK
At common law the possessor of ' cattle ' was strictly liable, independently of scienter, for damage done by them when they trespassed on the land of his neighbour.
Whatever may have been the original rationale of this form of liability, it was certainly not the same as that of scienter, for agricultural animals present no peculiar risk.
However, the Law Commission recommend the retention of strict liability for this type of harm on the ground that it provided a simple method of allocating liability for what were usually comparatively small damages.
The law was, however, in need of considerable modification and the modern form of ' cattle trespass' is found in section 4 of the Act, which provides:
' (1) Where livestock belonging to any person strays on to land in the ownership or occupation of another and  (a) damage is done by the livestock to the land or to any property on it which is in the ownership or possession of the other person; or (b) any expenses are reasonably incurred by that other person in keeping the livestock while it can not be restored to the person to whom it belongs or while it is detained in pursuance of section 7 of [ the ] Act, or in ascertaining to whom it belongs; the person to whom the livestock belongs is liable for the damage or expenses, except as otherwise provided by [ the ] Act. '
Defences to strict liability for straying livestock
The Act provides that there is no liability under this head for damage which is due wholly to the fault of the person suffering it and that contributory negligence is a partial defence.
In this context default of the plaintiff is often closely bound up with fencing obligations and the Act therefore provides that damage:
'... shall not be treated as due to the fault of the person suffering it by reason only that he could have prevented it by fencing; but [ the defendant ] is not liable... where it is proved that the straying of the livestock on to the land would not have occurred but for a breach by any other person, being a person having an interest in the land, of a duty to fence. '
One other common law defence is preserved by the Act: the defendant is not liable under this form of liability if his livestock strayed on to the plaintiff's property from the highway and its presence there was a lawful use of the highway.
An example of this principle is the decision in Tillet v. Ward.
X owned an ox which, while his servants were driving it with due care through a town, entered the shop of Y, an ironmonger, through an open door.
It took three quarters of an hour to get it out and meanwhile it did some damage.
X was held not liable to Y, for this was one of the inevitable risks of driving cattle on the streets.
It would have made no difference if the ironmonger's door had been shut instead of open, and the ox had pushed its way through, or had gone through a plateglass window.
Detention and sale of straying livestock
The common law provided a form of self-help remedy to a person harmed by straying livestock by way of distress damage feasant.
The Law Commission concluded that some remedy of this type should be retained but considered that the old remedy was so hedged about with limitations (in particular, it provided no power of sale) and obscurities that it would be better to create a new, statutory right.
This is found in section 7 of the Act, which may be summarised as follows:
(i)
The right of distress damage feasant is abolished in relation to animals.
(ii)
The occupier of land may detain any livestock which has strayed on to his land and which is not then under the control of any person.
(iii)
He has, within 48 hours of exercising the right of detention, to give notice to the police and, if he knows the person to whom the livestock belongs, to that person.
(vi)
The right to detain the livestock ceases if:
(a)
the detainer has not complied with the provisions regarding notice; or
(b)
the detainer is tendered sufficient money to satisfy any claim he may have for damage and expenses in respect of the straying livestock.
or
(c)
he has no such claim and the person to whom the livestock belongs claims it.
(v)
The detainer is liable for any damage caused to the livestock by failure to treat it with reasonable care and supply it with adequate food and water.
(vi)
Where the livestock has been rightfully detained for not less than 14 days, the person detaining it may sell it at a market or by public auction, unless proceedings are then pending for the return of the livestock or for any claim for damages done by it or expenses incurred in detaining it.
(vii)
Where the net proceeds of sale exceed the amount of any claim the detainer may have for damages and expenses, the excess is recoverable from him by the person who would be entitled to the livestock but for the sale.
REMOTENESS OF DAMAGE AND STRICT LIABILITY UNDER THE ACT
The Animals Act contains no provisions relating to remoteness of damage.
At common law both forms of scienter liability and cattle trespass had close affinities with Rylands v. Fletcher and were probably governed by the remoteness principle applicable to that rule  was the consequence a ' natural ' one, a question of causation.
There were, however, at least two exceptions to the generality of this principle.
First, in the case of scienter liability for animals mansuetae naturae, the keeper was only liable if the animal caused some harm of the kind to be expected from its known vicious characteristics; secondly, in the case of cattle trespass, there was a rule that the damage had to be in accordance with the natural characteristics of the animal.
The position under the Act is to some extent speculative.
The rule in Rylands v. Fletcher was not considered in The Wagon Mound (No. 1), though it has been argued elsewhere in this book that there is no reason for refusing to apply the principles of foreseeability as developed since The Wagon Mound.
If this is correct, those principles should also be applicable to the Animals Act.
However, the form of section 2(2) means that with regard to liability for animals not belonging to a dangerous species the position will be fundamentally the same as at common law, since the damage must be of a kind made likely by the characteristics known to the keeper.
As for animals belonging to a dangerous species, a camel has been held to be such because it may cause severe injury by kicking and biting, but strict liability was imposed for injuries suffered by falling off the camel because of its irregular gait.
Whether or not any special rule survives for trespassing cattle is not likely to be of any importance now that damages for personal injuries can not be recovered under that head.
PROTECTION OF LIVESTOCK AGAINST DOGS
Liability for attacks on livestock
Section 3 of the Animals Act re-enacted, with some modification, the form of strict liability formerly found in the Dogs Acts 1906C1928 and provides that where a dog causes damage by killing or injuring livestock, any person who is a keeper of the dog is liable for the damage.
The Act provides the following defences: that the damage was wholly due to the fault of the person suffering it; that that person voluntarily accepted the risk of the damage; and that the livestock was killed or injured on land on which it had strayed and either the dog belonged to the occupier or its presence on the land was authorised by the occupier.
Contributory negligence is a partial defence.
Killing or injuring dogs to protect livestock
It may, in certain circumstances, be lawful for a person to kill or injure an animal belonging to another if this is necessary for the protection of his livestock or crops.
The common law rule on this was laid down by the Court of Appeal in Cresswell v. Sirl but this rule has been replaced, so far as the protection of livestock against dogs is concerned, by section 9 of the Animals Act.
It is a defence to an action for killing or injuring a dog to prove that:
(i)
the defendant acted for the protection of livestock and was a person entitled so to act; and
(ii)
within 48 hours thereafter notice was given to the officer in charge of a police station.
A person is entitled to act for the protection of livestock if either the livestock or the land on which it is belongs to him or to any person under whose express or implied authority he is acting; and he is deemed to be acting for their protection if and only if, either:
(a)
the dog is worrying or is about to worry the livestock and there are not other reasonable means of ending or preventing the worrying; or
(b)
the dog has been worrying livestock, has not left the vicinity and is not under the control of any person and there are no practicable means of ascertaining to whom it belongs.
INTERFERENCE WITH GOODS
ENGLISH law governing remedies for interference with goods is exceedingly technical, partly because of the long survival and overlap of a number of different heads of liability and partly because the law, though tortious in form, is largely proprietary in function.
The Torts (Interference with Goods) Act 1977 has made some simplification by abolishing one head of liability but it is only a piecemeal attempt to deal with certain deficiencies in the common law and is in no way a code governing interference with goods.
Accordingly, the law must still be sought mainly in the decisions of the courts and it is impossible to give an intelligible account of the developed law without a brief historical sketch.
The most obvious forms of interference, such as removing or damaging the goods, were covered in early law by trespass de bonis asportatis, the forerunner of the modern ' trespass to goods. '
Trespass was (and still is) essentially a wrong to possession and the defendant need not have asserted any right to deal with the goods or indulged in any ' appropriation ' of them.
Trespass was obviously unsuitable to deal with the case where the owner had voluntarily put his goods into another's possession and the other refused to re-deliver them, but this situation was covered by the remedy of detinue.
In neither form of action could the plaintiff be sure of recovering his goods in specie since the judgment in trespass was for damages and in detinue gave the defendant the option of giving up the goods or paying damages but it is unlikely that this was considered a defect and it should be noted that the remedy of specific restitution of chattels has remained unusual right up to modern times.
However, detinue was open to the very serious objection from the plaintiff's point of view that the defendant could insist on the method of trial known as wager of law, i.e.
getting compurgators to swear that they believed him to be oathworthy, although they knew nothing of the facts of the case.
This was the principal reason for the remarkable development whereby detinue was all but wiped out by the encroachment of trover.
Trover began as an action of trespass upon the case in which it was alleged that the defendant had converted the plaintiff's goods to his own use.
By the mid-sixteenth century it had emerged as a distinct species of case involving four allegations.
It was alleged (a) that the plaintiff was possessed of the goods; (b) that he accidentally lost them; (c) that the defendant found them; (d) that the defendant converted them to his own use.
The losing and finding were soon treated as pure fictions and the defendant was not allowed to deny them.
The new remedy rapidly encroached upon the spheres of trespass and replevin so that at one time it looked as if any ' asportation ' or moving of the property might be regarded not only as a trespass to it but also conversion of it, but this very wide doctrine was restricted to a principle that the dealing with the goods must amount to a denial of the owner's title.
Trover became a complete alternative to replevin despite the fact that it could be argued that, the goods being regarded as in the custody of the law, the distraint did not amount to a denial of the owner's title.
The difficulty in extending trover to cases covered by detinue was that conversion could only be committed by a positive act  misfeasance as opposed to nonfeasance.
Detinue lay where a man was in possession of another's goods and refused to give them up but could it be said that such a mere refusal was a positive act?
The line between misfeasance and nonfeasance is apt to be a fine one and the courts after some hesitation took advantage of this and held mere refusal to redeliver to be conversion.
Detinue, with its procedural disadvantages, wilted considerably under this treatment though it retained a place in the law because inability to redeliver as a result of loss or destruction of the goods could not amount to a positive denial of title for the purposes of conversion.
Nineteenth-century legislation swept away the fictions upon which trover was based and it became the modern action for conversion, though no change was made in the substance of the law.
The abolition of the wager of law in 1833 caused some revival in detinue but in view of the expansion of conversion, detinue only really remained necessary where the defendant was unable to redeliver the goods.
The process of simplification has now been carried a stage further by section 2 of the Torts (Interference with Goods) Act 1977 which abolishes detinue and provides that conversion now also covers the only case that was probably formerly the exclusive province of detinue  i. e.
inability to redeliver goods as a result of their loss or destruction.
It may be questioned whether this change achieves very much of a practical nature since (a) one still needs to look back at the common law of detinue to determine what constitutes the new form of conversion and (b) there still survive two torts of interference with property which have a considerable overlap with conversion, i.e.
trespass to goods and replevin.
TRESPASS TO GOODS
Trespass to goods is a wrongful physical interference with them.
It may take innumerable forms, such as scratching the panel of a coach, removing a tyre from a car, or the car itself from a garage, or, in the case of animals, beating or killing them.
Putting out poison for an animal to take is probably not trespass since the interference is not direct, a requirement of all true forms of trespass.
A defendant engaging in such conduct would, of course, be liable if injury to the animals ensued but his liability would be in what was classified before the abolition of the forms of action as case rather than trespass.
Despite the fact that trespass is actionable per se, there is some authority to the effect that trespass to goods requires proof of some damage or asportation but the general view of textbook writers is to the contrary and there must be many instances where, if mere touching of objects like waxworks or exhibits in a gallery or museum be not trespass, their possessor would be without remedy.
Where, however, the touching is not intentional the law may well be otherwise.
Diplock L.J.
has said that actual damage is an essential ingredient in unintentional trespass to the person and if this is so there is no reason for distinguishing the case of trespass to goods.
Certainly, the considerations of policy which point to making intentional meddling actionable even without damage have no application to unintended contacts.
Assuming that some damage has been caused, is negligence necessary for liability for unintentional trespass to goods?
The answer is clearly yes but the traditional view is that once a direct injury has been proved the defendant bears the burden of proving ' inevitable accident ' as a defence.
However, since the decision in Fowler v. Lanning, which held that in an action for unintentional trespass to the person the plaintiff must prove negligence on the part of the defendant the same may be true of cases of trespass to goods, though the matter can not be regarded as finally settled.
A more extreme view, but one not without its attractions, is that in the modern law trespass to goods is confined to intentional interference and that negligent interference is remediable only by the tort of negligence.
Trespass, however, obviously remains appropriate where one takes another's goods in the mistaken belief that he is entitled to do so, for the act is intentional towards the goods.
In Wilson v. Lombank Ltd.
the plaintiff had ' purchased ' a car from a person who had no title to it and had sent it to a garage for repair.
The defendant, believing, wrongly, that the car was his, removed it from the garage.
It was held that the defendant was liable in trespass.
Possession essential
As trespass is an interference with possession, it follows that if the plaintiff were not in possession at the date of the alleged meddling, he can not sue for trespass.
He may be able to sue for conversion, but that is a different matter.
' The distinction between the actions of trespass and trover is well settled: the former is founded on possession; the latter on property. '
Alleged exceptions
It is said that there are exceptions to this rule and that the following persons can sue for trespass although they had not possession  (a) A trustee against any third person who commits a trespass to trust chattels in the hands of the beneficiary.
(b) An executor or administrator for trespasses committed to goods of the deceased after his death but before probate is granted to the executor or before the administrator takes out letters of administration.
(c) The owner of a franchise (e.g.
a right to take wreck or treasure trove) against anyone who seizes the goods before he himself can take them.
But it is questionable whether any of these exceptions is genuine.
The language used in the authorities relating to the trustee is none too clear, but it indicates that the trustee has possession of chattels in the hands of the beneficiary, and not merely the right to possess them.
It does not follow from this that the beneficiary himself can not sue, for if he holds the chattels he seems to have joint possession with the trustee.
Again, the executor and administrator have long been regarded as having the deceased's possession continued in them; when they assume office their title relates back to his death.
They have not merely the right to possess: they are in possession.
Similarly, in the case of the franchise, possession is deemed to be with the owner of the franchise.
In Bailiffs of Dunwich v. Sterry, the plaintiffs had the right to wrecks at Dunwich and the defendant took a cask of whisky from a wreck before the plaintiffs could get it.
The defendant was held liable for trespass, for ' the right to the possession draws after it a constructive possession, which is sufficient to support the action. '
In a simple bailment determinable at will the bailor does not lose possession and may sue any wrongdoer other than his bailee in trespass, though the bailee also probably has sufficient possession to bring trespass.
CONVERSION
Conversion at common law may be committed in so many different ways that any comprehensive definition is probably impossible but the connecting thread running through the cases seems to be that the wrong is committed by a dealing with the goods of a person which constitutes an unjustifiable denial of his rights in them or the assertion of rights inconsistent therewith.
Thus it may be committed by wrongfully taking possession of goods, by wrongfully disposing of them, by wrongfully destroying them or simply by wrongfully refusing to give them up when demanded, for in all these cases can be traced conduct by the defendant which amounts to a denial of the plaintiff's rights or the assertion of inconsistent rights.
But if this element was lacking there was no conversion.
Thus if a bailee negligently allows goods in his charge to be destroyed the plaintiff's loss is just the same as if the bailee had wrongfully sold them to a third party but there is no conversion because the negligent (as opposed to deliberate) destruction is not an assertion of any rights in the goods.
Such conduct is now conversion by statute but this is merely for the draftsman's terminological convenience and has no effect on the concept of conversion at common law: for this reason, it must be kept separate in our analysis.
What constitutes conversion at common law
(1) Taking possession
Taking possession of another's goods will normally be conversion as well as being trespass, but there will be no conversion where the interference is merely temporary and is unaccompanied by any intention to exercise any rights over the goods.
If I snatch your hat from your head with intent to steal it, that is conversion as well as trespass, but if I throw it at another person, that is trespass only, for I am not questioning your title to it.
So, too, if you shift my bicycle from a public stand in order to get at your own, and forget to replace mine so that it is stolen by someone, that may be trespass, but it is not conversion.
It is not, however, necessary that the defendant should assert rights of ownership over the goods: taking for the purposes of acquiring a lien or of temporary use have been held to be conversion.
(a) Mere reception of goods.
Where A, without lawful authority, transfers B's goods to C, the mere voluntary reception of them by C is in general conversion, however innocent C may be.
This is abundantly supported by decisions with respect to receipt of goods by a buyer and a receipt of a cheque by a banker, and there are judicial dicta that appear to regard the rule as of general application.
Some qualifications of it where the defendant acts bona fide are discussed below.
A more questionable exception appeared in Spackman v. Foster to the effect that receipt of goods by way of pledge did not amount to conversion even though the same receipt by way of purchase would have.
Whether or not this decision was ever good law it was reversed by the Torts (Interference with Goods) Act 1977.
(b) ' Involuntary bailee. '
Involuntary reception of goods is not conversion.
Such is the case of an innocent person into whose pocket a thief, in order to escape detection, inserts a purse which he has stolen from a third person.
Even where the receiver knows that the thing belongs to someone else, he incurs no liability by having it thrust upon him.
It is no new thing for pushing tradesmen occasionally to send unsolicited goods to persons in the hope of making a sale, but this practice developed to the extent that it came to be regarded in some quarters as a serious social problem.
By virtue of the Unsolicited Goods and Services Act 1971 the recipient of unsolicited goods is entitled in certain circumstances to treat them as unconditional gifts after six months from receipt, or 30 days from notice to the sender, so long as the sender does not in the meantime take possession of them and the recipient does not unreasonably refuse to permit him to do so.
Subject to this, the law relating to an involuntary bailee may be stated as follows 
1.
He can not, without his knowledge or consent, be made a bailee in the strict sense of that term.
In Lethbridge v. Phillips, L, a celebrated miniature painter, lent a miniature to B who wished to show it to the defendant.
B sent it to the defendant without any previous knowledge or consent on the defendant's part.
The miniature was much damaged by being placed near a large stove in the house of the defendant who was nevertheless held not liable to L.
2.
Mere negligence on the part of the recipient with respect to the safe custody of the thing will not make him liable.
So, in Howard v. Harris, where a playwright sent the manuscript of a play to a theatrical producer who had never asked for it and who lost it, the producer was held not liable.
3.
But he must not wilfully damage or destroy the thing.
The law has not, however, been fully explored here.
It is simple enough with a small and imperishable article like a book or a fountain pen, but what of a parcel of fish or a piano which is delivered at my house in my absence?
I can distrain them damage feasant, but what I want to do is to get rid of them and I am certainly not bound to incur the expense of packing and returning them.
If the sender is traceable, probably the most sensible thing to do is to notify him that the goods are at his risk and to request him to fetch them; and if (as is likely with perishables) the goods become a nuisance, the recipient would surely be justified in abating the nuisance by destroying them, even without notice to the sender, if the emergency were so pressing as to leave him no time to give it.
The position is rather different when the goods came into the defendant's hands by reason of a genuine, voluntary bailment for then the bailee has a statutory power of sale of the goods if the bailor fails to collect them.
4.
The involuntary bailee does no wrong if he acts reasonably in trying to return the goods.
In Elvin and Powell Ltd.
v. Plummer Roddis Ltd.,
X, a swindler, directed the plaintiffs to supply the defendants at Brighton with 350 worth of coats.
X then forged a telegram to the defendants: ' Goods dispatched to your branch in error.
 Sending van to collect.
Elvin and Powell. '
Then a confederate of X called on the defendants, who delivered the coats to him under the impression that he was the plaintiffs' agent.
The confederate disappeared.
The plaintiffs sued the defendants for (a) negligence as bailees and (b) conversion.
The jury negatived negligence and found that there was contributory negligence on the plaintiffs' part, and Hawke J. held that there was no conversion, for the defendants had acted reasonably.
Contrast with this case Hiort v. Bott, where A mistakenly sent an invoice for barley to B (who had ordered none), which stated that B had bought the barley of A through G as broker; and A also sent B a delivery order which made the barley deliverable to the order of A or of B. G then told B there had been a mistake and got B to endorse the delivery order to himself.
G thereby got hold of the barley, disposed of it and absconded.
Here B was held liable to A for conversion.
Had he merely handed the delivery order to G for return to A, the decision might have been otherwise, but by endorsing it to G he had gone far beyond what was necessary to secure the return of it to A.
(2) Abusing possession
Abuse of possession which the defendant already has may take many forms, such as sale accompanied by delivery of the plaintiff's goods or their documents of title to another, pawning them, or otherwise disposing of them.
Even the use of a borrowed car for the transporting of uncustomed watches is a conversion of the car, for such conduct if discovered leads to the forfeiture of the car under the Customs and Excise Act 1952 and its consequent loss to the owner.
In less extreme cases of unauthorised use by a bailee the question whether his act amounts to conversion probably depends upon the degree of departure from the terms of the bailment.
However, at common law an omission on the part of the defendant (e.g.
negligently allowing the goods to be stolen) would not make him liable for conversion though if he were a bailee of the goods he might be liable in detinue in such circumstances.
Since this type of detinue is now by statute assimilated to conversion there may now be liability in conversion.
A mere bargain and sale or other attempted disposition of goods by a person without a transfer of possession, i. e.
delivery, on the other hand, is not a conversion; the act is void and does not change the property or the possession.
But in those cases where a person in possession of goods to which he has no title may confer a good title on someone else by selling, pledging, or otherwise disposing of the goods, then, since the true owner is deprived of his title to the goods, such a disposition constitutes conversion whether or not the goods are actually delivered.
The destruction of goods amounts to conversion and so does the alteration of their nature.
If I make an omelette of your eggs or a statue out of your block of marble, that is conversion.
The question to whom the omelette and the statue belong is another matter, and Salmond pointed out that the attempts of the older lawyers to transplant the Roman law of specificatio, confusio and the like to our system are of small practical use at the present day.
The better method of solving the question is to split it into, ' Who owns the newly created thing? ' and ' Who is entitled to possession of it? '
The probable answer to the first inquiry is that ownership of material is unchanged by alteration of it; to the second, that the court will use its discretion in making an order for specific restitution and will award the thing to him whose interest is the more substantial, on condition that he pays the value of the other's interest.
But if the thing is perishable, recovery of the value of the goods converted is the only remedy possible.
Where the property of A is mixed with that of B which is of substantially the same nature and quality and they can not practicably be separated (grain in a bin, oil in a tank) the mixture is owned in common in proportion to the quantity contributed by each and the law is the same whether the mixing is wrongful or by consent.
Demand and refusal.
Proof of a demand by the plaintiff for the return of the goods met by a refusal of the defendant is one of the common ways of producing evidence of conversion for it tends to show that the defendant's detention of them is wrongful.
The refusal must, however, be unconditional or, if it is conditional, the condition must be an unreasonable one.
It is certainly not unreasonable to refuse to give up a bank note which you pick up in the street to the first stranger who alleges it to be his, if you tell him that you must make further inquiries or that he must produce evidence which will authenticate his claim.
Whether the length of time spent in making these inquiries and the mode in which they are made are reasonable or not may be nice questions.
Where, however, there is no question of pursuing enquiries to see whether delivery to the claimant is proper, the defendant can not justify a refusal because compliance with the demand may have unpleasant consequences for him.
In Howard E. Perry &amp; Co. Ltd. v. B.R.B. it was held that the defendants' refusal to allow the plaintiffs to enter their premises to collect goods which belonged to them could not be justified by their fear of intensified industrial action.
(3) Residual forms of conversion
Though most cases of conversion at common law fall within the categories of taking or abusing possession, such acts on the part of the defendant are not a necessary element in liability provided he has dealt with the goods in a way inconsistent with the plaintiff's rights, such as signing a delivery order for goods which are delivered under that order.
It has even been held that refusing to hand over the registration book of the plaintiff's car amounts to conversion of the car since the absence of the book makes it difficult to deal with the car.
However, dicta in Oakley v. Lyster went further and suggested that a bare denial of the plaintiff's title unaccompanied by any possession of or dealing with the goods constituted conversion.
The actual decision did not support such a wide doctrine, which was laid to rest by the Torts (Interference with Goods) Act 1977.
Where the defendant is in possession of the plaintiff's goods there is no doubt that an unjustified refusal to return them generally constitutes conversion but it has been held that where the plaintiff has possession there is no conversion if the defendant simply refuses to allow the plaintiff to remove them.
In England v. Cowley M. owed money to both the plaintiff and the defendant, her landlord.
The plaintiff held a bill of sale over M's furniture and put a man into M's house to take charge of it.
When the plaintiff then attempted to remove the furniture the defendant forbade him to do so and stationed a policeman at the gate to make sure he did not.
The defendant was held not liable for conversion.
Bramwell B. said:
' In order to maintain trover, a plaintiff who is left in possession of the goods must prove that his dominion over his property has been interfered with, not in some particular way, but altogether; that he has been entirely deprived of the use of it.
It is not enough that a man should say that something shall not be done by the plaintiff; he must say that nothing shall. '
Conversion under the Torts (Interference with Goods) Act 1977
Apart from one or two minor matters this Act did not interfere with the concept of conversion at common law.
However, the Act abolished detinue, which was wrongful retention of a chattel.
In most cases of detinue there would be a concurrent liability in conversion based upon a demand and refusal to return but as we have seen conversion required a positive act and had never lain where the defendant once had the plaintiff's goods but was unable to return them because they had been lost or negligently destroyed.
Accordingly, to deal with this situation, the Act provides that an ' action lies in conversion for loss or destruction of goods which a bailee has allowed to happen in breach of his duty to his bailor (that is to say it lies in a case which is not otherwise conversion, but would have been detinue before detinue was abolished). '
Conversion and co-owners
As between co-owners there is unity of possession, each is entitled to possession and use of the chattel, and the mere enjoyment in one way or another by one co-owner can not amount to conversion against the other.
The assertion of exclusive rights will, however, be actionable in tort.
By section 10 of the Torts (Interference with Goods) Act 1977 co-ownership is no defence to an action in conversion where one, without the authority of the other 
' (a) destroys the goods, or disposes of the goods in a way giving a good title to the entire property in the goods or otherwise does anything equivalent to the destruction of the other's interest in the goods, or (b) purports to dispose of the goods in a way which would give a good title to the entire property in the goods if he was acting with the authority of all co-owners of the goods. '
Paragraph (a) is by way of restatement of the common law; paragraph (b) extends it so as to make the disposition conversion even if it does not confer a good title on the disponee.
Title of plaintiff
What kind of right to the goods must the plaintiff have in order that interference with it may amount to conversion?
The answer is that he can maintain the action if at the time of the defendant's act he had (a) ownership and possession of the goods, or (b) possession of them; or (c) an immediate right to possess them, but without either ownership or actual possession.
This seems to be the law, but it can be elicited only from a great confusion of terminology in the reports.
Thus it is said in several cases that the plaintiff must have ' a right of property in the thing and a right of possession ' and that unless both these rights concur the action will not lie.
If ' right of property ' means' ownership, ' this might lead one to infer that no one can sue for conversion except an owner in possession at the date of the alleged conversion.
But that is not so, for a bailee has only possession and not ownership (which remains in the bailor), and yet the bailee can sue a third party for conversion.
And, as we shall see, one who has mere possession at the date of the conversion can generally sue, and so can one who has no more than a right to possess.
Examples of right to possess
There is no need to enlarge upon (a) ownership and possession, or (b) possession, for possession was analysed in Chapter 13.
But (c), the immediate right to possess, must be briefly examined.
A reversionary owner out of possession certainly has not got it, e.g.
a landlord of premises let together with furniture to a tenant whose term is still unexpired; if the furniture is wrongfully seized by the sheriff, it is the tenant and not the landlord who can sue for conversion.
Again, a servant in custody of his master's goods has not possession of them, for it is constructively in the master.
But if the master has made him a bailee of them so as to vest him with exclusive possession, then, like any other bailee of this sort, he has it; so, too, if goods are delivered to him to hand to his master, he has possession of them until he has done some act which transfers it to his master, e.g.
a shop-assistant has possession of money paid to him by a customer until he puts it in the till.
Up to that moment the master has only the right to possess.
These examples are tolerably plain, but it must depend to a large extent on the facts of each case whether the law will attribute to a person the immediate right to possess.
A bailor has it against a mere bailee at pleasure even if he never himself had actual possession of the goods and only acquired title by virtue of an illegal but completely executed contract of sale.
In Manders v. Williams, brewers supplied porter in casks to a publican on condition that he returned the empty casks; held, they could maintain trover against a sheriff who took the casks in execution for the publican's debts, for directly they were emptied the right to immediate possession was in the brewers, the publican becoming a mere bailee at will.
So, too, where furniture dealers transferred furniture on hire-purchase to X with an express proviso that the hiring was to terminate without any notice if the goods were taken in execution for debt, they could sue the sheriff for conversion when he levied execution on them.
The wrongful sale of goods subject to a hire-purchase agreement will constitute a repudiation and hence vest a right to immediate possession in the finance company even though the agreement does not expressly provide for this.
In a simple bailment, i.e.
one which does not exclude the bailor from possession, an action for conversion against a third person is maintainable by either bailor or bailee; by the bailee because he is in possession, by the bailor because it is said that his title to the goods draws with it the right to possession, that the bailee is something like his servant and that the possession of the one is equivalent to that of the other.
A buyer of goods can sue the seller or a third party for conversion if he has ownership of the goods even though he has not yet got possession of them.
but he can not sue the third party if ownership has passed to such third person by reason of exceptions to the rule nemo dat quod non habet, e.g.
by bona fide purchase for value in market overt; the seller, however, is liable for conversion to the original buyer.
A person who is entitled to the temporary possession of a chattel and who delivers it back to the owner for a special purpose may, after that purpose is satisfied and during the existence of his temporary right, sue the owner for conversion of it; a fortiori he can sue anyone else.
Jus tertii
Once a system of law accepts possession as a sufficient foundation for a claim for recovery of personal property it is faced with the question of how far the defendant should be allowed to raise the issue that a third party has a better right to the property than the plaintiff  the jus tertii.
There are arguments either way.
On the one hand, refusal to admit the jus tertii allows recovery by a plaintiff who may have himself wrongfully dispossessed the true owner and also exposes the wrongdoer to the risk of multiple liability.
On the other hand, it may be argued that a person who has dispossessed another should have no right to raise such issues concerning the relationship between the dispossessed and some other party having a claim over the goods, for there is a serious risk of abuse and of the interminable prolongation of actions.
The common law compromised.
If the plaintiff was in possession at the time of the conversion, the defendant could not set up the jus tertii, unless he was acting under the authority of the true owner.
Where, however, the plaintiff was not in possession at the time of the conversion but relied on his right to possession jus tertii could be pleaded by the defendant.
To this rule there was an exception where the defendant was the plaintiff's bailee, for the defendant was regarded as being estopped from denying the plaintiff's title unless evicted by title paramount or defending the action on behalf of the true owner.
These rules were fundamentally changed by the Torts (Interference with Goods) Act 1977.
Since then, in an action for ' Wrongful interference with goods' the defendant is entitled to show, in accordance with Rules of Court, that a third party has a better right than the plaintiff as respects all or any part of the interest claimed by the plaintiff or in right of which he sues.
Rules of Court made under the Act require the plaintiff to give particulars of his title and to identify any other person whom he knows to have a claim on the goods.
The defendant may apply for directions as to whether any third person with a competing claim should be joined and if that third person fails to appear on such a successful application the court may deprive him of any right of action against the defendant.
The general purpose of these provisions is to allow the court so far as possible to settle competing claims in one set of proceedings.
Where all the claimants are before the court under section 8, then the relief granted is to be ' such as to avoid double liability of the wrongdoer, ' which presumably means that the court is to apportion the damages representing the value of the chattel according to the respective interests of the claimants.
The Act is perhaps not so clear where only the claimant with a possessory title is before the court, for example, because the true owner does not appear or can not be found.
A literal interpretation of section 8 might suggest that the ability to plead the jus tertii provides the defendant with a defence, but it is submitted that in such a case the provisions of section 7 preserve the common law rule that a claimant relying on a possessory interest may recover the full value of the thing converted.
In such a situation the true owner may have been divested of his claim against the wrongdoer under section 8(2) (d) but if not, he might still be entitled to sue by virtue of his title.
Two provisions of the Act are aimed at this problem.
By section 7(3), ' on satisfaction, in whole or in part, of any claim for an amount exceeding that recoverable if subsection (2) applied [ i.e.
where both claimants are parties ], the claimant is liable to account over to the other person having a right to claim to such extent as will avoid double liability '; and by section 7(4), ' where, as a result of enforcement of a double liability, any claimant is unjustly enriched to any extent, he shall be liable to reimburse the wrongdoer to that extent. '
Thus if A loses his goods, which are found by B and then converted by C, both B and A might bring successive claims against C. If B accounts to A under section 7(3), A must then reimburse C.
If B does not so account, B is liable to reimburse C. A ' double liability ' would, however, still exist if both A and B were insolvent.
It has been suggested above that where the true owner of goods can not be involved in the proceedings the common law rule that a mere possessory interest entitles the plaintiff to recover the full value of the goods against a wrongdoer still applies.
Does this mean that if there is clear evidence that the goods were stolen by P from X (who has since disappeared) P may nevertheless recover from D, who converted them?
It seems that the law's answer is that notwithstanding the general rule about the jus tertii P's claim may be barred by public policy if to assist in recovery of the property would offend the court's conscience.
However, not every illegal acquisition by P will call this into play.
Finding
The popular saying that ' Finding is keeping ' is a dangerous half-truth, which needs a good deal of expansion and qualification to make it square with the law.
A finder of a chattel has such a title as will enable him to keep it against everyone, with two exceptions:
1.
The rightful owner.
Far from getting any title against him, the finder, if he appropriates the chattel, not only commits the tort of conversion, but is also guilty of the crime of theft unless he appropriates the chattel in the belief that the owner can not be discovered by taking reasonable steps.
2.
The occupier of the land on which the chattel is found may in some cases have a title superior to that of the finder.
The Court of Appeal in Parker v. British Airways Board took the opportunity to restate the law in a comprehensive manner and bring order to an area in which there were numerous conflicting precedents.
The cases in which the occupier of the land has the superior title are 
(a)
Where the finder is a trespasser on the land.
(b)
Where the property is attached to the land, as in South Staffordshire Water Co.
v. Sharman where gold rings were found in mud being cleared from the plaintiff's land.
(c)
Where he is the occupier of premises in or on which the chattels (not attached to the premises) are found and, before the finding ' he has manifested an intention to exercise control over the [ premises ] and the things which may be upon it or in it '.
The burden of proof of this rests upon the occupier, though in some cases the matter speaks for itself:
' If a bank manager saw fit to show me round a vault containing safe deposits and I found a gold bracelet on the floor, I should have no doubt that the bank had a better title than I, and the reason is the manifest intention to exercise a very high degree of control.
At the other extreme is the park to which the public has unrestricted access during daylight hours.
During those hours there is no manifest intention to exercise any such control.
In between these extremes are the forecourts of petrol filling stations, unfenced front gardens of private houses, the public parts of shops and supermarkets as part of an almost infinite variety of land, premises and circumstances. '
In Parker's case itself the plaintiff found a gold bracelet on the floor of the executive lounge at Heathrow Airport and was held entitled to it as against the occupiers.
The facts that they restricted entry to the lounge to certain classes of passengers and gave their staff instructions as to what to do with lost property were insufficient to manifest the intention to exercise the requisite degree of control.
It is, of course, open to the occupier to regulate the right to possession of lost property by contract with the entrant; it remains to be seen whether merely putting up notices at the entrance declaring that lost property is to vest in the occupier will be an effective manifestation of the intent to control required by Parker's case.
DEFENCES TO CONVERSION
Licence and the exercise of a right of distress are two common defences to an action for conversion but these have already been considered in relation to trespass to land.
It remains to examine the following:
Mistake
The first thing to be said about mistake is that it does not usually provide a defence, for liability in conversion is strict:
' At common law one's duty to one's neighbour who is the owner... of any goods is to refrain from doing any voluntary act in relation to his goods which is a usurpation of his proprietary or possessory rights in them.
Subject to some exceptions... it matters not that the doer of the act of usurpation did not know, and could not by the exercise of any reasonable care have known of his neighbour's interest in the goods.
This duty is absolute; he acts at his peril. '
This rule was set solidly into our law by the House of Lords in Hollins v. Fowler.
B fraudulently obtained possession of cotton from Fowler.
Hollins, a cotton broker who was ignorant of the fraud, bought it from B and resold it to another person, receiving only broker's commission.
Hollins was held liable to Fowler for the conversion of the cotton.
The justification for such a rule is not at all obvious, particularly when in the typical case the plaintiff will have handed his goods over to a rogue on some flimsy excuse while the defendant has acquired the goods not only in good faith but from some reputable dealer who has himself been deceived.
One solution which has been suggested would be to apportion the loss between plaintiff and defendant in such a case but this has been rejected as impracticable by the Law Reform Committee.
An alternative approach would have been to apply the ' ready-made ' system of apportionment in the Law Reform (Contributory Negligence) Act 1945 to liability in conversion.
There was some authority for this but the matter is now governed by section 11(1) of the Torts (Interference with Goods) Act 1977 which firmly states that contributory negligence is no defence in proceedings founded on conversion, or on intentional trespass to goods.
There are, however, many exceptions to the rule that innocent mistake is no defence.
The first group consists of what is sometimes known as the exceptions to the rule nemo dat quod non habet whereby a bona fide purchaser of goods from A commits no conversion but actually obtains a good title to them even though the goods really belonged to B and B never intended to allow A to sell them.
B's remedy is against A alone.
In such cases the law has sought to strike a compromise between the competing principles that ownership of property must be protected and that speedy commerce in goods should be facilitated.
Details of this very large topic must be sought elsewhere but the principal exceptions are briefly as follows:
(1)
Sale in market overt.
(2)
Estoppel by representation or by negligent conduct.
(3)
Sale under a voidable title.
(4)
Disposition in the ordinary course of business by a mercantile agent in possession of the goods or documents of title with the owner's consent.
(5)
Second sale by seller in possession.
(6)
Sale by buyer in possession.
(7)
Private purchaser of vehicle subject to a hire-purchase agreement.
Another apparent exception to the general rule that ignorance of the plaintiff's rights does not excuse was recognised by the Privy Council in Maynegrain Pty.
Ltd.
v. Compajina Bank.
The defendants were bailees of barley belonging to X which had been pledged to the Y Bank by means of warehouse receipts.
Unknown to the defendants Y Bank was acting as agent for Z Bank, the plaintiff.
On X's order and with Y's tacit consent the defendants dispatched some of the barley to Kuwait.
This was done without Z's authority.
Z's action for conversion failed: Y Bank was agent for an undisclosed principal, Z Bank, and the defendants were entitled to act on Y's consent.
Though consent is undeniably a defence to an action for conversion, there are difficulties in reconciling this result, sensible as it may seem, with general principles of agency, for since Y's act was unauthorised it could only be effective if done within an ostensible authority  but that doctrine is inapplicable to undisclosed agency.
The act of shipping the barley in Maynegrain was assumed to be sufficient to amount to conversion, but the position is different where the defendant innocently interferes with P's goods whether upon his own initiative or upon the instructions of another, when the defendant's act amounts to nothing more than transport or custody of the goods.
Blackburn J. in Hollins v. Fowler said that:
'... one who deals with goods at the request of the person who has the actual custody of them, in the bona fide belief that the custodian is the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the person in possession, if he was a finder of the goods or entrusted with their custody....
A warehouseman with whom goods have been deposited is guilty of no conversion by keeping them, or restoring them to the person who deposited them with him, though that person turns out to have had no authority from the true owner. '
Similarly there is no liability if a railway company, acting upon A's directions, carries B's goods, honestly believing that A has B's authority to give such directions or, of course, where a finder removes them to a place of safety.
It must be confessed that this test is a rather artificial one.
We have first to pretend that, in the event of A wrongfully directing an innocent person X to do something to B's goods, A is in the position of a finder or custodian of the goods; and then we must ask ourselves, ' Would X's acts have been excused if these were the facts? '
If aye, then X committed no conversion.
But allowing for this criticism, the test seems to be workable.
It would protect all those persons in Hollins v. Fowler who merely handled the cotton ministerially, such as a carrier who merely received and delivered the goods in the ordinary way and it would not save the man who had sold the cotton to another.
A solicitor of an undischarged bankrupt who receives after-acquired property on behalf of his client and transfers it to another agent, even with knowledge that that agent has been instructed to sell, is not liable for conversion at the suit of the trustee in bankruptcy, for the solicitor's act can be described as ministerial within the test laid down by Blackburn J. Unfortunately, as Blackburn J. himself admitted, it is doubtful how far it goes.
Does it protect X if A wrongfully gives him B's wheat to grind into flour and he innocently does so?
The learned judge thought not (and indeed a mere finder of lost wheat could not authorise the grinding of it), and yet he felt that it would be hard to hold X liable.
No doubt a finder of perishable commodities would be justified in taking any reasonable steps to preserve them pending the ascertainment of their owner; e.g.
he would not commit conversion by making jam of strawberries if that were the only mode of preserving them.
But cases like these might well be based on the general defence of necessity.
Retaking of goods
This is a species of self-help.
If A's goods are wrongfully in B's possession or control, there is no need for A to go to the expense of litigation to recover them.
He can retake them, peaceably if he can, and in any event with no more force than is commensurate with the violence of B's resistance.
Indeed, retaking may be his only opportunity of doing himself justice, for delay may mean destruction or conveying away of the goods by B, who may be quite incapable of paying their value.
It should be noted that, while maiming or wounding are not justifiable for simple recaption of property, yet they may well become justifiable for another reason  self-defence.
This may occur where B, in endeavouring wrongfully to resist A's attempt to recapture the goods, commits an assault upon A and so justifies A in using violence to protect himself.
And if B's violence takes the form of assault with a deadly weapon, A may even inflict death if his own life is in peril.
But as the test is that A must use no more force than is necessary, and as this necessity varies with the facts of each case, self-help is likely to be just as dangerous a remedy here as elsewhere.
Moreover, there are other qualifications of A's right to retake goods.
Qualifications
(a) With respect to persons.
He can retake the goods not only from B, the original tortfeasor, but even from a third person subject to the apparent exceptions which arise where that third person has acquired a good title even against A. Such exceptions are only apparent because A, having lost his right to the property, has got nothing which he can retake.
(b) With respect to place.
There is no doubt that the person entitled to goods may enter and take them from the land of the first taker if the taker himself wrongfully put them there.
But it is by no means certain what the law is when the goods are on the premises of one who was not responsible for bringing them there and who has committed no tort with respect to them.
The only case of any real assistance is Anthony v. Haney, and even there the dicta are obiter and, although of considerable weight, do not probe the question of recaption very deeply.
Tindal C.J. in that case gave as examples of permissible retaking by A from the land of an innocent person, C, (a) where the goods have come there by accident; (b) where they have been feloniously taken by B and A follows them to C's land; (c) where C refuses to deliver up the goods or to make any answer to A's demand for them.
As to (a) accident, the Chief Justice's examples were A's fruit falling upon C's land, or A's tree falling upon it by decay or being blown upon it by the wind.
By ' accident ' it seems clear that ' inevitable accident ' was meant.
Negligent or intentional placing of goods on the land of another is a tort, e.g.
where a cricket ball is hit by any ordinary stroke out of the ground into another person's premises or onto the highway.
The occupier of the premises, far from being put under any obligation to allow the owner of the goods to enter and retake them, is entitled to distrain them damage feasant until the owner of the goods pays for such damage as they have done.
Where, however, the entry of the goods was inevitable, not only is there no liability for trespass on the part of their owner, but the view that he can retake them seems to be right, even if there is no direct decision to that effect.
It may be hard that the occupier of land should have no right to compensation for harm done by the fall of a large thing, like a tree, on his premises, but his plight is no worse than in any other instance of inevitable accident.
As to (b), the rule that if A's goods are feloniously taken by B, A may follow them onto C's land rests upon a passage in Blackstone which commended itself to two of the judges in Anthony v. Haney.
The distinction between felonies and misdemeanours no longer exists but there seems no reason why the rule, if it is a rule at all, should not apply wherever B's taking is criminal.
As to (c), Tindal C.J. thought that where C refused to deliver up the goods or to answer A's demand, ' a jury might be induced to presume a conversion from such silence, or at any rate the owner might in such case enter and take his property subject to the payment of any damage he might commit. '
The learned Chief Justice had already dealt with inevitable accident, so that he was presumably contemplating a case in which the presence of A's goods on C's land was due, not to that, but to the tort of A or of someone else for whose act A was in some way or other responsible.
If so, it is doubtful whether his dictum about A's right to retake the goods is law.
Later dicta leave it quite uncertain whether A can do so where C's refusal to deliver up the goods amounts to conversion, and they are decidedly against such a view where C's conduct in obstructing A's entry does not; and this, too, even where the goods come on C's premises without any tort on A's part.
Thus in British Economical Lamp Co.
Ltd.
v. Empire Mile End Ltd.,
C let his theatre to B. B did not pay his rent, so C re-entered and thus terminated the lease.
B left in the theatre some detachable electric lamps which he had hired from A.
A sued C for detinue of the lamps.
It was held that the facts did not show any detinue and it was also said that C had done no wrong by not allowing A to enter and remove them.
Note that A had certainly committed no tort to C in leaving the lamps there.
Thus it is not easy to predict what the law is either where the occupier of the land commits conversion by his refusal or where he is blameless.
It may be argued on the one hand that where the owner of goods was under no tortious liability for their appearance on the occupier's land, he ought to be able to retake them in any event, provided he does no injury to the premises or gives adequate security for making good any unavoidable injury.
On the other hand, it may be urged that self-help ought to be strictly limited even against a wrongdoer and forbidden altogether against one who is not a wrongdoer, except that retaking might be permitted in circumstances of inevitable accident or of necessity (e.g.
where the goods are perishable or are doing considerable damage to the land and it is impossible to communicate speedily enough with the occupier or his agent).
It has been held that the owner of a swarm of bees has no right to follow it onto another man's land, but this is of no general assistance for, once the bees get onto that land they become again ferae naturae and the property of no one.
Tindal C.J. did not profess to make an exhaustive list of the cases in which recaption is permissible, but be the extent of this justification of trespass and conversion what it may, one thing is clear.
The retaker, before he attempts to retake, must, if required to do so, explain to the occupier of the land or the person in possession of the goods the facts upon which his proposed action is based.
A mere allegation that the goods are his, without any attempt to show how they came on the premises, will not do, for ' to allow such a statement to be a justification for entering the soil of another, would be opening too wide a door to parties to attempt righting themselves without resorting to law, and would necessarily tend to breach of the peace. '
MEASURE OF DAMAGES FOR INTERFERENCE WITH GOODS
Defendant not in possession
Where the defendant is no longer in possession of the plaintiff's goods because, for example, he has destroyed them or disposed of them, the plaintiff's remedy is judgment for the value of the goods together with any consequential loss which is not too remote.
After some initial hesitation it now seems to be generally accepted that the value should be assessed at the date of the conversion (though it should be noted that in other contexts the courts show some resistance to any universal rule that damages are to be assessed at the date of the wrong).
The recovery of consequential loss is illustrated by Bodley v. Reynolds, where a carpenter's tools were converted and he was thereby prevented from working.
10 above the value of the tools was awarded as special damage.
Generally, however, loss incurred as a result of the plaintiff's inability to deliver the goods under a lucrative contract of sale is too remote unless the defendant is aware of the contract.
There are many cases of conversion of documents which are intrinsically valueless but have a value in that their possession confers rights on the holder.
It is clear that the measure of damages for the conversion of a negotiable instrument is prima facie the face value, not the value as paper but it has been held that this principle is inapplicable to non-negotiable documents such as holiday credit stamps.
With respect, this approach seems curiously narrow and may be inconsistent with other authorities.
Defendant detaining goods
The only remedy for conversion at common law was the purely personal one of damages.
However, when the defendant was in possession of the goods and refused to deliver them up on demand his act was not only conversion but also detinue and the form of judgment in detinue might include an order for the delivery up of the goods.
Detinue has now been abolished but the remedies for conversion where goods are detained by the defendant are now found in section 3 of the Torts (Interference with Goods) Act 1977, which is modelled on the common law remedies available for detinue.
The relief available is in one of the following forms:
(a)
an order for the delivery of the goods, and for payment of any consequential damages, or
(b)
an order for delivery of the goods, but giving the defendant the alternative of paying damages by reference to the value of the goods, together in either alternative with payment of any consequential damages, or
(c)
damages.
Relief under (a) is at the discretion of the court, but the plaintiff may choose between (b) and (c).
If the plaintiff chooses (c), the defendant can not satisfy the judgment by returning the goods.
Improvement of goods
The problem of a converter improving goods is illustrated by Munro v. Willmott.
The plaintiff was given a temporary licence to leave her car in the defendant's yard.
After the car had been there for some years the defendant wished to convert the yard into a garage but was unable to communicate with the plaintiff.
Accordingly, he ' did up ' the car (then worth 20) at a cost of 85 and then sold it for 100.
In proceedings for conversion, Lynskey J. felt obliged to assess the value of the car at the date of judgment (120) but he gave credit for the sum expended by the defendant, leaving 35 as the damages recoverable by the plaintiff.
The matter is now governed by section 6 of the Torts (Interference with Goods) Act 1977 which provides that if the improver acted in the mistaken but honest belief that he had a good title, an allowance is to be made for the extent to which the value of the goods at the time at which it falls to be assessed, is attributable to the improvement.
The requirement of good faith would seem to make the law somewhat narrower than it was before.
Effect of judgment
Where damages for wrongful interference are assessed on the basis that the plaintiff is being compensated for the whole of his interest in the goods (including a case where judgment is subject to a reduction for contributory negligence) payment of the damages or of any settlement in full extinguishes the plaintiff's title to that interest in the goods.
Until payment of the damages, however, the plaintiff retains his property in the goods and may exercise all his rights as owner even after judgment has been given in his favour.
In Ellis v. John Stenning &amp; Son A sold land to B, reserving to himself the right to cut and sell the uncut timber on the land.
He then sold the timber to E. B wrongfully removed some of the timber and E obtained judgment against him for conversion but took no steps to enforce his judgment, because B was insolvent.
B sold the timber to S. E then sued S for conversion of the timber.
It was held that S was liable because, the judgment against B not having been satisfied, title to the timber remained with E.
OTHER CAUSES OF ACTION FOR WRONGFUL INTERFERENCE WITH GOODS
Replevin
As we have seen, replevin is an ancient cause of action which is theoretically applicable to any trespassory taking of goods but in practice is limited to taking by wrongful distress.
The modern procedure in the action is for the plaintiff to apply to the registrar of the county court, who will see that the goods alleged to have been wrongfully taken are restored to the plaintiff on his giving security to prosecute an action of replevin in the county court or in the High Court.
The plaintiff thus recovers his goods without having to await the outcome of the action while the defendant is protected by the security given by the plaintiff.
Replevin is therefore now a form of interlocutory relief.
Section 4 of the Torts (Interference with Goods) Act 1977 adds a new and more important form of interlocutory relief, available in the county court and High Court, whereby goods the subject of present or future proceedings for wrongful interference may be ordered to be delivered up to the claimant, or a person appointed by the court, on such terms and conditions as may be specified.
The procedure is particularly apt if there is a risk that the goods may be destroyed or disposed of before trial of the action but it is not confined to such situations.
An order was made under it in Howard E. Perry &amp; Co.
Ltd.
v. British Railways Board even though the goods were in no danger and the defendants recognised the plaintiffs' title: the shortage of stock caused by industrial action was acute and damages would not adequately compensate the plaintiffs for the injury to their business.
Distress and related matters
Distress is a remedy given by the common law, whereby a party in certain cases is entitled to enforce a right or obtain redress for a wrong in a summary manner, by seizing chattels and retaining them as a pledge until satisfaction is obtained.
Illegal, irregular and excessive distress are actionable at the suit of the owner of the chattels but interference by him with a distress may in its turn be actionable as rescous or pound breach.
INTERFERENCE WITH CONTRACT OR BUSINESS
IN this chapter we are concerned with a group of torts the function of which is to protect some of a person's intangible interests  those which may loosely be called his business interests  from unlawful interference.
As we have already seen, the law has been less ready to protect these interests from negligently inflicted harm than it has been to protect person and tangible property, but we are now concerned only with liability for intended harm.
It is not possible, however, to say simply that whenever one man intentionally causes harm to another that is a tort for, as we have also seen, the mere fact that my motive in performing an otherwise lawful act is to cause damage to another will not of itself make the act tortious.
Provided we give a narrow meaning to ' intention ' the law may well for practical purposes come close to the proposition that it is tortious intentionally to cause damage by any unlawful act, but it has developed by way of distinct, nominate torts and it is necessary to retain that division for the purposes of exposition.
Three further prefatory remarks are necessary.
First, a great many of the cases in this area of the law are concerned with industrial strife of one kind or another and where this is so the common law has been excluded or modified since 1906 by statutory immunities granted to persons acting in a ' trade dispute. '
The scope of this immunity has been changed no less than six times in the last 20 years.
Since the legislation assumes the existence of the common law background we must first endeavour to ascertain the general principles governing this area of tort and then see shortly how it is affected when there is a trade dispute.
Secondly, the torts considered in this chapter may also come into question in cases of alleged unlawful competition between traders, but in practice they are of little significance because of the common law's refusal to adopt any principle of ' fair competition ' other than the prohibition of obviously unlawful acts like torts and crimes and breaches of contract.
Any full study of ' unfair competition ' would have to take account of the legislation protecting intangible business property like trade marks and patents, and of the statutory controls over restrictive trading agreements and monopolies, which have little or nothing to do with anything resembling the law of tort.
One of the most significant sources of competition law is the EEC Treaty, which may be directly applicable in England and override municipal law.
Article 85 prohibits agreements which have the effect of restricting or distorting competition and Article 86 prohibits the ' abuse of a dominant [ market ] position. '
It is virtually certain that Article 86 gives rise to a cause of action in English law at the suit of a person damnified by its contravention and it does so on the basis of an action for breach of statutory duty so that the court may award damages.
This is a remarkable development and leads to a sharp distinction according to whether the alleged improper trading practice can be shown to be within the purview of the Treaty as affecting ' trade between member states. '
If it can, the scope of the remedy in damages is immensely wider than under pure municipal law, the modern legislation in which has generally eschewed the private action for damages as a means of enforcement.
However, in Bourgoin S.A.
v. Ministry of Agriculture, Fisheries and Food the Court of Appeal, while regarding itself as bound by the view that Article 86 gave rise to a claim for damages, held that another directly applicable provision, Article 30 (dealing with quantitative restrictions on imports) attracted only the remedy of judicial review.
Further consideration of these problems belongs to the study of European law and competition.
Finally, the common law contained areas of tortious liability for interference with family and service relationships which were based upon the archaic idea that a man had a proprietary interest in the services of his family and his servants.
For example, a husband whose wife was incapacitated by the defendant's negligence had his own action against the defendant for the value of the domestic services which she had formerly rendered and for the loss of her ' consortium ' (or society) and a master had a remedy for ' enticement ' against one who wrongfully persuaded his servant to leave his employment.
Some of these causes of action were restricted by judicial decision and by legislation in 1970.
The Administration of Justice Act 1982 swept away the remaining ones without putting anything in their place.
The Act does not as a matter of law preclude a court from holding that an action for negligence lies in favour of a person who could formerly have brought an action based on loss of services but in view of the current law on economic loss it seems most unlikely that such a development will occur.
INTERFERENCE WITH A SUBSISTING CONTRACT
A commits a tort if, without lawful justification, he intentionally interferes with a contract between B and C, (a) by persuading B to break his contract with C, or (b) if by some unlawful act he directly or indirectly prevents B from performing his contract.
The existence at common law of the tort of enticement of a servant has already been noticed, but though to modern eyes it involved A persuading B to break his contract with C its historical origins lie more in status than in contract.
The origin of a different approach lies in the mid-nineteenth century in Lumley v. Gye.
The plaintiff's declaration alleged that he was owner of the Queen's Theatre, that he had contracted with Johanna Wagner, a famous operatic singer, to perform exclusively in the theatre for a certain time and that the defendant, owner of a rival theatre, wishing himself to obtain Miss Wagner's services' knowing the premises and maliciously intending to injure the plaintiff... enticed and persuaded [ her ] to refuse to perform. '
On demurrer it was held by the majority of the Court of Queen's Bench that while the authorities had until then confined liability for enticement to the relation between master and servant (which that between Lumley and Wagner clearly was not) yet the plaintiff's claim succeeded.
The majority held that the case could be decided upon the narrow ground that the action for enticement should be extended beyond the strict relation of master and servant to embrace other contracts for personal services, but support was also given in varying degrees to a broader proposition that a plaintiff might sue for the knowing violation of the security of any type of contractual right.
In Bowen v. Hall, on rather similar facts, the Court of Appeal accepted the broader proposition and doubted whether Lumley v. Gye could in fact be based upon the narrower ground of enticement.
The rule that inducing or procuring another to break his contract could be actionable at the suit of the other contracting party who suffered damage thereby was only accepted in the face of strong dissent, but the good sense of it is clear.
Commercial contractual relations had become valuable rights which could be regarded as entitled to at least some of the protection given by the law to property and while it was argued that the plaintiff ought to be satisfied with his action for breach of contract against the party induced, the latter might be incapable of paying all the damages.
The tort has been extended a good deal since Lumley v. Gye and in its modern form its requirements may be summarised as follows.
For convenience of exposition reference will normally be made to A's having brought about a ' breach ' of the contract between B and C and in most of the cases this will have occurred but, as we shall see, there may be liability without an actual breach.
Variants of the tort
(1) Direct persuasion
This is the primary form of the tort exemplified by the facts of Lumley v. Gye itself.
A distinction may be taken between persuasion and mere advice, and advice in the sense of ' a mere statement of, or drawing of the attention of the party addressed to, the state of facts as they were, ' is not actionable.
However, it has been said that advice which is intended to have persuasive effect is not distinguishable from inducement and ' the fact that an inducement to break a contract is couched as an irresistible embargo rather than in terms of seduction does not make it any the less an inducement. '
It is submitted that the issue is really one of intention and causation.
If A's words were intended to cause and did cause B to break his contract with C, then they are actionable by C whatever their form.
If so, bearing in mind that intention in this context is not the same as motive and that the tort may be committed without any ill will towards the plaintiff, it is likely to be a rare case in which A's words have had a causative effect on B's conduct and yet A escapes liability on the ground that they were only ' advice. '
Liability under this head may arise from A's entering into a contract with B knowing that the contract is inconsistent with a prior contract of B's with C as in B. M. T. A. v. Salvadori where A bought a car from B knowing that the sale constituted a breach by B of his contract with C that he would not sell the car within a year.
Where the prior contract of B and C is specifically enforceable it would create an equitable interest in the subject-matter in favour of C, which C could enforce against A even if A had only constructive notice of C's rights.
In many cases this would render consideration of A's tort liability in a case of actual knowledge otiose, but it seems possible to assert such a claim where there is some additional loss.
In the case of land, statutory provisions may give priority to a later contract registered as a land charge even if entered into with knowledge of an earlier, unregistered transaction, but it seems that this affects only proprietary rights and does not bar an action in tort based on interference with the earlier contract.
The other forms of the tort require interference by unlawful means.
It is sometimes argued that direct persuasion applied by A to B not to perform his contract is itself the procurement of breach by unlawful means, but the argument is circular and it seems better simply to say that in this form of the tort no use of unlawful means is required.
(2) Direct intervention
This takes the form of direct action by A on the person or property of B whereby B is disabled from performing his contract with C, as where A physically detains B or steals B's specialised tools without which B can not carry out his obligation.
A similar case exists where A interferes with the subject-matter of the contract in a way which if done by B would amount to a breach of the contract.
In G.W.K. Ltd.
v. Dunlop Rubber Co.
Ltd.
B manufactured cars and contracted with C that all cars exhibited by B should be fitted with tyres of C's manufacture.
At an exhibition, A, who also manufactured tyres, secretly removed C's tyres from B's car and substituted his own.
A was held liable to B for trespass to his goods and to C for unlawful interference with his contract with B. However, there must be some conduct which is' unlawful ' apart from the intent to injure C, so that, for example, refusing, without any breach of contract, to provide B with supplies that he needs to fulfil his contract with C is no more a tort against C than it is against B, even though A's motive is to injure C.
(3) Indirect intervention
If, instead of persuading B to break his contract or causing him to do so by direct unlawful action against him, A brings about the breach of the contract between B and C by operating through a third party, X, A may still be liable to C, provided unlawful means are used.
A common example of this form of the tort, though now much restricted by the legislation governing trade disputes, has been the situation where X is B's servant, whom A induces to act in breach of his contract of employment so as to prevent B fulfilling his contract.
In J. T. Stratford &amp; Son Ltd.
v. Lindley, C carried on business hiring out barges to B. These were collected from C and returned to B's watermen.
The defendants (A) were officials of a union to which all but a very few watermen belonged and wished to bring pressure on C in connection with a grievance at another company controlled by him.
Accordingly, A instructed B's watermen (X) not to man, service or tow barges belonging to C, an embargo which soon brought C's business to a standstill as barges which were out on hire were not returned.
In proceedings by C against A for an interlocutory injunction the House of Lords held that a prima facie case had been established that A was liable for procuring breaches by B of the hiring contracts, the unlawful means being the inducement of X to ' black ' the barges.
The unlawful means adopted may be considerably more remote than interference in the contractual relationship between B and his servants.
In Merkur Island Shipping Corporation.
v. Laughton the International Transport Workers' Federation (1.
T.F.) wished to bring pressure on C, owners of the Hoegh Apapa then docked in Liverpool under charter to B and sub-charter to N.L. N.L. had a contract with tug owners to take the Hoegh Apapa out, but as a result of a request from A, an official of I.T.F., the tug crews, in breach of their contracts of employment, refused to move her.
It was held that C had made out a prima facie case of unlawful interference with its contract with B, notwithstanding that the direct inducement was not, as in Stratford v. Lindley, one step removed from the contract but three steps removed.
In principle there was no distinction between indirect interference at the first stage and such interference at a remoter stage, but the more indirect and remote the interference, the more difficult it may be to establish on the facts that A did intend to interfere with the particular contract relied on by the plaintiff and that that interference was a necessary consequence of A's wrongful act.
(a) Unlawful means.
In D. C. Thomson &amp; Co.
Ltd. v. Deakin the Court of Appeal was emphatically of the opinion that unless the case was one of direct inducement of B, the tort required the use of some independently unlawful means.
The difficulty with this is that it makes the question of A's liability to C turn on what may be a purely technical contravention of the law by A which is of no real concern to C. Further, there are uncertainties in the meaning of ' unlawful ' for this purpose.
Voices have sometimes been heard to question or deny the validity of this requirement but, while it is probably true to say that this issue has not been central in the cases since Thomson v. Deakin, the necessity for unlawful means has been so consistently repeated in subsequent statements of the law that it is now hopeless to argue the contrary.
Nor, despite the arbitrary results capable of being produced by the requirement of illegality, is the law necessarily unwise in displaying this reluctance to extend liability, for if the requirement of illegality were abandoned a much greater burden would have to be placed upon the defence of justification if we were to avoid the intolerable situation that A was liable to C whenever and however he knowingly brought about a breach of a contract between B and C.
(b) Inducement by servant.
If my servant, acting bona fide within the scope of his authority, procures or causes me to break a contract which I have made with you, you can not sue the servant for interference with the contract; for he is my alter ego here, and I can not be sued for inducing myself to break a contract, although I may be liable for breaking the contract.
In Said v. Butt the plaintiff wished to get a ticket for X's theatre.
He knew that X would not sell him one because they had quarrelled.
He therefore persuaded a friend to procure him a ticket without disclosing his identity.
When the plaintiff presented himself at the theatre, the defendant, who was X's servant and manager of the theatre, detected the plaintiff and refused to admit him.
He sued the defendant for procuring a breach of his contract with X. The action was dismissed because there was no contract, since the identity of the plaintiff was, in the circumstances, material to the formation of the alleged contract; and alternatively, even if there had been a valid contract, the principle stated above would prevent the action from lying.
If the servant does not act bona fide, presumably he is liable on the ground that he has ceased to be his employer's alter ego.
It is true that even then he might still be acting in the course of his employment, but we must take it that this curious piece of metaphysics exempts the employer from vicarious liability for this particular tort.
Intent of the defendant
There is no liability under this head for negligently interfering with C's rights under contract.
A must have knowledge of the contract between B and C or act with the intention of bringing about a breach of it.
As to knowledge, however, he need not be familiar with all the details of the contract, for otherwise the tort would hardly ever be committed.
In Emerald Construction Co.
Ltd.
v. Lowthian the defendants knew of the existence of the contract between the plaintiffs and their co-contractors but they did not know its precise terms and said that they assumed from their experience in other cases that it could be terminated at short notice.
Nevertheless, the evidence showed that the defendants were determined to bring the contractual relationship to an end if they could, regardless of whether it was done in breach or not.
The Court of Appeal held that this was sufficient to entitle the plaintiffs to an interlocutory injunction.
Where a defendant is familiar with the trade in question he may be taken to have knowledge of the existence of a contract even though he can not identify the other contracting party and even though he may have no direct information about any particular contract at all.
In Merkur Island Shipping Corporation v. Laughton the defendants were in fact given a copy of the charter of the trapped vessel before the application for an injunction, but the House of Lords held that they had the requisite knowledge independently of this.
Commenting that no one is likely to be better informed than a seamen's union as to the terms on which vessels sailing under flags of convenience were employed, Lord Diplock adopted the words of the Master of the Rolls in the court below:
' Whatever the precise degree of knowledge of the defendants at any particular time, faced with a laden ship which, as they well knew, was about to leave port, the defendants must in my judgment be deemed to have known of the almost certain existence of contracts of carriage to which the shipowners were parties.
The wholly exceptional case would be that of a ship carrying the owner's own goods.
Whether that contract or those contracts consisted of a time charter, a voyage charter or one or more bills of lading contracts or some or all of such contracts would have been immaterial to the defendants.
Prima facie their intention was to immobilise the ship and in so doing to interfere with the performance by the owners of their contract or contracts of carriage. '
There is, however, no general duty actively to inquire about contracts between others.
If A had an honest doubt whether there was a contract at all between B and C it has been held that this would provide a good defence but if the doubt is whether A's rights or C's under two inconsistent agreements should prevail and A chooses to adopt a course which on one view of the law will undoubtedly interfere with C's rights, it has been said that he must at least show that he was advised and honestly believed that he was entitled to take that course.
The meaning of intention gives rise to difficulty.
The problem may be illustrated by the county court case of Falconer v. A. S. L. E. F.
The defendants called rail workers out on strike and the plaintiff, an ordinary traveller, incurred hotel expenses when he was unable to travel on the journey for which he had bought a ticket.
The ' target ' of the strike action was undoubtedly the railway undertaking but it was obviously a necessary consequence of the strike's having any effect at all that it should lead to interference in the performance of contracts of carriage.
The learned judge held that the defendants' intended ' to interfere with the plaintiff's contract for the purposes of this tort.
However, in Barretts &amp; Baird (Wholesale) Ltd.
v. I. P. C.S.
Henry J. held that the intention of strikers was to put pressure on their employers to improve their conditions of service and not to disrupt the plaintiffs' contracts, even though that was an unavoidable by-product of the strike.
' On the evidence the desire to strike was the cause of the injury to the plaintiffs rather than the desire to injure the plaintiffs being the cause of the strike. '
The first view would probably extend the law further than it has commonly been thought to go and would expose strikers having no immunity under trade union legislation to a very wide-ranging liability; on the other hand it is not quite accurate to describe the plaintiffs in these two cases as merely ' ricochet ' victims for it may be the effect of pressure on the public and customers which causes the employer to succumb to the strikers' demands.
However, even on the view that the plaintiff must be the target, no malice or spite is required: apart from the protection of the trade disputes legislation the tort would be committed by a trade union officer calling his members out on strike and he can not defend himself by arguing that his purpose was the increase of his members' wages: unlike the tort of conspiracy, no predominant purpose to injure the plaintiff is required.
There must have been interference with performance of a contract
Though the wider wrongs of intimidation and interference with trade by unlawful means may protect mere expectancies, there is no doubt that for the purposes of the tort we are now considering there must be interference with a subsisting contract between B and C. Hence if the contract allegedly broken proves to be void there is no tort.
On the other hand, if the contract is merely unenforceable (e. g. for non-compliance with section 40 of the Law of Property Act 1925) then it may well be actionable to procure its breach.
The action would not be an indirect method of enforcing the contract against the other contracting party because it lies against a third party and in tort.
There need not in all cases be an actual breach of the contract.
In Torquay Hotel Co.
Ltd.
v. Cousins an interlocutory injunction was issued to restrain the defendants from preventing oil companies from carrying out their contracts to deliver oil to the plaintiff's hotel notwithstanding that the contract with the principal supplier of oil contained a clause absolving it from liability if delivery was prevented by circumstances outside its control.
Lord Denning M.R. said that liability extends to a case where a ' third person prevents or hinders one party from performing his contract, even though it be not a breach. '
Whatever the nature of the defendant's conduct this should be so where there is' no breach ' only in the sense that an exemption clause in the contract allows a contracting party to escape liability in damages for non-performance of his obligation.
Again, where the defendant uses unlawful means to interfere with a contractual relationship there would be no point in requiring any sort of breach, because even interference with prospective, non-contractual advantages by such means may be actionable.
However, despite an apparent dictum to the contrary, the Torquay Hotel principle does not, it is submitted, extend to imposing liability in a case where A has, without any unlawful act, done no more than persuade B to exercise an option open to him under his contract with C, for example, to terminate it by proper notice, for so to hold would be to draw an indefensible distinction between existing, but terminable, relationships and those which are merely prospective, and render it necessary to fall back on the defence of justification in order, for example, lawfully to persuade an employee to change his employment for higher pay.
Though Lord Denning's formulation was approved in unqualified terms in Merkur Island Shipping Corporation.
v. Laughton that was a clear case of unlawful means and the approval should be read with that in mind.
While there may be wrongful interference with contract short of actual breach, there must be interference with performance of the contract.
Accordingly, makers and dealers in ' bootleg ' recordings did not commit this tort even though their activities very seriously affected the value of a contract giving a recording company the exclusive right to exploit live performances.
If it is a tort wrongfully to procure a breach of contract is it also a tort to procure the commission of other legal wrongs?
There is no need to call up the tort where the legal wrong procured is itself a tort against the plaintiff, for the procurer is then himself liable as a joint tortfeasor; nor, it seems, is there a tort of inducing a breach of trust, because a person who procures such an act becomes himself, by the doctrines of equity, liable as a trustee.
Procuring the commission of a criminal offence is not a tort unless the crime also amounts to a tort against the plaintiff, in which case the procurer is a joint tortfeasor.
Plaintiff must prove that he has suffered damage as a result of the interference
Damage is the gist of the action and without it the plaintiff must fail.
Where it is clear that the contract-breaker would have taken the same steps anyway the inducement is not an effective cause of the loss.
Where, as will normally be the case, the breach is such as must in the ordinary course of business inflict damage on the plaintiff, he may succeed without proof of any particular damage.
Where loss of a pecuniary nature is inferred or proved, the plaintiff may also recover damages for non-pecuniary losses such as injured feelings.
Defence of justification
It is certain that justification is capable of being a defence to this tort, but what constitutes justification is incapable of exact definition.
It has been said that regard must be had to the nature of the contract broken, the position of the parties to the contract, the grounds for the breach, the means employed to procure it, the relation of the person procuring it to the person who breaks the contract, and the object of the person procuring the breach.
The advancement of one's own interests will not suffice, nor will that of the interests of one's own group and the defendant can not escape by showing that his motives are impersonal, disinterested and altruistic.
However, in Brimelow v. Casson, persuasion of theatre proprietors by a theatrical performers' protection society to break their contracts with a theatrical manager was justified on the grounds that the wage paid by the manager to chorus girls was so low that they were obliged to supplement it by resort to prostitution.
It has been suggested that pressure of a moral obligation as justification is the basis of Brimelow v. Casson, though the case has been said to stand alone and there are conflicting dicta on moral obligation.
Presumably there is justification when a doctor urges his patient to give up a fixed term employment because it is a danger to his health, but what of the tutor who insists that his student give up a vacation job because it will interfere with his studies?
The question of justification may also arise where A seeks to assert rights under a contract with B which is inconsistent with another contract between B and C. The question here is whether A has a right equal or superior to that of C and if he has he is justified in persuading B to break his contract with C. So if B enters into a contract on Monday to sell to A for 10,000 and then next day to sell the same property to C for 15,000 A, by persuading B to perform the first contract commits no wrong against C.
A will also be justified in reaching an accommodation with B rather than exercising his strict legal rights under the contract.
In Edwin Hill &amp; Partners v. First National Finance Corporation a finance company which had a legal charge over B's property to secure a loan came to an arrangement with B whereby they would develop the property themselves rather than exercise their power of sale under the charge.
A condition in this arrangement whereby the plaintiff was to be replaced as architect for the scheme did not constitute inducing breach of contract.
It has been suggested that the defence of justification can never succeed if unlawful means are used, but this is not certain.
INTIMIDATION
The word ' intimidation ' when used in the present context signifies a threat delivered by A to B whereby A intentionally causes B to act (or refrain from acting) either to his own detriment or to the detriment of C. There are thus two forms of the tort, which will be considered separately, but first two general points must be mentioned.
(a)
' Threat ' when used in this connection means' an intimation by one to another that unless the latter does or does not do something the former will do something which the latter will not like. '
It is coercive and not mere idle abuse and demands either action or abstention from action on the part of the recipient, so a mere announcement by A that he proposes to strike B is not, for the purposes of the law, a ' threat ' and can not of itself give rise to a claim for damages.
On the other hand, the fact that a threat is couched in polite and regretful language does not make it any less a threat, and there is little value in the distinction which has been suggested between a warning and a threat.
(b)
For a threat as thus defined to be capable of giving rise to an action for damages on the part of anyone it must be a threat of an unlawful act.
Anything that I may lawfully do I may also lawfully threaten to do, whatever the motive or purpose of my threat.
This is an inescapable result of Allen v. Flood, however unfortunate some of its consequences may be.
Accordingly in Hardie and Lane Ltd.
v. Chilton, the Court of Appeal held that a threat by A, a trading association, to put B, one of its members, on a ' stop list ' (which would prevent B from getting goods from the members of the association) unless B paid a sum of money for having broken a rule of the association was not a tort.
Third-party intimidation
Despite some earlier hesitations, it is now certain that A commits the tort of intimidation against C if he threatens B with conduct which is unlawful in relation to B and thereby intentionally causes B to act (or refrain from acting) in a way which causes damage to C. It is not a requirement of this tort that B's conduct be in any way unlawful in relation to C. An old illustration is Garret v. Taylor, where the plaintiff was the lessee of a quarry and alleged that the defendant had ' disturbed ' his customers and his workmen by ' threatening to mayhem and vex them with suits if they had brought any stones. '
It was held that on these facts the plaintiff had a good cause of action.
In Rookes v. Barnard, decided by the House of Lords in 1964 and the leading authority on this tort, the plaintiff (C) was employed by B.0.A.C.
(B) in their design office and the three defendants (A) were officials of the A.E.S.D. Union, two of them also being employees of B.O.A.C. C had been but was no longer a member of the Union.
In order to preserve 100 per cent.
union membership in the design office and notwithstanding the fact that a strike would have involved the men in breaches of their contracts of employment, A notified B of the resolution passed by members of the union that if C was not dismissed, ' a withdrawal of labour of all A.E.S.D. Membership will take place. '
B yielded to this threat and lawfully terminated C's contract of employment.
Owing to the provisions of the Trade Disputes Act 1906 C could not rely upon a simple conspiracy to injure but in the House of Lords it was held that he was entitled to succeed on the ground of intimidation.
The House held, agreeing with the Court of Appeal, that there is a tort of intimidation, but they also held, reversing the Court of Appeal, that the tort extends to threats by A to break his contract with B and is not confined to threats of criminal or tortious conduct.
The essence of the tort lies in the coercion of B, through whom A intentionally inflicts damage upon C, but obviously the law can not hold every form of coercion to be wrongful.
If A tells his grown-up son, B, that he will stop B's allowance if B marries C, A may succeed, as is no doubt his intention, in depriving C of a profitable marriage, but he commits no tort against her, for he is perfectly entitled to stop B's allowance for any reason.
The law has therefore adopted the natural dividing line between what is lawful and what is unlawful as against B, the person threatened.
The significance of Rookes v. Barnard was that it made it clear that a threat of a breach of contract was unlawful for this purpose but the criticism has been made (and this indeed was the opinion of the Court of Appeal) that if intimidation is extended to threats to break contracts' it would overturn or outflank some elementary principles of contract law, ' notably the doctrine of privity of contract, which holds that one who is not a party to a contract can not found a claim upon it or sue for breach of it.
Two answers have been made to the privity of contract objection.
First, it can be said not merely that C does not sue for breach of contract between A and B, but that his cause of action actually depends upon the contract not having been broken.
It is only because B yields to A's threat that it might be broken that C suffers damage at all.
If B does not yield and the contract is broken, then A's threat has not caused C to suffer loss.
And if it be objected that A may act first (against B) and explain why afterwards, whereupon B acts to C's detriment, the answer is that it is not A's act which has caused C's loss but the implied threat that it will be repeated.
Alternatively it may be said bluntly that in all cases of intimidation, whatever the nature of the threatened act, C's cause of action is wholly independent of B's.
C founds not upon the wrong, if any, done to B but on the fact that A has set out to injure him by the use of an unlawful weapon:
' I can see no difference in principle between a threat to break a contract and a threat to commit a tort.
If a third party could not sue for damage caused to him by the former I can see no reason why he should be entitled to sue for damage caused to him by the latter.
A person is no more entitled to sue in respect of loss which he suffers by reason of a tort committed against someone else than he is entitled to sue in respect of loss which he suffers by reason of breach of a contract to which he is not a party.
What he sues for in each case is loss caused to him by the use of an unlawful weapon against him  intimidation of another person by unlawful means. '
The second approach does more than answer the privity of contract objection: it refutes its basic premise.
The point is' that the ' weapon, ' i.e.
the means, which the defendant uses to inflict loss on the plaintiff, may be unlawful because it involves conduct wrongful towards a third party.
There is no reason in principle why such wrongful conduct should include torts and not breaches of contract.
One might argue about whether it is expedient for the law to forbid the use of such acts as a means of causing loss, but the privity doctrine is a red herring. '
If one asks why the law should draw the line at threats of breach of contract and not include within the tort of intimidation some threats against B even though the acts threatened are not strictly unlawful, the answer can lie only in the structure of the law.
There is a legal ' chasm ' between, for example, not entering into a contract and breach of an existing contract, which will not easily be bridged.
It must, however, be admitted that the above argument, to some extent, depends upon a ' general ' or even expansive approach to unlawful means in intimidation and in the economic torts as a whole.
As a result of the decision of the House of Lords in Lonrho Ltd.
v. Shell Petroleum Co.
Ltd.
(No. 2) it is possible (though by no means certain) that threat of a breach of a penal statute does not amount to unlawful means for the purposes of intimidation unless the statute itself gives rise to a civil remedy.
If so, it is perhaps surprising that a threat of a mere breach of contract should give rise to liability.
Two-party intimidation
There is little direct authority on the position where A threatens B with an unlawful act and thereby intentionally causes B to act (or refrain from acting) in a way which causes loss to B himself.
Nevertheless the general opinion seems to be that A commits a tort, certainly where his threat is of violence, and also, since Rookes v. Barnard, where the threat is of any unlawful act within the meaning of that case.
On the other hand, in J. T. Stratford &amp; Son Ltd.
v. Lindley Lord Reid said, ' A case where a defendant presents to the plaintiff the alternative of doing what the defendant wants him to do or suffering loss which the defendant can cause him to incur is not necessarily in pari casu and may involve questions which can not arise where there is intimidation of a third person. '
The problems centre round the effect in the two-party situation of a threat of a breach of contract.
First, in the two-party situation there is normally a remedy already available to B, while in the three-party situation, if C can not sue for intimidation, he can not sue at all.
If B is threatened with a breach of contract he may be able to treat the contract as repudiated and sue for anticipatory breach or, of course, he may await the breach and then sue for damages.
In fact, the balance of advantage would seem to lie in holding that where A threatens B with a breach of his contract with B, B should be restricted to his contractual remedies.
The law should not encourage B to yield to the threat but should seek to persuade him to resist it.
In some cases he may be able to obtain an injunction to restrain the breach and in any case he will be adequately compensated by his remedy in damages for breach of contract as his damage can scarcely be other than financial.
If B is threatened with a tort it is, of course, equally true that he may bring an action for damages if the tort is committed or bring an action for a quia timet injunction first, but, especially where the threat is of violence, it is perhaps less realistic to say that these legal remedies afford him adequate protection against the consequences of resistance.
From the point of view of policy, therefore, there is much to be said for the view that no independent tort is committed when all that is threatened, in the two-party situation, is a breach of contract, though there is not very much authority for such a proposition.
Secondly, since Rookes v. Barnard there has been considerable development in the contractual context of the doctrine of ' economic duress, ' and in this context it is clear that although a threat to break a contract is' illegitimate ' it will not amount to duress unless it goes beyond commercial pressure and amounts to ' coercion of the will. '
In Pao On v. Lau Yiu A threatened that unless B agreed to vary an existing contract between them by giving A a guarantee against loss, A would not fulfil his side of the agreement.
A's action on the guarantee succeeded because, although B had acceded to the demand because of fears of delay in litigation and loss of public confidence, the pressure fell short of coercion.
Though intimidation was not discussed in the case it can not be that B could have avoided the binding nature of the contract by the simple device of counterclaiming for damages for intimidation and it seems therefore that for the purposes of intimidation the plaintiff should be required to show unlawful coercion at least of such a degree as would enable him to avoid a contract.
If there are any cases in which the victim of unfair pressure may avoid a contract even though the threat is not of unlawful action, there seems no possibility of any concurrent tort liability.
CONSPIRACY
Though our early law knew a writ of conspiracy, this was restricted to abuse of legal procedure and the action on the case in the nature of conspiracy, which came into fashion in the reign of Elizabeth I, developed into the modern tort of malicious prosecution.
Conspiracy as a crime was developed by the Star Chamber during the seventeenth century and, when taken over by the common law courts, came to be regarded by them as not only a crime but also as capable of giving rise to civil liability provided damage resulted to the plaintiff.
As a tort, however, it was little developed until the second half of the nineteenth century and the law remained obscure until the decision of the House of Lords in Crofter Hand-Woven Harris Tweed Co.
Ltd.
v. Veitch.
Conspiracy remains a crime as well as a tort, but the scope of the crime has been curtailed by statute so that, broadly speaking, the only conspiracies which are now indictable are those to commit a substantive criminal offence, to defraud or to corrupt public morals or outrage public decency.
The Act, however, has no effect on civil liability.
In fact, even aside from the Act the tort and the crime have cut loose from whatever common origin they had.
The tort takes two forms according to whether or not unlawful means are used, though the decision of the House of Lords in Lonrho Ltd.
v. Shell Petroleum Co.
Ltd.
(No. 2) may have greatly reduced the importance of ' unlawful means conspiracy. '
Indeed, the Court of Appeal has indicated that the law laid down in Lonrho has effectively resulted in the unlawful means category no longer existing in any meaningful form; but until the law is finally clarified by the House of Lords it seems justifiable to continue to speak of two forms of the tort.
Conspiracy to injure
It was firmly established in Crofter Hand-Woven Harris Tweed Co.
Ltd.
v. Veitch that if there is a combination of persons whose purpose is to cause damage to the plaintiff, that purpose may render unlawful acts which would otherwise be lawful.
The production of Harris Tweed is an industry of the Isle of Lewis.
Originally the yarn for the cloth was hand-spun from wool by the crofters of Lewis and was wholly produced in the Isle.
By 1930, handspinning of wool had become commercially impracticable and thenceforth many weavers in Lewis imported yarn from the mainland.
Five mill owners in Lewis nevertheless spun yarn woven by the crofters.
These mill owners alleged that cloth woven on Lewis from mainland yarn could be sold much more cheaply than cloth made from yarn spun in Lewis.
It was therefore in their interest to get a minimum price fixed for the cloth.
Of the workers in their mills 90 per cent.
belonged to the T.G.W.U. and the Lewis dockers were also members of it.
The union, with the object of getting all mill workers to be members and of increasing wages, approached the mill owners, who replied that they could not raise the wages because of the competition of the crofters who wove imported yarn.
The union officials then put an embargo on the importation of yarn by ordering Lewis dockers not to handle such yarn.
They obeyed (without breaking any contract) and thus injured the trade of seven small producers of tweed who used imported yarn and who sued the officials for conspiracy.
It must be stressed at the outset, lest the importance of this form of liability be exaggerated, that the plaintiffs lost their case because the predominant purpose of the embargo was to promote the interests of the union members rather than to injure the plaintiffs, but their Lordships made it clear that if the predominant purpose of a combination is to injure another in his trade or business or in his other legitimate interests then, if damage results, the tort of conspiracy exists.
The Crofter principle was applied by the Court of Appeal in Gulf Oil (Great Britain) Ltd.
v. Page in granting an interlocutory injunction against a combination to publish a statement defamatory of the plaintiffs even though the statement was admitted to be true and there would, therefore, have been an absolute defence to an action for libel.
(1) Purpose
The object or purpose of the combination must be to cause damage to the plaintiff.
The test is not what the defendants contemplated as a likely or even an inevitable consequence of their conduct; it is' what is in truth the object in the minds of the combiners when they acted as they did? '
Malice in the sense of malevolence, spite or ill will is not essential for liability; what is required is that the combiners should have acted in order that (not with the result that, even the foreseeable result) the plaintiff should suffer damage.
If they did not act in order that the plaintiff should suffer damage they are not liable, however selfish their attitude and however inevitable the plaintiff's damage may have been.
Cases of mixed motive are common enough in individuals, and it is obvious that a combination of persons may have more than one purpose.
Where this is so the question must be asked, what was the real or predominant purpose of the combination, and it is to be answered broadly as by a jury or judge of fact.
Difficulty may arise where the purposes of the various parties to the combination are different.
If each party has his own private end to gain, but yet the joint aim is no more than a desire for prosperity or peace in industry, there is no tort.
On the other hand, if one of the parties is actuated merely by hatred or vindictive spite he may be liable and if the others are aware of this and lend him their assistance they too may thereby become participants in the wrong.
Without such knowledge, however, there can be no conspiracy, since the essence of the tort is an unlawful combination.
Another way of expressing the central requirement of conspiracy to injure is to say that the law is concerned with the distinction between legitimate and illegitimate purposes, for the former will legalise the infliction of the most catastrophic and inevitable harm to the plaintiff's business.
The legitimate purpose of a combination is sometimes spoken of as its justification (and the expression is convenient) but this does not mean that a combination to do an act harmful to the plaintiff is necessarily actionable unless the defendants prove that it was justified.
The burden of proof lies with the plaintiff throughout.
On the other hand, there may obviously be cases where the plaintiff establishes a prima facie case by proving that he suffered damage from acts done in combination by the defendants the natural and probable outcome of which was damage to him.
The defendants may then have to meet this' provisional burden ' by adducing evidence that their purpose was something else and that it was legitimate, without affecting the ' legal burden ' of proof.
Precise definition of what is and is not a legitimate purpose is probably not possible, but the fact that we live in a competitive or acquisitive society has led English law, for better or worse, to adopt the test of self-interest or selfishness as being capable of justifying the deliberate doing of lawful acts which inflict harm.
Acts done to forward or protect the defendants' trade or business interests are clearly justified, but it is not essential that the interest promoted be a material one.
In Scala Ballroom (Wolverhampton) Ltd.
v. Ratcliffe the plaintiffs refused to admit coloured persons to their ballroom but they did allow coloured musicians to play in the orchestra.
The defendants were members of the Musicians' Union, a union with many coloured members, and they gave notice to the plaintiffs that members of the union would not be permitted to play at the ballroom so long as the colour bar was in operation.
An injunction to restrain them from persuading their members not to play there was refused.
On the other hand, in Huntley v. Thornton damages were awarded against union officials whose object in keeping the plaintiff out of work was, as Harman J. found, to uphold ' their own ruffled dignity....
It had become a question of the district committee's prestige; they were determined to use any weapon ready to their hand to vindicate their authority, and grossly abused the quite frightening powers at their command. '
Other examples of unlawful objects are given by their Lordships in the Crofter case.
' Mere busybodies' are probably not protected, nor are those who are induced to join a combination by the payment of money and have no other interest to protect.
A combination to compel the plaintiff to pay a debt is apparently unlawful, but where the object is to punish him it is necessary to distinguish between mere vindictive vengeance, which is unlawful, and the purpose of deterring others from similarly offending, which apparently is not.
If the object is to increase the effective strength of a trade union, it is lawful.
The fact that the damage is disproportionate to the purpose sought to be achieved does not itself render the conspiracy actionable; nor is the court concerned with the expediency or otherwise of the policy adopted by the combiners.
(2) Combination
There must be concerted action between two or more persons, which includes husband and wife.
It seems that there can be no conspiracy between an employer and his employees, at least where they merely go about their employer's business.
On the other hand, there might be circumstances where an employer would be vicariously liable for a conspiracy involving his servants provided the other requirements of that form of liability are met.
There may be a conspiracy between a company and its directors, whose knowledge and purpose may be imputed to the company.
(3) Overt act causing damage
In contrast with the crime of conspiracy, an overt act causing damage is an essential element of liability in tort.
If, therefore, the acts relied on are incapable of being made part of any cause of action  e.g.
evidence given by witnesses in a court of law  then the tort can not be made out.
A sufficient element of damage is shown where expenses are necessarily incurred by the plaintiff in investigating and counteracting the machinations of the defendants.
' Unlawful means' conspiracy
This form of the tort involves the use of means which are independently unlawful, though not necessarily tortious.
For many years its significance was thought to lie in the fact that, while the combiners had to intend to do an unlawful act, it was not necessary that their purpose should be to injure the plaintiff.
However, this may have been overturned by the House of Lords in Lonrho Ltd.
v. Shell Petroleum Co.
Ltd.
(No. 2).
Shell and others constructed an oil refinery in what was then Southern Rhodesia and Lonrho constructed a pipeline thereto from a port in Mozambique.
In November 1965 the government of Southern Rhodesia declared unilateral independence and the United Kingdom passed legislation, the ' sanctions order, ' making it a criminal offence to supply oil to Southern Rhodesia.
No further oil was shipped through Lonrho's pipeline, causing the company loss of revenue.
The facts to be assumed by the House of Lords for the purposes of the appeal were that Shell and others had, in breach of the sanctions order, covertly supplied Southern Rhodesia with oil by other means and thereby prolonged the state of illegal independence and the time during which Lonrho's pipeline was out of use.
It was clear that the breach of the sanctions order gave rise to no action in tort for breach of statutory duty and a claim based on breach of the sanctions order as' unlawful means' for the purposes of the tort of interference with trade failed.
The case was also, however, framed as a conspiracy between Shell and others to contravene the sanctions order.
This too failed, on the basis that in unlawful means conspiracy, as in conspiracy to injure, there must be an intent to injure the plaintiff, and conspiracy should not be extended ' beyond acts done in execution of an agreement entered into by two or more persons for the purpose not of protecting their own interests but of injuring the interests of the plaintiff. '
Accordingly, since the case was to be decided on the factual assumption that the purpose of Shell and others in combining to contravene the sanctions order was to forward their own commercial interests, not injure those of Lonrho, no matter how likely or foreseeable such injury might be, the claim in conspiracy failed.
The meaning of the decision in Lonrho has produced radical differences of opinion in courts here and abroad.
One view, which is supported by the judgment of Lord Denning M.R. in the Court of Appeal in Lonrho is that ' it is sufficient if the [ unlawful means ] conspiracy is aimed or directed at the plaintiff and it can reasonably be foreseen that it may injure him, and does in fact injure him ' and the Supreme Court of Canada has since stated the law in similar terms in a decision in which Lonrho was considered.
This would allow for liability where, for example, A and B conspired by unlawful means with the purpose of driving a competitor C out of the market and thereby monopolising it.
If such a case involved no unlawful means their ' purpose ' would be treated as the advancement of their own self-interest or, to put it another way, their object in removing C from the market would be legitimate.
To deny such legitimacy in the case where unlawful means were used would still leave some practical scope for this form of conspiracy.
This would not mean that A and B are liable for conspiracy wherever they acted unlawfully with the foreseeable consequence that C suffered loss, for conspiracy should not extend further than the other economic torts (for example, interference with contract by unlawful means) where the predominant view is that this is not sufficient.
The plaintiff must be the ' target ' of the combination but if he is, on this view, the advancement of the defendants' own interests does not justify the use of unlawful means.
However, subject to further consideration by the House of Lords, this does not now represent English law.
In Metall und Rohstoff v. Donaldson Lufkin &amp; Jenrette Inc.
the allegations pleaded (which the court was required to assume to be true for the purposes of an issue as to service out of the jurisdiction) were as follows.
Company A, dealers on the Metal Exchange, knowingly assisted an employee of the plaintiffs to engage in fraudulent trading, the result of which was that Company A became exposed to liabilities of more than 6.5m.
To protect itself, Company A, at the instigation of Company B, its parent company, falsely asserted that these accounts were the responsibility of the plaintiffs and wrongfully seized certain metal warrants belonging to the plaintiffs.
The plaintiffs obtained judgment for 50m. against Company A but recovered only 6.7m. since A was insolvent.
A further claim for, inter alia, unlawful means conspiracy was brought against Company B but it was not alleged that the predominant purpose of the conspiracy was to injure the plaintiffs since the defendants were obviously concerned to protect their own position.
The Court of Appeal, after a full consideration of Lonrho, held that the omission of an allegation of intention to injure was fatal to the claim.
On this basis, it is hard to see what, if anything, a separate category of unlawful means conspiracy adds to the law and while not perhaps strictly abolished by judicial fiat it may be expected to fade away.
Lonrho itself is authority for the view that pursuit of naked self-interest by criminal means can never amount to conspiracy.
If the wrong agreed on itself amounts to a tort against the plaintiff perhaps little has been lost by the restriction of conspiracy, for the combination must be carried into effect to cause damage and then the substantive tort is committed.
Certainly, it is sometimes said that a claim for conspiracy gives the plaintiff procedural advantages, but the reality of this may turn on how far it is to be held on ordinary principles that instigation or procurement suffices to make a person who does not participate in the act a joint tortfeasor.
The restriction of conspiracy might seem to put the plaintiff at a disadvantage if the unlawful means is a tort against a third party or the breach of a contract to which the defendant is not a party but this is not necessarily so, for the defendant's procurement of the commission of the tort may again expose him to liability as a joint tortfeasor, and as to a breach of contract he may anyway have committed the substantive tort of interference with an existing contract.
In any event, the emergence of the generic tort of interference with trade or business by unlawful means may have had the effect that most cases which were formerly regarded as unlawful means conspiracies amount to torts even without the element of combination.
If there is a lacuna in the law it is probably confined to combinations to do acts which amount to crimes but to no other wrong, but the exclusion of such cases from the tort of conspiracy may be a necessary consequence of Lonrho whatever the mental element required for the tort.
Place of conspiracy in the law
Conspiracy, it has been said, is a highly anomalous tort, though it has attracted more controversy among academic writers than success in practical application.
The central issue has been why the ' magic of plurality ' should make something unlawful if it is not unlawful when done by one person alone.
Numbers may, of course, bring increased power and in the Crofter case Viscount Maugham said that he had never felt any difficulty in seeing ' the great difference between the acts of one person and the acts in combination of two or of a multitude, ' but, as Viscount Simon L.C. remarked in the same case:
' The view that the explanation is to be found in the increasing power of numbers to do damage beyond what one individual can do is open to the obvious answer that this depends on the personality and influence of the individual.
In the play, Cyrano de Bergerac's single voice was more effective to drive the bad actor Montfleury off the stage than the protests of all the rest of the audience to restrain him.
The action of a single tyrant may be more potent to inflict suffering on the continent of Europe than a combination of less powerful persons. '
The argument from numbers continues to have some appeal in the criminal law but there are now few situations in which there may be an indictment for conspiracy in respect of acts which would not be criminal if done by one person.
One day the law may re-examine the place in our law of combination and of the ' chasm ' between lawful and unlawful acts which exists in the case of an individual, but the latest judicial pronouncements suggest a retreat from liability rather than an advance towards a principle that the intentional infliction of harm without justification is actionable.
INTERFERENCE WITH TRADE BY UNLAWFUL MEANS
Given that the chasm referred to in the previous paragraph is now unbridgeable is there a more modest general principle that it is a tort intentionally to inflict economic harm on another by use of ' unlawful means? '
There is now authority that, at least where the harm is interference with trade or business, there is such a tort.
Its principal practical impact is to fill in the gaps in the other, long-established torts involving unlawful means by imposing liability where there is no combination, no threat and no interference with a subsisting contract.
In J. T. Stratford &amp; Son Ltd.
v. Lindley, the facts of which have already been given, two at least of their Lordships considered that if the defendants had used unlawful means  i.e.
had committed against the barge hirers the tort of procuring breaches of their contract with their men  the plaintiffs would have had a cause of action not only in respect of breaches of hiring contracts but also in respect of new business they were unable to undertake.
' In addition to interfering with existing contracts, ' said Lord Reid ' the defendant's action made it practically impossible for the appellants to do any new business with the barge hirers.
It was not disputed that such interference with business is tortious if any unlawful means are used. '
Indeed, this result is an irresistible inference from the acceptance of the tort of intimidation: if it is a tort by A against C to threaten a wrong to B if B continues to deal with C it is hard to see why it should not be equally tortious to inflict harm on C by committing that wrong rather than merely threatening it.
More generally, however, this tort has been said to be the genus of which the other unlawful means torts (intimidation and interference with contract and conspiracy where unlawful means are involved) are species.
If this is correct, it may be asked why it is necessary to deal with the established, nominate torts at all, to which one can only respond that until the limits of the general tort are clearly established plaintiffs are likely to rely upon as many causes of action as they can, even though from our point of view it is untidy to have two or more torts rather than one.
Mental element
Like the established economic torts, this is a tort of intention and it is thought that the conduct of the defendant must have the plaintiff as its target though it need not be the predominant purpose in the sense that the defendant needs to be activated by malevolence: the pursuit of self-interest by unlawful means is actionable.
Although in some branches of the law a defendant may be treated as intending the known inevitable or likely consequences of his act, that is not so here, for it would stretch the tort too far to impose liability where ' the reasons which actuate the defendant to use unlawful means are wholly independent of a wish to interfere with the plaintiff's business, such interference being no more than an incidental consequence foreseen by and gratifying to the defendant. '
It must, however, be said that it is by no means crystal clear that this forms the mental element of the ' species' torts of unlawful interference with contract and unlawful means conspiracy (indeed, in the case of the latter it very probably does not) and it is not easy to see how the species can differ in this respect from the genus.
Trade or business
Beyond the fact that most cases are likely to arise in the context of trade or business it is not apparent why liability should be confined to cases where those activities are interfered with.
If it is actionable to use unlawful means to drive away C's prospective customers why should it not equally be actionable to use such means against a person who proposes to buy his house but has not yet signed a contract to do so?
If ' trade or business' is to be regarded as a requirement of the tort there is a danger that the genus may be narrower than the species.
However, it has been suggested that the tort protects only some identifiable legal right.
In Lonrho plc v. Fayed the facts which the court was required to assume to be true were that the defendants had made fraudulent misrepresentations about themselves to the Secretary of State in order to influence him not to refer their bid for H.F. Co. to the Monopolies and Mergers Commission.
The plaintiffs contended that they had thereby been deprived of the opportunity to bid for H.F. Co. but pill J. rejected their claim because while the law certainly allowed a freedom to bid for property that was neither a ' business asset ' of the plaintiffs' nor a legal right which the law would protect.
The Court of Appeal, however, declined to deal with this and other points on a striking-out application.
Two-party or three-party?
As we have seen, at least one form of the established economic torts (intimidation) may exist even though the defendant uses unlawful means directly against the plaintiff rather than against a third party.
Is it, therefore, the law that if A steals the tools of a carpenter, B, and locks him up, B may sue for unlawful interference with trade as well as conversion and false imprisonment?
Or (assuming breach of contract to be unlawful means) that A is liable in tort if, in order to bring down B, he breaches his contract with him?
It is thought that the answer in each case should be ' no ' because, quite apart from the practical consequences of thus multiplying liability, it would be a travesty of history to unify these disparate wrongs under one heading of tort.
Unlawful means
If the law of economic torts is in a mess it is largely because of uncertainty over what constitutes unlawful means.
This concept has played the leading role in the development of the modern law but the question of definition has tended to be passed over in the cases with little analysis.
Since the broad, ' genus' tort is a comparatively recent growth, most of the authorities on unlawful means concern the older, nominate wrongs so that the elements of the former are to some extend rationalisations from the latter and, as we have seen, there is a regrettable element of doubt as to whether ' unlawful means' bears the same meaning wherever it occurs.
Bearing that in mind, it is tolerably clear that conduct which is itself tortious is always unlawful means.
The same is probably true of breach of contract but once we move outside the area of wrongs which are civilly actionable in damages the law becomes more uncertain.
For example, it has been held that an arrangement void for contravention of the Restrictive Trade Practices Act 1956 constitutes unlawful means but this is hard to reconcile with the clear decision in the Mogul case that an agreement in restraint of trade at common law did not.
Breach of confidence might qualify as unlawful means (assuming it not to be a tort in itself) but there has been no subsequent support for Lord Denning M.R. 's suggestion that the concept might extend to ' interference with the press. '
On the other hand, a fraudulent statement to a third party is unlawful means even though the third party could not sue for tort because he suffers no damage.
It might seem self-evident that the commission of a crime amounts to unlawful means, but this is not so, at least where the crime is created by statute.
This was the first point dealt with by the House of Lords in Lonrho Ltd.
v. Shell Petroleum Co.
Ltd.
(No. 2), the facts of which have already been summarised, and in which it was held that the restrictions imposed on the bringing of a direct civil action for breach of a statute could not be outflanked by framing the claim as one for the tort of unlawful interference with trade.
As a matter of strict precedent, however, this aspect of the Lonrho case must have been decided on the same factual assumption as that which governed the conspiracy claim, viz.
that while injury to Lonrho's business was foreseeable it was not the defendants' purpose to bring it about.
It might, therefore, be open to a court to find liability where a defendant committed a statutory offence as the vehicle for the deliberate infliction of harm upon the plaintiff.
In view of the Lonrho decision a similar question might arise with regard to common law crimes which are not also torts in their own right.
The closest case on this point is probably Chapman v. Honig where a landlord gave notice to quit to his tenant, the notice being in accordance with the terms of the lease.
H's purpose, however, was to punish the tenant for having given evidence (under subpoena) in an action brought against him by another of his tenants and it followed that the landlord was guilty of a criminal contempt of court.
Nevertheless, the Court of Appeal held, by a majority, that the tenant had no cause of action against the landlord.
In coming to this conclusion Pearson L.J.
foreshadowed the ' construction ' approach in Lonrho by treating the common law criminal contempt as if it were created by a hypothetical enactment and asking what intention was to be inferred, with regard to civil liability, from the exercise of the contempt jurisdiction.
However, it is not easy to reconcile Chapman v. Honig with Acrow (Automation) Ltd.
v. Rex Chainbelt Inc.
(where Chapman v. Honig was not cited).
Acrow Ltd. obtained an injunction to restrain an American company, S.I., from acting in breach of contract so as to impede Acrow's manufacture of machinery under licence from S.I.S.I. purported to ignore the injunction and instructed Rex Chainbelt, suppliers of components for Acrow's process, to cease supply.
This did not involve the breach of any subsisting contract between Acrow and Rex Chainbelt.
The Court of Appeal granted an injunction to restrain Rex Chainbelt from obeying S.I.
's instructions: Rex Chainbelt's conduct was interference by unlawful means because it was done in obedience to the orders of S.1. which were in contempt of court.
The case may be different from Chapman v. Honig in that the contempt involved was civil not criminal but it is not easy to see why this should point towards tortious liability.
Nor can any distinction be drawn on the basis that there were three persons involved whereas Chapman v. Honig was a ' two-party ' case, for a true ' three-party ' case only arises where A acts in a manner which is primarily unlawful in relation to B with the purpose of injuring C. In Acrow there was no B.
TRADE DISPUTES
A general textbook on the law of tort is no place for an extended discussion of the specialised law relating to trade disputes but those disputes have provided most of the ' raw material ' for the development of the common law and their legal regulation has been so substantially modified by statute since 1906 that some account of the legislative intervention is necessary.
Trade Disputes Acts 1906 and 1965
The Trade Disputes Act 1906 was of enormous importance but only the briefest summary of its provisions can be attempted here.
The Act:
(i)
made trade unions completely immune from actions in tort, though it did not affect liability of individuals;
(ii)
rendered ' conspiracy to injure ' (i.e.
without unlawful means) not actionable in the context of trade disputes;
(iii)
rendered inducement of breaches of contracts of employment not actionable in the context of trade disputes.
The Trade Disputes Act 1965 reversed Rookes v. Barnard in trade dispute cases by rendering not actionable a threat to break or induce the breach of a contract of employment.
Industrial Relations Act 1971
This Act set out to enlarge the range of civil remedies for wrongful acts done in contemplation or furtherance of ' industrial disputes, ' but through the new statutory concept of unfair industrial practices, not through the law of tort.
Some of these unfair industrial practices were similar to certain varieties of torts and the common law was not wholly abolished.
However, the Act was a disastrous failure for political reasons and was repealed by the Trade Union and Labour Relations Act 1974.
Trade Union and Labour Relations Act 1974
This Act still forms the basis of legal immunities in trade disputes, though most of the relevant provisions have in fact been inserted by textual amendment by later legislation.
Protection is granted, in the context of a trade dispute, to interference with contract (and not merely a contract of employment), to intimidation or conspiracy to injure and to interference with trade by unlawful means but by the Employment Act 1980 this protection was to a large extent withdrawn in case of ' secondary action. '
Present law
(1) Trade unions
It will have been observed that nearly all the cases in this chapter arising from industrial disputes have taken the form of actions against individual workers or trade union officials.
This is because for many years trade unions themselves were immune from actions in tort.
This was not based on the fact that a trade union was an unincorporated body, for in Taff Vale Railway Co.
v. Amalgamated Society of Railway Servants the House of Lords held that a union registered under the Trade Union Act 1871 was enough of a legal entity to be sued in tort.
The Taff Vale case was reversed by section 4 of the Trade Disputes Act 1906.
After a brief period during which a registered trade union was a corporate body under the Act of 1971, the Trade Union and Labour Relations Act 1974 restored the immunity, though liability was imposed (where there was no trade dispute) for certain torts causing personal injury or breaches of duty connected with the union's property.
It remains the law that a trade union is not, and is not to be treated as if it were, a body corporate, but a much wider measure of tort liability is now imposed by the Employment Act 1982.
The central difficulty is that of attributing responsibility to the ' centre ' in such a ' devolved ' organisation as the typical trade union, bearing in mind the likelihood that ' unofficial action ' will be taken at individual plant level without prior consultation with the union's central organs.
The fundamental proposition of the 1982 Act is that the immunity of trade unions in tort is totally abolished, though the union enjoys the same defences as an individual where action is taken in contemplation or furtherance of a trade dispute.
However, the range of the union's responsibility for the acts of its officers and members differs according to the nature of the claim which is brought against it.
According to section 15 of the 1982 Act, if the union is sued for inducing breach of or interfering with contract, or for intimidation by threats to interfere with contract, or for conspiracy to commit these torts, then the act in question shall be taken to have been done by the union only if it was authorised or endorsed by a ' responsible person, ' which means the principal executive committee, any person authorised by the rules to endorse acts of the kind in question, the president or general secretary, any other employed official, or any committee to which an employed official reports, but an act by an official or a committee to which he reports shall not be taken as authorised or endorsed if the official or committee was prevented from authorising or endorsing the act by union rules or if the act has been repudiated by the president or general secretary.
In all other cases it would seem that the union's responsibility for the acts of an individual are to be determined by the general law of master and servant or agency.
Where the union's liability arises in respect of personal injury caused by negligence, nuisance or breach of duty, or in respect of ownership or possession of property, there is no limit on its amount, but in other cases there are financial limits according to the size of the union.
However, damages are not recoverable by enforcement against ' protected property ' (which includes a political fund which is not available for financing strikes and provident benefits fund).
Actions for damages (as opposed to injunctions) have not so far figured largely in litigation against individuals caused by industrial action; the limits to union liability set by the 1982 Act are low in relation to the loss that may be suffered and the very large fines imposed for contempt by disobedience to injunctions have probably been a more powerful sanction.
(2) Liability of individuals
An individual (e.g.
a shop steward) is liable for unprivileged acts in the course of a trade dispute, whether or not a trade union is liable.
The extent of individual immunity in this context is found in section 13 of the Trade Union and Labour Relations Act 1974, as limited, in the case of ' secondary action ' by the Employment Act 1980.
Section 13 in its present form reads as follows:
' (1) An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on the ground only  (a) that it induces another person to break a contract or interferes or induces any other person to interfere with its performance; or (b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or to interfere with its performance.
(4) An agreement or combination by two or more persons to do or procure the doing of any act in contemplation or furtherance of a trade dispute shall not be actionable in tort if the act is one which, if done without any such agreement or combination, would not be actionable in tort. '
(a) Trade dispute.
In order to gain the protection of section 13, the act done by the defendant must be ' in contemplation or furtherance of a trade dispute. '
This concept, the so-called ' golden formula, ' is defined in section 29 of the Trade Union and Labour Relations Act 1974, as amended by the Employment Act 1982.
It means a dispute between workers and their employer which relates wholly or mainly to one or more of the following: terms and conditions (including physical conditions) of employment: engagement, non-engagement, termination or suspension of employment or of duties of employment; matters of discipline; membership or non-membership of a trade union; facilities for union officials; machinery for negotiation or consultation and other procedures, including recognition of unions.
However, by section 10 of the Employment Act 1988 the immunity is withdrawn where the reason or one of the reasons for which the act is done is the fact or belief that the employer is employing non-union labour.
Action in support of the ' closed shop, ' the source of many trade dispute cases, is no longer lawful.
A crucial amendment by the 1982 Act was the removal of section 29(4), which provided that a dispute to which a trade union was party should be treated as a dispute to which workers were parties.
For this reason, union officials can not claim the protection of section 13, if, as part of a wider dispute, they initiate industrial action against an employer who is in harmony with his workers.
If, however, some support for the union's policy can be mustered among the plaintiff employer's workers the range of matters covered by section 29 is very wide.
In B.B. C.
v. Hearn the defendants, in order to protest against apartheid, threatened to instruct the members of their union to commit breaches of contract in relation to broadcast by satellite to South Africa of the 1977 Cup Final.
In proceedings for an interlocutory injunction the Court of Appeal held it unlikely that there was a trade dispute, but Roskill L.J.
recognised that the situation might well have been different if, instead of the defendants simply threatening to ' black ' the broadcast they had gone to the B.B.C. and said ' We wish it to be established as part of our conditions of employment that we are not required to work on broadcasts to South Africa. '
This received the approval of Lord Diplock in N. W. L. Ltd.
v. Woods but it has since been remarked that a ' trade union can not turn a dispute which in reality has no connection with terms and conditions of employment into a dispute connected with terms and conditions of employment by insisting that the employer inserts appropriate terms into the contracts of employment into which he enters. '
An act is' in furtherance ' of a trade dispute when the doer genuinely believes it will assist the cause in support of which it is done: the House of Lords has emphatically rejected the addition of any requirement that the act be ' not too remote ' or ' reasonably likely to succeed. '
(b) Interference with subsisting contract and intimidation.
Section 13(1) protects the most obvious forms of trade union coercion, i.e.
inducing breaches of contract and threats to do so.
There would, for example, be no liability on facts such as those in Rookes v. Barnard if the threats had been made in support of a wage claim.
The protection is not confined to interference with contracts of employment but where the contract affected is not a contract of employment, there are restrictions on the use of ' secondary action. '
The word ' only ' is important, for the protection is thereby confined to cases in which the defendant commits no other, incidental tort to procure the breach of contract.
If, e.g.
he uses words amounting to defamation he is not protected.
(c) Conspiracy.
Section 13(4) removes' conspiracy to injure ' from the field of trade disputes because it involves an action which would not be actionable in tort if done without agreement or combination.
The scope of ' unlawful means' conspiracy is also restricted by the requirement that the act should be one which would be actionable in tort if done by one person.
Thus an agreement to break a contract may not be actionable.
An agreement to induce a breach of contract might be thought to fall outside this protection because inducement is a tort if committed by one person, but this is not so if the inducement is protected by section 13(1).
(d) Unlawful interference with trade.
This tort is not directly referred to in section 13, except in so far as the ' nominate ' torts above are species of which it is the genus.
Obviously it should not be possible to evade the statutory immunity by pleading the genus and relying on the species as unlawful means, but there would seem to be no statutory protection if the unlawful means take any other form such as nuisance or trespass.
A trade union or union official calling its members out on strike is therefore protected but it has been said to be arguable that an individual striker has no protection against a claim that he uses unlawful means when he withdraws his labour because this situation does not appear to fall within section 13(1).
(e) Secondary action.
The complex provisions of section 17 of the Employment Act 1980 restrict the scope of the section 13 immunity for secondary action. '
Nothing in section 13 is to prevent an act from being actionable in tort on a ground specified in section 13(1) where (a) the contract interfered with in respect of which the action is brought is not a contract of employment and (b) there has been secondary action which does not satisfy the requirements of section 17.
Secondary action is action interfering with a contract of employment in one of the ways specified in section 13(1) where the employer under that contract is not a party to the trade dispute.
Hence if, in pursuance of a trade dispute between A and C, A induces the employees of B, with whom C has a contract, to break their contracts of employment with a view to bringing about a breach of the contract between B and C the action is presumptively unlawful.
However, this is not the end of the matter for the scope of this withdrawal of immunity is limited by the remainder of section 17, which provides three routes through which secondary action may finally be held to be not unlawful.
The principal provision is section 17(3) which provides that secondary action is not unlawful it 
' (a) the purpose or principal purpose of the secondary action was directly to prevent or disrupt the supply during the dispute of goods or services between an employer who is a party to the dispute and the employer under the contract of employment to which the secondary action relates; and (b) the secondary action (together with any corresponding action relating to other contracts of employment with the same employer) was likely to achieve that purpose. '
This was considered by the House of Lords in Merkur Island Shipping Corporation.
v. Laughton where, it will be remembered, the I.T.F. union, in dispute with Merkur Island, a flag of convenience shipowner, induced tug-boat crews to refuse, in breach of their contracts of employment, to move Merkur Island's vessel, thereby interfering with the charter of the vessel to Leif Hoegh.
Having said that any removal of the immunity by section 17 enured for the benefit not only of the person against whom the secondary action was taken but also for that of the employer who was party to the trade dispute, Lord Diplock held that the action by I.T.F. was not protected.
Merkur Island were not parties to any contract for the supply of towage services, so it was not possible to say that the purpose of the action was to prevent the supply of services between an employer who was party to the dispute (Merkur Island) and the employer under the contract of employment to which the secondary action related (the tug owners).
Similar provisions are contained in the Act to govern secondary action aimed at disruption of supply between any person and an associated employer of the employer party to the dispute where the goods or services are in substitution for goods or services which but for the dispute would have fallen to be supplied to or by the employer who is party to the dispute.
(f) Picketing.
Picketing in various forms has shown itself to be one of the most effective forms of industrial action.
At common law it may be unlawful as amounting to a trespass to the highway, or a public or private nuisance, or as involving the inducement or procuring of a breach of contract.
However, under section 15 of the Trade Union and Labour Relations Act 1974 it is lawful for a person in contemplation or furtherance of a trade dispute to attend at or near his own place of work ' for the purpose only of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working. '
' Secondary action ' (e.g.
persuading a supplier's lorry driver not to deliver so as to disrupt a commercial contract) is protected if the attendance is lawful under the 1974 Act, but there is no protection for ' secondary picketing, ' i. e.
attendance at the premises of the employer's supplier or customer.
(g) Ballots.
Yet another basis for the removal of the immunity granted by the 1974 Act is to be found in Part II of the Trade Union Act 1984.
This requires action taken by a trade union to be supported by a majority in a secret ballot of all those reasonably expected to take part in the action, and in view of the practicalities of organising a ballot and the fact that advance approval of action is valid for only four weeks puts a serious constraint upon the taking of effective action even where that has overwhelming support.
Detailed modifications of the ballot procedure are to be found in sections 12 to 18 of the Employment Act 1988.
(h) Injunctions.
Where an employer is the victim of industrial action his primary purpose in embarking on litigation is usually (and this is likely to remain the case notwithstanding the extension of tort liability to trade unions) to get an injunction.
Since an injunction may be granted on an interlocutory basis pending trial (which may not take place for many months) and, in cases of great urgency, on an ex parte basis, it is clear that there is a possibility of the union side being robbed of the initiative in an industrial action.
To meet this point, section 17 of the Trade Union and Labour Relations Act 1974 contains two provisions.
First, where an application for an injunction is made ex parte and the defendant claims, or in the opinion of the court would be likely to claim, that he acted in contemplation or furtherance of a trade dispute, the court shall not grant the injunction unless satisfied that all steps which in the circumstances were reasonable have been taken with a view to securing that notice of the application and an opportunity of being heard with respect to the application have been given to him.
This reduces the risk of the defendants in a ' labour injunction ' case being taken unawares, but contains nothing about how the court should proceed when both parties are before it.
At the time when the 1974 Act was passed it was thought that the issue on an application for an interlocutory injunction was whether the plaintiff had established a prima facie case, but in American Cyanamid Ltd.
v. Ethicon Ltd.
the House of Lords held that the test was rather more favourable to the plaintiff, was there ' a serious question to be tried? '
To meet this development section 17(2) was inserted into the Act and provides that where an application is made for an interlocutory injunction and the party against whom it is sought claims that he acted in contemplation or furtherance of a trade dispute, the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that party's succeeding at the trial of the action in establishing the matter which would afford a defence under the Act.
Under the American Cyanamid decision the court must ask itself whether the plaintiff has shown (a) a serious question to be tried and (b) that the ' balance of convenience ' is in his favour.
It is not very clear whether section 17(2) adds a third element or is subsumed in (b), but it is clear that it was intended to be more difficult to obtain an interlocutory injunction in trade dispute cases than in others.
If the affidavits suggest that it is more likely than not that the defendant would succeed in establishing a statutory immunity that is a weighty factor in favour of refusing to grant an injunction.
It has been suggested that now that unions (and not merely officials) may in certain circumstances be liable in damages for unlawful industrial action it is more likely that an employer will pursue his claim to a full trial and there is less reason to refuse an interlocutory injunction in trade dispute cases; but it has also been said that the ' right to strike ' is a valuable (indeed essential) element in the system of collective bargaining and that it ' should not be rendered less valuable than Parliament intended by too fanciful or ingenious a view of what might develop into a serious issue to be tried. '
