Tort Law Lectures - Lecture notes all PDF

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Tort Law Outline 1 Introduction To Tort and Why Sue? Tresspass to the Person Negligence and the Duty of Care Negligence- Fault and Breach Negligence Causation Negligent Psychiatric Harm Occupiers’ Liability Land Torts Introduction To Tort and Why Sue?DEFINING tort 2Oxford English Dictionary •A wrong...

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Tort Law Outline

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1) Introduction To Tort and Why Sue? 2) Tresspass to the Person 3) Negligence and the Duty of Care 4) Negligence- Fault and Breach 5) Negligence Causation 6) Negligent Psychiatric Harm 7) Occupiers’ Liability 8) Land Torts

Introduction To Tort and Why Sue? DEFINING tort

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Oxford English Dictionary •A wrongful act or an infringement of a right (other than under contract) leading to legal liability Origin •Middle English (in the general sense 'wrong, injury'): from Old French, from medieval Latin tortum ‘wrong, injustice'

What is a Tort?

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‘Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages.’* Winfield, Province of the Law of Tort (1931). A ‘tort’ is a civil wrong for which the law provides a remedy. At its simplest form, the law of tort is the law of non-criminal wrongs. The plural wrongs here is deliberate. Some wrongs include: tort of negligence, trespass to land, assault, battery etc. Some are less familiar- such as the tort of nuisance, which protects an individual’s use and enjoyment of their land or those names after the case which they stem from.

Who Brings a claim in tort?

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Whilst tort has some similarities with criminal law (obligations are fixed by law) tort is part of English civil law (other examples are contract law and land law). The civil courts (County Court or High Court at first instance) provide a venue in which disputes can be adjudicated, but it is up to the claimant to bring the claim – there is no equivalent to the state funded police (to investigate) and Crown Prosecution Service in civil law. The parties have to do everything for themselves and, if they retain lawyers to assist them, this can be extremely expensive. Most tort claims do not reach trial stage but are settled by means of negotiation between the parties/their lawyers.

Tort Claims in Court

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Which courts? !Civil Courts, which are County ! Court & High ! Court !Appeal to! Court of Appeal (Civil Division) & Supreme ! Court !Most of the cases considered in the academic study of tort are Court of Appeal or Supreme Court (previously House of Lords) decisions. Most actual claims are settled out of court. Of those which do reach court, most go no higher than first instance, i.e. county court or High Court.

Why sue in tort? OR why NOT to sue in tort?

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Yes I should sue to get: 1. A ! n award of damages – monetary compensation intended to place the claimant in a position equivalent to the tort never having occurred (contrast with contract damages) 2. !Another remedy – e.g. an injunction 3. !Other reasons, e.g. ‘day in court’. The reality of time and expense. Disincentives to sue: 1. C ! ost – Legal costs on average can be anywhere between 50% and 175% of the value of the claim (e.g. Report of the Review on Civil Justice 1988) 2. !Stress and delay – tort claims can take many months to a few years to reach resolution. 3. Most claims do not reach court.

Tresspass to the Person What is a trespass to the person?

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Intentional infliction of harm by ‘indirect means’ under the rule in Wilkinson v Downton [1897] 2 QB 57 An injury inflicted deliberately (e.g. setting a trap) will be a trespass to the person, but an injury resulting from carelessness (e.g. accidentally letting someone fall down a manhole) will be negligence- do not confuse the two. Most notably an assault, battery and false imprisonment involve intentional acts (not omissions), and are actionable per se, i.e. without needing proof of loss or damage (although the more damage that is proved, the more compensation that will be available).

Assault and Battery

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Goff LJ in Collins v Wilcock [1984] ‘An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person: a battery is the actual infliction of unlawful force on another person.’

What is an Assault?

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Goff LJ in Collins v Wilcock [1984] ‘An assault is an act which causes another person to apprehend the infliction of immediate, unlawfu force on his person: ’ Claimant reasonably apprehend the direct and immediate application of force—> Stephen v Myers & Thomas v NUM [1986] What threats constitute an assault? —> Mead’s and Belt’s case (1823) (‘no words or singing are equivalent to an assault’) R v Burstow [1998] ( held that silent telephone calls may constitute an assault) Tuberville v Sauvage (1669) ( words accompanying a menacing gesture negative the infringement)

What is Battery?

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The direct and intentional application of force by the defendant to the claimant without legal justification. —> Fargon v MPC Therefore, there must be direct, intention and an application of force which had a lack of consent. Force—> Pursell v Horn (1838) R v Cotesworth (1704) held that any physical contact, is battery, does not require to be physical harm and or personal contact. ANY physical contact. Must be direct —> Scott v Shepherd (1773) Intention is required as to contact NOT as to harm: Wilson v Pringle (1987) EXCEPTIONS TO BATTERY: - reasonable punishment of children - lawful exercise of the power of arrest - reasonable force used in self-defense - implied consent/ ‘physical contact which is generally acceptable in the ordinary conduct of daily life’

Is all touching battery?

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Tort of battery has a wide definition, therefore it is necessary to distinguish batter from legally unobjectionable conduct. Courts have attempted to exclude from the scope of tort touching which occurs in everyday situations. Collins v Wilcock (1984) FACTS: A police woman took hold of a woman's arm to stop her walking off when she was questioning her. The woman scratched the police woman and was charged with assaulting a police officer in the course of her duty. DECISION: The police woman's actions amounted to a battery. The defendant's action was therefore in self-defense and her conviction was quashed. Goff LJ stated that implied consent existed where there was jostling in crowded places, handshakes, back slapping, tapping to gain attention provided no more force was used than is reasonably necessary in the circumstances. There was no consent given for the grabbing of the arm. IMPORTANCE: Principle - every person’s body is inviolate, the touching of another, however slight may amount to a battery.

False Imprisonment

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False imprisonment : “An act by the defendant which directly and intentionally causes the complete restriction of the claimant’s freedom without lawful justification. *note: that you need not know that you are being falsely imprisoned at the time.” The wrong concerned is the deprivation or removal of the individual’s freedom of movement. That means we must find the intention, in the sense of purpose and the foreseeing that their action may have the relevant consequences. WE must establish that the defendant intended the consequences of the conduct that constitutes the tort. Intentional infliction of bodily restraint which is not expressly or impliedly authorised by law.

False Imprisonment (2)

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Complete Restraint within defined bounds: Bird v Jones: Partial obstruction is not the same as total obstruction and detention. False imprisonment must involve boundaries that cannot be crossed. Jones (Defendant) prohibited Bird (Plaintiff) from moving in the direction he wished to go. Plaintiff was free to remain where he was, o move in any other direction but the one direction obstructed by Defendant. Plaintiff sued Defendant for false imprisonment. Hicks v Young: The Defendant drove away from the Claimant's home with the Claimant in the back when he had no right to do so. This caused the Claimant to try to escape and he did so making a serious error of judgment about the level of risk to himself in jumping out of a taxi at 20mph. The Claimant says he is entitled to recover in full despite his folly, and the Defendant says he should have to pay nothing despite his deliberate wrong doing. Austin and another v Commissioner of Police of the Metropolis: Whether there is a deprivation of liberty, as opposed to a restriction of movement, is a matter of degree and intensity. Account must be taken of a whole range of factors, including the specific situation of the individual and the context in which the restriction of liberty occurs. the court should adopt a pragmatic approach takin account of all the circumstances. Crowd control measures resorted to for public order and public safety reasons had to take account of the rights of the individuals and the interests of the community. Such measures fell outside the ambit of Article 5 provided that they were not arbitrary i that they were resorted to in good faith, were proportionate and enforced for no longer than was reasonably necessary. They constituted a restriction of liberty, not a deprivation of it. The police had been engaged in an unusually difficult exercise of crowd control which had as its aim the avoidance of personal injuries and damage to property and the dispersal as quickly as possible of a crowd bent on violence and impeding the police. The police had acted reasonably and properly to prevent serious disorder and violence. The restriction of the claimants’ liberty had not been an arbitrary deprivation of liberty and Article 5 was not applicable.

Defences to Trespass to the Person

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DEFENCE: Lawful arrest •A person who uses reasonable force in effecting a lawful arrest does not commit a battery Person who uses reasonable force in resisting an unlawful arrest will not be liable in battery. •Thus, the lawfulness of arrest can be of importance in determining whether an act amounts to false imprisonment or battery, as in Collins v Wilcock. DEFENCE: self- defence •Use of reasonable force in the defence self and of others -

use of force must be necessary

- amount of force used must be reasonable Cross v Kirkby [2000]

Assault, Battery and False Imprisonment

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Commissioner of Police for the Metropolis v ZH [2013] Claimant, 16 years old, severely autistic, visiting swimming baths, fixated by water, stood by poolside, after 30 minutes police called. Police approached, touched him, claimant jumped into pool, removed by lifeguards and police, restrained by side of pool, handcuffs, leg restraints applied, detained in police van for 25 minutes Assault, battery, false imprisonment? Statutory defence under Mental Capacity Act 2005 s 5 failed One scenario can give rise to more than one trespass tort. He suffered assault, battery and false imprisonment. Was a breach of article 3- the right to be protected from inhuman treatment. Article 5 and article 8 also breached.

Rule in Wilkinson v Downton

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Wilkinson v Downton [1897] A patron of Mr WIlkinson’s pub falsely informed Mrs WIlkinson that Mr Wilkinson had suffered severe physcial injury, and that see should go and see him immediately. Mrs Wilkinson suffered severe mental injury as a result of this news. Recover was ALLOWED. Although the law on battery and assault did not apply, the tort of intentional infliction of mental shock was established with 3 conditions which must be satisfied 1. There must be extreme conduct 2. The must be an intent to cause psychological harm 3. Mental injury must result from the conduct Approved/followed by CA in Janvier v Sweeney [1919] Khorasandjian v Bush [1993], CA injunction preventing Def from ‘harassing, pestering or communicating with cl’

Wainwright and another v Home Office [2003]

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The claimants were strip-searched for drugs on a prison visit. At trial, the judge found trespass against the person in relation to both claimants consisting of wilfully causing a person to do something to himself which infringed his privacy. The defendant appealed against the finding of trespass and was successful in the Court of Appeal. Lord Hoffmann recognised that the concept of privacy underpins the common law of breach of confidence which was significantly developed in Campbell v MGN Ltd [2003] QB 633 but did not recognise a tort of invasion of privacy. The Court did not consider that there was anything in the jurisprudence of the European Court of Human Rights which required some high-level principle of privacy. Furthermore, this case was decided immediately prior to the Human Rights Act 1998 and the Court noted that the coming into force of that Act weakened the argument that a general tort of invasion of privacy at common law is needed to fill gaps in existing remedies

Wainwright and another v Home Office [2003] (2)

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'If, … , one is going to draw a principled distinction which justifies abandoning the rule that damage for mere distress are not recoverable, imputed intention will not do. The defendant must have acte in a way which he knew to be unjustifiable and intended to cause harm or at least acted without caring whether he caused harm or not. Lord Woolf … might have been inclined to accept such a principle. But the facts did not support a claim on this basis.' [para 45] 'In my opinion, therefore, the claimants can build nothing on Wilkinson v Downton [1897] 2 QB 57. does not provide a remedy for distress which does not amount to recognized psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established.' [para 47]

James Rhodes v OPO and another [2015] UKSC 32

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Current Case law FACTS: James Rhodes' memoir is an account of the physical and sexual abuse he suffered as a young boy and his subsequent battles with drink, drugs and his own mental health. In February 2014 a draft of the book was leaked to Rhodes' ex-wife who, in June 2014, sought an injunction on behalf of their son that would delete a large number of passages or prohibit publication entirely. The son has been diagnosed with Asperger’s syndrome, attention deficit hyperactivity order, dyspraxia and dysgraphia and evidence was adduced that publication in the present form would cause severe emotional distress and psychological harm. DECISION: High Court rejected injunction. Court of Appeal granted injunction. Supreme Court reversed decision. The Supreme Court held that the tort under Wilkinson v Downton consists of three elements: Conduct: words or conduct, directed to the claimant, for which there is no justification or reasonable excuse [74] Mental: defendant intended to cause physical harm or severe distress which in facts results in physical harm/recognisable psychiatric illness [83] Consequences: physical harm or recognised psychiatric illness [73]

ABC v WH and William Whillock [2015]

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ABC v WH and William Whillock [2015] This tort of intentional infliction of harm in its reformulation has three elements: (a) the conduct element: Def acted unjustifiably to Cl by emotionally manipulating her and encouraging her to send indecent images of herself to him and engaging in sexual banter in the texts. (b) the mental element: actions whose “consequences or potential consequences are so obvious the perpetrator cannot realistically say that those consequences were unintended”. (c) the consequence element: established the cl suffered from an adjustment disorder after the disclosure with an acute exacerbation of her mental health problems when the abuse became public.

Protection from Harassment Act 1997

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•s 3 provides civil remedies creating a statutory tort of harassment •Committed when def enters into ‘a course of conduct which amounts to harassment which def knows or ought to know amounts to harassment', s 1(1); requires at least 2 occasions s 7(3)(a) •OR def pursues a course of conduct harassing two or more persons by which he intends to persuade any person not to do something he is entitled or required to do or to do something he is not under an obligation to do s 1(1A); requires conduct on at least one occasion in relation to each person s 7(3)(b)

Protection from Harassment Act 1997 (2)

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Objective test i.e. Defendant ought to know amounts to harassment if a reasonable person in d's position would think the course of conduct amounted to harassment s 1(2) •Roberts v Bank of Scotland [2013]: bank repeated called Mrs. Roberts, even after she advised them she did not want to be called. SC held that this was harassment. They had a right to call but not to be abusive. Over 547 calls were made. Mrs. Roberts received 7,500 in damages. •Levi v Bates [2015]: In the court’s view it was not a requirement of the statutory tort that the claimant be a target of the perpetrator’s conduct. The value of targeting as a concept was that it excluded behaviour which, however alarming or distressing, was not aimed at or directed at anyone. Used against protestors: Huntingdon Life Services v Stop Huntingdon Animal Cruelty & Others [2003] Against harassment at work: Majrowski v Guy’s and St Thomas’s NHS Trust [2005]

Negligence and the Duty of Care History of Negligence in Tort Law

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Winfield –a major authority in Tort - examined the history of negligence (Winfield (1926) The History Of Negligence In The Law Of Torts 42 Law Quarterly Review, 184-201) …. Winfield concludes that: "a fair amount of negligence in the sense of doing what a reasonable man would not do, or not doing what he would do, was covered by mediaeval law". By the 19th-century the idea of negligence as an independent tort begins to take shape - reflecting the rise of industry and urban living Negligence becomes a dynamic tort reflecting also the ever-changing societal policy considerations

General Negligence

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Defintion: “The breach of a legal duty to take care which results in damage, undesired by the defendant to the claimant.” Winfield. General Principle: “Negligence in the air will not do; negligence, in order to give a cause of action, must be the neglec of some duty owed to the person who makes the claim” Haynes v Harwood [1935] (Greer LJ) Importance of Negligence in tort law? The tort of negligence plays a central role in the law of tort for two reasons: (i) It is by far the most important tort in practice; (ii)The ideas and principles of negligence have influenced the interpretation of other torts. It is important because there are so many negligence situations that can occur in today’s society. Trespass to a person would only happen in a small scope. It is a specific set of circumstances. Negligence is NOT like that. It has grown in a substantial way.

The elements of the tort of negligence

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Winfield also uses the definition “the breach of a legal duty to take care by an inadvertent act or omission that injures another”. His threefold presentation remains the mainstay of most tort textbooks. Thus, in order to establish a successful claim in the tort of negligence there needs to be: 1) a legal duty by the defendant to the claimant to take care 2) a breach of this duty by the defendant and 3) damage to the claimant, caused by the breach, which is not considered by the courts to be too remote. Remember, the defendant may be able to raise a defence which may either defeat the claim entirely or reduce the amount of damages paid. Each element of the claim is necessary but not sufficient, in order to establish liability. Without a recognized legal duty of care, no liability will attach to event he most extreme acts of negligence. Also, where two or more parties act tougher in pursuit of a common design or plan and cause the same damage, each with be jointly and severally liable. This means that the claimant may choose to sue each party se...