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TORT LAW – LW5003 WHAT IS TORT? ‘Tortious liability arises from the breach of a duty primarily fixed by law: this duty is towards persons generally and its breach is redressible by action for unliquidated damages’ (WINFIELD AND JOLCOWICZ on Tort (2010) p.6)

‘A civil wrong… for which the law provides a remedy to the injured party’ (HORSEY AND RACKLEY, ‘Tort Law’ (2011) p.2)

1. Trespass to the person 2. Negligence: the duty of care 3. Breach of duty 4. Causation and remoteness 5. Defences in negligence 6. Negligently inflicted Psychiatric Injury 7. Employers’ liability 8. Vicarious liability 9. Trespass to land 10. Occupiers’ liability 11. Nuisance 12. Remedies TRESPASS TO THE PERSON We all have right to not to be interfered with personally. 3 torts: -

Assault Battery False imprisonment

ASSAULT COLLINS V WILCOCK – ‘an act which causes another person to apprehend the infliction of immediate unlawful force on his person’ – Lord Goff LJ Also has to be intentional, voluntary, positive, reasonable and direct. So: the act need to be intentional, voluntary and positive. The apprehension of force needs to be reasonable. And the force must also be direct. BATTERY COLLINS V WILCOCK gave a definition.

WINFIELD AND JOLOWICZ on Tort (18th edition, 2010) – ‘the intentional and direct application of force on another person’ The act also has to be a voluntary act and the force needs to be unlawful, immediate and direct. FALSE IMPRISONMENT WINFIELD AND JOLOWICZ – ‘the infliction of bodily restraint which is not expressly or impliedly authorised by the law’ Also needs to be an intentional positive act which causes the infliction, and the restraint must constrain freedom of movement to a particular place. COLLINS V WILCOCK also have a definition. Everyone has the right not to have these rights infringed and so if they have been they may be entitled to a remedy. They can be given a remedy possibly in damages, or simply proving that they are right and the other person is wrong may be enough for them. The aims of these torts: - Compensation - Vindication Remedies are mainly in damages. To prove compensation, you generally have to prove that you have suffered some form of harm/loss or injury BUT this is not the case in trespass to the person. The law attaches such importance to our rights that if your right has been infringed then you have suffered damage – so you don’t need to prove harm. SLATER V SWANN.

Tort is different to criminal law. Burden of proof Standard of proof

Who decides facts? Who decides the law Which court? Procedures Funding

Legal costs

Criminal law On the prosecution Beyond reasonable doubt

Magistrates or jury Magistrates or Crown Magistrates or Crown Criminal Procedure Rules Legal aid may be available to the accused; state funds prosecution Usually each side bears own

Tort law On the claimant On the balance of probabilities – HALFORD V BROOKES. Jury (civil) Judge (civil) County court of High court Civil Procedure Rules Parties responsible for costs of pursuing/defending claims Usually ‘loser’ pays most of winner’s costs

Remedies

Overcome overlap?

Custodial sentences, community penalties, fines (payable to state), victim compensation orders, restraining orders s.42-45 OAPA 1861

Damages (compensation); injunctions

Tort law is trying to give a remedy to the person who has been wronged, whereas criminal law is about punishing the wrongdoer. ELEMENTS COMMON TO THE TORTS 1. 2. 3. 4. 5. 6.

INTENTION ACT (rather than omission) FORCE IMMEDIATE/DIRECT UNLAWFULNESS ACTIONABLE per se

DUNNAGE V RANDALL – the act must be a voluntary act. Someone has the ability to control their actions – someone voluntarily doing something. Facts – a mentally ill man went to his nephew’s house. He set himself alight, killing himself and causing serious harm to his nephew. The COA looked at cases on mental incapacity and insanity. As long as someone is doing something voluntarily then it doesn’t matter why they are doing it. INTENTION D must intend to do the act in the tort: -

ASSAULT – to cause C reasonably to apprehend the immediate infliction of direct unlawful force BATTERY – to apply direct unlawful force to C FALSE IMPRISONMENT – to constrain C’s freedom of movement to a particular place

LETANG V COOPER - D does not need to intend the consequences of the act. All you need to do is what the tort prohibits – e.g. for battery you need to apply force. Facts – claimant was sunbathing outside on a piece of land which was a car park. The defendant reversed over her legs with his car causing her serious injury. She missed the 3year limitation period for her to claim under negligence, so she tried to claim under trespass to the person. The court held that the act was not intentional and so they couldn’t claim under trespass to the person. If someone does something accidentally or carelessly then they are not doing it intentionally so there is no trespass to the person.

Is recklessness enough? -

Foresight of the likely consequences is not enough. Subjective recklessness is probably enough to meet the requirement of intent – IQBAL V PRISON OFFICERS ASSOCIATION If D realises that the consequences of his act would be that C would be the victim of a tort and carries on with that act… regardless of the likely consequence then that will amount to the intention requirement being met – IQBAL.

Facts – Mr Iqbal was a serving prisoner. As part of his normal daily routine he was allowed out of his cell for recreation for a certain amount of time per day. The POA decided there was going to be a dispute with the home secretary and the POA decided that prison officers wouldn’t go into work one day. The prison governor decided to keep all prisoners in their cells that day as he was on his own. Iqbal tried to claim against the POA because they led to the situation which led to him being kept in his cell for longer than they should have been. The POA having industrial action was not intent directed at Mr Iqbal, it was directed at the home secretary and so he couldn’t claim intention was there. His argument was that they had acted recklessly – they knew if they didn’t go into work then the prisoners would stay locked in their cells. He argued that this was sufficient recklessness for false imprisonment. He eventually lost his case. 1. Is there an intention to do the tort? 2. Has someone been subjectively reckless – knows the risk of the consequences but takes the risk anyway Relevance of motive FAGAN V METROPOLITON POLICE COMMISSIONER - D’s reason for doing the act is irrelevant. Facts- drove over a police officers foot then refused to move. If your doing something torturous then your motivation is irrelevant – someone might have a good intention but it doesn’t matter. F V WEST BERKSHIRE HEALTH AUTHORITY – ‘a prank that gets out of hand; an over-friendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that the patient consented to it – all these things may transcend the boundaries of lawfulness, without being characterised as hostile’ Facts – involved the compulsory sterilisation of a girl with limited mental capacity. They said it was in her best interests as she would not be able to cope with the consequences of being pregnant. Pranks that get out of hand can be a tort even if it is not intended to cause any harm. WILLIAMS V HUMPHREY – pushed into a pool – was a prank but caused harm and so was a tort.

R V CHIEF CONSTABLE OF DEVON AND CORNWALL, EX PARTE CENTRAL ELECTRICITY GENERATING BOARD – ‘an unwanted kiss may be a battery although the D’s intention may be most amicable’ NASH V SHEEN – went in for a hair rinse and the hairdresser thinks a different one would be better so does that one instead – this is a battery. She had a good motive but it doesn’t matter. POSITIVE ACT IQBAL V PRISON OFFICER ASSOCIATION – ‘defendants are not to be held liable in tort for results of their inaction, in the absence of a specific duty to act, a duty which would normally arise out of the particular relationship between the claimant and the defendant’. ^ can only have liability for a failure to act if there is a specific duty to act. If there is no duty to act then you cannot have liability for a failure to act. There is a fundamental difference between an act and an omission – e.g. there is a difference between locking someone in a room or failing to unlock an already locked room which someone is in. INNES V WYLIE – a pure omission is not enough. REYNOLD V CLARKE – throwing a log at someone is a positive act. Failing to move a log away from someone as they walk towards it is an omission and is not enough for trespass to the person. FORCE F V WEST BERKSHIRE HEALTH AUTHORITY – ‘any touching of another’s body is, in the absence of a lawful excuse, capable of amounting to a battery’. Doesn’t actually require any damage – for a battery, any touching is enough. WILLIAMS V HUMPHREY – practical joke of pushing into the pool. R V CHIEF CONSTABLE OF DEVON AND CORNWALL, EX PARTE CENTRAL ELECTRICITY GENERATING BOARD – ‘an unwanted kiss may be a battery although the defendant’s intention may be most amicable’. NASH V SHEEN – hair rinse gone wrong. The degree of force may be relevant to the basis for calculating any damages. Can the transmission of sound, light and glitter be force?

IMMEDIACY/DIRECTNESS There is a difference between something which is done directly and indirectly. REYNOLDS V CLARKE – it would be a direct act to throw a log at someone. But it would be an indirect act to just not move the log they are walking towards. Criminal law does not need the directness. DPP V K – a boy who took sulphuric acid from his science lesson and hid it in the hand dryer in the toilet. The next boy who used it was then blasted in the face with acid causing damage. Traditional tort law – not sufficiently direct or immediate because there was a delay between the act and the force. Criminal law – held to be sufficiently direct for there to be a battery. HAYSTEAD V CHIEF CONSTABLE OF DERBYSHIRE – woman was holding a baby and a man punched the woman and she dropped the baby. The court had to decide whether the man had battered the baby even though there was no direct contact between the man and the baby. The mother was the victim of a battery and it was held it was sufficiently direct and he had battered the baby too. BOTH CASES show a movement towards a more relaxed approach in criminal law. Traditionally tort law wants directness which is strict whereas criminal law doesn’t. If there is a delay between what they so and the force then you need to decide whether it was sufficiently direct. Identify the tort approach and the criminal approach and say the criminal law might be the better route. Exceptions: SCOTT V SHEPHERD – contact via a third party can be sufficiently direct. In the right tort case the law has always been able to apply directness flexibly. Facts – a lit firework was being thrown around from person to person in a market. The person who it exploded in front of sued the person who threw it into the market in the first place. PURSELL V HORN – contact through clothing is sufficiently direct and is enough to be a battery. IQBAL V PRISON OFFICERS ASSOCIATION – if there is an intervening act between D’s conduct and the effect on C, this may break the chain of causation and lead to D’s act not being sufficiently direct. Facts – what kept the prisoners locked in their cells wasn’t the fault of the prison officers, it was the fault of the government.

UNLAWFULNESS FREEMAN V HOME OFFICE NO.2 - D has the burden of proving that the interference is unlawful. C has to prove that all the core concepts of the tort are met. But D has to prove whether the act is lawful – if they can prove they have lawful authority then there is no tort. Burden is on the balance of probabilities. Contact in everyday life How do we deal with this? The law doesn’t regard every incident of physical contact as a tort because that would be ridiculous. There are 2 approaches: 1. Implied consent – you consent to things in everyday life which could be a battery, you expect people to occasionally bump into you or push passed you Because this is a defence, it is for the D to prove. Because it is implied, there is always a question mark about what is implied. 2. Hostility Implied consent COLLINS V WILCOCK – Lord Goff – ‘generally speaking consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship or even if his back, is within reason, slapped’. Problem = how far is ‘in reason’. COLLINS V WILCOCK – ‘most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all those who move in society and so expose themselves to the risk of bodily contact… this is a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life’. Hostility WILSON V PRINGLE – ‘touching must be proved to be a hostile touching... hostility cannot be equated with ill-will or malevolence’. Facts – 2 boys at school. D tugs on the bag of C and pulls that boy to the floor. He sustains a nasty leg injury and sues the D. Has there been an intentional act? Yes. Was it voluntary? Yes. Was there an application of force?

Yes. Is it direct? Yes. What troubled the court was that if they allowed this claim to continue then they would get a lot of other claims from similar incidents. COA came up with another element to prove – that was that D had acted with hostility. It was just answered by the COA and hasn’t been overruled. The general rule is that motive is not relevant. Is the COA coming up with some motive element to trespass the person. But the COA did not go on to define that hostility was – they left this important question undecided. F V WEST BERKSHIRE HEALTH AUTHORITY – sterilisation of a woman who had no mental capacity – there was no implied consent in this case. Would the doctors be acting hostile by doing this operation if it was in her best interests? Lord Goff - ‘I respectfully doubt whether touching may be hostile. A prank that gets out of hand; an over friendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that the patient consented to it – all these things may transcend the boundaries of lawfulness, without being characterised as hostile’. FLINT V TITTENSOR – happened in a McDonalds car park late at night. The D thought that another gentlemen was being inappropriate with a lady who he had an affection. There was an altercation – C banged on his car and then D drove into him to push him off the bonnet and he sustained injuries. Has there been a battery? ‘the element of hostility is generally required to distinguish uninvited physical touching which is acceptable in law from uninvited physical touching which is not’.

Is the force ordinarily expected in everyday life

There is no assault/battery [Collins v Wilcock; F.]

There may be an assault D. does an which potentially amounts to an assault/battery Has D. acted with ‘hostility’? [define ‘hostility’]

There may be an assault [Wilson v Pringle] There is no assault/battery [Wilson v Pringle]

ACTIONABLE per se Trespass to the person is actionable without proof of any damage/harm SLATER V SWANN - C does not need to prove any damage But – the more damages that C can prove, the more damages are likely to be awarded.

TRESPASS TO THE PERSON – ASSAULT, BATTERY AND FALSE IMPRISONMENT ASSAULT ‘An act which cause another person to apprehend the infliction of immediate unlawful force on his person’ COLLINS V WILCOCK - Must also be intentional, voluntary, positive, reasonable and direct. GESTURES - READ V COKER – a gesture took away the threat. WORDS – R V WILSON – singing, chanting etc. are capable to becoming an assault SILENCE – R V IRELAND – context is everything but silence can amount to an assault. He made silent telephone calls which amounted to an assault. Has D committed an act voluntarily? – DUNNAGE V RANDALL. R V IRELAND: Lord Steyn – ‘a thing said is a thing done. There is no reason why something said should be incapable of causing apprehension of immediate personal violence e.g. a man accosting a woman in a dark alley and saying come with me or ill stab you’. Lord Hope – ‘silent telephone calls of this nature are just as capable as words or gestures, said or made in the presence of the victim, of causing an apprehension of immediate and unlawful violence’. Did D have the necessary intention to do an act which causes C reasonably to believe that immediate, direct, unlawful force is about to be applied to them. LETANG V COOPER. Remember: - Subjective recklessness is sufficient – IQBAL V PRISON OFFICERS ASSOCIATION - D doesn’t need to intend specific consequences – LETANG V COOPER - D’s motive is irrelevant – F V WEST BERKSHIRE HEALTH AUTHORITY Did the act actually cause C to believe that he would have immediate, direct, unlawful force applied? – BLAKE V BARNARD If there is no actual belief, then there is no assault. Was C’s belief reasonable? Consider: - The natural interpretation of the act in context and look at what a reasonable person in those circumstances would think - Are there any negating words – TUBERVILLE V SAVAGE – ‘if it were not assize time I would not take such language from you’ – this made C’s belief unreasonable.

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Are there any negating gestures? READ V COKER – ;if a man comes into a room, and lays his cane on the table, and says to another if you don’t go out I will knock you on the head, would there not be an assault? – clearly not: it is a mere threat, unaccompanied by any gesture or action towards carrying it into effect’ – this made C’s belief unreasonable.

Was there sufficient immediacy? Consider whether there is any: - Delay – THOMAS V NATIONAL UNION OF MINORS (SOUTH WALES AREA) – striking minors – some were on strike, some were not. Those that were, were held back by police. Those that weren’t had a police escort and were on a bus. Striking minors couldn’t carry out that threat immediately, they would have to break the police line holding them back, break the police escort and get on to the bus – so there was a delay - Conditional words used to remove immediacy/give C a legitimate choice but not an illegitimate choice – R V IRELAND – ‘ an man accosting a woman in a dark alley and saying come with me or I’ll stab you’ – this was not a legitimate choice. - Immediacy established by context – R V IRELAND – can a silent phone call amount to the belief that ‘ill be at your door in a minute or two’. Was the act one which C could reasonably have expected in the course of everyday life? – COLLINS V WILCOCK Is hostility needed? (Yes – WILSON V PRINGLE and F V WEST BERKSHIRE HEALTH AUTHORITY) If it is needed, is it present? BATTERY WINFIELD AND JOLOWICZ on Tort – ‘the intentional and direct application of force on another person’. Also needs to be voluntary, immediate, direct and unlawful. -

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Did D have the necessary intention? Intention to do the act – LETANG V COOPER Subjective recklessness – IQBAL V PRISON OFFICERS ASSOCIATION Doesn’t need to intent the consequences – LETANG V COOPER Motive is irrelevant – F V WEST BERKSHIRE HEALTH AUTHORITY Has D applied force? Slightest contact is sufficient – F V WEST BERKSHIRE HEALTH AUTHORITY

Battery – ‘transferred intent’ -

Remember the principle of transferred intent for battery: LIVINGSTONE V MINISTRY OF DEFENCE A intends to hit B but misses and hits C ‘if one or two persons fighting unintentionally strikes a third, he is answerable in action for an assault and the absence of int...