Torts Notes, Year 1 - Professor Ronald P Blue PDF

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Summary

TRESPASS TO PERSON 11/26/
negligence
ASSAULT& BATTERY

Damage is not an essential element.

Common elements: Intention to act:  Letang v. Cooper:Intention is an essential element of trespassto person.  Fowler v:No CoA for trespass to person if intent is notestablished.

Elements...

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TRESPASS TO PERSON  

negligence ASSAULT& BATTERY

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Damage is not an essential element.

11/26/2014

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Common elements: 1. Intention to act:  Letang v. Cooper:Intention is an essential element of trespass to person.  Fowler v.Lanning:No CoA for trespass to person if intent is not established.  

Elements of Assault: 2. Attempt or threat to do corporeal harm in the form of words/actions/gestures (not actual contact):  Allen v. Hannaford:Assault depends on the apprehensions created in the mind of the P and not the intentions of D. 

Every threat is not an assault – not mere words, gestures must accompany them to constitute a threat.

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Imminent threat: actual not potential threat. Extra-sensitive P: only D knew of his sensitivity and used it to threaten him. 3. Apparent present ability to do the act. Elements of Battery: 1. Intention to cause physical contact and not damage.

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Transferred intent: Individual who suffers contact need not be the person whom the D intended to harm. 2. Direct/indirect application of force (by the body or an object). 3. Harmful/offensive physical contact (not damage)  Cole v. Turner: o Lightest angry touch constitutes battery. o Forceful, reckless touch in close quarters is battery. o Gentle touch in close quarters with no intention is not battery. 

Vosburg v. Putney: o D is liable for all injuries resulting directly from wrongful act, whether or not they were foreseen.

Additional Info:

 Battery includes assault.  Separate offense for assault – rationale: To protect people’s mental peace – imagine a world where you are disallowed to beat people but allowed to threaten them.

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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

1. Intention to cause calculated harm: Wilkinson v. Downton  Not that D intended the harm, but rather he did an act whose 

natural consequence (on reasonable person) was the harm. Likelihood of harm arising from behaviour + deliberate engaging

in such behaviour = D is taken to have meant to cause the harm. 2. Extreme outrageousness of D’s conduct.

3. Consequential injury – emotional.

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FALSE IMPRISONMENT

1. Total restraint of liberty – restriction of P’s freedom of movement (not harmful or offensive)  Actual: enclosed somewhere  Constructive: made to move in one direction 2. Unlawful detention:  Murray v. Ministry of Defense: o Period of detention is immaterial – she was falsely

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imprisoned for half an hour. o Not being informed of arrest amounts to unlawful detention. Other examples of unlawful detention: o Detention period extends lawfully allowed period. o Physical conditions of detention are inhumane.

3. Knowledge of being falsely imprisoned at the time it happened is irrelevant (Murray v. Ministry of Defense)

 Arrest by public officer: (S. 41(i) CrPC) No liability when a person is detained on reasonable suspicion, informed of the grounds for arrest, and there is compliance with CrPC norms.

 Arrest by private person: (S. 43 CrPC) No liability when P has committed a non-bailable cognizable offence and he is promptly handed over to authorities.

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TRESPASS TO PROPERTY 

TRESPASS TO IMMOVABLE PROPERTY (LAND)

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1. Intention – not to trespass but to be present on or interfere with the possession of P’s land. 2. Directinterferencewith the possession of P’s land  Entering upon P’s land 

Remaining there after entry has ceased or trespassab initio (authorized entry but committing wrongful act once there.)

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Any act affecting the sole possession by P Damage is not required – actionable per se (Dougherty v. Stepp) 3. Without lawful justification:Dougherty v. Stepp“every unauthorized, therefore unlawful entry, is trespass.” 4. Possession – P must be in possession of the land (not ownership, just possession). Vertical dimensions of trespass: he who owns the soil owns to the edge of the heavens and the depth of the earth.    

TRESPASS TO MOVABLE PROPERTY (CHATTELS)

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Direct physical interference with goods which are in P’s possession

without any lawful justification – by seizure, removal or a direct act causing damage to the goods.  1. Intention to handle the chattel or physically interfere with it.  Even if D erroneously believes it to be his own.  Wrongful motive or negligence need not be proven (Poggi v. Scott)

2. Direct physical interference: seizure, removal, or act causing damage.  Actionable per se – damage is not essential. 3. Without lawful justification 4. Possession – P must be in possession of the chattel (actual or constructive) Conversion: 1. D intends to claim ownership of goods for himself(Intention). 2. D treats goods as if they were his own (Direct interference) – exercises dominion/control over it to the extent that it seriously interferes with P’s right to control it (Poggi v. Scott).  Sale  Parting with goods

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Keeping Destruction

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Denial of right

DEFENSES TO INTENTIONAL TORTS  

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CONSENT (VOLENTI NON FIT INJURIA)

 If P has consented to conduct by D that would otherwise be tortious or run a risk of harm to P, D’s conduct is not wrongful or without justification.

 Rationale: Gain to D is loss to P, but when P accepts D’s acts he implicitly expects to receive some benefit from the act. Elements: 1. Knowledgeof risk 2. Voluntary agreement to risk:  Express or implied consent  Scope: Consent does not apply when its scope is exceeded (Mohr v. Williams)  Free/voluntary: Consent should not be distorted by fraud, duress, concealment, incompetency of P, illegal acts, etc. Exceptions: (where consent can’t be used as a defense) 1. Unlawful acts: Hudson v. Craft 2. Breach of statutory duty 3. Rescue cases 4. D was under a duty to prevent P’s act: McGuire v. Almy– Consent does not always follow from intentionally incurring the risk. Degree of danger, stress of circumstances, expectation that others will perform their duties, etc. have to be considered.

SELF DEFENSE

Courvoisier v. Raymond: 1. Reasonable apprehension:  Reasonable belief that the use of physical force is necessary to prevent attack.  No need to show actual risk of bodily harm.  Reasonability is situation-sensitive. 2. Honest force:  Communication between P and D of alleged threat/force, i.e. P needs to show the threat was apparent.  Mistake of understanding: o Subjectively honest but unreasonable mistake: no defense. o Objectively reasonable and honest mistake is accepted. 3. Reasonable means:  Equivalent force used – excessive force does not excuse.  If there are two ways to deal with the threat, the one with lesser damage should be chosen.  If avenue for retreat/escape existed, D may still be liable.    

DEFENSE OF PROPERTY

1. Proportionate force:  Can’t use excessive/deadly force (Bird v. Holbrook).  Where a person peaceably captures chattel from another, the latter has no right to retake it by violence (Kirby v. Foster).

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If D can avoid confrontation with a single demand, he must first make that request before escalating conflict.

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NECESSITY

All defenses include an element of necessity. Differences:

 In self defense / defense of property, necessity stems from P’s wrong.  Whereas necessity cases arise from natural events or violent acts of a third party that imposes on D the necessity to do acts that harm P. Ploof v. Putnam:Trespass in necessity is not trespass. Necessity arose from natural events. Classification:

 Public necessity – absolute privilege: Risk to a large number of people is reduced/eliminated by causing harm to P.

 Private necessity – conditional/qualified privilege: Risk to one partyis reduced/eliminated by causing harm to P.  Vincent v. Lake Erie Transportation:Private necessity is not an absolute privilege. Private necessity excuses D from liability for trespass, but not for damage.  

Elements:

1. Actual or apparent imminent danger to interest of D or others. 2. Reasonable steps taken to protect interest against danger. 3. D was not at fault for creating the threat.

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NEGLIGENCE Elements:

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1. Legal duty – obligation towards P to take reasonable care in performing an act/omission. 2. Breach of legal duty – when D’s conduct falls below the level of care required of a reasonable man in D’s position, thereby creating an unreasonable risk of injury to P. (Reasonable man test) 3. Consequential damage – D’s negligent act should be the cause of P’s injury.

1. DUTY OF CARE Question of law, not fact. Caparo Industries v. Dickman:Ingredients that give rise to a legal duty of care: Proximity, foreseeability, fair/just/reasonable. i. Proximity between parties:Donoghue v. Stevenson  The rule is that you must take reasonable care to avoid injury to  

your neighbour. Proximity of ‘neighbour’ need not be confined to physical space. Proximity of relationship between parties: Neighbour: Persons so closely and directly affected by D’s acts that D ought to keep them in mind while performing acts/omissions.

ii. Reasonable foreseeability of relationship iii. Fair, just and reasonable to impose duty

2. BREACH OF DUTY–Steps to assess breach of duty

i. Foreseeability of harm to P should care not be taken ii. Standard of care that a hypothetical reasonable man would exercisein those circumstances:  Fixed standard of care in light of factual considerations.  Reasonable man – normal intelligence, aware of laws of nature.  Vaughan v. Menlove:Standard of care is objective and not based on the judgment of each individual. 

Brown v. Kendall:Standard of care varies with circumstances. Fletcher v. City of Aberdeen:Obligations under standard of care are correlative for P and D. o Physical disability – Fletcher v. City of Aberdeen:  Person under physical disability should use care which a reasonable person under the same disability would exercise. 

Authorities charged with public duties must exercise care keeping in mind the safety of persons with

disabilities/handicaps. o Age – Roberts v. Ring:Standard of care expected from an infant is that of an ordinary boy of his age and maturity. A reasonable old man with infirmities would not undertake activities that would put others at risk due to his infirmity. o Beginner – would take precautions consistent with his skill. o Insanity – reasonable insane person is cautious when there is a reasonably foreseeable episode of incapacitation. o Emergency situation requiring rapid decision would affect reasonable behaviour. iii. Compare D’s conduct with standard of care.  Vaughan v. Menlove:If D has acted in a contrary way to how a reasonably prudent person would have under similar circumstances, he is in breach of duty. 

United States v. Carroll Towing o Unreasonable risk: D is liable only for the unreasonable risks created by his conduct. If P is injured by reasonable risks, the loss is his to bear alone. o Risk-Benefit Formulaof determining standard of care (use when negligence arises in a commercial relationship):

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P = probability of harm D = magnitude of damage B = burden of precautions to reduce damage

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P x D> B =unreasonable risk If precaution is cheaper and safer, D’s failure to use it is regarded as standard of care not met.

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P x D< B = reasonable risk If precaution is useless and expensive, failure to use it is not regarded as breach of duty.

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3. CONSEQUENTIAL DAMAGE

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Causation:

 Causation is important to establish because we need to see if D knew or should have known of the potential consequences of his act.

 Causation in fact: P must establish that the harm of which he complains resulted from D’s negligent conduct.  But-For Test: Whether P would have suffered injury but for D’s negligence? o Counterfactual question that asks what would have happened if D had not been negligent. o But-for test isn’t sufficient, it must coexist with proximate 

cause. Substantial Factor Test: Whether D’s act/omission was a substantial factor in bringing about P’s injury? How influential was it to P’s injury?

 Causation in law (Novus ActusInterveniens): Question of intervening events which may severe the chain of causation.  Intervening act may be: o Act of nature

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o P’s own conduct o Act of third party Generally, D is not liable for all the ulterior harm as he did not

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create a special risk of harm from that kind of contingency. Intervening causes should not be foreseeable, otherwise the chain of causation is not broken.

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Scott v. Shepherd:If injury arises from the force of the original act, the chain of causation isn’t broken by intervening acts.

Proximity/Foreseeability of Damage: Determines the extent to which D can be made liable for his act – D’s act has to be a proximate cause of P’s injury.

 Reasonable Foreseeability Test: If P’s injury was a foreseeable result of D’s act/omission, the latter is a proximate cause for P’s injury.  Bolton v. Stone:Danger couldn’t be foreseen, no liability. 

Overseas Tankship (UK) Ltd. v. Morts and Dock & Engineering Co. Ltd.:If harm is foreseeable, the unforeseeability of neither the extent of harm nor the manner in which it occurred can be used as a defense. o When the accident is caused by the intrusion of some new unforeseen factor, the way in which the damage was caused becomes relevant.

 Egg-Shell Skull Rule: P can claim damages for the entire harm, even if, by virtue of some special bodily sensitivity, it is greater than what an ordinary person would have suffered.

PROOF OF NEGLIGENCE

 Direct evidence  Circumstantial evidence – res ipsa loquitur(Byrne v. Boadle): The mere occurrence of the accident is sufficient to imply negligence. Events causing P’s injury must have the following requirements:  Ordinarily occurs because of negligence by someone in D’s 

position. Instrumentality causing the injury must be within exclusive

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control of D. No voluntary action/contribution by P.

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DUTY IN SPECIAL CASES

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Duties of Occupiers of Premises: Trespasser: No duty towards trespassers as entry is wrongful, unless risk of harm is such that it is reasonable to expect help.

 Licensee: Liable for non-disclosure of known dangerous conditions.  Invitee: Duty to warn about latent dangers and make the place safe.  

Professional Negligence

 If D’s position implies skill, he must use it to exercise a greater standard of care.

 Bolam v. Friern Hospital Management Committee(Bolam Test): 

Standard of the ordinary skilled man exercising and professing to have that skill.

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Corpus of knowledge, professional equipment, specialized intelligence/skills, etc. of an ordinary member of the profession.

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DAMAGE

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Personal Property Psychiatric: not temporary grief, medical evidence is required Economic

DEFENCES Contributory Negligence

 It would be unfair to impose liability on D when P has negligently contributed to his own injury. However, it is also unfair to completely relieve D of liability because he was also, in effect, negligent.

 Contributory negligence involves lack of care on the part of P which contributes to the damage caused by the negligence of D.

 Whichever party could have avoided the consequences of the other’s negligence is liable for the injury.

 Elements: 1. Duty of care: P should avoid behaviour that results in injury to himself or mitigate D’s liability. 2. Breach of duty: o Standard of care of a reasonable man in similar circumstances. o Breach of duty when P does not take due care of his own safety and thus contributes to his own injury. 3. Consequential damage: causation and proximity.

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Safety statute: When D’s negligence consists of a breach of a statute designed to protect P.

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Greater degree of blame on D.

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Last clear chance: If D had last clear chance to avoid injury to P. Comparative negligence:  Pure form: Apportionment of damages based on relative fault.  Modified form: If P’s negligence > D’s negligence, D need not pay damages.

 Vidya Devi v. M.P.R.T.C.:Although there was contributory negligence, it was rejected as a bar to relief and apportionment of damages was adopted instead.

Volentinon fitinjuria (Consent)

 Smith v. Charles Baker & Sons:One who has assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong.

 Elements: 1. Knowledge of risk (reasonable man test is not sufficient) 2. Voluntary agreement to incur risk: o Express or implied consent:  Morris v. Murray:Implied consent is consent (P got onto the plane – implied consent).  South Indian Industrial Ltd., Madras v. AlameluAmmal:Putting up a warning sign does not amount to implied consent. o Scope: Consent does not apply when its scope is exceeded (Mohr v. Williams) o Free/voluntary: Consent should not be distorted by fraud, duress, concealment, incompetency of P, illegal acts, etc.  Morris v. Murray:Consent must be free from compulsions. Even though P was drunk, his consent is considered voluntary. 

Smith v. Charles Baker & Sons: Consented to risk of injury but not to lack of care by employers. Continuation in service does not imply consent.

 VNFI can’t be used in rescue cases (Haynes v. Harwood). Exclusion of Liability

 Liability can be excluded through contract between parties.  This cannot preclude liability for death.  Can’t have unreasonable terms. Insanity

 Breunig v. American Family Insurance:Insane person is negligent if he/she has prior warning/knowledge of sudden incapacitation.

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LIABILITY TORTS 

STRICT LIABILITY

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Background Info: No fault liability – prima facie liability of D for harm regardless of fault. Rationale: Foreseeable risk inherent in the very nature of the activity.

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Elements – Rylands v. Fletcher: 1. Abnormally dangerous object/activity brought on D’s land–factors laid down in Danny Klein v. Pyrodyne Corp.: i. High degree of risk to others (person, land, chattels) ii. Likelihood of great harm iii. Inability to eliminate risk with reasonable care iv. Activity is not a matter of common usage v. Inappropriateness of activity to the place vi. Whether or not the value to community is outweighed by its dangerous attributes 2. Object is for D’s own use. 3. Non-natural use of land:Rickards v. Lothian: some special use (not ordinary or for the benefit of the community) bringing with it increased danger to others. 4. Escape of the dangerous object/activity to an area outside the occupation and control of D – Read v. J Lyons & Co. Ltd. 5. Consequential damage Exceptions/Defenses: 1. P’s own Default

2. Act of God: Escape is caused through unfor...