Wednesday, September 27, 2006


Tuesday 26 September 2006

The second week began with a comment regarding tort in the future. The problem is, that because the law is case-based, it is exceedingly slow and changes in ad hoc fashion as the courts await the right set of circumstances. Sometimes Parliament steps in and helps, the Human Rights Act 1998 being an example.

We then had a discussion regarding the possibility of a tort of privacy. There have been several attempts by lawyers to introduce such a tort, all resisted by the courts. The House of Lords decision in Wainwright v Home Office [2002] confirms that such a tort does not exist.

To try and circumvent it, claimants have made alternative allegations, with some success:

Kaye v Robertson [1991]: malicious falsehood succeeded.
Douglas v Hello! [2001]: breach of confidence and contractual issues.
Campbell v MGN [2002]: Data Protection Act 1998 infringement.

We then turned to our first tort (thank goodness!), the tort of trespass to the person.

It is split into three:

(1) battery
(2) assault
(3) false imprisonment)

ALL trespasses to the person have certain features in common:

(1) Trespass is actionable per se, i.e. the claimant does not have to prove actual damage to himself or to his property.

(2) The defendant’s act must be direct and physical: Scott v Shepherd (1773)

(3) The element of fault - the defendant must have intention. There is no such thing as a negligent trespass: Letang v Cooper (1965).

The limitation period for an action is six years: Stubbings v Webb (1993).

A BATTERY is the intentional and direct application of force to another person without lawful justification.

Any contact will suffice provided that it is both active and voluntary. To punch a person or steal an unwanted kiss may be a battery provided that the other requirements are satisfied. Wilson v Pringle (1987) introduced the requirement that the claimant prove “hostility” on the part of the defendant but this I sno longer good law.

An ASSAULT is an act of the defendant which causes the claimant to apprehend the infliction of unlawful, immediate violence, with the apparent ability to carry it out. For example, the adoption of a threatening body posture, with or without spoken threats. The act of shaking a fist at someone passing by on a train would not constitute an assault. What about pointing a gun at someone?

Normally, words alone did not amount to an assault, but there are contrary arguments. A threatening gesture accompanied by words that indicate there is no intention to carry out the threat does not constitute an assault: Tuberville v Savage (1669) – “If it were not Assize time I would not take such language from you.”

There is considerable support for the view that words alone should be capable of amounting to an assault, see the criminal case of R v Wilson (1955). Further criminal cases of R v Ireland & R v Burstow [1997] add silent phone calls and stalking as amounting to assault.

Consent is a defence to this tort. A patient in hospital who signs a form, consenting in general terms to an operation, cannot sue the surgeon for battery. The surgeon need not explain every associated risk: Chatterton v Gerson (1981). The idea that there was a doctrine of so-called “informed consent” in English law was rejected in Sidaway v Bethlehem Royal Hospital Governors (1985)

A person of sound mind can refuse medical treatment or food and the doctors or prison officers responsible for his care must abide by his wishes: Re T (1992). If the patient is not adult and competent, someone else may be entitled to give consent on their behalf, see Re T (1997).

Consent is also relevant to participants in physical contact sports, and these are examples of implied consent. Boxers consent to be struck etc., as long as it is within the rules of the sport. Hitting the opponent over the head with a stool will certainly lead to an action.

Self-defence is available provided that reasonable force is used in defence of your person, your property, or another person: Lane v Holloway (1968). What is reasonable will depend on the circumstances of the case and the force used must be proportionate to the force offered.


Tuesday 19 September 2006

I’ll start with an apology. I thought that I had posted up the first lecture already, but it seems to have disappeared. Here it is again.

We began by looking at tort generally. The word derives from the Latin tortus, which means ‘twisted’. It came to mean ‘wrong’, and it still is in French.

Defining it is difficult, my (easier) version is that tort is a legal wrong for which the law provides a remedy. It is a civil wrong in the sense that it is committed against an individual (including companies) rather than against the State.

The gist of tort law is that a person has certain interests which are protected by law. These interests can be protected by a court awarding a sum of money (damages) for infringement of a protected interest. Alternatively by the issue of an injunction, an order from a court to a defendant to either do or refrain from doing something.

Certain torts do not require fault, they are known as torts of strict liability.

Sometimes the act or omission does not give rise to a cause of action, even though the defendant causes damage (Tesco opens next door to a corner shop. Conversely, some cases are actionable even though no damage is caused! (defamation, for example).
The role of insurance is paramount. Without it the tort system would simply cease to operate.

The two main objectives of tort law are (i) compensation & (ii) deterrence, towards an individual or of a more general nature.

Any one may sue in tort, providing that they have the legal capacity to do so. A minor may bring an action through a litigation friend, but his/her position as a defendant is less likely as they would not normally be able to satisfy a judgment.

Damage caused prior to birth has always posed a problem - it was one of the principal hurdles that had to be overcome by parents of thalidomide children. Legislation has now helped, The Congenital Disabilities (Civil Liability) Act 1976 gives a child a cause of action where born disabled as a result of an occurrence occurring before or at its birth. Note that the mother cannot be held liable unless the cause of action arose out of an act of her negligent driving of a motor vehicle (insurance company pays).

The protected interests can be split into three:

(1) personal security:

An assault can give rise to an action in trespass to the person.
Injury as a result of a RTA can see an action in negligence.
Restricted freedom of liberty can lead to an action for false imprisonment.
A side issue is a person’s interest in his reputation, the tort of defamation.

In recent times psychiatric damage, as seen at Hillsborough, has been accepted; claimants have also refused to accept the words of  surgeon and brought actions for medical negligence.

(2) Property:

A person who interferes with my peaceful enjoyment of my land invites an action in nuisance, with remedies available.
I can sue for damages caused to my car in an RTA, the tort of negligence.
I can sue in the tort of conversion if someone appropriated my lap-top computer.
Trespass on my land invited an action.
Rylands v Fletcher also helps me to protect my property.

(3) Economic interests:

The law has got entangled between tort and contract as far as economic loss is concerned. The present state is that liability arises for a negligent statement, but not a negligent act.
If a person makes a malicious and untrue statement about me which causes me financial loss I may have an action.

Some torts are seen as requiring evidence of fault, and unsurprisingly are known as ‘fault-based’ torts. The obvious example is the tort of negligence This does not equate to mens rea in crime. Where no such fault is required the torts are known as ones of strict liability. Examples include liability for dangerous wild animals and defamation.

Malice in tort possesses two distinct meanings. It may be:

  1. the intentional doing of some wrongful act without proper excuse; or

  2. to act with some collateral or improper motive. This is usually referred to when malice is discussed, although if a person has a right to do something his motive is irrelevant.

Bradford Corporation v Pickles (1895) AC 587 - the defendant had extracted percolating water which flowed under his land in undefined channels, with the result that the water supply to the claimants reservoir was reduced. The defendant’s motive was to compel the claimant to buy his land at his price. The claimants action failed as the defendant had a right to extract the water and his motive was irrelevant.

Negligence in tort has several meanings. It is a tort in its own right, but it may also refer to careless conduct (which has nothing to do with a state of mind) When a court finds a defendant to be negligent, it is making an assessment of his conduct. The person who totally disregards the safety of others but does not injure them may be morally reprehensible but is not guilty of negligence. The person who tries his best and still falls below the relevant legal standard of behaviour is liable in tort for the damage he causes: Nettleship v Weston (1971) 2 QB 691.

Whether this is the correct approach depends on the purpose of the negligence formula:

If the purpose is to compensate the claimant for his injuries, then it is clearly to the claimants advantage to set the legal standard of reasonable care as high as possible. The victim of a road accident caused by a learner driver is unlikely to be satisfied if the law permitted the learner driver to argue that he had only taken three lessons and was doing the best he could in the circumstances.
If the purpose is to deter the defendant, then setting too high a standard will be counterproductive as the defendant may not be able to avoid accidents.

Strict liability is liability without proof of fault. Some torts of strict liability survive, and Parliament has created others (e.g., industrial safety matters). Some are historical relics, e.g. liability for trespassing livestock. Others, such as the rule in Rylands v Fletcher, are judicial attempts to deal with problems created by the Industrial Revolution. The rule on an employer’s vicarious liability for the torts of his employee is simply a solution to a particular problem One of the most recent additions to the body of torts has been the creation, by Parliament, of strict liability for defective products in the provisions of PART 1 Consumer Protection Act 1987.

The objectives of tort are deterrence and compensation; punishment having no place except in the case of exemplary damages: Cassell v Broome (1972) AC 1027. Such damages have been reserved for very precisely defined areas, most judges being wary of tort law possessing a punitive function.

Deterrence may be individual deterrence, the idea being that the infliction of a civil sanction will make the defendant change his behaviour and deter him from causing a similar accident in the future. Does this work? No! Most people believe that individual deterrence has no place in the law of tort.

General deterrence has the idea that tort law should aim to reduce the costs of accidents and accident prevention. Those who participate in accident casing activities should bear the costs of those activities. For example, if a car manufacturer were to be charged with the accident costs of cars in which seat belts were not installed, then the price of cars without seta belts would reflect the accident costs. Rather than impose a law forcing the fitting of seat belts, the market, through the cost of cars without seat belts, would enable people to make a choice between the cheaper cars with belts, or the more expensive ones without them.

In practice, the use of insurance again mitigates against the theory.

Compensation. This is it. It is generally accepted that the main aim of tort is to compensate victims of accidents who have suffered damage, most commonly for personal injury. At present the law shifts losses from the claimant to the defendant when the defendant has been proved to be “at fault”. Over the past few years this idea of a fault-based system has been criticised as inefficient - and I certainly agree with that!

We discussed the situation in New Zealand, which is very different to ours, as they abolished the tort of negligence over 30 years ago.

We then made some comparisons between tort and crime/contract.

Tuesday, September 05, 2006



It is my intention to place on this blog a précis of all of my lectures, and will usually try to post them within 48 hours of the event.

There are limitations as to what can occur here, hence there are other ways that I will support you. I have a website at You will need a username and password for this, and I will get it arranged with you in the first couple of weeks.

I have also placed all of my handouts – and there are a lot! – on something called moodle. I will discuss this in class with you.

I shall also give details of an e-mail address, but won’t post it here for fear of spam.

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