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.

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