Wednesday, March 21, 2007


Tuesday 20 March 2007

The tort of MALICIOUS FALSEHOOD consists of false statements made to other persons, concerning the claimant whereby he suffers loss through the action of those others. The loss is economic, as opposed to a loss of reputation as needed for defamation.

To say that Sherlock Holmes has retired from and gone to the country to keep bees may attract an action for malicious falsehood if untrue, but is not defamatory.

The defendant must make a false statement to some person other than the claimant. The statement must be one of fact as opposed to one of opinion - remember BISSETT v WILKINSON [1927]?

The statement must be malicious, i.e. it must be made without just cause or excuse and with some indirect, dishonest or improper motive. The claimant has the burden of proving malice, the reverse of defamation.

Special damage must be proved. This is easily proved where the defendant intended to cause harm to the claimant and the claimant has suffered a general loss of business as a result.

s3 DEFAMATION ACT 1952 provides that it is not necessary to prove special damage where:

1. the words on which the action are founded are calculated to cause pecuniary damage to the claimant and are published in writing or some other permanent form; or

2. the words are calculated to cause pecuniary damage to the claimant in respect of any office, profession, calling, trade or business.

Given the right combination of facts, as in JOYCE v SENGUPTA (1993), a claimant may have two (or more) causes of action. In this case the claimant alleged damage both to her prospects of employment (injurious falsehood) and to her reputation (defamation). She elected to sue in the tort of injurious falsehood for which she could seek legal aid (not available in defamation actions (nor now for malicious falsehood)), thereby denying the defendant of the right to jury trial. The defendant’s application to have her claim struck out was refused by the Court of Appeal. The claimant was a fromer maid to Princess Anne and was alleged to have stolen letters between the Princess & Capt Mark Philips.

A decent example of the tort can be found in KAYE v ROBERTSON [1991]. That actor Gordon Kaye (Renee Artois in ‘Allo! Allo!) had been photographed in hospital following a serious road accident. The accompanying article claimed that he had agreed to the photograph and interview that followed. He was unconscious and unable to do this, and clearly the reporters were aware.

Kaye had a valuable story to sell to other papers, and the value would diminish if the Sunday Sport were allowed to publish. There was no law of privacy to protect him, but this action succeeded.

The tort of PASSING OFF is usually considered a separate tort although some treat it as an aspect of injurious falsehood. It consists of representing that goods which one is selling or a business one is carrying on are those of another by use of the name or some aspect of the same appearance, packaging etc. being similar. There need be no intention to deceive.

The tort can be illustrated by the case of ERWEN WARNINK BV v TOWNEND AND SONS LTD (1979). The claimants made a drink called advocaat. The defendants began to make a drink called Old English Avocaat. The claimant sought an injunction to restrain the defendants from using the name advocaat. Five essential elements of the tort were identified:

1. a misrepresentation;
2. made by a trader in the course of his trade;
3. to prospective customers of his or ultimate consumers of goods or services supplied by him;
4. which is calculated to injure the business or goodwill of another trader (i.e. was it reasonably foreseeable that this would happen);
5. which causes actual damage to a business or goodwill of the trader by whom the action is brought or will probably do so.

As the name which was used by the claimant distinguished the claimants product from any others, the claimants were entitled to an injunction. Two other remedies - damages or an account of profits - are available.

We have now finished with individual torts, and are left with oddments that will not form an examination question in themselves. Rather, they will form a small part of a larger problem.


THE CROWN is generally liable in tort for the actions of its servants or agents just as if it were a private individual of full age and capacity - CROWN PROCEEDINGS ACT 1947. The Crown may be liable as employer or occupier, and by virtue of the CROWN PROCEEDINGS (ARMED FORCES) ACT 1987 a member of the armed forces can now sue a fellow member who inflicts injuries in the exercise of his duties. However, no proceedings can be taken against the Sovereign in person.

FOREIGN SOVEREIGNS AND DIPLOMATIC PERSONNEL may not be sued in the English courts unless the immunity has been waived, (the STATE IMMUNITY ACT 1978).

From Year 1 you should recall that CORPORATIONS may be vicariously liable in tort for the actions of its members or servants. It can also commence actions in its own name - SALOMON v SALOMON [1897].

Clearly not all torts are capable of being committed against a corporation, for example it could hardly be falsely imprisoned. But most other torts can be committed against that corporation’s own property and this may make it a potential claimant, for example in negligence, nuisance, etc. Even defamation can be committed against a company if the defamation relates to the company rather than its members or servants personally.

There are two types of UNINCORPORATED BODIES to consider.

(1) PARTNERSHIPS - not a distinct legal person separate from the partners, and so actions by or against a partnership must be in the names of the partners, although the partners may sue or be sued in the name of the firm. Partners are jointly and severally liable for the torts of the other partners: PARTNERSHIP ACT 1890.

(2) OTHER BODIES, such as golf and rugby clubs. It may be possible to sue members individually responsible, for example a governing body or committee, and make them personally liable. Rules of Court provide the possibility of a representation order, i.e. certain members only of a body being allowed to take or defend proceedings in the interests of the whole membership.


(1) CAPACITY TO SUE - a minor must sue by his “litigation friend”, otherwise there is no distinction between an adult and a minor for the purposes of commencing an action. The CONGENITAL DISABILITIES (CIVIL LIABILITY) ACT 1976 provides that a child born alive and disabled may have a right of action in respect of torts committed upon it whilst it was in the womb. “Born” is defined in s4(2) as being born alive, i.e. the moment when a child first has a life separate from its mother and “disabled” as being born with any “deformity, disease or abnormality, including predisposition . . . to physical or mental defect in the future”.

The disabilities from which the child suffers are actionable at the suit of the child if they were caused by the wrongful act of the tortfeasor. The Act applies to two broad types of occurrence:

one which affected either parent of the child in his or her ability to have a normal, healthy child (i.e. a pre-conception occurrence);
one which affected the mother during pregnancy or the course of the birth of the child (the taking of thalidomide).

No action can be taken against the child’s own mother unless her acts fall within the wording of s2, i.e. she was driving a motor vehicle at a time when she knew or ought to have known that she was pregnant. In such a situation, the woman is treated as owing the same duty of care for the safety of her unborn child as she owes to other highway users. This exception to the general rule of mother’s immunity is acceptable in that the child’s claim will normally be met by the mother’s compulsory third party motor insurance.

The defences which could have been raised against the parent can also be raised against the child, for example if the parent was contributorily negligent; or if (in the case of a pre-conception occurrence only) either parent knew of the particular risk of a child being born disabled (this defence cannot be used by the father of the claimant if he knew of the risk but the mother did not); or if the parent was subject to a contract term which limited or excluded the defendant’s liability.


(a) There is no defence of infancy as such in tort. However, in the case of torts involving negligence (and particularly in the case of contributory negligence) the judges have held that the proper standard of care to be expected from a child is what a reasonable child of that age would be capable of achieving: MULLINS v RICHARDS [1998].
(b) A parent is not as such liable for the torts of his child unless liable under some separate principle, e.g. employer/employee or if a parent authorised the commission of a tort by the minor. However, in the general law of negligence, a parent, or person standing in the position of a parent, may be liable if there was a failure to control the child properly, for example giving the child a dangerous thing such as an air-rifle or failing to supervise him properly, or allowing a small child to wander on a busy road so that he causes an accident. The tort is that of the parent, i.e. negligence, quite separate from the tort of the child.

JOINT AND SEVERAL TORTFEASORS. If two or more people cause one claimant different injuries, then no special rule applies. The claimant may sue each tortfeasor separately for the injury each has caused. Where two breaches of duty or other tortious acts cause one single injury the position is more complex. The basic position is that the claimant can sue all or any of them and each individual is wholly liable for the full extent of the harm although the claimant can of course only recover his loss once.


At an unmarked crossing, bicycles negligently driven by A, B and C collide. D, a pedestrian on the pavement is injured. D may sue either A, B or C, or may issue one writ against all three. If judgment is given against all of them for, say £10,000, D may recover this whole amount from any of A, B and C, leaving the person he chose to obtain any appropriate contribution to this sum from the others.

Clearly the rule favours the claimant, as it should do.

The distinction between “joint” and “several” tortfeasors has been rendered less important in recent years by various statutes. Persons are joint tortfeasors when their part in the commission of the tort is done in “furtherance of a common design”, for example master and servant in the context of various liability. In the fictional example given above, A, B and C are several (separate) tortfeasors whose concurrent torts cause injury to D.


Section 1 - any person liable in respect of any damage suffered by another may recover a just and equitable contribution, such contribution being fixed by reference to his respective responsibility for the tort.

Section 1(4) - provides that in a case where one defendant wishes to acknowledge his liability to a claimant in good faith and settle his claim, he may pursue his claim for a contribution from any other defendant. The words of the Act are that a person bona fide settling a claim may:

“claim a contribution without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established.”


As is true in criminal law, there are both specific and general defences. Specific defences are available only in particular torts, e.g. justification in defamation. Other defences are generally available in tort. Let’s look at the ones yet to be mentioned:

MISTAKE. Generally no defence in torts of strict liability or in negligence. It is clearly no defence to an action in trespass to land or trespass to goods (and conversion). Its relevance is limited to cases where “reasonableness” is required, for acting upon a reasonable mistake of fact may then be important. So in the tort of false imprisonment, an arrest may be lawful even though based on a mistaken belief. The provisions relating to powers of arrest without warrant are now contained in the POLICE AND CRIMINAL EVIDENCE ACT 1984. In deceit, there is no liability if the defendant honestly believes in the truth of the statement. Mistake will not necessarily provide a defence in negligence as the standard is that of the reasonable, not the honest, man.

DEFENCE OF THE PERSON. Reasonable force may be used in defence of oneself. What is reasonable will be a question of fact in each case. It will depend on whether the force used was proportionate to the force offered. Force may be used to deter or to prevent a blow. A person who is threatened by imminent violence can legitimately strike the first blow at his or her assailant. The right to defend oneself extends one’s family, and may extend to strangers in circumstances where it is reasonable so to act: s3(1) CRIMINAL LAW ACT 1967.
Reasonable force is a flexible concept which can reflect changing social conditions. In REVILL v NEWBURY (1996) the Court of Appeal was unanimous in their description of the defendant’s act of firing a loaded shotgun at chest height through a hole in his shed door as unreasonable force. Even though the defendant was genuinely concerned for the protection of his property stored in the shed, he used greater violence than was justified in the circumstances, although the jury acquitted him!

See also MARTIN [2000].

20.5 Defence of property

Reasonable force may also be used in defence of property, anyone’s property.

LIMITATION OF ACTIONS. The threat of litigation cannot hang over a person for ever, thus the need for limitation periods. The present law is complex, and can be found in the LIMITATION ACT 1980. Normally, the effect of the expiry of the limitation period is to bar the claimant’s remedy, not his right. For example a statute-barred debt is still due but cannot be enforced by legal action.

The difficulty is in drawing a fair line between the defendant’s interest in having a clearly defined and short limitation period and not barring a claimant before he is aware that he has an action.

ACCRUAL OF CAUSES OF ACTION. Time starts to run when the cause of action accrues. In the case of torts actionable per se, the date of the defendant’s act is the relevant time for accrual. So in the tort of trespass to land, the cause of action accrues at the moment when the defendant crosses the boundary of the claimant’s land without lawful authority. In torts actionable on proof of damage, the cause of action accrues when damage is sustained. Thus, in an action alleging negligent valuation of a property by the defendants, on the basis of which the claimant agreed to provide finance, no loss was sustained until some time after the advance was made. Only when damage was suffered did a cause of action accrue and time start to run against the claimant: FIRST NATIONAL COMMERCIAL BANK PLC v HUMBERTS (1995). Where the tort is of a continuing nature, such as nuisance, a fresh cause of action arises each time damage is inflicted.

The normal limitation period is within six years of the accrual of the cause of action: s2 LIMITATION ACT 1980.
Personal injury claims within 3 years (below)
Defamation within one year: DEFAMATION ACT 1996
Latent damage within overall cut off period of 15 years
Claims under the CONSUMER PROTECTION ACT 1987 within three years

LIMITATION PERIODS: PERSONAL INJURIES. The three year period runs from the date on which the cause of action accrued or from the date of knowledge, if later, of the person injured (asbestosis issue).

The date of knowledge is taken to be the date when the claimant first knew certain facts (s14 LIMITATION ACT 1980). These facts are:

that the injury in question was significant:
that the injury was attributable to the act or omission alleged; and
that the identity of the defendant is established (or, for example if the defendant is an employee, the identity of such other person - the employer - and the additional facts which support an action against the defendant employer).

The claimant must know that the wrongful act was a cause of his injury, but he need not know as a matter of law that he had an action. The relevant knowledge is of the facts, not of the law, and includes constructive knowledge, i.e. what he could have ascertained with the help of medical or other appropriate expert advice which it is reasonable for him to seek. But if the expert advice fails to disclose a relevant fact then the claimant is not deemed to have knowledge.

If the time has expired under s11, the court has an absolute discretion under s33 to allow the claimant’s claim to proceed if it would be equitable to do so having regard to:

1. the length of and reasons for the delay;
2. the extent to which, having regard to the delay, the evidence is likely to be less cogent;
3. the conduct of the defendant, including the extent to which he responded to reasonable requests, if any, for information from the claimant;
4. the duration of any disability of the claimant accruing after the cause of action;
5. the extent to which the claimant acted reasonably and promptly once he knew of the possibility of an action for damages;
6. the steps taken by the claimant to obtain medical, legal or other expert advice and the nature of such advice when received.

See the House of Lords decision in DONOVAN v GWENTOYS LTD (1990) .

LEGAL DISABILITY. Time does not run until a legal disability ceases, for these purposes :

unsoundness of mind.

The provisions of the LIMITATION ACT only assist a claimant who was suffering a disability at the time the cause of action accrued. Therefore, a minor has three years from attaining 18 to commence an action for personal injury committed against him at any time during his infancy.

I finally drew a flow-chart on the white board showing the various types of damage. This is where we will begin next week. I hope to finish the syllabus by the end of the next lecture.

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