Law of Tort

Today we finished the course. I am writing this in advance, so I hope that we finished it!

There are two main types of damages: non-compensatory which may be nominal, contemptuous or exemplary; and compensatory which may be general or special.

NON-COMPENSATORY DAMAGES

Non-compensatory damages may take one of three forms:

(1) NOMINAL - awarded to recognise that a legal right has been violated but the claimant has suffered no loss. A small sum of money is awarded. Such an award might be recovered in an action for trespass to land where the trespasser has caused no damage to the claimant’s land.

(2) CONTEMPTUOUS - awarded to demonstrate the opinion of the jury that the claimant should not have brought the action at all. They consist of the lowest coin of the realm and are usually awarded only in libel actions: REYNOLDS v TIMES NEWSPAPERS [1999] – award of 1p.

(3) EXEMPLARY - awarded to punish (note word) the defendant for his conduct and to deter such behaviour in the future. They are awarded in addition to compensatory damages. The circumstances in which exemplary damages may be awarded are set out in the speech of Lord Devlin in ROOKES v BERNARD (1964) AC 1129. Because the principle of punishing the defendant is inconsistent with the aims of the civil law of tort, such damages can only he awarded in certain torts and in very limited types of case as follows:

(a) For oppressive, arbitrary or unconstitutional action by persons holding public positions, e.g. government departments, the police, local authority employees. A typical example would be found in a successful action for trespass to the person or malicious prosecution against the police. The Court of Appeal has provided guidelines to assist a jury in such cases where the evidence supports a claim for exemplary damages. For example, such an award is unlikely to be less than £5,000 and may rise to £25,000, with an absolute ceiling of £50,000 for those situations where an officer of the rank of superintendent or higher was actively and directly involved in the commission of the tort: THOMPSON v COMMISSIONER OF POLICE OF THE METROPOLIS (1997).

(b) Where the defendant’s conduct has been calculated to make a profit for himself which will exceed any compensation which he will be ordered to pay. This could occur in a defamation action where the publisher hopes to take advantage of the publicity which a trial will bring. In CASELL v BROOME (1972) AC 1027 the House of Lords upheld the original jury’s award of £25,000 exemplary damages to the claimant having applied, by a majority, the formulation of the rules given in ROOKES v BARNARD (above). It was said that:

“… these were grave libels perpetrated quite deliberately and without regard to their truth by (the author) and a firm of publishers interested solely in whether they would gain by the publication of the book. They did not care what distress they caused.”

(c) Where a statute permits the award. Exemplary damages were claimed in AB v SOUTH WEST WATER SERVICES (1993) 1 ALL ER 609 by those who suffered as a result of drinking and using the contaminated water in Camelford. Although the Court of Appeal held that the defendants had attempted to cover up their mistakes by ignoring customers’ complaints and generally acting in a high-handed manner, they were not within the categories identified in ROOKES v BARNARD because they were not exercising executive power. Rather, their actions were to protect their own commercial interests. In addition, public nuisance was not a tort for which exemplary damages were considered appropriate. No exemplary damages were therefore recoverable. It is truye to say that such an award has never been made.

COMPENSATORY DAMAGES

Compensatory damages are to compensate the claimant for real harm done and are appropriate in torts which require actual damage. Damages may be either general or special:

1. GENERAL DAMAGES - those which do not need to be specifically pleaded and can be argued for at the trial. They are those which are presumed to follow from the tort, e.g. in an action for personal injury based on negligence, general damages include damages for pain and suffering, loss of amenity, future loss of earnings, etc.
2. SPECIAL DAMAGES - financial loss of specific amounts such as loss of earnings up to trial, damage to a vehicle, cost of private medical treatment, etc. These losses must be pleaded and proved by the claimant.

The purpose of an award of compensatory damages is to place the claimant in the position he was in before the tort was committed.

Since 1970, awards for personal injuries have been itemised to facilitate the assessment of interest. A single “lump sum” remains the most common method of receiving damages but there is now the possibility of an award of “provisional damages” under s32(a) of the SUPREME COURT ACT 1981. This new provision was introduced by s6 of the ADMINISTRATION OF JUSTICE ACT 1982 and provides the opportunity to assess the damages at two separate stages if:

“there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.”

This position may help certain claimant whose condition may or may not deteriorate in some specified manner, for example the onset of epilepsy following head injuries. At the trial the judge makes an award on the basis that the deterioration will not occur, but makes an order specifying the disease or deterioration and fixes a time limit within which the claimant can return to court should the disease or deterioration actually occur. In this way, the actual effects of the deterioration can be measured and an appropriate, rather than a totally speculative, award be made.

I have given you a handout for the case of LIM POH CHOO v CAMDEN AND ISLINGTON AREA HEALTH AUTHORITY (1979), ad we shall use this real-life example to explain how the calculations are made.

PECUNIARY LOSS. In personal injuries actions where the claimant suffers serious injury as a result of the defendant’s negligence, pecuniary loss will comprise a large element in the claim.

LOSS OF EARNINGS. The claimant’s loss of earnings before the trial must be pleaded as special damages and he will recover his net loss.

Future loss of earnings are recoverable as general damages. The court starts with the claimant’s net annual loss, (the multiplicand) and deducts from the gross income, which the claimant expected to earn, income tax, social security contributions etc. The purpose of this exercise is to ensure that the claimant is in the same position as he would have been if he had been put to the trouble of actually earning the income. To do otherwise could be seen as giving the claimant an advantage as a result of the accident. The court then applies a figure known as the multiplier. This figure is calculated by taking the number of years the disability is likely to continue and then reducing it to take account of the contingencies of life and the fact that the claimant will have accelerated receipt of a lump sum which can be invested to provide income. If the disability or injuries, from which the claimant suffers as a result of the accident, will persist for 30 years (and the claimant would otherwise have expected to work during those years) the multiplier will be considerably lower than 30. In practice, it rarely exceeds 18. The calculation of multiplicand x multiplier should produce an amount of money which when invested provides an income equivalent to that lost, but it is also accepted that the capital will be drawn upon over the years. The end result should be that the lump sum is exhausted at the end of the (30 year) period of disability.

In ALLEN v BLOOMSBURY HA (1993) the claimant was compensated for the consequences of an unplanned birth (the negligence of the hospital doctor having been admitted). She recovered approximately £30,000, to represent her future loss of earnings until her daughter reached majority, plus a similar amount to represent the cost of maintaining the child to majority.

The law is now less sympathetic: McFARLANE V TAYSIDE HEALTH BOARD [1999].

THE LOST YEARS. If the claimant suffers a reduction in his life expectancy as a result of the tort, then the difference between pre-accident and post-accident life expectancy is known as the lost years. This was first recognised by the House of Lords in PICKETT v BRITISH RAIL ENGINEERING (1980), but the principle involved is not without its critics.

A living claimant is able to recover loss of future earnings which are not restricted to the remaining life span of the claimant.

A deceased claimant, in relation to the so-called lost years, will have certain deductions made from the net loss. These comprise of the sums which the claimant would have been likely to spend on himself in those years. Thus, a married man with dependants will have a deduction which takes into account what he for the joint benefit of the household. However, a single person with no dependants may find that the deductions are total except for savings which he might have made.

No damages are recoverable for the fact of loss of expectation of life itself but non-pecuniary damages may be awarded for mental suffering caused by the knowledge that life has been cut short.

EXPENSES. The claimant is entitled to recover all expenses reasonably incurred as a result of the treatment of his injuries. The claimant has a free choice as to whether to be treated privately or not. If the claimant is spared living expenses by virtue of being cared for at public expense in a hospital or similar institution, a deduction will be made to avoid over compensation. If a third party has incurred pecuniary loss in providing care for the claimant, this amount is recoverable as damages. This situation often occurs if a close relative provides nursing care in the victim’s home The carers have no claim for their own economic losses which this personal sacrifice may cost, but the court can compensate the victims, who in turn pay the carers for their services. Conversely, if the victim of the accident is prevented by his or her injuries from providing a service to others, for example a disabled housewife and mother, then compensation can be made to enable substitute assistance to be hired.

DEDUCTIONS.

As the object of damages is to compensate the claimant for losses incurred as a result of his injury, it is necessary for a court to work out to what extent the receipt of money from other sources must be set off against the damages.

Since 1st January 1989, almost all social security benefits will be deducted in full by the defendant and paid to the Department of Social Security (SOCIAL SECURITY ACT 1989, s22 and Schedule 4 now contained in Part IV SOCIAL SECURITY ADMINISTRATION ACT 1992). The principle is that the state will not subsidise tortfeasors and the claimant will not receive double compensation. The defendant must deduct statutory benefits paid or payable up to five years from the date of the accident and account for them to the DSS. The SOCIAL SECURITY (RECOVERY OF BENEFITS) ACT 1997 now provides for a revised scheme for the recovery of benefits paid in respect of an accident, injury or disease where the person claiming benefit also receives. compensation from a third party.
The Act introduces a “like-for-like” method of recoupment and benefits can only be recovered against one of three specific heads of damage:

past loss of earnings;
past cost of care;
loss of mobility.

All three heads of damage cover the five years immediately following the day on which the accident or injury occurred or, in the case of disease, five years beginning with the date on which the claimant first claimed a listed benefit in consequence of the disease.

Non-state benefits such as private insurance or pensions are generally non-deductible.

The principle, established by the House of Lords authorities of PARRY v CLEAVER (1969) 1 ALL ER 555 and SMOKER v LONDON FIRE AND CIVIL DEFENCE AUTHORITY (1991) 2 AC 502, that the only recoverable loss is the net loss and amounts received by way of disablement or incapacity pensions, are to be ignored in the calculation of damages for loss of earnings. However, if part of the claimants claim relates to a time after normal retirement age then the disability or incapacity pension payments due to be received after that date must be taken into account. Parry was applied in LONGDEN v BRITISH COAL CORP (1998) 1 ALL ER 289. The claimant, who worked as a pit deputy, was injured at work when he was aged 36. After the accident he was awarded an incapacity pension and a lump sum under his superannuation scheme. He also had a successful claim against his employers for damages and sought to recover the difference between the level of payments (both of lump sum and annual pension) that he would have received at normal retirement age (i.e. 60) and those he would continue to receive under the incapacity scheme. A distinction was drawn by the Law Lords in LONGDEN between the calculation that was relevant for the period after normal retirement age - when the total payments due to be received under the incapacity scheme would have to be brought into account to arrive at the net loss - and the situation prior to normal retirement age where the annual payments did not have to be taken into account but a proportion of the lump sum received would have to be.

NON-PECUNIARY LOSS. In addition to pecuniary losses a claimant may be entitled to compensation for injuries and other damage.

LOSS OF AMENITY. The claimant may recover damages for the injury itself and any consequent inability to enjoy life. It does not matter whether the claimant can appreciate his disability. The courts work from a tariff and the figure is adjusted in the light of the circumstances of the particular claimant. If a person used to enjoy a particular physical amenity, such as dancing, the figure can be increased. Impairment of one of the five senses, inability to play with one’s children, diminution of marriage prospects, impairment of sexual life and destroyed holidays may also be compensated under this head.

PAIN AND SUFFERING. Damages may be recovered for suffering attributable to the injury itself and any consequential surgical operations. An award may be made for compensation neurosis i.e. neurosis created by the delay and uncertainty of the litigation process. No damages are recoverable under this head if the victim does not recover consciousness. A conscious person can recover damages for suffering caused by the knowledge that life has been cut short - s1(b) ADMINISTRATION OF JUSTICE ACT 1982.

DEATH. Where defendant dies - cause of action generally survives against his estate.

Where the claimant dies - action generally survives for the benefit of his estate and a new action is created for his dependants. An action for defamation dies with the claimant, however.

The estate’s action is governed by the LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934. This Act preserves the deceased’s subsisting action so it does not matter whether the defendant was responsible for the death as such. The effect of the Act is that the estate can recover all the damages which the deceased could have recovered, had he lived, from the breach of duty to the death. No damages are recoverable for future loss of earnings, bereavement, or exemplary damages.

In HICKS v CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE (1992) 2 ALL ER 65 the House of Lords was asked to decide whether pain and suffering caused by the crushing of bodies in the Hillsborough football stadium disaster, and the awareness of impending death, are items of damage recoverable by the estate of a deceased person under s1(1) of the 1934 Act. The trial judge had found as a matter of fact that there was a very short space of time between asphyxia and death and that no injuries other than the fatal crushing had been suffered by the two deceased girls in question. The House would not overturn this finding of fact, given that the evidence had also been carefully reviewed by the Court of Appeal. Lord Bridge commented upon the argument that fear of death should give rise to compensation:

“it is perfectly clear law that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded. Those trapped in the crush at Hillsborough who were fortunate enough to escape without injury have no claim in respect of the distress they suffered in what must have been a truly terrifying experience. It follows that fear of impending death felt by the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of action which survives for the benefit of the victim’s estate.”

The dependants’ action is governed by the FATAL ACCIDENTS ACT 1976.

1. A dependant may claim, including past and present spouses, ascendants and descendants, illegitimate children, relationships by affinity and consanguinity. Actions are normally brought by spouses, parents or children. The Act allows an action by a cohabitee where the parties had lived together as man and wife for two years immediately preceding the date of death. A divorced woman who became reconciled with her ex-husband is a dependant by virtue of being a “former” spouse and does not have to show two years cohabitation: SHEPHERD v POST OFFICE (1995) 1 THE TIMES 15TH JUNE. The action is brought in the name of the personal representative of the deceased or, if the personal representative has not acted, after six months of appointment, by any dependant of the deceased.
2. The action is essentially one for the loss of a breadwinner. It is a new action given to the dependants, not a survival of the deceased’s action. But the dependants must show that the deceased had a right of action. If the deceased had settled his claim or had obtained judgment, the dependants will have no claim. Equally, if a defence could have been argued by the defendant against the deceased, for example for contributory negligence of 10%, then the same proportional deduction can be made against the claims of the dependants. But if the deceased had limited the amount he could claim, the dependants are not bound by that limitation.
3. The basis of the action is that the dependants receive compensation for their economic losses. The main head of damages is pecuniary losses suffered from the date of death, assessed in two stages:

§ from date of death to the trial, on the basis of the deceased’s earnings, less the amount he would have spent on himself.
§ from date of trial into the future. For example the deceased was a 30 year old, married with two children, with a net income of £10,000 per annum with no promotion prospects. If he spent £3,000 per annum on his own living expenses, the dependants’ annual loss would be £7,000. A multiplier of 15 might be applied giving damages of £105,000 for pecuniary loss. In this context, the deduction mentioned above is solely the money which the deceased habitually spent on himself exclusively. This is in contrast with the situation where lost years are being calculated.
§ a spouse or parents of an unmarried minor may claim a fixed sum of £7,500 as damages for bereavement. If the deceased unmarried minor was illegitimate, only the mother can claim.

INJUNCTIONS

An injunction is an order of the court requiring that the defendant do some act or refrain from doing some act.

Injunctions are either:

MANDATORY - requiring the defendant to do some positive act, such as pull down a building or erect a fence
Prohibitory - requiring the defendant to refrain from some continuing act (for example a nuisance) or not to repeat it (for example a defamation)

Injunctions may be either final or interlocutory:

1. FINAL - awarded at the end of the trial as one of the remedies obtained by the successful party;
2. INTERLOCUTORY - awarded pending the trial of the action in order to prevent harm where damages alone, if the claimant were successful, would not be an adequate remedy. In defamation actions such an injunction should not be granted if the defendant indicates that he intends to plead justification - the rule against prior restraint.

SPECIFIC RESTITUTION

Where a defendant has unlawfully taken the claimants goods and is found liable in conversion, the court has a discretionary power to award the specific restitution of the article in addition to damages. This discretion is unlikely to be exercised where the article in question is an ordinary article of no special value, for then damages alone will adequately compensate.

SELF-HELP

Not generally favoured as it often involves further conflict between the parties. We covered them when we dealt with the individual torts, but for the sake of completeness they are:

1. Self defence.
2. Re-entry on land.
3. Recovery of chattels. A person may use reasonable force to re-take any chattel of his which is unlawfully taken or kept from him. If the wrongfully taken goods are on the land of some third person, who was not responsible for the taking in question, there is no clear answer as to whether the rightful owner may go onto the land to recover them,. It is suggested that there is such a tight if the article got there by accident or by the criminal act of the wrongdoer.
4. Abatement of nuisance.
5. Distress damage feasant.

Before breaking for Easter I handed out a previous examination paper, together with instructions as to what I want you to do with it for our next class.

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.

LEGAL PERSONS IN SPECIAL CATEGORIES.

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.

MINORS

(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.

(2) CAPACITY TO BE SUED

(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.

EXAMPLE:

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.

CIVIL LIABILITY (CONTRIBUTION) ACT 1978

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.”

DEFENCES TO TORTS NOT YET DISCUSSED.

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 :

minority
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.

We continued with our look at defences to the tort of defamation.

ABSOLUTE PRIVILEGE. The best defence of all, and as a result the most limited. Available to:

a member of either House of Parliament during the course of Parliamentary proceedings. The privilege extends to reports, papers and proceedings authorised to be published by Parliament, i.e. Hansard.
Any statement made in the course of judicial proceedings by any party to the proceedings.
Fair, accurate and contemporaneous reports of public judicial proceedings in the United Kingdom are absolutely privileged (s3 LIBEL AMENDMENT ACT 1888).
Communications between officers of state in the course of their official duty are absolutely privileged.
Communications between solicitor and client in relation to judicial proceedings are absolutely privileged.

QUALIFIED PRIVILEGE. The only real difference between this and absolute privilege is that the presence of malice will destroy this defence.

Fair and accurate reports of:

Parliamentary proceedings
Public judicial proceedings not reported contemporaneously

both attract qualified privilege.

A statement made in the performance of a duty may attract qualified privilege. The person making the statement must have a legal or moral duty to make it and the recipient must have a corresponding duty to receive it. Whether there is such a duty is a question for the judge. It covers things such as a reference or a staff appraisal.

References may attract qualified privilege and so will statements made between employer and secretary - SPRING v GUARDIAN ASSURANCE [1994]: TSB v HARRIS [2000].

REYNOLDS v TIMES NEWSPAPERS [2001] (HL). The claimant in this case was the ex-Prime Minister of Ireland, who had resigned in the midst of a political crisis in 1994. The defendants were a newspaper, its editor, and various of its journalists. The newspaper had run an article in which it was alleged that Mr Reynolds had concealed certain facts about his colleague Harold Whelehan. This concealment, it was alleged, was to assist Mr Whelehan in his bid to become President of the High Court. It was suggested that, had these facts not been concealed, Mr Whelehan's appointment would have been rendered unconscionable.

To cut a long story short, when Mr Reynolds brought an action in defamation, the defendants were unable to prove the truth of these allegations to the satisfaction of a jury. The defendants were unable to rely on the defence of `fair comment', since the defamatory remarks were of a factual nature, not merely opinions or value judgements. The jury, however, while accepting that the allegations were unproven, declined to award Mr Reynolds even a penny in damages. As the Times had already made a payment into court, Mr Reynolds was ordered to pay their costs from the data of paying-in. The unfortunate judge in this case had the dubious distinction of being accused of doing such a poor job that his performance was the subject of appeals by both the losing party and the successful party. Mr Reynolds appealed on the basis, among other things, that the judge's summing up failed to make the strength of his case clear to the jury; the Times appealed on the basis that it should have been awarded all its costs. The Court of Appeal held, with reluctance, that the conduct of the trial was such as to deny Mr Reynolds a fair hearing, and ordered a retrial. The Times sought permission to use the defence of Qualified Privilege in the retrial, which the Court of Appeal denied, but allowed an appeal on that matter to the House of Lords.

So the hearing in the House of Lords was, on the whole, not concerned with determining the truth of the Times's allegations, or of deciding what costs should be ordered against whom, it was concerned with the scope of the defence of qualified privilege. The established test for qualified privilege is whether the defendant had a duty to publish the material, and the recipient an interest in receiving it, taking into account all the circumstances of the publication. Although this is phrased very broadly, in fact the circumstances in which qualified privilege applies to publication to the public at large have always been very limited. It certainly applies, for example, to the reporting of many matters that themselves attract privilege, such as Parliamentary debates and judicial decisions, but it is hard to find many other examples of its applicability. One of the arguments raised by the defendants in this case was that the traditional common-law view of qualified privilege was too narrow, and therefore was in conflict with the provisions of Article 10 of the European Convention On Human Rights. On the whole, this argument did not find favour with the House; in the judgements of the ECHR that were cited by the defence, it was clear what had been at issue was not the liability for inaccurate factual statements, but rather liability for expressions of opinion. Since the defendant had already conceded that it could not rely on the `fair comment' defence, which was relevant to expressions of opinion, the ECHR judgements were not of any great help. The question therefore fell to be decided under ordinary common-law principles of qualified privilege, and the relevant question was whether political reporting, done in good faith and in the public interest, is something which in general attracts qualified privilege. By a bare majority, the House decided that it did not.

The defence is defeated by malice, the presence of some improper motive or misuse of the privileged occasion or lack of belief in the truth of the statement. Actual spite or ill will is not necessary although it will often be present. The question of malice is for the jury.

The malice of one person does not infect the privilege of another, for example where a councillor at a local authority meeting makes a defamatory and malicious statement and this is reported by a newspaper, the councillor loses his privilege but the newspaper does not.

FAIR COMMENT. Probably the most important defence for a newspaper. The voicing of an honest opinion; a plea that the matter complained of is comment made in good faith & without malice on a matter of public interest.

A good test would include: “Could a fair-minded person (even a biased one) honestly express that opinion having regard to the facts?”

To use the defence it is necessary to show:

The statement is based on true/privileged facts
On a matter of interest to the public
The opinion is honestly held
And made without malice.

CORNWELL v MYSKOW [1987]: when reviewing a musical starring Charlotte Cornwell, the critic Nina Myskow stated: “She can’t sing, her bum’s too big, and she has the sort of stage presence that blocks lavatories.” The defence of fair comment was used, but failed as there had been previous bad feelings between the two, and the use of the particular words was seen as being malicious.

MALCOLM & DE FREITAS v WISDEN [1996]: the famous cricketer’s bible stated : “English players of overseas origin lack real commitment to the national side, being solely motivated by personal advancement. At that time the number of overseas players were only a handful. These two sued & won.

REMEDIES. These include:

damages, both general and exemplary
injunction. This should not be granted if the defendant intends to plead justification as a defence. It is known as the rule of ‘prior restraint’.

The limitation period is one year (s5). Legal aid is not available for a defamation action. There have been one or two actions based on conditional fee arrangements, but the court tends to frown upon them.

A person who would otherwise be protected by Parliamentary privilege may waive that protection (s13). This change in the law was introduced, partly, to assist two Conservative MPs in their defamation actions against newspapers, namely Jonathan Aitken and Neil Hamilton. This was not a popular move.

See the CD I gave you for an explanation of defamation and the internet, highlighting the vast differences between the UK and US approach.
I then showed a BBC training video for journalists concerned with the law in this area.

We will begin with the tort of MALICIOUS FALSEHOOD next week.

We continued with defamation. PUBLICATION of the defamatory statement is the trigger to an action for defamation. Publication means the communication of the words, pictures, visual images, gestures or any other method of signifying meaning to at least one person other than the person defamed.

Every publication is a new defamation thereby rendering each new publisher liable in addition to the primary liability of the original author.

The court will presume publication in the case of a postcard or telegram, each of which may have been read in transit even if addressed to the claimant. If a letter is opened and read by a person other than the one to whom it was addressed then the question is whether the publication could have been reasonably anticipated.

The tort of defamation is probably the strictest anywhere in the world. There is a balancing act between protecting a person’s reputation and the public interest in freedom of speech. This is where defences come in, with some more useful than others.

ASSENT TO PUBLICATION. Not too often used - but where the claimant expressly, or impliedly, assents to publication there is no action. So a person who invites another to “repeat that in front of witnesses” cannot sue on the repetition.

OFFER OF AMENDS - ss2 to 4 DEFAMATION ACT 1996. The offer must be:

in writing,
expressed to be an offer to make amends under the section, and
state whether it is a qualified offer and, if so, identify the defamatory meaning to which it relates.

The offer involves a willingness to publish a correction and apology and to pay compensation, as determined by a judge. The introduction of a “qualified” offer of amends is to be welcomed in principle as it will enable a defendant to apologise for part of the defamatory publication but defend himself in other ways against certain allegedly defamatory matter. The claimant may accept or reject the offer. If it is accepted, a judge (without the aid of a jury) will determine the compensation payable. If it is rejected, the defendant may rely on the offer as a defence or in mitigation. However, if it is relied upon as a defence, no other defence can be pleaded in the alternative.

Nail v NGN [2005]: the case concerns Jimmy Nail, the star of the Geordie comedy Auf Weidersein Pet, who successfully sued the News of the World for defamation and subsequently received damages in the sum of £30,000. The original sum was determined in March 2004 under the ‘offer to amend’ system contrary to the Defamation Act 1996. However, Nail appealed the ruling on the grounds that the judge was incorrect in assessing the level of damages awarded.

The complaint concerned the News of the World’s centre spread headlined as “Jimmy’s Secret Bondage Orgies” (which leaves nothing for the imagination!). The article suggested that Mr Nail ‘queued’ for an orgy with a women known as “Randy Mandy”. The article went on to say that Nail had sex with the women using fat from a chip fan as lubricant. Further he was said to have seduced a wife of a fellow rock star whilst in a stable relationship and to add further insult that he once ate a can of dog meat in times of hardship.

Other non-sex related comments (which were taken from the book rather than the article in the New of the World) were that he exploited the death of a colleague for financial purposes and that he became a property developer through criminal means.

The main issue before the court was the level of damages available to Nail as the newspaper clearly made an offer of amends and admitted fault.

The evidence produced before the court was that only 119 copies of the book were sold out of a possible 4,500 which should be taken into consideration in assessing compensation as Nail had no sued at the time the books were published. Furthermore, any copy of the book which was sold 12 months before the claim were barred by statute.

The judge found that the books were in fact defamatory against the Claimant however the fact that the Claimant failed to sue at the relevant time had to be taken into consideration. The costs in relation to the publication of the book were assessed at £7,500.

A different approach was taken by the judge in assessing the potential damage caused to the Nail as a result of the serialisation in the News of the World. The judge commented on the fact that such publication can be “frightening and disorientating” and something which can prove to be an “intensely distressing experience”. The Judge noted that the article was very prominent in the newspaper publication whereas the apology which followed was not as prominent. Further, the judge also noted that the paper failed to contact Nail prior to the publication to justify or defend any of the allegations made.

On assessing the costs the Judge stated that the offer of amends regime was created to mitigate the impact on the Claimant and allow the Claimant to draw a line under the whole episode. The Judge took into consideration the fact that the apology was published relatively quickly and although was not as prominent as the article itself was nevertheless eye catching. The Judge started with a sum of £45,000, but reduced the amount to £22,500 taking into account the mitigating circumstances.

The appeal against the assessment of damages was based on the grounds that the Judge was wrong in applying a discount for the Defendants’ offer of amends regime. In particular, the Nail’s Counsel pointed out the reasoning behind the Judge’s decision in that he felt it was appropriate to ‘reward’ the Defendant for adopting a conciliatory approach. This, it was argued, was not a principle of defamation law.

It was submitted that the Judge did not take into account the circumstances or the prominence of the apology and that such an apology was published some 14 months after the article.

The Court of Appeal noted that it was important for the court not to drive damages down to a level “which publishers might with equanimity be tempted to risk have to pay”. However, where an offer of amends has been made and accepted, deterrence may be of little significance. This would be more suited to claims which involved malice.

Further, “an offer to make amends and its acceptance are in their nature conciliatory and there is no policy which needs to deter conciliation”. Therefore whilst the Nail would be entitled to compensation, the compensation would be assessed based on the factors at hand at the time of making the assessment not awarded at the time of publication. Therefore, it was appropriate for the Judge to take consideration of the offer of amends regime which may consequently lead to substantial mitigation.

The Court of Appeal also noted that the apology was not late, taking into consideration the relevant circumstances i.e. that the matter was subject to negotiation and was published within a reasonable time of the issue of proceedings. The awards were upheld in respect of the article published by the News of the World and the book publications.
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JUSTIFICATION. A terrible word, meaning simply ‘truth’. With the exception of s8 REHABILITATION OF OFFENDERS ACT 1974 applies it is a complete defence.

The claimant is not required to prove that the imputation is false, the defendant must prove the truth of any particular meaning that could be placed on the words. Should the defence fail, the defence will make much of it as a means of extracting extra damages. This is just one reason why the defence is often avoided by newspapers.

Partial justification is permissible, provided that the inaccurate words do not add to the sting of the libel. For example, to say that a man has been convicted of driving with excess alcohol and no MOT certificate with his car will not attract an action if he has an MOT for the vehicle, but certainly will if the first is untrue and the second true. s5 DEFAMATION ACT 1952 states:

“A defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the claimant’s reputation having regard to the truth of the remaining charges.”

Malice is irrelevant to the defence of justification; if the statement is true the defendant’s motive is irrelevant. The single exception has already been mentioned - s8 REHABILITATION OF OFFENDERS ACT 1974. If a person refers to that conviction with malice, then the defence of justification is destroyed.

Repetition of a defamatory statement is no defence, otherwise he would simply be trying to prove the truth that someone else said the statement. A defence of privilege exists to assist the press to cover such publications as fair and accurate reports of proceedings in court. In Stern v Piper (1996) the claimant’s claim was based principally upon the repetition of an allegation made against Stern in an affirmation pending action in the High Court. The defendants pleaded justification but the Court of Appeal held that the repeated statements fell within the “repetition rule” and could not be the subject of a justification defence.

I then showed a hour DVD on libel law. We will start with the defence of ABSOLUTE PRIVILEGE next week.

We ended last week talking about the amount of damages, which is where we pick up now.

John v MGN (1996), a decision of the Court of Appeal. Elton John was awarded £75,000 in general damages and £275,000 in exemplary damages, reduced by the Court of Appeal to £25,000 and £50,000 respectively. The Court of Appeal directed that guidance should be given to juries in future. This has not met universal approval, as juries tend to use the guidance as a starting point and work up from there!

The biggest ever award was discussed on Tolstoy Miloslavsky v UK (1996) where the ECHR ruled that the award of £1.5 million to Lord Aldington against the defendant Count Tolstoy contravened article 10 of the European Convention on Human Rights (the right to free speech). I shall show you a DVD which contains detailes of the case.

As I have previously said, fefamation has two forms, libel and slander.

Libel is a defamatory statement in a PERMANENT form.
Slander is a defamatory statement in a TRANSIENT form.

Libel includes writing, paintings, or a wax model: Monson v Tussauds (1894). A defamatory meaning in words spoken on the sound track of a film has been held to be libel: Youssoupoff v MGM (1934).

Television and radio broadcasts are libel: s166 BROADCASTING ACT 1990; as are theatre performances: THEATRES ACT 1968.

Libel is in all cases actionable per se. Slander requires proof of damage except in four cases:

The imputation of:

(1) a criminal offence punishable with imprisonment.
(2) a contagious disease likely to prevent other people from associating with the claimant. Last case was Bloodworthy v Gray [1844].
(3) The imputation of unchastity or adultery to a female - SLANDER OF WOMEN ACT 1891. IN Kerr v Kennedy [1942] an imputation of lesbianism was held to be enough.
(4) Imputation of unfitness, dishonesty or incompetence in any profession, calling, trade or business held or carried on by the claimant.

Libel is also a crime, though very rare. Slander is only a tort.

DEFAMATORY MEANING AND INNUENDO. It is not possible to provide a comprehensive list of words which are defamatory, there needs to be a general test to apply to the alleged defamatory words. Regard must be had to all the circumstances of the case and the meaning of words changes with time. It has in the past been held to be defamatory to call a person a papist or a German. The word “gay” for example has undergone a change of meaning.

Defamatory words are those which tend to lower the claimant in the estimation of right-thinking members of society generally. This may be done by exposing him to hatred, ridicule or contempt or causing people to shun or avoid him. An allegation that a woman has been raped will not expose her to hatred, ridicule or contempt, but may cause people to shun or avoid her. In the Yousoupouff case (above) the claimant, a Russian princess, successfully sued MGM for producing a film which suggested that she had been raped by Rasputin.

The function of the judge is to decide whether the words used are capable of being defamatory; if he decides that they are not he must withdraw the case from the jury. If he thinks that the words are capable of being defamatory, he must leave it to the jury to decide whether they are in fact defamatory and clearly direct them on what defamation means in law: Capitol and Counties Bank v Henty (1882).

Words are capable of being defamatory even if they do not impute disgraceful conduct or lack of professional capacity. Thus, the phrase “hideous looking” might convey to the reader not merely a lack of physical attractiveness but also the connotation of “repulsive”. This phrase was published by the defendant about the claimant; a well-known actor, who relied upon appearances in public to earn a living and advance his career. The defendant argued that the words were insulting but not defamatory. The Court of Appeal held that the words were capable in law of carrying a defamatory meaning and that the matter should be referred back for a jury to decide whether they did so in fact: Berkoff v Burchill (1996).

It is the function of the jury to decide matters of fact and to fix damages. Defamation cases are now one of the very few remaining instances of the use of a civil jury.

Who are these “right-thinking members of society”?

In Gillick v BBC (1995), the Court of Appeal considered a statement made during a discussion broadcast on television. It was noted that a television audience would not bring the same analytical attention as that of a lawyer weighing the meaning of words. The claimant contended that the imputation in question suggested a link between her briefly successful campaign to limit the availability of contraceptive advice to young girls and two suicides. By a majority it was held that the words were capable of a defamatory meaning in that they might impute some shared moral responsibility for the two deaths.

However, in Charleston v News Group Newspapers Ltd (1995), the House of Lords held that those who read only the headlines in newspapers and do not go on to read the body of the article (which in these circumstances negated the impression given by the headline and photographs of the claimant) did not represent right-thinking members of society. The case concerned THE SUN newspaper and two members of the ‘Neighbours’ TV show.

Words may be either self-evidently defamatory or only defamatory where a person to whom they were published has special knowledge. This is known as innuendo, in that the words have more than one meaning: “The Chief Constable of the West Midlands Police is the best police officer that money can buy”. Additionally, the phrase may have a hidden meaning: “I saw Helen leaving 14 Smithson Street, Anytown, last night”. Nothing wrong with that, unless you are aware that the address is a well-known brothel.

Tolley v Fry (1931). The claimant, Cyril Tolley, was a famous amateur golfer, depicted in a drawing as part of an advertisement for the defendant’s chocolate. He pleaded that the innuendo (i.e. background information which the reader would know and associate with the drawing) was that he had allowed his name to be used for advertising and thus prostituted his name and amateur status.

Cassidy v Daily Mirror Newspapers Ltd (1929). The defendants published a photograph of a couple, with a caption stating that it was Mr Cassidy and Miss X, whose engagement had just been announced. Mrs C sued for libel, claiming that people who knew them would interpret the article as meaning she was not married to Mr C. The action succeeded.

Byrne v Deane (1937) 1 KB 818. Police raided a golf club and seized an illegal fruit machine. A verse on the notice board was placed: “but he who gave the game away may he byrne in hell and rue the day.” The claimant sued the golf club, alleging that the note imputed that he was a police informer. The action failed as the statement would not lower him in the estimation of right thinking people, who would also have informed the police.

Lewis v Daily Telegraph (1964). The dispute centred on the headline “FRAUD SQUAD PROBE CITY FIRM”. The claimants argued that this phrase carried the defamatory meaning that the firm in question was actually guilty of fraud (or were suspected of it), in addition to the obvious meaning that an investigation was in progress. The House of Lords held that the alleged imputation of guilt was not an ordinary meaning and would require the support of extrinsic evidence, which the claimants could not produce. A re-trial was ordered, but the case was settled out of court.

REFERENCE TO THE CLAIMANT. The defendant’s statement must be shown to refer to the claimant. Usually the claimant will be named, thus there is no problem. The claimant does not have to show that the defendant intended to refer to him provided that reasonable people would believe him to be referred to. The situations that are of interest are where:

the character is supposedly fictional
two people have the same name
no person is named at all
a group of persons are defamed

THE CHARACTER IS SUPPOSEDLY FICTIONAL. In Hulton v Jones (1910), a humorous account of a fictional character ‘Artemus Jones, a churchwarden from Peckham’ and his doings in France were held capable of referring to the claimant; Artemus Jones, a barrister, even though he was not a churchwarden, nor did he come from Peckham.

Channel 4 fell foul in an episode of Phoenix Nights where Peter Kay portrayed a fire safety officer called ‘Keith Lard’. The character had a penchant for sex with animals! Unfortunately, in Bolton was a ‘Keith Laird’ who was a fire safety officer and bore a remarkable resemblance to the character portrayed in the comedy. The claimant settled for £10,000, half of which he gave to charity.

TWO PEOPLE HAVE THE SAME NAME. The defendant may be liable where the statement is true of one person but is in fact defamatory of another person with the same name. In Newstead v London Express Newspapers (1940), a newspaper report of a trial referred to Harold Newstead, a 30 year old Camberwell man, as a bigamist. The claimant, who had the same name, lived in Camberwell and was unmarried, successfully sued for libel.

NO PERSON IS NAMED AT ALL. There can still be a reference to the claimant even though he is not named. The test is whether reasonable persons knowing the claimant would take the words as referring to him: Morgan v Odhams Press (1971). An extreme example of the strict liability nature of the tort of defamation can be found in Cassidy v Daily Mirror (1929) discussed earlier.

CLASS DEFAMATIONS. where defamatory words are spoken of a group. If the group is large, then no individual can sue unless there is some specific pointer to him. So if a man said that all solicitors were thieves no individual solicitor could sue unless the words were clearly spoken with reference to one solicitor. Conversely if someone said that all the partners in Bloggs & Co. are thieves and there are only four partners, each could sue. In determining whether individual members of a class defamed can sue, it has been held that regard must be had inter alia to “the size of the class, the generality of the charge and the extravagance of the accusation”: Knupffer v London Express (1944).

It is true that the courts do not like such actions, see, for example, the disapproval of the Court of Appeal in Orme v Associated Newspapers Ltd (1981) (the Moonies case).

A company may bring an action for defamation, but the House of Lords has ruled that a local authority has no equivalent right regarding what might be called in governmental reputation: Derbyshire County Council v Times Newspapers (1993). Remember that individuals within the council may bring an action, and in this case the council leader, David Bookbinder, successfully did so.

Similarly, political parties cannot bring an action: Goldsmith v Bhoyrul (1997). Sir James Goldsmith sought to establish that the “Referendum Party”, which he founded to contest seats in the 1997 General Election, could sue for defamation.

Next week we begin with a DVD made by the BBC on the subject, we will then look at publication.

We began by discussing the questions on negligence and occupiers’ liability that I had set before the half-term break, before we moved on to the tort of CONVERSION.

Conversion is an act of wilful interference without lawful justification with any chattel inconsistent with the right of another, whereby that other is deprived of the use and possession of it. It is based upon a legal fiction in that the original allegation (once called ‘trover’) was that the defendant had found the thing and wrongly converted it to his own use

It covers rights of ownership rather than possession, and may overlap with trespass, for example where goods are seized (trespass) and later wilfully destroyed (conversion).

Liability in conversion is strict. An honest but mistaken belief of the defendant that he had the right to deal with the goods is no defence. In the example of the auctioneer above, even if the auctioneer genuinely believes that the thief is the true owner, this would provide him with no defence.

Conversion may be committed in numerous ways of which the most common are:

(1) Conversion by taking - unlawfully taking a chattel out of anyone else’s possession with the intention of exercising a permanent or temporary dominion over it. Mere taking without such intention is trespass to goods. “If I snatch your hat with intent to steal or destroy it I am liable for conversion and trespass, but if I do so to throw it at someone, it is trespass only”: Price v Hellyer [1828].

(2) Conversion by detention - unlawfully keeping a thing with the intention of doing so adversely to the true owner. The usual form is where a person comes by a thing lawfully, for example as a finder or bailee but then refuses to hand it over to the true owner. Merely retaining such a thing without the intention is not sufficient to constitute the tort. The usual form of proving the tort is to show a demand by the claimant for the return of the goods and a refusal by the defendant to comply.

(3) Conversion by wrongful delivery - wrongfully delivering a person’s goods to some other person so as to deprive the owner of title to them because that other person destroys or further disposes of them.

(4) Conversion by wrongful disposition - depriving a person of his goods by giving some other person lawful title to them without lawful justification. This form of tort applies to those cases where a person in possession of goods to which he has no title can still effectively, although wrongfully, dispose of them in such a way that he passes a good title to someone else. The dealing with the goods is a conversion. The easiest example is selling a car on hire purchase before all the payments have beenmade.

(5) Conversion by wrongful destruction - without lawful justification, wilfully consumes or otherwise destroys a chattel belonging to another person. Examples are destroying someone else’s property by burning it or throwing it in the sea so it cannot be found, eating it, or changing its character, for example by weaving thread into cloth. Damage to goods which falls short of destruction is likely to be actionable as trespass only.

(6) Conversion of documents or token - e.g. the misuse of a cheque.

Of more interest is the rule concerning a FINDER. Where goods are found and the true owner cannot be discovered the finder has good title against the whole world except for the true owner and can therefore maintain an action in conversion if his title is denied.

Armory v Delamirie (1721): a chimney sweep found a jewel and recovered in conversion against a goldsmith who took it for valuation and refused to return it. The finder’s title is based on de facto possession. There will be some situations where another person may have acquired a prior possessory title, for example the occupier of the land where the goods have been found.

Where the goods are found on land, who has the better title, the occupier of land or the finder? The principles were laid down in Parker v British Airways Board (1982) where a gold bracelet was found in the VIP lounge at Heathrow airport. The occupier will have better title if

• the finder is a trespasser on the land; or


• the property is attached to the land; or


• the occupier has manifested an intention to exercise control over the premises and the things which may be on it or in it. Control is assumed when the goods are buried in the land or attached to it, but must be proved when the goods in question merely happen to be lying on the surface of the land. A park to which the public has unrestricted access is an example of a situation where the finder is likely to have better title than the occupier.

In Parker the “finder” did establish an entitlement superior to that of British Airways.

“Treasure” is now defined in s1 TREASURE ACT 1996. The intention of Parliament is to bring all finds of historical significance under this statutory code, which replaces the common law rules of “treasure trove” but the definition of “treasure” is complicated and may prove difficult to apply with certainty. Anything which previously came within the definition of treasure trove is now treasure but many more objects and artefacts have been brought within the statutory code. The technicality that “treasure” (as with treasure trove before it) belongs to the Crown is preserved but the disposition of objects found will lie with the Heritage Minister. Anyone finding an object which he believes, or has reasonable grounds to believe, to be treasure must notify the Coroner within 14 days and the Secretary of State may determine a reward. A code of practice is being prepared.

s8 of the 1977 Act provides a defence of Jus tertii: in an action for wrongful interference with goods a defendant may plead this as a defence – showing that some third person has a better title than the claimant. The effect of the section is to enable all parties with any claim to the goods to be joined in the same action so that justice may be done.

For example, A retains and refuses to give up goods claimed by B because he believes that C is the true owner and if he were to hand them over to B, he might be liable for an action in conversion by C. If B sues A, then A can plead jus tertii and have C added as a party to the action.

s3(2) provides the following remedies:

• delivery of the goods and for payment of any consequential damages (very rare, in that the goods must usually be unique), or


• delivery of the goods, but an alternative of paying damages by reference to the value of the goods, together in either alternative with payment of any consequential damages (the usual remedy), or


• damages.

We then began a new tort whose origins go back for centuries, that of DEFAMATION. Defamation is the tort that protects reputation, and has been mentioned in Shakespeare:
He that steals my purse steals trash; its something, nothing,
But he that filches from my good name
Robs me of that which not enriches him,
And make me poor indeed. " Shakespeare, Othello act 3, sc. 3
It is divided for our purposes into:

• Libel – defamation in permanent form


• Slander – defamation in non-permanent form

A statement is defamatory if it tends to:

1. Expose him to hatred, contempt or ridicule; or


2. Cause him to be shunned or avoided; or


3. Lower him in the estimation of right thinking members of society generally; or


4. Disparage him in his business, trade, office or profession.

Note that it doesn’t have to do any of these things, only tend to do so.

Once a claimant has established:

• Defamation words/other matter are defamatory


• Identification words/other matter are reasonably understood to refer to the claimant


• Publication words/other matter are published to a third party

the burden of proof lies on the defendant to establish his innocence or rely on one of the defences available.

Defamation is most unusual in that, although a civil action, a jury will decide on liability, and the amount of the award. This has led to some very odd result.


Sutcliffe v Pressdram (1990) – the Court of Appeal held that the award of £600,000 was substantially in excess of what could be considered a reasonable sum to compensate the claimant and a retrial was ordered on the issue of damages only. The damages were reduced to £60,000. The case involved an allegation by Private Eye that Sonia Sutcliffe, wife of the Yorkshire Ripper, must have been aware of what he had been doing.

Rantzen v MGN (1993) – the Court of Appeal substituted an award of £110,000 for the jury’s assessment of £250,000.

We will continue with this next week.

I began the evening with an apology, as the material we were to look at was not likely to be examined. In fact, it hasn’t seen the light of day in the past 12 years, and I don’t see any change for the next 12 years either.

Liability for fire is governed by s86 FIRES PREVENTION (METROPOLIS) ACT 1774, which despite its title is not confined to London.

No one will be liable for a fire which begins on his premises, unless he has been negligent in respect of it. If the fire arises by accident the occupier may be liable if he is negligent in allowing it to spread.

In Musgrove v Pandelis (1919) a fire accidentally started in the carburettor of the defendant’s car. The defendant’s employee negligently failed to turn off the petrol tap and the fires spread. The defendant was held liable not for the original fire but for the spreading of the fire.

We then turned to LIABILITY FOR ANIMALS. Liability for damage caused by animals can arise both at common law and statute, particularly the ANIMALS ACT 1971.

There are many ways in which a tort can be committed by means of an animal.

NUISANCE: An actionable nuisance may be caused by the noise or smell of animals: Bone v Seale (1975) 1 WLR 797 - the smell of pig manure and pig swill.

NEGLIGENCE: The tort of negligence will be the relevant action if the defendant fails to exercise reasonable care in the control of an animal. In Draper v Hodder (1972) the defendant’s Jack Russell terrier pups escaped from his premises and caused serious personal injury to the infant claimant, who was playing next door. The young dogs made their attack whilst acting as a pack and this was a foreseeable risk against which the defendant should have taken greater precautions.

TRESPASS: will be committed if a person intentionally brings about the direct contact of an animal with the body, land or chattels of the claimant.

RYLANDS v FLETCHER: it is quite possible that if animals were accumulated in a manner which constituted a non-natural use of the land, their escape, leading to foreseeable damage to the claimant, could give rise to liability under the rule.

OCCUPIERS’ LIABILITY ACTS: a lawful visitor or trespasser injured by an animal may be able to bring an action.

DEFAMATION: teach your parrot to defame someone!

The ANIMALS ACT 1971 replaced the common law rules which divided animals into fierce and docile categories for the purpose of establishing strict liability. The distinction is preserved, but as dangerous and non-dangerous species. The snag is that the change of definitions means that some animals have changed category. At common law, a camel was a docile animal because they are generally adapted to the service of man; under the Act, a camel is a dangerous species because it is not commonly domesticated in the British Isles.

Special liability is imposed for trespassing livestock, but they will also fall into the category of non-dangerous species if they cause harm in other ways than by trespassing, e.g. if a goat butts someone causing injury. Dogs are also dealt with separately for worrying livestock, but they also fall into the non-dangerous category generally.

A DANGEROUS SPECIES is defined by s6(2):

• not commonly domesticated in the British Islands (e.g. wild stags, foxes and wild cats); and


• whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage (e.g. snakes or tigers) or that any damage they may cause is likely to be severe (e.g. an elephant because of its sheer bulk).

In Behrens v Bertram Mills Circus (1957) the claimants were injured by the defendant’s Indian elephant. It was accepted that the animal was no more dangerous than a cow, but was still dangerous.

To be dangerous a species must satisfy both parts of the definition, thus many foreign animals will not be dangerous, e.g. bush baby, penguin. The question whether a species is dangerous or not under s6(2) is one of law. The unwieldy definition can give rise to problems of classification in relation to very commonplace animals such as rabbits and cats. The cat, for example is a commonly domesticated animal in the British Islands, but there are wild cats in Scotland and many numbers of the cat “family” (lions, tigers etc.) are not domesticated.

There also exists a Dangerous Wild Animals Act 1976 with regard to licensing, so the schedule of the statute lists them and they will be covered by s6. Bizarrely absent form the schedule is buffaloes and hippopotamuses, both evidently dangerous.

Liability for an animal of a dangerous species is governed by s2(1):

“where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage, except as otherwise provided by this Act.”

Liability is therefore strict subject to the defences in s5. Liability will fall on the keeper of the animal, defined by s6(3) as someone who:

• owns the animal or has it in his possession; or


• is the head of a household of which a member under the age of sixteen owns the animal or has it in his possession. (This deals with the problem where the animal is theoretically owned by a child).

Liability for non-dangerous species animals is covered by s2(2):

“where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage . . . if

• the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and


• the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species (e.g. an unusually large size or a propensity to viciousness) or are not normally found except at particular times or in particular circumstances; and


• those characteristics were known to that keeper (it had done the act before) or were at any time known to a person who at that time had charge of the animal as that keeper’s servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.”

The complicated wording of s2(2) has been given detailed consideration by the Court of Appeal in Curtis v Betts (1990). The defendants owned a bull mastiff which regularly travelled in the back of a Land Rover. The claimant aged 10, lived in the same neighbourhood and was known to the dog. He approached the dog as it was being loaded into the Land Rover. The dog leapt at him and bit him twice. The Court of Appeal held that the requirement of s2(2) had been satisfied because the size of the dog (ten stone with massive jaw and teeth) meant that damage it caused was likely to be severe and the particular characteristic of the dog was to react aggressively when defending its territory. This behaviour was known to the keepers.

A causal link must exist between the characteristic in question and the damage suffered. In Jaundrill v Gillett (1996) the issue of causation enabled the owner of horses which had been maliciously released onto the public highway to win his appeal. On the facts it was the actual presence of the horses on the road and not any characteristic of the horses which had caused the collision between the claimant’s car and the horses.

Mirhavedy v Henley [2003] – the claimant was injured when a horse collided with his car. The horse had stampeded from a field breaking through fences. The horse was in extreme fear, although the cause was not known. This behaviour was in no way abnormal in such circumstances. It was held that s2(2)(b) Animals Act 1971 applied to normal characteristics which only occurred in particular circumstances. The statutory allocation of risk placed the responsibility for such on the keeper.

Knowledge of the particular characteristic is essential to this strict liability tort.

Defences are contained in s5. In addition, s10 and s11 have the effect of allowing a reduction in damages for contributory negligence where appropriate.

s5(1): there is no liability for damage which is wholly due to the fault of the person suffering it.

s5(2): there is no liability for damage to a person who has voluntarily accepted the risk thereof. Where a person is employed as a servant by the keeper of the animal and incurs a risk incidental to his employment he shall not be treated as accepting it voluntarily - s6(5). Nelmes v C.C. Avon [1993]: the claimant kicked a police dog who, quite naturally, bit him.

s5(3): There is no liability for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it is proved either:

• that the animal was not kept there for the protection of persons or property; or


• (if the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable.

The GUARD DOGS ACT 1975 creates a criminal offence to use or permit the use of a guard dog on business premises without the guard dog being at all times under the control of the handler. There is no civil penalty, but it may mean that the use of a guard dog is now unreasonable for the purpose of s5(3).

Trespassing livestock is governed by s4(1) ANIMALS ACT and provides that a person to whom livestock belongs is liable:

• for damage done to the land onto which it strays, to the owner or occupier of the land;


• for damage done to property on the land.

There is no liability for personal injuries or damage to property belonging to a third party. Livestock “belongs” to the person in whose possession it is (s4(2)). Liability is strict, the only defences are provided by s5(1), (5) and (6):

s5(1) - If the damage is wholly due to the fault of the person suffering it. The damage shall not be treated as due to the fault of the person suffering it by reason only that he could have prevented it by fencing. But the defendant will not be liable under s4 where it is proved that the straying of the livestock on to the land would not have occurred but for a breach by any other person, being a person having an interest in the land, of a duty to fence. A causal link between the breach of duty to fence and the straying of the livestock is essential.

s5(5) - a person is not liable under s4 where the livestock strayed from a highway and its presence there was a lawful use of the highway, e.g. to herd livestock from one place to another. If there is evidence of lack of reasonable care (too many cattle for a single herdsman to control), then an action may arise in the tort of negligence.

The definition of livestock is found in s11: cattle, horses, asses, mules, hinnies ( a cross between a female donkey and a male horse), sheep, pigs, goats and poultry, and also deer not in the wild state and, in s3 and s9, also, while in captivity, pheasants, partridges and grouse.

s7 - the occupier may detain trespassing livestock and sell it after 14 days. During the period, the person must feed the livestock properly and give notice within 48 hours to the police and the owner of the livestock, if known. If an offer of amends is made, the livestock must be released to the owner. The sale must take place at market or by public auction to ensure a fair price. After deducting the costs of sale and of keeping the livestock pending sale and the compensation for the damage caused, any surplus must be returned to the owner.

There is a special provision for dogs worrying livestock in s3. Liability is for damage caused by a dog in injuring or killing livestock. The keeper of the dog is strictly liable. There is no requirement that the dog should have particular characteristics.

The owner has a defence under s5(4) “if the livestock was killed or injured on land on to which it had strayed and either the dog belonged to the occupier or its presence on the land was authorised by the occupier”.

s9 provides a defence for a person who kills or injures a dog which:

• is worrying or is about to worry livestock, and there are no other reasonable means of ending or preventing the worrying; or


• the dog has been worrying livestock, has not left the vicinity, is not under the control of any person and there are no practicable means of ascertaining to whom it belongs.

The person harming the dog must also show:

• that he was entitled to act for the protection of livestock (i.e. he owns either the livestock or the land on which it is kept, or is authorised to protect it by either owner); and


• that he gives notice to the police within 48 hours.

Animals straying onto the highway is governed by s8. A duty of care is owed, general principles of negligence will apply. If an animal does stray onto the highway the court will consider all matters relevant to the issue of reasonableness, for example nature of the animal, the possibility of fencing, proximity to the highway, amount of traffic usually on the highway.

s8(2) deals with certain types of land where the burden of fencing against the public highway would be very heavy, i.e. common land, town or village greens and such areas where fencing is not customary (for example moorland). In such areas, provided that the defendant had a right to place the animals on the land in question, lack of fencing, by itself, will not be sufficient to establish breach of duty of care.

Thank goodness that’s over, but we aren’t out of the woods yet.

We then turned to INTENTIONAL INTERFERENCE WITH INTERESTS IN CHATTELS. The TORTS (INTERFERENCE WITH GOODS) ACT 1977 provides a statutory basis for the complex law relating to wrongful interference with interests in chattels. The Act provides no full definition of the other torts in this area, and so reference to common law principles is necessary to understand the present law. The Act provides a new term “wrongful interference with goods” to embrace all torts concerned with the protection of interests in chattels:

• trespass to goods;


• conversion of goods;


• negligence


• any other tort which results in damage to goods or an interest in goods (s1).

Committing any act of direct physical interference with a chattel in the possession of another person without lawful justification is a trespass to goods.

It is probable that the tort must be committed intentionally and is actionable per se, just as with other forms of trespass. In common with other trespasses, the defendant’s act must be direct. A person mixing drugs with a greyhound’s food commits trespass to the food but not to the racehorse, as the effects on the greyhound are indirect and consequential.

The tort may be committed in many ways, for example by taking goods, moving goods from one place to another, striking a person’s dog, erasing a tape recording, shooting a racing pigeon or scratching a car.

The question of car clamping was raised in Arthur v Anker (1996). The Court of Appeal specified the conditions which, if met, would mean that the clampers committed no tort or crime:

• the existence of a clear warning notice stating that a vehicle parked on the premises without lawful authority would be wheel clamped and released only upon payment of a specified fee;


• the existence of means by which the motorist could communicate his wish to pay the fee (phone number on sign?);


• and the release of the vehicle without delay when the motorist tenders the fee.

In effect the motorist is volens to the clamping when these conditions are met, although what would happen if the motorist put a sign in his vehicle specifically stating that he does not consent has yet to be tested. Why? Because I have only recently thought about it!

Vine v Waitham Forest LBC [2000]. The claimant’s car was wheel clamped whilst parked on D’s property. Judge found that the claimant had not seen the warning notice. Argued by the defendant that whether a person had voluntarily assumed the risk or consented to the trespass to their property was to be tested objectively. CA rejected this. The act of clamping a car, even one that was trespassing was one of trespass to goods, unless it could be shown that the owner had consented to or willingly accepted the risk. You have to establish that P saw and understood the significance of the notice. Normally visible notices would lead to such a conclusion. However, the judge’s finding makes this impossible.

We will begin with looking at conversion next time.

There is no class next week, half-term. See you on Tuesday 20th February.