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Exam (elaborations)

Tort
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Nicely presented and easy to follow. Topics include: Trespass to the Person, Negligence, Remedies, Employer's Liability, Occupier's Liability, Product Liability, Private Nuisance and Trespass to Land.

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  • June 18, 2019
  • 23
  • 2018/2019
  • Exam (elaborations)
  • Unknown

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TORT REVISION

GENERAL DEFINITION: Tort applies when people have suffered harm, injury or loss because of another person’s wrongdoing. Tort governs the relationships between
individuals.
TYPES OF RECOGNISED HARM IN TORT
*Must be a recognised harm protected by law in tort (Bradford Corporation v Pickles)  This does NOT include mere embarrassment or stress
Types of harm protected by the law of tort: a claimant must suffer a recognised harm in order to be able to make a successful Tort claim (not all harm can be compensated)
 Trespass to the person:
o Assault: fear of physical injury
o Battery: intentional physical injury/ contact causing no physical injury (‘actionable per se’)
 Negligence: accidental physical/ psychiatric injury- careless acts that cause tangible harm (professional negligence applies)
 Defamation (interests based): statements that cause damage to person’s reputation
 Private Nuisance (results based): annoyance caused by neighbours, unreasonable interference with use and enjoyment of land (pollution, loud noise)
 Trespass to land: damage to property, intentional interference with possession of land (does not have to damage to pursue a claim- it is also actionable per se)

TRESPASS TO THE PERSON
(Umbrella Terminology)
Definition: this is an umbrella term used to describe separate torts which share origins: (cover both)- both assault and battery (trespass to the person) are actionable per se, so there is
no need to prove physical harm in order to sue.

STEP 1: state: the claimant may consider suing the defendant in the tort of trespass to the person for [insert conduct]

STEP 2: define the relevant tort- battery or assault

1. Battery: Intentional direct application of unlawful force to another person- direct intentional infliction of unlawful force on another, act of making physical contact must be
intention, don’t need to show intention to cause injury.
a. What constitutes intention?  Wilson v Pringle: it is not necessary for the defendants to intend the consequences of their actions. It is enough for the actions
to be intentional. If it is difficult to establish intention, the claimant could make an alternative claim for negligence. Action only needs to be intentional – ‘kicking,
punching, pulling’
b. Must be a ‘direct application’ of force – it must flow immediately and without intervention from the defendant’s actions.
c. What is unlawful force:  F v West Berkshire: Lord Goff said there was a ‘general exception embracing all physical contact which is generally acceptable in the
ordinary conduct of everyday life’ – unlawful force is hostile and not socially acceptable

2.
Assault: Intentional act by the defendant that causes another person to reasonably apprehend the direct and immediate infliction of unlawful force upon another person
a. Intentional conduct by defendant
i. Intentional conduct is essential, if not and just careless relevant tort is negligence (Letang v Cooper)
b. Reasonable apprehension
i. R v Ireland- words alone can amount to an assault
ii. BUT words can take away any immediate threat (Turberville v Savage))- conditional can negate immediacy: ‘If I didn’t have…/ if you come near him,
I’ll kill you’
c. Of an immediate infliction of a battery (‘within a minute or so’- R v Ireland)- Stevens V Young
*It is not necessary for the defendant to intend that claimant apprehends the infliction of battery (Bici v Ministry of Defence)
*Both require intentional conduct, if not, would be negligence.

DEFENCES:
Defendant can raise a number of defences once a claimant has proved that the defendant has committed a trespass to the person The burden of established a defence lies with the
defendant:
*Provocation is not a defence
*Co-operative Group Ltd v Pritchard: defendant cannot allege contributory negligence as defence to claims for assault and battery (not a defence)
1. Consent (medical treatment and sport)- implied?
a. Condon v Basi
2. Lawful arrest
a. Police powers of arrest contained in the Police and Criminal Evidence Act 1984
3. Defence of the person/Self-defence
a. Cockcroft v Smith/ Lane v Holloway: defendant must establish:
i. The force must be used in self-defence and not as an act of retaliation
ii. Force must be reasonable
iii. The force must be proportionate to that used or threatened by the claimant
4. Defence of property
a. Green v Goddard
5. Necessity
a. Defendant must show that a situation of necessity exists and that their actions were reasonable in all the circumstances of the case
b. F v West Berkshire Health Authority: justification for treating an adult without consent: 1) emergency situation where the patient is unconscious + 2) when patient is
incapable of giving consent
OTHER INTENTIONALLY CAUSED HARM
*Distinct and separate from torts comprised in trespass to the person, but sits alongside them
Rule in Wilkinson v Downton: the defendant intended to cause shock to the claimant who suffered some tangible damage (physical harm/psychiatric harm) as a result. Rhodes v OPO,
the Supreme Court reformulated the elements of the tort as having: ALL MUST BE PRESENT
1. A conduct element requiring words or conduct directed at the claimant for which there was no justification or excuse;
2. A mental element requiring an intention to cause at least severe mental or emotional distress; and
3. A consequence element requiring physical harm or recognised psychiatric illness
Victims may also use the Protection from Harassment Act 1997 against people who carry out a course of conduct that amounts to harassment.
- Defendant must act with intention, but not trespass (not actionable per se), there is a lack of direct application of force, claimant must suffer some illness or injury.
Human Rights Act 1998
A claim under the Human Rights Act 1998 provides an alternative to an action in tort where the defendant is a public body (Van Colle)
Limitations
o Has to be a recognised harm in law of tort/ cannot be for pure economic loss
o Using negligence to pursue claims against public bodies like Police (public policy reasons) (Osman v Ferguson; Van Colle)
DEFAMATION

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