Tort Elements Defences Remedies
Assault actionable per se — no proof of damage needed consent — complete defence; damages — any trespass to the person, however slight,
gives a right of action to recover at least nominal
Collins v Wilcock, Goff LJ: assault is an act which causes C to i. C must have the ability to understand what is damages (compensatory & aggravated).
apprehend the infliction of immediate, unlawful force on involved: Gillick v West Norfolk Health
another. Authority i. principle of full compensation: Livingstone v
ii. capacity to consent — test Mental Capacity Raywards Coal Co
restated in Mbasogo — “overt act indicating an immediate Act 2005 s.3(1), a person is unable to make a
intention to commit a battery, coupled with the capacity to carry decision for himself if he is unable: ii. action = living C, C's estate (1934 Act), C’s
that intention into effect, causing another to apprehend the dependants (1976 Act).
infliction of immediate and unlawful force”. (a) to understand the information
relevant to the decision, iii. pecuniary loss = special damages (pre-trial), future
i. a positive act required before civil liability in trespass can (b) to retain that information, loss.
attach, as opposed to mere passivity.: Innes v Wylie; (c) to use or weigh that information as
part of the process of making the lump sum award or PPO (Damages Act 1996, s 2)
decision, or
words & silent phone calls suffice: Ireland. (d) to communicate his decision (whether
by talking, using sign language or any multiplier = number of years the loss will continue;
NOTE mere gesture, however menacing, is not other means). adjusted to account for vicissitudes of life (Jobling),
actionable if it appears at the time that there is no acceleration, inflation (c.f. Wells, RoR f Damages Act
intention to put the menace into immediate effect: iii. real consent: Chatterson; no duress (i.e. 1996 s.1), “lost years” (Pickett);
Tuberville. physical violence/ immediate threat), no
fraud (bad faith; aff ’d Appleton v Garrett). multiplicand = annual loss (net of deductions); esp. lost
ii. “immediate” — question of fact: Stephens (assault bc D was NOTE re medical cases if patient earnings and care costs (includes gratuitous care: Hunt).
within striking distance, even though he was stopped from “informed in broad terms of the nature
striking), c.f. Mbasogo (no assault bc unclear if D was of the procedure which is intended”, full deduction of collateral benefits except for
armed/ even had the capacity to carry out immediate attack) consent real. insurance payments, pensions (“fruits of insurance”)
and charity: Hussain
threats may suffice: Reed (assault bc D stood near C with iv. consent must cover tort at hand: Chatterson,
his workmen with sleeves and aprons tucked up, and told c.f. unreported case about circumcised boy. iv. non-pecuniary loss = non-financial loss.
C they would break his neck if he did not leave), c.f.
Tuberville (no assault bc D said ‘if it were not assize v. consent may be implied from circumstances, lump sum award or, if parties consent, PPO (ibid.)
time I would not take such language from you’) e.g. games and sports: Blake v Galloway or
everyday activities: Wilson distinction pain and suffering/ loss of amenity: Lim Poh
iii. intention required (negligence insufficient): Letang v Cooper self-defence — complete defence; if D’s action Choo
(aff ’d Iqbal), intend the act which caused the harm, not the was reasonably necessary to protect themselves.
outcome/harm itself; Shephard: unconscious C does not recover for pain and
D must honestly and reasonably believe suffering but recovers for loss of amenity; special
=> intend an act that, objectively, causes reasonable there is a threat: Ashley v CC of Sussex hobbies => higher damages for loss of amenity.
apprehension of an immediate infliction of unlawful Police
force. Heil: losses not frozen in time; award must be fair,
D’s response to the threat was reasonable and just.
iv. C reasonably apprehended the immediate infliction of proportionate: Lane v Holloway (tap on
the shoulder vs. severe blow to the eye)
unlawful force — objectively reasonable => no assault if v. aggravated damages — feelings of distress/ outrage
there is no means to put the threat into effect, apprehension necessity due to circumstances in which tort was committed,
must be related to an overt act of D. D’s conduct afterwards. (Ashley)
medical context — treatment given in the
apprehension does not necessarily mean fear, but best interest of patient lawful: In Re F Richardson doubted in Doherty
expectation: R v Lamb (Mental Patient: Sterilisation)
D’s behaviour during litigation: Choudhary;
c.f. Mental Capacity Act 2005 ss. 1-5 egregious circumstances: Dulghieru;
**different rules for estates and dependants (below);
, Tort Elements Defences Remedies
Battery actionable per se — no proof of damage needed consent — complete defence; damages — any trespass to the person, however slight,
gives a right of action to recover at least nominal
Collins v Wilcock, Goff LJ: battery is the actual infliction of i. C must have the ability to understand what is damages (compensatory & aggravated).
unlawful force on another. involved: Gillick v West Norfolk Health
Authority i. principle of full compensation: Livingstone v
i. a positive act required before civil liability in trespass can ii. capacity to consent — test Mental Capacity Raywards Coal Co
attach, as opposed to mere passivity.: Innes v Wylie; Act 2005 s.3(1), a person is unable to make a
decision for himself if he is unable: ii. action = living C, C's estate (1934 Act), C’s
ii. form of act: so long as it is direct, anything which amounts dependants (1976 Act).
to a blow, whether inflicted by hand, weapon or missile, is a (a) to understand the information
battery, throwing water over someone or spitting on his face. relevant to the decision, iii. pecuniary loss = special damages (pre-trial), future
(b) to retain that information, loss.
NOTE c.f. directness interpreted broadly — contact (c) to use or weigh that information as
through clothes (Thomas), other mediums (DPP v K) part of the process of making the lump sum award or PPO (Damages Act 1996, s 2)
decision, or
suffices (Argue by analogy here bc criminal cases) (d) to communicate his decision (whether
by talking, using sign language or any multiplier = number of years the loss will continue;
iii. intention required (negligence insufficient): Letang v Cooper other means). adjusted to account for vicissitudes of life (Jobling),
(aff ’d Iqbal), intend the act which caused the harm, not the acceleration, inflation (c.f. Wells, RoR f Damages Act
outcome/harm itself; iii. real consent: Chatterson; no duress (i.e. 1996 s.1), “lost years” (Pickett);
physical violence/ immediate threat), no
=> intend to inflict unlawful force on another fraud (bad faith; aff ’d Appleton v Garrett). multiplicand = annual loss (net of deductions); esp. lost
NOTE re medical cases if patient earnings and care costs (includes gratuitous care: Hunt).
iv. unlawful contact by D against C — must be in excess of “informed in broad terms of the nature
“that generally acceptable in everyday life per F v West of the procedure which is intended”, full deduction of collateral benefits except for
Berkshire Health Authority. consent real. insurance payments, pensions (“fruits of insurance”)
and charity: Hussain
ibid, Lord Goff:“any touching of another’s body is, in the iv. consent must cover tort at hand: Chatterson,
absence of lawful excuse, capable of amounting to a battery and a c.f. unreported case about circumcised boy. iv. non-pecuniary loss = non-financial loss.
trespass”
v. consent may be implied from circumstances, lump sum award or, if parties consent, PPO (ibid.)
e.g. games and sports: Blake v Galloway or
everyday activities: Wilson distinction pain and suffering/ loss of amenity: Lim Poh
self-defence — complete defence; if D’s action Choo
was reasonably necessary to protect themselves.
Shephard: unconscious C does not recover for pain
D must honestly and reasonably believe and suffering but recovers for loss of amenity; special
there is a threat: Ashley v CC of Sussex hobbies => higher damages for loss of amenity.
Police
Heil: losses not frozen in time; award must be fair,
D’s response to the threat was reasonable and just.
proportionate: Lane v Holloway (tap on
the shoulder vs. severe blow to the eye)
v. aggravated damages — feelings of distress/ outrage
necessity due to circumstances in which tort was committed,
D’s conduct afterwards. (Ashley)
medical context — treatment given in the
best interest of patient lawful: In Re F Richardson doubted in Doherty
(Mental Patient: Sterilisation)
D’s behaviour during litigation: Choudhary;
c.f. Mental Capacity Act 2005 ss. 1-5 egregious circumstances: Dulghieru;
**different rules for estates and dependants (below);
, Tort Elements Defences Remedies
Nuisance i. identify the claimants(s) and whether they have standing to i. prescription = deemed grant of a right to injunction = primary remedy: Lawrence
sue carry out an activity which would otherwise
be a nuisance, arising out of long use: general rule = grant injunction if sought, not
C must have proprietary / possessory (i.e. exclusive possession) Lawrence; damages bc D is not entitled to ask the Court to
interest in property, mere occupation insufficient: Hunter sanction his doing so by purchasing his neighbour’s
NOTE the following have no standing to sue: lodgers, au pair, a. carried out by D with the requisite knowledge rights: Shelfer
resident nurse caring for an invalid, live-in servant, temporary or tolerance by C— objective assessment,
visitors, residents of retirement homes/ children’s homes or care depends on whether reasonable person was damages — for any loss caused by the nuisance
homes, children or relatives living with parents int he family aware that a continuous right was asserted by
home, spouses w/o proprietary title, : Hunter (693-4) D and should be challenged if C resisted that physical damage to property — damages are assessed
ii. establish an interference with use and enjoyment of C’s land; b. assertion being made against his land.
carried out for at least 20 years — does not
according to the normal principles relating to this
type of damage (generally the cost of either replacing
court weighs up different factors and asks if the conduct have to be continuous, does not have to be or repairing the property, whichever is less).
interferes with C’s use of his land, not ‘elegant and dainty habits’, every single day; activities must be shown to
but ‘plain and sober notions’: Walter; have been consistent and significant enough loss of amenity — difficult to assess damages but C
over the entire period. would probably prefer injunction in this case anyways.
mere presence of building insufficient (Hunter), overlooking c. must have constituted an actionable nuisance
insufficient (Fearn); BUT sight of prostitutes sufficient for the requisite 20 years. damages in lieu of injunction: s. 50 Senior Courts Act
entering/ leaving neighbouring premises sufficient bc it was 1981
offensive sight to neighbours (Costaki)
iv. statutory authority (no negligence) — the
iii. establish type of interference —- distinction between question is one of statutory construction: Shelfer: if case for injunction is made, the general
physical damage to property and loss of amenity: St Helen’s Allen rule may be relaxed if:
Smelting Co
c.f. regulatory compliance, no express / i. injury to C’s rights is small;
iv. establish whether D’s conduct amounts to an unreasonable implied statutory authority to commit a
user of land (causes an unreasonable interference with C’s nuisance => no basis for using a statutory ii. capable of being estimated in money;
use of land): Cambridge Water (Lord Goff) aff ’d Bamford
“give and take” balancing exercise; NOTE that for physical scheme as a defence: Biffa
damage to property, the balancing exercise is more limited. iii. adequately compensable by a small sum;
NOTE no defence:
a. nature and extent (duration, intensity, frequency) of iv. case is one in which it would be oppressive to
interference; i. coming to the nuisance: Miller D to grant an injunction.
b. locality (loss of amenity): St Helen’s Smelting Co Lawrence dicta suggests it might be a NOTE there may be cases where, though the
c. Sturges: “what would be a nuisance in Belgrave Square would defence to contend that, as it is only above conditions are met, D’s conduct
not necessarily be so in Bermondsey”, aff ’d Baxter because the claimant has changed the use disentitles him from asking that damages may
of, or built on, her land that the be assessed in substitution for an injunction,
d. Lawrence: dominant use (residential, commercial, industrial defendant's pre-existing activity is e.g. he hurries up his buildings to avoid the
or agricultural) / the ‘established pattern of uses’ claimed to have become a nuisance. effects of a
e. D’s malice: Christie, Emmett BUT Pickles ii. public benefit: Bamford, Lawrence BUT Lawrence doubted this — even if not all
f. sensitivity of C’s use of land, no claim: Robinson criteria are met, an injunction doesn’t have to be
iii. planning permission normally of no granted. don’t adhere slavishly to the criteria.
g. D’s activities only where they could be carried out w/o assistance to D BUT the fact that the
constituting nuisance; also note public benefit and planning planning authorities were prepared to grant considerable weight could if appropriate be
permission (Lawrence); permission for a use in a particular location given to public interest considerations, and to
v. fault is irrelevant BUT D not held liable for damage of a type may itself be indicative of the nature of the the granting of planning permission for the
they could not reasonably foresee: Cambridge Water locality in question: Lawrence defendant’s activity in deciding whether to
award damages instead of injunction.
exception — C must prove that D was negligent in an activity conducted in contravention of
failing to abate the interference of natural or man-made permission unlikely to be reasonable, but the
hazard onto C’s land. D owes measured duty of care to converse does not follow: Biffa
C: Sedleigh-Denfield, Goldman.
