In this 250 page document of notes, this Revision Bible includes the lecture notes, textbook reading summaries, and additional / recommended reading which gave me a 1st class in Tort Law.
P Parties # the opening paragraph of any problem answer should immediately set out who is
suing whom, and for what – it is important to isolate all the potential C’s, and
all the potential D’s (there will often be more than one of each, lurking in a
problem question)
# also, one needs to check for both obvious causes of action (e.g., negligence), and
C Cause/s of perhaps smaller, less obvious causes of action (e.g., assault), on the facts
action
# it is also important to bear in mind that, at the outset, the purpose is to identify all
potential causes of action – the advice will then specify later, and in more detail, why
one or more of those causes of action just may not succeed for C
E Elements # each cause of action in Tort has various stipulated elements, and the purpose of C’s
of the case is to prove every one of them, and the challenge for D is to ‘knock out’
cause of one or more of those elements
action, or
of any # each element should ideally constitute a sub-heading in your answer
relevant
defence # also, this ‘E’ should be taken to constitute the elements of defences – having
to progressed through the cause of action itself, one needs to consider any
the cause relevant defences, and those have elements too
of action
P Principles # then, under each element, there will be various principles of law, which govern
that apply how the law of Tort seeks to determine and allocate losses and
under each responsibilities among parties
element
# it is only necessary to cite and refer to the relevant principles (some principles
probably won’t apply to the particular facts in front of you, but for all the principles
that do, they need to be considered and referred to)
2020
What it Explanation
means
,A Apply the - then, the principles need to be applied to the facts at hand – this process is often
principle combined with the previous stage – this stage of the problem answer requires
s to the one to ‘thrash around the problem’, to consider possible arguments for C, and
facts possible arguments for D, for rarely will the outcome be entirely clear
- it is also necessary to analogise and distinguish cases at this stage, with the
facts that you have in front of you, to determine whether the principles of a
case will determine the outcome, or whether the case can be distinguished
- also, it is important to appreciate which elements are so obviously-satisfied
that they only deserve a few lines’ worth of treatment, and which elements are
truly contentious between the parties on these facts, and therefore will require
much more legal treatment – that is part of the skill of answering problem
questions: to know when to discuss an element at length, and when not to
C Conclude - it is always essential to come to a concluded view on each element, and also,
for each on the problem as a whole
element,
and for the
overall - the concluding paragraph should directly answer the question, e.g., ‘Advise
advice Lara.’ ‘I would advise Lara that she has excellent/good/poor/hopeless prospects
of success, because ...’ (and then follows a very short summary of your views)
A SUGGESTED STRUCTURE FOR TORT ANALYSIS
Identify the parties - who is suing who? C’s v D’s
(C’s, D’s) - what if C died, allegedly as a result of the D’s
negligence? i who is potentially liable directly, or
vicariously?
- are there any statute of limitations issues?
Each tort is composed of >1 element — C must prove every single one of the elements to make out the tort
Analyse the elements of For example, take the tort of negligence – it has four elements:
the tort 1. Does D owe a duty of care to C?
2. Is there a breach of the duty of care by D?
3(a). Did that breach cause the damage complained of by C? ...
(b). ... which damage is not too remote at law?
If C has proven each element, the action is prima facie proven ... but ...
Analyse whether any For example, take the tort of negligence – it has several defences,
defences are available to D including:
- contributory negligence?
- volenti?
- therapeutic privilege?
Finally, if C is - damages? (If so, what heads? Compensatory; aggravated;
successful, what punitive/exemplary; restitutionary?)
remedies are - injunction?
available to C? - apology?
,Exam important information
1) Pick 3/6 questions, NO part A part B
2) The exam paper is word-limited at 3,600 words. That equates to about 1,200 words per
question attempted. However, please note that the word limit applies to the paper overall
(and which will be checked prior to marking). No individual word limits will apply to
individual questions.
3)
Questions 1–5 Question 6
These questions will be drawn from all parts of the course, other This question
than Defamation. The general ‘garden’ principles of negligence (i.e., will pertain
the law covered in Weeks 1–8 of the curriculum) may be examined solely to
in any, and all, questions. Defamation, and
to nothing else.
Any of the ‘applications of negligence’ may be streamed within
the one question.
The individual ‘applications of negligence’ will not appear in more
than one question (i.e., if occupiers’ liability appears in Q2, it will
not appear elsewhere on the paper).
The ‘applications of negligence’ comprise the following topics:
# occupiers’ liability;
# product liability;
# public authority liability;
# employers’ liability;
# negligently-inflicted pure psychiatric injury; and
# negligently-inflicted pure economic loss.
Not every ‘application of negligence’ may appear on the exam paper.
Vicarious liability may arise in any of these questions, when
designating the parties to be sued. However, where vicarious liability
is at issue, it will appear (if it does) only once in the exam paper.
Topics I will cover
1) ***Defamation
2) Pure economic loss
3) Pure psych loss
4) “Garden principles of negligence”
5) Occupiers’ liability
,Defamation
Overview of Tort of Defamation!!
1) Prerequisites
a) #1: Is it Libel or Slander?
i) Libel has permanence, Slander has transience
ii) Libel tends to be written, Slander to be spoken
iii) Libel is ‘addressed to the eye’, Slander is ‘addressed to the ear’
b) #2: The matter is justiciable (not examined so go die)
c) #3: Proof of a real and substantial tort
i) Jameel principle of real and substantial tort for crossing de minimis
threshold
ii) s1(1) Defamation Act 2013: “publication has caused or is likely to cause
serious harm to reputation of C”
iii) Libel needs proof of damage
d) Capacity of C to sue
i) Government and public authorities cannot sue as per: Derbyshire
principle
ii) An individual in govt or PA can sue if they’re identified
iii) Incorporation associations can sue, Companies can sue, Partnerships
can sue
iv) Trade unions, unincorporated associations CANNOT sue
2) Elements of proving Defamation
a) A defamatory Imputation
i) Ascertaining the meaning of words
(1) Direct literal meaning
(a) The actual meaning of words
(2) A false (popular) innuendo
(a) By reading between the lines, a person would know what
was being said
(3) True (legal) innuendo
(a) Where statement does not appear prima facie to be
defamatory, but IS ACTUALLY defamatory because certain
readers would know of extrinsic circumstances or
extraneous factors relating to C that would MAKE the
words defamatory
ii) Proving that imputation was defamatory
(1) Proving the statement was defamatory is by considering how the
attitudes of the “right thinking members of society” would
adversely affect the C OR something that causes C to be
shunned, ridiculed or avoided
, iii) Who is the reasonable listener/reader?
(1) The right thinking member of society
(2) From society as a whole, not a subsection of it
iv) The bane and antidote
(1) Headlines, photos, accompanying text, should be read in
conjunction with each other
v) Intent
(1) Whether defendant intended to defame is irrelevant
(2) It is about whether the imputation has resulted in someone being
‘hit’
b) Identification
i) The defamatory imputation must refer to C, and the right thinking member
thinks that the imputation refers to C
ii) Not all readers, but if SOME readers would have identified C
iii) Intending someone else is irrelevant. Not ‘who was meant’ its about ‘who
was hit’
iv) Reference innuendos
(1) When C is not explicitly identified, but could have been taken to be
referred to by people who had some knowledge of extraneous
facts
v) Fictional characters who could be taken to refer to C
vi) Mistaken descriptions of C
c) Publication
i) Publication MUST occur (i.e. other people other than the recipient)
ii) s.8 DA enforces SINGLE PUBLICATION RULE. meaning that after it has
been published once, the limitation period begins, and it is a single tort
(1) EXCEPT WHERE
(2) The manner of publication is different (the mode/ accessibility)
(3) The material is so different (not similar or the same), then is a new
tort
iii) Republication
(1) If the def knows that their slander/libel has significant risk of being
republished, then the def may be liable for the damages flowing
from the FULL extent of republicated defamation
iv) Publication and the Internet
(1) Imputation published on internet is deemed to be published
(2) Rebuttable presumption that there were downloads and hits
(3) Where a publication is extensively retweeted or republished, then
the original defendant can be liable for the full extent of damages
(4) CONCERNING WEB HOSTS
(a) General rule that they are facilitators, NOT liable for what
people put up on their platforms, BUT
(b) Where they have been notified of the defamation and do
not remove it within a reasonable time, they can become
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