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Tort Law: Summary of all supervision readings + lectures
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I received a 73.5 from these notes Problem question (PQ) notes primarily but useful for essays too
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Main Notes (PQ)Trespass to the Person
Assault
D (1) intentionally places the C in (2) reasonable apprehension of (3) immediate and direct violence,
illustrating direct threat + requires a belief in D’s (4) capacity in carrying out the act of battery
does not require physical contact - focus on protecting their mental integrity.
C must show:
1. Intentional threat: produce an expectation violence will be used, D does not have to be frightened
for the tort to be actionable
2. Reasonable apprehension by the claimant thomas v. national union of miners (1986)
o whether a reasonable person would feel threatened in the same circumstance - irrelevant
whether C actually felt threatened or not
o includes if one can except to be stopped forcibly by someone obstructing your way (Hepburn
v CC of Thames Valley Police)
3. Immediate and direct violence:
o threat must be related to an immediate use of force, nothing too remote
o more than passive obstruction of C
o R v. Ireland (1998): held that words alone can constitute assault, and also that silent calls
(lack of words) could be sufficient to prove an expectation of fear or violence
4. Capacity
o Mbasogo v logo: D must have capacity to carry out threat
o but pointing an unloaded pistol at someone will be assault even if C is aware it is unloaded
defence: conditional threats
o Turberville v Savage: D merely said that he would have the intention to assault if it were not assize
time; it was, however, assize time and D’s declaration meant that he would not and did not intend to
commit an assault against C
Battery
an act which involves (1) intentional, (2) direct and (3) hostile contact with another person (3) without
consent
occurrence of harm NOT necessary
1. Intention (Letang v Cooper)
o D must voluntarily intend to touch C
or someone/something close to C, Wainwright [2002]
o Fagan (1969): intention does not need to be present at the start of the action but it is a tort if
the accident is not rectified
o x suggests that recklessness will suffice
2. Direct and immediate force:
o broad term
o Breslin v. McKevitt (2011): a delay of 35 minutes between the planting of a bomb and its
explosion was still direct and immediate force
3. Hostility? Wilson v pringle (1986)
o role of hostility in battery is unclear - Janet says this element is not necessary
o lord goff cast doubt on this in Re F
medical treatment without consent is a battery - this is unlikely to have a hostile
element
stolen kiss without consent is a battery but not hostile
o flaw: does not allow for a claim of nonfeasance (failure to act)
BATTERY SPECIFIC defence: Collins v. Willcock (1984): implied consent activities such as shaking
hands, jostling etc. are all ‘generally acceptable in the ordinary conduct of everyday life’
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,False Imprisonment
directly and (1) intentionally (2) detains and restrains C, in the (2) absence of lawful excuse
1. intention: “C must show not merely an intentional act … but also an intention to deprive C of his
liberty.” (Iqbal, LJ Smith)
2. restraint/detention:
must be complete, in all directions → does not amount to restraint if C can move back but not
forwards (Bird v Jones)
no force or physical conduct required
confinement: confined in a manner that restricts their liberty (more than a mere obstruction)
awareness: actionable even if claimant is unaware of the confinement
Bournewood Community (1998): C showed no desire to leave (deprivation of liberty must be
actual, not potential) - C’s mental capacity is irrelevant
3. Absence of lawful excuse:
If police officer is not exercising the power of arrest and acting beyond the reasonable
conduct of an ordinary citizen, this is FI (Walker, 2014)
Essay: (jalloh)
o ECHR ruled it unlawful on the basis that it is a deprivation of liberty
o 'imprisonment' at common law should be aligned with the concept of 'deprivation of liberty' in
article 5 ECHR NO
o the essence of the tort of false imprisonment is being made to stay in a particular place by
another person whereas the Article 5 ECHR concept of deprivation of liberty (as on pleases) is
multi-factorial in its approach (jalloh)
prison system: interesting to explore if and when a claimant can be lawfully imprisoned by the state outside
of their already existing sentence
o R (on the application of Jalloh) v Secretary of State for the home dept (2020)
facts: curfew placed on C after a custodial order
held at court of appeal: state did not have the power to impose a curfew
D claimed
1. imprisonment requires physical constraint on person’s freedom to move
2. if imprisonment is not by physical barriers, it must be sufficient to keep a person in
the same place
3. must result in a ‘total’/’complete’ restriction of the individual (bird v jones)
4. not false imprisonment, if C can leave by another route (even if route is by trespass)
5. not sufficient if the act of leaving triggers an adverse response (e.g. an arrest)
held at supreme court: rejected all 5 conditions, distinguished jalloh from bird v jones on
the basis that in bird, the claimant could simply cross a bridge by another route whereas in
jalloh restrictions were forced on him
Defences
consent, necessity, self-defence, contributory negligence, lawful authority
consent: with consent, battery, assault and FI are not torts; exceptions:
o consent must not be obtained via fraud or misinterpretation
o if a doctor has not given a patient enough information about the risks to a medical procedure, then
consent may not be sufficient
o Re t: If adult of sound mental capacity, it does not matter if his decision is irrational, consent is
necessary
autonomy/right to self-determination deemed more important than the sanctity of life and best
interests of patient
o where patient is unable permanently to give or refuse consent, lifesaving/sustaining treatment should
not be offered if this is not considered to be in the best interests
o Re P: 16 year-old can give consent for medical treatment if they have a full understanding of the
consequences
parental objections cannot invalidate consent, but courts can override child’s consent
necessity: very limited circumstances
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, o Re F (1989): If person lacks capacity because of mental illness, Courts can allow administration of
treatment which is in patient’s best interests
Lord Goff: for necessity to constitute as a defence :
1. must be a necessity to act when it is not practicable to communicate with the assisted
person
2. action taken must be such as a reasonable person would in all the circumstances take,
acting in the best interests of the assisted person
self-defence and defence of others: must establish they acted in an honest and reasonable belief (Ashley v
CC of Sussex)
o defence of others: e.g. holding someone back from running into her burning house wouldn’t be
battery or false imprisonment
lawful arrest and detention: limits to this defence (see jalloh)
Wilkinson v. Downton (1987)
created a tort for the creation of harm that is intentionally but indirectly inflicted
facts: practical joke played by D on C - D told C that C’s husband was in an accident and in hospital → C
suffered illness due to the shock and paid money for the train fare to see her husband
held: liable as long as there is a wilful act that is calculated to cause personal harm to C
Requirements reformulated in Rhodes v OPO (use this in PQs):
1. conduct: Words or conduct aimed at the claimant for which there is no justification or excuse
2. mental: The mental element requiring an intention to cause at least severe mental or emotional
distress
3. consequence: The consequence element requiring physical harm or recognised psychiatric illness
essay
why was it created?
- Does not lie within trespass to person because it lacks the directness element
- Does not lie within negligence either because at that point negligence did not include psychiatric harm
Protection from Harassment Act 1997 (PHA)
Enables civil remedy and criminal offence for harassment
victim of harassment will be entitled to damages for anxiety and any financial loss resulting from the
harassment and may seek an injunction to protect themselves from harassment
Unlike Wilkinson v Downton, victims do not need to suffer a recognised psychiatric illness to make a claim
under the PHA
§1: offence to pursue a (1) course of conduct which (2) D knows, or ought to know amounts to (3)
harassment of another
1. a ‘course of conduct’
conduct on at least 2 occasions
Online: a single conduct could amount to harassment if D is aware that publications will
come to attention on more than 1 occasion and on each occasion cause distress and alarm
(Kordowski, 2011) → powerful tool for victims of revenge porn
2. D must know or ought to know
objective test – reasonable person with same information that D has (§1(2))
Ferguson [2009]: C switched gas companies from British Gas (D) to another, but D sent her
several bills and warnings continuously
D does not need to know whether the conduct will cause C to suffer
harassment can be from a machine, threats by computer (no defence of accidental
harassment)
3. Harassment of another
causes V alarm, fear or distress (§7(2))
Sunderland CC: context dependant ‘what may not be harassment on the factory floor
may well be harassment in the hospital ward
‘unreasonable and oppressive conduct’ which is ‘calculated to, and does cause that person
alarm, fear or distress’ (Willoughby)
PHA shields defendants from harassment actions where the victim felt subjectively
harassed, where a reasonable person in such circumstances may not
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, Issue: a victim’s paranoia cannot transform an innocent course of conduct into an
actionable tort
4. Other:
Damages §3: remedy for any financial loss/anxiety caused by harassment
Claimants: only a natural person, not a company can claim to be the victim §7(5)
Defendants: company can be D as long as requirements are fulfilled (may be vicariously
liable for employee’s conduct (Thomas v News Group Newspapers)
Negligence
Requires: (1) duty of care (2) breach of that duty (3) causation (4) damage
PQ structure:
1. identify all Cs and Ds
2. identify nature of loss for all Cs
3. consider relevant tort(s)
4. explain elements of each tort
5. apply law on the facts given
6. identify any arguable defences and apply to the facts
7. reach a conclusion
8. consider possible remedies
Duty of Care
Establishing a Duty
IS THERE A DUTY OF CARE IN NEGLIGENCE?
Q1: Is it an established duty situation?
YES
Consider relevant case law for specific duties…
Doctor-patient (Bolam v Friern Hospital Management Committee, 1957)
Driver-passenger (Nettleship v Weston, 1971)
A solicitor owes a duty of care to his client (Groom v Crocker (1939))
Manufacturer to consumer (Donoghue v Stevenson (1932))
Banker to client (Woods v Martins Bank Ltd (1959))
carer (such as a parent or teacher) and child. In Carmarthenshire County Council v Lewis
NO DUTY:
The ship classification society owes no duty to cargo owners for financial loss (Marc Rich v Bishop Rock (1996))
Company auditors to outside investors for financial losses (Caparo Industries v Dickman (1990))
NO
Q2: Is it an omission?
General rule is that there is no liability in negligence for omissions of failure to confer a benefit
There is only liability for omissions where there is some pre-existing reason for D to be expected to act
positively to protect C from foreseeable harm
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,YES, it is an omission…
Q3: Did D create the initial risk?
YES
Apply Haynes v Harwood, 1935
D is liable in negligence for injuries C sustains when rescuing others from danger D created
C’s act of rescue does not break chain of causation and does not give rise to defence of volenti
NO
Q4: Was there a relevant pre-tort relationship between C and D?
YES
Apply Reeves v Commissioner of Metropolitan Police, 2000
V committed suicide in police custody
Known suicide risk, police had not taken all reasonable precautions to prevent
Imposed liability because of the degree of control D exercised over C
There is a duty of care
NO
Q5: Was there a relevant pre-tort relationship between D and a third party?
YES
Apply Dorset Yacht Co Ltd v Home Office, 1970
C’s yacht damaged by Borstal boys
Under supervision of the Home Office’s employees
D’s duty was to guard against very risk that eventuated from harm
Omission to prevent risk from materialising is grounds for liability in negligence
NO
Q6: Had D assumed a responsibility towards the particular claimant?
YES
Apply Kent v Griffiths, 2001
The ambulance service, as part of the NHS, did owe a duty of care to individual patients
Once a call had been accepted, there was only one individual who would be affected by failure to respond
Sherratt v Chief Constable of Greater Manchester Police, 2018
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, As with private individuals, emergency services will only owe a duty of care to protect individuals from an
external source of harm where they have assumed a responsibility to a specific individual to do so and
where that individual has relied on the assurances given
Presence of assumption of responsibility is essential for duty to apply
This can apply to the police, as well as ambulance service
NO
Q7: Is there an existing case with sufficiently analogous legally significant features?
YES
Apply Caparo Industries v Dickman, 1990
Caparo test
o Was the damage reasonably foreseeable?
o Was there a sufficient proximate relationship between the parties?
o Would it be ‘fair, just and reasonable’ for the court to impose a duty of care, having regard to policy
concerns?
Robinson v Chief Constable of West Yorkshire Police, 2018
Where the existence or non-existence of a duty of care has been established, ot is unnecessary and
inappropriate to reconsider whether the existence of the duty is fair, just and reasonable
Only in novel cases that courts should go beyond principles to decide whether a duty of care should be
recognised
Develop incrementally and by analogy with established authority
76-year-old pedestrian injured during an attempted arrest carried out by police, police owed a duty of care,
actively created risk of harm and foreseen that harm would result from actions.
Further guidance in applying Caparo in GN v Poole Borough Council, 2019
Caparo widely misunderstood as establishing a general tripartite test
Must also consider incrementalism
And only apply in novel situations, not those previusly covered by precedent
NO
Q8: In the court’s judgement, does the proposed duty tested against considerations of legal policy, achieve justice
and coherence in the law?
James-Bowen v Commissioner of Police for Metropolis, 2018
No analogy with other cases on existence of legal duty
‘Legal judgement’ to decide whether new situation should be one in which a duty of care is recognised
Imposition must be fair, just and reasonable
YES, there is a duty of care
NO, there is no duty of care
NO, it is not an omission… (see above)
Q7: Is there an existing case with sufficiently analogous legally significant features?
YES
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,Apply Caparo and Robinson
NO
Q8: In the court’s judgement, does the proposed duty tested against considerations of legal policy, achieve justice
and coherence in the law? (James-Bowen)
YES, there is a duty of care
NO, there is no duty of care
Relevant case law:
DUTIES OF CARE
Where the police actively intervene and cause foreseeable damage by behaving unreasonably, they will be
liable in the same way as a private individual would be (Robinson v Chief Constable of West Yorkshire
Police, 2018)
Duty where acted to make danger worse, although fire services owe no duty of care to the public to
respond to emergency calls, where is actively intervenes it does owe a duty of care not to make the
situation worse (Capital and Counties plc v Hampshire County Council, 1997)
Responsibility of A and E receptionist to correctly inform patients falls within the established duty to take
reasonable care not to cause physical injury to patients (Darnley v Croydon NHS Trust, 2018)
A duty of care to take positive action can arise from a contractual relationship, a decorator was liable for the
loss from burglary of a house he forgot to lock after finishing work (Stansbie v Troman, 1948)
A duty of care could exist even where responsibility hasn’t been assumed if D has knowledge and
resources to mitigate a risk to which C is exposed and cannot protect themselves from (ABC v St
George’s Hospital NHS Trust, 2020)
Barristers should not be immune when other professions owe a duty of care, immunity abolished (Hall &
Co v Simons, 2003)
Nursery owed duty of care to take reasonable care to prevent child running into the road, in control of third
party (Carmarthenshire CC v Lewis, 1955)
Duty of care where assumed responsibility to provide security, failed allowing theft (Airport Authority v
Western Air (The Bahamas), 2020)
Ambulance owes duty of care once call has been accepted, misleading assurance (Kent v Griffiths)
NO DUTIES OF CARE
Unless there are exceptional circumstances, the police will not owe individual members of the public a
common law duty of care in undertaking their operational duties of investigating, detecting, suppressing and
prosecuting crime (Hill v Chief Constable of South Yorkshire Police, 1989)
Police do not owe a duty of care where there is insufficient proximity between them and V (Michael v Chief
Constable of South Wales, 2015)
Implied duty of trust and confidence owed by commissioner to police officers cannot be extended to general
duty to protect employees, cannot impose duty of care on conduct of litigation/administration of justice
(James-Bowen v Commissioner of Police for Metropolis, 2018)
No liability for not engaging in a certain activity rather than engaging in it poorly (Sutradhar v National
Environmental Research Council, 2006)
No liability for failing to act to prevent damage caused by a third party where this for unforeseeable (Smith
v Littlewoods Organisation Ltd, 1987)
The power of a local authority to remove highway obstructions did not give rise to a duty of care when injury
arose due to obstructions (Stovin v Wise, 1996)
Local authorities do not owe duty of care to individual road users for not providing warning signs, cannot
impose liability for not doing anything (Gorringe v Calderdale, 2004)
No duty of care in battle conditions (Mulcahy v Ministry of Defence, 1996)
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, Duty of care is not owed to the world at large, only to a particular claimant, unforeseeable claimants aren’t
owed a duty (Bourhill v Young, 1943)
Social services do not owe a duty of care regarding failures in child protection (X (minors) v Bedfordshire
County Council, 1995)
Doctors and social workers investigating suspected child abuse owe no duty of care to the parents of
children wrongly taken into care (D v East Berkshire Community Health NHS Trust, 2005)
No duty of care for pure financial loss (Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd,
1973)
No duty of care where it is inconsistent with a statutory scheme (Rowley v Secretary of State for Work
and Pensions, 2007)
No duty of care where it would disturb balance created by contractual terms (The Nicholas H, 1995)
CPS owes no duty of care to victims or accused, duty owed to public at large (SXH v Crown Prosecution
Service, 2017)
No duty where housing authority failed to protect resident from being killed by an anti-social neighbour
where there is no assumption of responsibility (Mitchell v Glasgow CC, 2009)
Psychiatric Harm
Nervous Shock and Psychiatric Harm
psychiatric harm = in order to be recoverable – damage has to be of a medically recognisable type, cannot just be
grief/distress
Primary victims
easier for primary victim to recover
those directly involves in the incident concerned, to the extent that they are exposed to the risk of physical harm
(though do not need to actually suffer from it)
- Page [1996] - C was involved in a car collision caused by D’s negligence which caused no physical injury.
As a result of the accident, C suffered from chronic fatigue syndrome which affected him on and off for 25
years but has now became permanent. D argued that it is not foreseeable that a person of normal fortitude
would suffer psychiatric illness
o C’s claim succeeded. As C was a primary victim, it did not matter that C’s psychiatric injury was not
reasonably foreseeable as the risk of C’s physical injury was reasonably foreseeable, even though C
did not suffer any physical injury
where C is a primary victim, only physical injury must be reasonably foreseeable in order for psychiatric
injury to be recoverable
laid down egg-shell personality rule
- W v Essex CC [2001] - Cs agreed to take in a 15-year-old foster child with a history of committing sexual
abuse based on a misrepresentation from the social worker working under D that the child was not a sex
abuser. The foster child abused Cs young children and Cs suffered psychiatric injury as a result. Cs’ claim
was struck out by the judge on the basis that their psychiatric injury was too remote, Cs appealed.
o Appeal was allowed. Cs have a plausible claim either as primary or secondary victims.
distinction between primary and secondary victims is not closed
involuntary participants who were placed by D’s negligence in a position where they unwittingly
contributed to the accident and developed psychiatric injury from the feeling of guilt can be treated as
primary victims.
- Rothwell [2007] - C had been exposed to asbestos but did not know until he was informed by his doctor 30
years later. The risk of developing a health condition led C to worry so much that he developed clinical
depression. C argued that Page v Smith applied as even though no physical injury had resulted from
exposure to asbestos, physical injury was reasonably foreseeable
o HofL – C’s claim was rejected as C’s had only suffered an increased risk of developing a disease in
the future.
psychiatric injury caused to employees by the actions of an employer
inconsistent with the foreseeability issue in Page v Smith? – not really, Page is still relevant. This case
concerns potential primary victims instead of actual primary victims.
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