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Summary SQE 2 - Black Letter Law Tort
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TRESPASS TO THE PERSONClaimant v Defendant in the tort of trespass to the person - specify the injury. (remember if
there is a minor it will be (via litigation friend).
Assault - specify the action
‘An intentional act by the defendant that causes the claimant to reasonably apprehend the immediate
direct infliction of unlawful force’
The tort requires intentional conduct so it cannot be negligence (Letang v Cooper). Additionally, it
is actionable per se, meaning there is no requirement to show physical harm. Words alone can be
sufficient (R v Ireland - ‘a thing said is a thing done’). Words can also negate an assault i.e. ‘if there
were no police present I would hit you’ cannot be an assault with police present (Tuberville v
Savage).
The term immediate is defined as ‘within a minute of so’ (R v Ireland).
Battery - specify action
‘The direct and intentional application of unlawful force by the defendant to the claimant’ (Fagan v
Metropolitan Police Commissioner).
Here unlawful can be defined as actions which are socially unacceptable or ‘generally excepted
everyday’(F v West Berkshire Health Authority). The defendant need only intend his actions not the
outcome (Wilson v Pringle). Direct application of force is deemed to only include the defendants
actions without intervention.
Defences
There can be no defence of contributory negligence when considering claims of assault and battery
(Co-operative Group Ltd v Pritchard).
Consent
This can be either expressed or implied. Sport for example is implied consent, ensuring it is within
the general spirit of the game (Condon v Basi).
In medical cases a doctor does not need to disclose all the risks only the broad risks for consent to
be valid (Chester v Afsar). Additionally, concept must be to a proper representation of the act
(Chatterton v Gerson).
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,Defence of the Person
As per Cockcroft v Smith the force must have been used in self-defence (or defence of another),
reasonable and proportionate to the the force used and or threatened by the claimant.
Defence of Property
As per Green v Goddard a person is entitled to take reasonable steps to defend their property. This
includes taking reasonable steps to eject the trespasser.
Necessity
This is a general defence for all torts. The action taken must be reasonable e.g. medical emergency
(F v West Berkshire Health Authority). For this defence to succeed the defendant must prove that the
situation of necessity existed and their actions were reasonable.
Lawful Arrest
The force used must be reasonable (PACE 1984).
Remedies
Damages, an increased amount if there has been actual harm.
Tort Under Wilkinson v Downton
The cause of Wilkinson v Downton established a separate tort of international psychiatric harm. It
occurs when the defendant intends to cause shock to the claimant, who then goes on to suffer some
sort of tangible damage as a result.
The tort was reformulated in Rhodes v OPO as:
- Conduct (words or actions) aimed at the claimant for which there was no justification or excuse
- Intention to cause severe mental or emotional distress.
- A consequence of physical harm or a recognised psychological issue
It is not actionable per se (Wainwright v Home Office).
Defamation
Claimant v Defendant in the tort of defamation for blah
Comes in two forms:
- Libel (permanent e.g. writing) this is actionable per se (no tangible loss needs to be shown)
- Slander (temporary e.g. verbal)
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,For a claim in defamation to be successful it must satisfy three essential elements:
1. Defendants words need to be defamatory in nature. This will only occur when publication has
or is likely to cause serious harm to the reputation of the claimant (s.1 Defamation Act 2013).
Words can be considered defamatory if they ‘lower the claimant in the eyes of right-thinking
members of society’ (Sim v Stretch), they cause the claimant to be shunned (Youssoupoff v
MGM) or they expose the claimant to hate and or ridicule (Parmiter v Coupland). The
statement must be taken in its full context (Charleston v News Group).
2. The words used must refer to the claimant either explicitly or by implication. In cases where the
claimant is not named the description must be so specific a reasonable person who knows the
claimant would know it was about them (J’Anson v Stewart).
3. The words used must be published. This is defined as communication to a third party.
Defences
Truth
The defendant will have a complete defence if the statement made was factual and indeed
substantially truthful (s.2 Defamation Act 2013).
Fair Comment
The defendant will have a defence providing their statement:
• An expression of opinion providing it fufills the criteria set out in s.3 Defamation Act 2013 as
follows:
- statement was a statement of opinion
- the statement indicated the bias of opinion
- an honest person could have held that opinion based on any fact that existed
at the time of publication
This defence will be defeated if the claimant can prove that the defendant did not hold that opinion
at the time (s.3(5) Defamation Act 2013. If the defendant is publishing on someone else’s behalf, in
this case the defendants can only be defeated if they knew the original author did not hold that
opinion (s.3(6) Defamation Act 2013).
• On a matter of public interest (s.4 Defamation Act 2013). The defendant will have a defence if
they can show the statement in question was of a matter of public interest and the defendant
reasonably believed that publishing it was in the public interest.
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, Qualified Privilege
Applies to both statements of fact and opinion. It will offer a defence when the maker of the
statement has a duty (legal, moral or social) to make the statement and the recipient has an interest
in receiving the statement (e.g giving information to the police). If the defendant acted with malice
and the claimant can show so the defence will fail.
Misuse of Private Information
This is separate from defamation. As per Campbell v MGN Ltd a claim will only succeed if they
can show the following:
- The information divulged was private and there was an expectation of privacy in relation to the
information.
- There is no legitimate public interest in the information being disclosed (public interest would
include the likes of the claimant previously lying about the matter being disclosed as was the
case in Campbell or in cases when the claimant has engaged in illegal activity or they are a
political figure in a public role).
If there is a confidential relationship, especially a contractual duty of confidence, it is very likely
that this tort has been committed.
NEGLIGENCE
Claimant v Defendant in the tort of negligence for (injury)
If it is a minor remember it will be via litigation friend!
Negligence can be defined as ‘the breach by the defendant of a duty of care owed by the defendant
to the claimant causing actionable harm to the claimant unintended by the defendant’. For a claim to
be successful the claimant must show that the defendant owed a duty of care, the defendant breach
that duty and that this breach is what caused the defendants injury. The burden of proof will lie with
the claimant and it is assessed on a balance of probabilities.
Duty of Care
Established Duty
Is there an established duty of care? They exist in the following situations:
• Driver to driver (London Passenger Transport v Upson)
• Driver to passenger/ pedestrian (Nettleship v Weston)
• Person to rescuer if there is a dangerous situation (Baker v Hopkins)
• In loco parentis (Lewis v Carmarthenshire)
• Referee to sport plater (Vowles v Evans)
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