Lecture notes
Tort Law Notes
- Module
- Tort Law (LAWS002)
- Institution
- University College London (UCL)
notes on topics in tort law
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INTRODUCTION TO TORT.What is tort law?
‘torts are civil wrongs for which law will provide a remedy’ (Steele)
Case law driven but devoid of statute, where courts have created a doctrine for remedies
Imposing civil liability on individuals with no pre-existing relationship (otherwise turn to contract)
‘tort is concerned with the allocation of responsibility for losses, which are bound to occur in our
society’ (Winfield and Jolowicz)
o Loss and damage are inevitable, and the law will reallocate loss to someone who is
responsible
‘tort liability as arising from breach of duty fixed by law’ (Winfield) ‘or as a breach of right’ (Stevens)
o Infringement of a right
Protecting a diverse range of interests (bodily integrity, property, reputation, privacy, economic)
Tort and Fault
Historical evolution – from ‘with force and arms in breach of King’s peace’ to
Pockets of strict liability
o Set of circumstances where D will still be liable
Intentional acts
o Requires D to intend to do the act
Standards of reasonableness
o D must fall below the standard of fault to be liable
What is tort law for? (link areas of tort to theories + remedies)
Compensation
o One who has caused injury to another must make good the damage
Deterrence
o Judicial parable designed to control future conduct of the community at large
Loss distribution
o Losses should be distributed fairly and efficiently (e.g. through insurance)
NZ has a state fund to deal with personal injuries (counter)
Corrective justice (ethical)
o D should be held to standard of what is seen as right
Vindication of rights (Stevens)
o Mechanism to uphold rights of individuals
Role of insurance
o Relevance: impact of tort liability on loss distribution but not when dealing with whether
liability exists
o ‘mere possession of wealth is not in itself any ground for imposing liability. As for insurance,
employers insure themselves because they are liable: they are not liable because they have
insured themselves’ (Cox v Ministry of Justice [2016] UKSC)
o ‘we have not been told what the insurance position is in the present case, and of course it
cannot affect the result. Availability of insurance is a valid answer to the Doomsday or
Armageddon arguments put forward by D’ (WM Morrison Supermarkets v VC [2018])
,DEFAMATION: tort to protect one’s reputation
Definition: a defamatory statement is one which has caused or is likely to cause serious harm to another
person’s reputation.
Strikes the appropriate balance between freedom of expression (Art 10 ECHR) vs individual interests
in reputation and private information (Art 8 ECHR); recently legislated by Defamation Act 2013
Takes 2 forms
Libel: refers to publications that are in permanent form or that are broadcast on stage or screen by
electronic means
o S.166 Broadcasting Act 1990 and s.4(1) Theatres Act 1968 (clarified the complexities that
arose from modern methods of communication e.g. the internet)
Slander: refers to publications in transient form (e.g. casual conversations)
Defences available:
Complete defence: if D is successful in demonstrating its truth
Other: if D expressed it as an honest opinion, as a matter of public interest or in order of protecting
an interest
o Defence of privilege
Remedies:
Gagging order/interim injunction to prevent publication going ahead till trial
Permanent injunction
Damages for injury to reputation or economic loss
Exemplary damages
Since the 17th century written statements have been actionable without proof of special damage
Suggests distinction between libel and slander?
Test of permanence or transience of the statement (slander vs libel)
Monson v Tussauds Ltd [1894]
o Lopes LJ: Libels are generally in writing or printing but not necessary; the defamatory matter
may be conveyed in some other permanent form. For instance, a statute, caricature, effigy,
chalk marks on a wall or pictures.
o Facts: Plaintiff had recently been tried for murder but case against had not been proven.
Waxwork model of plaintiff placed in exhibition in the same room as a number of actual or
alleged murderers and next to Chamber of Horrors.
Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) modified test
o Plaintiff sued for libel in relation to suggestions in the film (Rasputin, the Mad Monk) that
she had been seduced by the eponymous figure of Rasputin. Jury awarded £25,000 in
damages. Defendants appealed.
o Slesser LJ held that the film pictures being ‘a permanent matter to be seen by the eye’ is
regarded as libel. Found that the speech ‘was part of one complex, common exhibition’ and
was ‘ancillary’ to the visual image hence constituted libel not slander.
Essentially: if a sound recording exists independently of any visual image, the
reasoning suggests that the liability would only result in slander
BUT Theatres Act 1968 s.4(1) “publication of words in the course of a performance
of a play shall.. be treated as publication in permanent form”
AND ‘a libellous statement retains its status as a libel even when read out’ (Forrester
v Tyrrell [1893])
,Slander typically requires proof of actual injury unlike libel which is actionable per se (special damage).
Mere loss of reputation or friends is insufficient
Lost out on hospitality of friends is sufficient and amounts to material loss (not about reputation but
in addition to it)
Including loss of job, diminished trading profits
Why is liability restricted?
Hale CB suggests that published words have more malice than those spoken
Thorley v Lord Kerry (1812)
Mansfield CJ found no principled justification for the distinction between libel and slander but felt
compelled to accept it by weight of precedent. Questioned how spoken words can be to many more
than say a single letter.
Question whether libel should be differentiated from slander has been twice raised.
Porter Committee (1948) ‘slander is not normally taken seriously by speaker or listener and in a
great majority of the cases, does little or no harm.. likely to encourage frivolous actions’ (favoured
distinction)
Faulks Committee (1975) recommended slander be assimilated to libel as the distinction was
‘entirely attributable to historical accident… unreasonable and unnecessarily complicated and
refined.. illogical and in certain applications unjust’. Because words spoken by way of vulgar abuse or
merely as a joke…
Exceptions to special damage in slander (2 exist instead of 4 because of the Defamation Act 2013)
Imputation of criminal conduct
o D imputes to C criminal conduct punishable with imprisonment, the slander is actionable
without proof of damage
o Gray v Jones (1939): D said to C ‘you are a convicted person I shall not have you here’-
spoken words which conveyed mere suspicion are actionable without proof. (thought C was
convicted and not in jeopardy of further punishment it was likely that they would be
shunned or excluded from society).
o Typically cannot be parking offence or minor speeding violation
Imputation of unfitness in business
o S.2 of Defamation Act 1952 ‘words calculated to disparage C in any
business/profession/calling or trade’ are actionable without proof of damage.
o But only where it was in the way of their profession
E.g. not sexual misconduct
Jones v Jones (1916); misconduct by schoolmaster with caretaker’s wife were not
actionable where no allegation would lower his professional reputation
o Requirement abolished by 1952 legislation where it made clear that such statements are
actionable per se whether or not the words spoken of the plaintiff in the way of his office,
profession, calling, trade or business’
ELEMENTS OF THE CAUSE OF ACTION
‘a defamatory statement is one which has a tendency to lower a person’s standing amongst right-thinking
people and which has caused or is likely to cause serious harm to that person’s reputation’
(1) Statement must be defamatory
A means of communicating, that does not have to have a long-lasting effect, just one that can ‘damage’
reputation.
(a) Requirement of a tendency to defame
, The tendency is determinative, does not matter if the implication is believed just that it has the tendency to
lower one’s reputation in the given context.
Traditional test: ‘words complained of were calculated to injure the reputation of another by exposing him
to hatred, contempt, or ridicule’ (Parimiter v Coupland (1840))
Lord Atkin’s broader test in Sim v Stretch (1936): ‘would the words tend to lower the plaintiff in the
estimation of right-thinking members of society generally?’
The law looks at tendency of D’s words not how people reacted to them (hence rejected Villers v Monsley
suggestion of ‘tend to make right-thinking people shun or avoid C’)
What may be defamatory of one person may not be of another (Palmer v Boyer (1954))
Particular words are defamatory are a question of fact not law– hence not binding authority
Defamation Act 2013 s.11 amended Senior Courts Act –judge determines the actual meaning of the
statement not a jury.
Need not be verbal (Monson v Tussaud)
Must strike at C’s reputation
o Insults may bruise ego rather than lower person’s estimation
Insitu Cleaning Co Ltd v Heads (1995): insults of a sexual nature or directed at some
other protected characteristic may give rise to a claim in an employment tribunal
under the Equality Act 2010 “hello, big tits”.
**Berkoff v Burchill (1996)
Facts: D (well- known journalist) twice made throw away remarks about C (actor/film-director) in
film reviews. D called C ‘hideously ugly’/looked like Frankenstein.
Judgement:
o CoA set out a range of tests to establish whether D’s imputation damaged C’s reputation:
(1) did the imputation lower C in the estimation of right-thinking people? (majority
in favour)
(2) did the statement expose C to hatred, ridicule or contempt? (acceptable)
(3) did the words call people to shun/avoid C? (rejected)
o Concerned with other people’s perceptions of C as a result of imputation because tort is
about reputation damage.
Held: capable of being defamatory Berkoff actor makes living by appearing in
entertainment, words about looks would be detrimental to his ability to get a job.
Important connection between imputation and profession.
o Dissent: words were mocking not defamatory reputation would not be lowered.
Following implementation of 2013 Defamation Act; unlikely to find for C because need to actually
have a tendency to defame and likeliness to cause serious harm
o + context of our time where looks seem to be a more decisive factor
Charleston v News Group Newspapers Ltd (1995)- joke does not lower person’s reputation
Facts: two actors of a soap opera had their pictures superimposed on naked porn stars (clearly not
them).
Judgement: Held not defamatory.
o Lord Bridge accepted the publication must have been deeply insulting and offensive but had
to be read as a whole – the pictures in isolation could not give rise to liability. Necessary to
consider whether the text of the article was sufficient to neutralise the libellous
implication of the headline.
‘clear that the images were computer generated’
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