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GDL - tort revision notes
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- GDL (TRT)
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- University Of Law (ULaw)
distinction level revision notes
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Tort W1 – Trespass to the Person + Defamation BATTERY DEFENCESBattery: the intentional direct application of A. Consent
THE MEANING OF ‘TORT’ – PARTIES? unlawful force to another person B. Defence of the person
§ Involves the infringement of a legal rights or breach of C. Defence of property
Children ‘Intentional’
legal duty D. Necessity
§ Children under the age of 18 can sue/be sued but § Wilson v Pringle – the defendant must intend his E. Lawful arrest
§ Where a person has suffered harm, injury or loss as a they conduct the litigation through a ‘litigation actions but the consequence does not need to
result of another person’s wrongdoing friend’ be intended Co-operative Group Ltd v Pritchard
§ defendant cannot allege contributory
Companies ‘Direct Application of Force’ negligence as defence to claims for
FUNCTIONS OF THE LAW OF TORT § A limited company has separate legal personality – § The force must flow from the defendant’s assault and battery
sue the company actions without intervention, almost
Compensation
§ You can also sue a partnership in tort immediately A. CONSENT
§ Seen as the principal function in the law of tort § Includes force via a medium e.g. a bullet, hose
Deterrence Death Of A Person § May be implied or express consent
§ When a person dies, any claim they have in ‘Unlawful Force’
§ A finding of negligence can adversely affect defendant § F v West Berkshire Health Authority – physical Sports cases – Condon v Basi
personal and professional reputation tort survives and is taken over by his personal
representatives contact which is generally acceptable in the § A sports competitor consents not only to
Justice ordinary conduct of everyday life is not unlawful all conduct within the rules of the sport,
Justice has two aspects: but also to conduct outside the rules, but
TRESPASS TO THE PERSON CAUSATION AND REMOTENESS
§ Retribution against the wrongdoer within the spirit of the sport
§ Compensation for the victim § Both assault and battery are actionable per se, § Although trespass to the person is actionable per Medical cases – Chester v Afshar
meaning there is no need to prove any physical harm se if the claimant has suffered tangible harm § A doctor’s failure to disclose risks will not
CLAIMANT MUST SHOW HE HAS SUFFERED HARM (e.g. an injury) and wants to recover fully from invalidate the patient’s consent – no
Work through each claim, heading each with - the defendant, claimant must prove: claim in trespass but claim in negligence
Bradford Corporation v Pickles § [claimant name] vs [defendant’s name] o the defendant’s tort has ‘caused’ his loss;
§ Tort law will not provide a remedy for harms such as and Medical cases – Chatterton v Gerson
simple grief or anger o that the loss is not ‘too remote’. § A patient is deemed to have consented
ASSAULT (‘real’ consent) to medical treatment
Wainwright v Home Office once informed in broad terms of the
§ House of Lords declined to extend the law of tort to Assault: an intentional act by the defendant that causes INTENTIONAL PSYCHIATRIC HARM –
nature of procedure intended –
provide a remedy for ‘mere distress and upset’ the claimant to reasonably apprehend the immediate The Tort Under Wilkinson V Downtown
invalidated by misrepresentation
infliction of unlawful force
§ Wilkinson v Downton: established a separate
KEY ISSUES IN TORT CLAIMS tort of intentional psychiatric harm
‘Intentional Act’ B. DEFENCE OF THE PERSON
§ It was reformulated in Rhodes v OPO
Burden Of Proof? § Letang v Cooper - Intentional conduct is essential, if
Condon v Basi – the defendant must
not, the relevant tort is negligence Rhodes v OPO
Claimant – burden of proving defendant has committed a establish the force was:
§ R v Ireland – words, as well as actions, may Elements for intentional psychiatric harm:
tort lies with the claimant a. In self-defence and NOT as an action
constitute an assault, ‘a thing said is a thing done’ a. Conduct (words or actions) aimed at the of retaliation
Defendant – burden of proving a defence lies with the § Tuberville v Savage – however, words may also claimant for which there was no justification or b. Reasonable; and
defendant negate an assault e.g. ‘if we weren’t being watched’ excuse c. Proportionate to the force
§ Bici v Ministry of Defence – it is necessary for D to b. An intention to cause severe mental or used/threatened by the claimant –
Both must prove on the balance of probabilities intend that C apprehends the infliction of battery emotional distress Lane v Holloway
c. Consequence of physical harm/psychiatric illness
LIMITATION PERIOD – Limitation Act 1980 ‘Immediate’
§ R v Ireland – means ‘within a minute or so’ It is not actionable per se C. DEFENCE OF PROPERTY
§ All claims must be made within a certain time limit § A threat using words will constitute a reasonable
Wainwright v Home Office
apprehension of immediate force if the person is § One may take reasonable steps to
Tort claims – six years from when cause of action arise § The claimants had been strip-searched when defend one’s property
near e.g. next door
visiting a prison – this caused them distress § Green v Goddard - This includes taking
Defamation – within one year of publication
If someone sees the fist coming before they are § No cause of action would lie unless the resultant reasonable steps to eject a trespasser,
Personal injuries – within three years of injury
punched, then you will have an assault and battery damage amount to medically recognised which might mean first asking the
Children – when child turns 18 period starts condition
claim trespasser to leave
, D. NECESSITY WORDS ARE CONSDIERED TO BE DEFAMATORY IF: PUBLIC INTEREST DEFENCE CONTD.
KEY POINT TO NOTE:
The defendant must show: § Sim v Stretch - they lower the claimant in the eyes of S.4 Defamation Act 2013
§ that a situation of necessity existed; and right-thinking members of society Court must: § If private information is divulged
§ that his actions were reasonable § have regard to all circumstances of the case; and in breach of confidential
§ Youssoupoff v MGM – they cause the claimant to be
F v West Berkshire Health Authority shunned/avoided § make allowances for editorial judgment when relationship (especially a
Identified two situations where the defence of necessity could determining whether or not the defendant
§ Parmiter v Coupland – they expose the claimant to contractual duty of confidence),
justify treating an adult medically without consent: reasonably believed that publishing the
hatred/contempt/ridicule statement complained of was in the public then it is more likely than this
1. an emergency situation where the patient is unconscious interest tort has been committed
2. a state of affairs e.g. a stroke, rendering the patient Charleston v News Group
incapable of giving consent § the statement must be taken in its full context
D. QUALIFIED PRIVILEGE
§ this extended to other scenarios of necessity: bystanders CASE ANALYSIS
DEFENCES
helping at crash scenes, care workers § Applies to statement both of fact and opinion
A. TRUTH – 1. Identify C and D and type of
Defence of qualified privilege applies where there
E. LAWFUL ARREST
S.2 Defamation Act 2013 is a legal, social or moral duty to make the loss/harm
S.117 – PACE 1984 § Truth - if the comment is substantially true, then statement, and the recipient has an interest in 2. Identify the tort and define it
§ If a police officer lawfully arrests someone pursuant to a there is no claim receiving the information
3. List the elements that C has to
valid warrant, he or she does not commit the tort of battery § the defendant has a complete defence is his
provided the officer uses only reasonable force § job referencing, providing information to the prove
statement is factual
police 4. Go through each of the
Defamation B. HONEST OPINION –
Defence does not apply if:
elements – apply them
5. Defences
THE TWO TYPES OF DEFAMATION S.3 Defamation Act 2013 § the claimant can show that the defendant acted
6. Outcome on liability
with malice in making the statement
1. Libel – defamation in the permanent form – actionable Honest opinion – provides a defence where: 7. Remedies
per se, don’t have to prove tangible loss a. The statement was a statement of opinion
b. The statement indicated the basis of the opinion; Misuse of Private Information Always keep claims separate
2. Slander – defamation in transient or temporary form – and
requires proof of a tangible loss c. An honest person could have held the opinion on
the basis of a fact that existed at the time the MISUSE OF PUBLIC INFORMATION
statement was published
THE THREE ELEMENTS OF DEFAMATION: § This is another cause of action, separate from
S.3(5) – the honest opinion defence does not apply defamation FOR ASSAULT OR BATTERY CASES
1. The defendants words must be defamatory in nature where the claimant shows the defendant did not in fact Campbell v MGN Ltd
§ s.1 Defamation Act 2013 - This will only be the case where hold the opinion A claimant will succeed where they can show: FIRST consider whether it has been
publication of the statement has caused, or is likely to cause a. The information divulged must be private – they an assault or battery
serious harm to the reputation of the claimant S.3(6) – the test is different where the defendant was
publishing in the opinion of another person, in which had a reasonable expectation of privacy
case defence is only defeated if: b. There is no legitimate public interest in the … If it doesn’t fit in either one
2. The words used must refer to the claimant either information being disclosed
explicitly or by implication § the defendant knew or ought to have known the
author did not hold the opinion THEN consider whether the rule in
§ J’Anson v Stewart - if the claimant is not named the There would be a legitimate public interest in the
disclosure of private information if the publication Wilkinson v Downton applies
implication has to be so specific, a reasonable person who C. PUBLIC INTEREST DEFENCE
knew the claimant would assume it is about them could:
S.4 Defamation Act 2013 § Show that the claimant had previously lied on … If none apply
3. the words must have been published A defendant has a valid defence, for both statements of the matter disclosed
facts and statements of opinion if he can show that: § That the claimant had engaged in illegal or
§ this is defined as communication to a third party – claim can iniquitous behaviour THEN consider a claim in
be brought against the person who communicates the a. the statement was on a matter of public interest § Where it concerns political figures in their public negligence
b. D reasonably believed publishing statement role
information and any person who communicates info again
complained of was in the public interest
,Tort W2 – Negligence (Duty and Breach) OMISSIONS – IS THERE A DUTY TO ACT
DO THE POLICE OWE A DUTY OF CARE?
NEGLIGENCE B. NOVEL DUTY SITUATIONS POSITIVELY? General Points -> PTO for essay style Q
Step 1 - State Stovin v Wise
Novel duty situations: arise where there is no previous ruling on a § General rule: there is no liability for pure Hill v Chief Constable of West Yorkshire
The [claimant] can consider suing the [defendant] for
[insert harm] in the tort of negligence for [injury/loss] case with the same facts omissions § General rule: It was held that police
§ You do not owe a duty to the world for do not owe a specific duty to
Negligence: a breach by the defendant of a legal duty Starting point: Donoghue v Stevenson doing nothing to prevent harm individuals, followed in Osman v UK,
of care owed to the claimant that results in actionable § The neighbour principle § This applies if you decide to act despite even where the police knew someone
damage to the claimant unintended by the defendant § Rule: you must take reasonable care to avoid acts or omissions no duty to do so, even if you act
was getting harassed
which you can reasonably foresee to injure your neighbour carelessly
To succeed, the claimant must show that:
a. The defendant owed a duty of care Who is ‘my neighbour’? This will be persuasive in any supervisory Exceptions – Where the Police has
b. The defendant breached that duty roles in a Question e.g. youth workers assumed responsibility for someone:
§ People who are so closely and directly affected by my act that I
c. The defendant’s breach caused the claimant’s harm
ought reasonably to have them in my contemplation as being so
Burden of proof: East Suffolk Rivers Catchment Board v Kent Kirkham v Chief Constable of Greater
affected when I am directing my mind to the acts/omissions that
§ The burden of proof lies with the claimant and the and another Manchester Police
are called into question § If there is no duty to act but you act and
standard of proof is on the balance of probabilities § Distinguished from Hill
make matters WORSE then you owe a
Explain how Donoghue v Stevension was defined in Caparo § A man in police custody committed
duty of care
DUTY OF CARE Industries plc v Dickman to form a 3-part test suicide due to police negligence
EXCEPTIONS – § There was a duty of care owed – the
A. ESTABLISHED DUTY SITUATIONS – prisoner had been entrusted into the
THE CAPARO TEST – Home Office v Dorset Yacht
§ London Passenger Transport Board v Upson - One care of the police
§ There is a duty to act positively in cases
1. Bourhill v Young - Is it reasonably foreseeable that the § The police had assumed responsibility
road user to another, AND to pedestrian where a person has special control over
defendant’s actions will affect this particular claimant?
§ Teacher to pupil, tutor to tutee another for the prisoner
§ Doctor to patient 2. Is there sufficient proximity of relationship between the
§ Manufacturer to the ultimate consumer of the claimant and the defendant? Smith v Littlewoods Robinson v Chief Constable of West
product § This duty does not extend to cover Yorkshire Police
§ Baker v Hopkins - Defendant to rescuer, where the 3. Is it fair, just and reasonable to impose a duty? actions of third parties who are outside § A distinction was drawn between
defendant has created a dangerous situation so the defendant’s control inaction and actions of the police
that it is reasonable that somebody may attempt Robinson v Chief Constable of West Yorkshire – § E.g. vandals breaking into defendant § The police owe a duty of care to
rescue property and going on to damage
§ The court provided guidance in how to apply the Caparo test avoid using, by a positive act,
§ Nettleship v Weston - Driver to pedestrians and neighbour property
passengers § Confirmed that where there is a line of authority establishing foreseeable personal injury to
§ Vowles v Evans - Referee to sport player that a duty of care is owed, the courts must follow this authority Carmarthenshire County Council v Lewis another person – arresting someone
§ Parent/adult in loco parentis to child § Where there is a novel case, Caparo test should be used as a § 4-year-old strayed from school is positive act
§ Arthur J S Hall and Co. v Simons - Advocate to framework to decide whether it is fair, just and reasonable that playground, causing lorry to swerve
client a duty come into existence in law Police may also owe a duty of care:
§ Billings v Ridden – contractor to anyone who may
killing the driver. The court held that
§ The courts must develop the law ‘incrementally by analogy with § Rigby v Chief Constable of
visit property, make sure they wont be hurt the education authority owed a duty to
established authority Northamptonshire Police - to take
§ Kent v Griffiths – In limited circumstances, prevent the child endangering others
action with reasonable care -
ambulance service to emergency callers – § Court held the education authority owed
‘Sufficient proximity of relationship’ § Swinney v Chief Constable of
(ambulance treated as part of health service) a duty to prevent the child endangering
§ Lack of proximity may place limitation on the duty of care owed Northumbria Police - To keep the ID
others – it had assumed responsibility for
Established duties DO NOT exist in the following § Duty of care may be limited in cases of omissions, pure of informants safe
controlling the child
situations: economic loss and pure psychiatric harm § However, Commissioner of Police of
§ Mulcahy v Ministry of Defence – soldier to
If any of the exceptions apply, the omission the Metropolis v DSD and another
colleague Marc Rich v Bishop Rock Marine Co – Fair, just and reasonable may gives rise to a liability, so consider Caparo throws into doubt the established
§ Capital & Counties v Hampshire CC – fire service to not be satisfied even if test 1 & 2 satisfied if the court doesn’t test duty of police
emergency caller (treated as public body)
agree on public policy grounds
§
, DO THE POLICE OWE A DUTY OF CARE? Osman EMERGENCY AUTHOIRTY CASES
Brooks
§ The proximities were much closer as the police knew
§ General rule is that they do not owe a § The claimant was with Stephen Lawrence Capital Counties v Hampshire Country Council
both the victim and the criminal well
duty of care – this is public policy driven § A duty was denied, however, because it was not fair, when he was murdered and was himself § Fire service treated like public body
just and reasonable to impose a duty subjected to a racially motivated attack § Fire duty do not owe a duty to anyone who has
Hill v Chief Constable of West Yorkshire called for their help
§ Due to racist stereotyping by the police,
§ The police do not owe a general duty of Policy decision :
he was treated more like a suspect than a Kent v Griffiths
care to apprehend an unknown criminal § Floodgates would open/Police would have to adopt
over defensive procedures/ Public money would be witness or victim of a violent crime and § Ambulance service owes a duty to someone
§ However, exception to this is where wasted defending claims/ Victims of crime have subsequently developed PTSD who calls for their help
failure to apprehend a criminal creates another source of compensation § Relying on the same policy reasons as in § Duty imposed to arrive within a reasonable time
exceptional added risk, may be possible Hill, the police did not owe a special duty § Ambulance treated differently to fire service in
to impose a duty ECHR : Capital Counties because seen as part of health
to Brooks
§ ECHR held that ‘where the police knew or ought to service
§ Floodgate argument – if one case is § No general duty owed to a suspect in
have known of the existence of a real and immediate
allowed to succeed then the police will regard to how police conduct
risk to the life of an identified individual’ there could LOCAL AUTHORITY CASES
constantly have to defend themselves investigation
be proximity if the police fail to take reasonable steps
within their power to protect the individual § Lord Steyn noted that 'to impose such a Stovin v Wise
Facts : § Policy of ‘blanket’ immunity was violation of Article 6 duty would be "bound to lead to an § The highway authority knew that a road
§ Raised the question of whether police ECHR – fair trial unduly defensive approach in combatting junction was dangerous but failed to exercise its
owed a general duty of care to potential crime" powers to reduce the danger
victims when investigating crime
Kirkham v Chief Constable of Greater Manchester Police § An accident occurred at the junction as it was
§ Last victim of Peter Sutcliffe ‘Yorkshire Smith
§ This case was distinguished from Hill alleged the highway authority should contribute
Ripper’ – Jacqueline Hill § The claimant had informed the police of a
§ Where a man in police custody committed suicide towards compensating the injured party
§ Sutcliffe had been interviewed and series of threatening messages
due to police negligence § It was held that the authority owed no duty of
released, then killed last victim § However, the police treated it as a
§ The police had assumed responsibility towards the care to road users to alleviate the danger
§ Jacqueline’s family sued the police domestic matter
prisoner
arguing their negligent investigation § The claim was struck out for the same
§ There was greater proximity between the police and CROWN PROSECUTION SERVICE?
meant their daughter was killed policy reasons as given in Hill
the prisoner Eligozouli Daf
Outcome : Swinney § In cases against the CPS, no duty is imposed
§ Hills relied on the decision of Dorset Robinson v Chief Constable of West Yorkshire Police
§ Recognised the importance of balancing
Yacht – argued that the police, like the § SC held unanimously that Hill was a misinterpretation Policy decisions
different policy considerations § Imposing a duty - open the floodgates to an
Home Office guards, owed daughter a of the law – Police can only be sued in exceptional
§ The court of appeal made it clear that the enormous number of claims
duty to prevent crime circumstances
police did not have 'blanket immunity' § Cause the defendants to behave in an unduly
§ H of L refused to impose duty – there § The police owe a duty of care to avoid using, by a defensive manner - the defendants should be
§ Court decided that informers should be
was insufficient proximity between positive act, foreseeable personal injury to another free to make decisions without fear of being
owed a duty of care - The class of
police and Sutcliffe person – arresting someone is positive act sued in negligence
informers is relatively small and there are
§ Where an arrest is negligently performed, the police § Imposing a duty will be a waste of scarce
good public policy reasons for encouraging
Policy Reasons for Decision : are liable not only for any injury caused to the person resources - are other sources of compensation
informers by protecting them well. available to the victim
§ Wasn’t fair, just and reasonable to being arrested, but also for any injury that the person
§ The courts would have to consider how the
impose a duty – would lead to a who is being arrested causes to another person, so Rigby v Chief Constable of Northamptonshire public body allocated its resources - a political
floodgate of claims long as that injury is a foreseeable consequence of § When the police do take positive action, decision - not appropriate for a judge to decide
§ Police would adopt defensive attitude the police’s positive actions. they owe a duty to take action with § Not imposing a duty allows the defendant to get
when investigating crime reasonable care in the circumstances away with careless behaviour?
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