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GDL Tort Revision Notes
This is a full set of revision notes I made for the 2022 GDL Tort Exam taken at ULaw. It covers all topics tested under the GDL. Scored 87.
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GENERAL TORT PRINCIPLESStructure for tort problem questions:
1. Identify all possible claimants and defendants
2. Identify the nature of harm suffered by relevant claimant
3. Decide which tort protects that particular harm
4. Apply elements of relevant tort
Types of harm:
- Personal injury
- Property damage
- Interference with use of enjoyment of land
- Defective product
- Injury through attack
- Interference with land
- Defective buildings
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,TRESPASS TO THE PERSON
Assault and battery involve intentional acts (not omissions) are actionable per se, i.e. without needing proof of loss or damage
(although the more damage is proved, the more compensation that will be available). If the actions of the defendant are only
careless then the claimant should sue in the tort of negligence (Lentang v Cooper).
1. BATTERY
Definition: the intentional direct application of unlawful force to another person
1. Direct:
- Interpreted broadly by the courts, including projectile attacks and other media (e.g. Scott v Shepherd – a firework
thrown between stallholders)
2. Intention:
- What is required is intention to apply force, not necessarily intention to cause harm (Wilson v Pringle)
3. Application of force:
- The use of force must be almost immediate and without any intervening acts
- Fagan v MPC: refusing to move a car accidentally driven onto a policeman’s foot
- F v West Berkshire Health Authority: physical contact which is generally acceptable in the everyday conduct of day-to-
day life is not unlawful
2. ASSAULT
Definition: an intentional act by the defendant that causes another person to reasonably apprehend the immediate infliction of
a battery upon him
1. Intention:
- The defendant must intend that the claimant apprehends physical force (Bici v Ministry of Defence), otherwise it may
be within the scope of general negligence (Lentang v Cooper)
2. Act:
- Words can amount to an assault, but words (e.g. conditional threats) can also negate an assault (Tuberville v Savage)
- Silence can also amount to an assault (R v Ireland)
3. Immediate:
- ‘Immediate’ means the use of force could happen within a minute or so (R v Ireland).
3. RULE IN ‘WILKINSON V DOWNTON’
Definition: this arises “when the defendant…wilfully [does] an act calculated to cause physical harm to [the claimant] …and
thereby has in fact caused physical harm [to the claimant]” (Wright J)
In Wilkinson v Downton, the defendant intended to cause shock to the claimant who suffered some tangible damage as a result.
The case of Rhodes v OPO reformulated the elements as having:
1. A conduct element requiring words or conduct directed at the claimant for which there was no justification or excuse
2. A mental element requiring an intention to cause at least severe mental or emotional distress
3. A consequence element requiring physical harm or recognised psychiatric illness (must be a medically recognised
condition, as stated in Wainwright v Home Office)
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, 4. DO ANY DEFENCES APPLY?
1. SELF-DEFENCE
This defence extends to protecting other members of your family and, in an employment context, your employer or employee.
As per Cockcroft v Smith, the defendant must establish that:
- The force used was self-defence and not an act of retaliation
- The force used must be reasonable
- The force used must be proportionate to that used or threatened by the claimant
2. DEFENCE OF PROPERTY
One can take reasonable steps to defend his property. This extends to taking reasonable steps to eject a trespasser, reasonable
perhaps meaning first asking the trespasser to leave (Green v Goddard)
3. NECESSITY
A defendant relying on this defence must prove that a situation giving rice to necessity existed; and that the defendant’s actions
were reasonable. In F v West Berkshire Health Authority, two circumstances were identified by Lord Goff for treating an adult
without consent:
- An emergency situation where the patient is unconscious (e.g. a railway accident)
- A state of affairs (temporary or permanent) rendering the patient incapable of giving consent (e.g. a person lacking
mental capacity or someone suffering a stroke)
4. CONSENT
If the claimant has expressly or impliedly consented to the defendant’s act then the defendant will not be liable in trespass to
the person. It is a general defence.
- Most commonly used in medical treatment and sport
o Sport – case law suggests that a competitor consents not only to all conduct within the rules of the game but
also conduct which may fall outside the rules but which is nonetheless within the spirit of the game (Condon v
Basi)
o Medical treatment – a patient’s consent to medical treatment will be valid once the patient has been informed
about the nature of the procedure which is intended. Consent is not real if it is induced by misrepresentation
(Chatteron v Gerson)
o A doctor’s failure to disclose risks associated does not invalidate consent but might instead give rise to a claim
in negligence (Chester v Asfhar)
o
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, TORT OF NEGLIGENCE
Identify all possible claimants and defendants
Identify the nature of harm suffered by relevant claimant
E.g. personal injury
Decide which tort protects that particular harm
Negligence can be defined as a breach of a legal duty of care owed to a claimant that results in harm to the claimant,
undesired by the defendant. In a negligence claim, the burden of proof is on the claimant and the standard of proof is
the balance of probabilities (i.e. more likely that not).
Apply elements of relevant tort:
o In order to establish liability in the tort of negligence the claimant (C) must satisfy the court on the balance of
probabilities that:
The defendant (D) owed him a duty of care;
That the duty was breached;
That D’s breach caused damage to C
o If C succeeds in establishing these elements, D might be able to raise defences.
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