Tort Law
What is a tort?
⇒ Torts intended to ‘signal’ appropriate norms of conduct
⇒ Enforcement is a matter for the person wronged, not the state
• In tort we see ‘bargaining in the shadow of the law’ i.e. the wronged person can
approach the wrongdoer and make their own agreement as to how the infringement
should be addressed
⇒ In tort a monetary sum is given to compensate the claimant (to put the claimant in the
position he/she would have been in if the wrong had not been done) for injury
Elements typical of all torts
⇒ Loss or damage: it is typical that a claimant will be seeking compensation for loss/damage of
some kind
⇒ Causation: there must be a causal relationship between the wrongdoing by the defendant
and the loss to the claimant
⇒ Responsibility: the defendant usually must have been at fault (Exception: strict liability)
Features of tort relationship
⇒ Tort typically involves two parties, a defendant and a claimant
⇒ Causation of loss joins the defendant and the claimant in a way that other parties are not
joined i.e. the 2 parties in an action are "locked in a normative reciprocal embrace" (Weinnrib)
Title
⇒ Compensation/reparation: this is to put the claimant in the position he/she would have been in had
the tort not happened
⇒ Appeasement: the law acts so people do not have to take private vengeance
⇒ Justice: the offender should suffer an evil (pay compensation) for their wrongdoing
⇒ Detterence: tort law defers the defendant from doing the wrong again and deters other people in a
like position
⇒ Note: some level of accidents are acceptable → physical risk cannot be completely
Trespass to the Person
Battery
,Definition of a battery
⇒ A battery is a direct and unintentional physical contact with another person without lawful
justification
⇒ Some contact is acceptable in everyday life:
• Cole v Turner (1704): the judge in this case said that if two people brush past each other on a
train that is acceptable contact
• Collins v Wilcock [1984]: in this case, a police officer held the arm of a woman suspected of
being a prostitute. Since he was not exercising his power of arrest he could not hold her as that
went beyond what is acceptable physical contact to engage someone's attention
⇒ Consent to contact can preclude battery i.e. if you consent to what is about to happen to you then it
might not be a battery e.g. when you play rugby
⇒ You can consent to medical treatment too...
Special case: consent to medical treatment
⇒ Consent to medical treatment can be refused, even if unreasonable i.e. you can refuse medical
treatment even if stupid, such as in a circumstance where you could die
⇒ But, the refusal of medical treatment (by the patient) can be ignored where the doctors think that
patient didn’t really mean to refuse the treatment e.g. where they are in pain and on medication so
shouldn’t take the refusal at face value
⇒ Even without consent to the treatment, doctors can still intervene by invoking ‘best interests
necessity’ → so this would be used in cases where the patient is incapable of giving consent e.g. they are
unconscious
• See, for example, the cases of In re T (Adult: Refusal of Treatment) [1993] and Re F (Mental
Patient: Sterilisation) [1990]
The physical contact must be direct
⇒ In Scott v Shepherd, the defendant threw a lit squib into a market. The squib was thrown on several
times, before exploding and injuring the claimant (causing him to lose the use of one eye). The court said
that the physical contact was still direct, and the people in the middle (who threw the squib on) didn’t
interfere with the directness
⇒ Directness in that there is no other significant voluntary act which intervenes.
Physical contact must be intended
⇒ In Letang v Cooper [1965] it was decided by a majority that battery must be intentional
⇒ An intentional act is a conscious and voluntary contact with the body of the claimant (Gibbons v
Pepper (1695))
Other elements of a battery
,⇒ Harm need not be intended by the defendant
• I.e. Although the contact must be intended, the harm does not need not be intended
• Thus, the tort is actionable per se → this means it is actionable without proof of any injury or
damage to the claimant
⇒ There must be unlawful contact to the claimant e.g. in Collins v Wilcock [1984], the judge said the
contact to the claimant must have been unacceptable in the ordinary affairs of life
Potential defences to a battery
⇒ Necessity: battery may be acceptable where it is necessary e.g. where there is a medical or other
need to act (Re F (Mental Patient: Sterilisation) [1990])
⇒ Mental Capacity Act 2005: e.g. where a person does not have mental capacity to consent to medical
treatment it may be possible to conduct treatment on them regardless
⇒ Self-defence: see, for example, the case of Ashley v Chief Constable of Sussex Police
• One question that has been raised is whether or not self-defence can be pleaded when the
defendant was mistaken about the physical threat facing him/her: Lord Scott said you can in this
case, so long as you reasonably believe you are physically threatened
• Any acts of self defence must be proportionate in nature: Lane v Holloway (1968)
Assault
Definition of an assault
⇒ An assault is an intentional act which directly causes the claimant to reasonably apprehend the
application of unlawful force.
• An 'intentional act' means it must be voluntary
• An 'act' means a 'positive act' i.e. he/she actually did something (Innes v Wylie)
• The act must be 'directly' cause the claimant to apprehend unlawful force i.e. there must be no
intervening act
⇒ Unless a defence applies, the tort is actionable
Apprehension
⇒ The apprehension of the claimant could be due to the defendant's actions and words (see, for
example, Read v Coker [1853])
⇒ The apprehension of the claimant could be due to the defendant's silence (see, for example, R v
Ireland [1998])
⇒ However, words that could cause the claimant to apprehend unlawful force may be cancelled out by
words (see, for example, Tuberville v Savage [1669])
, The apprehension must be reasonable
⇒ In other words, there must be a real prospect of the battery being carried out
⇒ ... Even if the battery is never actually carried out (see, for example, Stephens v Myers (1830). Also,
see the case of Read v Coker [1853])
⇒ The test carried out for what constitutes reasonable apprehension of an imminent battery is objective
not subjective i.e. the question the court asks is whether or not the 'reasonable man' would have
apprehended an imminent battery, not the claimant himself
Intentional Infliction of Harm
Intentional infliction of harm
⇒ An action on the case exists for the intentional causation of harm without just cause or excuse,
where harm arises that is not too remote
⇒ See, for example, Wilkinson v Downton [1897]
Elements of the tort
⇒ This tort requires that harm has been caused (unlike an assault or a battery). This can include:
• Physical injury (e.g. Bird v Holbrook), or;
• Recognised psychiatric injury (however, mere distress is not enough e.g. Wainwright v Home
Office)
⇒ Such harm must be intended i.e. the defendant must have intended the result
• OR, the harm must have been caused through acts where intention can be imputed
• In other words, if you deliberately set out on a cause of action with a high chance of the harm
resulting then you have to take responsibility for that harm, and cant just say you didn’t mean it
→ you either meant to do the harm or the court will impute it
⇒ The intentional causation of harm must be 'without just cause or excuse'
• In other words, if there is a reason justifying the action of the defendant (i.e. a justification for
the harm) then he/she may escape liability. For example, if the action is necessary for some
reason or another, the defendant may be able to escape liability for the harm
Is this tort necessary due to the Protection from Harassment Act 1997?
⇒ The Protection from Harassment Act protects against a course of conduct by someone that amounts
to harassment and that person knows or ought to know his course of conduct amounts to harassment
(s1(1))
• A 'course of conduct' means conduct on at least two occasions: s7(3). Conduct includes speech:
s7(4)
