Exam revision notes covering the entire Tort Law course in the GDL at the University of Law. These notes contain everything you need to know for the exams summarised onto 1-3 pages per topic. Tables, flowcharts, and very short case summaries make revising very easy.
Trespass to the Person
- Consider definitions of each tort, causation/remoteness, and defences.
- umbrella term used to describe the separate torts of assault and battery.
- ‘actionable per se’: claimant need not prove any tangible physical harm in order to sue.
- requires intentional conduct on the part of the defendant (Letang v Cooper).
Assault - an intentional act by D that causes C to reasonably apprehend the immediate infliction of a battery.
- Bici v Ministry of Defence: it is necessary for D to intend C to apprehend the infliction of battery.
- R v Ireland: words alone may count as assault, depending on the situation and level of immediacy.
- Turberville v Savage: Conditional threats of battery cannot equate to assault.
Battery - intentional direct application of unlawful force to another person.
- Wilson v Pringle: ‘Hostility’ is a requirement for battery - D must intend their act, but need not intend the consequences.
- Direct application of force: force must flow almost immediately and without intervention from D’s actions. D need not
make physical contact with C’s body, can use a ‘medium’ e.g. shooting someone or throwing water
- F v West Berkshire HA : general exception for all physical contact which is acceptable in the ordinary conduct of life and
not ‘unlawful’.
Rule in Wilkinson v Downton - Tort created that is not actionable per se but sits alongside trespass to the person.
- D must act with intention and C must suffer some recognised illness or injury.
- No direct application of force needed.
- Case law expanded in Rhodes v OPO - Requirements:
● A conduct element requiring words or conduct directed at C for which there was no justification or excuse.
● A mental element requiring an intention to cause at least severe mental or emotional distress.
● A consequence element requiring physical harm or recognised psychiatric illness.
Defences
Consent:
- if C expressly/impliedly consented to the D’s act then D will not be liable in trespass of the person.
- E.g. surgical operation (express consent) or contact sport (implied consent)
- Condon v Basi: participants consent to conduct within the rules of the sport, but also outside the rules if the action is
within the spirit of the particular sport.
- Chatterton v Gerson: consent is not ‘real’ if it has been induced by misrepresentation as to broad nature of the act.
Conversely, a failure to disclose the risks of a medical procedure is a negligence issue.
Lawful arrest:
- If the police officer uses reasonable force when lawfully arresting someone they will not commit the tort of battery.
Defence of the person (Self-Defence) -
- Cockcroft v Smith: force used must be (i) reasonable, (ii) proportionate and (iii) used in self-defence not retaliation.
Reasonable force will depend on the facts in question and is for the courts to decide.
- This defence can be extended to protect members of your family, and employer/employees in an employment context.
Defence of property:
- Green v Goddard - taking reasonable steps to defend one's property. Taking reasonable steps to eject a trespasser (first
step asking them to leave).
Necessity:
- D must show a situation of necessity exists and his actions were reasonable in circumstances.
- F v West Berkshire HA: outlined two situations where defence of necessity could justify treating an adult without
consent, as long as in the best interests of the patient (meaning life-saving or ensuring improvement of their health) - (i)
emergency where patient is unconscious (ii) state of affairs rendering patient incapable of giving consent, e.g. lacking
mental capacity or cannot speak through severe stroke.
Contributory Negligence:
- Co-operative v Pritchard: contributory negligence is NOT available as a defence to claims in trespass to the person.
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Tort of Defamation
- Tort created to protect a person's reputation, it requires a delicate balance by the courts between a person's reputation and
freedom of expression.
- Two forms of defamation; Libel and Slander.
Libel - defamation in a permanent form. I.e. a letter, a radio broadcast, email or tv interview.
- Broadcasting Act 1990, Theatres Act 1968: TV, radio and public theatre performances are permanent and covered by libel.
- Actionable per se: the claimant does not have to show any tangible loss.
Slander - defamation in a transient or temporary form. I.e a hand gesture, rehearsal or spoken message.
- Slander requires proof of some form of tangible loss, such as loss of income due to the slander.
To establish a case in defamation must prove that:
- Defendants words are defamatory; and
- Words refer to claimant; and
- Words have been published.
Defamation Act 2013 s(1) - a statement is not defamatory unless its publication has caused or is likely to cause serious
harm to the reputation of the claimant.
Words are defamatory if:
- Slim v Stretch: they lower the claimant in the eyes of right-thinking members of society (lower public reputation); and/or
- Youssoupoff v MGM: they cause claimant to be shunned or avoided; and/or
- Parmiter v Coupland: they expose claimant to hatred, contempt or ridicule.
- J’Anson v Stewart: Defamatory statements must refer to claimant
- This case showed if claimant is not directly named the description should be so detailed/resemblance so strong that a
reasonable person would assume the subject was the claimant.
- D does have to intend statement to refer to C.
Publication - C need only show that the defamatory statement was communicated to a third party.
- Comments made privately, no matter how harmful, have no impact on reputation and cannot be defamatory.
- A letter published in a newspaper could lead to letter writer and newspaper to both be sued for defamation.
Defences
- Truth (s2 Defamation Act 2013) if defendant's statement about claimant is true it can be relied on as a complete defence.
- Honest opinion (s3 Defamation Act 2013) defendant has a defence where he has made an honestly held statement of
opinion. If (i) statement was of opinion (ii) statement indicated the basis of an opinion (iii) an honest person could have
held the opinion based on facts published at the time the statement is published.
- Defence would be defeated if C could show D did not hold this opinion. Purpose of this defence is to allow free discussion,
important in protection of freedom of press.
- Publication on a matter of public interest (s4 Defamation Act 2013) defence to defamation if statement made was on a
matter of public interest and the D reasonably believed publishing the statement was in the public interest.
- Can be used for statements of fact and opinion - examples include affairs of businesses, matters of the church and conduct
of public figures.
- Qualified privilege - common law defence, aim is to protect occasions where one person has a special interest in hearing
honestly held views of another, even if defamatory and cannot be proved true.
- Common examples: employment references, supplying information to the police.
Misuse of private information - Campbell v MGN - for a claimant to succeed in a misuse of private information action
two conditions need to be met:
- Information must be private - C had a reasonable expectation of privacy in relation to information disclosed. (E.g.
health, sex, relationships, financial affairs)
- Must not be a legitimate public interest in disclosing the information. (e.g. revealing lies, illegal behaviour, politicians)
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Negligence: Duty of Care & Breach of Duty
General Principles
- Negligence can be defined as ‘a breach of a legal duty of care owed to the claimant that results in harm to the
claimant, undesired by the defendant’.
- Lack of proximity limits duty of care, eg. in cases of omissions (like failure of authorities to fix a road), pure economic
loss, and pure psychiatric harm.
- Policy factors when considering ‘fair/just/reasonable’ test include; the floodgates argument, deterrence, resources,
public benefit, upholding the law.
- Liability for Omissions generally, there is no duty to act positively for others (eg. do not need to rescue drowning
stranger unless you have a special relationship). However, a duty to act positively if you have power/control over person,
eg. as a driving instructor, parent, employer. Also a duty to prevent harm to 3rd party if you have control.
- Breach of Duty means D is at fault for failing to meet the standards required by law for fulfilling the duty. Question of
fact for the judge. 2 stage test: 1. What standard of care should D have exercised? (question of law) 2. Did D’s conduct
fall below this required standard? (question of fact).
- Reasonable Person test is objective, but special standards apply where: D possesses a particular skill (eg. electrician), D
is a child, D is disabled.
- Burden of Proof lies with C and must be proved on a balance of probabilities. Res ipsa loquitur (the thing speaks for
itself) can sometimes assist C by raising a prima facie inference of negligence against D. D can disprove this by showing
how the accident actually happened or how he used reasonable care at all times.
- s11 Civil Evidence Act 1968 provides that D who is convicted of criminal offence is presumed to have committed that
offence in subsequent civil proceedings.
Case Law
Donoghue v Stevenson: confirmed that novel duty situations can always a possibility and established ‘neighbour
principle’; you must take reasonable care to avoid acts/omissions which you can reasonable foresee would harm
neighbour (someone in close proximity).
Caparo: 3 stage test for novel duty of care; reasonable foresight of harm, sufficient proximity, fair/just/reasonable. Do
not apply this test where there is a clear established duty.
Robinson: refined Caparo by clarifying that duty of care scenarios already established by an authority must not be
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