Providing an in-depth and detailed step-by-step summary on how to answer problem questions designed for the GDL/PGDL tort law module. Includes in-depth elaborations on cases and their relevance to the topic, the law and its application alongside helpful hints and tips to apply to the facts.
TRESPASS TO THE PERSON
DEAL WITH CLAIMS IN CHRONOLOGICAL ORDER
1. State
The claimant may sue the defendant in the tort of trespass to the person for [insert conduct]
Both assault and battery are actionable per se so there is no need to prove physical harm.
2. Define the relevant tort- assault or battery
ASSAULT
● An intentional act by the defendant causing the claimant to reasonable apprehend the
immediate infliction of unlawful force
● Intentional conduct
○ Intentional conduct is essential because otherwise the relevant tort is negligence as
per Letang v Cooper
○ WORDS as well as actions may constitute an assault (R v Ireland “a thing said is
a thing done”)
○ However words may also negate an assault (Tuberville v Savage - “if we werent
being watched” “if you didnt have a weak heart i would punch you”
● Immediate
○ “Within a minute or so” (R v Ireland)
● Unlawful force
○ In F v West Berkshire, Lord Goff said that that unlawful force is conduct which falls
outside what is generally acceptable in the “ordinary conduct of everyday life”
● It is necessary for D to intend that C apprehends the infliction of a battery (BICI v
Ministry of Defence)
○ In Thomas v NUIM: assault wasn’t made out bc C couldnt reasonably apprehend
the immediate infliction of a battery through being in separate cars on a motorway
○ Stephens v Myers: elements of assault made out bc battery could have been
inflicted a few seconds before intervention by police - Football fans verbally threaten
rival fans at the ground and are only prevented from carrying out the threat because
the police intervene
○ Ireland: Words can constitute assault.
○ Immediate = ‘within a minute or so’
BATTERY
● Battery requires the intentional application of unlawful force.
○ Intentional
■ Applying Wilson v Pringle, it is not necessary for the D to intend the
consequences of their actions to carry out an intentional act.
■ Thus D must only intend his actions and not the consequences.
○ Direct application of force
■ DIRECT = the force must flow almost immediately and without intervention
from the D’s actions
, ■ The D need not make physical contact with Cs body - eg can use a medium
(a hose) provided that the medium is controlled by the defendant without any
intervention.
○ Unlawful force
■ In F v West Berkshire, Lord Goff said that that unlawful force is conduct
which falls outside what is generally acceptable in the “ordinary conduct of
everyday life”
Rule in Wilkinson v Downton
The rule in Wilkinson v Downton established a separate tort where the defendant intends to
cause shock to the claimant who suffers tangible damage as a result.
● Facts of wilkinson v Downton
○ D told evil koke to C that her husband was badly injured in an accident, causing her
severe shock-inducing vomiting and serious permanent physical consequences.
Make the point that there are 3 aspects to be satisfied - intention to cause harm/ conduct via D/
consequence of some harm being suffered by C (physical or medically recognised psychiatric
condition) with this rule you dont have the immediacy of the harm nor is it actionable pers ay thus
you need to show causation + remoteness
This was reformulated in Rhodes v OPO to comprise the following elements:
● Conduct requiring words/conduct directed at the claimant for which there as no justification
● An intention to cause at least severe mental/emotional distress
● Physical harm or recognised psychiatric illness
HOWEVER the HOL confirmed in Wainwright v Home Office that no cause of action will lie
unless the damage to the claimant amounted to medically recognised condition
3. Causation and Remoteness - if C has suffered tangible harm and wishes to recover fully
from D:
Whilst trespass to the person is actionable per se, if the claimant has suffered tangible harm
(injury) and wishes to recover fully from the D, the C must prove the D’s tort has CAUSED his
loss and that his loss is not too remote
●
4. Defences
Once the claimant has proved that the D committed a trespass to the person, the burden of proof
is on the D to make out one of the following defences:
CONSENT
● C expressly/impliedly consented to D’s act then D not liable.
● Eg.
○ - surgical operation/medical treatment
■ (Chatterson v Gerson:consent = real once patient is informed
■ Chester v Ashfar: doctors failure to disclose risks doesn’t invalidate consent
- no claim in trespass but claim in negligence)
, ○ -Participation in sport within the rules of the game
■ (Condon v Basi: competitor consents to conduct within rules of game and
conduct outside rules of game but within spirit of the sport)
LAWFUL ARREST
If a police officer lawfully arrests someone pursuant to valid warrant then they do not commit thet
ort of battery provided the police officer uses reasonable force to carry out the arrest
DEFENCE OF THE PERSON - SELF DEFENCE
If D commits a battery/assault in defending yourself from an attack then self defence may be
available.
This will need to be reasonable and proportionate according to Lane v Holloway.
● Cockcroft v Smith
○ The defendant must establish that the force was:
■ Used in self defence
■ Reasonable and
■ Proportionate to the force used/threatened by the claimant
○ This is a question for the court to decide taking account circumstances of the case
● This defence extends to protecting members of your family, employer/employee. It is likely
the court would extend the defence to cover protecting any other person provided the steps
taken were reasonable in the circumstances (incl. The D’s relationship with the 3rd party)
DEFENCE OF PROPERTY
D may take reasonable steps to defend his property.
Extends to reasonable steps to eject trespasser (eg asking trespasser to leave) Green v
Goddard
DEFENCE OF NECESSITY
General defence
D must show situation of necessity exists and his actions were reasonable in circumstances
F v West Berkshire: applies when adult is medically treated w/o consent
- Emergency situ where patient is unconscious
- State of affairs rendering patient incapable to give consent- stroke
- Lord Goff made it clear that the type of situations would extend to bystanders at a crash
scene;care workers but Lord Brandon stipulated that the operation must be in the best
interest of the patient - must be lifesaving or to ensure improvement/prevent
deterioration in patients health
DEFENCES NOT AVAILABLE:
● NOT Provocation
● NOT contributory negligence- not available as partial-defence to torts of Assault + Battery
5. Remedies
● Damage for harm suffered (Lane v Holloway)
, NEGLIGENCE CLAIM
1. State “the claimant can consider suing the defendant for [ACCIDENTAL PHYSICAL INJURY/
ACCIDENTAL PSYCHIATRIC INJURY/ DAMAGE TO PROPERTY] in the tort of negligence.
● [Claimant] v [Defendant]
● Define Negligence
○ A breach by the defendant of a legal duty of care owed to the claimant that results in
actionable damage to the claimant, unintended by the defendant
● In order to establish a negligence claim, there must be a duty of care, breach of duty,
causation.
2. Does the D owe C a duty of care?
General rule = no duty for omissions i.e. failure to act/prevent harm (Stovin) except in special
relationships where there is a duty to act positively because of POWER or CONTROL over other
person/object such as in Dorset Yacht where the officers had control and a duty to act positively
There is a duty not to make situations worse if you do act (East Suffolk Rivers)
Route A or Route B
A) ESTABLISHED DUTY SITUATION
● Doctor and patient
● Hospital and patient
● Manufacturer and consumer (Donoghue v Stephenson)
● Highway users (Nettleship v Weston)
● Employer and employee (Wilsons & Clyde Coal Co Ltd v English)
● Employee and Employee
● Parent/guardian and child
● Teacher and pupil
● Participants in sporting events (Condon v Basi)
● Defendants to rescuers (if D creates dangerous situation so that it is reasonable for
someone to attempt rescue (Baker)
● Ambulance service (duty to arrive within reasonable time)
● Fire service (duty not to make situation worse)
● Advocate to client (Arthur J S Hall and Co. v Simons)
● Contractor and those he could reasonably foresee as being affected by his work (AC
Billings v Riden)
There is no general duty on the police to individuals, but they have a duty to protect the public at
large (Hill v Chief Constable of West Yorkshire/ Osman v UK).
Exception to this: is where police have an implied duty of care for someone who has been
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