Lecture 11The Law of Tort

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Lecture 10-Recap• Torts-what is a tort?

• The Tort of Negligence

• Definition of Negligence?

• Lack of care/recklessness on behalf of the defendant, which causes the claimant damages……..involves the defendant falling below an expected standard (level) of care

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The 4 elements of the tort of negligence:• The following four elements must be established to prove negligence:

1. The claimant suffered a type of damage recognised by the law of tort2. The defendant owed the claimant a duty of care3. The defendant breached the duty of care; and4. The breach caused the claimant reasonably foreseeable damage

NB: the burden of proof will always be on the claimant!

Learning Outcomes:• Describe other civil wrongs besides negligence and explain both how

they differ and when/why they will not be treated as crimes;

• Outline the general defences and remedies in tort;

• Apply legal principles to given facts and demonstrate criticality & analysis when answering fact based questions; and

• Analyse case law and be able to apply case law in a persuasive manner to hypothetical case studies.

Other Torts

•This week we will be looking at the following torts:

The Tort of Defamation;

The Tort of Trespass (both against the person and property); and

The Tort of Nuisance

Tort of Trespass• What is a trespass?• Trespass is the direct interference with another person or his

property, which infringes the person’s right to enjoyment of his land, possession of his goods or freedom of movement

• Trespass is actionable per se

• This means that the claimant only needs to show that the trespass occurred, although it is not necessary to show that the defendant caused any damage or injury.

• Therefore, Tom can bring an action against his neighbour Jerry, for simply climbing over the wall and entering into Tom’s garden to pick up his football, even though he has not caused any form of damage

• Whereas the tort of negligence is committed negligently, trespass is committed intentionally

Trespass to the person• There are three categories of trespass to the person:

• Assault;• Battery; and• False Imprisonment

• Overlap between the tort of trespass to the person and criminal offences against the person

• What constitutes a crime can also constitute a tort but why might a claimant bring a civil action against the defendant as opposed to a criminal charge?

• The main reason is that the remedy that the claimant is seeking is that of compensation (“damages”)

• Furthermore, the Crown Prosecution Service may not want to prosecute the defendant, as the act committed by the defendant may not be “criminal” or amount to a “crime”, in which case the claimant can only bring an action against the defendant in the civil courts

• For example, if Tom’s neighbour Jerry breaks his window whilst playing football, this is not criminal arson but a trespass which causes damage.

Assault• Assault is an act which causes another person to fear immediate and

unlawful force

• The claimant must therefore, prove 2 elements:

1. The defendant intended to threaten physical injury; and

2. This threat caused the claimant to reasonably fear the application of direct and immediate force.

• The claimant must reasonably fear that immediate force will be used against him

Battery• Battery is the application of unlawful force to another person • The claimant has to prove 3 elements for battery:

1. The defendant intended to apply force to the claimant;

2. The force applied must be direct and immediate; and

3. The force must be unlawful.

Defences to Battery & Assault• Self defence: a person may use reasonable force to defend himself or

another. What is reasonable will depend on the facts of the case

• Lawful arrest: reasonable force may be used to make a lawful arrest. Therefore, it’s possible for a police officer to commit battery/assault, if the force he used to arrest the claimant was unreasonable (e.g., grabbing the claimant by the collar of his shirt.)

False Imprisonment• False imprisonment is whereby without a lawful reason, the claimant is

prevented from moving freely and it is therefore, the deprivation of personal liberty

• LJ Goff in Collins v Wilcock (1984), defined false imprisonment as the “unlawful imposition of constraint on another’s freedom of movement from a particular place”

• Meering v Grahame-White Aviation Co (1919)- the claimant does not need to know that he is unable to leave and that the fact he cannot leave is enough to prove the tort of false imprisonment

• The claimant must prove 3 elements:1. The defendant intended to restrict the claimant’s freedom of

movement;2. The claimant’s freedom of movement was completely restricted (e.g.,

the claimant had no reasonable means of escape); and3. The restriction was unlawful.

Defences to false imprisonment• Lawful arrest: any person who has been lawfully arrested may be

detained as per the rules under the Police and Criminal Evidence Act (PACE)

• Court order of imprisonment: an imprisonment sentence passed by a court allows the defendant to be lawfully detained

• Mental health order: the Mental Health Acts allow a person to be held in a mental hospital under certain circumstances. For example, if the person poses a threat to the public or if s/he has suicidal tendencies

Trespass to Land• Trespass to land is defined as any intentional and unjustifiable

interference with the land or buildings of another person

• Like trespass to the person, no damage to the land/building needs to be proven by the claimant

• Examples of trespass to land:

Taking a short cut by walking across someone’s gardenClimbing over your neighbour’s wallDigging a tunnel underneath someone’s landAllowing your pet to enter someone’s landThrowing objects into someone’s landAllowing plants/tree branches to hang over into someone’s propertyRemaining on land after the owner has withdrawn permission for you to

be there

• Kelson v Imperial Tobacco Co Ltd (1957): It is possible for there to be a trespass in the airspace immediately above land, even though the object is not touching the surface of the land in any way

• Lord Bernstein of Leigh v Skyviews & General Ltd (1977)

• The claimant must therefore, prove the following 3 elements for trespass to land:

1. The defendant acted intentionally;

2. The defendant’s actions interfered with the claimant’s land; and

3. Such interference occurred without any legal authority

Defences to trespass to land• Legal authority: the defendant had legal authority to trespass. E.g., a search

warrant or court order

• Licence: the defendant had a licence to be there and this was not withdrawn by the claimant. For example, having a valid ticket to be at a football match-but such a “licence” can be withdrawn by the claimant (for example, if the ticketholder is a hooligan and is likely to cause trouble at the match.........sounds like a Chelsea fan! )

• To save life: if the defendant trespassed in order to save life (e.g., saving a cat from a tree in the claimant’s garden), than this can be seen as justifiable grounds

• To take back possessions taken by the claimant, belonging to the defendant

• Abating: this is whereby the defendant trespassed to end a nuisance. For example, cutting off tree branches which are overhanging in your neighbour’s land.

What is a nuisance and how is it different from a trespass?

• Unlike a trespass, which is actionable per se, a nuisance is an indirect interference to land which causes damage

• Therefore, the claimant must prove damage

• Private Nuisance: a type of nuisance which unreasonably interferes with the claimant’s use or enjoyment of his land (e.g., branches of a tree hanging over another person’s garden)

• Public Nuisance: a type of nuisance which affects the reasonable comfort and convenience of a group of people (e.g., a faulty street light)

Trespass to goods• Trespass to goods consists of direct and unlawful damage to, or

interference with, goods in the possession of another person

• What are goods?

• Goods are moveable objects (“chattels”)- e.g., books, mobile phone, cars…..

• The claimant needs to prove the following 2 elements to the tort of trespass to goods/chattels:

1. the defendant must intentionally interfere with the goods; and

2. the goods must be in the possession of the claimant

Defamation• Defamation is the making and publishing of a false statement about a

person which damages that person’s reputation.

• Lord Atkins in the case Sim v Stetch (1936) defined defamation as an untrue statement which “causes the claimant to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem” in the eyes of reasonable people

• Defamation is the only branch of civil (private) law in which there is a trial by jury in a civil trial

• Furthermore, if the jury finds that the statement made by the defendant is defamatory, it will also decide how much the defendant should pay in damages (compensation). However, there is a statutory limit on the maximum amount of damages that can be paid to the claimant

• There are two types of defamation:

• Libel

• Slander

Libel• This is defamation in a permanent form. For example, a statement

made or an article published in a book, magazine, or any other written material (e.g., leaflets), pictures, CDs, recordings and films

• Monson v Tussauds Ltd (1894)

• Libel is a tort that is actionable per se

• This means that the claimant does not have to prove that his reputation was actually affected. The publication of the statement is enough

Slander• This is defamation in a non-permanent form or a temporary form

such as a speech or gesture

• Unlike libel, slander is NOT actionable per se and the claimant has to prove that his reputation was affected

• The claimant must prove the following elements for defamation (both libel and slander):

The statement must be defamatory: the statement must be untrue and must lower the reputation of the claimant in the eyes of the reasonable members of society;

The statement must refer to the claimant; and

The statement must be published.

Formative Assignment

• See Hand-out and Instructions

• Deadline: BY 3PM THURSDAY 30TH JANUARY 2014

Preps. For Seminar 11:

• Hand-out

• Reading List:• Jacqueline Martin, “GCSE Law”, 5th edition, Chapter 19- Law of tort:

trespass and nuisance• Jacqueline Martin, “GCSE Law”, 5th edition, Chapter 39-Human Rights:

Freedom of expression (esp. Defamation-pages 310-315)• Jacqueline Martin, “GCSE Law”, 5th edition, Chapter 20- Law of tort:

general defences and remedies

• List of Cases

• Preparatory Questions