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Tort 1 - Intentional Torts: - Coggle Diagram
Tort 1 - Intentional Torts:
What is Tort?
"Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages."
Winfield, Province of the Law of Tort (1931) p.92
What are the objectives of Tort?
Appeasement
Justice
Deterrence
Compensation
Glanville Williams (1951) 4 Current Legal Problems 137.
Public policy issues in Tort:
Floodgates of litigation
Compensation Culture.
Compensation Act 2006, s.1:
'may...have regard to whether a requirement to take such steps might -
(a) prevent a desirable activity from being undertaken at all, to a particular extent, or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.
The mental element in Tort:
Intention
Negligence
Strict Liability
The Requirement of Damage or Loss:
Torts must be 'actionable per se' e.g trespass.
Torts requiring proof of damage or loss:
e.g. occupier's liability; negligence.
Parties to an Action in Tort:
Natural & Legal persons.
Claimant and Defendant.
Deceased's estate:
~ Law Reform (Miscellaneous Provisions) Act 1934.
~ Fatal Accidents Act 1976.
Vicarious Liability:
~ Employer's Liability (Compulsory Insurance) Act
Subrogation: normally, insurance company.
Trespass:
Intentional:
~
Stanley v Powell [1891]
: confirmed the requirement to prove fault.
~
Fowler v Lanning [1959]:
burden of proof on C.
~
Letang v Cooper [1965]:
required fault element is intention.
Direct
Actionable per se
Protects fundamental rights:
~ Peaceful possession of land.
~ Peaceful enjoyment of goods.
~ Bodily integrity
c.f ECHR Art 8; Art 1 Protocol 1.
Trespass To Land:
Protects lawful
possession
of land:
Possession = exclusive right to occupy plus intention to exclude others.
Land includes substrata and airspace to the extent reasonably necessary for enjoyment of possession of their land.
Right to Possession:
Kelsen v Imperial Tobacco Ltd [1957]:
D owned freehold in premises and ran his tobacco shop from there.
D leased part of the premises to C from which he ran a tobacconist shop and had a flat in.
D put up sign which protruded into C's airspace by 4 inches.
HELD: an injunction prevented D from invading the airspace.
Intention may be implied:
League Against Cruel Sports Ltd v Scott and Others [1985]
C own small pockets of land and use them as nature reserves.
C provides a safe space for animals and aims to prevent hunting.
D was holding a hunt and the dogs (used by hunters) were entering C's land.
C sued the hunt master responsible.
HELD: Court determined they could infer intent from 'the indifference towards such incursions while persisting to hunt near C's property' thus guilty of trespass.
D does not need to know they're trespassing:
Conway v George Wimpey & Co Ltd [1951]:
Conway (C) was en route to work on an aerodrome when he hailed Wimpey's lorry, driven by one of his employees (D).
D was told he could only transport W's employees, and a notice to this was affixed in his cab.
D gave C a short lift.
When C got off, his right leg got caught under the wheel of the lorry and had to have it amputated.
C raised action against W.
HELD: both D and C were equally responsible. C was a trespasser when he mounted the lorry, regardless of whether he knew. D acted out of scope of his work responsibilities. W could thus not be held liable, due to C's trespass.
Lord Bernstein of Leigh v Skyviews & General Ltd [1977]:
D company took aerial photographs of properties and offered to sell them to the property owners.
C complained that the photos were taken without his consent and thus was a trespass to his airspace.
HELD: there was no trespass. A land owner has the airspace rights to what is reasonably expected for ordinary use and enjoyment of their property. There is no law against photos. So trespass does not exist.
.
Section 76 (1) Civil Aviation Act 1982:
~ 'no action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above ground which, having regard to wind, weather and all circumstances of the case is reasonable, or the ordinary incidents of such flight.'
Star Energy Weald Basin Ltd and another v Bocardo SA [2010]:
Bocardo (C) was a freehold owner of a plot of land.
By statute, the ownership of all petroleum in the UK is vested in the Crown.
D had a license to get petroleum nearby C's land.
D's predecessors drilled diagonally into the substrata of C's land, installing pipelines into the land from 800ft-1300ft.
Neither D nor predecessors sought consent from C.
C became aware of pipeline in 2006 + action for trespass.
SC HELD: unanimously agreed that D committed trespass.
'he who owns the soil also has ownership up to the heavens above and down to the hell below.'
Defences + Remedies to trespass to land:
Defences:
Statutory Authority
Necessity
~ Southwark London Borough Council v Williams [1971]
~ Monsanto v Tilly [1999]
Remedies: injunction or damages?
~
Kelsen v imperial Tobacco Ltd
Southwark London Borough Council v Williams [1971]
D sought the assistance of a squatters' association which helped them gain orderly entry into local authority owned houses.
The houses belonged to a group of 100s of houses that were left vacant by the local authority
The Council wanted them to leave and sought a possession order.
HELD: COA deemed it as trespass. The defence of necessity was not effective.
Lord Denning:
"if hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass... if homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut."
Monsanto v Tilly [1999]:
Monsanto (C) carry out plant biotechnology.
D was a company that campaigned against plant biotech and GM plants.
D uprooted the planted crops to gain publicity.
C sought an injunction to prevent D's trespass.
D claimed necessity.
HELD: the defence of necessity was not approved. In certain circumstances, a person can trespass onto someones land to prevent immediate danger. however it was deemed to be for reasons of publicity rather than public protection.
Assault:
An intentional act which threatens violence or produces a reasonable expectation of immediate unlawful force.
Stephens v Myers [1830]
C was the chairman in a meeting
D was getting heated so members of the meeting agreed he should be turned out.
D advanced on C stating he would 'rather pull the chairman out of his chair, than be turned out of the room.' while shaking his fist.
D was stopped by another member.
HELD: assault as if he had not been stopped, he would've physically harmed the chairman.
Tuberville v Savage [1669]:
D put his hand on his sword and stated, 'If it were not assize-time, I would not take such language from you'. Assize-time is when the judges were in the town for court sessions.
HELD: no assault as no violence was threatened to actually take place.
Thomas v National Union of Miners [1986]:
NUM organised a strike.
C continued to work.
C was driven to work by the company.
The striking miners made violent gestures at the C and other working miners, but never carried it out or got too close due to the protection provided by the bus and a policeman.
HELD: no assault as the protection of the bus and the policeman meant it was unreasonable to expect unlawful force upon his person.
R v Ireland [1998]:
D made a series of silent phone calls over the span of 3 months to 3 different women.
He was convicted under s. 47 Offences Against The Person Act 1861.
D appealed stating that silence cannot constitute an assault.
HELD: D's conviction was upheld as he caused psychiatric injury which is included in bodily harm and thus amounts to an assault.
Battery:
A battery is the direct and intention application of force to another person without consent.
'unlawful beating'
Blackstone.
Act or Omission?
Fagan v Metropolitan Police Commissioner [1969
]
Fagan v Metropolitan Police Commissioner [1969]:
Policeman directed D to park his car.
D accidentally drove onto the policeman's foot.
Policeman shouted at him to get off.
D refused to move.
D stated that he lacked the
mens rea
of any offence as it was accidental.
HELD: continuing act of assault turned into battery as upon being aware, intention to hurt the police officer was present.
Metal State Required for Battery:
Collins v Wilcock [1984]:
Police woman took hold of woman's arm ton stop her from leaving.
Woman scratched police officer + was charged for battery.
HELD: police officer's actions amounted to battery - thus woman's actions were in self defence and charge was dropped.
Goff LJ: Implied consent existed when reasonably necessary. No consent to grab woman's arm.
Wilson v Pringle [1987]:
C claimed D intentionally jumped on him.
D stated he simply pulled C's schoolbag off his shoulder during horseplay.
Resulted in C falling over and injuring himself.
HELD: COA stated battery requires the application of force to be intentional and hostile.
Cole v Turner [1704]:
C were married.
Claimed battery against a man who jostled the C to get past them in a narrow street.
HELD: ‘the least touching of another in anger is a battery. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery.’
Re F; F v West Berkshire Health Authority [1990]:
F had minor's mental age + formed sexual relationship.
Pregnancy would result in severe effects due to disability.
F's mum applied for declaration stating a sterilising operation would be legal despite lack of F's consent.
Declaration approved by judge.
HELD: HOL upheld approval as is in the best interest of F.
Transferred Intention:
Livingstone v Ministry of Defence [1984]:
Soldiers sent out to control riot, but got attacked by rioters.
Soldiers fired baton rounds into crowd.
C was struck and injured.
D fired it deliberately but not at the C, but another rioter.
C claimed negligence, assault and battery.
HELD: battery, as application of force was still intended and hostile.
Defences to Assault and Battery:
Consent:
Medical Treatment: Chatterton v Gerson [1981]:
C suffered pain from post-surgery scar.
C referred to D.
D advised surgery which risks numbness and temporary muscle weakness.
C underwent surgery, felt temporary relief.
Felt slight numbness but underwent surgery again.
D failed to reinforce her of risks again.
C completely lost sensation in leg.
Sued for negligence and battery.
HELD: High Court favoured D. C gave valid consent to surgery = no battery. D fulfilled duty of care = no negligence.
Sport: R v Billinghurst [1978]:
Rugby played punched another player in the face, fracturing his jaw during the match, in an unprovoked attack.
D argued its common place within rugby matches.
HELD: outside of game rules and thus battery.
Sado-Masochism: R v Brown [1993]:
5 C's inflicted injuries on each other during consensual sexual sadomasochist activities.
Claimed consent.
HELD: COA stated that you cannot fully consent to sadomasochism.
Self Defence:
Cockcroft v Smith [1705]:
Cockcroft (C), the clerk, ran his finger towards Smith's eyes during scuffle in court.
D bit off his finger.
HELD: cannot constitute as self defence as would not be the chosen form of self defence of a reasonable person within this situation.
Ashley v Chief Constable of Sussex Police [2008]:
Police raided house and shot a man who was in bed, unarmed.
Policeman admitted liability in negligence but disputed battery claim.
HELD: HOL upheld battery claim. D could not prove reasonable and honest belief of imminent danger presented by the man.
Necessity:
Leigh v Gladstone [1909]:
Leigh was imprisoned and went on hunger strike.
Wardens force fed her.
Leigh sued for assault and battery.
HELD: the defence of necessity was granted. If wardens had not fed her, she would have died.
False Imprisonment:
The complete restriction of C's freedom of movement without lawful excuse.
R v Governor of Brockhill Prison [2001]:
C was in prison for 59 days longer than she should have been.
Awarded £5000 in damages.
Bird v Jones [1845]:
D unlawfully enclosed part of the highway, charging people to view a boat race.
C attempted to enter enclosure without paying but was stopped by D and 2 police officers.
The C was unrestrained and was free to go back the way he came.
HELD: was never imprisoned as had a clear and reasonable escape.
Meering v Graham-White Aviation Co Ltd [1919]:
C asked to go into a room.
C stated he would leave if not told why.
Told it was on suspicion of theft.
C remained in room, while guards unknowingly prevented him from being able to leave the room while waiting for police.
HELD: entitled to damages as was held against his will despite being unaware.
Robinson v Balmain New Ferry Company Ltd [1910]:
R paid penny to ride ferry.
Changed mind and tried to leave back the way he came but had to pay another penny.
D forcibly prevented him from leaving until he paid.
HELD: A person can be prevented from leaving if they entered an earlier contract permitting so. R entered the ferry gate, he agreed to pay a penny on both entering and leaving the ferry. This bound him to a contract and D was entitled to impose a reasonable condition before allowing him to pass.
Herd v Weardale Steel, Coal and Coke Co Ltd [1915]:
D employed C to work in a mine. The
Only entrance/exit = via a lift. Normally, the claimant would
C starts at 9:30 am and lifted out at 4 pm.
At 11 am, C refused to work and demanded to be let out.
D refused, telling him that he would have to wait until 4 pm because the lift in use for transporting coal. The
C was not released until 1:30 pm, even though the lift was available for human use at 1:10 pm.
HELD: no FI as C willingly went into mine knowing he wouldn't be let out until 4pm, and was let out earlier.
Rule in Wilkinson v Downton:
Janvier v Sweeney [1919]:
J = maid servant, S + (D) = private detectives.
Believed J had access to certain letters.
S instructed D to induce J to show him the letters in return for remuneration.
D used false statements and threats against J which caused J to fall seriously ill from a nervous shock.
On the basis of Wilkinson v Downton, trial judge awarded J damages, both detectives being liable. S and D appealed.
HELD: upheld as infliction of harm was intended.
Wainwright v Home Office [2003]:
C and son were strip searched and humiliated at prison when visiting.
Son had private part inspected physically - aggravated damages awarded.
HELD: trespass against the person.
O v A [2015]:
- D's ex-partner attempted to prevent publication of a memoir that she alleged would harm their son. Lady Hale and Lord Toulson held that this tort has three elements:
1 -
conduct element
: words or conduct directed at the C for which there is no justification or excuse and,
mental element
: an intention by D to cause at least severe or mental distress and,
consequence element
: that the C suffers a physical injury or a recognised psychiatric illness as a result of it.
Wilkinson v Downton [1897]:
D went up to a married woman and said her husband had a serious accident and both his legs are broken as a joke.
Intended her to believe it, causing her to suffer a violent nervous shock as a result.
Held: The court said she had a good course of action → although there is no battery or assault, he did something to cause a reaction, which caused her harm, so she was able to sue.
RULE = actionable if there is intentional infliction of harm.