Chapter 2 - Law of torts

Question 1

`What is tort?

Answer 1

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act.

Question 2

What’s the difference between tort law and criminal law?

Answer 2

tort = compensate
criminal = punishable by the state

Question 3

What is the main remedy in tort?

Answer 3

Damages

Question 4

What is meant by ‘Unliquidated’ (or unspecified)

Answer 4

damages is not fixed in advance but,

will be decided by the court,

according to the seriousness of the injury which has been caused.

Question 5

What is meant by liquidated (or specified)

Answer 5

the parties to a contract will have agreed, in advance, a fixed amount of compensation to be paid if there is a breach of contract.

Question 6

What is meant by interest protected?

Answer 6

The general purpose of the law of torts is to protect people’s rights by allowing them to sue if their interests are invaded, threatened, or harmed.

Question 7

What is meant by defamation (libel and slander)?

Answer 7

Protects a person’s interest in their reputation.

Question 8

What is meant by Trespass to the person

Answer 8

Protects a person against deliberate physical harm.

Question 9

What is meant by Private nuisance, trespass to land

Answer 9

Protects a person’s interest in the land they occupy.

Question 10

What is meant by Breach of copyright or patent design

Answer 10

Protects a person’s interest in ‘intellectual property’ – i.e. creations of their own mind.

Question 11

Is injury or damamged required in tort?

Answer 11

In most cases an action in tort will succeed only where the claimant has suffered some form of injury, damage or loss.

However, in some cases a tort may be actionable per se (this means actionable ‘in itself’).

This means that the claimant does not have to prove that they
have suffered loss or damage, only that the tort has been committed.

Question 12

What are intentional torts?

Answer 12

Some types of tort are classed as ‘intentional torts’ as there is a requirement for intention on the part of the defendant to commit the tortious act.

In other words, did the defendant intend to commit the acts?

Another intentional tort is that of deceit, which is committed where one person deliberately makes a false statement to another with the intention that the other will rely upon it, and the person who is misled suffers loss or damage as a result.

Question 13

What is strict liability?

Answer 13

Sometimes a person may be held liable even though their actions are neither intentional nor negligent.

strict liability exists when a defendant is liable for committing an action, regardless of what their intent or mental state was when committing the action.

Question 14

Malice is not usually relevant in tort however there is a few cases where it is relevant.

Where is malice relevant in tort?

Answer 14

malice is an essential ingredient in one or two minor torts, for example, malicious prosecution and malicious falsehood;

in the tort of defamation certain defences are not available if there is malice;

in the tort of nuisance some actions which are normally reasonable (and, therefore, lawful) will be held unreasonable (and, therefore, unlawful) if motivated by malice.

Question 15

What are the three forms of characteristics for trespass under tort?

Answer 15

The act of the defendant must be direct:

The act of the defendant must be intentional:

The tort is actionable per se:

Question 16

What is meant by The act of the defendant must be direct:

Answer 16

There is no liability in trespass unless the injury or harm is caused directly

Question 17

What is meant by The act of the defendant must be intentional:

Answer 17

There is certainly no liability in trespass for any purely accidental injury.
There is some doubt as to whether an action in trespass can be brought for an act which is negligent rather than intentional.

Question 18

What is meant by The tort is actionable per se:

Answer 18

The claimant does not have to prove that they have suffered any loss or damage inorder to succeed.

Question 19

Trespass takes three forms, what are these?

Answer 19

• Trespass to the person.
• Trespass to goods.
• Trespass to land.

Question 20

Trespass to the person takes three forms what are these?

Answer 20

• Assault.
• Battery.
• False imprisonment.

Question 21

What is defined as assault?

Answer 21

Assault is any act of the defendant which directly causes the claimant to fear an attack on their person.

Doesn’t have to cause physical harm for assault to happen.

Question 22

What is the case law for assault?

Answer 22

Tuberville v. Savage (1669)

Question 23

What is battery?

Answer 23

Physical force

Question 24

What is false imprisonment

Answer 24

False imprisonment occurs when the defendant imposes total bodily restraint on the claimant, preventing them from going where they want to go.

Question 25

What is trespass to goods?

Answer 25

Trespass to goods occurs where the defendant directly and intentionally interferes with goods which are in the possession of another.

So, taking goods from the possession of another is a trespass, as is moving them from one place to another, throwing things at them, or meddling with them in some other way.

Question 26

What is conversion?

Answer 26

Steeling goods or selling borrowed goods

Question 27

What is trespass to land?

Answer 27

Trespass to land is the direct interference with land which is in the possession of another.

Question 28

Trespass to land takes three forms, what are these?

Answer 28

• Unlawful entry onto the land of another.
• Unlawfully remaining on the land of another (i.e. where the defendant entered the land lawfully but refuses to leave when their permission to be there has expired).
• Unlawfully placing or throwing any material object upon the land of another (such as rubbish or litter).

Question 29

If a person enters land lawfully but abuses their right to be there, they are treated as a trespasser from the moment they entered the land.

What is this known as?

Answer 29

This is known as trespass ‘ab initio’ (‘from the beginning’).

Question 30

What is negligence?

Answer 30

A failure to take care in circumstances where the law demands care should be taken. for example driving carefully

Question 31

What are the three essential elements to negligence?

Answer 31

• a duty of care owed by the defendant to the claimant;
• a breach of that duty by the defendant; and
• damage suffered by the claimant (which is caused by the breach).

Question 32

What case law refers to the duty of care?

Answer 32

Donoghue v. Stevenson (1932).

Question 33

What is the neighbour principle of duty of care?

Answer 33

of ‘reasonable foreseeability’.

A duty of care is owed to another person if it is reasonably foreseeable that they will be affected by one’s acts or omissions.

Question 34

What is a breach of duty?

Answer 34

A breach of duty occurs when the defendant fails to do what a ‘reasonable’ man would have done in the circumstances or does what a reasonable man would not have done.

Question 35

How is a breach of duty judged?

Answer 35

Under English law, the standard by which the defendant’s behaviour is judged is objective. This means that the same standard applies to everybody.

However, a defendant who holds himself out as having some particular skill or ability will be expected to exercise that skill in a competent fashion.

Question 36

Which case law generated negligent misstatement?

Answer 36

Hedley Byrne v. Heller and
Partners (1963)

Question 37

Liability under the Hedley Byrne rule arises where:

Answer 37

• there is a ‘special relationship’ between the parties (but not a contract) where it is reasonable for the claimant to rely on the advice given;
• the giver of the advice can reasonably foresee that the advice is likely to be acted upon and that the recipient is likely to suffer if it is inaccurate; and
• the advice is, in fact, acted upon, causing loss to the claimant.

Question 38

When can you claim for psychiatric illness?

Answer 38

• claims for psychiatric illness are subject to the general principles of the law of negligence, including the usual requirement of foreseeability; and

Question 39

Under negligence/nervous shock cases, what are the two main categories?

Answer 39

Primary victims - Page v. Smith (1996) - Persons who suffer shock through fear for their own safety. This category of claimant was the first to be recognised by English law.

Secondary victims - Persons who suffer shock through fear for the safety of others. As the twentieth century progressed, the law came to recognise claims by persons who suffered shock through fear for the safety of persons other than themselves.

Question 40

What are the other 3 sources of liability for psychiatric illness?

Answer 40

1. Psychiatric illness caused by stress at work.
2. ‘Phobia’ cases.
3. Miscellaneous cases.

Question 41

What are the key characteristics of the tort of trespass?

Answer 41

The act of the defendant must be direct. It must be intentional (or possibly only negligent). The tort is, in every case, actionable per se.

Question 42

What must a claimant prove in order to succeed in an action for negligence

Answer 42

The defendant owed a duty of care to them, that duty of care was breached and they suffered loss or damage as a result of the breach.

Question 43

What is the ‘neighbour test’ (or neighbour principle)

Answer 43

The ‘neighbour test’ is a principle for establishing when a duty of care is owed in negligence. It was proposed by Lord Atkin in Donoghue v. Stevenson (1932) and is
based on ‘reasonable foreseeability’

Question 44

What are the two forms of nuisance?

Answer 44

• Public nuisance.
• Private nuisance.

Question 45

What is public nuisance?

Answer 45

the ‘carrying on of an activity which is likely to cause inconvenience or annoyance to the public, or a section of the public, or interference with a right common to all’.

Question 46

What is private nuisance?

Answer 46

A private nuisance is an unlawful interference with a person’s use or enjoyment of their land (which includes houses and buildings attached to it).

Question 47

What are the two forms of private nuisance?

Answer 47

• wrongfully allowing noxious (i.e. harmful) things to escape from their own property so as to interfere with the claimant’s land (such as noise, smoke, smells, vibration, damp or vermin); or
• wrongful interference with servitudes, or rights attaching to the claimant’s land (such as rights of way, rights to light or rights of support to land or buildings).

Question 48

Who is sued when it comes to nuisance?

Answer 48

The person who is sued (the defendant) is the person who creates the nuisance.

This will normally be the occupier of the property from which the nuisance comes.

Question 49

What is vicarious liability?

Answer 49

Liability is said to be ‘vicarious’ when one person is held liable for wrongs committed by another.

Question 50

What is defamation?

Answer 50

Defamation is, essentially, a false statement about a person which causes injury to that person’s reputation.

Question 51

What are the two forms of defamation?

Answer 51

• Libel: the defamatory statement is in a permanent form, e.g. an email, text, posting on social media or in a written publication.
• Slander: the statement is in a transient (non-permanent) form. Slander will usually take the form of defamatory speech or possibly defamatory gestures.

Question 52

When is a defamation statement punishable?

Answer 52

when its communicated to some person other than the claimant.

Question 53

What are the defences avalible in tort?

Answer 53

Self defence
necessity
statutory authority
Consent and volenti non fit injuria
Contributory negligence
Reduction of liability

Question 54

Claims based on tort are governed by who?

Answer 54

Limitation Act 1980

Question 55

What are the limitation periods?

Answer 55

• one year where the claim is for libel or slander;
• three years for personal injury claims; and
• six years for most other tort actions (mainly property damage claims).

Question 56

Remedies available in tort?

Answer 56

Damages
Special damages and general damages
Aggravated damages
Exemplary (or punitive) damages
Nominal damages
Contemptuous damages
Injunctions

Question 57

explain the nature of a tort and how torts are classified;

Answer 57

Civil and criminal torts - civil is compensation and criminal is punishable by the state.

Torts can be classified by looking at the interests that they protect:
– Defamation (libel and slander) protects a person’s interests in their reputation.
– Trespass to the person protects a person against deliberate physical harm.
– Private nuisance and trespass to land protect a person’s interest in the land
they occupy.
– Breach of copyright or patent design protects a person’s interest in their intellectual
property.

Torts can also be classified by the type of behaviour that the wrongdoer must exhibit
and the degree of fault (if any) which is necessary.
* Torts can be intentional; or require negligence or other fault.
* Torts can also impose strict liability where no intent or fault is required.

Question 58

explain the main defences in tort;

Answer 58

General defences in tort include
self-defence; - The law allows people to use reasonable force to defend themselves, their property and to
defend other persons, such as members of their family or employees.
necessity; - Necessity is another possible defence to intentional torts such as trespass. Essentially it is a
plea that the act which is alleged to be a tort was carried out in order to avoid a greater evil.
statutory authority; - Statutory authority is a plea that the action which is alleged to be a tort is permitted by
statute law (meaning Acts of Parliament and written rules and regulations).
consent and volenti; - The defence of consent applies where the claimant agrees to a deliberate act by the
defendant which would be a tort if no consent had been given. * The participants in a boxing match consent to being punched by each other.
* Customers in a hairdresser’s salon agree to have their hair cut or treated.
If no consent was given each of these actions would amount to a battery.

contributory negligence - Contributory negligence (or contributory fault) arises where the claimant is partly to blame for
the injuries which they have suffered at the hands of another