Unit 1 Flashcards
What are the functions of tort?
Compensation
Deterrence
Justice
Vindication of Rights
What is the limitation period?
Limitations Act 1980
6 years from when the cause of action arises
Claim for defamation must be brought within 1 year
Personal injuries must be brought within 3 years
U18- relevant period of time does not start to run until the child reaches 18
Structure for tort of trespass to the person?
Define the relevant tort- requirements of battery/ assault
Defences
What is trespass to the person?
Umbrella term, describes three separate torts
- Assault
- Battery
- False imprisonment
Actionable per se- claimant needn’t;t prove tangible physical harm in order to sue
Define assault
Intentional act by defendant that causes another person to reasonably apprehend the immediate infliction of a battery upon him
- Intentional is necessary (Letang v Cooper)
- Immediate (R v Ireland ‘within a minute or so’)
Define battery
Intentional direct application of unlawful force to another person
- Intentional, intend actions not consequences (Wilson v Pringle)
- Unlawful force- physical contact which is generally acceptable in ordinary conduct of everyday life won’t be unlawful (F v West Berkshire Health Authority)
What is the case law concerning assault by words alone?
Read v Coker- historically no
R v Ireland- ‘a thing said is a thing done’
Turberville v Savage- words can also negate an assault )(‘if we weren’t being watched’)
What are the defences to trespass to the person?
Consent
Lawful Arrest
Defence of the person (self defence)
Defence of property
Necessity
Contributory Negligence
Explain the defence of consent
Can be express or implied
Sports- competitor consents not only to conduct within rules of sport but also conduct outside of rules that is in spirit of the sport (Condon v Basi)
Medical- patient deemed to have consented to medical treatment once informed in broad terms of nature of procedure (Chatterton v Gerson)
Medical- doctor’s failure to disclose risks will NOT invalidate patient’s consent (Chester v Afshar)
Explain the defence of the person (Self defence)
Cockroft v Smith
Force must be used as self-defence and not retaliation
Force must be reasonable
Force must be proportionate to that used or threatened by claimant
Defence extends to protecting other members of family and employer/ employee
Explain the defence of property
Take reasonable steps to eject trespasser (which may involve asking trespasser to leave)- Green v Goddard
Explain the defence of necessity
Defendant must show
- Situation of necessity exists
- Actions were reasonable in the circumstances of the case
F v West Berkshire Health Authority- two situations where necessity could justify treating an adult with consent
- Emergency situation
- State of affairs that renders the patient incapable of giving consent (Stroke)
Explain the defence of contributory negligence
Not available as a defence to assault and battery
Provocation is not a defence in tort
Co-operative Group Ltd v Pritchard
What happened in Wilkinson v Downton
If action falls outside of what is recognised by existing law then tort claim will fail unless claimant can convince court to change law
- Defendant told claimant joke that husband had been in an accident, this induced shock and serious permanent physical consequences
- New cause of action created
What is the application of Wilkinson v Downton
No cause of action would lie unless the reluctant damage to the claimant amounted to a medically recognised condition
