Untitled Deck Flashcards
What can a claimant sue a defendant for in tort?
A claimant may sue the defendant in the tort of trespass to the person for both assault and battery, which are actionable per se.
Define assault in tort law.
Assault is an intentional act by the defendant causing the claimant to reasonably apprehend the immediate infliction of unlawful force.
What is required for an act to be considered assault?
An intentional act is essential; if not, the relevant tort is negligence. Words can constitute an assault, but they may also negate it.
What does ‘immediate’ mean in the context of assault?
‘Immediate’ means ‘within a minute or so.’ A threat using words can constitute reasonable apprehension of immediate force if the person is near.
Define battery in tort law.
Battery is the intentional direct application of unlawful force to another person.
What is required for an act to be considered battery?
The defendant must intend only his actions; he need not intend the consequences. The force must flow almost immediately without intervention.
What constitutes unlawful force in battery?
Unlawful force is physical contact that is not generally acceptable in ordinary conduct of everyday life.
What must a claimant prove in a trespass to the person case?
The claimant must prove the defendant’s tort has caused his loss and that the loss is not too remote.
What is the significance of consent in tort law?
Consent may be implied or express, and it can invalidate claims in certain contexts, such as medical treatment or sports.
What must a defendant establish for the defence of the person?
The defendant must establish that the force was used in self-defence, was reasonable, and was proportionate to the force used/threatened by the claimant.
What does the defence of necessity require?
The defendant must show that a situation of necessity existed and that his actions were reasonable.
What is the rule regarding lawful arrest?
A police officer does not commit the tort of battery if he lawfully arrests someone using only reasonable force.
What is the tort established in Wilkinson v Downton?
Wilkinson v Downton established a tort where the defendant intends to cause shock to the claimant, who suffers tangible damage as a result.
What are the two forms of defamation?
Defamation can be in the form of libel (permanent) or slander (transient).
What must a claimant prove for defamation in the form of libel?
Libel is actionable per se; the claimant does not need to show tangible loss.
What are the elements that make words defamatory?
Words are defamatory if they lower the claimant in the eyes of right-thinking members of society, cause the claimant to be shunned, or expose the claimant to hatred.
What is the defence of truth in defamation?
The defendant has a complete defence if his statement is factual and the facts are substantially true.
What constitutes fair comment in defamation?
A statement is a fair comment if it is an expression of opinion, sets out the basis of that opinion, and an honest person could hold that opinion.
What is qualified privilege in defamation?
Qualified privilege applies when the maker of a statement has a duty to make it and the recipient has an interest in receiving it, unless malice is shown.
What are the conditions for misuse of private information?
The information must be private, and there must not be a legitimate public interest in its disclosure.
What is the workshop case analysis process?
- Identify C and D and type of loss/harm. 2. Identify the tort and define it. 3. List the elements C has to prove. 4. Apply each element. 5. Consider defences. 6. Determine outcome on liability. 7. Identify remedies.
