Intentional Torts
| Assault | Battery | False Imprisonment |
| “If the act is intentional, it is the tort of assault and battery. If negligent and causing damage, it is the tort of negligence…” Lord Denning in Letang v Cooper | ||
| unlawful threat of imminent battery ingredients: conduct e.g. point a loaded gun, to shake a fist, to curse in a threatening manner – Reed v Cocker; a mere omission will not suffice apprehension of an immediate battery no good if not possible, e.g. Thomas v National Union of Mineworkers (picketing miners held back by police) apprehension must be physical contact (e.g. not photographing someone against their will – Murray v Minister of Defence Brandish an unloaded pistol? Not assault because defendant could not have intended battery “There must be the means of carrying the threat into effect” Tindal CJ in Stephens v Myersbut later (criminal) case of R v St George – the gist of the tort is to cause a reasonable person to apprehend battery (reasonable person would not know that the gun is unloaded) – objective test Words mere words can constitute assault since R v Irelandwords can negate an assault if they ‘explain away’, e.g. “if it were not assize me, I would not take such language from you” Turberville v Savage (1669)a conditional threat, e.g. “if you do not leave…” will constitute assault where defendant has not authority to ask claimant to leave – Read v Cocker | unlawful contact to the body ingredients: touching any contact will suffice, no matter how trivial – Cole v Turner intention to commit the act but intention to injure not necessary – Wilson v Pringle intention can be transferred, e.g. if A intends to strike B, but misses and inadvertently strikes C, he is liable in battery to C – James v Campbell Hostility required? Wilson v Pringle – “The touching must be proved to be a hostile touching”However, R v Chief Constable of Devon – an unwanted kiss may be a battery (not hostile)And medical treatment without consent is not per se a hostile act – St Georges Healthcare Trust v SAnd Lord Goff in F v West Berkshire Health Authority disapproved of the hostility requirement: “difficult to reconcile with the principle that any touching of another’s body” amounts to battery Absence of consent? Freeman v Home Office (No 2): * onus of proving absence of consent on claimant Note: claimant need only raise sufficient evidence to cast doubt on the purported consent – consent can still be attempted as a defence | unlawful restraint to liberty ingredients: complete restraint e.g. not valid if claimant can leave (even if not his preferred route) – Bird v Jones or if able to escape: Wright v Wilson must be intentional but malice not necessary – R v Governor of Brockhill Prison (No 2) Need not be imprisonment, confinement can be anywhere e.g. in a vehicle: Burton v DaviesBarriers need not be physical, e.g. using authority to make somebody stay: Harnett v BondActual knowledge by the claimant of detention is not necessary – proof of total restraint is enough: Murray v Ministry of Defence (although only nominal damages)“for however short a time” – Bird v Jones Claimant must prove, on the balance of probabilities, that the act actually occurred. It is then the defendant’s prerogative to prove that what he did was with lawful authority (e.g. a warrant – R v Governor of Brockhill Prison) |
| The rule in Wilkinson v Downton where an intentional act (intended to cause distress) causes unintentional consequences, liability may be found. Approved in Janvier v Sweeny (pretended to be military authorities with intention of fright; plaintiff suffered severe shock and lost her job) | ||
| COMPENSATORY DAMAGES: EXEMPLARY DAMAGES: E.g. for personal injury, damage to Higher amount to punish the defendant and to defer others from similar property, loss of earnings, expenses behaviour etc Rooks v Barnard – can only be claimed when perpetrator is organ of the state (e.g. policeman) OR where perpetrator does act to make profit (e.g. landlord removing tenant) OR if a statute particularly allows such damages to be claimed. Barnes v Nayer – none of these applied so no exemplary damages. | ||
DEFENCES:
Volenti
Consent + assumption of risk
General: e.g. in sport – Simms v Leigh Rugby Football Club – so long as in the rules of the game Medical: without consent is prima facie a battery – F v West Berkshire Health Authority but consent can be implied from conduct e.g. holding out arm for injection
Authorised by law
General: s.3(1) Criminal Law Act 1967 – can use reasonable force to prevent a crime
Police officers: PACE 1984 give statutory authority; force used must be proportionate – Collins v Wilcock (police officer holding woman by elbow was unlawful)
Necessity
The intention of protecting someone against harm with the result that an innocent person suffers e.g. Proudman v Allan – believing that C’s unoccupied car was about to run into another vehicle, jumped into passenger seat and made car run into sea
Provocation
Only available to for exemplary damages
Must be proportionate – e.g. a beating so bad as to require 18 stitches for facial injuries was not held to be a proportionate response to drunken remarks and an ineffectual shove – Lane v Holloway
Self Defence
Overlaps with the CLA right to use reasonable force (above)
Force used must be reasonable – Cockroft v Smith (biting off a finger NOT reasonable) OK if defendant mistakenly believes he is under attack – Beckford v R; or others are under attack – R v Duffy
Occupiers’ Liability
| Occupiers Liability Act 1957 Occupiers Liability Act 1984 (VISITORS) (NON-VISITORS) | |
| VISITOR: s.1(2) defines as anyone who was an invitee or licensee at common law Invitee is anyone with express or implied permission to be on the property (Robinson v Hallett); but excluding those who know they have been forbidden to enter (i.e. via a “no canvassers” sign or similar)must remain within limitations of permission (Stone v Taffe) s.2(6) anyone who enters the premises under a right conferred by law does not need permission OCCUPIER: Act does not define hence the common law rules apply, e.g. Wheat v Lacon – person that exercises sufficient degree of control over premises; can be more than one person PREMISES: Very wide definition, includes ladder: Wheeler v Copas; and lift: Haseldine v Daw DEFECT: For the act to apply there must be a defect in the premises e.g. Ward v Tesco – yoghurt was spilt on floor, not cleaned up in time – held to be a defect BUT Ogwo v Taylor – fireman injured in fighting house fire: no defect in premises; negligent electrical work Ward gives wide to include things that can make premises dangerous, even though done by a third party STANDARD OF DUTY: s.2(2) “to take such care as in all the circumstances of the case is reasonable to see that the visitor is reasonable safe” It is the visitor that has to be reasonably safe under the duty, as opposed to the premises themselves CHILDREN: s.2(3)(a) occupier must be prepared for children to be less careful than adults so, e.g. a warning notice would probably not discharge a duty to children Generally court will find liability if due to some hidden danger or allurement that will entice child – Glasgow Corp v Taylor e.g. Jolly v Sutton London Borough Council – boy injured by upturned boat on riverside – held to be an allurement to children PARENTS: Consider whether and to what extent parent should have been supervising and how this would effect liability of occupier Phipps v Rochester Corp – boy of 5 fell in a trench, held at that age he should have been supervised by parents so occupier not liable BUT other cases, age not been determining factor in | ‘Visitors’ must remain within limitations of their permission (Stone v Taffe); ignoring an obvious sign can exceed permission, e.g. by entering a forbidden area s.1(3) applies to non-visitors, including trespassers, where the occupier: is aware of the danger or has reasonable grounds to believe that it exitsknows or has reasonable grounds to believe that the [non-visitor] is in the vicinity of the danger or may come into the vicinity of the dangerthe risk is one against which he should reasonably be expected to offer the [non-visitor] some protection SCOPE: Only applies to personal injury, not damage to property DEFECT: Same as OLA 1957 – Revill v Newberry: “duty is on occupier as an occupier” (defendant shot a trespasser; this is not a defect in the premises STANDARD OF DUTY: s.1(4) to take such care as is reasonable in all the circumstances of the case to see that the non-visitor does not suffer injury on the premises by reason of the danger CHILDREN: Same as OLA 1957 – Platt v Liverpool City Council: higher duty owed to children who broke into an unoccupied house (note duty not breached as reasonable care was taken) |
| negating/proving liability (Glasgow Corp v Taylor); so unclear what extent age of child will affect liability Would be issue for court to decide; possibility mother could be third party defendant as wholly or partly responsible (Baker v Willoughby) CONTRACTORS: s.2(3)(b) “a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it…” Roles v Nathan – chimney sweeps died from CO2 fumes; occupier not liable BUT Salmon v Seafarer – occupier owed same duty to firemen as other visitors so long as firemen exercised same skill as ordinary fireman | |
| RESTRICTIONS TO LIABILITY | |
| Occupiers Liability Act 1957 (VISITORS) Occupiers Liability Act 1984 (NON- VISITORS) | |
| WARNINGS: s.2(4)(a) not absolved from liability unless warning sufficient to enable visitor to be reasonably safe when using premises – D v AMF Bowling (sign small and insufficiently prominent) However Darby v National Trust if danger so obvious, warning not necessary (drowned in pond) EXCLUSION NOTICES: s.2(1) can exclude liability as far as law allows (note s.2(1) UCTA prevents exclusion for death and personal injury but ONLY for businesses) Must be affixed at point of entry or included in a program or ticket (or if contractual relationship, an express term in the contract) WORK BY CONTRACTORS: s.2(4)(b) if injury was due to act of an independent contractor, occupier not liable IF in all circs he acted reasonably and had taken reasonable steps to ensure contractor was competent Haseldine v Daw – contractors negligently repaired lift shaft, occupier not liable BUT Woodward v Mayor of Hastings – contractors hired to clear snow from school playground, child slipped on step that still had snow, held teacher should have noticed so occupier liable | WARNINGS: s.1(5) duty can be discharged by taking such steps as are reasonable in the circumstances The warning should draw attention to the existence of danger not merely limit permission to enter – Westwood v Post Office EXCLUSION NOTICES: No mention in the 1984 Act, and no mention of UCTA apply to the 1984 Act so arguably liability cannot be excluded. This appears to put trespassers in a better position than lawful visitor (whose duty can be excluded). A House of Lords decision or a statutory intervention would clarify the situation. |
| DEFENCES | |
| VOLENTI NON FIT INJURIA: Contained in s.2(5), wilful acceptance, e.g. Simms v Leigh RFC CONTRIBUTORY NEGLIGENCE: Not mentioned in act, but frequently used, e.g. Stone v Taffe | VOLENTI NON FIT INJURIA: Contained in s.1(6). A warning notice (as above) will suffice if ignored – Ratcliffe v McConnell But Tomlinson v Congleton Borough Council (similar facts, pond with “danger, no swimming” sign) produced opposite result in Court of Appeal with occupier held liable. Note this was later reversed by House of Lords) |
Employers’ Liability
| VICARIOUS LIABILITY | NON-DELEGABLE DUTY | |
| Employer can be made to pay compensation to a victim where negligent act was committed by an employee This contradicts the principle requiring fault to be proved to establish liability; criticised for being ‘rough justice’. However, several justifications: employer in better position to compensateemployer reaps awards of employees acts, so should also bear lossesemployer responsible for hiring/firing – employer should select staff carefully and has the means of discipline and training For employer to be liable, criteria: the tortfeaser was an employee ANDthe tort was committed whilst employee was in course of employment EMPLOYEE: Courts have used a number of different tests over the years including, for example, the hire and fire test as established in Short v Henderson. The criteria were simple, e.g. were wages paid and could worker be dismissed. Virtually impossible to apply in modern circumstances… More recent tests (courts usually apply both): Contract of service test Established in Ready Mixed Concrete: employee aggress to provide work in return for a wageemployee agrees that work will be subject to employer’s controlall other considerations are consistent with there being a contract of employment Mutuality of obligation test Employer is obliged to give work and | For torts committed by employers to their employees (Wilson & Clyde Coal v English); duties considered so important that employer can never delegate responsibility to another Not strict liability – fulfilled by the exercise of reasonable care for employees’ safety (Latimer v AEC) DUTY TO PROVIDE COMPETENT STAFF: Must ensure all employees are competent – Hudson v Ridge where duty extends to taking into account a notorious practical joker but not where employee deliberately causes accident – Horton v Taplin DUTY TO PROVIDE SAFE PLACE TO WORK: To take all steps reasonably practicable, e.g. Latimer v AEC (slipped on floor after flood damage) Duty does not extend to checking premises were employee is likely to travel Square D v Cook (travelled to Saudi Arabia) DUTY TO PROVIDE PROPER EQUIPMENT: Smith v Baker – duty to “provide proper appliances and to maintain them in a proper condition” e.g. machinery, vehicles and clothing Knowles v Liverpool CC – should include whatever employee was working on (flagstone) Barnett v Scottish power – used chair to read meter, employee should have provided ladder Note: employer cannot claim that a machine malfunction is fault of manufacturer – Employers Liability (Defective Machinery) Act 1969: any defect in machine caused by a third arty is attributable to the employer. DUTY TO MAINTAIN A SAFE SYSTEM OF WORK: Large amount of litigation, several examples Employer being held liable: Nolan v Dental Manufacturing – employee was sharpening a tool on a grinder, blinded by splinter. Held, employer should have enforced use of goggles Cook v Bradford Community NHS Trust – employer was held liable when employee was assaulted by violent patient in psychiatric unit Rahman v Arearose – Burger King employee assaulted by customer | |
| employee is obliged to accept it O’Kelly v Trusthouse – waiters not employees as did not have to come to work if did not wish Carmichael v National Power – work was not guaranteed so not employees | Walker v Northumberland CC – (work related stress) it us up to the employer to take care where an employee has already had a breakdown Employer not liable: Chalk v Davies Reclamation – trained how to lift correctly but still lifted incorrectly |
| IN COURSE OF EMPLOYMENT: Three common aspects considered On employer’s time and within employer’s space? Station v National Coal Board – miner cycling to collect wages within grounds, killed another Compton v McClure – rushing to work to clock in, injured someone within grounds Authorised act in an authorised mode? Employer only liable where employee doing an authorised act Twine v Beans Express – employer not vicariously liable for an unauthorised act and injured party is said to be “on a frolic of his own” BUT if employee doing authorised act in unauthorised way… Rose v Plenty –employer expressly forbade employees taking children on milk floats; employee took children who were doing an authorised act – Lord Denning held employer liable Astonishing: Employer turning a blind eye on unauthorised act? could be held an omission hence liability for employer – Smith v Littlewoods Employer liable for criminal act? Generally no, unless act was to achieve employer’s objective: Bayley v Manchester Railway – train porter pulled claimant from train (trying to be helpful) but employers liable for assault Courts have been very generous in stretching boundaries of what is/not an authorised act as opposed to authorised act in authorised way: Lister v Helsey Hall – (sexual abuse in boarding school), held acts were so closely connected to warden’s employment that it was “fair and just” to hold employer liable – he was doing is job (looking after the boys) but in an authorised way On an authorised journey? Smith v Stages – 5 examples given: to/from work – not within employmentbetween places of work within employer’s time – within employmentin receipt of wages for time travelling – indicates employmenttravelling from residence to a different place of work / emergency in employer’s time – indicates employmentdeviation/interruption from authorised journey – not within employment unless incidental to the journey to work (e.g. petrol) BORROWED EMPLOYEES: General rule, original employee remains vicariously liable – Mersey Dock But Interlink Express v Night Trunkers found drivers to be employees of temp employer INDEPENDENT CONTRACTORS: General rule, hirer not liable, except where contractor carrying out “ultra-hazardous” activities – Lilley v Carter | |
Defamation
Sim v Stretch: the publication of material which reflects on a person’ reputation so as to lower the claimant in the estimation of right-thinking members of society.
The only civil action to be tried by Judge and Jury; Jury decides on facts whether statement was defamatory and the level of damages to be awarded
Conflict between freedom of speech and the need to protect individuals’ reputations
Article 10 of the European Convention on Human Rights provides a general right to
freedom of Expression.
However, Article 10 (2) states that one of the legitimate grounds for limiting this right is to protect the rights of others.
The courts have also recently dealt with the issue of the right to Privacy in Article 8 Note that Article 8 does not give the right to privacy as such; it guarantees a right to ‘respect for private and family life’
Peck v UK – recent case, depressed claimant captured on CCTV attempting to cut his wrists – later televised and he was recognised; held “serious interference with the … right to respect for his private life”
Douglas v Hello! – although no right to privacy under English law, the court expanded the right to confidence thereby creating the same effect (reducing the media’s right to obtain and publish materials about peoples’ private lives)
It must be proven that the statement was (i) defamatory (ii) published (ii) in reference to the claimant
Defences
Remedies
DAMAGES:
Can be nominal (tiny); contemptuous (e.g. loss of earnings); exemplary (extra)
Jury as the discretion to award what it thinks is necessary, but Courts of Appeal can step in if the amount awarded is considered to be excessive inadequate, e.g. Sutcliffe v Pressdram – Jury awarded £600,000 but CA later reduced amount to £60,000 (wife of Yorkshire ripper)
INJUNCTION:
Generally not granted before the hearing, after which time it is usually too late. More likely to be granted where further publication is likely, e.g. Monson v Tussauds
