Torts test - prior to case list

General way to break down problem question

1. Identify the Interest: What is being protected (e.g., land, goods, or reputation)?.

2. Identify the Tort Action: Which tort protects that interest?.

3. Establish Elements: Go through the specific sub-steps of that tort.

4. Check Defences: Does the defendant have a legitimate legal justification?.

5. Determine Remedy: What is the court likely to award?

Trespass to Land - Trespass is an unjustified direct interference with land in the possession of another. Liability is strict, meaning an honest mistake is no defence

• Step 1: Land: Does it involve fixtures, subsoil, or airspace within the height necessary for ordinary use and enjoyment?.

  • Cases to note: Lockwood Buildings (fixtures); Bernstein v Skyviews (airspace limits).

• Step 2: Possession: The plaintiff must have actual physical custody and an intent to control the land at the time of the act.

  • Case to note: JA Pye (Oxford) Ltd v Graham.

• Step 3: Direct Interference: Was the act positive, voluntary, and direct (e.g., entry, throwing a thing onto land, or refusing to leave after permission expires)?.

  • Case to note: Southport Corp v Esso Petroleum (interference must be direct, not consequential via tide/wind)

Private Nuisance - A substantial and unreasonable interference with a person’s right to the use or enjoyment of land.

• Step 1: Title: The claimant must have a proprietary interest (owner or tenant in possession).

  • Case to note: Hunter v Canary Wharf.

• Step 2: Interference: Is it substantial (not trifling) and unreasonable?.

  • Physical Damage: Automatically unreasonable if not trifling. (St Helen’s Smelting v Tipping).

  • Amenity/Non-Physical: Consider locality, time/duration, malice, and visual intrusion.

• Step 3: Liability:

  • Strict Liability: If the defendant created the nuisance.

  • Fault-Based: If the defendant adopted or continued a nuisance (requires knowledge and failure to take reasonable steps).

  • Case to note: Sedleigh-Denfield v O’Callaghan

Rylands v Fletcher - Strict liability for a one-off escape of a dangerous thing

• Step 1: Title: Requires a right to use the land.

• Step 2: Bringing/Collecting: The defendant must bring something onto the land.

• Step 3: Non-Natural Use: An extraordinary or unusual use bringing increased danger.

• Step 4: Likely to do Mischief: An exceptionally high risk if it escapes.

• Step 5: Escape: From the defendant’s control/land to outside it. (Read v J Lyons).

• Step 6: Foreseeable Damage: The harm must be a natural and foreseeable consequence of the escape

Public Nuisance - Interference with public rights or common injury to the public

• Step 1: Common Injury: An act endangering life, health, property, or comfort of "the public".

• Step 2: Standing: Generally brought by the Crown, but an individual can sue if they prove "Special Damage" (harm different or greater than the general public)

Interference with Goods -

• Step 1: Interest: The plaintiff must have possession or an immediate right to possession.

• Step 2: Type of Interference:

  • Trespass to Goods: Direct physical interference (taking or damaging). Contact must be deliberate. (Everitt v Martin).

  • Conversion: Deliberate act of dominion inconsistent with the plaintiff’s rights (e.g., selling or destroying). Strict liability applies. (Wilson v New Brighton Panelbeaters).

  • Detinue: Wrongful detention after a clear and unequivocal demand for the return of goods.

Defamation (The Three 'D's)

1. Defamatory Nature: Would the words lower the plaintiff in the estimation of right-thinking members of society?.

   • Threshold: Must cause "more than minor" harm to reputation. (Craig v Slater).

2. Reference to Plaintiff: The statement must be "of and concerning" the plaintiff—they need not be named if they are identifiable. (Hulton v Jones).

3. Publication: Communication to at least one third party. For internet hosts, liability requires actual knowledge and failure to remove the content. (Wishart v Murray).

Defences - Land/Goods:

• Licence: Express or implied permission. (Robson v Hallett).

• Necessity: Urgent situation of imminent peril to person/property. (Dehn v AG).

• Statutory Justification: Legal authority to act

Defences - Nuisance/Rylands:

• Statutory Authority: The activity was authorised by Parliament.

• Consent: The plaintiff agreed to the risk.

• Act of God / Act of a Stranger: For Rylands only

Defences - Defamation:

• Truth: The "sting" of the statement is true or not materially different from the truth.

• Honest Opinion: Genuine opinion based on true facts.

• Absolute Privilege: For proceedings in Parliament or Courts.

• Qualified Privilege: For situations where there is a duty to speak and an interest in receiving. Lost if motivated by ill will or improper advantage.

• Innocent Dissemination: For distributors/processors (e.g., booksellers) who were not negligent and did not know of the defamatory content