Tort

Defamation Act 2013, s.10 (Action against non-author/editor/publisher)

A court cannot hear an action against a person who was not the author, editor, or publisher unless it is not reasonably practicable to sue the original author, editor, or publisher.

Defamation Act 1996, s.1 (Defence for Distributors)

Defence is available if the person shows they: 1) were not the author, editor, or publisher; 2) took reasonable care in publication; and 3) did not know, and had no reason to believe, that their act contributed to a defamatory statement.

Defamation Act 2013, s.5(3) (Website Operator Defence Defeat)

The website operator's defence is defeated if the claimant shows: 1) it was not possible to identify the poster; 2) the claimant gave a notice of complaint to the operator; and 3) the operator failed to respond in accordance with regulations.

Defamation Act 2013, s.2(1) (Truth Defence)

It is a defence to show that the imputation conveyed by the statement is substantially true. The common law defence of justification is abolished (s.2(4)).

Defamation Act 2013, s.2(3) (Truth - Multiple Imputations)

If a statement conveys multiple distinct imputations, and one or more are not substantially true, the defence does not fail if the untrue imputations do not seriously harm the claimant's reputation (having regard to the true imputations).

Bookbinder v Tebbit [1989

Allegation of specific wrongdoing does not necessarily carry a wider defamatory meaning. Evidence of other related wrongdoing cannot be used for justification by the defendant.

Scott v Sampson (1882)

Established that for mitigation of damages, evidence of the claimant’s general bad reputation is admissible, but evidence of rumours or particular acts of the claimant is inadmissible.

Defamation Act 2013, s.3 (Honest Opinion - 3 Conditions)

The statement must be: 1) a statement of opinion; 2) must indicate the basis of the opinion; and 3) an honest person could have held the opinion on that basis.

Honest Opinion (Defeat)

The defence is defeated if the claimant shows the defendant did not hold the opinion. If the defendant is the publisher of another's opinion, the defence is defeated if they knew or ought to have known the author did not hold it.

Defamation Act 2013, s.4(1) (Qualified Privilege - Public Interest)

It is a defence if the defendant shows: 1) the statement was on a matter of public interest; and 2) the defendant reasonably believed that publishing the statement was in the public interest.

Key Factors for s.4 Reasonable Belief (from Reynolds factors)

10 factors include: Seriousness of allegation, Nature of information, Source of allegation, Steps taken to verify it, Status of information, Urgency of news, Was comment sought from the claimant, Whether statement contained claimant's version of events, Tone, and All of the circumstances.

Defamation Act 2013, s.6 (Peer-reviewed statement)

Provides privilege for a statement in a scientific or academic journal if it relates to a scientific/academic matter and had an independent peer-review by the editor and one or more experts (defence is defeated by malice).

Legal Principle: Duty of Care

A legal obligation imposed on an individual to adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first step required to establish the tort of negligence.

Landmark Case: Donoghue v Stevenson [1932]

Facts: Mrs. Donoghue drank ginger beer containing a decomposed snail. Principle: Established the modern tort of negligence and the "Neighbour Principle" for determining a duty of care. Lord Atkin stated, "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."

The Caparo Test for Duty of Care

The current three-part test for establishing a novel (new) duty of care in the UK (from Caparo Industries plc v Dickman [1990]): 1) Foreseeability of damage; 2) A relationship of Proximity between the claimant and defendant; and 3) It must be Fair, Just, and Reasonable to impose a duty.

Exception: Omissions (General Rule)

The general rule is that there is no duty of care for a pure omission (i.e., failing to act). Exceptions arise where there is a special relationship, such as a relationship of control, an assumption of responsibility, or where the defendant created the risk.

Exception: Pure Economic Loss (General Rule)

The general rule is that there is no duty of care for pure economic loss (financial loss not resulting from physical damage to the claimant's person or property). An exception exists for negligent misstatement, where a duty is found based on a "special relationship" (see Hedley Byrne v Heller).

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964]

Facts: Advertising agents lost money after relying on a bank's reference (given 'without responsibility') for a client. Principle: Established that a duty of care for negligent misstatement can arise where there is a "special relationship" between the parties, involving a voluntary assumption of responsibility by the defendant and reasonable reliance by the claimant. The "without responsibility" disclaimer in this case was effective, preventing liability.

Duty of Care: Pure Economic Loss (General Rule & Exception)

General Rule: There is no duty of care for pure economic loss (financial loss not resulting from physical damage to the claimant's person or property). Exception: A duty exists for negligent misstatement where there is a "special relationship" between the parties (voluntary assumption of responsibility and reasonable reliance, as established in Hedley Byrne v Heller [1964]).

Psychiatric Illness (Legal Requirement)

To be actionable in Tort Law (Negligence), the injury must be a recognized medical condition (e.g., PTSD, clinical depression), and not merely grief, distress, fear, or any other normal human emotion.

Primary Victim (Definition & Test)

A person who was directly involved in the accident and was either physically injured or put in fear of their own physical safety. The test for duty of care is based only on foreseeability of physical injury (i.e., whether physical injury to the primary victim was foreseeable). There is no requirement for shock or proximity (Page v Smith [1996]).

Secondary Victim (Definition)

A person who suffers psychiatric illness not from fear for their own safety, but from witnessing or hearing about injury/death to another person (the primary victim).

The Alcock Control Mechanisms (Secondary Victims)

To establish a duty of care, a secondary victim must satisfy all four requirements, in addition to reasonable foreseeability of psychiatric harm: 1) Close tie of love and affection to the primary victim; 2) Temporal Proximity (presence at the event or its immediate aftermath); 3) Spatial Proximity (direct sight or hearing of the event or its immediate aftermath); 4) Perception by one's own unaided senses (not through a third party or broadcast).

"Close tie of love and affection" (Presumptions)

Rebuttable Presumptions exist for the following relationships: Parent and Child, and Spouses/Fiancés. For all other relationships (e.g., siblings, close friends), this must be proven by evidence.

"Immediate Aftermath" (Key Case Example)

Case Summary: McLoughlin v O'Brian [1983]. Claimant was able to recover after seeing her family (primary victims) in a shocking and distressing state at the hospital within two hours of the accident, which was considered part of the "immediate aftermath" of the event.

Alcock v Chief Constable of South Yorkshire [1992]

Facts: Claimants suffered psychiatric injury after witnessing the Hillsborough football disaster (mostly on TV). Principle: Established the strict control mechanisms for secondary victims. All claims failed primarily because the claimants lacked spatial and temporal proximity (not at the ground/immediate aftermath) and the relationship of love and affection (for non-presumed relationships) could not be proven, and witnessing on TV was not considered a valid form of shock.

The 'Rescuer' Dilemma (Primary vs. Secondary Victim)

A professional rescuer (e.g., fire officer) is generally treated as a primary victim if they were objectively exposed to danger or reasonably feared for their own safety. If they were never in physical danger, they must satisfy the secondary victim rules (White v Chief Constable of South Yorkshire [1999]).

Breach of Duty (Definition)

A breach occurs when the defendant's conduct falls below the standard of care required by law to protect the claimant against unreasonable risks of harm.

Standard of Care (General Test)

The standard of care is that of the "reasonable person" (or the "reasonable man"). It is an objective standard, meaning the court does not take into account the defendant's personal shortcomings, inexperience, or characteristics (e.g., Nettleship v Weston [1971]).

Key Quote: "The Reasonable Person"

"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." (Blyth v Birmingham Waterworks Co (1856))

Adjusted Standard: Professional Skill (The Bolam Test)

Where the defendant has a special skill (e.g., doctor, lawyer), the standard of care is that of the ordinary skilled man exercising and professing to have that special skill. The defendant is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art (Bolam v Friern Hospital Management Committee [1957]).

Adjusted Standard: Children

A child defendant is judged by the standard of a reasonable child of the same age (e.g., Gough v Thorne [1966]). The standard is still objective for that age group.

Risk Factors: Probability of Harm

The higher the probability that the defendant's conduct will cause injury, the more care is required. Case Example: Bolton v Stone [1951] (Cricket ball hit claimant): The risk of injury was so small that a reasonable person would not have taken extra precautions. Contrast: Miller v Jackson [1977] (Cricket balls hit house frequently): The risk was high and the club was negligent.

Risk Factors: Seriousness of Harm

If the injury that results is likely to be severe, greater precautions must be taken, even if the probability of harm is low. Case Example: Paris v Stepney Borough Council [1951]. An employer owed a higher duty of care to a one-eyed employee (who would be blinded by a metal shard) than to a two-eyed employee, requiring them to provide goggles.

Risk Factors: Practicality/Cost of Precautions (Burden of Proof)

The court balances the risk against the cost and practicality of taking precautions. The defendant is not required to take excessive or unreasonable precautions. Case Example: Latimer v AEC Ltd [1953]. Spreading sawdust to prevent slipping was a reasonable precaution; closing the factory was not required. The defendant only needs to eliminate risks a reasonable person would.

Risk Factors: Social Utility (Benefit of the Activity)

If the defendant's activity has high social utility (e.g., saving a life), a lower standard of care may be tolerated, provided it is not reckless. Case Example: Watt v Hertfordshire County Council [1954]. A fire service driving a truck without securing heavy equipment was held not negligent because the risk was weighed against the high social benefit of saving a life.

Maxim: Res Ipsa Loquitur (Definition)

"The thing speaks for itself." A legal principle that shifts the evidential burden of proof to the defendant. It applies when: 1) The thing that caused the injury was under the control of the defendant; 2) The accident is one that would not ordinarily happen without negligence; and 3) The cause of the accident is unknown to the claimant.

Case Summary: Montgomery v Lanarkshire Health Board [2015] (Medical Duty)

Principle: Overruled the Bolam test for the duty to inform (consent). Doctors now have a duty to take reasonable care to ensure the patient is aware of any material risks involved in any recommended treatment and any reasonable alternative treatments. A risk is material if a reasonable person in the patient's position would be likely to attach significance to it, or if the doctor knows or should know that the particular patient would attach significance to it.