Torts Flashcards

Flashcards on Torts Law

Iqbal v Prison Officers Association Intention:

Reckless disregard of consequences is enough

Stephen v Myers

Whether D was within sufficient range that the battery was imminent

Re F

Touching that goes beyond what is acceptable in everyday life that isn’t consented to amounts to battery

Innes v Wylie

Was D merely passive (if inert)

Re MB (general test for consent)

A claimant must be able to understand and retain information about the touching, a claimant must be able to weigh up the information as whether to consent of not

Chatterton v Gerson

Whether there was consent to the nature of the treatment

R v Dica & Blake v Galloway

Fraud needs to be as to the nature of the touching in crime

Ashley v Chief Constable of Sussex Police

Genuine belief is insufficient, must have reasonable fear that could justify the proportion of the response

Mental Capacity Act 2005 ss 1-6

The D is required to take into account many factors, including what C may want

Defamation Act 2013, s.11

There is no longer a right to trial by jury

Berkoff v Burchill General test

Did the words tend to expose C to hatred, ridicule or contempt? Did the words tend to lower C in the estimation of right-thinking people generally?

Byrne v Dean

Right thinking people = a good and worthy subject, e.g., would approve of reporting criminal activity to the police

Lewis v Daily Telegraph

How would a usual newspaper reader interpret the words? → Would be different to how a lawyer would read a legal document

Charleston v News Group Newspapers Ltd

In deciding what the meaning of the defamatory words were, all elements must be taking into account (article, photo and heading), standard that readers would read the publication as a whole whether to determine the article had a defamatory meaning

Cassidy v Daily Mirror Newspapers Ltd

Can take account of facts that the ordinary, reasonable reader might know that changes the meaning of the words compared to one that might not

Defamation Act 2013, section 1 (1)

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant

Lachaux v Independent Print Ltd

The act requires you to look at the actual facts about the impact of the words, how many received this defamatory article? Did people believe it?

Sobrinho v Impresa Publishing SA

Court is entitled to draw the inference that serious harm has been suffered (not always necessary for the C to prove that harm has been suffered), if sent to a person’s employer, Judges should be sympathetic to the difficulties a C may face when proving serious harm

Economou v de Freitas

Do not only look at the nature of the allegation, but also to who the allegations have been made to

Banks v Cadwalladr

Important to not confuse harm to reputation with hatred, dislike, indifference and other emotions, have to focus on what counts as reputation

Libel

Publishing defamatory statement(s) in permanent form, damage is usually presumed without the C needing to prove

Slander

Publishing defamatory statement(s) in temporary form, damage is not usually presumed - C should show that they suffered damage (e.g., in a speech) ⇒ Usually financial loss = damage

Thorley v Lord Kerry

In an action for libel, where publication is in permanent form as distinct from slander, there is no requirement for the claimant to prove that he has in fact suffered any damage as a result of the publication in question

Defamation Act 2013, s 14

Removal of certain categories (Slander of Women 1891 etc)

Statutory reclassification of speech as libel

Words spoken in a theatrical performance considered libel (Theatres Act 1968 s 4), Words spoken in a broadcast are classified as libel (Broadcasting Act 1990 s 166(1))

Defamation Act 2013, s.1(2)

Harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss

Derbyshire County Council v Times Newspapers Ltd.

There is an inherent protection on defamation claims brought by local authorities, as there should be freedom to discuss the shortcomings / problems of political bodies such as councils

Byrne v Dean Golf Club Secretary

Was not the person who put the notice up, did refuse to take it down when asked to

Defamation Act 2013 s.10 + Defamation Act 1996 s.1

Those who had a marginal participation as a publisher

Defamation Act 2013 s.2

Truth, as a defence, requires the burden of proof on the defendant, D has to prove that it was substantially true

Truth

Several defences can be used in tandem

Stern v Piper

Had to show that the underlying allegation was true

Bookbinder v Tebbit

What would the ordinary reasonable reader understand by the words? Substantive truth requires the truth of the specific allegation when the defamatory statement is specific

Scott v Sampson

To mitigate defamation, you cannot bring other examples of other misconduct in regards to damages

Defamation Act 2013, s.3 Conditions

The statement must be presented as an opinion (e.g., “imo X is shit at life” rather than “X is shit at life” by itself), basis of opinion indicated (whether in general/specific terms)

Cheng v Tse

A defensive comment needs to provide the reader with enough factual information to enable the reader to agree with the opinion or not

Bonnick v Morris

If D, under a s.4 defence, is entitled to say that they reasonably believed it to be in the public interest under his own meaning

Riley v Murray Circumstances to consider

Seriousness of allegation, nature of the information + the extent to which the subject matter is a matter of public concern, source of the information, steps taken to verify the information etc

Dawkins v Lord Rokeby

Absolute privilege covers statements made by judges, barristers, legal representatives, witnesses, parties

Goldsmith v Bhoyrul

There is inherent protection on defamation claims brought by local authorities, as there should be freedom to discuss the shortcomings / problems of political bodies such as councils (political parties cannot sue for defamation for the same reasons)

Remedies Damages

S.1 requires proof of serious harm or likely serious harm, does not restrict the recovery of damages → court would try and estimate the loss that C has suffered

Crime and Courts Act 2013 s.34

A deliberate or reckless disregard of an outrageous nature for the claimant’s rights

Damages (Primary Method)

Compensate C for the harm that they have suffered

Blyth v Birmingham Waterworks Co

s 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

Nettleship v Weston

D must be judged by the standard of a reasonable competent driver

Dunnage v Randall

Take same approach to both physical and mental illness, neither are relevant to the standard of care owed by D

Barnett v Chelsea and Kensington Hospital Management Committee

D should have behaved like a reasonable, competent doctor who would have seen the patient (temporary indisposition is not relevant to duty of care)

Mansfield v Weetabix Ltd

The standard of care is what to be expected of a reasonably competent driver unaware that they are, or may be, suffering from a condition that impairs their ability to drive

Ellis v Kelly

What empirically do ordinary people do as well as what normatively should ordinary people do

Phillips v Whiteley (William) Ltd

Skills the D hold themselves out as possessing are relevant to the standard of care you are held to, D should be held to the standard of a reasonable jeweller offering this process → not to the standard of a doctor or surgeon

Woolridge v Sumner & Blake v Galloway

The reasonable spectator, as well as the reasonable participant, all expect standards to vary in a fast moving sport, needs something more than a mere lapse of skill for the standard to be breached here

Roe v Minister of Health

Must look at the accident of a reasonable anaesthetist in 1947

Bolam v Friern Hospital Management Committee

Did the medical professional act ‘in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’?

Bolitho v City and Hackney HA

Decision of the choice of treatment involves weighing up the risks and benefits, the experts must have directed their minds to that and must have looked comparatively at different treatment options

Montgomery v Lanarkshire Health Board

Doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks + any reasonable alternative / variant treatments

Wilsher v Essex Area Health Authority

The level of experience held by a doctor is not relevant to the standard of care

Edward Wong Finance v Johnson Stokes & Master

Just because everyone in an industry does something, doesn’t mean it’s not negligent, where there is an obvious risk, that obvious risk should be guarded against by a reasonable person

Bolton v Stone

Likelihood of damage, Small risk of harm

The Wagon Mound (No 2)

A reasonable person ignores a small risk if they had some reason for ignoring that risk (e.g. if it would be expensive to avoid that small risk)

Paris v Stepney Borough Council

Was blind in one eye, not providing goggles to workers at that time would not have been negligent but the harm was much greater was relevant

Latimer v AEC Ltd

Relevant to take into account the serious financial consequences of shutting the factory down

King v Sussex Ambulance

To balance the risk, the gravity of the injury, the cost to the defendant, and the social value of what the defendant is doing

Factual Causation

‘But for’ D’s fault, would C have suffered the harm that they did

Barnett v Chelsea & Kensington Hospital Management Committee

But for the doctor’s negligence or breach, C would have still died

Baker v Willoughby

C was shot in an armed robbery in the same leg that was injured

McWilliams v Sir William Arroll Co Ltd

There has to be evidence that C would not have worn safety belts anyway

Hotson v East Berks AHA

Evidence 75% that permanent disability would’ve occurred anyway even if correct diagnosis

Lawrence v Fen Tigers Ltd

Objective test: what would a reasonable person think

Hunter v Canary Wharf

That is the tort must be against land not people and the rights you have over the land that constitutes it