Tort principles (Trimester 1)

Battery defintion

 An interference with the bodily autonomy of another person that is outside the scope of generally accepted conduct and consent

Battery -  [Fowler v Lanning], Letang v Cooper, Beals v Hayward

 Intentional tort, suable without proof of damage

 Battery - (Cole v Turner)

Anger not required for proof of battery; could aggravate damages if for malicious motive of humiliation

Battery - (Forde v Skinner) 

purely administrative or non-malicious  reasons will not aggravate

Battery - (Scott v Shepard, Prichard v Co-operative Group)

 You must intend to do that which causes harm, but intention can sometimes encompass recklessness

Battery -  (In Re FI) 

 Interference must be outside generally accepted ordinary/everday conduct

Battery - (S v G)

Lack of consent is an element of the tort, not a defence

Battery - (In Re FI)

 actionable contact excludes everyday jostling (implied consent) and emergency care in a patient’s best interests (necessity)

Assault definition

 an overt act intentionally creating in the mind of a person, the reasonable apprehension of an imminent battery 

Assault -  R v St George

 Presenting a gun that appears loaded can be assault (reasonable person thinks it's loaded)

Assault - Tuberville v Savage

Must intentionally create the apprehension of immediate battery.

Assault -  (Stephen v Meyers)

Defendant must have means of carrying the threat into effect

Assault - (Police v Greaves)…(Wood v Brown)

Conditional threat can be assault if speaker has no legal right to impose that condition (….) or threat seeks to overcome the will of the other person (…)

Assault - R v Wilson

 A threat of battery can be assault regardless of whether it is enacted by another party/agent. 

False imprisonment definition

total restraint of another person, within a set boundary, & wasn’t consensual

False imprisonment (Bird v Jones)

Complete boundary is required, not just a restriction in one direction

False imprisonment - (Meering v Grahame White Aviation, Murray v MoD)

Awareness not required

False imprisonment - (Herd v Weardale)

consent to circumstances = no tort

False imprisonment (Herd)

-D able to impose reasonable conditions on P entry/exit. Incorrectly aff. In….(…)

False imprisonment - (Herd)

You are not falsely imprisoned if you are held to a reasonable pre-agreed condition. Upheld law.

Depuy paraphrasing of whether paying into ACC scheme is required to be covered by the scheme

Collins J: (paraphrasing) – No indication in the legislation itself, or in the background to it, that the entitlement to be immune from claims for compensatory damages depends on paying into the scheme.

Section 20: Outlines categories of coverage, the most common being personal injury by accident 

1. Personal injuries by an accident including mental injuries suffered as a result of physical injuries 

2. Work-related disease; work-related heart attacks and strokes 

3. Disease that is a consequence of treatment for personal injury for which a person has cover 

4. Mental injuries caused by specific criminal acts 

5. Work related mental injuries 

6. Treatment injury 

Section 25 defines ‘accident’ - doesn't mention intention; therefore, can make claims on intentional acts still.

1. Series of events other than gradual process that involves application of force, resistance external to the human body, or movement of body to avoid a force, or resistance to the body 

2. Inhalation (or oral injestion (c)) of liquid gas or foreign object on specific occasion, not including, inhalation of virus or fungus, unless the result of a criminal act from person who is not the injured in question. 

3. Burn exposue radiation, on specific ocassion which doesnt include caused by elements

4. Absorbtion of chemical through skin within period of time not exceeding 1 month

5. Any exposure to elements or entremes temp or environment within a perioda defined period of one month, that for continous period of more than 1 month, results in restriction of normal activity performance, or causes death 

6. Application of a force or resistence internal to the human body at any time of onset labour to completion of deliverythat results in injury to a person who gives birth 

Section 26: defines ‘personal injury’

1. Personal injury 

1. The death of a person; or 

2. Physcial injuries suffered by a person, including a strain or sprain; or 

3. Mental injury suffered by a person because of physical injuries suffered by the person or 

4. Menatl injury siffered by a person in the circumstances decsribed in section 21 or (a) work related mental injury that is suffered from a person in the circumstances describes in s 21(b) or

5. Damage (other than wear and tear) to dentures or prosethetics that replace a part of the human body 

Policy purpose behind the Accident Compensation Act 2001 woodhouse report:

 community responsibility for accident, comprehensive coverage, complete rehabilitation, real compensation.

What Section 317(1) represesnt? (affirm in Depuy). What of exemplary damages (affirmed in Donselaar) by Section 319

 S 317(1) is a statutory bar, representing a social contract (…)  Claims exemplary damages are preserved (…) in Section 319.

What does Donoghue say of the novel duty test (defintion)

Must take reasonable care to avoid acts/omissions which you can reasonably foresee would likely injure your neighbour

Three elements of the novel duty test (The Grange, Buchanan)

1. loss was reasonably foreseeable consequence of the defendant's act or omission 

2. relationship between parties that was sufficiently proximate and

3. whether factors external would mean it is not fair, just and reasonable to impose duty of care on D

Novel duty test - forseeability. (Donoghue) neighbor rule

reasonable care for neighbour (…)

Novel duty test - forseeability (Paul) psychiatric harm, and secondary victims.

foreseeable psychiatric harm to family doesn't mean a duty exists; duty only exists to secondary victim if they witness a discrete, unexpected and violent external accident. Illness from medical negligence ≠ accident.

Novel duty test - forseeability (Dorset Yacht)

 third party intervention must be very likely to happen, not just possibility, if D is careless. (…)

Novel duty test - forseeability and relationship to proxmity regarding third party situation. (Dorset Yacht)

Foreseeability of harm is necessary but insufficient alone. Need prox. Relationship to third party.(…)

Novel duty test - where loss is not forseeable (The Grange)

 negligent claim fails immediately if reasonable person couldn't foresee the loss. The closer the relationship, the more foreseeable the harm. (…)

Novel duty test - proximity - Alcock on proximate relationships. Family and bystanders.

 immediate close relationship: spouse, fiancé, parent, children. Others must prove they're equivalent. Bystander can only claim if scene so horrific that person of ordinary fortitude would suffer psychiatric illness. (…)

Novel duty test - proximity - Couch test

Proximity can be individual or a distinct group (e.g., co-worker), or general public. D must hold a special relationship of statutory control over the third-party wrongdoer. Supervising must be in part to protect public safety. 

1. Majority- duty exists if the risk is specific and obvious and defendant has power to eliminate it 

2. Minority-duty exists if the common law obligation aligns with public authority statutory framework. 

Novel duty test - proximity - (caparo) test

.foreseeable that D conduct would harm defendant, sufficient proximity between parties, fair, just and reasonable for court to impose a duty of care in that situation. Secondary victims must prove psychiatric harm. (RPI) (…)

Liability to secondary victims of mental injury - advanced duty of care (Coultas) on nervous shock

Nervous shock”/ trauma from fright/mere witnessing - considered too remote to be recoverable (…)

[Liability to secondary victims of mental injury - advanced duty of care] Nervous shock (Dekieu v White) and extension by (hambrook)

Nervous shock” for fearing own safety is liable(…) extends to fearing for loved one(…)

Liability to secondary victims of mental injury - advanced duty of care- RPI

(Paul, and van soest)

Distinction between physical/mental injury.IF victim suffers RPI, remoteness always satisfied (…) and (…)

Liability to secondary victims of mental injury - advanced duty of care

 where secondary victims with mental injuries caused by accidents could claim neg. (Alcock, Frost) → 3 factors

1. Proximate  relationship (close+loving affection)

2. Proximate in space and time (immediacy)

3. Proximate perception (immediacy) + TV? Vs in real life.

(…) and (…)

Third party duty of care principle

 duty D take care that Y doesn't cause harm to the plaintiff. 

(Dorset Yacht)

 liability for negligent supervision of prisoners.Can be Duty of Care: Mere foreseeability is insufficient here. Damage must be highly likely, natural and probable etc.  

(Smith v Littlewoods)

 about negligence failure to secure premises. 

• Lord MacKay: it was unforeseeable to the neighbours, and therefore the owners 

• Lord Goff: No general duty to act: ‘the common law doesn't shift the burden of the risk like that - this is really about fundamental principles/ world view. 

Negligent mistatement definition

reliance upon statements that are mistakenly incorrect

Negligent mistatement test (Buchanan and Caparo)

1. Statement is required for a purpose known to the advisor 

2. The advisor knows the statement will be communicated to the advisee and relied on for that purpose

3. The adviser knows the statement is likely to be relied upon without independent inquiry 

4. The advisee relies on it to their detriment

Liability for defective buildings - (Anns)

 established there was a duty of care on council inspection officer acting outside of their discretion 

• Only applied if injury to health might result from defects 

• P could then recover the cost of returning the house to a safe state

Sunsent Terraces

(….) extended Hamlin duty from stand-alone dwellings to a 21-unit development with a mix of owner-occupiers and tenants/lesses etc. - based on Building Act envisaging claims against & reliance on councils, and their ultimate control over the process. 

Breach of duty defitnition (Blyth v Birmingham Waterworks)

 “[Breach of the duty of care] is the omission to do something which a reasonable man…Would do, or something which a reasonable man would not do.”

Four factors to consider for breach

1. Size of the risk (Bolton v Stone)

2. The seriousness of consequences (Bolton) 

3. The burden of preventing the harm (Wagon Mound No 2) 

4. The social utility of the action (Watt v Hertfordshire City Council)

Exceptions for breach (Goldman v Hargrave)

Also consider the individual circumstances of the defendant in cases where they are not the author of the risk.

(McLaren Maycroft). 

But compliance with industry practice does not necessarily mean that the defendant took reasonable care

Test for causation

“But for the defendant’s failure to exercise reasonable care, would the plaintiff have suffered the harm they suffered?”

Causation - (Fairchild)

• The court said even though they couldn’t establish strict ‘but for’ causation against the employer, they could claim against any of them (…)

(Paul, Van Soest)

 in mental injury cases, prxomity is always satisfied by an RPI (recognised psychological injury)

Trespass defintion

 intentional, unjustified, direct interference with the land of another person 

• To be able to claim in trespass you must have 

1. A possessory right (includes landlord, and renters) 

2. Actual possession (intention to possess and control to the exclusion of others) 

Trespass  (Entick v Carrington) 

…. is actionable per se, meaning damage is not required (…)

(Wu v Body Corporate)

Trespass Can be intrusion or exclusion ie. excluding someone from their land

 (Bocardo SA v Star UK Onsure [UKSC])

Land is protected from ‘heaven to hell’

Trespass -  (Smith v Stone)

There must be a positive, voluntary interference

(League of Cruel Sports v Scott)

Negligence could be sufficient for tres

Trespass - (Gregory v Piper):

• “Natural and necessary consequence” your act naturally causes harm

Trespass - (Southport v Esso Petro)

the act done by the defendant must be a physical act done by him directly on P’s land.

Trespass defence (necessity) - (Leason v Attorney General)

•  [79]...Where the individual believes in good faith and upon grounds which are objectively reasonable that their actions are necessary to preserve life, prevent serious harm, or render assistance to another.’ 

Illegality - trespass defence (Brown v Dundmuir)

“if the appellants had not acted illegally…There would have been no trespass.

Trespass -illegality defence (Leason)

the illegal act must cause the trespass, not just provide the occasion or motive for the defendant to trespass. 

Trespass consent (Robson v Hallett)

An express licence is limited to its terms and can be revoked at any time

(Choudry v Attorney-General)

Where a statute authorises trespass it “should be spelt out in the plainest of terms

Private nuisance defintion

 a continuing, substantial inteference with the use or enjoyment of someone’s land 

Private nuisance (st helen)

•  The interference must be materially and actually interefer with the enjoyment of someone’s land

Private nuisance (BNZ v Greenwood)

The ineteference must be unreasonable

Private nuisance (Halsey v Esso)

Consider the charact of the neighborhood and the nature, intensity and frequency of disruption

Private nuisance claiming rights (Hunter v Canary Wharf)

Does not require a possessory right

Who is liable in private nuisance (Matheson)

The one with the ability to manage and control the nuisance

Private nuisance defences (Coventry v Lawrence)

You need to have been making what would otherwise be an actionable nusiance for 20 years to obtain a prescriptive right

(Coventry v Lawrence). coming to the nuisance

Coming to the nuisance is no defence

Rylands v Fletcher

• If D  brings or accumulates on their land which, if it escapes, is likely to cause mischief, they are strictly liable for damage that occurs if it escapes where the use of land is non-natural 

Natural use - rylands v fletcher. (Richard v Lothian)

Must be “some special use bringing with it increased danger to others and not such a use is proper for the general benefit of the community”

Rylands v Fletcher - mischief of children (Matheson)

Neither children not gold balls are dangerous/likely to cause mischeif