Wilkinson v downton. Ryland v Fletcher
Revision Tort
Functions of Law of Torts
- Deterrence
o Gives incentives for people to not behave in a certain way
o For: cost-effective, instrumental in e.g. avoiding harm, policy-driven approach
o Against: Strict liability in Rylands v Fletcher, intentional torts in trespass to the person
- Corrective Justice
o Tortfeasor held liable for the reparation of the harm
o For (and usually against deterrence): Value-oriented, internal approach (judges apply law as
it is without considering other factors, e.g. insurance), principled approach
o Against: Strict liability, vicarious liability, Fairchild case (policy-driven)
- Compensation Culture
o Transform injuries into claims for compensation
o For: consumer-friendly, stress-free, name-blame-claim approach, awareness of injured
parties’ rights needed, explains strict liability
o Against: insurance companies pay damages, therefore the public ultimately pays with
increased cost of living
- Influence of Human Rights
o Applied in light of HRA 1998
o For: Michael v Chief Constable, duty of care of the police
o But: Tort Law is broader and protects further interests – private nuisances
Tort of Trespass to the Person
- No damage required (except Wilkinson v Downtown ‘inflicting harm’ rule)
- Interference must be direct (except WvD ‘indirect’ rule)
- Intention required (Fowler v Lanning; Letang v Cooper)
o Fowler v Lanning: C shot at shooting party, burden of proof on C to establish intention of D
o Letang v Cooper: C sunbathing and unintentionally runover, no action in TtP. Lord Denning
MR: abolition of negligent trespass, Diplock LJ: more moderate view, intention to go to court
but room to explore negligence
- Battery
o Unlawful touching of another person
‘Unlawful contact’
Direct contact
Hostile contact
o Wilson v Pringle: Schoolboy injured from fall during horseplay –
hostility is any touching in a way C would object to; broad
Lack of consent
o Chatterton v Gerson: Surgeon gained consent but did not inform
about side effects. Consent valid where patient informed about
treatment, even if only in broad terms
o Reibl v Hughes (1981; Canada SC): ‘unless there had been a
misrepresentation or fraud to secure consent to the treatment, a
failure to disclose the attendant risks, however serious, should got to
negligence rather than battery.’
- Assault
o Creation of reasonable apprehension of an imminent battery
Apprehension of… = Expectation of …; no fear required
‘Imminent’
Revision Tort
Functions of Law of Torts
- Deterrence
o Gives incentives for people to not behave in a certain way
o For: cost-effective, instrumental in e.g. avoiding harm, policy-driven approach
o Against: Strict liability in Rylands v Fletcher, intentional torts in trespass to the person
- Corrective Justice
o Tortfeasor held liable for the reparation of the harm
o For (and usually against deterrence): Value-oriented, internal approach (judges apply law as
it is without considering other factors, e.g. insurance), principled approach
o Against: Strict liability, vicarious liability, Fairchild case (policy-driven)
- Compensation Culture
o Transform injuries into claims for compensation
o For: consumer-friendly, stress-free, name-blame-claim approach, awareness of injured
parties’ rights needed, explains strict liability
o Against: insurance companies pay damages, therefore the public ultimately pays with
increased cost of living
- Influence of Human Rights
o Applied in light of HRA 1998
o For: Michael v Chief Constable, duty of care of the police
o But: Tort Law is broader and protects further interests – private nuisances
Tort of Trespass to the Person
- No damage required (except Wilkinson v Downtown ‘inflicting harm’ rule)
- Interference must be direct (except WvD ‘indirect’ rule)
- Intention required (Fowler v Lanning; Letang v Cooper)
o Fowler v Lanning: C shot at shooting party, burden of proof on C to establish intention of D
o Letang v Cooper: C sunbathing and unintentionally runover, no action in TtP. Lord Denning
MR: abolition of negligent trespass, Diplock LJ: more moderate view, intention to go to court
but room to explore negligence
- Battery
o Unlawful touching of another person
‘Unlawful contact’
Direct contact
Hostile contact
o Wilson v Pringle: Schoolboy injured from fall during horseplay –
hostility is any touching in a way C would object to; broad
Lack of consent
o Chatterton v Gerson: Surgeon gained consent but did not inform
about side effects. Consent valid where patient informed about
treatment, even if only in broad terms
o Reibl v Hughes (1981; Canada SC): ‘unless there had been a
misrepresentation or fraud to secure consent to the treatment, a
failure to disclose the attendant risks, however serious, should got to
negligence rather than battery.’
- Assault
o Creation of reasonable apprehension of an imminent battery
Apprehension of… = Expectation of …; no fear required
‘Imminent’
