Key Words
Claimants (not plaintiffs or suspects)
Defendants, wrongdoers, or tortfeasors are all the same thing
Claims, not prosecutions
Tort, not offenses
Liable not guilty
Damages, not fines
Judges, never magistrates, and hardly ever juries
Balance of probabilities, not beyond reasonable doubt
What interests come under tort?
Interest Aspects Torts Engaged
Personal integrity Physical injury Negligence
Psychiatric injury Employers’ liability
Occupiers’ liability
Product liability
Trespass to the person
Harassment
Nuisance (private)
Property interests Personal property (As above) PLUS
Real property Nuisance (public)
The rule of Rylands v
Fletcher
Trespass to land
Financial loss Consequential loss Negligence
Product liability
Nuisance (private)
Nuisance (public)
The rule of Rylands v
Fletcher
Defamation
[Iceland] ‘Pure’ financial loss Negligence (economic loss)
Land interests Real property Negligence
Use/enjoyment of land Nuisance (private and public)
The rule of Rylands v
Fletcher
Harassment
, Trespass to land
Reputation Personal reputation Defamation (libel and
Corporate reputation slander) [McCann]
Privacy Confidentiality Private life ‘invasion of privacy’(?)
[Mosley] Breach of confidence
Negligence Trespass to land
Harassment Nuisance
(private and public)
Tort and Compensation
It is a measure of loss caused by a wrong
It is the end result of applying ‘corrective justice’ [Collett]
Tort and Corrective Justice
Moral responsibility translated to legal liability
If D unreasonably interferes with C’s rights, causing loss, justice requires D to make good that
loss.
Fault + loss
But – who pays?
Balancing justice and injustice: the role of policy
Justice or law? (funding and viability) [Corby]
Tort and Allocation of Loss
The ‘Loss-shifting’ principle
Individual responsibility v the shift to collective loss spreading
Should ‘the many pay for the few’?
Who is the loss shifted to?
Loss shifting and insured defendants Loss shifting and uninsured defendants
,Tort and Vindication
A claimant’s sense of satisfaction in having his grievance aired publicly and the defendant
branded a wrongdoer
How much is ever in the public arena? – ADR / confidentiality / most cases settle
Liability may not reflect blameworthiness
Perhaps more relevant to actions against public authorities/public interest? [Omagh]
Trespass to the Person - Assault, Battery, and False
Imprisonment
History
- Some of the oldest torts –derived from the ancient writ of trespass.
Aims:
- Protecting the interest of freedom from unlawful interference with personal integrity
- Collins v Wilcock [1984] 1 WLR 1172 at 1178, per Goff LJ:
- ‘[t]he fundamental principle, plain and incontestable, is that every person’s body is
inviolate’.
Remedies for infringing the claimant’s rights:
- Damages:
- Compensatory damages
- Aggravated damages
- Exemplary damages
- Vindication
- Declaration/judgment as to the lawfulness of the defendant’s conduct
- Prevention of future conduct
- Injunctive relief
The three torts of trespass to the person
- Assault
- Battery
- False imprisonment
They share common characteristics
Assault
‘An act which causes another person to apprehend the infliction of immediate, unlawful force on
his person’
Collins v Wilcock (1984) per Goff LJ
There are additional core elements beyond this definition
, Battery
‘The intentional and direct application of force on another person’
Winfield and Jolowicz on Tort (2010)
There are additional core elements beyond this definition
False imprisonment
‘The unlawful imposition of constraint on another’s freedom of movement from a particular
place’
Collins v Wilcock (1984) per Goff LJ
There are additional core elements beyond this definition
The contract with criminal offences
There are similarities but some differences
Common Features of the Torts
These torts have the following common features:
- D’s act must be voluntary
- D must have the required mental element – intention or subjective recklessness
- D has acted positively – or a failure to meet a duty to act positively)
- D’s conduct has directly caused the consequence prohibited by the tort
- C must prove all of the elements of the tort are present
- It is open to D to prove that their conduct was lawful
- The standard of proof – on both C and D for what they each need to prove – is on the
balance of probabilities
- C need not prove any harm or injury – the torts are actionable per se
‘Voluntary’
C’s act must be voluntary
If C lacks the mental capacity to act voluntarily, the mental element for a trespass tort is not met
D’s mental state
C must prove that D:
- Intended to do the act prohibited by the tort; OR
- Was subjectively reckless as to whether his conduct caused the act prohibited by the tort
(i.e. actually foresaw the consequences of his conduct but continued with the conduct
anyway) (Iqbal v Prison Officers Association (2010) CA)
Subjective recklessness
Iqbal v Prison Officers Association (2010) CA, per Smith LJ
Claimants (not plaintiffs or suspects)
Defendants, wrongdoers, or tortfeasors are all the same thing
Claims, not prosecutions
Tort, not offenses
Liable not guilty
Damages, not fines
Judges, never magistrates, and hardly ever juries
Balance of probabilities, not beyond reasonable doubt
What interests come under tort?
Interest Aspects Torts Engaged
Personal integrity Physical injury Negligence
Psychiatric injury Employers’ liability
Occupiers’ liability
Product liability
Trespass to the person
Harassment
Nuisance (private)
Property interests Personal property (As above) PLUS
Real property Nuisance (public)
The rule of Rylands v
Fletcher
Trespass to land
Financial loss Consequential loss Negligence
Product liability
Nuisance (private)
Nuisance (public)
The rule of Rylands v
Fletcher
Defamation
[Iceland] ‘Pure’ financial loss Negligence (economic loss)
Land interests Real property Negligence
Use/enjoyment of land Nuisance (private and public)
The rule of Rylands v
Fletcher
Harassment
, Trespass to land
Reputation Personal reputation Defamation (libel and
Corporate reputation slander) [McCann]
Privacy Confidentiality Private life ‘invasion of privacy’(?)
[Mosley] Breach of confidence
Negligence Trespass to land
Harassment Nuisance
(private and public)
Tort and Compensation
It is a measure of loss caused by a wrong
It is the end result of applying ‘corrective justice’ [Collett]
Tort and Corrective Justice
Moral responsibility translated to legal liability
If D unreasonably interferes with C’s rights, causing loss, justice requires D to make good that
loss.
Fault + loss
But – who pays?
Balancing justice and injustice: the role of policy
Justice or law? (funding and viability) [Corby]
Tort and Allocation of Loss
The ‘Loss-shifting’ principle
Individual responsibility v the shift to collective loss spreading
Should ‘the many pay for the few’?
Who is the loss shifted to?
Loss shifting and insured defendants Loss shifting and uninsured defendants
,Tort and Vindication
A claimant’s sense of satisfaction in having his grievance aired publicly and the defendant
branded a wrongdoer
How much is ever in the public arena? – ADR / confidentiality / most cases settle
Liability may not reflect blameworthiness
Perhaps more relevant to actions against public authorities/public interest? [Omagh]
Trespass to the Person - Assault, Battery, and False
Imprisonment
History
- Some of the oldest torts –derived from the ancient writ of trespass.
Aims:
- Protecting the interest of freedom from unlawful interference with personal integrity
- Collins v Wilcock [1984] 1 WLR 1172 at 1178, per Goff LJ:
- ‘[t]he fundamental principle, plain and incontestable, is that every person’s body is
inviolate’.
Remedies for infringing the claimant’s rights:
- Damages:
- Compensatory damages
- Aggravated damages
- Exemplary damages
- Vindication
- Declaration/judgment as to the lawfulness of the defendant’s conduct
- Prevention of future conduct
- Injunctive relief
The three torts of trespass to the person
- Assault
- Battery
- False imprisonment
They share common characteristics
Assault
‘An act which causes another person to apprehend the infliction of immediate, unlawful force on
his person’
Collins v Wilcock (1984) per Goff LJ
There are additional core elements beyond this definition
, Battery
‘The intentional and direct application of force on another person’
Winfield and Jolowicz on Tort (2010)
There are additional core elements beyond this definition
False imprisonment
‘The unlawful imposition of constraint on another’s freedom of movement from a particular
place’
Collins v Wilcock (1984) per Goff LJ
There are additional core elements beyond this definition
The contract with criminal offences
There are similarities but some differences
Common Features of the Torts
These torts have the following common features:
- D’s act must be voluntary
- D must have the required mental element – intention or subjective recklessness
- D has acted positively – or a failure to meet a duty to act positively)
- D’s conduct has directly caused the consequence prohibited by the tort
- C must prove all of the elements of the tort are present
- It is open to D to prove that their conduct was lawful
- The standard of proof – on both C and D for what they each need to prove – is on the
balance of probabilities
- C need not prove any harm or injury – the torts are actionable per se
‘Voluntary’
C’s act must be voluntary
If C lacks the mental capacity to act voluntarily, the mental element for a trespass tort is not met
D’s mental state
C must prove that D:
- Intended to do the act prohibited by the tort; OR
- Was subjectively reckless as to whether his conduct caused the act prohibited by the tort
(i.e. actually foresaw the consequences of his conduct but continued with the conduct
anyway) (Iqbal v Prison Officers Association (2010) CA)
Subjective recklessness
Iqbal v Prison Officers Association (2010) CA, per Smith LJ
