Scored a distinction in the 2022 exam with these notes. Contains all possible problem question and essay question structures. Headings to be followed to ensure all points are met for a distinction answer.
Topic Page
Basic Structure 1
Trespass to the Person 2
Negligence Problem Question Structure 5
Negligence Duty of Care Essay 17
Negligence Omissions Essay 22
Limited Duty Situations 25
Employer’s Liability in Negligence 30
Employer’s Vicarious Liability 33
Employer’s Liability Essay 36
Occupiers’ Liability to Visitors 38
Occupiers’ Liability to Others 42
Product Liability in Contract 44
Product Liability under the CPA 46
Essay 50
Product Liability in Negligence 53
Private Nuisance 56
Trespass to Land 63
Remedies 67
PEL, Psychiatric Harm and Damage to Reputation Essay 70
Statutory Case Law for Essays 75
You must state claims that do not exist to signal to the examiner what torts are there
and what aren’t.
Any claim in tort must be started within a certain time frame (limitation periods) –
Limitation Act 1980
o 6 years from when the cause of action arises
o Defamation - 1 year of the publication of the defamatory statement
o Personal injury claims must be brought within three years of the injury date
As X is a minor, they will sue through a litigation friend.
“tort is what is in the tort books, and the only thing holding it together is the
binding (Tony Weir, An Introduction to Tort Law)
Wearing of seat belts – once you could get fined under Highway Code, wearing
seat belts became more common place (Carol Harlow, Understanding Tort Law)
Statutory duty – would only be in an essay question
Actionable per se – no los = no causation
Satisfied element is met – carry on with analysis. If there’s no duty of care, stop
analysis. If arguable either way, difficult to conclude – continue with analysis.
If D has been convicted of a criminal offence, it’s presumed they committed that
offence for the purpose of a civil proceeding (s.11 Civil Evidence Act 1968)
BASIC STRUCTURE FOR ALL TORTS
1. Identify all possible Cs and Ds
2. Identify the nature of the loss for each C
3. Consider which tort(s) may be relevant
4. Explain the elements of the tort(s)
5. Apply the law to the facts, discussing any issues that arise on the facts
6. Identify any defences and discuss in relation to facts
7. Reach a conclusion if possible, on D’s liability
8. Consider remedies
1
, TRESPASS TO THE PERSON
C doesn’t need to prove any tangible physical harm to sue (actionable per se).
Trespass to the person requires intentional conduct on DEFENDANT’S part (Letang
v Cooper), otherwise it’s a case of negligence. Lord Denning held trespass could be
a breach of duty, 3-year discretion applied. However, Stubbings v Webb rejected
this where the claimant sued years after the event saying her father sexually abused
her. The House of Lords held it could only be trespass not breach of duty, so the
six-year period applied so her claim failed. Yet, in A v Hoare, the House of Lords
changed their mind and decided Letang was correct. The claimant was raped in
1989 but didn’t bring a civil action as the defendant wasn’t worth suing, but once they
won the lottery in 2004, the discretionary period applied.
Must know the facts to determine the proper course of action (Reynolds v
Clarke). Fortescue’s analogy states if a man throws a log onto the highway
which hits a person at the time it’s thrown, that’s trespass. If injury occurs after
it’s thrown by a person falling over the log, it’s case.
Trespass could be committed negligently (Fowler v Lanning).
Transferred malice applies (Livingstone v Ministry of Defence)
Did C apprehend an infliction of unlawful force? ASSAULT
Assault is an intentional act causing the reasonable apprehension of the immediate
infliction of a battery (Collins v Wilcock).
Intentional: D must intend that C apprehends the infliction of battery (Bici v
Ministry of Defence). This is often difficult to prove.
Assault by Words: Originally words alone couldn’t amount to an assault, they had
to be accompanied by some actions/gestures (Read v Coker; R v Meade v Belt).
However, after R v Ireland, words alone can be assault, depending on the
circumstances and level of immediacy. ‘immediate’ could cover something that
would happen within a minute or so. However, words can ‘negative’ an assault,
taking away the immediate threat (Turberville v Savage). Examples include ‘if we
weren’t being watched I’d hit you’, so C would not reasonably apprehend the threat
of battery, so there’s no assault.
Apprehension: C must fear immediate and pressing threat of battery (Thomas v
NUM). In Thomas v National Union of Mine Workers, the defendant’s actions
constitute an assault as crowd lacked capacity to immediately carry out its threats.
Capability to put a threat imminently is necessary for assault. Actionable under
nuisance as interfered with C's right to use highway and attend work without
harassment. C must have reasonably expected an immediate battery (Stephens v
Myers). In Myers, the defendant made a violent gesture at the claimant by waiving
a clenched fist but was prevented from reaching him by third party intervention.
They were liable for assault. If D is unable to deliver the blow, there’s no assault if C
should have realised that the attack was impossible.
Immediate: Lord Steyn said that this could cover something which would happen
within a couple of minutes (R v Ireland).
2
,Did D intend to inflict harm/distress? INFLICTION OF MENTAL SHOCK
Intention to cause shock, leading to C suffering damage. Set out in Wilkinson v
Downton, which the Supreme Court refined in Rhodes v OPO:
1. a conduct element requiring words or conduct directed at C for which there
was no justification or excuse;
2. a mental element requiring an intention to cause at least severe mental or
emotional distress; and
3. a consequence element requiring physical harm or recognised psychiatric
illness.
No cause of action would lie unless the resultant damage to C amounted to a
medically recognised condition (Wainwright v Home Office). Janvier v Sweeney
upheld Wilkinson. The detective was liable for inflicting nervous shock. This is a
strong case as there was a clear intention to frighten the claimant to unlawfully
obtain information.
Was there application of unlawful force? BATTERY
Battery is the intentional direct application of unlawful force to another person
(Collins v Wilcock).
Intentional: Touching must be intentional by D, and this touching must be hostile. D
must intend to act, but not intend the consequences of their actions (Wilson v
Pringle). This can be difficult to prove. Smith LJ stated ‘it’s well established that all
forms of trespass require an intentional act. An act of negligence would be
insufficient’ (Iqbal v Prisoner Officers Association). In Williams v Humphrey, the
defendant pushed the claimant into a pool causing him to fall and break his ankle.
The defendant said they didn’t intend to cause injury, but it didn’t matter.
Force: Battery must include hostility. References to intentional touching in anger,
unreasonably or violently is battery. If there’s touching with anger, it’s battery (Holt
CJ in Cole v Turner). Spitting counts as force (R v Cotesworth).
Direct: Must be a direct act (Reynolds v Clarke; DPP v K; Gibbens v Pepper).
Force must flow directly, immediately, without intervention (Scott v Shepherd threw
firework, people throw firework on in a panic injuring someone, first person who
threw is liable). D doesn’t need to make physical contact with C’s body but can use
a ‘medium’. Is there an intervention of time?
Unlawful: Generally, all acceptable daily physical conduct isn’t unlawful (F v West
Berkshire HA). The best approach is Goff’s: ‘there’s a general exception embracing
all physical contact which is generally acceptable in the ordinary conduct of everyday
life’.
Remedy: Compensation for any injury. Nominal compensation if no injury.
Are there any defences available? If yes, consider negligence (careless)
Provocation isn’t a defence.
CONSENT
‘Real’ means valid consent. Consent is real once X is informed broadly of what will
happen, but this doesn’t count as real if induced by misrepresentation (Chatterton v
Gerson).
3
, All conduct within the rules and the spirit of the game (and which may fall outside the
rules, but within in spirit of the sport counts as consent (Condon v Basi), just not
serious foul play (dangerously high or late tackle).
In Blake v Galloway, a group of 15-year olds were throwing twigs and bark at each
other when the defendant threw a piece of bark hitting the claimant’s eye. The Court
of Appeal held there was no battery as the claimant must have consented when they
understand the nature of the game. There was no liability in negligence as there
was no failure to take reasonable care, there would only be liability if there was
recklessness.
A doctor’s failure to disclose the risks associated with the intended treatment doesn’t
invalidate a patient’s rights; there’s no claim in trespass but a claim in negligence
might work (Chester v Afshar).
There are limits to what can be consented to (Lane v Holloway). Consent is only
valid for activities which don’t contravene public policy (AG’s Reference (No 6 of
1980); R v Brown).
SELF-DEFENCE
Cockcroft v Smith established the test for self-defence. D must establish:
the force must be used in self-defence and not as an act of retaliation
reasonable force was used (question of fact; Lane v Holloway)
which was proportionate to the force used or threatened by C.
NECESSITY
The defence of necessity can be used in two scenarios (F v West Berkshire Health
Authority):
1. an emergency where the patient is unconscious
2. a state of affairs meaning the patient cannot consent (lacking mental capacity
or someone who through a stroke can’t speak).
This defence is only available where D’s actions were necessary and reasonable to
save a life or to ensure the improvement or prevent deterioration in physical and
mental health.
DEFENCE OF PROPERTY
D may take reasonable steps to defend their property, extending to taking
reasonable steps to eject a trespasser such as asking them to leave (Green v
Goddard).
CONTRIBUTORY NEGLIGENCE
Contributory negligence is unavailable as a defence to claims in trespass to the
person (Co-operative v Pritchard).
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