The vast majority of tort actions are based upon insurance, for the simple reason that it is only the insured defendant who is likely to be able to pay compensation should he be held liable.
Employers are required by the Employers’ Liability (Compulsory Insurance) Act 1969 to hold liability cover for their employees.
The Road Traffic Act 1988 requires motorists to be insured for damage to third parties.

Aims of Tort Law

The main objective of tort law is compensation as well as two secondary objectives:

Deterrence: awareness of possible tort liability may lead to more care being exercised and generally raise standards in a particular field, thereby preventing future loss.
Justice: recognition that a wrong has taken place, and this must be acknowledged and righted.

Alternative Routes to Compensation

No Fault Liability

In the case of many losses, either it is too difficult or impossible to prove fault and there is actually no one to blame.

Social Security

Social security benefits provide a significant and inexpensive form of protection for those in need which can be an alternative or a supplement to the tort system.

Charity

Before the late 19th century, voluntary help provided by the church, community, and individuals was the main source of support for the injured and bereaved.

‘First Party Insurance’

Many losses suffered will be covered by ‘first party’ (or personal) insurance, taken out for his own benefit by the person who suffers the loss.

The Motor Insurers’ Bureau

Established by the insurance industry, it provides compensation for those who suffer personal injury or property damage at the hands of uninsured or untraceable drivers.

Ex gratia or Single Issue Compensation Schemes

Occasionally situations occur involving widespread loss or injury, in which the government takes on the role of compensating its victims.

The Criminal Injuries Compensation Authority (CICA)

The Authority administers the statutory scheme, established in 1964, providing compensation for those who suffer loss due to violent crime.
It is not necessary that the perpetrator be convicted, or even identified.

Compensation Act 2006

S.1:

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might:

prevent a desirable activity from being undertaken at all, to a particular extent, or in a particular way, or
discourage persons from undertaking functions in connection with a desirable activity.

2. Negligence: Duty of Care

Negligence: breach of a duty of care which results in damages.
Duty must be established first in principle and then in respect of the particular claimant in question.

The Neighbour Principle

The Neighbour Principle says that a person should take reasonable care to avoid acts or omissions that they can reasonably foresee as likely to cause injury to the neighbour.

Three-stage test: Caparo v Dickman (1990)

Three criteria must be satisfied before a duty can be found:

the damage must be foreseeable; and
there must be proximity of relationship between the parties; and
it must be ‘fair, just, and reasonable’ for such a duty to exist. This third element is the one in which policy comes to be considered.

The Striking Out Application

The role of duty of care as a control mechanism means that cases will often reach the Court of Appeal or Supreme Court (previously the House of Lords), where the policy aspects of the determination will be discussed. In many such cases, the defendant will bring a striking out action. This rule of civil procedure allows the defendant to argue that there are no reasonable grounds for the claimant’s case.

3. Duty of Care: Further Issues

Omissions

In the case of omissions (that is, when damage has resulted from the defendant’s lack of action, rather than directly from a positive act), duty of care is often absent.

Liability for Omissions

Lord Goff set out exceptional situations in which there can be held to be a duty of care in respect of an omission:

There is a relationship between the parties which creates an assumption of responsibility on behalf of the defendant for the safety of the claimant.
There is a relationship of control between the defendant and a third party who causes damage.
The defendant creates or permits a source of danger to be created, which is interfered with by third parties.
There is a failure of a defendant to remove a source of danger of which he is aware.

Public Bodies as Defendants

Negligence actions against public bodies, such as organs of government, schools, and the police, have in the past raised difficulties around the issue of duty of care.
The police will be held to owe a duty of care when they directly cause damage as a result of a positive act or (in some cases) an omission.
However, the situation changes when the question is one of police liability for harm arising from the ‘investigation and suppression’ of crime. Here, the courts have been slow to impose duties of care.

The Unborn Child as Claimant

Following recommendations by the Law Commission, the Congenital Disabilities (Civil Liability) Act 1976 was passed. It applies to damage, to a child born alive, caused by negligence:

during the birth process; or
during pregnancy; or
prior to conception; and
was amended by the Human Fertilisation and Embryology Act 1990 to include damage incidental to fertility treatment.

The action in respect of damage done to an unborn child is regulated by both statute and the common law.

4. Pure Economic Loss and Negligent Misstatement

Pure Economic Loss

Pure economic loss is that which is not derived from physical injury, death, or property damage. It comes in the shape of failure to receive expected future profit or receipt of some financial benefit, or it may result from the acquisition if an item of defective property, or be due to property damage sustained by a third party.

Negligent Misstatement

Cases in which the claimant has suffered pure economic loss due to a negligent statement by the defendant provide a significant exception to the reluctance of the law to recognize a duty of care.

The Hedley Byrne duty

Duty of care as established by the Hedley Byrne v Heller ‘special relationship’:

C relied on D’s skill and judgement or his ability to make inquiry;
D knew, or ought reasonably to have known, that C was relying on him; and
it was reasonable in the circumstances for C to rely on D.

The duty can arise in cases in which the claimant alleges that his loss has been caused by the defendant’s failing to warn him about a situation or pressuring him to do something.
The special relationship only goes to establish duty of care. The claimant must also prove breach and causation.
Liability under the Hedley Byrne v Heller exception has been extended to situations in which the statement or supply of information was not made directly to the claimant, or perhaps was made for purposes other than influencing the claimant.
A duty has also been recognized when the subject of a statement suffers pure economic loss due to that statement being given without due care.x

5. Psychiatric Injury

The law was reluctant to allow recovery for this type of injury for three main reasons:

A general lack of awareness or understanding of how the mind worked.
Formerly, it was believed that psychological injury was very much more likely to be fraudulent claimed than the physical, which is usually visible and therefore somehow more ‘real’.
There was a policy concern that allowing liability for psychological injury threatened to open the ‘floodgates’.

Controlling Factors

Damages will only be awarded for a recognized psychiatric illness.
The condition must be the result of the impact of a sudden event or its immediate aftermath, hence, the original term, ‘nervous shock’. When it is the result of any sort of prolonged exposure, such as stress, it will not qualify under this category under this category of legal claim.
Primary victim: directly involved in the accident and well within the range of foreseeable physical injury.
Secondary victim: in the position of a spectator or bystander.

The ‘Thin Skull’ Rule

Thin skull rule states that particularly fragile victims of torts should be fully compensated for their losses, even where the damages arising out of their predisposing condition were not foreseeable to the defendant’s particular susceptibility.

The Principles of Liability Emerge

The foreseeability of secondary victims began to be assessed in terms of:

time;
space or geography;
causation; and
relationship to the primary victim of the negligence.

The ‘Alcock Criteria’ of Foreseeability

There are three criteria which are necessary for finding a duty of care to a secondary victim:

A sufficiently close relationship of love and affection with the primary victim.
Proximity to the accident, or its immediate aftermath, which was sufficiently close in time and space.
Suffering nervous shock through what was seen or heard of the accident or its immediate aftermath.

Psychiatric Damage and Duty of Care

(as proposed by the Law Commission in 1999)

		‘Bystander’
Primary/Secondary	‘Accident’	In danger: primary	Not in danger: secondary	‘Employee’
Sudden shock required?	No	Yes	Yes	No
Foreseeability of physical injury required?	Yes	Yes	Yes	No
Foreseeability of psychiatric injury required?	No	Yes	No	Yes
Indicative cases	Rahman v Arearose (2001)	Page v Smith (1996)	Alcock v South Yorkshire (1992)	Hatton v Sutherland (2002)

6. Breach of Duty: The Standard of Care

Having established that the defendant owed a duty of care to the claimant, the next element in a successful negligence claim requires that the defendant breached that duty. That is, that negligence took place and so, because the defendant was at fault, he may be liable.
To establish that the duty of care has been breached, first the standard of care must be found and then it must be decided if that standard was reached in the circumstance.

The Reasonable Person

Setting the Standard of Care

In cases where scientific and technical expertise may be involved, the defendant’s actions will be judged in terms of the state of knowledge at the time of the incident in question.
When the defendant is performing a task which requires a level of skill, the standard set will vary according to context and how he presents himself.
Some modification of the purely objective standard is necessary in cases involving the combination of professional skill and the impact of experience.
When the defendant has held himself out as having particular professional skills, the relevant standard must be based upon comparisons with others of the same profession.

Applying the Standard of Care: A ‘Balancing’ Exercise

What the reasonable person would have done is an answer of fact and will be assisted by balancing two differences aspects of the specific scenario:

The magnitude of risk: this is comprised of the likelihood occurring plus the severity of the injury should it occur (cost of running the risk).
The importance of the activity undertaken by the defendant plus the practicability of taking precautions against the risk (cost of avoiding the risk).

If the cost of running the risk exceeded the cost of avoiding the risk, then it is likely that the defendant was negligent, and vice versa.

The Compensation Act 2006

Section 1 suggests that courts, in considering the standard of care in negligence, should have regard to the extent to which the imposition of safety requirements could impact upon ‘desirable activities’.

How is breach established?

The basic rule is that the burden is on the claimant to establish that there has been a breach of duty. The standard of proof is civil: the balance of probabilities.

Res ipsa loquitur (‘the thing speaks for itself’)

In some cases the court will effectively give the claimant the benefit of the doubt by inferring negligence from what is known, in the absence of convincing evidence to the contrary. Three elements must be present before the case is an appropriate one in which to apply res ipsa loquitur:

The accident must be of the kind which does not normally happen in the absence of negligence.
The cause of the accident must have been under the defendant’s control.
There must be no explanation of the cause of the accident.

7. Causation in Fact

Causation is both fact-based and policy-based.

The ‘But-For’ Test

It involves establishing the facts of how something came about at a given time.
Causation in fact may not establish all or even the main causes, but it permits exclusion of certain factors or persons from having contributed to a particular outcome.
It involves asking the question: ‘But for the defendant’s breach of duty, would the claimant’s damage still have occurred?’

If the answer is ‘yes’, then the defendant’s breach generally can be eliminated as a factual cause of the damage and causation is not established.
If the answer is ‘no’, then the defendant’s breach is at least one of the contributing causes of the damage and causation is established.

When the ‘But-For’ Test Is Insufficient

Problems in the application of the but-for test arise in two particular circumstances:

when the answer to the question leads to an unjust or contradictory result; and
when it is impossible to answer the but-for question.

Several Liability

Two or more parties act independently to cause the same damage to the claimant.
Each party is separately liable for the whole of the damage.

Joint and Several Liability

Two or more parties act together to cause the same damage to the claimant.
Any or all can be sued, each party being separately liable for the whole of the damage, and in a case when only one is able to pay, he will be liable for the whole of the damage.

Contribution

When there is joint and several liability, one party who pays compensation may which to claim a portion of this from other wrongdoers.
The Civil Liability (Contribution) Act 1978, ss 1 and 2 enable the party who has paid the compensation to bring an action to recover contribution from one or more of the other parties.

Loss of a Chance

In some cases, the argument will be made that the defendant’s negligence increased the likelihood of a poor outcome for the claimant or deprived him of the possibility of avoiding such outcome.

Material Contribution

This particular approach to solving claimants’ difficulties in proving causation has been used in cases in which the process has been cumulative and the resultant damage can be viewed as indivisible, that is, it cannot be broken down into different parts which can separately be attributed to different causes.
It can also be applied in cases in which there is no process of accumulation but rather only one, but unidentifiable, cause (a material increase in risk).

Consecutive Causes

This means later unconnected events causing the same or greater harm as the first tort.
In some cases involving two torts, the second wrongdoer may find that his breach of duty caused no additional damage to a victim and that he is therefore not liable to pay compensation.

8. Causation: Intervening Acts and Remoteness

Intervening acts will arise when the original negligence of the defendant has been combined with an additional factor to bring about the damage.
Intervening acts, or novus actus interveniens, may operate to break the chain of causation between a defendant’s act and the final outcome.
There are three different categories:

actions by the claimant himself;
actions by the third party; and
natural events.

Remoteness

Remoteness is a simpler way of describing what is also known as causation in law.
It is concerned with the extent of a defendant’s duty.
Even when there is a factual link between the defendant’s act and the claimant’s loss (causation in fact), the outcome may be either:

so removed from the original negligence; or
of a type which is outside the risk created so that the law would regard it as unjust to make the defendant liable for it.

9. Employers’ Liability and Vicarious Liability

Employer’s liability has both a common law and a statutory aspect.
Employer’s liability is concerned with the employer’s personal duty in respect of the physical safety of his employees.

The Common Law

There are four components of the common law duty and some claims may reflect an overlapping between them:

The duty to provide a component workforce.
The duty to provide adequate plant and equipment.
The duty to provide a safe place of work.
The duty to provide a safe system of working.

The fundamental position has been that the employer’s duty covers physical safety but does not extend to the employee’s financial security.

Statutory Regulation of Employers’ Liability

The Health and Safety at Work etc. Act 1974 had the objective of providing a unified and comprehensive framework, obliging employers to ensure, as far as is reasonably practicable, the health, safety, and welfare at work for all employees.
In accordance with EU directives, the majority of pre-existing statutes have now been repealed and replaced by many different regulations, under the scheme of the Management of Health and Safety at Work Regulations 1999.

Vicarious Liability

Vicarious liability makes the employer liable for:

a tort,
committed by his employee,
in the course of employment.

Vicarious liability is not dependent on any fault of the employer and may be imposed even if the case of an express prohibition or a criminal act.
Vicarious liability does not remove the employee’s personal liability and it is possible, but unusual, for the employee to be called upon to indemnify his employer.

The ‘Integration Test’

The ‘integration test’ focused on the extent to which the worker was integrated into the enterprise as a whole.

The ‘Composite Test’

The ‘composite test’ involves taking an overview of a number of different aspects of the relationship.

10. Product Liability

Common law product liability is based upon the law of negligence.
Statutory product liability is strict liability.

The Consumer Protection Act 1987 (Part I)

Thus statute was passed in response to a European Union directive of 1985, which had the objective of achieving a harmonized, EU-wide regime of strict liability for defective products.
Liability does not depend on proof of fault by the defendant.
Liability is not absolute, there must be a defect in the product.
Section 1(2) defines products as goods, electricity, and those products which may be comprised in another product, i.e. a component part. Also included are substances, growing crops and things attached to land, any ship, aircraft, or vehicle, but buildings are exempted.
In s 2(2) the Act provides that the primary liability lies within the producer, which includes the manufacturer. It may also lie with the importer of the product into the EU, the ‘own brander’, and the ‘supplier’ (retailer).
According to s 3, the claimant must establish that there is a defect in the product [meaning that] the safety of the product is not such as persons generally are entitled to expect.
According to s 5, compensation is not available for:

loss or damage of the product itself (pure economic loss);
loss or damage to property not ordinarily intended for private use, occupation, or consumption and intended by the claimant for that purpose;
loss or damage to property totalling less than £275.

The action must be brought within three years from the date of damage.

The Objective Standard/The Consumer Expectation Test

In determining defectiveness, the following must be taken into account:

the manner and purpose of marketing, the use of any mark, instructions, and warnings;
what might reasonably be expected to be done with the product; and
the time at which the product was supplied.

Comparisons of the Two Types of Product Liability in Tort

Common law	CPA 1987
Duty not owed by suppliers.	Duty owed by suppliers in some cases.
Breach of duty to be proved.	‘Defective product’ must be proved.
Causation must be proved.	Causation must be proved.
No minimum compensation for property damage.	Compensation only for property damage over £275.
Type of property damage unrestricted.	No liability for damage to ‘business property’.
Damage to product itself is pure economic loss.	No liability for damage to defective product itself.
Usual common law defences.	Statutory defences include ‘development risks’.
Normal limitation period.	10-year ‘long stop.

11. Intentional Torts

Background to Trespass to the Person

The requirement of ‘intention’ means that the act which caused the harm must be intentional, or voluntary. It is not necessary that the outcome, or harm, be intended.
‘Actionable per se’: the tort does not require proof of damage in order to be actionable. The amount of damage will, however, be taken into account when damages are quantified.

Battery

Battery consists of the:

intentional and
direct
application of force to another
without his consent.

Assault

An assault is committed when the defendant has caused another to:

reasonably apprehend
the direct and immediate application of force.

Reasonably apprehend

This is determined objectively and an unfounded apprehension will not found an action in assault.

False Imprisonment

False imprisonment is:

the complete restraint of bodily movement
which is not expressedly or impliedly authorized by law.

In this definition, ‘false’ indicates wrongfulness and ‘imprisonment’ indicates any restraint of movement.

Defences to False Imprisonment

Lawful Authority

Many actions for false imprisonment are against the police or prison authorities.
A detention, such as an arrest, will not constitute false imprisonment if it is authorized by law.

Necessity

Under art 5 of ECHR as permitting reasonable measures for crowd control in ‘extreme and exceptional circumstances’.

The Tort in Wilkinson v Downton

A remedy was provided in tort, on the grounds that the defendant had:

wilfully
committed an act
calculated to cause physical damage to the plaintiff
by indirect means.

Trespass to Land

This is unlawful interference with land, which is direct, intentional, and actionable per se.
What is land? The surface of and anything permanently attached to the land.
What intention is required? That to do the physical act of entering or coming into contact with the land.
Defences to trespass to land: consent of the person in possession of the land, although this can be withdrawn; necessity.
Remedies: damages (compensatory or nominal), an injunction, or a declaration of legal rights over the land.

The Protection from Harassment Act 1997

An action in tort is possible in respect of:

a course of conduct (on at least two occasions)
pursued against the claimant
which alarmed the claimant or caused distress.

Defences to Trespass to the Person

Consent

It is a defence to an action in trespass to the person for the defendant to prove that the claimant had consented, or led the defendant to believe that he was consenting.
This defence often arises in medical cases and such claims may overlap with those in negligence.

Lawful Authority

This will be based upon a common law or statutory power, for instance, to detain or arrest.
Like consent, the burden will be on the defendant to prove this defence.

Self-defence

It will be a defence to prove that the action in question was reasonable and in proportion to the perceived force.

Necessity

It is applicable in cases in which the action in question was in response to threat of a greater harm.

Contributory Negligence

It will not be a defence in cases of assault or battery.

12. Nuisance and Rylands V Fletcher

The term ‘nuisance’ relates to three very different actions: private nuisance, public nuisance, and statutory nuisance. All three are land-related torts, occurring indirectly.

Private Nuisance

Unlawful

An ‘unlawful’ interference is one which is unreasonable.
The rightness or wrongness of the defendant’s actions will be determined by their effect on the claimant’s ability to enjoy and use his land.
The court makes a decision on what is unreasonable by balancing the rights and needs of landowners, in all the circumstances.

Continuous

The duration of the defendant’s activity is one factor which may determine unreasonableness.
When a ‘one-off’ incident is treated as nuisance this is often on the basis that the situation which gave rise to the incident was a continuing state of affairs.

‘Interference with Use and Enjoyment of Land’

This is the type of damage to which the tort of private nuisance is directed.
Proof of damage is necessary; it is not actionable per se.
The court divided actionable damage into two categories:

Material physical damage.
Loss of amenity, such as smell and noise. These do not cause tangible damage but detract from enjoyment (and value) of the land.

Only someone who has a possessory or proprietary interest in land can sue in private nuisance.

Who Can Be Sued in Private Nuisance?

There are three main categories of potential defendants in an action in private nuisance:

the creator of the nuisance, even when the defendant is no longer occupying the land which is the source of the nuisance;
the occupier of the land which is the source of the nuisance; and
a landlord, in some cases, will be liable if his land is the source of a nuisance.

Specific Factors

The Locality

Locality would only be taken into account when the nuisance alleged was loss of amenity.
If there were material damage to property, then the nature of the locality would not be a factor against finding nuisance.

Planning Permission

Planning permission was taken to change the nature of the locality, and it includes a strong element of policy.

The Sensitivity of the Claimant

A claimant may feel that his neighbour is committing a nuisance, but this may be due to his own unreasonably high standards or peculiar requirements.

The Utility of the Defendant’s Conduct

The fact that the defendant’s activity is providing employment or an amenity will not mean that it cannot still be held to be a nuisance.

The Defendant’s Motive

If the activity is done deliberately or with malice then this may convert what would otherwise be lawful into a nuisance.

Positive Duties Arising from Acts of Nature

If a nuisance arises due to the effect of nature on the defendant’s land, then he may be liable if he fails to take action to correct it.

Defences to Private Nuisance

It is not open to the defendant to argue that the claimant is barred from complaining about a situation of which he should have been aware.

Prescription

If the defendant’s activity has been causing a nuisance for 20 years or more, then he has acquired a legal right which acts as a defence to a nuisance claim.

Statutory Authority

The defendant may be a public body acting under statutory powers. This will serve as a defence to any nuisance action, if the nuisance is the unavoidable outcome of authorized activity.

Remedies for Private Nuisance

Injunction

It is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from special acts.

Damages

Damages were granted in lieu of an injunction, where:

injury to the claimant’s legal rights is small; and
it is one which is capable of being estimated in money; and
it is one which can be adequately compensated
by a small money payment; and
the case is one in which an injunction would be oppressive to the defendant.

Abatement

Abatement of the nuisance, or ‘self-help’ occurs in a small number of cases, where the injured party takes appropriate steps to stop the nuisance.

Public Nuisance

Public nuisance is an act which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.
It is a crime as well as a tort.
Because a class or cross-section of the public is affected, an action will be brought by a local authority on behalf of the community.
The creator of the nuisance can be sued in public nuisance.
Damages can be recovered for:

property damage;
obstruction of, or damage to, the public highway;
personal injury;
economic loss.

Public Nuisance vs Private Nuisance

Public Nuisance	Private Nuisance
It is a crime as well as a tort.	It is only a tort.
The claimant does not need an interest in land to sue.	Only those with an interest in land can sue.
Damages are recoverable for personal injury.	Damages are not recoverable for personal injury.
An isolated incident may give rise to a claim.	An isolated incident will not give rise to a claim, there must be an ongoing state of affairs.
The claimant must be one of a class of Her Majesty’s subjects who suffered damage over and above the rest of the class affected.	An individual may sue, not as a part of a class.

Defences to Rylands v Fletcher

Consent of the Claimant or Common Benefit

The defence operates like that of volenti non fit injuria (someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result).

Act of a Stranger

When the tort is caused by the act of an unknown third party over whom the defendant has no control, he will not be liable in Rylands.

Act of God

It is thought that this defence would only operate for an exceptional event, such as an earthquake.

Statutory Authority

As with nuisance, where the activity in question takes place in the exercise of a statutory duty, this will provide a good defence in the absence of negligence.

13. Occupiers’ Liability

Occupiers’ liability is based upon the law of negligence and it is largely regulated by statute.

Occupiers’ Liability Act 1957

According to s 1(1), the Act was intended to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.
Section 1(2) refers to a ‘duty imposed by law in consequence of a person’s occupation or control of premises’ and includes visitors.
Section 1(3)(a) defines premises as ‘any fixed or moveable structure’. It includes ladders, electricity pylons, grandstands, diving boards, lifts, airplanes and airport runways.
An occupier can use warnings to assist in discharging his duty of care, providing they are adequate – that is, that they tell the visitor enough to enable him to be reasonably safe.
The Act, in s 2(1), allows the occupier to restrict, modify, or exclude his liability ‘in so far as he is free to do so’.

Occupiers’ Liability Act 1984

Under s1(1)(a), the Act applies to ‘persons other than visitors’: mainly trespassers, but also those using private rights of way.
The 1984 Act does not mention exclusion of liability but it is thought that the statutory duty is excludable; otherwise trespassers would be in a better position than visitors.

14. Defamation

Defamation: the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally; or which tends to make them shun or avoid that person.
Defamation protects the interest in repaturation.
The tort is divided into libel, which concerns communications in permanent form, adn slander, which concerns communications in transitory form.
Libel has been actionable without proof of damage.
Slander is actionable only with proof of damage except in certain exceptional situations.
There are three basic requirements for the action in defamation:

a defamatory statement which causes or is likely to cause serious harm;
that the statement refers to the claimant; and
that the statement is published.

There are two types of innuendo:

The true or legal innuendo applies to a situation in which additional facts must be pleaded by the claimant in order to establish the defamatory meaning for the statement.
The false or popular innuendo requires knowledge of alternative or slang meanings of words, or ‘reading between the lines’.

The action in defamation does not survive the death of either the claimant or the defendant and the limitation period is one year from the date of publication.
The study of defamation law requires an understanding of the impact of human rights law, particularly the right to freedom of expression in art 10 of the ECHR.

Publication

The defamatory statement must be communicated to a third party, that is, other than the claimant.
Every repetition of a defamation constitutes a fresh defamation and is thus actionable.

Defences to Defamation

Truth (formerly justification)

English law begins with the assumption that a defamatory statement is false, and the burden is on the defendant to prove that it is objectively true, on the balance of probabilities.
This is an absolute defence and so is not defeated even if it is made maliciously.

Honest Opinion

The defence protects the socially important function of honest and fair criticism and debate, which, because it is based upon opinion, cannot be proved to be true or false.
There are two requirements for this defence:

The opinion must be genuine and ‘honestly held’, rather than an imputation of fact.
The statement must implicitly or explicitly indicate the factual basis for the opinion.

Absolute Privilege

This privilege is ‘absolute’ because it is not defeated by proof of malice.
Its protection covers situations in which it is very important that participants be able to speak freely and honestly without fear of repercussions:

Parliamentary privilege applies to statements made in Parliament by members of both Houses of Parliament and fully authorized parliamentary reports. It can be waived under the Defamation Act 1996, s 13.
Judicial privilege covers all oral and written statements made in the course of judicial proceedings, and fair and contemporaneous reports of such proceedings.
Executive proceedings protects certain communications between officers of state.

Qualified Privilege

This is ‘qualified’ because it can be defeated by malice.
Common law qualified privilege is accorded to someone who is acting under a legal, moral, or social duty to communicate information to a person who had a corresponding interest in receiving that information.

Publication on a Matter of Public Interest (formerly ‘Reynolds privilege’ or responsible journalism)

It has been difficult to fit publications by the press to the public at large into qualified privilege because there is no identifiable reciprocal duty/interest.

Offer of Amends

This defence applies to unintentional or ‘innocent’ defamation, occurring either because the defendant thought that the statement was true of the claimant or made a statement which was true of someone else but was taken to refer to the claimant.

Innocent Dissemination

The defendant must not be an ‘author, editor, or publisher’ of the statement but rather be involved in mechanical processing, copying, or distribution of the material.
This defence is not available if the defendant cannot prove on the balance of probabilities that he took reasonable care in relation to its publication.

Remedies

Damages

The awarding of damages in defamation is atypical for two reasons:

Exceptionally in the civil justice system, juries were tasked with assessing compensation in defamation cases.
It is one of the actions in which exemplary (or punitive) damages can be added to those which are compensatory.

Injunction

In defamation cases, it is highly unlikely that an interim injunction will be granted to prevent an initial publication.

15. Privacy

Privacy has traditionally not been directly protected in English law.

Human Rights

The passing of the HRA, incorporating the ECHR into domestic law, enabled a new perspective on the question of protection of privacy.
Article 8 (ECHR): Right to respect for private and family life

Everyone has a right to respect for his private and family life, his home and his correspondence.

Article 10 (ECHR): Freedom of expression

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority.

Breach of Confidence

Breach of confidence is a wrong, based upon the breach of a duty to keep confidence arising from a confidential situation, transaction, or relationship.
Originally breach of confidence was actionable in equity and the remedy sought was an injunction, but now it is equally likely to result in a claim for damages.
Traditionally, this action has been founded upon the unauthorized use of information of a confidential nature when the defendant is said to be under a duty of confidentiality, usually based upon a relationship.

16. Defences and Limitation

Defences

Contributory Negligence

When damage is suffered partly as a result of the claimant’s lack of care and partly due to the fault of the defendant, he is liable to suffer a deduction from any compensation he is awarded.
It is necessary that the claimant’s conduct contributed to his loss. It may, or may not, have contributed to the event or accident itself.
The damage caused was within the foreseeable risk of the negligent conduct.
Contributory negligence has not been appropriate as a defence against claims made by children.
The court should apportion damages according to the extent it thinks ‘just and equitable having regard to the claimant’s share in the responsibility for the damage’.

Voluntary Assumption of risk (or volenti non fit injuria)

The defence of volenti is based upon deemed acceptance by the claimant of any consequences of the defendant’s unreasonable conduct. This acceptance can be express or implied.
This defence requires:

an agreement,
voluntarily made,
with full knowledge of the risk.

The requirement for an agreement means that mere knowledge of a risk is not sufficient.
When the defendant has put someone in an urgent or dangerous situation, the law is reluctant to penalize that person.
Participants in contact sports are taken to have consented to the sort of physical impact which would be a normal part of the game.

Exclusion of Liability

The defendant may claim that the explicitly excluded or limited liability by a notice or contractual term.

Illegality (or ex turpi causa non oritur actio)

‘No action can be found upon a shameful act’.
The principle means that the law will not assist a claimant who has based his action on an illegal act.

Limitation

Limitation periods have been laid down by statute in order to restrict the amount of time within which the claimant must begin his action.

17. Remedies and Principles of Compensation

Damages

The main category of damages is compensatory. There are, however, three other types of damages which are non-compensatory.

Contemptuous

Contemptuous damages are awarded in some cases, commonly defamation, to indicate that although the claimant has been successful technically, the court feels that the action should never have been brought.

Nominal

In some cases, the claimant will be held to have had his rights violated but will not have suffered any loss.

Exemplary or Punitive

Exemplary damages are sometimes described as punitive and are imposed over and above any compensatory damages in order to teach the defendant that ‘tort doesn’t pay’.

Aggravated Damages

There are compensatory in nature but indicate that the claimant’s position has been made worse because of the defendant’s malice or bad motivation. They reflect injury suffered to the claimant’s feelings as a result of the tort.

Injunctions

An injunction is an order of the court requiring the defendant either to do something or to cease to do something.

Quia timet injunction

This is sought when it is anticipated that a tort may be committed in the future.
Courts will only grant this remedy if the claimant can prove that the tort is highly likely and imminent.

Interim (or interlocutory) Injunction

Here, the tort may have already been committed but the claimant will urgently want to prevent damage until such time as the merits of the dispute can come to trial.

Final Injunction

This may be granted when a judge has heard all the relevant facts and both parties have had their say in court.
When an application has been made for an injunction, the defendant may try to convince the court that damages would be a preferable remedy.

Self-Help

This remedy involves the injured party taking steps on his own to address or abate the wrong.

Compensation and Death

Causes of action, with the exception of defamation, will survive the death of either party. This means that if a potential claimant has a viable cause of action against someone who then dies, he can sue the deceased’s estate.
When a tort causes a fatality, there may be serious financial consequences for those close to the victim.

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LLB Help

Tort Law Study Guide 2018/2019

1. Tort and The Tort System

2. Negligence: Duty of Care

3. Duty of Care: Further Issues

4. Pure Economic Loss and Negligent Misstatement

5. Psychiatric Injury

6. Breach of Duty: The Standard of Care

7. Causation in Fact

8. Causation: Intervening Acts and Remoteness

9. Employers’ Liability and Vicarious Liability

10. Product Liability

11. Intentional Torts

12. Nuisance and Rylands V Fletcher

13. Occupiers’ Liability

14. Defamation

15. Privacy

16. Defences and Limitation

17. Remedies and Principles of Compensation

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