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Tort - Lecture notes all

Tort Law (Durham University)

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Tort Law

Introduction to Tort Law

 ‘Tort is that branch of the civil law relating to obligations impose by the operation of
law on all natural and artificial persons. It concerns the basic duties one person owes
to another whether he likes it or not’ (Street on Torts)
 Cane – ‘A system of precepts about how people may, ought and ought not to behave
in their dealings with others’

The Law of Obligations

 Obligations are the requirements that one act (or refrain from acting) in a certain way.
Much of the law is concerned with directing conduct in this way – notably criminal law
 Tort law concerned with obligations existing between individuals – private citizens
 Obligations owed when going about our daily lives to respect other’s interests
 When obligations breached, law imposes duties on us to reverse the consequences of
the breach e.g. compensation, restitution

Tort Law protects interests and individual rights:

 Personal, e.g. physical and mental integrity, damage to property, financial loss,
possession, use and enjoyment of land, reputation and privacy

Difficulties:

1. Appearance of non-existent neatness (e.g. negligence)

o While some torts protect specific types of interests, others are much more
general and, as such, protect a number of interests
o Protected interests can be defined in very broad terms – Steele – ‘property
interests of different sorts are protected against invasion of different types by
various torts. So negligence protects against damage to property; private
nuisance overlaps with negligence but more broadly protects against
interference with use and enjoyment of land [and]; trespass to land protects
against interference with possession of land and need not involve any
diminution in value at all’
2. Not all interferences with an individual’s interests are recognised – McFarlane v
Tayside Health Board – not all equal treatment due to public policy reasons
3. No general principle as to when particular conduct will or will not give rise to liability in
tort – must prove particular wrong

; Disparate aims ofTort law

 Achieve corrective justice – establishes and applies appropriate principles of justice as

to whether someone should be required to correct wrong – protects individual
retrospectively - ‘to define cases in which the law may justly hold one party liable to
compensate another’ – Fairchild v Glenhaven Funeral Services

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 Provide compensation – restore claimant to previous position had tort not occurred –
only when defendant morally responsible – fault, causation – ‘presence of insurance
goes someway to the destruction of the central fault principle itself’ – Conaghan &
Mansell – where no fault – tort law cannot help with compensation – social security –
compensation culture

 Deter bad behaviour – regulation, protects individual’s prospects

 Inquiry and/or publicity

Negligence

 ‘Failing to reach a standard set by law’ – focus on quality of defendant’s conduct

 Imposes duties to take reasonable care to ensure others are not adversely affected
by our actions:
1. D owed C a duty of care
2. D breached that duty of care
3. D’s breach caused C actual loss
4. No applicable defences
 Donoghue v Stevenson [1932] – sued manufacturer of ginger beer for decomposing
snail – 3:2 majority held claim could succeed – no legal relationship
o Potential for multiple cases to arise
o Establishes duty of care owed to ultimate consumer by manufacturer and
rejection of ‘privity fallacy’ – product liability
o Starting point for modern single tort of negligence
o Lord Atkin attempts to set down a test for when duties of care will arise – the
neighbour principle – ‘You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? The answer seems to be –
persons who are so closely and directly affected by my act that I ought
reasonably to have them in my contemplation as being so affected when I am
directing my mind to the acts or omissions which are called into questions’
 Ibbetson – ‘an ocean of liability for carelessly causing foreseeable harm, dotted with
islands of non-liability, rather than as a crowded archipelago of individual duty
situations’
 Anns v Merton LBC – since overruled – claimant alleged local authority negligently
failed to supervise building construction – crack in walls from foundations – held
‘material physical’ damage owed as opposed to economic loss – test of sufficient
relationship of proximity and no policy factors to reduce scope creates duty of care
o Haley v London Electricity Board – ‘reasonable’ qualifies ‘foreseeable’ –
reasonably foreseeable harm sufficient – blind person fell over trench barrier–
incrementalism
o Problem where first requirement fulfilled – nearly anything is foreseeable –
emphasis on second requirement of policy factors – expansion of negligence

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o Home Office v Dorset Yacht Co – failure to prevent harm caused by third party
negligence in allowing offenders to escape – must be ‘very likely to happen’ –
high foreseeability test – held duty of care
o Hill v Chief Constable of West Yorkshire – mother of serial killer victim – claimed
police negligence – held no duty of care – may lead to ‘detrimentally defensive’
officers, waste of public funds – policy factors
 Anns test overruled by Murphy v Brentwood District Council – but not universally
derided

Duty of Care

 Acts as gateway to recovering damages in claim – if D owes no duty of cae in respect

of the kind of loss suffered no liability incurred
 Courts have had great difficulty in setting down any single test which will determine
when a duty of care is owed to the claimant:
o Donoghue v Stevenson – the neighbour principle: take reasonable care to avoid
harming others whom it is reasonably foreseeably would be directly affected by
your actions
o Anns v Merton LBC – duty of care will arise wherever it is reasonably
foreseeable that others may be harmed by your carelessness, unless there are
policy reasons for denying or restricting such a duty
 Rejected in Caparo v Dickman
o Accounts published on company claimant bought shares on inaccurate – no
duty of care – economic loss caused by reliance not reasonable – limit liability
else floodgate
o Lord Bridge – ‘What emerges is that, in addition to the foreseeability of
damage, necessary ingredients in any situation giving rise to a duty of care are
that there should exist between the party owing the duty and the party to
whom it is owed a relationship characterised by the law as one of “proximity”
or “neighbourhood” and that the situation should be one in which the court
considers it fair, just and reasonable that the law should impose a duty of a
given scope upon the one party for the benefit of the other’ – attempt at
general principle
o ‘Whilst recognising ... the importance of the general principles common to the
whole field of negligence, I think the law has now moved in the direction of
attaching greater significance to the more traditional categorisation of distinct
and recognisable situations as guides to the existence, the scope and the
limits of the varied duties of care which the law imposes’ – Brennan J in
Australian case Sutherland Shire Council v Heyman – ‘incrementally and by
analogy with established categories’

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Three-stage test

 Reasonable foreseeability
o Claimant must fall within class of individuals at foreseeable risk by defendant’s
actions – not whole world – Haley v London Electricity Board
 Proximity
o ‘a description of circumstances from which, pragmatically, the courts conclude
that a duty of care exists’ – Caparo
o Little on precision of relationship that must exist – physical closeness not
enough
 Fair, just and reasonable
o Witting – ‘residual discretion as to whether or not a duty of care should be
recognised’ – policy?

Incremental and by analogy

 Duty of care arises where a prevision decision has found DoC – recognised in
analogous situation

Problems

 No relationship between tests – HoL not addressed issue

 What must be established to give rise to legal claim? – e.g. when will the imposition of
DoC be fair just and reasonable – law should tell us
 Lord Roskill – not precise definitions – ‘labels or phrases descriptive of the very
different factual situations’ – Lord Oliver – ‘facets of the same thing’
 ‘Incremental and by analogy’ approach is retrogressive – suggesting a return to the law
as it was pre-Donoghue – and, importantly, it is unjust – rejects need for test if
common law – outcome of case does not depend on legal principle
 3-steg test a ‘set of fairly blunt tools’ – Lord Walker in Customs and Excise
Commissioners v Barclays Bank plc

Status

 Relevant factors courts may refer to in cases – guides, not rules – Lord Oliver
 Binding authority of common law – difficulties where no precedent
 Marc Rich & Co. v. Bishop Rock Marine Co. Ltd (the Nicholas H) – novel case, no
incremental / analogous approach – pragmatic approach – cargo lost on sunk ship
that was given temporary repairs and declared safe – Lord Steyn acknowledged 3-
stage test, but then immediately endorsed CoA – ‘three so-called requirements for a
duty of care are not to be treated as wholly separate and distinct requirements but
rather as convenient and helpful approaches to the pragmatic question whether a
duty should be imposed in any given case. In the end whether the law does impose a
duty in any particular circumstances depends upon those circumstances’ – intense
focus of distinctive facts of case, then apply established legal principles

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o Balancing act of reasons for imposition of duty of care (foreseeability, harm,

promotes safe behaviour) and against (policy considerations, where it would be
undesirable and morally objectionable to cause others harm – ‘world is full of
harm – Lord Rodger)

 Acts/omissions – the law is generally more ready and willing to prohibit acts rather
than omissions – Sutradhar v Natural Environment Research Council – duty for what
they did do, not what they did not e.g. Bangladesh water supply
 Nature of harm – some not considered sufficiently serious to merit legal redress – e.g.
mere anxiety and upset (as opposed to recognised psychiatric illnesses) are, by
themselves, insufficient to ground a claim – Grieves v FT Everard & Sons
 A duty of care may be denied if considered that liability would have an undesirable
impact on defendant/others in his position – D v East Berkshire Community NHS Trust
 ‘Defensive’ practices – the fear that the threat of liability could lead people in the
defendant’s position to act overcautiously – Hill v Chief Constable of West Yorkshire
 Excessive and “crushing” liability – the fear that if defendant was held to owe duty of
care, may face overwhelming and crippling claims for compensation – Caparo
 Duty of care may also be denied if it is thought that liability may have an undesirable
impact on society (or a subset of it)
 Duty of care will also be denied if the court considers that it is not competent to
review the actions of the defendant.

Breach

 Cole v Davies-Gilbert – fallen below standard of care – Courts do not want to curtail
activities – failure to pay attention to interests of others
 Matter of law (required standard of care in the circumstances) and matter of fact –
the behaviour of the defendant
 Difficult to make generalisation – actual law limited in negligence
 Compensation Act 2006 – court looking at prevention desirable activity or discourage
undertaking functions in connection with

The basic test

 A test of reasonableness – standard of care not standard of perfection – Alderson –

‘omission to do something the reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do’
 ‘The man on the Clapham omnibus’ – ‘the anthropomorphic conception of justice’ –
can make reasonable mistakes
 Objective test – level of care and skill the activity requires, children etc. – law usually
imposes same standard of care on all
 Nettleship v Weston – driving lesson, mounted pavement and injured instructor – duty
of care same objective and personal standard owed by all drivers, no matter ability –

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decision seen as unjust by Salmon LJ – Cane – objective standard is law’s attempt to

strike fair balance between competing interests in freedom of action and personal
security – avoids chaos
 Mullin v Richards – relaxed in relation to children – reasonable behaviour in the
circumstances of the case for a child of the same age, intelligence and experience
(McHale v Watson)
 Common practice and special skills – conduct requires appropriate level of
competence as claimed profession (Rogers) – Bolam v Friern Hospital Management
Committee – patient given therapy without relaxant – conflicting medical views at time
– no breach – man exercising ‘the ordinary skill fo an ordinary competent man
exercising that particular art’ is sufficient – practice accepted as proper by responsible
body of medical men – Bolam criticised where opinion of judge as to reasonable
conduct
 Wilsher v Essex Area Health Authority – premature baby given too much oxygen,
developed eye condition – failed on causation grounds – conduct not expected by
reasonable man in position of his specialised skill – breach
 Bolitho v City & Hackney HA – died following complications with treatment – though
majority in favour of intubation, reasonable body of opinion agreed with conduct –
logically insupportable for a defendant to point to conduct of others in defence
Bolam Test:
o Has doctor acted in accordance to a practice accepted as proper by a
respectable body of medical opinion?
o If yes, is the practice, itself, ‘reasonable’ and ‘logical’?
 Mulheron – not for courts to consider two contrary bodies of opinion

Setting standard of care:

 Dependant on circumstances in which action took place – level of care required by

activity – lower where acting in ‘heat of moment’, emergency, rescue etc. – Marshall v
Ormond – car accident involving police – although same standard of care expected to
criminal as ordinary person, no breach, as care reasonable in circumstances, error of
judgment ≠ negligence
 Factors considered:
o Probability or risk of injury – Bolton v Stone – cricket ball over sloped fence –
high enough – not foreseeable risk – claimed fail, ‘risks habitually treated’
o Seriousness of injury – Paris v Stepney Borough Council – metal chip blinded
other eye – negligence in failing to provide safety goggles – obviously necessary
for these circumstances – condition known – liable
o Cost of taking precautions – Latmer v AEC Ltd – slipped on oily floor not
covered by sawdust – had done everything that could be reasonably expected
of them, the danger of injury to employee was not such as to impose further
costly, inconvenient measures
o Social value of activity - Watt v Hertfordshire County Council – fireman injured
travelling in back of unprepared lorry to emergency – claim failed – balance risk

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against end achieved – rescue justified considerable risk – Scout Association v

Barnes – adding enjoyment to game did not justify additional, foreseeable risk
– Marshall v Osmond
 Balancing act – ‘Learned Hand Test’ (not part of UK law) – liable if do not take
precautions of reasonable person
 The Wagon Mound (No 2) – large oil spillage, repairs caused fire which destroyed
wharf – held a real chance of fire – no justification for failure to take reasonable
precuations – fallen below standard of care
 Compensation Act 2006, s 1
 res ipsa loquitur meaning ‘the thing or accident speaks for itself’ – must be reasonable
evidence of negligence, accident arose from want of care – Erle CJ
o Accident needs to be ‘under the management of the defendant, or his
servants’, that is, defendant needs to have control of thing that caused injury
o Accident must be such as ‘in the ordinary course of things, does not happen if
those who have the management of the [things] use proper care’

Psychiatric harm

 Binding authority of precedent – rules covering claims for psychiatric injury

 Commentators agree law in relation to recovery for negligently inflicted psychiatric
harm unsatisfactory – courts responsibility – Lord Hoffman argues should be left for
Parliament
 Pure psychiatric damage:
o Injury through shock of what they perceive
o Not connected to physical injury
o Only recognised illnesses – not ‘mere’ grief, sorrow or distress – Grieves v FT
Everard & Sons – law cannot compensate for all suffering
o Weir – law has reflected distinction between duty to avoid injuring and
upsetting others by refusing damages for grief and granting recovery for
physical harm in only clear cases

 Policy reasons for limiting liability

o Evidential problems – difficulty to distinguish between grief and illness, doubts
on causation
o Effect on potential claimants – act as disincentive for rehabilitation – increased
availaibility of compensation
o ‘Floodgate’ concerns
o Potential unfairness on defendant – damage disproportionate to conduct

 Alcock v CC of South Yorkshire Police – relatives and friends of Hillsborough victims

suffered psychiatric harm as result of what they saw / fear happened – no claim – lack
of proximity gave no duty of care to police – Lord Oliver control mechanisms
established:
o Class of persons whose claim should be recognised – close ties of love and

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affection – evidence – widened to siblings and co-habitees - Robertson v Forth

Road Bridge Joint Board – close friends
o Proximity of the claimant to accident – did not rule out bystander if particularly
horrific – McLoughlin v O’Brien – could claim 2 hours after accident of husband
– Alcock 9 hours afterwards – courts more generous – Galli-Atkinson aftermath
made up of various components
o Means by which shock is caused – must be sudden, direct appreciation of
incident – live TV broadcast did not show injuries in accordance with policy – if
it had – claim
 Page v Smith – car accident triggered recurrence of ME in remission – no physical
injury – where reasonably foreseeable that negligence would cause physical harm –
also recover for psychiatric harm (even if not foreseeable)

 Primary victim
o Dulieu v White – threat of physical injury
o Page – ‘involved, indirectly or directly, as participant’ – criticised as restrictive
definition
o Narrowed from rescuers and ‘unwilling agents’ to those within range of
foreseeable physical danger
o Grieves v FT Everard & Sons – psychiatric reaction unforeseeable after exposure
to asbestos
 Secondary victim – ‘no more than the passive and unwilling witness of injury caused to
others’ – Alcock – lack of precision
 Increasing recognition of claimants outside these categories

 White v CC of South Yorkshire Police – police officers on duty suffered PTSD – calims
proceeded on basis of rescuers or employees – not in special position in relation to
recovery after decision – needed to establish themselves as primary victims as
secondary would fail under Alcock mechanisms – needed to show link to physical
harm (Bourhill v Young)– held employees may recover only ‘for pure psychiatric harm
if they were within the range of had a reasonable fear of foreseeable psychiatric injury’
– unjust to victim’s families – consideration
 Assumption of responsibility – Walker v Northumberland County Council – second
nervous breakdown due to social services workload – 2nd reasonably foreseeable –
breach
 Rescuers – courts traditionally favour rescuers – Chadwick v British Railways Board
claimed after train crash even though no close ties of affection
o Primary victim if ‘objectively exposed himself to danger or reasonably believed
he was doing so’ in White – extending scope to rescuers ‘unwarranted’ (Steyn)
– argument rejected – Lord Goff disagreed with necessity for physical danger

Causation

 Breach of duty caused loss

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Factual

 Defendant’s breach actually contributed to loss suffered

 ‘But for’ test – need not be only cause, may be other factors
 Barnett v Chelsea & Kensington Hospital – husband would have died even if he had
been treated promptly – no causation
 Balance of probabilities – ‘more likely than not’ he would have suffered loss given
breach – Wilsher v Essex Area Health Authority – excessive oxygen to baby one of
possible causes – not established on balance of probabilities – no liability
 Without causation – purely incidental loss given breach
 Exceptions (liable even where factual causation not proved):
o McGhee v National Coal Board – failure to provide showers a workplace to
wash off brick dust had ‘materially contributed’ to increased risk of dermatitis –
workplace exposure – innocent negligence
o Fairchild v Glenhaven Funeral Services – series of employers each negligently
exposed to asbestos – unable to prove which – held jointly liable in full for loss
– Civil Liability Act 1978 protects claimant, receives full payment – exception
does not apply where limits of scientific knowledge make t impossible to say
certainly what caused loss
 Defendant’s actions not only negligent but also clearly increased risk of
claimant suffering relevant harm
 Claimant did suffer relevant harm
 One of the defendants did in fact cause the harm
 Barker v Corus plc – exposure to asbestos included period of self-employment –
employers liable only for damages proportionate to exposure for which responsible –
proportionality – liable despite non-tortious possibility
o Extension of Fairchild where recover for losses – chance that neither employer
responsible
o Narrowing – limiting liability to protect defendant against actual risk – limited
to share of exposure – overturned by s 3 Compensation Act 2006
o BAI Limited v Durham – trigger judgment – pass burden on liability to insurers
o Sienkiewicz v Greif (UK) Ltd – included environmental exposure – negligent
exposure increased risk
 Every time C negligently exposed to asbestos, can claim and recover fully, regardless
of who else exposed and by how much

 Loss of chance
o Hotson v East Berks AHA – medical evidence showed 75% chance more likely
develop condition even without prompt treatment – could not claim hospitals’
negligence had deprived chance of avoiding condition – could have claimed for
25% if causation proved
o Gregg v Scott – doctor failed to accurately diagnose cancer in arm – doctor’s
act held not to be more likely than not he would not have been cured – held
loss of chance could not form basis of medical negligence claim

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 Arguments against allowing for claims for ‘loss of chance’

o Impact on all negligence claims – floodgates
o Cases more complex, statistical – expensive
o Majority of cases – inaccurate to say loss of chance
o Insurance reasons – problem with establishing liability of NHS
 Multiple sufficient causes (more than one tortfeasor)
o Baker v Willoughby – original defendant’s negligence continued to operate
after secondary event
o Jobling v Associated Dairies Ltd – held that when assessing damages, reduced
accordingly given everyday hardships of life – could be compensated up to
moment disease contracted and not after

Legal – defendant should bare loss – not too remote

 Remoteness
o Losses cannot be too remote / far removed from breach
o Only type of damage must be reasonably foreseeable, not extent / degree – all
losses that potentially flow from facts
o Hughes v Lord Advocate – foreseeable damage of personal injury would occur
from open hole, despite unforeseeable explosion – claim
o Courts define broadly depending on opinion of liability
o Limits – eggshell / thin skull rule – Smith v Leech Brain & Co Ltd – liable for full
consequences of negligence – need not matter than C susceptible to greater
level of harm
 Intervening Acts
o Novus actus interveniens – no recovery where chain of causation broken
o Knightley v Johns – negligent instruction by police officer after car incident
broke chain of causation for claimant’s injuries as a result of 2 nd accident
o Can be broken by natural occurrences or freely chosen actions of defendant /
third party – McKew v Holland – defence of contributory negligence
o Medical negligence will not typically break chain of causation as not freely
chosen – but if increases damage – Reaney v University Hospital of North
Staffrshsire NHS Trust
o Even freely chosen, unreasonable act may not intervene where duty of care
owed to prevent such actions – Dorset Yacht v Home Office
o Civil Liability (Contribution) Act 1978

Defences

Contributory Negligence

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 Partial defence – reduces damages

o Did C fail to exercise reasonable care for their own safety?
o Did this failure contribute to C’s damage?
o By what extent should C’s damages be reduced?
 Law Reform (Contributory Negligence) Act 1945 s 1(1) – damages shall be reduced to
such extent as the court thinks ‘just and equitable’ – regard to share of responsibility
of damage – fault defined under s 4 as ‘negligence, breach of statutory duty or other
act or omission which gives rise to a liability in tort’
 Jones v Livox Quarries Ltd – carelessness of riding on back of truck contributory –
damages reduced by 20%
 Froom v Butcher – not wearing seatbelt contributory – comparative blameworthiness –
damages reduced by 20% - CoA laid down guidelines in relation to reduction in
damages for failing to wear a seat belt – applied in relation to motorbike helmets –
Capps v Miller

Voluntary assumption of risk (consent)

 Complete defence – volenti no fit iniuria (no wrong will be done to the willing) – no
damages payable
o Consent to specific harm and risk of harm by negligence – Woolridge v Sumner
–specific factual harms
o Consent to exclusion of liability for any loss caused
 ICI v Shatwell – defence when explosion at quarry contrary to orders injured claimants
 Morris v Murray – consent to D flying plane when drunk- knew of risk but willingly
engaged in course of conduct – deemed consent (not consent to negligent flying)
 Application of voluntary assumption of risk in relation to passengers in road traffic
accidents – excluded under Road Traffic Act 1988 s 149(3)
 Consent by conduct, not just knowledge of risk – can be limited by public policy

Illegality

 Complete defence – denies recovery to certain claimants injured while committing

unlawful activities - ex turpi causa non oritur actio (no action may be founded on an
illegal act)
 Gray v Thames Trains Ltd – cannot recover in civil law from claimants sanction – claim
denied for loss of earnings before and after detention following PTSD stabbing
 Pitts v Hunt – illegality of drink-driving – Denning – injury caused directly by illegal act
he was undertaking – Balcom – inability of court to set standard of care owed by those
jointly engaged in criminal act – Bedlam – affront to public conscience

 Justifications
o Deterrence
o A wish not to condone or assist wrongdoers
o Belief that ‘bad people should get less’

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 Revill v Newbery – burglar shot – although occupier may se reasonable force to defend
property, shooting was ‘out of proportion to the threat involved’ (Neill LJ) –
contributory negligence – award of damages reduced by 2/3

Duty, remoteness and causation all devices by which the courts limit the range of liability for
negligence

TRESPASS TO THE PERSON

 Protects individual’s physical and personal integrity

 Relationship with Criminal law – Offences Against the Person Act 1861
o Criminal charge more likely
o No legal aid for civil claim
o Claimants potentially unaware of civil claim
o Financial compensation greater for tortious trespass to the person
o Burden of proof lower in civil courts – higher discrepancies of power
 Characteristics
o Must be committed intentionally
o Must cause direct and immediate harm
o Actioanble per se – without proof of loss
 Differences to negligence
o Trespass torts actionable per se – harm is violation of rights
o Can recover for some harms not recoverable in negligence e.g. mere distress
o Acting reasonably does not always prevent a tortious trespass to the person

Battery
 Collins v Wilcock – ‘the actual infliction of unlawful force on another person’
 No need to show actual harm caused or intention to harm
 Any unwanted contact (broad definition) – ‘an unwanted kiss’ – R v CC of Devon and
Cornwall, ex p Central Electricity Generating Board
 Intention – ambiguous meaning:
o Intentional conduct – willed, voluntary action – not physically manipulated
o Intentional consequences – contrast to recklessness – awareness of risk one’s
conduct will bring particular result – state of mind
 Denning in Letang v Cooper believed a clear distinction should be drawn between
trespass and negligence with regard to intention
 Iqbal v POA – ‘all forms of trespass require an intentional act. An act of negligence will
not suffice’ – includes subjective recklessness
 Intentional application
o Williams v Humphrey – deliberate intention to push into swimming pool even if
no intention to hurt
o Fagan v Metropolitan Police Commissioner – deliberately failing to move car

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from officer’s foot – intention, though original unintentional act of driving over
foot
 Of unlawful contact
o Wilson v Pringle – need for hostile touching
o Collins v Wilcock – replaced hostility with unacceptable ‘in the ordinary
conduct of general life’
o Re F – transcending ‘the bounds of lawfulness’ – medical case
 Without lawful justification or excuse
o Contributory negligence does not apply, but illegality and voluntary
assumption may apply for all trespass to the person torts
o Consent – most important defence – often used in medical treatment
 C agreed to contact
 At time of contact, C’s level of maturity intelligence and
understanding was sufficient enable C to decide to let the
contact
 C did not agree to contact because of force
 Chatterton v Gerson – once patient informed in broad terms of the
nature of the procedure intended and gives consent – negligence, no
longer trespass
 R v Williams – C cannot be misled or pressured into consent
 R v Brown – consent cannot be to contact contrary to public policy – no
good reason
 Refusal of consent amounts to battery – absolute right to refuse
medical treatment – Re T
 Mental Capacity Act 2005, s 5 – ‘person is not to be treated as being
unable to make a decision merely because he makes an unwise one’
o Necessity
 Where unable to consent, limited defence – Mental Capacity Act 2005 –
‘disturbance in the functioning of the mind or brain’ not allowing them
to understand, retain, weight or communicate information
 Best interests – Re F
o Self-defence
 Defensive contact must be proportionate – Cockroft v Smith
 Mistaken belief in a threat must be honestly and reasonably held –
Ashley v CC of West Sussex Police

Assault

 ‘An act which causes another person to apprehend the infliction of immediate,
unlawful force on their person’ – Collins v Wilcock
 Test of reasonableness – for every claim in battery, there will be a claim in assault

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 D must intend, or be careless as to C’s apprehension of the application of unlawful

force
 C must reasonably apprehend immediate unlawful force
o Stephens v Myers – parish council meeting, advanced with fists clenched,
prevented by others
o If unaware – no assault but battery
o If defendant changed mind – assault but no battery
o If prevented by others – assault but no battery
 Threat must be of immediate and direct force
o Stephens v Myers – must be ‘the means of carrying that threat into effect’
o Immediacy a question of fact – Mbasago v Logo Ltd
o R v Meade & Belt - traditionally ‘no words or singing are equivalent to an
assault’
o Threatening gesture may not be an assault, if words suggest not imminent –
Tuberville v Savage – conditional threats to avoid violence are assault
o R v Ireland – ‘no reason why something said should be incapable of causing
apprehension of immediate personal violence – no gesture now required –
liability depends on whether reasonable belief that threat will be carried out
immediately
 No lawful justification or excuse

False imprisonment

 Collins v Wilcock – ‘the unlawful imposition of constraints on another’s freedom of

movement from a particular place’
 Concerned with claimant’s right to freedom of movement – a complete restriction of
freedom or movement within a defined area unless expressly or impliedly authorised
by law, is necessary to render defendant liable
 May have claims in both battery and false imprisonment
 An actionable claim requires:
o D must intend restriction of freedom of movement
 R v Governor of Brockhill Prison, ex parte Evans (No 2)
 Thunderbirds episode not false imprisonment as no intention to deprive
of liberty
o Must be complete restriction
 Bird v Jones – complete freedom not restricted with movement of
pavement – needed ‘total restraint of liberty’
 Robinson v Balmoin New Ferry Co Ltd – if reasonable means of escape –
matter of contention
 Meering v Grohome-White Aviation – can be imprisoned without
knowledge for claim – supreme importance to liberty of individual,
should still remain actionable even without proof of special damage –
Murray v MoD

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o Must be done without lawful authorisation

 Defences of consent (Herd v Weerdale Steel, Coke and Coal Co Ltd –
contained against will but impliedly consented to not being let out
before end of shift), voluntary assumption of risk, necessity (Austin v UK
– depends on reason of imprisonment, only way to prevent imminent
breach of peace – lawful) apply
 Statutory authority – Lumba v Home Secretary – authorised to restrain
during arrest, exercised in breach of public law duties – incorrect
procedure

Intentional infliction of emotional / physical harm

Rule in Wilkinson v Downton [1897]

 Miscalculated joke that husband had died – ‘wilfully done an act calculated to cause
physical harm to the claimant … infringe her right to personal safety, and thereby in
fact caused physical harm to her’ – good cause of action, there being no justification
alleged for the act – no need for intentional harm – voluntary act over intended
consequence
 Wainwright v Home Office – strip search for visiting relatives in prison not carried out
appropriately – ‘[Wilkinson v Downton] does not provide a remedy for distress which
does not amount to recognised psychiatric injury and so far as there may be a tort of
intention under which such damage is recoverable, the necessary intention was not
established’ – not where only distress caused – consistent principles with negligence
maintained – recognised psychiatric harm
 Hoffmann – let tort identified in WvD ‘disappear beneath the surface of the law of
negligence’

Protection from Harassment Act 1947

 Enables claimant to claim from anxiety of harassment – statutory tort

 Enactment attracted media attention – response to public worry
 Section 1 – ‘(1) a person must not pursue a course of conduct(a) which amounts to
harassment of another, and(b) which he knows or ought to know amounts to
harassment of the other’ – alarming or causing distress – no need for intention –
actual knowledge
 Section 2-3 – criminal and civil remedies (injunctions)
 Outstanding issues:
o Defining a course of conduct – little guidance – Pratt v DPP
o Nature of conduct – test of gravity – Ferguson v British Gas
o ‘Reasonable harassment’
o Excluded actions – detention / prevention of crime legally permitted or where
‘reasonable’ in particular circumstances – Thomas v News Group Newspapers
Ltd
 Ferguson v British Gas – computer-generated bills and letters claiming unowed sums

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and threatening disconnection of gas supply – ‘oppressive and unacceptable conduct’

- claim
 Application:
o Maurice Kay LJ acknowledges not many workplaces will give rise to this liability
– more likely that remedy for high-handed, discriminatory misconduct by
employer will be more fitting in Employment Tribunal – including intimidating
public demonstrations

Vicarious Liability

 Mechanism that allows you to sue someone other than the tortfeasor
 Usually arises in employment context
 Can be used for negligence, trespass and criminal claims
 Secondary liability – not predicted on any wrongdoing of employer – employee
remains primarily liable
 More effective route to compensation for claimant
 Has arisen from ‘social convenience and rough justice’ as opposed to clear, legal
principle – Imperial Chemical Industries Ltd v Shatwell
 Lord Phillips – the ‘policy objective underlying vicarious liability is to ensure, insofar as
it is fair, just and reasonable, that liability for tortious wrong borne by a defendant’

Justifications

 Allocation of economic benefits and risks – employer who gains benefit of work, ought
to be responsible and bare burden of risks – role in creating risks
 Deep pockets – victim should seek compensation from more financial source than
tortfeasor
 Distributes loss – allows equitable distinction of loss – financial loss evenly spread
 Encourages good working practice – employers in best position to reduce likelihood of
future intentional wrongdoing – incentive

Establishing vicarious liability

 Employee must have committed tort

o Applies to common law torts and statutory tort of harassment (Majrowski v
Guy’s & Thomas’ NHS Trust – intimidating treatment from departmental
supervisor)
o If employee not liable, employer can never be responsible
 Must be an employer-employee relationship
o Position akin to employer – individual may not wish to be referred to as
employee for tax reasons but still acts in the role
o No exhaustive list compiled – Market Investigation Ltd v Social Security – ‘strict
rules [cannot] be laid down as to the relative weight which the various
considerations should carry in particular cases’

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 Control – how far employer is able not only to tell employee what to do
but also how to do it – Catholic Child Welfare Society
 Integration – how far the employee’s work is integrated into, and an
integral part of, the particular business
 Contract of employment
o Hawley v Luminar Leisure Ltd – door steward assault, not hired directly,
contracted with another company to provide staff – nightclub found liable – no
need to use services of 3rd company, control over actions
o Catholic Child Welfare Society v Institute of Brothers of Christian Schools –
victims of sexual assault from people employed at school by local authority –
both school and institute held vicariously liable as relationship akin to
employment
 Tort must be committed while the employee was acting in the course of employment
o Auld LJ, Majrowski – ‘So closely connected with his employment and/or is a
risk reasonably incidental to the employer’s business, that it is fair and just to
hold the employer vicariously liable’
o E.g. policeman who abandons post and commits offence – not in course of
employment
o Lister v Hesley Hall Ltd – sexually abused by housemaster at residential school –
school specialised in emotional difficulties employer who selected and
controlled housemaster – ‘occupying a position of trust’ – held so closely
connected – ‘inextricably interwoven with the carrying out by the
housemaster of his duties’
o Practically and theoretically problematic – N v CC of Merseyside Police – even if
wearing uniform, connection of employment not established
o Maga v Birmingham Roman Catholic Archdiocese Trustees – no clarity of
application of test – priest found to be in employment for sexual abuse

Land Torts

 Predate emergence of negligence – focus on consequences of an action

 Seek to protect an individual’s ability to use and enjoy their land freely without

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unwanted and unwarranted interference from others (rights based torts)

o Trespass to land
o Public nuisance
o Private nuisance
o Rylands v Fletcher
 All except RvF give rise to injunctions as remedies, damages for proven property
damage

Private Nuisance

 Winfield – ‘any unlawful interference with a person’s use or enjoyment of land or

some right over it’
 Mutual rights and obligations of neighbours with respect to one another in use of
property
 Indirect interferences e.g. noise, smell that are unreasonable and consequential
 Actionable only on proof of damage e.g. physical injury to property, interference with
use of land

1. Who can sue? – legal standing

o Hunter v Canary Wharf – ‘someone with proprietary interest in the land’ –
cannot be mere member / guest of land / employee
o Malone v Laskey – women injured in public convenience by electricity
generator on neighbour’s property – no proprietary interest, merely present
o Otherwise, would give rise to fundamental change and practical difficulties
o McKenna v British Aluminium Ltd – households alleged that factory emissions
had caused mental and physical distress – ‘who has lived in the house for some
time and had his enjoyment of the home interfered with’ may claim
2. Who can be sued and what for?
o Neighbours – not Donoghue v Stevenson – ‘within neighbouring vicinity’
o Creator or adopter of the nuisance
3. What can they sue for?
o Emanation – must move from one neighbour’s land to another’s
o Hunter v Canary Wharf Ltd – building of tower in London docklands
development by local residents – interference with TV reception –
found no movement (Lord Hope) – no claim
o Nearly all have to put up with certain annoyances – Lawson LJ – ‘intervention
by injunction is only justified when the irritating noise causes inconvenience
beyond what other occupiers in the neighbourhood can be expected to bear’
o An unreasonable use of their land
o Balance must be maintained between right of occupier and right of
neighbour – Sedleigh-Denfield v O’Callaghan – not like negligence
o Factors always considered:
o Intensity, frequency and duration of interference
o Kennway v Thompson – substantial e.g. night-time noise

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o Crown River Cruises v Kimbolton Fireworks – exception where physical

damage to property
o Factors sometimes considered (depending on type of claim)
o Nature of locality
o St Helen’s Smelting v Tipping – only applies where loss of amenity – area
used for industrial work – held to be material discomfort, despite
conventional use of land – primary use of land may change
o Baxter v Camden LBC – ‘occupiers of low cost, high density housing
must be expected to tolerate higher levels of noise from their
neighbours than other’s in more substantial and spacious premises’
o Sturges v Bridgman – ‘what would be a nuisance in Belgrave Sq would
not be necessarily be so in Bermondsey’
o Gillingham Borough Council v Medway (Chatham) Dock Co Ltd – nature
of locality had changed – locals could complain about disruption –
planning permission not a defence
o Wheeler v JJ Saunders Ltd – pig farm close to neighbours land to annoy
– actionable private nuisance
o Factors sometimes considered (depending on relevance to claim)
o Sensitivity of claimant
o Own sensitivity not enough for claim – Robinson v Kilvert – paper
damaged by floor heating – delicate trade cannot claim
o Once nuisance established – receive damages for all losses including
sensitivities – McKinnon v Walker
o Christie v Davey – actions undertaken with malice (letter sent to
defendant) – broad approach – specific damage not foreseeable
4. Defences
o Statutory authority
o Differs from planning permission as authorised by Parliament e.g.
development of oil refinery in Allen v Gulf Oil Refining Ltd
o 20 years unreasonable user
o Unreasonable to claim are continually putting up with nuisance (time
from C becomes aware of nuisance) – Sturges v Bridgman
o No defence of ‘coming to the nuisance’
o Miller v Jackson – refused to award injunction despite actionable
nuisance of cricket balls in garden – community interests outweighed
nuisance
o No defence of public benefit
o Dennis v Ministry of Defence

Remedies

 Injunctions – seek to prevent or stop a nuisance, usual remedy – burden on defendant

to prove why no injunction (Coventry v Lawrence)
 Damages – compensation

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In basic terms, the primary remedy for nuisance is an injunction. As we shall see, it is also

Rule in Rylands v Fletcher [1868]

 Protects occupier against interference due to an isolated escape from neighbour’s

land – not continual disturbance
 Rule for regulating use of land – emerged from industrial revolution
 Strict liability without fault even if reasonable use

1. Who can sue and be sued?

 C, where damage has been caused to C’s land by escape of a dangerous thing
from D’s land – in course of non-natural use of land
 Property damage only – no longer possible to claim in personal injury after
Transco – Bagshaw disagrees
 Not absolute liability – only foreseeable consequences of escape
 Rylands v Fletcher – when reservoir filled, flooded shafts and C’s mine –
Blackburn LJ – anything kept on land ‘likely to do mischief if it escapes … is prima
facie answerable for the damage which is the natural consequence of its escape’
 Something likely to do mischief
o Inexplicably linked with non-natural use
o ‘Exceptionally high risk of danger’ – Transco v Stockport Metroploitan Borough
Council – pipe carrying water to flats leaked and caused embankment to
collapse to expose gas line – claim failed – unforeseeable exceptionally high risk
– no ‘escape’, provision of piped water a natural land use
 Escape
o Read v Lyons – ‘from a place where D has occupation of control over land to a
place which is outside his control or occupation’
 Non-natural use of land
o Special use bringing with it increased danger to others – Rickards v Lothian
o Subject to different interpretations over time
o Cambridge Water Co Ltd v Eastern Counties Leather plc – large quantities of
solvent on floor of tannery seeped into soil and polluted drinking water –
‘almost classic case of non-natural use’ – claim failed on damage too remote
 Foreseeable damage
o Escape need not be foreseeable, merely damage – damage to floor in
Cambridge Waters foreseeable, but not to water supply – remoteness
o Conaghan & Mansell – ‘fundamental judicial unwillingness to openly
acknowledge the real issues and conflicts involved in a dispute’
 Defences
o All negligence defences apply
o C’s fault or implied / express consent – Ponting v Noakes – horse intruded on
land and died after poisonous food
o Act of stranger – Perry v Kendricks Transport Ltd – arson
o Act of God – Nichols v Marsland – damming of stream – ‘extraordinary act of

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nature’
o Contributory negligence can apply

Rylands v Fletcher today

 Overlaps between negligence and nuisance

 In Cambridge Water, ‘it would … lead to a more coherent body of common law
principles if the rule were to be regarded as essentially an extension of the law of
nuisance to isolated escapes from land
 Transco confirmed Rylands should be viewed as a sub-species of private nuisance –
rejected integration into negligence law, rejected more generous application of rule,
confirmed limitations with regard to personal injury
 Lord Hoffmann – ‘a mouse’

DEFAMATION

Background of Conflicting Rights

 Protects individual’s reputation from unjustified statements which may make people
think less of them – against slander
 Area of conflicting rights, similar to ECHR conflict between Articles 8 and 10:
o Right to freedom of speech – Parliamentary privilege
o Right for protection of repudiation – Jean-Paul Sartre – free to act, defining
who you are to yourself and the world – concept of identity – repudiation
attacks identity – tangible harm to make a defamatory statement – protect
construction of identity
 Alleged Imbalance in rights:
o Alleged to be too easy to sue in defamation – mere threat can deter speech –
chilling effect of the law
o Libel tourism – Securing the Protection of our Enduring and Established
Constitutional Heritage Act 2010 – passed by Congress prohibited the
defamation of published material – anything published and accessible to the
UK population gave rise to action fro defamation in UK courts
 Under old law:
o No legal aid available to claimant or defendant – part of public relations
 A new law:
o Defamation Act 2013 – applies only to statements made after Jan 2014 -
codified existing common law into statute and rebalanced confliction

1. IS STATEMENT DEFAMATORY?
 Defamation added to common law test
o Sim v Stretch – if words would ‘lower the claimant in the estimation of the
right-thinking members of society generally’ – objective test – does not need
evidential shunning or avoidance – reasonable person test

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o Berkoff v Burchill – words may be defamatory ‘if they hold [a person] up to

contempt, scorn, or ridicule or tend to exclude him from society’
 The right-thinking people
o Neither easily scandalised nor entirely impervious to being influenced in his
opinions of a person
o Byrne v Deane – ‘a good and worthy subject of the king’ and how they would
consider a statement – not defamatory statement against apparent reveal of
illegal gambling in golf club
 Regard to context
o Courts look at whole context in which the words appear, not just words
themselves – Church v MGN – newspaper argued not defamatory to publish a
proposal – context of circumstances of Charlotte Church’s proposal in a
drunken night held actions to be defamatory
 Vulgar abuse not defamation
o Berkoff v Burchill – ‘insults which do not diminish a man’s standing among
other people do not found an action for libel or slander’
 Innuendo
o Indirect statements that do not appear to be defamatory, but with background
information may be actionable
o Popular / False Innuendo
 True defamatory meaning of statement uncovered by reading between
the lines - Lewis v Daily Telegraph – ‘what the ordinary man, not avid
for scandal, would read into the words’
o Legal / True Innuendo
 Defamatory statement can be deciphered by facts or circumstances
known to those to whom the statement is published – The Lord
McAlpine of West Green v Sally Bercow (No 2) – held that reasonable
representative who follow the defendant would have interpreted
‘*innocent face*’ as ironic and insincere – reasonable reader who have
interpreted that Lord McAlpine was the accused senior Conservative
 Substantial Harm Threshold Test
o Defamation Act 2013 creates new hurdle – s 1(1) – ‘a statement is not
defamatory unless its publication has caused or is likely to cause serious harm
to the reputation of the claimant’ – ECHR Article 10 – subject to ‘restrictions’
and ‘protection of the reputation or rights of others’
o Thornton v Telegraph Media Group – unclear if s 1(1) has changed common law
o Cooke v MGN – ‘serious’ harm required more than ‘substantial’ harm – Bean J
held that Parliamentary statements were not binding and that ordinary
meaning of ‘serious harm’ should be applied when looking at facts of case –
hinted that evidence required where harm not obvious
Different forms of defamation:
 Libel

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o Permanent form – usually writing, but could include pictures, caricatures, signs
etc. – Monsoon v Tussauds Ltd – held that positioning of waxwork next to those
of murderers was defamation
 Slander
o Temporary or transitory form – usually speech but can include mimicry,
gestures and sign language – Youssopoff v Metro-Goldwyn-Mayer – so long as
not recorded in permanent form – right-thinking person test
o Need for special damage
 Material, quantifiable harm as result of slanderous statement –
ostracism not sufficient
 Unless likely to cause serious harm – distinction lessened by s 1(1) DA
2013
 Exceptions of ‘special damage’
a. Imputation of imprisonable criminal conduct (Jackson v Adams)
b. Imputation of unfitness in business
Who can sue?
 Individuals
o Only living, not dead people
 Companies
o Chilling effect on freedom of speech as great financial power could scare away
criticism
o South Hetton Coal Co v North-Eastern News Association – if business thought
badly of, can sue in defamation
o Jameel v Wall Street Journal Europe – HoL acknowledged potential chilling
effect, but held that damages ought to be nominal if no loss Parliament took
different view – s 1(2) DA 2013 – what is ‘serious financial harm’?
 Politicians
o Political parties and government bodies cannot
o Derbyshire CC v Times Newspapers – highest importance that democratically
elected governmental body, or indeed any governmental body, should be open
to uninhibited public criticism’
o Goldsmith v Bhoyrul – court held that rule also applied to political parties
o MPs can bring actions in defamation as individuals – absolute immunity from
being sued in libel for statements made in HoC – defence of privilege – fairness

2. DOES IT REFER TO THE CLAIMANT?

 To sue, the statement must refer to the claimant in a manner which makes him
identifiable as the subject of the statement (directly from context)
 Reasonable reader test
o Lord McAlpine v Bercow – relevant background information to identify – must
be published to people who knew of this information
 No need for intention to identify

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o Defamation not concerned with intention to harm an individual’s

reputation – Hulton v Jones – reasonable person would believe that it
would refer to the claimant
o Newstead v London Express Newspaper - intended to refer to a particular
person, but which could reasonably be understood as applying to another–
liability not based on reasonable care – defamation
 Balance where common name
 Impact of HRA 1998
o Following the HRA, unintentionally misidentification in photographs will
not found an action for defamation
o O’Shea v MGN – to be held liable would breach Article 10 rights – would
impose too great a burden if publishers had to check that every photo they
used did not look like someone else
 References to group or class
o No liability in defamation for a statement referring to a class or group of
people unless:
 The class is so small that it can be proved to refer to every group
member
 The statement directly refers to them directly as a member of that
group
o Knupffer v London Express Newspaper – defamation where intended to
encompass every member of the group or the words of the statement
identify the claimant specifically

3. HAS IT BEEN PUBLISHED?

 Must be communicated to a third party or ‘published’
 Potential for additional liability for publishing or communicating defamatory
statements made by another
 Unintentional Publication to a third party
o Test of reasonable foreseeability test of publication / communication
o Theaker v Richardson – reasonably foreseeable that another person (husband)
would open and read the letter - defamation
o Huth v Huth – not part of butler’s job to open letters addressed to master /
mistress – not reasonably foreseeable that he would do so
 Publishers, Republication & Multiple Publication Rule
o Common law ‘multiple publication rule’ – each fresh publication /
communication of the defamatory statement can potentially give rise to a new
action in defamation against
i. The person who repeated the statement, and
ii. Against the original maker of the statement
o Those who distribute defamatory material (e.g. library, booksellers and
newspaper stands) not liable so long as no knowledge of defamatory

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statement – prove they took reasonable care to ensure they did not publish
defamatory material
o Those who republish / communicate defamatory material made by another to
third parties (authors, editors, printers) can be liable even if no intention
 Vizetelly v Mudie’s Select Library – defendants lent and sold copies of
libellous book, the prima facie published it and was potentially liable in
defamation – defendant’s could have known and taken reasonable care
to ensure no libel material
 Bunt v Tilley – publisher requires knowing involvement in the process of
publication of the relevant words
 Tamiz v Google – defendants became publisher at point after made
aware of defamatory material they were hosting
o Liability of originator for repetition of defamatory statements by others
 Where a defamatory statement is repeated (as opposed to being
originally published) by certain others, this can increase the amount of
damages the original maker of the statement has to pay if it is
defamatory
 A person will be liable for such repetitions if
a. They authorised the repetition (e.g. holding a news
conference), or
b. The recipient has a moral or legal duty to repeat them, or
c. It is reasonably foreseeable that there is a “significant
risk” the comments will be repeated.
 Those who repeat such statements can be protected from being sued if
they can claim the defences of qualified privilege or the s 4 Public
Interest Defence under the Defamation Act 2013, or if they took
reasonable care to ensure it was not defamatory – Slipper v BBC
o Republication (repetition) of defamatory statements by the originator
 This element of the multiple publication rule concerns the liability of
original maker of statement for archive publication
 Duke of Brunswick v Harmer – selling of the back issue constituted a
new publication of the article
 Loutchansky v Times Newspapers (No. 2, 3 & 5) – impact of rule could
be minimised by attaching note of warning the information may be false
 This element to the rule has been altered by s 8 Defamation Act 2013
 Now, a person cannot be sued repeatedly in defamation if they
subsequently republished in “substantially the same” form a
defamatory statement that they originally published.
 Joint Committee on the Defamation Bill wanted protection for
anyone who republished a defamatory statement in
substantially the same form a year after its original publication
 Protection of freedom of speech?
4. DO ANY DEFENCES APPLY?
 Truth

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o Nature of defence
 Replaces and renames the former common law defence of justification
 For the defendant to prove the truth
 Contrary to general approach of the common law to place the burden of
proving the main elements of a claim upon the claimant
o Defamation Act 2013, s 2:
 It is a defence to an action for defamation for the defendant to show
that the imputation conveyed by the statement complained of is
substantially true
 Not defence to say ‘reasonable care to publish truth’
 Chase v NGN – the essential or substantial truth of the sting of
the libel
 Grobbelaar v NGN – defendants could not prove that he had
taken bribes to fix games – whole statement not true
o Multiple allegations / statements
 Defamation Act 2013 s 2(3)
 Henry v BBC – defence of truth if not all imputations are true
o Effect on common law principles and Freedom of speech
 Section 2 codifies and abolishes the common law
 Burden of proof remains on defendant, not changed by the act
o Allegations of criminal conduct
 Unchanged s 8 Rehabilitation of Offenders Act 1974 – a person who
‘maliciously’ publishes details of another’s spent convictions cannot rely
on the defence of justification / truth
 Honest Opinion
o Previously known as ‘Fair of Honest Comment’ – altered by section 3 of
Defamation Act 2013
o Under old common law – only protected statements on matters of public
interest – this was removed
o 3 conditions for this defence to apply
I. Statement of opinion about facts – not a statement of facts – British
Chiropractic Association v Singh – no respectable or worthwhile
evidence – statement of opinion on facts
II. Indication of the Basis of Opinion – facts to which the opinion is
addressed must be sufficiently identified
III. A Basis in Fact – defendant must prove that there is a true factual basis
to form a sufficient basis for the comment – only a sufficient basis
required – section 3(4) DA 2013
o Opinion must be honestly held – repeats the common law
o Repetition – section 3(6) protects media reports of the opinions of others as
there could still be liability
o Contrast with common law – not needed to be in public interest – widens
scope of the defence – promotes freedom of speech

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o A lot of conditions to satisfy – reputation importance

o As with the defence of justification – section 3(8), ‘the common law defence of
fair comment is abolished’
 Privilege
o Maker of a privileged statement cannot be sued even if defamatory
o This defence focuses on the context in which statement is made
o Absolute privilege
 Gives complete protection from a defamatory action to specific
proceedings
 Parliamentary privilege under the Bill of Rights 1688
 Reports, papers, votes and proceedings ordered to be published
by either House of Parliament
 Things said in Judicial Proceedings
 Reports of Court Proceedings in UK
 Communication between certain officers of the State
 Protection to MPs
o Qualified Privilege
 Categories of communication to which qualified privilege can apply are
not closed and are determined by the courts – governed by common
law
 Reynolds v Times Newspapers:
I. Reciprocity of duty or interest – must be interest in both
distributing and receiving interest e.g. reporting a crime
II. Public interest in frank and uninhibited communication in the
situation in question – public interest
III. Absence of malice – statement cannot be primarily motivated by
malice as a wrongful motive or intention – Horrocks v Lowe –
privilege can still apply if statement honestly and not recklessly
believed to be true even if malice present
 Old – publication to the public interest for media – ‘Reynolds defence’
 Lord Nicholls in Reynolds v Times Newspapers – Press
publication would be covered by qualified privilege because
publication was in the public interest and if the publication was
in accordance with the standard of responsible journalism
 10 non-exhaustive factors determining it was “responsible
journalism”:
I. The seriousness of the allegation
II. The nature of the information
III. The source of the information
IV. The steps taken to verify the information
V. The status of the information
VI. The urgency of the matter
VII. Whether comment was sought from the plaintiff
VIII. Whether the article contained the plaintiff's side of the story

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IX. The tone of the article

X. The circumstances of the publication, including the timing
Criticised as did not balance the openness and flexibility against

the uncertainty of protection - focus on professional media –
costs – chilling effect
 Amended by the Defamation Act 2013, section 4.
o Requirement for defendant to show they acted
‘responsibly’ replaced with requirement that the editor
show they reasonably believed the publishing the
statement was in public interest
o ‘Reasonable belief’ test leaves subjective element
o 1o original requirements abandoned
 Lord McNally noted that removal of list may lead to uncertainty,
even though it reduced the cost of lawyers arguing each of 10
points
 Offer of Amends
o Defamation Act 1996, section 2 – can offer to make amends by publishing a
correction, and apology and to pay compensation and/or costs
o Only where unintentional defamation – where honestly and reasonably
believed to be true or mistaken identity
o Defence can be defeated if claimant shows the defendant knew that statement
reasonably believed to be false
 Admit wrong
 Offer in writing to make suitable correction and apology
 Offer to publish the correction and apology in a manner that is
reasonable and practicable in the circumstances (e.g. in as prominent
position as original defamatory statement)
 Offer to pay the claimant such compensation (if any) and such costs as
may be agreed or determined by the courts
o If offer not accepted – defendant can choose to rely on an unaccepted offer of
amends as a defence to the defamation act – cannot rely on another defence
as well
 Innocent Dissemination
o Mere disseminators not liable if they did not know statement contained
defamatory material and had taken reasonable care to ensure it was not
defamatory
o Websites – Defamation Act 2013, section 5 gives new defence for operators of
websites – underlying common law principle remains
 Provided operator responds to a notice of complaint in accordance with
the requirements of Schedule 1 of the regulations – defence to
defamation
o The Defamation (Operators of Websites) Regulations 2013:

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 To have defence, website must contact the poster and give them the
details of the complaint and EITHER:
 If the poster does not want the statement taken down, obtain
the poster’s name and address and supply it to the complainant,
or
 If the poster wants the statement taken down, take it down.
(Website does not have to give poster’s contact details to
complainant), or
 If the poster does not supply their name and address, the
website must take the post down.
o Section 10, Defamation Act 2013 – action against a person not the author,
editor etc.
 S 10(1) A court does not have jurisdiction to hear and determine an
action for defamation brought against a person who was not the
author, editor or [the commercial] publisher of the statement
complained of unless the court is satisfied that it is not reasonably
practicable for an action to be brought against the author, editor or
publisher
 s 13 Defamation Act 2013 – where an action is successful against a
primary publisher, the court can order a secondary publisher or
website operator to stop publishing/distributing the statement
 Other Defences
o Section 6 – peer-reviewed statement in scientific or academic journal
o Section 7 – reports protected by privilege

5. REMEDIES
 Damages
o Tortious
o To compensate for material loss
o Vindicate and repair the claimant’s reputation
o Punish defendant and deter defamation generally
 Defamation Act 2013, section 11, removes the presumption in favour of a jury trial
 Injunctions
o Interim injection prior to trial
o Prevent repetition

6. TRIAL PROCEDURE
 Action against a person not domiciled in the UK or a Member State etc.
o s.9(1) This section applies to an action for defamation against a person who is
not domiciled:
 In the United Kingdom
 In another Member State; or

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 In a state which is for the time being a contracting party to the Lugano
Convention
o (2) A court does not have jurisdiction to hear and determine an action to
which this section applies unless the court is satisfied that, of all the places in
which the statement complained of has been published, England and Wales is
clearly the most appropriate place in which to bring an action in respect of
the statement
 Juries
o Pre-Defamation Act 2013
 Presumption that cases would be heard by a Judge and Jury – ‘Right
thinking person’ – damages
o Section 11, Defamation Act 2013
 “Trial to be without a jury unless the court orders otherwise”
 Reverses Presumption, no guidance – Yeo v Times Newspapers Ltd

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