Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,

Ontario, Canada.

Tort
Tort means wrong, comes from French word.
Also traced to the Latin word – Tortum (wrongful)
Breach of some duty, has ‘civil cause of action’ and civil court award compensation.

First reported case:

English case Boulton Vs Hardy 1597

It is a civil wrong, independent of contract = the Indian author Ratanlal & Dhirajlal also
supported by Salmond.

Case: “Keeton & Keeton”

Held: tort law is the body of law concerned with granting or denying claims of
individuals against each other for award of damage or legal relief.

Nature:
Salmond dictum:
There are certain specific torts and all other wrongs fall outside the law of torts. It is
supported by Sir Fredrick Pollock.

As per Pollock:
It is consist of “neat set of pigeon-holes’ each containing a specific tort. This theory is
known as ‘pigeon-hole theory’.

Later on,
Other writers criticized that if the theory is accepted, the categories of liability in tort
would be closed.

On the other hand, Sir Winfield: (has given a wide sense)

All injuries done to another person are tort, unless there is some justification recognized
by the law. It is also supported by the case ‘Skinner vs Shaw’.

On the other hand, however, it is also pointed out that the courts have, from time to time,
recognized ‘new’ torts namely – tort to which to specific names had been given before.

Conclusion:
Salmond theory is the narrow practical point of view and would be acceptable. On the
other hand, Winfield’s theory appears to be sounder.

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

Essentials of tort:

One has to proof five essential things such as:

1. civil wrong;
2. breach of right in rem, breach of right in personam;
3. breach of rights which is defined by law;
4. when it has common law action and
5. remedy.

Distinction between tort and breach of contract:

Tort
Nature Breach of right in rem
Duty Duty imposed by the law
Consent Inflicted against the will and
without the consent of the other
parties
Privity Tort has no privity, any body has
right to go before the court if his
right is infringed.
Damage Measure of damage in not limited
or fixed with precision i.e. with
care and aggrieved may go to the
court for unliquidated damages.
Exemplary Exemplary damage can be given
Damage in a fit cases
Motive Motive is considerable
Breach of contract
Breach of right in personam
Duty is fixed by the parties’ free
consent or will.
The obligation is founded on the
consent of the parties.
Contract must exist privity between
parties.
Damage determined either by an
agreement between the parties or
according to fixed legal principles.
Exemplary damages are normally not
awarded
The breach of contract, the motive of
defendant is not immaterial

Element of tort:
There are three ingredients of which constitute a tort:
1. a wrongful act done by defendant –
Wrongful act invade three private rights
a) good reputation;
b) property;
c) right of bodily safety and freedom.

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

Wrongful act means-

-a moral or natural wrong;
- legal wrong (legal justice/violation of law)
(a mere loss without the violation of a legal rights does not raise the right to cause of
action)

2. legal remedy (also include injunction and specific restitution of property)

3. legal damage to the plaintiff

Two types of injuria:

1) damnum sine injuria and (damage without legal right)
2) injuria sine damnum (perceptible damage do to necessary)

Damnum sine injuria

Case: Gloucester Grammer School (1410)

Fact: D, a school master, set-up a rival school but if defendant interfered with the
plaintiff---------

Similar case: Moghul steamship co. vs Mc Gregor (1892)

Held: party can make a positive competition in a competitive market. Here in this case a
ship-owner has given lowest price freight offered to the customer this is why opposite
party get lost his customer.

Case: Chasemore vs Richards (1895) watermill case:

Fact: P owner of an ancient watermill for more than 60 years, this mill enjoying the flow
of a river for the purpose of working the mill.
The local board authority (D) sank a well in their land; with the result that percolating did
not get for the helping of plaintiff.

Injuria Sine Damnum:

Case: Ashby vs White (1703)
Fact: P is a voter, D was a returning offer refuse to cast the P’s vote.

Similar case: Maryett vs Williams (1830)

Fact: P is a bank client, even though he has sufficient money in his account however, he
made refuse to withdraw money against his account.

Ubi Jus Ibi Remedium (every wrongful act has remedy)

Ex Turpi Causa Non Oritur Actio (on the immoral basis no one can file sue)

Case: Hegarty vs Shine (1878)

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

Fact: D carries sexual disease in his body and intercourse with his lover P and is infected.
Here as per the maxim P is not entitled to sue against her lover.

Malice:
Malice is very simple word but vague and ambiguous. It can be used in two quite
different senses:
1. Ordinary sense:
Means – “ill will” it also called -Express malice
-Actual malice
-Malice in fact

Case: Moghul Steamship vs Mcgregor & Com (1885)

Held: when some one is legitimately entitled for to do, nobody can claim that this act is
malicious.

2. Malice in law: (implied malice)

Means –wrongful act done intentionally without just cause of excuse, even though his
acts ignorantly or innocently or even with good motive.

Case: Quinn vs Leathem (1901)

Fact: A, without excuse induced B’s workmen to discontinue their work and breach
of their contract with B. A induced it for prompted by good motive for both B and B’s
worker. A is liable for malice.

Intention:
(Intention is essential however, with some exception) the exceptions are:
R vs Harvey (1823)
D. P. P. vs Smith (1961)
Fact: D possesses his gun before the P’s dog as a play. However, suddenly gun fired and
dog is died. D is liable.

Wilkinson vs Downton (1892)

Fact: D played a practical joke by falsely informing the P that his husband done a serious
accident whereby both of his legs were broken. P shock and she felt serious ill.
Here D is liable for his joke.

Defenses to an action in tort:

The following particular situations can be addressed as a good defense:
1. Act of state:
It is applicable in the following cases i.e.
a) done against an alien
b) done by servant of the crown

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

c) an act is either previously authorized or subsequently ratified by crown on

the state policy
d) constitute a wrong but being done under state policy and not cognizable by
an municipal court

3. Judicial Act: no one can go to the court.

4. Quasi-Judicial Acts: such as autonomous body i.e. university, courts, society,

clubs, corporation etc.
However, the quasi-judicial Acts have to follow the following:
i) rules of natural justice;
ii) follows particular statutory or conventional rules.

5. Executive Acts: an act of which due to executive purpose, no one can go to court
of it. However, if an executive body purposely or maliciously arrests a person or
takes his goods, than executive will be liable.

6. Acts done under parental or quasi-parental authority: quasi-parental mean

teacher, husband on his wife, muster on his servant, mental doctor on his patient.
Case: Rex vs Newport (Salop) Justices (1929)
Fact: sehool student done something which is contrary to the school regulations, like,
smoking. The school master banned him and punished. Result is quit reasonable.

7. Authorities of Necessary:
Case: Kirk vs Gregory (1876)
Fact: a patient were in serious situation however, the other member of the family
enjoying themselves. When the patient were died one of the member -----------

Case: Aldworth vs Steward (1866)

Fact: the master of a vassel on the high sea has discretionary powers over the crew /
passengers. And that power based on necessary and limit.
In the case for protect of vessel master can give up some goods on the sea. Gregson
vs Gilbert (1783)

8. Statutory authority: no action can be taken against statutory authority.

Case: Vaughan vs Taff Vale Rly (1860)
Fact: D is railway authority had right to use the P land. Once upon a day from the
railway engine sparked fire and P’s wood store house was damaged. The railway
authority was careful about his engine and it was impossible to control the inadvertent
incident.
Decision: the railway authority was not liable.

Similar case: Hammersmith Ry. Com. Vs Brand (1869)

Fact: D is railway authority.
P is owner of land, claim against railway authority that sound of railway, emission of
various gas etc. his land’s market price is going reduced.

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

Held: railway authority is not liable.

9. Volenti Non Fit Injuria: (where given leave & license)

There is no tort have been made where one has given his consent expressly or
impliedly.
Case: Cutler vs United Dairies (1933)
Fact: D’s horse attached with a vans. P has seen that it running past his house without
driver/attendance. It entered the field adjoining (damage) the P’s garden. The
driver/attendance had followed it, and trying to pacify (control) it. However, the horse
was restive (uncontrolled). The attendance shouted for help. P wants to attempt to
hold the horse, however, it threw him on the ground causing him injuries, P has gone
court for remedy.
Held: competent court has dismissed the suit arguing that the P has known the
possible danger of it.

Similarly, Hall vs Brooklands Auto-Racing Club (1933)

Fact: A racing car shot over the railing and killed two spectators.
Held: court decided that the racer was not neglected. Spectators were also known
about the danger of it. So D is not liable.

The maxim (Volenti Non Fit Injuria) has four exceptions: the exceptions at large in the
following-
i) where no consent has been given;

ii) where breach the statutory duty;

iii) in case of rescuing i.e.

Case: Brandon vs Osborne (1914) {as known as Skylight case}
Fact: P (husband and wife) as a shop customers enter into a shop. A contractor has
been fitting Skylight in the roof. However, skylight has broken down on the husband
when repairing the roof on the negligence of contractor. Wife was standing very close
to the husband even though wife was not touched by the falling glass. However, she
reasonably beliving that her husband to be in danger, she clutched his arm and tried to
pull him from the spot and also she was harm / injured.

Held: here court stated that even though wife has knowledge the possible danger
however, due to pull of her husband causing harm. So there for it is not Volenti Non
Fit Injuria so she has legitimate right to get redress form D.

iv) in case of negligence

Case: Haynes vs Harwood 1935 (police constable case)
Fact: D’s hors negligently left / keep intendance in a crowed street. A boy, threw a
stone at them, P (constable) was on duty inside the police box, saw that persons were
grave danger, run out and stopped the horse at a cost and were severely injured.
Court held: notwithstanding, the P has known the possible danger of it however it
was his duty to save the people. So P is entitled to get remedy against D.

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

10. Inevitable accident:

Case: Holmes vs Mather (1875) {runway horse case}
Fact: D’s horse was driven by the servant in the public high way. However, a dog is
burking at the horse cart and horse became uncontrolled by driver even though driver
tried to guide them as best as he could. At last he failed to control horse and
subsequently horse truck the balcony of the P’s house.
Held: court held that the D is not liable. As it was an inevitable accident.

However, inevitable accident may be caused by

- factors beyond the control of man ( force of nature)
- factors within human control ( independent in nature)

Case: Brown vs Kendall (1850) {fighting dogs’ case)

Fact: Both P & D’s dogs were fighting.
D was beating them in order to get them separate and P is standing behind and
looking it. Accidentally, D hit P’s eyes.
Held: D is not liable.

11. Mistake of fact: it can be traced two point of view

a) mistake of law – will be liable
b) mistake of fact – ributable

12. Exercise of common right: case reference of Damnum Sine Injuria.

13. Private defense: ( can be considered SS: 96 to 107 of the Penal Code, 1860)
Case: Morris vs Nugen (1836)
Fact: D shot P’s dog when it attempt to bite him. Here D would be liable. However,
where dogs has been biting him and causing injured and than shot to dog may amount
to be a good privet defense.

14. Plaintiff wrong – doer:

Notwithstanding, however, P get compensation even though he is a wrong - doer.
Case: Bird vs Holbrook (1828) {spring gun case)
Fact: P climbed himself on D wall in pursuit of a fowl. However, D put a spring gun
in its garden of which P was not noticed. Suddenly the spring gun is fired and P
injured.
Held: D is liable.

15. Acts causing slight harm:

Fact: A is driving along a dusty road at a good speed, the wheels of the motor-car
throw a little dust on the clothes of B. here A is not liable.

16. Act of God:

Case: Greenock Corporation vs Caledonian Rly (1917)

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

Held: Human beings have no authority on the natural act.

Trespass
There are three types of trespass
1. Trespass to Person;
2. Trespass to Land and
3. Trespass to Goods
Trespass to Person
Trespass to person may by the following way
i) assault;
ii) battery
iii) false imprisonment

Assault:
An attempt to do a corporal hurt to another. However,
- mere verbal threat is not assault;
- mere threat considering only of gestures not assault.

But immediate intention and a present ability to carry it out is assault.

Ingredients:
The following ingredients have to prove for assault-
a) that there was some gesture or preparation which constituted a threat of force;
b) that the gesture or preparation was such as to cause a reasonable apprehension of
force;
c) that there was a present ostensible ability on the defendant’s part to carry out
threat into execution immediately;
Case: R vs James (1844)
Fact: A points a gun at B who thinks that the gun is loaded. In fact A knows that the gun
is not loaded.
Held: A has committed offence.

Case: A.C. Cama vs H. F. Morgan (1864)

Fact: A abuses B, who takes out his sword and says to A that if you use that a slung in the
next than I will kill you.
Held: No assault.

Battery:
Battery is the actual striking of another person or touching him in a rude, angry or
insolent manner.

Case: Cole vs Turner (1704)

Remarks by the case in the following-
First: touching of another in anger is a battery;

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

Second: where two or more meet in a narrow passage, without any violence or design of
harm and one touched the other gently will not be battery.
Third: if any of them violence against the other, with rudely, inordinately is battery.

Case: Coward vs Baddelely (1854)

Fact: A bystander (onlooker) touched a fireman on his arm to attract his attention to
another part of a building where a fire was raging; on a suit by fireman for battery court
held that there is no battery.

Ingredients:
The following ingredients have to proof:
i) the use of force to him either to his body or throwing water on him or pushing
or slapping;
ii) the use of force was not intentionally, thus touching a man merely to call his
attention, or jostling one another in crowd is not battery.

Defense against action for assault and battery:

 self – defense;
 repelling (prevent) trespass repel;
 volenti non fit injuria
 parental or quasi-parental authority;
 inevitable accident;
 legal process;
 protect of public function.

False imprisonment:
False imprisonment called false arrest, total restrain of the liberty; it may however short
time without lawful justification.

Ingredients for false imprisonment:

1) A complete deprivation of liberty;
Case: Bird vs Jones (1845)
Fact: in order to observe a boat-race P went to climb over a bridge corner / site. However,
spectator only allowed using the bridge. P was insisting him to back from the corner and
not allowed to climb there. P filed sues against police for false imprisonment.
Court held: imprisonment has to be a complete deprivation of liberty. However, there was
no complete deprivation. He could enjoy the race in alternative way.

2. Imprison may at any place;

Case: Merring vs Graham White Aviation Co Ltd (1919)
Fact: P was suspected of theft, and asked by two aviation officer and accompany them by
Defendant Company’s officer, where he was kept under guard.
Held: defendant is liable.

4. It need not actual proof for force, enough for show threat of obstacle;
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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
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Case: Herd vs Weardale (1950) (here P were volenti non fit injuria)

5. Imprisonment has to be lawful.

Trespass to Land:
Case: Harrisons vs Duke of Rutland (1893)
Decision: a public road is to be used for passage. A person using it for any other purpose,
say for loitering (waiting), commit trespass.

Trespass to land may be committed in one of the following three ways:

1. Trespass by wrongful entry;
a) the slightest crossing of the boundary if sufficient
b) putting one’s hand through another’s window
c) sitting on a fence

2. Trespass by one, stay in the other land illegitimately;

Suppose, some one enters into cinema with ticket, he would be permitted only for few
hours; keep himself more inside the hall is trespass.

3. Trespass by placing things to the other land

a) if cross the boundary of the plaintiff’s land;
b) throwing a stone upon the plaintiff’s land;
c) pilling rubbish against his wall.

In an action for trespass:

The plaintiff must prove the following two things:
1. That he was in actual possession of the land during trespass, but not only a user. It
is immaterial whether his possession is rightful or wrongful; (even an tenant can
claim for trespass)
2. Direct interference with the possession of his land, though there was no need to
prove actual damage.

Defense by defendant:
1. Prescription:
D can establish a prescription right on the land that he regularly uses of it so long without
any obstacle.

2. Leave & licence: ( volenti non fit injuria)

Case: Hurst vs Picture Theaters Ltd (1915)
Plaintiff entered into a cinema Hall with ticket but the Hall authority forcibly get him out
from this hall, hall authority think that P has no ticket.
Decision: D is liable.

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
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3. Authority of law

4. Act of public necessity

5. Self- defense

6. Abatement of nuisance

7. Special property of easement

Trespass to Goods:
If something seizure or removal without permison

The Plaintiff has to proof the following two things:

1. P was in possession, this possession may be constructive or actual;
2. D done wrongfully distributed of P’s possession

Defense of Defendant:
1. self-defense / defense of property;
2. Obedience to a legal authority;
3. Negligent or wrongful act of plaintiff himself;
4. Reception or retaking
5. Exercise of one’s absolute rights;
6. Jus tertii ( none of the trespass)

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
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Defamation:
The law of defamation is concerned with protecting the reputation of an individual, co-
operation or other legal person from the harm caused by the communication of untrue
statements to a third party. Skolnick has interestingly described defamation as a social
tort.

Definition:
Defamation is generally defined as:

The publication of a false statement which reflects on a person’s reputation and which
thereby tends to lower him in the estimation of right-thinking member of the society.
(Sim vs Stretch)

Types of defamation:
There are two types of defamation. These are:
1) Libel;
2) Slander.

Difference between Libel and Slander

Libel
Any defamatory statement in a permanent form is a libel. (Monsoon vs Tussauds)

Libel is actionable per se.

(Actionable per se means- claimant’s need not to show that he has suffered special
damages by defendant’s defamatory statements).

Permanent form (Libel)

1) Printed and written words are treated as libel.
2) The article in the newspaper will constitute a libel.
3) Television and broadcasts are treated as libel. (Broadcasting Act, 1970, UK).
4) Public theatrical performances are treated as libel. (Theatre Act, 1980).
5) Films, pictures, cartoons or wax effigy are treated as libel.
6) Internet statement also treated as libel.

Slander
Any defamatory statement in a transient (temporary) form is a slander.
Slander is not actionable per se.

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

(Not actionable per se means- claimants must need to show that he has suffered special
damages by defendant’s defamatory statement).

However, there are four exceptional cases where slander is actionable per se. they are:
1) Imputation (complain) of a criminal offence punishable by imprisonment.
(Hellwig vs Mitchell)
2) Imputation that the claimant is suffering from an infectious or contagious disease,
for example, leprosy or venereal disease. (Bloodworth vs Gray)
3) Imputation of unchastity or adultery to any women or girl. (Kerr vs Kennedy;
Yousoupoff vs MGM Pictures Ltd)
4) Imputation of unfitness or incompetence in any profession or trade (S: 2
Defamation Act, 1952, UK)

Transient or temporary form (slander)

1) Spoken words or oral statement (which are not recorded are treated as slander).
2) Gestures are treated as slander.

Who can sue?

Although a trading corporation may sue in order to protect its reputation, it has been held
that

= local and central organs of government are, in the interests of free speech, are
precluded (prevent) from doing so. (Derbyshire County Council vs Times Newspaper
Ltd)

= the same principle applies to political parties (Goldsmith vs Bhoyrul)

And only living person can sue or defend an action in defamation (Hawkins)

Element to prove:
In order to establish the tort of defamation according toYoussoupoff, the plaintiff must
show that:
a) The statements were published: there is publication where the statement made
known to third party (Bata vs Bata).
b) The statements referred to the plaintiff: the statement published by the defendant
must be shown to have referred to the claimant.
c) The statements were defamatory: as a basic definition of a defamatory statement,
that which was formulated by Lord Atkin in Sim vs Stretch, is a good starting
point:
“ a statement which tends to lower the claimant in the estimation which tends to
lower the claimant in the estimation of right thinking members of society generally,
and in particular to cause him to be regarded with feelings of hearted, contempt,
ridicule, fear and disesteem” (Lewis vs Daily Telegraph Ltd).

Defenses:
Let us now consider any defenses which are available to defendant:

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

1) Justification or Truth: Defendant could rely on the defense of justification, i.e.

the statement is true. The defendant must prove that the statement is true in
substance rather than in each and every respect (Alexander vs North Eastern
Railway)
S: 5 of the Defamation Act, 1952 states that the truth of every sinful item of the
statement needs not to be proved.

2) Fair comment: The defendant may also raise the defense of fair comment. That
is, the statement is fair comment based on true facts made in good faith on a matter of
public interest. In order to raise a successful defense of fair comment the defendant
must prove the following issues:

a) The subject was of public interest. (London Artist).

b) The word must be a comment rather than a statement of fact.
c) The comment must be based on true facts.
d) The comment must be an honest and it must be made without malice. (Thomas)

3. Absolute privilege: This defense protects the makers of certain defamatory statements
because the law considers that in the circumstances covered by the defense, free
expression is more important than protection of reputation. The defense makes it
impossible to sue for defamation concerning any of the following:
a) Any statement made in Parliament by a member of either House, or in any
report published by either House (S: 13 of the Defamation Act, 1996, UK).
b) Any report published by either House or such a report published in full by
someone else (S: 1 of the Parliamentary Papers Act, 1840, UK).
c) Any statement made by one officer of state to another in the course of the
officer’s duty.
d) Any statement made by one spouse to another.
e) Fair and accurate media reports of public judicial.
f) Statements made by officials and other servants of the EU in the exercise
of their function.
g) Statements made in the course of the judicial proceedings, by judge, jury
witnesses, lawyers or the parties themselves.

4. Qualified Privilege: the defendant could rely on the defense of qualified

privilege. This defense applies where the defendant is under a duty to
communicate the statement to another or where he has a lawful interest to be
protected. It is not available where the statement made with malice. (Harrocks vs
Lowe).
5. Innocent Dissemination: innocent dissemination potentially available to
mechanical distributions, printers, broadcasters of living programs and internet
service providers.

Under section 1 of Defamation Act, 1996, UK innocent dissemination is a defense for a

person to show:

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a) he was not the author or editor or publisher of the statement;

b) he took reasonable care regarding its publication;
c) he had no reason to believe that he had contributed to the publication of a
defamatory statement.

Remedies:
Damage: if defendant can not establish any of these defenses, plaintiff can claim
damages. The amount of damages will be decided by the jury/court. In Rantzen, the CA
held that damages are only available if reasonable court thinks that it is necessary to
compensate the claimant and re-establish his reputation.

Injunction: if the alleged defamatory statement comes to C’s attention before

publication, they may seek an injunction to prevent publication. An injunction may be
awarded if there is a very strong probability that D will cause grave damage to the C in
the future. (Morris vs Redland Bricks).

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
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Lets Pass Of Defamation:

This problem question requires and application of the relevant aspect of defamation. I
shall consider plaintiff’s (plaintiff’s name) possible claim under defamation against
defendant (defendant’s names) in turn.

The classic definition of defamation was made in the case of Youssoupoff v MGM
Pictures Ltd. It is the publication of a false statement which tends to lower a person in the
estimation of right thinking people generally or makes them shun or avoid him. Any
defamatory statement in a permanent form is a libel, whereas a defamatory statement in a
non-permanent form is a slander.

Thus as the ------- (a) ---------- (permanent form or statement in fact), if defamatory will
constitute a libel rather than a slander. This will mean that if plaintiff can establish that
the statement are defamatory, he need not show special damage, as libel is actionable per
se.

The fact that ------- (b) -------- (temporary form or statement in fact), if defamatory will
constitute a slander. This class of defamation is, as a general rule, not actionable per se.

Elements of prove

In order to establish the tort of defamation according to Youssoupoff, the (plaintiff’s

name) must show that:
a) the statements were published;
b) the statements referred to the plaintiff;
c) the statements were defamatory.
There is publication where the statement is made known to a third party (Bata v Bata). In
the given scenario, the statements were published to at least one person other than the
claimants. So here first requirement may be satisfied. Now I would consider whom this
statement refers to. From the fact it apparent that the statement refers to (plaintiff’s
name), who is a plaintiff.

Next I would consider whether the statement were defamatory. As a basic definition of a
defamatory statement, that which was formulated by Lord Atkin in Sim v Stretch, is a
good starting point:

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“A statement which tends to lower the claimant in the estimation of right thinking
members of society generally and in particular to cause him degraded with feelings of
mind, contempt, ridicule, fear and disesteem.”

There is / are one / two part / parts of the statement. Firstly ------(a) and secondly ------
(b) regarding this / first / second part of the statement it is highly likely that this part f the
statement is defamatory.

Defenses:
If these three tests can be satisfied by (plaintiff’s name), then he has established a claim
in defamation. However, this does not necessarily mean that he will succeed as there are
a number of defenses to defamation. Let us now consider any defenses which are
available to defendant.

Justification
Defendant could rely on the defense of justification that is truth. The defendant must
prove the statement is true in substance rather than in each and every respect. (Alexander
v Eastern Railway Co) section 5 of the Defamation Act, 1952 states that
The truth of every single item of the statement need not be proved. If the words not
proved to be true do not permanently injure the plaintiff’s reputation. From the fact I
would submit that the statement founded on truth and so the defendant will be able to use
defense of justification.

Fair Comment
The defendant may also raise the defense of fair comment. That is, the statement is fair
comment based on true facts made in good faith on a matte of public interest. For the
defense of fair comment to succeed the defendant must prove the following: the subject
was of public interest (London Artist), the word must be a comment and not a statement
of fact, the comment must be based on true, the comment must an honest and it must be
made without malice (Thomas).

Qualified Privilege
The defendant could rely on the defense of qualified privilege. This defense applies
where the defendant is under a duty to communicate the statement to another or where he
has a lawful interest to be protected. However, it is not available if the statement was
made with malice.

Innocent dissemination
Under section 1 of the Defamation Act, 1996, innocent dissemination is a defense for a
person to show:
d) he was not the author, editor or publisher of the statement;
e) he took reasonable care regarding its publication;
f) he had no reason to believe that he had contributed to the publication of a
defamatory statement.

Remedies

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

If defendant can not establish any of these defenses, plaintiff cans claim damages. The
amount of damages would be decided by the jury. In Rantzen, the Court of Appeal held
that damages are only available if reasonable jury thinks that it is necessary to
compensate the claimant and to re-establish his reputation.

The plaintiff may seek an interlocutory injunction, but this is rarely granted (Bestobell
Paints)

Nuisance
Nuisance is basically concerned with unreasonable interference with a person’s use or
enjoyment of his land or some right in connection with his land. Nuisance is a land
related tort. Nuisance concerns indirect interference-for example:

* The playing of loud music;

* Smells from a large number of pigs
* Dust from building operations –rather than direct interference (i.e. building a shop on
part of the claimant’s land), which will be trespass.

Nuisance can be divided in to two categories. Such as

1) Private Nuisance and
2) Public Nuisance.

Private Nuisance:
Private nuisance is “a substantial and unreasonable interference with a person’s land or
use or enjoyment of the land”.

To be actionable, private nuisance must satisfy two requirements:

a) Substantial interference and

b) Unreasonable interference.

Substantial interference
In order to establish nuisance substantial interference must be proved. Interference must
be more than nominal for substantial interference.

There are two types of substantial interference:

1) Material damage to land:
Case law indicate that when the defendant has caused actual physical damage, either
to the land or property on that land, then there is likely to be liability in nuisance.
However, there is an argument that the test of reasonable user is irrelevant where
physical damage is. (St. Helens Smelting Co v Tipping).

2) Amenity nuisance: (there are two types of amenity nuisance).

i) Abnormal sensitivity:

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

If the damage or discomfort caused to the claimant is due to the abnormal

sensitivity of the claimant, then that does not constitute nuisance. (Robbinson
v Kilvert; Health v Mayor of Brighton)

ii) Locality:
Nuisance will not be occurred for locality. But locality is irrelevant where
physical damage is caused as a result of the activity. In St. Helens Smelting
Co v Tipping, the fact that the industrial use which caused physical damage
occurred in an industrial area was held to irrelevant.

Where, however, the interference is with a person’s comfort, peace or

personal freedom, locality is important. In Laws v Florinplace Ltd, the fact
that an injunction was granted to prevent the use of a shop converted to a sex
shop and cinema in a residential area.

Unreasonable Interference:
If interference caused by the defendant to the claimant’s enjoyment of their land will only
amount to nuisance if it can be considered unreasonable. Generally, the more serious as
interference, the easier it can be classified as unreasonable. Several factors been again be
identified that help to determine unreasonableness. Such as:

a) Duration: it is said that interference must be continuous or regular. The longer the
interference, the more serious it is. And the more serious the interference will be
more unreasonable. (Matania v National Provincial Bank)

Contrasted Case:
If temporary interference is substantial it may amount to a nuisance. (De Keyser’s
Royal Ltd v Spicer Bros Ltd) A ‘one off’ or isolated incident can be a nuisance.
(Spicer v Smee)

b) Extent of harm: if the extent of harm is high (more than nominal) then it will be
unreasonable. (St Helens Co v Tipping)

c) Character of harm: if activities of defendant cause physical or property damage

then it will be unreasonable. (St Helens Co v Tipping)

d) Motive: if defendant is ill motive then it will be unreasonable. An otherwise

innocent any may become nuisance if it is done with an ill motive. ( Christie v
Davey), (Hollywood Silver Fox v Emmet)

e) Whether D had taken all reasonable steps to prevent interference: if D could

simply have taken steps to avoid his activities form causing disturbance the fact
that he does not take those steps may be taken by the courts to support a finding
that D was engaged in an unreasonable user. (Leeman v Montagu)

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

Who can be sued?

Creator of the nuisance:
It is well accepted that whoever creates the nuisance may be held liable in respect of it.
Thus a creator may always be liable. (Thompson v Gibson), (Esso Petroleum v Southport
Corp)

Occupiers
The occupier is liable if he creates the nuisance in the following way:
a) Adopting and continuing nuisance created by another: Occupiers of the land may
also be liable for nuisance cause on that land by third parties, if the occupier is or
ought to be aware of the potential for nuisance to be caused and fail t take steps to
prevent it. (Sedleigh- Denfield v O’Callaghan)
b) Adopting or continuing nuisance created by nature: the occupiers are also liable
for a nuisance arising out of the natural condition of his land if he knows of the
risk and fails to take appropriate action. (Goldman v Hargrave), (Leakey v
National Trust). However, contrary view was expressed in cases like (Holbeck
Hall Hotel Ltd v Scarborough)
c) Occupier has control over the creator: where D had sufficient control over the
creator of the nuisance (e. g. where he calls in independent contractors who
creates a dangerous state of affairs) the occupier can be held liable. (Matania v
National Provincial Bank).

Landlords
In certain circumstances landlord may also be liable for nuisance.
a) Nuisance expressly or impliedly authorized by landlord: the landlord is liable if he
granted the lease for purpose which continues a nuisance. (Tetley v Chittay)
b) Duty to repair expressly or reservedly retained: A landlord is liable if he has an
obligation to repair or he reserves the right to enter and repair (Wringe v Cohen).

Who can sue?

The traditional rule is that the claimant must have ‘a legal interest’ in the land which is
the subject of the interference (Malone v Laskey)

What can be sued for?

1) Physical damage to the plaintiff’s land or property on it;
2) Interference with the plaintiff’s use or enjoyment of land;
3) Interference with the servitude. (e.g. an easement)

Defenses:
Statutory authority: if a statute authorizes the defendant’s activity, the defendant will be
liable for the interferences that are an inevitable result of that activity. (Allen v Gulf Oil
refining)
This defense will only be applicable if the interferences are an inevitable result of the
authorized act. (Corporation of Manchester v Farnworth)

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

Planning permission: where planning permission is granted for a development which will
inevitably mean a change in the nature of the locality, an actionable nuisance does not
arise. (Gilligham v Medway)
In other cases, the grant of planning permission will simply be one of the factores taken
into account by the court, but it will not itself give a defense. (Wheeler v J.J Saunders
Ltd)
Prescription: continuing nuisance for 20years will legalize it by prescription. Time does
not begin to run until the claimant is aware that the nuisance existed. (Sturges v
Bridgman)
Acts of God/Stranger: where the nuisance is caused ‘by a secret and unobservable
operation of nature.’(Noble v Harrison)
Volenty: if the plaintiff consents either expressly or impliedly to suffer harm then he
cannot afterwards sue in respect of it.
Contributory negligence: when the plaintiff contributes to the damage, it can be shown as
a defense. For example: if D playing loud music and plaintiff amplifies the damages by
opening his windows.

Invalid defenses
1. Coming to the nuisance: it is no defense that the plaintiff came to
the nuisance by occupying the land adjoining it (Miller v
Jackson, 1977)
2. Public benefit: public benefit will not of itself amount to a
defense. Admas v Ursell: a fish and chip shop in a poor
neighborhood.
3. All possible care has been taken: it will be no defense that all
possible care has been taken to prevent a nuisance ( Ropier v
London Tramways)

Remedies:
Nuisance law supports three main remedies which are given following:
1. Injunction: an injunction is the remedy of choice where a nuisance is continuing
or is likely to recur (Swaine v Great Northern Railway 1864).
2. Damages: the claimant will be able to recover damages for any loss which has
occurred to the value of the land and for any physical consequences of the
nuisance or business loss.
3. Abatement: this remedy involves self-help and allows the claimant to take steps to
end the nuisance.
4. Allowed subject to 3 conditions:
a) Notice to D;
b) No unnecessary damage;
c) Least cost to D (Burton v Winters 1993).

Public Nuisance:
Public nuisance is a crime as well as a tort. In public nuisance, it is well established that
there is no need to have an interest in the land affected.

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

Definition: “Public nuisance is an unlawful act or omission which endangers the life,
health safety or comfort of some section of the public or obstructs the public in the
exercise of some common right.”
For example: obstruction of the highway, thus interfering with the common right
produced in the public highway.

However, the claimant must prove:

a) Firstly, the persons affected by the nuisance must consist of the public or a
section of the public. (AG v PYA Quarries).
b) Secondly, the claimant must have suffered damage over and above that
suffered by the public at large (Rose v Miles).

Special rules cover public nuisance and the highway:

i. Unreasonable obstruction of the highway constitutes a public nuisance (Diamond v

Pierce), even if the obstruction is temporary (Barber v Pently)

ii. A danger on the highway also constitutes a public nuisance. For example: pile of
rumbles or stones could be a public nuisance (Clark v Chambers)

iii. A danger close to the highway is a public nuisance. So an occupier of premises close
to the highway must keep his premises in repair (Darry v Ashton), whether or not he was
aware of it (Wringe v Cohen).

Lets Pass Of Nuisance:

This question concerns a few issues of nuisance. The claimant © would be advised to
bring actions in private nuisance and will seek the remedy of a mandatory injunction
against the defendant (D).

The essence of the tort of nuisance is unreasonable interference with another’s enjoyment
of his land. Private nuisance can usefully be defined as: “a substantial and unreasonable
interference with a person’s land or the use or enjoyment of that land”. The claimant’s
case will be based on the fact that there has been a substantial and unreasonable
interference with their enjoyment of their property (Walter v Selfe).

We shall first consider whether (D) have incurred any liability in nuisance,
Or
It must be considered first whether (element of nuisance) constitutes a nuisance.

It is well established that noise (Tetley v Chitty) / smell (Adams v Ursell) can constitute a
nuisance.

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

However, not all interference gives rise to liability. There must be give and take between
neighbors and the interference must be substantial and not fanciful (Walter v Selfe). In
deciding whether a particular interference is unreasonable or not the court will rely on a
series of guidelines, rather than on any rigid rules.

Duration
In (D) case, the court would consider the duration of the interference, as the shorter the
duration of the interference, the less likely it is to be unreasonable (Harrison v
Southwark). In particular, it seems that an isolated event is unlikely to constitute a
nuisance. In Bolton v Stone, it was stated that a nuisance must be a state of affairs,
however temporary, and not merely an isolated happening. Thus, although (D) might
claim that the (element of nuisance) is an isolated even it does constitute a temporary
state of affairs and is capable, in law, of being nuisance.

Abnormal sensitivity
If the damage or discomfort caused to the claimant is due to the abnormal sensitivity of
the claimant, then that does not constitute nuisance. In Robinson v Kilvert, the court held
that the damage was due to the sensitivity of the paper than to the defendant’s activities,
so there was no nuisance.
(Apply the fact: in this fact (element of abnormal sensitivity) may be treated as abnormal
sensitivity, that’s why it may not constitute a nuisance. Or from the fact, it transpires that
there has not abnormal sensitivity).

Character of neighborhood
In Sturges v Bridgman, it was said that: “what would be a nuisance in Belgrave Square
would not necessarily be so in Bermondsey.” The character of the neighborhood is no
relevant, however, if the nuisance causes physical damage to the property (St Helen’s
Smelting Co v Tipping).
(Apply the fact: in this fact (element of abnormal sensitivity) may not be treated /
constitute a nuisance. Or from the fact, it transpires that there has not neighborhood
nuisance).

Malice or ill motive

The real problem that (D) faces, however, is that he is activated by malice. Although
malice is not a necessary ingredient of nuisance, its presence is not only a factor to be
taken into account (Christie v Davey), but may even turn an otherwise non-actionable
activity into a nuisance (Hollywood Silver Fox Farm v Emmentt), where it seems clear
that in the absence of malice no action would have arisen, Defendant cannot claim to be
making a reasonable use of his land if his intends to cause damage.

Recreational facilities
Now we should consider whether (D) has any liability in nuisance for the interference
with (element of recreational facilities). D is deliberately interfered with claimant’s
(element of recreational facilities), element of recreational facilities may be treated as

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

recreational facilities. This interference is presumably not of limited duration, which is a

factor militating against unreasonableness of any interference (Harrison v Southwark).
However, claimant has a problem, in that, in Bridlington Relay v Yorkshire- Electricity
Board, Buckely J held that interference with purely recreational facilities, such as
television reception, did not constitute an actionable nuisance.
But in the Canadian case of Nor-Video Services Ltd v Ontario Hydro, it was held that
interference with television reception could amount to a nuisance, and the High Court in
Hunter took a similar view. Unfortunately for claimant, both the Court of Appeal and the
House of Lords in Hunter rejected this approach, holding that interference with television
reception did not constitute an actionable nuisance. Thus claimant has no remedy in
respect of defendant’s action.

Who can sue?

We must now ascertain who sue respect of the (noise, smell etc). As nuisance is
concerned with a person’s use or enjoyment of land; it was held that only persons with an
interest in land can sue (Malone v Laskey). When Hunter- v Canary Wharf Ltd was
decided in the House of Lords, the House held that Malone case was still good law. On
this basis, if (Claimant) is owner or tenant of the property, he can sue.

Who can be sued?

Given that (element of nuisance) constitutes a nuisance; it must be considered next who
the proper defendant is in respect of this nuisance. As (Defendant) is responsible for the
nuisance, he will be a defendant.
It is well accepted that whoever creates the nuisance may be held liable in respect of it.
This the creator (Defendant) may always be liable (Thompson v Gibson) OR
The landlord, (Defendant) will be if the nuisance exist before the leased the premises; if
he has an obligation to repair or he reserves the right to enter and repair (Wringe v
Cohen) OR
The occupier, (Defendant) is liable if he creates the nuisance. He is also liable if an
independent contractor crease the nuisance following the occupier’s instruction and such
nuisance was foreseeable.

Defenses
Statutory authority: if a statute authorizes the defendant’s activity the defendant will not
be liable for interferences that are an inevitable result of that activity (Allen v Gulf Oil
Refining)
Planning permission: where planning permission is granted for a development which
will inevitably mean a change in the nature of the locality, an actionable nuisance is not
arise (Gillingham v Medway, 1993). In other cases, the grant of planning permission will
simply be one of the factor taken into account by the court, but it will not itself given a
defense (Wheeler V- J.J. Saunders Ltd, 1995)

Prescription: continuing nuisance for 20 years will legalize it by prescription. Time does
not begin to run until the claimant is aware that the nuisance existed (Sturges v
Bridgman).

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Syed Robayet Ferdous, Research Graduate, School of Law, University of Ottawa,
Ontario, Canada.

Act of God/ Strangers: where the nuisance is caused ‘by a secret and unobservable
operation of nature’ (Noble v Harrison).

Remedies
The remedies available from (Defendant) would be damages to compensate for past
nuisance and an injunction to prevent further nuisance. The court does have power, under
s. 50 Supreme Court Act, 1981, (UK), to award damages in lieu of an injunction, but this
power is used very sparingly. In Shelfer v- City of London Electric Lighting Co, the Court
of Appeal held that damages should only be awarded where:
a) the injury to the claimant’s legal right is small;
b) the damage is capable of being estimated in money;
c) the damage can be adequate compensated by a small money
payment; and
d) the case is one in which it would be oppressive to the defendant
to grant an injunction.

Public nuisance
(Defendant) might also, as regards the (element of nuisance), be liable in public nuisance
(Halsey v Esso Petroeum). Similar considerations will apply as for private nuisance, but
some additional factors must be shown.
Firstly, the persons affected by the nuisance must consist of the public or a section of the
public (A G v Pay Quarries)
Secondly, the claimant must have suffered damage over and above that suffered by the
public at large (Rose v Miles).

Impact of the HRA 1998 (applicable in UK)

Finally, we should consider any remedies that might be available to (Claimnet) under the
Human Rights Act 1998. Under Art 8of the European Convention on Human Rights,
brought into UK law by s. 1 of the 1998 Act, (Claimant) have the right to respect for
private and family life.

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