Tort Law

Question 1

Which authority established that one of the conditions for a battery is that the defendants act must be intentional?

Answer 1

Letang v Cooper. In this case there was no battery because the defendants act to drive over the claimants legs with a jaguar was not an intentional act.

Question 2

Which case established that ‘the least touching of another in anger is a battery?’

Answer 2

Cole v Turner. In this case is was adjudged that if one man intentionally applies force directly to another, however little force was directed. The plaintiff has a cause of action in assault and battery.

Question 3

Which other establishes that an act must be intentional in order to suffice as a battery claim?

Answer 3

Fowler v Lanning. This case summarised the law of intention; (I) Trespass to a person does not lie if the injury to the plaintiff, although the direct consequence of the act of the defendant, was caused unintentionally and without negligence on the defendants part.

Question 4

Outline the Fagan v Commissioner of Metropolitan Police case. What does the case illustrate?

Answer 4

Fagan (defendant) unintentionally drove his car onto PC Morris’s foot. When asked to move, Fagan initially refused and turned off his engine. After being requested to move after several times, he reluctantly acquiesced. The plaintiff was able to claim a remedy because a car touching the foot of a person was considered to be a direct act and it was an intentional one in the end.This case established the precedent that 1) a battery can result from an unintentional act which upon continuance becomes intentional. 2) The requirement that battery is a direct act does not mean that the defendant has to use his body to inflict the battery, but can use something else, in is case, a car.

Question 5

Which authority established that the ‘directness requirement’ of an act is a flexible principle and that a chain of events from the original act can satisfy the directness requirement?

Answer 5

Scott v Shepherd. the defendant was found to have committed a battery against the victim by throwing a lighted firework onto another persons market stall. The firework was actually thrown from stall to stall before landing on the stall of an unfortunate victim.

Question 6

Which authorities conjectured that any physical contact amounts to ‘force’ in this context of a battery?

Answer 6

Letang v Cooper.
Cole v Turner - “The least touching of another in anger is a battery.”
R v Cotesworth - Spitting was held to be an application of force.

Question 7

Which legal rule established that in some cases there is a further requirement of hostility for an act to constitute a battery?

Answer 7

Wilson v Pringle. In this case it was ruled that the defendants actions lacked hostility. Pulling the bag off the school kids shoulder amounted to ordinary horseplay between pupils of the same school. It was ruled that touching must be proved to be hostile touching.

Question 8

How would you define hostile behaviour? Apply the relevant legal authorities to supplement your answer.

Answer 8

Hostility cannot be equated to ill will or malevolence. (Wilson v Pringle) One possible interpretation is that the act must be something to which the claimant would not have consented. (Collins v Wilcock) deliberate touching that was considered to be acting unlawfully. (Collins v Wilcock).

Question 9

What other case can be applied to the hostility requirement?

Answer 9

Tuberville v Savage. In this case the defendant clapped his hand upon his sword and said to the plaintiff, “ if it were not for assize time, I would not be able to take such language.” The court ruled that there was no threat and accordingly no assault. This case is authority that there must be not only a deliberate threat (in an assault) and deliberate touching (in a battery) but also hostile behaviour.

Question 10

Which authority can be applied when there is a hostile act inflicted on the claimant to which he/ she consented to?

Answer 10

Rex v Donovan. In this case the appellant, in private, beat a girl of 17 years of age for purposes of sexual gratification, with her consent. The act had about it an aggressive element. The court held that consent was immaterial. This case constituted hostile behaviour and therefore constituted a battery.

Question 11

Engaging in sado-masochism of the grossest kind, involving inter alia, physical torture. Does this constitute hostile behaviour?

Answer 11

Yes. (Reg v Brown).Again consent was Immaterial in this case as their was a hostile act.

Question 12

Which authority established that if a claimant understood the general nature of the operations and it was this that she consented, so the operations were not a battery?

Answer 12

Chatterton v Gerson. The patient was informed in broad terms of the nature of the procedure in an operation which is intended, and gives her consent, that consent is real, and the cause of action on which to base a claim for failure to go into risks and implications is negligence, not trespass. If the patient has been given an explanation as to what is involved, their consent will be real. (The explanation in this case being that there would be an intrathecal injection of phenol nerve block).

Question 13

A boy is admitted to hospital for tonsillectomy and due to administrative error was circumcised instead. Does this case constitute a trespass?

Answer 13

Yes. (Mr Justice Bristow from Chatterton v Gerson) Even though he was as much the victim of error as the boy.

Question 14

What conditions need to be established in order for there to be a claim in battery?

Answer 14

The claimant must prove that there has been a direct and intentional application of force, arguably with some degree of hostility, to which the claimant has not consented.

Question 15

Which authority defines Assault and what is the definition?

Answer 15

R v Dennis John Beasley. “Any act by which D intentionally or recklessly, causes P to apprehend immediate and unlawful personal violence.”

Question 16

Which case established that an assault can be committed through silence?

Answer 16

R v Ireland. In this case it was adjudged that menacing silence can amount to assault where it causes the victim to apprehend immediate harm, through this medium of communication.(telephone) The silent caller intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions and it may be the fear that the callers arrival at her door is imminent. She may fear the possibility of immediate personal violence. Therefore a threatening silence can constitute an assault.

Question 17

Which legal authority established that words alone can constitute an assault?

Answer 17

R v Wilson. In this case a gamekeeper was threatened by a poacher shouting to his fellow poachers, “Get out the knives.” The CofA found that the words in themselves constituted an assault.

Question 18

Which case established that ‘advancing with intent’ if it could be carried out immediately, would amount to an assault even if the threatening act was not carried out fully?

Answer 18

Stephens v Myers. In this case the defendant advanced towards the plaintiff with a clenched fist, but was stopped by a 3rd party preventing defendant from carrying out his threat. The judge therefore considered that ‘his advancing with intent’ would amount to an assault, if it could be carried out immediately.

Question 19

Which case ensured that an assault must be an overt act indicating an immediate intention to commit a battery, coupled with the capacity to carry that intention into effect?

Answer 19

Thomas and others v National Union of Mineworkers. In this case because the working miners are in vehicles and the pickets are held back from the vehicles, there is no capacity to carry the intention to commit a battery into effect. There is no immediate threat. A reasonable person would not have considered that the threats could lead to immediate harm to someone protected within a vehicle.

Question 20

Which authority established that for a claim of false imprisonment to suffice, there must be an act (direct and intentional) which causes the complete restriction of a persons freedom without lawful justification?

Answer 20

Bird v Jones. In this case the claimant had an alternative means of crossing the bridge, his route was not completely restricted, and his claim for false imprisonment failed.

Question 21

Which authority established that a person can be imprisoned falsely without even knowing it?

Answer 21

Meering v Grahame-White Aviation. In this case the claimant was oblivious to the fact that the room in which he was sitting was guarded, pending the arrival of Metropolitan Police. Even though he did not know that he could not leave, this amounted to false imprisonment.

Question 22

What is the tort of negligence?

Answer 22

To establish the tort of negligence, the claimant must show that a duty was owed, which was breached and resulted in damage. They must also establish that the damage was caused by the defendants breach and that it was not too remote.

Question 23

Which case held that a manufacturer was under a duty to the final purchaser/consumer to take reasonable care to ensure a product was free from any defects which would be injurious?

Answer 23

M’Alister v Stevenson Respondent. In this case the appellant drank an opaque bottle of ostensible ginger beer, which actually contained remains of a decomposed snail. The appellant sought to sue the manufacturer, alleging that she suffered shock and severe gasto-enteritis as a result. The HofL held that a manufacturer was under a duty to the final consumer to take reasonable care to ensure the article was free from any defect which would be injurious.

Question 24

State The Lord Atkin Neighbour test.

Answer 24

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who is neighbour? The persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected to the act or omission called into question.

Question 25

Which authority established the two stage test which consequently expanded the situations where a duty of care was held to exist and describe the test.

Answer 25

Anns and others respondents and Merton London Borough Council appellants. 1) one must ask whether between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in e reasonable contemplation of the former, carelessness on his part may likely to cause damage to the other, in which case a duty of care arises. 2) it is necessary to consider whether there are any considerations which ought to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.

Question 26

What were the undesirable consequences legally of the case Ann’s and others and Merton London Borough Council Appellants?

Answer 26

This case opened up the floodgates of litigation. In other words the 2 stage test resulted in a massive expansion of situations where a duty of care was held to exist.

Question 27

Which case sets out the modern approach of the courts to establishing whether a duty of care has arisen?

Answer 27

Caparo Industries plc v Dickman and others.

Question 28

What is the Caparo Test?

Answer 28

It is the legal rule used to ascertain whether a duty of care has been established. It states that in addition to the foreseeability of damage, 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 and 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 on the one party for the benefit of the other.

Question 29

What is the difference between Lord Bridges Caparo 3 stage test and Lord Wilberforce’s two stage test with regards to policy considerations?

Answer 29

In LB test, policy factors are considered to decide whether a duty of care arises can be contrasted to LWF approach in Ann’s where a prima facile duty arose, based on foreseeability, and policy reasons are only then considered when deciding whether they should limit such a duty from arising.

Question 30

Which case overruled Anns (Lord Wilberforce’s 2 stage test)?

Answer 30

Murphy v Brentwood.

Question 31

Did White v Jones use the incremental approach or the 2 stage test?

Answer 31

The incremental approach, where policy considerations would be considered to decide whether a duty arises and where there is no precedent to rely on. (p29)

Question 32

Which 3 cases established that lawyers were no longer immune from claims of negligence?

Answer 32

1) Hall & Co v Simons
2) Barratt v Ansell
3) Harris v Scholfield & Hill

Question 33

In Hill v Chief Constable v Yorkshire, was the case a policy matter or an operational matter?

Answer 33

There was not a duty upon the police in the investigation of a crime on policy grounds. In this case, the mother of the victim of the Yorkshire ripper sued the police, alleging that the victim was owed a duty of care by the police. He HofL held there was insufficient proximity between the parties, and that as a general rule one cannot impose a duty of care upon the police for a policy matter.

Question 34

Which case was it deemed that the police owe a duty of care because it was an operational matter?

Answer 34

Rugby v Chief Constable of Northamptonshire.

Question 35

What is the Hill principle established in Hill v Chief Constable of Northamptonshire?

Answer 35

police generally have an absence of duty of care rather than blanket immunity. The rational being that imposing legal duties of care in the police towards victims and witnesses would be going to far. A retreat from the principle would have detrimental effects for law enforcement. It would mean that police officers would in practise be expected to ensure that in every contact with every potential victim and witness time and resources were deployed to avoid the risk of causing harm and offence.

Question 36

Which case ousted the blanket immunity of claims of negligence on the police?

Answer 36

Arthur J S Hall v Simons.

Question 37

Which case utilised the Hill principle and concluded that a duty of care is not owed by the police in policy circumstances?

Answer 37

In Brooks v Commissioner of Police for Metropolis it was adjudged that the police did not owe a duty of care on policy considerations laid out in Hill. The police could not owe a duty of care to victims and witnesses because this would impede the police officers ability to perform their public functions in the interests of the community fearlessly and with despatch. Time and resources would be deployed to avoid risk of causing harm and offence, instead of the principle duty to prevent crime and find criminals.

Question 38

Which case established that a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute?

Answer 38

R v Dytham. In this case a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.

Question 39

Which authority established that a duty of care was owed where the actions of the fire brigade would positively exacerbate a situation?

Answer 39

Capital and Counties Plc v Hampshire County Council. The CofA held that although generally the fire brigade is under no duty to respond to calls or extinguish a fire, a duty was owed where the actions of the fire brigade positively exacerbated the situation. In this case, a fire-fighter while fighting a fire, had ordered that the sprinkler system be turned off.

Question 40

Which two cases established the rule that for emergency services, no duty could arise from an omission to act?

Answer 40

1) Digital Equipment Co Ltd v Hampshire County Council
2) John Munroe Ltd v London Fire and Civil defence authority.

In 1) the fire brigade allegedly left the scene if the fire before the fire was fully extinguished. This omission to act to extinguish the fire did not constitute negligence. The fire brigade does not come under a duty to care merely by attending at the fire ground and fighting the fire. There is no act that positively exacerbates the situation.

In 2) the fire brigade failed to ensure that there was adequate water supply to the scene of the fire. Again there is not a duty of care because there is no act that positively exacerbates the situation. This was simply a logistical mistake.

Question 41

Which case established that in certain circumstances an ambulance could owe a Duty of care to the person who made a 999 call, if it accepted the call and the failed to arrive within a reasonable time due to negligence?

Answer 41

Kent v Griffiths. The ratio was the fact that it was a person who foreseeably would suffer further injuries by a delay in providing an ambulance when there is no reason why it should not be provided, is important in establishing the necessary proximity and thus duty if care in this case. In other words, as there were no circumstances which made it unfair, or unreasonable or unjust that liability should exist, there is no reason why there should not be liability if the arrival of the ambulance was delayed for no good reason. The acceptance of the call in this case established duty of care.

Question 42

Which case established the exception to the general rule (no positive duty to act and therefore no liability for an omission) where omissions to act/ no positive acts might be liable?

Answer 42

Smith v Littlewoods Organisation. (p37)