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Torts I Definition Types of torts: Defamation, Negligence, Nuisance, Trespass Specific defences

DEFINITION What is a Tort? Salmond & Heuston on the La of Torts states that !" tort is a species of ci#il in$ury or rong%! This means that a tort is a type of ci#il rong% &ut it should 'e noted that there are other types of ci#il rongs, such as 'reach of contract and 'reach of trust% Winfield(s definition, set out 'elo , is an attempt to distinguish tort from other ci#il rongs% "Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages." (Winfield) Thus, tort is different from other types of rongs% )t*s different from criminal la thus+ )SS,T./TS 0/)1)N"L Standard of proof .n a 'alance of pro'a'ility &eyond reasona'le dou't &urden of proof .n the claimant2plaintiff .n the prosecutor 0ase names 3laintiff # Defendant e%g% /ylands # / # "ccused 5/ for /egina, 4letcher meaning 6ueen) Type of cases Deals ith ci#il rongs Deals ith criminal rongs 3urpose2"im 0ompensate the in$ured 3unish the rongdoer /emedies Damages 4ine2)mprisonment Lia'ility .ne can 'e lia'le for other peoples* -#eryone responsi'le for his torts e%g% 7icarious lia'ility o n crimes i%e% indi#idual The only similarity it shares ith criminal la is that in 'oth tort and criminal la , duties are fi8ed 'y la % "s for contracts+ tort and contract la 'oth deal ith ci#il rongs% Ho e#er, they are still different thus+ )SS,T./TS 0.NT/"0TS Lia'ility .ne can 'e lia'le for others* torts -#eryone responsi'le for his e%g% 7icarious lia'ility o n 'reach i%e% personal lia'ility 3roof 1ust pro#e the other party as at Lia'ility is strict% )ntentions fault% )ntentions crucial don*t matter Damages Some torts you don*t need to pro#e 1ust al ays pro#e damage damage suffered e%g% li'el & suffered to succeed in claims trespass /emedies 1ainly claim for unli9uidated The damages may 'e defined damages 'y li9uidated damages clause Duty Duty fi8ed 'y la Duties assumed #oluntarily under contract terms Duty o ing The duty is o ed to persons The duty is o ed to the other generally contracting party i%e% pri#ity

TYPES OF TORT The full nature of torts can only 'e understood 'y e8amining the #arious types of torts+ TRESPASS TO LAND Trespass to land occurs here a person directly enters upon another(s land ithout permission, or remains upon the land, or places or pro$ects any o'$ect upon the land% This tort is actiona'le per se ithout the need to pro#e damage% &y contrast, nuisance is an indirect interference ith another(s use and en$oyment of land, and normally re9uires proof of damage to 'e actiona'le% There are : elements+ -ntering land that is o ned 'y the claimant /emaining on the land after permission is ithdra n 3lacing o'$ects or pro$ections to the land )t occurs in : ma$or ays+ ;% -ntering upon land Wal<ing onto land ithout permission, or refusing to lea#e hen permission has 'een ithdra n, or thro ing o'$ects onto land are all e8ample of trespass to land% =% Trespass to the airspace Trespass to airspace a'o#e the land can 'e committed% )n Kelsen !mperial Tobacco "o committed trespass 'y allo ing an ad#ertising 'oard to pro$ect eight inches into 3(s property at ground le#el and another a'o#e ground le#el% Ho e#er, N. action shall lie in nuisance or trespass 'y reason only of the flight of an aircraft o#er any property at a height a'o#e the ground hich is reasona'le% There is only a right of action in respect of physical damage caused 'y aircraft, actiona'le ithout proof of negligence% :% Trespass to the ground 'eneath the surface )n #ulli "oal $ining "o %sborne &'())* +" ,-' , the Ds mined from their land through to the 3(s land% This as held to 'e trespass to the su'soil% General Defences to trespass to land (this defences can still be used as defences to other forms of trespass with the relevant adjustments ) i% Licence. This is hen one is gi#en license2 consent2 permission to enter the land% )t can 'e e8press or implied% When the plaintiff gi#es the defendant permission to enter the land, he mustn*t e8ceed the permission he has 'een granted or else it ill 'e considered trespass% ii% Neccessit . )n .igby s. "hief "onstable /orth0ampton1hire The police used teargas shells to flush out a person ho had held people hostage in a shopping comple8% .ne of the shells entered a plaintiff*s shop and caused damage% The court held that the polices* necessity plea as indeed successful%

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La!f"l #"t$orit . Sometimes, the trespasser may ha#e la ful authority to enter the land% e%g% The police ha#e may ha#e a arrant 5sometimes, they may not e#en need one%) Ho e#er, the person ith la ful authority mustn*t e8ceed the limit of that authority%

N !SAN"E This is indirect interference ith another persons* use of his land% )f one*s use of land causes damage to a neigh'ouring occupier, he2she ill 'e held lia'le% )t ta<es se#eral types+ ;% 3ri#ate Nuisance Winfield and >olo ic? define pri#ate nuisance as an @unla ful interference ith a person*s use or en$oyment of land, or some right o#er, or in connection, ith it*% Such cases usually in#ol#e neigh'ours caused 'y nosie, smell, #i'rations, animals, incursions etc% .ccupiers are only entitled to @reasona'le comfort* and nothing more% =% 3u'lic Nuisance 3u'lic nuisance, in contrast, is 'oth a crime and a tort% )t is defined 'y /omer L> in +ttorney2 3eneral # 4.5.+. 6uarries 7td A;BCDE = 6& ;FB at p%;GH: @any nuisance is Ipu'licJ hich materially affects the reasona'le comfort and con#enience of life of a class of Her 1a$esty*s su'$ects% The sphere of the nuisance may 'e descri'ed generally as Ithe neigh'ourhoodJ+ 'ut the 9uestion hether the local community ithin that sphere comprises a sufficient num'er of persons to constitute a class of the pu'lic is a 9uestion of fact in e#ery case%* The claimant thus needs not to ha#e any interest in land so as to 'e entitled to sue, unli<e pri#ate nuisances% )ts actiona'le as a criminal offence and e8amples include+ o'struction of high ay, creating litter, ra#es and parties attracting hundreds of people at night creating noise and distur'ances o#er a ide area etc% .ne needs not pro#e that the hole community is affected 'ut $ust that a representati#e crossK section as incon#enienced% :% /ylands # 4letcher This is a specific rule named after a case in hich &lac<'urn > in the 0ourt of -8che9uer 0ham'er stated: @We thin< that the true rule of la is that the person ho for his o n purposes 'rings on his lands and collects and <eeps there anything li<ely to do mischief if it escapes, must <eep it in at his peril, and, if he does not do so, is prima facie ans era'le for all the damage hich is the natural conse9uence of its escape%* )t is thus a rule of lia'ility imposed on a person due to an escape of a nonKnatural su'stance from the defendant*s land% Defences i% Independent act of %rd part & #ct of stran'er. )n this defense, the defendant argues that the act as not his 'ut of a :rd party% ii% (onsent. 7olunti non fit in$uria: 7oluntarily agreed to ta<e the in$ury2 ris<%

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#ct of God. )n Tennant s. 8arl of 3lasgow according to the court, an act of Lod is an act that happens in circumstances that no human foresight can pro#ide for% The thing that causes damage has occurred in circumstances that no human could ha#e foreseen and of hich human prudence is not 'ound to recogni?e the possi'ility of it happening% (ontri)"tor Ne'li'ence. )n this case, the defendant defends himself 'y saying that the plaintiff contri'uted to a cause of in$ury or damage here the plaintiff has failed to ta<e reasona'le care of himself% The defendant ill therefore 'e held lia'le only to the e8tent to hich he contri'uted to the in$ury to the plaintiff% (o**on )enefit. This is hen the thing that caused damage as 'rought there for the 'enefit of the community or for 'oth the defendant and the plaintiff% Stat"tor #"t$orit . This is hen it as a statute that re9uired of the defendant to accumulate the dangerous thing that caused damage to the plaintiff*s land% )f this defense is successful, the plaintiff cannot claim from the defendant for damages% Ho e#er, if the defendant hadn*t ta<en reasona'le care or had acted negligently in e8ecuting a statutory authority, then he*ll 'e held lia'le for the damage to the plaintiff*s property%

TRESPASS TO PERSON These are actions hich interfere ith the space and person of another% They often also result in criminal action as ell% These include+ ;% &attery This is intentional and unla ful 'ringing of a material o'$ect into contact ith another person% 1aterial o'$ects include 'ody parts% )t*s not limited to #iolent acts 'ut includes nonK#iolent acts as ell% -%g% /ash 1heen application of @tone rinse* to a scalp as 'attery% )t*s $ust the act hich must 'e intentionalK not the in$ury% =% "ssault This is the intentional act of putting another in reasona'le fear of apprehension of immediate 'attery% The claimant only needs to pro#e reasona'le fear and ords may not enough to create lia'ility unless accompanied 'y threatening actions% :% 4alse imprisonment )t in#ol#es unla fully arresting, imprisoning or pre#enting a person from lea#ing here they are% The claimant only needs to pro#e that their li'erty as ta<en from them and not damage% DE#A$AT!ON " defamatory statement is one hich in$ures the reputation of another 'y e8posing him to hatred, contempt, or ridicule, or hich tends to lo er him in the esteem of rightKthin<ing mem'ers of society% Su'$ect to the differences 'et een the t o types of defamation, li'el and slander 5e8plained 'elo ), the claimant must pro#e: 5;) That the statement as defamatory, 5=) that it referred to him, and 5:) that it as pu'lished, ie communicated, to a third party% The onus ill then shift to the defendant to pro#e any of the follo ing three defences:

5;) truth 5or $ustification), 5=) fair comment on a matter of pu'lic interest, or 5:) that it as made on a pri#ileged occasion% )n addition, some riters put for ard the follo ing as defences in their o n right: 5H) unintentional defamation, and 5C) consent% The 'asic differences 'et een the torts of li'el and slander are as follo s: Li'el refers to #isi'le acts such as riting, pictures or e#en effigies hile slander refers to spo<en or gestured Li'el is a criminal act, actiona'le in all cases hile slander is a ci#il in$ury and one must pro#e damage% Li'el is actiona'le per se hereas damage must 'e pro#ed for slander Li'el is a defamatory statement in permanent form e%g% riting, films, a8 images, radio and tele#ision 'roadcasts, pu'lic performance of plays etc, hile slander is a defamatory statement in a transient form e%g% gestures% Li'el may 'e prosecuted as a crime as ell as a tort, hereas slander is only a tort% Defences +. (onsent, )f a plaintiff consents to the defamatory statement, he cannot after ards sue for defamation% -. #polo' or a*ends, ,sually a day or t o after a pu'lishing something that is defamatory, the ne spaper pu'lishes an apology% The position of the court is that if the defendant apologi?es reasona'ly to the defendant and amends the defamatory statement, this can 'e used as a defense% Ho e#er, the defendant is not 'ound to accept the apology% %. ."stification or tr"t$s, )f the statement that the defendant made as true, then no defamation has occurred% "nd therefore, the defendant is not lia'le for anything% "ccording to the la , it is up to the defendant to pro#e that his statement as true% /. Pri0ile'e, The principles of pu'lic policy in the constitution a ard citi?ens of Menya se#eral rights, t o of hich are: right to free speech and right to protect reputation% These t o rights are pitted against one another in cases of defamation% Ho e#er, in special circumstances, pri#ileges may 'e a arded 'y the constitution allo ing the first right to o#erride the second one: +bsolute pri ilege9 )n this case, a person may ha#e a pri#ilege to ma<e any statement and cannot 'e sued for defamation% -8amples include parliamentary pri#ilege on statements made on the floor of the house and applies also to all committees of parliament and all reports that are made on authority of parliament e%g% Hansards and $udicial proceedings co#ering statements made 'y the $udge2$udges presiding, the ad#ocates representing, the parties participating or the itnesses 'earing itness at a court proceeding and that are related to the $udicial proceedings% 6ualified pri ilege9 "ccepted in cases of: 5i) 4air and accurate reports of parliamentary proceedings%

5ii) 0ommunication 'et een an ad#ocate and his client% 5iii) " statement here the defendant is under a duty to ma<e it% The duty is legal, moral or social% The person recei#ing the information must ha#e a duty or interest to recei#e it% See Watt s. 7ongsden. 5i#) " statement made to protect one*s pecuniary or professional interest% 5#) " statement made 'y someone to protect himself or his property 5#i) " statement made to the proper pu'lic authority to redress a pu'lic grie#ance% 1. Fair co**ent, " defendant can use this defense upon the follo ing conditions: i% The comment must 'e made in pu'lic interest% " matter of pu'lic interest as defined 'y Lord Denning in the case of London "rtists Ltd% #s% Litler as a matter that is such as to affect the people at large or a matter here the people at large are legitimately concerned ith it% ii% The statement must 'e of opinion and not of fact% iii% The comment must 'e fair% " fair comment is one in hich there is a logical relationship 'et een the facts a#aila'le and the statement made% i#% There must 'e a'sence of malice% This is a #ery important condition and e#en if the other conditions are met, the entire defense may fail there is proof of any malice%