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THE LAW OF TORTS

UNIT 15
LEAD-IN

 1. Remember the following points about criminal law and procedure: the parties,
standard of proof and possible types of punishment. What is the main purpose of
criminal proceedings and who are they initiated by?
 2. Remember situations where obligations exist between parties to a contract.
Can you think of a situation where there is an obligation, but no contract
involved?
II Read the introductory text on torts and compare a tort to a
crime. What are the similarities and differences mentioned or
implied in the text?

 The law of torts is an area of civil or private law.


 Torts involve situations where damage was caused or a wrong committed as a
result of unreasonable conduct, unrelated to a contract.
 Tortious conduct - not sufficiently serious to constitute a crime, although some
torts are in most respects identical to criminal offences.
 The law of torts concerns ways to compensate for the damage suffered and deter
from further harmful activity.
 Action is taken by the injured party against the tortfeasor.
 While torts are increasingly regulated by statute, the rich case law still retains a
central role.
THE MAIN GROUPS OF TORTS

 1. torts affecting land,


 2. torts affecting person, and
 3. negligence.
TORTS AFFECTING LAND

 Torts affecting land pertain to unreasonable conduct or its consequences


concerning interest in land, and its enjoyment and use
 The main torts against land:
 1. trespass to land
 2. nuisance
TRESPASS TO LAND

 an unlawful invasion or direct interference with the land of another, whether


intentional or negligent.
 In practice: entry or stay without permission on someone’s land or property built
on the land.
 By bringing an action in tort the claimant may want to remove unwanted
intruders from the land, or regain entry to his land from which he has unlawfully
been prevented.
 This can arise when there is dispute as to title, i.e. ownership of the land or
property in question.
 This is achieved by an injunction. If the intruder has caused damage to the
property, the claimant may want the damage compensated for. Damages may
include the cost of removal of the trespasser.
TRESPASS TO LAND

 Trespass is actionable per se: there is no requirement of damage done to the land
by the intruder for a lawsuit to be filed.
 The invader must be a person with an inferior interest in the property.
 A landlord may sue to evict a tenant in breach of the rental agreement, but a
legitimate tenant could equally use an action in tort to remove a trespasser who
has no legal claim on the property.
NUISANCE

 Where there is only indirect interference with another’s use or enjoyment of his
land, this may constitute grounds for an action in nuisance.
 The tort of nuisance refers to a disturbance which is continuous and has resulted
in damage, usually caused by a neighbour.
 If only discomfort or inconvenience are caused by another’s actions, this may not
sufficiently disturb the balance of competing interests between the neighbours as
to their right to use and enjoy their respective land.
NUISANCE

 Nuisance usually involves harmful emissions such as fumes drifting over land, loud
noises, vibrations from machinery, water or harmful liquids entering the land or
subsoil and causing damage, and fire.
 The most common remedy for nuisance is an injunction, which orders the
defendant to refrain from the nuisance. Damages may also be sought.
TORTS AFFECTING THE PERSON AND CIVIL
LIBERTIES

 1. trespass to the person and


 2. defamation.
TRESPASS TO THE PERSON

 1. assault,
 2. battery and
 3. false imprisonment.
 All three can also be subject to criminal prosecution.
BATTERY V. ASSAULT

 involves unlawful contact with the body of the claimant, while assault consists of the
intentional and direct causing of apprehension and anticipation of battery.
 In assault there is no requirement of physical contact, nor must the claimant have suffered
damage.
 However, there must be active threatening behaviour that puts the claimant in fear of
possible battery.
 Waving or pointing a weapon in a threatening manner may constitute assault, as can a
prevented or failed attempt to use one.
 Simply standing in place without moving is not active behaviour and is not likely to be
recognized as assault.
 Unlawful contact with the body of the defendant does not have to cause actual injury.
BATTERY

 Battery is often assumed to equal acts of unlawful application of force to the


body.
 However, in some situations, force does not have to be applied at all.
 In medicine, medical treatment that goes beyond what the patient consented to
represents battery.
 In many cases, behaviour that might be construed as battery is in fact justified,
for example, if battery was committed in order to prevent greater harm or in self-
defence, or if it is used in order to lawfully remove a trespasser.
FALSE IMPRISONMENT

 False imprisonment is neither false nor must it involve actual imprisonment.


 ‘False’ means wrongful or unlawful, while ‘imprisonment’ refers to any kind of
complete deprivation of the freedom of movement.
 False imprisonment is mostly claimed in cases of unlawful arrest and detention, or
against police or security officers preventing persons from leaving an area without
proper justification.
DEFAMATION

 Defamation involves making false statements about another person which may
harm their reputation.
 There are two types of defamation:
 1) if defamatory statements are made in a transitory form, e.g. spoken word, they
are considered slander,
 2) those in a permanent form constitute libel. Permanent forms include written
words, broadcast statements or films. Modern technologies sometimes make this
distinction problematic, as in the case of statements in a transitory form recorded
by a third person. Libel is actionable per se. The statement must refer to the
claimant, contain false information, and be repeated to at least one person.
DEFAMATION

 Whether a statement is to be considered defamatory depends entirely on the


context in which it appears.
 It is likely to be accepted as such if it contains vulgar and derogatory remarks or
references to the claimant’s moral character.
DEFAMATION

 Possible remedies against defamation are an injunction and damages.


 Injunctions are used to prevent the publication or broadcast of defamatory
statements. However, they are seldom efficient as the claimant normally learns of
the defamatory statements only after they have been made public. In addition,
they are often criticized for being tantamount to censorship.
 Sometimes there is very little actual damage suffered from the defamation, so
only nominal damages may be awarded (e.g. in the amount of £1).
 Conversely, juries may award exemplary damages to punish the defendant and
express their contempt for the defamatory act.
IV DECIDE WHETHER THE FOLLOWING STATEMENTS
ARE TRUE (T) OR FALSE (F). IF FALSE, PROVIDE THE
CORRECT INFORMATION.

 1. Even though perceptions may differ, all torts are less serious than crimes.
 2. A lawsuit in trespass is only possible if the intruder has done damage to the
property.
 3. Rent-paying tenants cannot file a trespass lawsuit.
 4. Loud music coming from a neighbouring flat may constitute grounds for a
nuisance lawsuit.
 5. An injunction is the only legal remedy against nuisance.
 6. Shooting at someone using a gun without bullets constitutes assault.
TRUE OR FALSE?

 7. Battery refers to causing serious physical harm to another person.


 8. False imprisonment can only be claimed against the police.
 9. Libel is more serious than slander.
 10. An injunction is the most efficient legal remedy against defamation.
V SORT THE TORTS DESCRIBED IN THIS TEXT
INTO TWO COLUMNS.

 trespass nuisance assault battery false imprisonment


libel slander
ACTIONABLE PER SE REQUIRING PROOF OF
DAMAGE
VI REPLACE THE UNDERLINED EXPRESSIONS
WITH EXPRESSIONS FROM THE TEXT.

 1. Torts are less serious than crimes, but also refer to unreasonable behaviour
that usually results in injury.
 2. The injured person files a lawsuit against the person who has committed
the tort.
 3. Trespass refers to illegal entry into another’s land.
 4. The tort of assault entails causing fear of violence
REPLACE THE UNDERLINED EXPRESSIONS
WITH EXPRESSIONS FROM THE TEXT
 5. False imprisonment involves loss of freedom and can be claimed in cases of
illegal keeping in custody by the police.
 6. If a person renting a property fails to pay the rent, they are considered to be
trespassing.
 7. Slander refers to untrue and disparaging statements in impermanent form.
 8. Punitive damages may be ordered to be paid on top of general damages in
order to punish the defendant.
VII COMPLETE THE CHART

NOUN ADJECTIVE

tort

defamation

libellous

slander
ANALYZE THE FOLLOWING CASE SUMMARIES AND DECIDE
WHETHER THEY CONSTITUTE TRESPASS. DISCUSS WITH A PARTNER
WHETHER THE LEGAL REQUIREMENTS ARE MET. SUBSTANTIATE YOUR
ANSWERS.

 a. Police officers forcibly entered the defendant's premises in order to search


for documents. They were operating under a warrant issued by the Secretary of
State. The Secretary of State does not have the power to issue search warrants.
(Entick v Carrington, 1765)
 b. A neighbour's grass was cut and carried away by mistake. (Basely v
Clarkson, 1681)
 c. The claimant's gas and electricity metres were placed in the defendant's
cellar. Without the claimant's permission, the defendant turned them off cutting
off both supplies (Perera v Vandiyar, 1953)
 d. The defendant neighbour was carrying out construction work on his land.
His crane swung out over the claimant neighbour's land. (Woolerton & Wilson v
Richard Costain Ltd, 1970)
ANALYZE THE FOLLOWING CASE SUMMARIES AND DECIDE WHETHER
THEY CONSTITUTE NUISANCE. DISCUSS WITH A PARTNER WHETHER THE
LEGAL REQUIREMENTS ARE MET. SUBSTANTIATE YOUR ANSWERS.

 a. The owner of a plot of land allowed go-kart racing to take place on it. Neighbours
claimed nuisance. (Tetley v Chitty, 1986)

 b. A local authority leased a flat to a problematic family. The authority knew that the
family might cause problems. The family did ultimately commit several grave acts of
nuisance. The neighbours sued the local authority. (Smith v Scott and others, 1973)

 c. Unknown persons blocked a drainpipe on the defendant's land. He knew about it
but didn't do anything. The blockage caused flooding which damaged a neighbour's
property. (Sedleigh Denfield v O'Callaghan, 1940)

 d. The claimant lived close to a busy by-pass. Loud traffic noise could be heard
constantly. (Murdoch v Glacier Metal Co. Ltd, 1998)
ANALYZE THE FOLLOWING CASE SUMMARIES AND DECIDE WHETHER
THEY CONSTITUTE TRESPASS. DISCUSS WITH A PARTNER WHETHER THE
LEGAL REQUIREMENTS ARE MET. SUBSTANTIATE YOUR ANSWERS.

 e. Power cables running over a house caused bad television reception.


(Bridlington Relay Ltd v Yorkshire Electricity Board, 1965)

 f. The defendant, annoyed by the music lessons in the adjacent flat, banged
on walls, beat metal trays against it and shouted. (Christie V Davey, 1893)
DISCUSSION

 False imprisonment is often claimed against the police officers. Why do you think
this is an important tort? What does it protect? Can you think of other situations
where false imprisonment might be claimed?
 Assault and battery are also criminal offences. What is the point of these acts
being punishable both under criminal law and under tort law? Think of all the
possible reasons.
PART TWO:
DEFAMATION AND FREEDOM OF EXPRESSION

 I Discuss these questions with a partner.


 1. Defamation lawsuits are not uncommon in Croatia, either. Do you know of
any cases or at least public threats of defamation lawsuits? Who do they tend to
be made by?

 2. In your opinion, can the threat of a defamation of lawsuit limit free speech?
What stance should the courts take in adjudicating defamation lawsuits?
PRESS RELEASE
DEFAMATION LAWS TAKE EFFECT

 Libel laws in England and Wales are being significantly reformed from tomorrow
to provide clearer, better protection for people publicly expressing opinions.

 The Defamation Act 2013 reverses the chilling effect on freedom of expression
current libel law has allowed, and the prevention of legitimate debate we have
seen in the past. For example, some journalists, scientists or academics have
faced unfair legal threats for fairly criticising a company, person or product.
 For the first time a new serious harm threshold has been set to help people
understand when claims should be brought and discourage trivial claims that
harm freedom of speech and unnecessarily take up court time.
PRESS RELEASE
DEFAMATION LAWS TAKE EFFECT
 Justice Minister Shailesh Vara said:

 The introduction of these new measures will make it harder for wealthy people or
companies to bully or silence those who may have fairly criticised them or their products.

 As a result of these new laws, anyone expressing views and engaging in public debate can
do so in the knowledge that the law offers them stronger protection against unjust and
unfair threats of legal action.

 These laws coming into force represent the end of a long and hard-fought battle to ensure
a fair balance is struck between the right to freedom of expression and people’s ability to
protect their reputation.
PRESS RELEASE
DEFAMATION LAWS TAKE EFFECT
 The Defamation Act contains a series of measures that include:

· Protection for scientists and academics publishing peer reviewed material
in scientific and academic journals

· Protection for those who are publishing material on a matter of public
interest where they reasonably believe that publication is in the public interest
PRESS RELEASE
DEFAMATION LAWS TAKE EFFECT
 Introducing a new process which should help a person who feels an online statement is defamatory to
resolve the dispute directly with the person who has posted the statement. This offers better protection
for the operators of websites hosting user-generated content, provided they follow the new process. New
regulations have been introduced to ensure that this process operates effectively

 A single publication rule to prevent repeated claims against a publisher about the same material

 Action to address libel tourism by tightening the test for claims involving those with little connection to
England and Wales being brought before our courts

 Greater protection for secondary publishers including booksellers and newsagents by removing the
possibility of an action for defamation being brought against them if it is reasonably practicable for an
action to be brought against the primary publisher.
PRESS RELEASE
DEFAMATION LAWS TAKE EFFECT
 The old laws on libel had been criticised for being outdated, costly and unfair - the
new law seeks to ensure effective protection for freedom of expression and
encourages open and honest public debate, whilst still protecting those whose
reputation has been unjustly attacked.
III WHAT DO THE UNDERLINED EXPRESSIONS FROM THE TEXT
MEAN? WORK WITH A PARTNER TO PROVIDE EXAMPLES.

 1. “… new measures will make it harder for wealthy people or companies to


bully or silence those who may have fairly criticised them or their products”
 2. “… trivial claims that harm freedom of speech and unnecessarily take up
court time”
IV WORK IN PAIRS AND TAKE TURNS TO EXPLAIN THE
FOLLOWING KEY EXPRESSIONS FROM THE TEXT.

 peer-reviewed material public interest user-generated content


 single publication rule libel tourism secondary publishers
SUMMARY

 V Use the key expressions from the previous exercise to tell your partner in your
own words about the most important novelties of the new Defamation Act.
VI READ SECTION 2 OF THE ACT, WHICH
REGULATES THE DEFENCE OF ‘TRUTH’. ANSWER
THE QUESTIONS BELOW.
 2 Truth

 (1) 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.

 (2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more
distinct imputations.

 (3) If one or more of the imputations is not shown to be substantially true, the defence under this section
does not fail if, having regard to the imputations which are shown to be substantially true, the imputations
which are not shown to be substantially true do not seriously harm the claimant’s reputation.

 (4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act
1952 (justification) is repealed.
FIND SYNONYMS OF THE FOLLOWING WORDS IN THE
TEXT. THE CORRESPONDING SYNONYMS ARE
UNDERLINED.

 a. separate (adj.),
 b. largely, for the most part,
 c. rescinded or annulled (2 answers),
 d. accusation, suggestion, implication,
 e. communicated.
EXPLAIN THE FOLLOWING:

 2. Explain the defence of truth in your own words.



 3. Subsection 4 refers to a ‘common law defence’. What do you think that
means?
DISCUSSION

 VII Read Section 1 of the Defamation Act 2013, which defines ‘serious harm’
referred to in the text and discuss its meaning. Comment on the position of
corporations with regard to this provision. Do you think the level of protection
for corporations has been raised or lowered by this provision? What possible
problems in adjudication can you anticipate?
SECTION 1 OF THE DEFAMATION ACT 2013

 1 Serious harm

 (1) A statement is not defamatory unless its publication has caused or is likely to
cause serious harm to the reputation of the claimant.

 (2) For the purposes of this section, harm to the reputation of a body that trades for
profit is not “serious harm” unless it has caused or is likely to cause the body serious
financial loss.
RESEARCH

 1. Find information about the famous criminal case People of the State of
California vs Orenthal James Simpson (1995) and the ensuing civil trial Goldman vs
Simpson (1997). Focus on the parties, claims and judgments in each case. What
are the principal differences and what are the connecting factors between these
cases?

 These lawsuits are a good example of how the same act can lead to criminal
prosecution, and also a civil trial. Think of all the possible reasons why the civil trial
was initiated (if necessary, refer to Unit 6, Part two, where the basic differences
between criminal and civil trials are explained). Consider the remedies, the
procedure and the standard of proof.
RESEARCH

 2. The text ‘Defamation laws takes effect’ refers to the ‘chilling effect’ of the
old law on defamation. The expression refers to an undesirable effect (e.g. of a
law) that discourages the exercise of a certain right. Discuss with a partner
possible laws in your country that might have this effect. What do you know about
the law of defamation in Croatia? Does it have a chilling effect? Is the balance
between the protection of reputation and the freedom of speech well struck in
your opinion?
RESEARCH

 3. Find out about some defamation lawsuits in Croatia that received public
attention. Who were the parties? What statements were the lawsuits about? What
were the rulings?