Tuesday 7 November 2006

Today was the last lecture on the law of tort before turning to civil litigation. We began with:

TRESPASS TO THE PERSON
Trespass to the person consists of battery, assault and false imprisonment. As you should already know, all types of trespass certain features in common.

Trespass is actionable per se - the claimant does not have to prove actual damage to himself or to his property. The claimants interest in his personal security is regarded as being so important that it is protected even in the absence of actual damage.

The defendant’s act must be direct and physical - where an infringement is caused by an indirect act this may be remedied by an action in tort, but not in trespass. For example, if I throw a log and it hits you, this is trespass. If I throw a log and it lands in the road and you later trip over it, this may be actionable in the tort of negligence but it is not trespass as it is not direct.

In Scott v Shepherd (1773) – the defendant threw a lighted squib into a market place. It landed on a stall and the stallholder threw it on to a place where it exploded and injured the claimant. It was held that the instinctive action of throwing the squib on did not break the direct link between the defendant’s act and the claimants injury.

The element of fault - in assault and battery the defendant must have intention. For a long time it was thought that trespass could be committed negligently, see Fowler v Lanning [1959], but in Letang v Cooper [1965] it was held that there was no such thing as a negligent trespass.

BATTERY
The intentional and direct application of force to another person without lawful justification.

Any contact will suffice provided that it is both active and voluntary. To punch a person or steal an unwanted kiss may be a battery provided that the other requirements are satisfied.

It was stated in Cole v Turner [1704] that the “least touching of another in anger” was actionable as trespass to the person.

In Wilson v Pringle [1987] the Court of Appeal introduced the requirement that the claimant prove “hostility” on the part of the defendant but the Law Lords preferred to explain the law in terms of consent: T v T [1988] and necessity: Re F [1989] rather than hostility.

ASSAULT
Assault is an act of the defendant which causes the claimant to apprehend (fear) the infliction of unlawful, immediate violence, with the apparent ability to carry it out. For example, the adoption of a threatening body posture, with or without spoken threats. The act of shaking a fist at someone passing by on a train would not constitute an assault. What about pointing a gun at someone?

Normally, words alone do not amount to an assault, but there are contrary arguments. A threatening gesture accompanied by words that indicate there is no intention to carry out the threat does not constitute an assault: Tuberville v Savage [1669] – “If it were not Assize time I would not take such language from you.”

There is considerable support for the view that words alone should be capable of amounting to an assault. In the criminal case of R v Wilson [1955] the Lord Chief Justice considered that the phrase “get out knives” would constitute an assault. So a blind, or blindfolded, person should be able to sue for assault if threatening words are used against him.

The value of the civil remedy is to provide a deterrent to threats alone and, in appropriate circumstances, to allow the threatened party to land the first blow and justify the action as self-defence. Further weight has been given to this argument by the combined criminal appeals of R v Ireland, R v Burstow [1997] in which the House of Lords held that even silent telephone calls, which led the listener to believe that an immediate application of force was imminent, could constitute an assault under s47 OFFENCES AGAINST THE PERSON ACT 1861.

Ø Assault and battery often occur in sequence but it is possible to commit one without the other:

Ø Battery, not assault, to strike a person from behind or to strike a person who is asleep or unconscious.

DEFENCES TO ASSAULT AND BATTERY
Consent. A patient in hospital who signs a form, consenting in general terms to an operation, cannot sue the surgeon for battery. The surgeon need not explain every associated risk: Chatterton v Gerson [1981] and the idea that there was a doctrine of so-called “informed consent” in English law was rejected in Sidaway v Bethlehem Royal Hospital Governors [1985].

A person of sound mind can refuse medical treatment or food and the doctors or prison officers responsible for his care must abide by his wishes: Re T [1992] (adult releasing medical treatment). If the patient is not adult and competent, someone else may be entitled to give consent on their behalf, for example a parent for a child. In Re T [1997], the mother of T (aged one year) refused permission for him to have major surgery even though such action might prolong his life. Although the paramount consideration remains the interests of the child in such cases, proper weight had to be given to the heavy burden which the mother would have to bear in providing the intensive care which the child would need after the operation. In this case the situation was exacerbated by the fact that the mother and child would have to return to the jurisdiction and would lack the support of the wider family. The court did not order the mother to submit her child to the operation.

Older children may be “Gillick competent”, i.e. have sufficient understanding of the treatment to authorise treatment for themselves: Gillick v West Norfolk And Wisbech Health Authority [1986].

Consent is also relevant to participants in physical contact sports, and these are examples of implied consent. Boxers consent to be struck etc., as long as it is within the rules of the sport. Hitting the opponent over the head with a stool will certainly lead to an action.

Self-defence is available provided that reasonable force is used in defence of your person, your property, or another person. What is reasonable will depend on the circumstances of the case and the force used must be proportionate to the force offered.

FALSE IMPRISONMENT
The defendant intentionally causes the claimants freedom of movement to be totally restrained without lawful justification. The tort does not require incarceration as such and may be committed by any unlawful detention, such as compelling a person to remain in a field by threatening them with a shotgun (this would also be an assault). The most common modern example is wrongful arrest by a police officer or store detective, so reference must be made to the powers of arrest under PACE.

Restraint must be total. In Bird v Jones [1845] the claimant was prevented from crossing a bridge by a particular route. This was not false imprisonment as his restraint was not total.

The restraint will not be total if a person has a reasonable means of escape, such as stepping through a ground floor window. If the means of escape involves danger of physical injury, then it will not be reasonable to expect a person to use it, for example climbing out of a first floor window.

A person can be imprisoned without being aware, e.g. the claimant was asleep, drugged, or insane. Freedom of movement as such is protected. If knowledge is required then the tort protects against the mental effects of knowing that one is confined. Case law on this subject was once divided:

Herring v Boyle [1834] a child who was kept behind at school as his parents had not paid the fees and who was unaware of his detention was held not to have been falsely imprisoned.

Meering v Graham White Aviation [1919] it was held that a claimant who was unaware he was detained had been falsely imprisoned. The claimant was suspected of thefts at work and asked to wait in the manager’s office. Two security guards had orders to prevent him leaving if he attempted to. The claimant was unaware of this.

Where there is no contractual or other legal duty to release the claimant, a failure to release a person is not false imprisonment: Herd v Weardale Steel Co. [1915] where miners ceased work and demanded to be taken to the surface. A refusal to do so by the employers was not false imprisonment as they were under no duty to return the men to the surface until the end of their shift.

Where a person enters the defendants’ premises subject to a condition of which he is or should be aware then the defendants are entitled to refuse to release him until he complies with those conditions, e.g. leave only through the indicated exit: Robinson v Balmain Ferry Co. [1910]. The claimant entered the defendant’s wharf intending to leave by ferry. When he realised that he had missed the ferry he attempted to leave by the turnstile without paying the required one penny. A refusal to allow him to leave was not false imprisonment. It was clearly stated on a notice board at the entrance that a penny was payable on exit from the wharf (usually after a return journey had been made).

No tort will be committed where the claimants detention can be justified by law, e.g. on arrest. The law is complex, and usually a matter on constitutional law or civil liberties. A brief outline follows:

Ø Arrest governed mainly by PACE.
Ø Offences are now called criminal offences.
Ø The arrest can only take place if it is necessary.
Ø When judging the reasonableness of the grounds upon which a police officer makes an arrest without a warrant the House of Lords has stated that all the evidence should be weighed, including the source of the information, and the inferences drawn should be those that a reasonable man would make: O’Hara v Chief Constable of the RUC [1997].
Ø Person arresting gives reason, unless he makes this impossible by running away or resisting: Christie v Leachinsky [1947].
Ø The arrested person must be handed over to a police officer within a reasonable time. In Lewis v Tims [1952] a suspected shoplifter was detained for between 20 to 60 minutes while the permission of the store manager was obtained to prosecute This was a reasonable time.

The rule in Wilkinson v Downton
There is a principle in English law that if the defendant intentionally and without justification causes physical harm to the claimant, he is liable, whether or not his action can be classed as trespass. The practical joker:

Wilkinson v Downton [1897] – the defendant, as a practical joke, told the claimant that her husband had been in an accident and broken both legs. The claimant was awarded damages for the nervous shock which she suffered as a result.

PROTECTION FROM HARASSMENT ACT 1997
The Act came into force on 21st June 1997; there is already evidence that the judiciary see the wording of s3 of the Act as removing from them the responsibility for developing protection for the victims of harassment at common law, which will lead to the further demise of Wilkinson v Downton.

Section 3 of the Act provides for a civil remedy of damages to compensate for anxiety and financial loss in those circumstances where a breach of s1 has occurred or is apprehended.

Section 1 itself creates an (arrestable) offence of harassment, although the concept of “harassment” is not fully defined. The offence consists of a course of conduct (including speech) on at least two occasions. The harasser is judged by what he knows, or ought to know, will be conduct amounting to harassment of another.

NEGLIGENT MISSTATEMENT
This tort is based on negligence and covers statements of fact and opinion.

The tort of deceit is based on fraudulent misrepresentation and covers only statements of fact: Derry v Peek [1889] – a case based upon deceit, important here as it was thought to preclude any action for negligent misstatement causing an economic loss. The Court of Appeal re-stated the position; to sue for negligent misstatement or deceit there must be:

(i) A pre-existing contractual relationship, and
(ii) The relationship must be fiduciary, e.g. solicitor and client

Candler v Crane Christmas and Co. [1951] – the defendant accountants prepared the company accounts. They knew that they were to be given to the claimant to persuade him to invest money in the company. The claimant did invest and suffered loss due to the accounts having been negligently prepared, giving a false impression of the company. The claimant sued in negligence. The case was settled by the Court of Appeal who confirmed that there is no duty of care, as there is no contractual relationship.

The dissenting voice of Lord Denning should be remembered. He though that a duty of care should be owed towards:

A third party to whom the defendant shows the accounts, or
Any other person to whom they know their employer is going to show the accounts

so as to induce them to invest money, or take some other action on them.

He would not stretch the duty to include strangers of whom the defendant had heard nothing, and to whom their employer without their knowledge may choose to show their accounts.

All dissenting judgments are obiter, but it was to become the ratio of:

Hedley Byrne v Heller and Partners [1964] – the appellants were advertising agents who became doubtful about the financial position of a client, E Ltd. The appellant bankers enquired from E Ltd’s bankers (the respondents) as to the financial position of E Ltd. The defendant replied that E Ltd was a respectably constituted company, considered good for its ordinary business engagements. The advice was given with a disclaimer. Relying on the advice the appellants lost £17,000+ when E Ltd went bust. An action for negligent misstatement was begun, and ended at the House of Lords.

The action failed because of the disclaimer, but that is not important. The court stated that in appropriate circumstances a duty of care could arise to give careful advice and that failure to do so could give rise to liability for economic loss caused by negligent advice. The appellants had to overcome two barriers (apart from the disclaimer):

A supposed bar on claims for negligent misstatement arising from Derry v Peek.
Recovery for economic loss. The decision had the effect of allowing a claim for economic loss caused by words, but not acts. This distinction has been followed ever since.

The judge in Hedley Byrne refused to apply the Donoghue duty of care because:

An ACT affects only a few people, but once a negligent misstatement is made people could be affected for a lengthy period of time.
Even prudent people make statements on social occasions which may influence others without taking the care that they might in a business situation.

The purpose of Hedley Byrne lies in the concept of a SPECIAL RELATIONSHIP. Without it there can be no duty of care. Look for:

A special skill
Reasonable reliance on it
The defendant being aware of the type of transaction that is to be based on the advice

Special Skill
Examples where this minority view have been followed:

Esso Petroleum v Mardon [1976] – the claimant relied on Esso as to the throughput of petrol at a garage.

Spring v Guardian Assurance PLC [1994] – concerning a reference.

T (A minor) v Surrey County Council and Others [1994]: The mother of T asked the local authority for details of registered child minders. There were none available at that time. The mother saw an advertisement by a Mrs W, and so she asked the local authority if she was okay. She was told by adviser B that she was registered and that there was no reason why T shouldn’t be left with her. Less than three months earlier a child in W’s care had been seriously injured, probably through violent shaking. There had been two case conferences where B had been present, but the matter had not been resolved. There was no de-­registration, but B advised Mrs W that she should mind only two-five year olds in future. Within a short time of T being minded by Mrs W he suffered brain damage similar to that of the previous case. T sues Mrs W and the local authority for personal injuries:

If the local authority informs a parent in such circumstances knowing that there was a significant risk it might be liable for negligent misstatement
Here there was a significant risk to any infant in Mrs W’s care
The local authority is liable for negligent misstatement.
Mrs W is judged against for breach of contract, negligence and assault.

What happens where there is no reliance by the claimant?, e.g. B relies on a statement made by A, and loss is caused to C as a result.

Ross v Caunters [1980] – the defendant solicitors prepared a will, but failed to warn the testator that it should not be witnessed by a spouse if they are a beneficiary. The will was witnessed by the husband of the claimant beneficiary, with the result that the legacy was rendered void. The defendant admitted negligence, but argued that he only owned a duty to the testator (special relationship under Hedley Byrne). The claimant was permitted to recover under the tort of negligence, although not for a negligent misstatement.

White v Jones [1995] – House of Lords confirmed Ross v Caunters.

Caparo Industries v Dickman [1990] – the accountants prepared the accounts in accordance with the Companies Act 1985 and the investor loses cash. To establish a duty of care a claimant must show:

Foreseeability of damage
Proximity of relationship
Reasonableness of imposing a duty

and, therefore, a defendant takes on a responsibility for giving advice to a KNOWN RECIPIENT for a SPECIFIC PURPOSE, and BE AWARE THAT THE ADVICE WOULD BE FOLLOWED.

Reasonable Reliance
The advice must be given in circumstances which the reasonable person in the defendant’s position would appreciate that his advice would be likely to be relied on.

The House of Lords had said in Caparo Industries that the circumstances could differ infinitely, there can be no necessary assumption that those features found to create a relationship in one case will necessarily determine liability in another.

Chaudhry v Prabhaker [1988] – the claimant asked a friend who had some knowledge of cars to find a suitable one that had not been involved in an accident. The defendant found a car and recommended it to the claimant. She bought it, it had been in an accident and so she sued. A duty of care exists as per the Hedley Byrne principles.

What happens where the representor attempts to exclude liability knowing that reasonable reliance is to be made on the statement?

Smith v Bush [1989]
Harris v Wyre Forest District Council [1989]

Both decisions made simultaneously by the House of Lords. Valuations were carried out on properties for the claimant’s by the defendant’s. A disclaimer was inserted in the valuations. Three questions were answered on appeal:

(1) Was a duty of care owed to the claimant? Certainly yes to the claimant, but not subsequent purchasers because of proximity
(2) Did the disclaimer fall within the ambit of ss 1, 11 and 13 UNFAIR CONTRACT TERMS ACT 1977? – although not relevant here
(3) Did the notice satisfy the requirement of reasonableness under s2(2)? The court looked at the bargaining power of the parties, could advice have been obtained from another source?, and the practical consequences of the decision.

The disclaimer was held not to be reasonable.

General Liability for Statements in Tort
An outright lie – fraudulent – tort of deceit
Negligent and loss results – Hedley Byrne
A lie about another person – tort of defamation, permanent form is libel, transient form is slander.

Spring v Guardian Assurance plc [1994] – the claimant was employed by C Ltd. In April 1989 C Ltd was taken over by the defendant company, Guardian Assurance. In July the claimant was sacked when it was discovered he was to join a rival firm. The claimant tried to set up business selling policies of another company, but that company refused to employ him due to the awful reference given by the defendant. He tried to get employment with a further two companies, but without success. The claimant brought an action against the defendant for loss caused by the reference. The Trial Judge found that:

The defendant owed a duty of care
They were negligent in preparing the reference
Damage had been caused

The Court of Appeal allowed the appeal, but this was reversed by the House of Lords who imposed a duty of care on past or present employers, or on a prospective future employer in preparation of a reference.

TSB plc v Harris [2000] – an accurate and truthful reference may not be reasonable and fair.