77391781-Law-of-Torts

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Law of Torts
Introduction
Tort comes from the expression à tort in French. In English law, tort is believed to be older than crime. Contrary to French law, in English law the law of torts may take many forms. The most important one being the tort of negligence. But we have other forms of torts as well such as trespass, defamation, nuisance or economic tort known in the employment field. There is no real definition of what is really tort in English law, but in all tort cases, a person A is making a sort of complaint about misconduct of person B or misconduct for which person B is responsible in law. In some cases, person B must have had the intention to harm person A before liability can be established. In other cases, it's enough if person B was just negligent. In some case we speak of strict liability (responsabilité sans faute ou de résultat). Negligence the form of tort which is the most important one. In summary, tort law can be defined as the law of civil wrongs concerned with behaviour, which is legally classified as wrong or tortious that makes the claimant entitled to claim a remedy.

Functions of tort law or principles underlying the tort of negligence
The first function of tort law is compensation, the obvious subject of tort law. Concerning compensation English courts are guided by the principle « restitutiou entegrum » (la réparation intégrale). The usual remedy in tort law will be damages. But for some forms of torts other remedies such as remedy of injunction (remise en état) will be more accurate. The aim of compensation in practice is subject to obstacles. For exemple for the loss of foot, the only remedy possible is a sum of money representing that loss. Also English law has set limits on the types of losses it will compensate. For exemple, it's difficult to get compensation for mental distress or psychiatric illness or pure economic loss. In many cases the tort law has been supported in its compensatory rôle by group of insurances. In case of accidents in workplaces employers will be taking insurance. The second function of tort law is abstract justice which is the idea of vengeance, but which is less relevant today. The third function of tort law is deterrence or dissuasion. The concept of tort liability acting as a deterrent is a simple one. If you cause harm because of your actions or omissions, you will have to pay damages which means in the future you will try to act differently. We can see its application notably in the law or tort of defamation. Publishers will try to avoid defamation complaints. This objective of deterrence is supported in English law by the court's power to award punitive or exemplary damages. Punitive damages are damages seeking not to compensate the claimant but to punish the defendant for acting deliberately with the view of profiting from his or her act. The last function of tort is the idea of fault which is common to justify compensation. This idea has become quite important with the development of

tort of negligence. But today compensation is the most common reason to justify a claim in tort.

Interests protected by tort law
Tort law aims to protect the individual from actual or future threats from harm to specific interests to the person, property, economic or financial interests and reputation. Tort law clearly offers protection against physical harm and as mentioned before, English courts have been quite reluctant to offer protection against other forms of personal harm such as mental harm. Concerning mental distress or harm, with the harassment act of 1997, it's possible to claim compensation for mental distress. For example for mental distress caused at the workplace. Second threat is harm to property. The protection against harm to property is very important in English law whether personal property or land. The torts important to protect these interests are the tort of trespass and nuisance. Lastly it's the harm to financial or economical interests. English law has limited protection against this kind of harm. When tort law interferes in this area that will be the situation whether the defendant has intentionally interfered with business relations of others. Harm to reputation will be protected by the tort of defamation. An important impact of the European convention of human rights on this tort. The convention is transposed by the HRA 1998. which means that proceedings for damages may be brought before the ECHR. Recent years there have been important decisions concerning article 10 of the ECHR which speaks of Freedom of expression. Compared to the French system, the later which sets out a general principle in this area, for example we have article 1382 of the civil code proclaiming that any act whatever of men which causes damage to another obliges the one by whose fault it occurred to compensate it. We also have article 1383 of the civil code which provides that everyone is liable for the damage he or she causes not only by his intentional act but also by his negligent conduct or by carelessness. English law provides a number of specific torts, the most important one being the tort of negligence, but other forms of torts will also be examined in different chapters.

Chapter 1: Tort of Negligence
The tort of negligence has flourished in the latest part of the 20th century. As a consequence of it's flexible nature it has allowed the courts to expand the tort to protect many situations which otherwise would not have been protected by law. The tort of negligence is defined as a breach of legal duty to take care which resolves in damage to the claimant. This tort is not usually concerned with harm inflicted intentionally, rather it's concerned with harm inflicted accidentally or through want of care (manque de soins).

To establish the tort of negligence three conditions must be satisfied: – the defendant owes the claimant a duty of care – the defendant has acted in breach of the duty of care – the breach of the duty of care caused damage of a legally recognised kind to the claimant. – In English law there may be defenses for the defendant. We will examin these points in four sections.

Section 1: Duty of Care
In English law, the courts have struggled to determine the proper scope of negligence. In many situations it will be obvious from established case law that the defendant owes a duty of care. If there is no duty of care then failure to take reasonable care cannot give rise to liability. The real problem of the English Courts has been to decide when there is a duty of care in situations not covered by authority (case law). Because contrary to the French system, there is not a general principle for determining the existence of the duty of care. From a historical point of view English courts have had to identify a general principle of the existence of a duty of care. It was established in a famous case called the Donoghue case 1932, which has not been easy to apply in most cases. Today the criteria applied are the criteria of Capparo case.

I. Identifying a general principle of the existence of a duty of care
Even if in the 19th century English courts came to recognise that liability could be based on careless conduct, there was no general principle of law applicable to these situations. In the decision Winterbutton v. Wright of 1842, the HL now known as the Supreme Court refused to set such a general principle. But in Donoghue v. Stevenson 1932, the HL for the first time considered that there was such a principle. In this case, Lord Atkin specified: « you must take reasonable care to avoid acts or omissions which can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation when I am directing my mind to the acts or omissions in question ». this principle is known as the neighbour principle. The significance of this principle was that it firmly established negligence as an independent tort and provided a basis for its expansion to cover situations not governed until now by case law. To understand the meaning of the neighbour principle, the facts of the Donoghue case are important. Miss Donoghue and her friend went to a café and at the café the friend bought for Miss Donoghue a ginger beer float, consisting of ginger beer supplied in an opaque bottle and served usually with ice cream. Miss Donoghue drank some of the mixture from the opaque bottle and when her friend topped up the drink out of the bottle floated the decomposed remains of a snail. Miss Donoghue claimed that the sight of the

snail together with the ginger beer that she had already drunk made her ill. In law she could not sue the retailer for breach of contract. The majority of the HL considered that the manufacturer would be liable to the consumer in tort as he failed to take reasonable care to ensure that the product was safe and decided clearly that privity of contract (effet relatif du contrat) did not prevent a third party bringing an action in tort. Lord Atkin's general principle contain two elements: – element of reasonable foreseeability; the defendant ought reasonably to foresee that his failure to take care may cause injury to another – the test of neighbourhood Nevertheless, the principle set by the HL in Donoghue suffers from a number of fundamental flaws. The reception... of the courts was to treat the Donoghue case as a narrow example of liability, which means that the judges were not ready to apply the principle of the Donoghue case in situations where there was clear authority which excluded liability in negligence. For example when the claimant suffered financial loss. After the Donoghue case, in many cases they HL had to overturn previous authority to extend the scope of the duty of care. In 1985, the approach such as set by the Donoghue case was abandoned by the HL and in the Capparo case the HL gave guidance as how to decide when a duty of care should exist. This leads us to consider in the second paragraph the criteria applied today.

II. Considering the criteria applied today
A. The Capparo Criteria According to the dictum in the Capparo case, in factual situations all the following elements must be satisfied before a court admits that there is a duty of care. – the damage must be foreseeable: by foreseeability we mean a reasonable person in the circumstances of the defendant ought to have foreseen and not what the defendant actually did foresee. – there must be a sufficient proximate relationship between the claimant and the defendant: it's quite difficult to determine what is proximity. It refers to the closeness of the relationship; there must be some kind of nearness between the parties. This can be physical proximity in terms of geographical limits or legal proximity for example in case of contractual relationship between the parties. Of course, the degree of proximity will differ according to the type of harm in seeking compensation. In economic and financial loss this would be difficult to establish. – It must be fair, just and reasonable for the court to impose a duty of care in the light of policy considerations with which the court is concerned. The criteria is somewhat vague and in one sense it's this vagueness which makes the criteria useful for the judges. In most cases, the elements of the

criteria will depend on the type of harm. B. The type of Harm In English law it's generally much more difficult to establish a duty of care in respect of economic losses or mental or psychiatric problems than in respect with damages to property or physical harm. Broadly speaking, in English law no duty of care is ought for avoiding economic losses by carelessness or negligent activities. Also concerning the type of harm, it's clear that it would be very difficult for the English law to claim damages for psychiatric illness. 1. Economic loss by negligent activities The traditional and modern approach for this kind of loss is very restrictive. Generally, the English courts consider that economic loss cannot be recovered in tort where this will undermine contractual intentions. 2. Economic losses statements caused by negligent services and

Here, contrary to negligent activities, it's possible to claim for losses caused by negligent statements and services. The famous decision in this area is James McNaughton Paper Group v Hicks 1991. In this decision, the HL considered that in deciding whether a duty of care existed, it was necessary to take into account all the circumstances of the case. From this decision it's today possible to identify 6 factors for deciding whether there is a duty of care deriving from negligent services and statements. – the purpose for which the statement is made: where one of the main purpose of making the statement is to advice the advisee it will be easy for the courts to conclude that the advisor held a duty of care. But when made for other purposes it's necessary to look carefully at the purpose for which the statement was communicated to the advisee and the purpose for which it was used. Concerning the purpose the courts have to ask the following questions: – Was it only for information? – Was it made for some action to be taken? If so, what kind of action and by whom? – The relationship between the advisor, the advisee and any relevant third party. – The size of the class to which the advisee belongs. Is there only a single advisee or he is member of a much larger group. – The state of knowledge of the advisor. A duty of care can only be held by the advisor in respect of transactions. – Reliance by the advisee: the court has to see whether the advisee in fact relied on the statement or did he simply act according to his own judgement. – Reliance by the advisee must be reasonable and must have actually taken place. 3. Psychiatric illness

It's important to be clear as to what we mean by psychiatric illness. What is at issue is not so much the fact that the claimant suffers injury to his state of mind, but the manner in which the claimant suffers it. Not as a direct consequence of a physical impact, but rather through the shock of what he perceived through his eyes or years. The English law has a restrictive approach to the psychiatric illness, because firstly it's difficult to prove the damage, and secondly because the courts want to avoid floodgates claims. From historical point of view, the English law has developed quite slowly to admit certain claims to psychiatric harm. Off course this is not really true when there is a fear for one's own safety. Ex: this was admitted since 1888 in a case called Victorian Railway 1888, but English courts were more reluctant to admit claims for psychiatric illness when there has been fear for the safety of others. The current legal position on psychiatric illness is that there is still a distinction between the primary and secondary victim. – secondary victim: is the claimant who has fear for the safety of others. The famous case concerning secondary victim is the Alcock of 1991 case where the HL set a number of conditions to be satisfied before admitting a claim for psychiatric illness. – Claimant should suffer from a recognisable psychiatric illness – A psychiatric illness must be caused by a shocking event and any ordinary claimant would have suffered psychiatric illness in these circumstances. – A claimant should be close in time and space to the shocking event and percieve it or its immediate impact or effect with his own unaided senses. Mcnaughton case 1991. A law commission that considers that this condition should be ignored if there is a close relationship between the victim and the person suffering. – the claimant should have a close tie of love and affection with the person in peril. If all these conditions are satisfied the court will decide that in this case there is a duty of care owed by the defendant to the claimant. The relative importance of these factors differ from case to case. – Primary victim: is the claimant who has fear for his own safety. In this situation, the courts consider that the conditions set by the Alcock case would not apply, but it's still necessary for the claimant to recognise a psychiatric illness. Concerning psychiatric illness caused by pressure at workplace, it's now possible to claim damges under the harassment act. C. The type of act Misfeasance and non feasance. Misfeasance is when the damage is caused by a positive act, and non feasance is an omission. English law draws a distinction between a positive act which causes harm and a mere failure to prevent the harm. Common law does not impose liability for pure omission. This was made clear in Smith v Little-wood 1987. To draw a distinction between a positive act and an omission may be sometimes difficult and has in fact given rise to quite a lot of problems. Ex: a driver who causes an accident by failing to stop at a red light. Is he guilty

of an omission or positive action? We can say omission, but the law considers him liable because this omission cannot be separated from the positive act of driving. The main question is whether the omission can be seen as having been made in the course of doing some positive act. In some cases, whether there is misfeasance or non feasance, depends on the relationship between the claimant and the defendant. It's the idea of proximity as developed in the Donoghue case. Generally the rule against liability for omission gives rise to two important propositions: – In English law there is no general duty to rescue a person: no duty to be a summaritan. This is contrary to French law. However, there may arise such a duty to rescue if a prior duty of care exist between the defendant and the claimant. For example: a father or a mother may be liable in negligence if they just stand by and let their children drown. This does not apply to a bystander. – In English law there is no general duty to prevent other people from causing damage. But there are 4 situations where liability for the acts of third parties may arise: – When there is a special relationship between the defendant and the claimant – Stansby case of 1948 where the defendant had assumed responsibility to look after the claimant's property. The claimant employed a decorator. He went out and left the house unsecured. After the event of a robbery, the HL held the decorator responsible for the losses because there was a sort of contractual relationship between the claimant and the defendant. – When there is a special relationship between the defendant and a third party. The most common example concern the employer when there is a relation of control over a third party who causes harm. – When there is creation of a source of a danger sparked off by a third party. It's the case of Haines v Harwood 1935: the defendant left his horses unattended in the street. A boy who was passing by just threw a stone at the horses that caused the horses to bolt up. The defendant was held liable because the claimant was injured by the horses when trying to save other people from being hurt. Another ex: a defendant who held an unsecured shed full of fireworks which were subsequently ignited by children that caused harm to other persons – When a person fails to take reasonable steps to diminish a danger created by third parties. This will be the case when the defendant knows or reasonably ought to know that third parties are creating a danger on his or her premises, then the defendant is under a duty to take reasonable steps to abate (diminuer) the danger. Clark-fixing Ltd 2001: a trespasser on a vacant site started a fire which burned the neighbour's property. The defendant, a council was held liable for failure to remove combustible material to prevent the spread of fire. D. The kind of defendant In English law before imposing liability on the defendant, the courts will usually look beyond this individual case. Thus there are certain defendants for whom the scope of liability will differ, there may be either an increase or a redaction

of liability or even no liability. This question affects a number of professional groups. In relation to them, the English courts have adopted a slightly different approach. Ex: – concerning the field of medical services, English courts will usually decide that a doctor will not be in breach of his duty of care if his behaviour is that of the standard of other people. – It's the same concerning local authorities or legal professions. Concerning the later, generally judges and even arbitrators can be sued for their activities during a case. Before 2002, barristers and solicitors enjoyed a similar immunity. But this immunity has been abolished since the famous case Hall v. Simonds. Outside the areas of pure economic loss or psychiatric illness or omissions or acts of third parties and also some public bodies where a private individual commits a positive act which foreseeably causes physical harm to the person or property of the claimant, the defendant is considered to owe a duty of care and in most cases the condition set by the Caparro Case will be considered as being satisfied by the court.

Section 2: Breach of duty of care
in practice the breach of duty is an important element as far as tort of negligence is concerned because in most cases the existence of a duty of care and questions of causation are rarely an issue. To establish a breach of duty of care two points must be considered: – the standard of care required of the defendant – the proof of the breach

I. The standard of care required
this is a question of law. What was the standard of care required from the defendant. This standard is generally measured according to an objective method. In English law it will be the standard of a reasonable man. The concept of reasonableness is necessarily a flexible one so as to fit most of the cases that may arise. The courts have not set up in precise and definite terms what amounts to reasonableness, but there are some general rules which the courts apply in setting the standard of care required. Off course in some cases, the law expects special standards of care from special categories of defendants. A. General factors taken into account in deciding the standard of care required The law's starting point in deciding whether the defendant's conduct is that required or met by the other person will be the conduct of the standard hypothetical reasonable person.

Blyth v Birmingham 1856: the HL decided that negligence is the omission to do something which a reasonable man guided upon these considerations which ordinarily regulate the conduct of human affairs would do or that would be doing something which a prudent and reasonable man would not do. Two important points must be noted about the standard of the reasonable person. – first the standard is objective. This means the important question is not what we could have expected this particular defendant to do in these circumstances, but what we could expect a reasonable person to do. – Secondly this standard does not often reflect the average behaviour. We have to examine here what are the various or different factors which English courts take into account in deciding whether this standard of care has been met. If we refer to case law, there are a set of five rules: – the foreseeability of harm: if the particular harm the claimant suffers is not foreseeable, the defendant will not be liable. – the magnitude of the risk: in English law, the reasonable person is not expected to take precautions against risk that are very small. Assessing the magnitude of the risk involves examining two elements. – First element is the likelihood that the harm will occur: Bolton v Stone 1951: a claimant was standing outside her house on a quite street. She was hit by a cricket ball coming from nearby cricket ground. It was clear that the defendant cricketers could have foreseen that the ball might be hit out of the ground because this happened before, but it was a very rare occurrence. Evidence showed that this happened on six occasions in the previous thirty years. In fact, there was a fence around the ground which was some 7ft high and due to the slope of the ground the top of the fence was some 17ft above the level of the pitch. As regards to these facts, the HL held that in these circumstances the chance of an injury occurring to someone who was standing in the position of the claimant was so slight that the defendants were not negligent in continuing to play cricket without taking additional precautions. In the Haley v London electricity board 1965, the HL decided that what is important to ask is « has the reasonable man (defendant) tailored his conduct in the light of the characteristics whom he knows his conduct might affect ». – and secondly, how serious the consequences will be if the harm does occur: as far as the seriousness of the consequences is concerned, the risk of harm materialising must be measured against other factors including the seriousness of the consequences if the harm does materialise. This simply means that the more serious the consequences are the greater will be the obligations required of the defendant. Paris v Stepney borough Council 1961: the claimant who was blind in one eye was employed by the defendants in a garage. One day he was asked to dismantle the chassis of a large vehicle and for this he had to use a hammer to knock out a rusty bolt. Unfortunately a fragment of metal came off the bolt and hit him in his good eye causing him to become totally blind. The risk of such an

injury occurring was extremely small and did not justify the use of goggles by ordinary workers. Nevertheless, the majority of the HL held that the defendants were liable for failing to provide this particular worker with goggles knowing that he might suffer such serious consequences if the small risk materialised. – the burden of taking precautions: the court will here take account of the cost and practicality of taking precautions against a risk. If the burden of taking precautions or steps to eliminate a risk is far greater than the benefit obtained by its elimination, then failure to take steps will not generally amount to negligence. If we refer to the Bolton case, for defendants it would have meant to stop playing cricket. It was out of proportion to the risk that had to be avoided. The reasonable man only has to do what is reasonable in order to avoid risk of harm. This means that there is no obligation to take extraordinary steps or precautions particularly if the risk is slight. A difficult issue concerning this question is whether the financial resources available to the defendant should be taken into account concerning precautions to be taken against a risk. This depends on the circumstances of each case: – Decisions concerning the standard of care required by public authorities show that the financial resources available to the authority are a relevant consideration in setting the standard of care. Knight v Home Office 1990: decided that the prison authorities were not negligent in failing to provide the same standard of care for prisoners suffering from psychiatric illness that could be expected in a psychiatric hospital outside prison. Lack of financial resources would not operate as a complete defence. – the utility of the defendant's conduct: here the greater the social utility of the defendant's conduct, the less likely it's that he will be held negligent. – the common practice: actually failure to conform to a common practice of taking safety precautions is strong evidence of negligence because it suggests that the defendant did not do what others in the community regard as reasonable. A defendant will be held negligent if and only the cost of taking precautions is less than the probability of harm occurring. B. Special standards of care There are certain types of defendants to whom additional special rules apply in deciding the standard of care required of them. Four categories of defendants are concerned: – The children: the conduct of a child defendant is judged in English law by reference to the standard of conduct that can be expected of a reasonable child of the defendant's own age. The standard of care applied to children remains an objective one. – The defendants acting in emergency: the defendant is forced to act quickly in the heat of the moment. The standard of care is relaxed to take into account a situation of emergency. In other words, if the defendant is under some compulsion whether the legal or moral to act in an emergency situation, he maybe expected to be less careful.

– The defendants engaged in sports: the standard of care required here will depend under the second sss of the case including whether the person is a professional or amateur. Usually those engaged in sport owe a duty of care both to other competitors and to spectators. Since the Woolridge case of 1963, the CA laid down a test concerning the standard of care of such categories. Participants in sports would only be liable to spectators if he had acted in reckless disregard of the spectator's safety. But in Wilks case 1971, the CA applied a new test suggested by professor Goodhart in his critics on the Woolridge case. In this new case, the CA decided that there was negligence if injury was caused by an error of judgement that a reasonable competitor being the reasonable man of the sporting world would not have made. After the Wilks case, judges in other decisions consider that must also be taken into account the fact that a competitor could be reasonably expected to try to do everything to win even if this means exposing others to small risk. – The defendants claiming special or professional skills: Bolam case 1957, a very important case sets two principals: – Where the defendant purports to have special skill, his conduct is judged according to the standard of care of a reasonable person having the same skill the defendant claims to possess. This standard is not judged by the standard of lay person. For example, a lawyer will be judge by the standard of care of a reasonable lawyer. – The law will not regard a professional defendant as having fallen below the required standard of care if it's shown that the defendant's conduct is regarded by one responsible body of professional opinion. In certain circumstances, the professional may discharge his duty of care by simply refusing to act. Ex: barristers have a professional duty to decline cases that are beyond their competence. But this does not apply to all professionals. In fact, recently in the decision of 2007, the HL suggested that it's for the court in each individual case to determine what is the standard of care appropriate to professionals against whom negligence is alleged and not referring to professional opinion. – The motorers: in English law, in general the same standard of care is expected of all motorers, even novice motorers. Nettleship v Weston 1971: here a learner driver on her third lesson crashed into a lamp post injuring the person teaching her to drive. The CA held that she was liable despite being a learner driver.

II. Proof of the breach of the duty of care
Generally, the claimant bears the burden of proving breach of duty of care, but there are certain circumstances where special rules will discharge this burden. A. The civil evidence act of 1968 Section 11 of this act provides that in a civil trial proof that a person has been convicted of a criminal offence shall be taken as proof that he or she committed the offence unless the contrary is proved. In the context of negligence, mainly in negligence trial, this means that if the

claimant shows that the defendant has been convicted of an offence arising out of the same facts as those in issue at the trial, the burden of proof is reversed. The defendant will have to disprove negligence. Ex: Wavchope case 1970: the plaintiff was injured by being knocked off his bicycle when the defendant suddenly opened the door of a parked car. The defendant was convicted of an offence arising out of an incident. The CA held that the effect of section 11 of the 1968 act was to shift the burden of proof to the defendant. In this affair, since the defendant had failed to prove that he had not been negligent, the CA held that the trial judge had been wrong to dismiss the claimant's case on a finding that the plaintiff had not proved negligence. B. The maxim res ipsa loquitor It means that things speak for themselves. When the maxim applies the court is prepared to conclude that the defendant has been negligent without requiring the claimant to bring evidence about the precise way in which negligence has occurred. Two points concerning this maxim: When does it apply and it's effects? 1. When does it apply? There are 3 conditions that must be satisfied. – the occurrence must be one that will not normally happen without negligence. Decision Scott v London and Saint Katherin Docks 1865: the claimant was passing the defendant's warehouse when 6 bags of sugar which were being hoisted by the defendant's crane fell on him. There was here no obvious alternative explanation why the bags fell off the crane. These facts were sufficient to give rise to a deduction of negligence because someone must have been negligent. Bags of sugar do not usually fall from a crane. Today, as the reliability of machines have improved the courts have become more willing to conclude that accidents involving machines are more probably due to the negligence of their operators rather than to mechanical failures. – The defendant must have control of the thing that causes the harm. – The cause of the occurrence must be unknown to the claimant. This means that when the facts are sufficiently known there is no need to invoke the maxim because claimant can prove what actually happened. 2. The effect of the maxim It's much debated. In a case of 1998, a private council in Ngchunpui, had reasserted that in res ipsa loquitor cases the burden of proof does not switch to the defendant. More recently, in Bell and mainly in Ratcliff case of 1998, the court considered that the defendant can counter and demonstrate that he/she was not responsable.

Section 3: Causation and remoteness

Causation deals with the question of whether the defendant's action can be considered to be the legal cause of the claimant's loss. Here to answer this question, two separate issues must be considered. – whether what the defendant did was the factual cause of the claimant's loss (theorie de la causalité adéquate) – whether in certain cases the law should not consider the defendant liable because the loss is too remote.

I. Causation
It's quite a difficult subject whether in English or French law. In English law, there are different approaches to causation. Secondly, it's the question of proof of causation that causes problem. We will also be dealing with the new intervening act. A. Different approachs to causation 1. The but for test The law's starting point regarding causation is to apply the « but for » test. This leads to asking the following questions: Would the claimant's loss have occurred in any event even without the defendant's conduct? If the answer is yes, then the defendant would not have caused the claimant's loss. Classic application of this is in Barnett v Chelsea and Kensington Hospital 1969: a man went to a casualty department feeling unwell after having drunk some tea. The doctor in charge sent him away without treatment telling him to see his own doctor. The poor man subsequently died from arsenic poisoning. It was held that the doctor was in breach of his duty of care in failing to examine the man. But expert evidence indicated that having drunk the arsenic the man was beyond help when he arrived at the hospital. It was considered that the doctor's breach of duty had not caused the man's death. In general, in applying the but for test, the courts take into account not only existing causes that might have produced the claimant's loss but also hypothetical causes that might have produced the loss. This test works well in the majority of cases except in cases where there are multiple causes. 2. Multiple causes It may generally arise in two ways: when there are concurrent causes and consecutive causes. – Concurrent causes: it concerns indeterminate cause and cumulative cause: – Indeterminate cause: in such cases there is more than one defendant but only one that we would classify as operative cause of the claimant's loss and one does not know which one of the defendant's

acts produced the loss. Ex: several defendants shot their guns in the claimant's direction and the claimant has one bullet in his leg. In Fairchild case 2002, the HL concerning a disease contracted by the claimants by contact with a single fiber of asbestos decided that as it was impossible to determine which of the defendant's employers had exposed the claimant to the fiber made all employers liable to the full amount of the claimant's losses. – Cumulative cause: for example two negligently started fires each capable of burning down the claimant's house, they converge and destroy the house. Applying in this situation the but for test would result in neither of the defendants liable. The usual approach of the court is to say that because either negligent act would have produced the same damage each defendant must be liable for the whole of the damage. However, if evidence shows that one defendant is more responsible than others the courts will decide the question of liability in proportion to the fault of the defendant. But in some situations cumulative cause may occur when for example the defendant commits a tortious act and very shortly afterwards and before the force of that act is spent a second defendant commits an act which combined with it produce a single result that might not have occurred without the operation of the second act. In such cases, both the first and second defendant may be liable for the result produced. Ex: a negligent driver A causes his vehicle to obstruct the highway, subsequently a negligent driver B crashes into it causing harm to a bystander C. In this event, both drivers are held jointly liable. – Consecutive causes: the key issue here is whether where one act succeeds another there are circumstances where the effect of the first act can be considered to have become overtaken or obliterated by the effect of the second act in such a way the first act ceases to be a cause of a claimant's loss. In most cases the court tends to decide that the second tort had no effect given the continuing effect of the first tort/act. Ex: Baker v Willoughby 1970: the plaintiff was run down by the defendant's negligent driving suffering thus a stiff leg which caused him loss of mobility and quite an important reduction in his earning. Before the action came to trial, the poor man was shot in the same leg by armed robbers after which his leg had to be amputated. The defendant argued that his liability should be limited to the loss caused by the original injury. The HL rejected these arguments and held the defendant liable for all the conséquences of the first injury just as the second injury had not occured. The second injury had not dimished the loss, the plaintiff would continue to suffer. B. Proof of causation Problem of the proof of causation is the quesion: how do the courts approach the question of requiring the claimant to prove that the defendant's breach is the cause of his/her loss? The answer depends on the type of the case and looking at the decision given, one can say that these decisions are influenced by policy considerations. Two different approachs can be decerned generally, each being a pragmatic response to what the courts percieves as a necessary demand of justice. They are the following:

– the all or nothing approach – the material increase in risk approach 1. The all or nothing approach This will be applied in most cases; the claimant must show that on the balance of probabilities it was the defendant's breach that caused the loss and not some other event. He could invoke the rule of the facts speak for themselves « res ipsa locquitor ». 2. The material increase in risk approach It's enough for the defendant to have materially increased the risk to make him liable. In other words, if the defendant by his negligence has created a risk of a typical kind of damage and when damage of that very kind materialise, the defendant should not be allowed to escape liability because of the claimant's difficulties in proving causation. In these cases, it's a matter of policy and justice that such difficulties be born by the person who created the risk (Mc Ghee 1973). This approach will apply to cases where there is one causal agent of the claimant's loss or if there is more than one causal agent all of them operate in substantially the same way to produce the claimant's loss. Note: the courts apply also this approach where the defendants are employers; in other words where the defendants have ressources. 3. The new intervening act (novus actus ...) In some situations where one act follows another the law may consider that the second act that is the new intervening act is to be regarded as the true cause of the damage because it has broken the chain of causation and has extinguished the effect of the first act. This sometimes will act with consecutive cause or in other areas of the law where defenses such as the act of god or the act of stranger apply. Sometimes also judges analyse this question as part of the test of the remoteness of damages. 4. Third parties a. The act of the third party There are three ways in which a third party may interfere with the course of events: it could be natural, negligent or intentionnal wrongdoing intereference. i. Natural or instinctive intervention The important case here is the Scott v Shepherd 1973: the defendant threw a lighted firework into a market place that landed on a stall belonging to a third party A. A threw it on a forth party who acted similarly. The firework ultimately

hit the plaintiff and injured him. It was held that neither the act of A or B broke the causal connection between the defendant's act and the subsequent damage. ii. Negligent intervention The circumstances in which the negligent conduct of a third party will or not break the chain of causation cannot be stated with certainty in English law. Ex: A commits a tort and B commits a subsequent tort, the question is whether the nature of B's tort is so powerful that it ought to be regarded as rendering A's tort as just nearly surrounding. iii. Intentional acts of wrongdoing This is the case where a third party's intervention takes the form of a deliberate act of wrongdoing. The courts will usually decide that the third party's act has broken the chain of causation. Nevertheless much will depend on the circumstances of the case. Ex: H.M. Attorney general v Hartwell 2004: an emotionnally disturbed police officer in the british virgin island whom the defendant police authority had given him acces to a gun deserted his post, travelled to a bar where he shot and injured a british tourist. The privy council held that this action did not break the chain of causation, the defendant authority was considered liable for the terrorist injuries. It was considered that the authority knew about the officer's disturbed nature and his action was sufficiently foreseeable. b. The intervening act of the claimant In some circumstances, the actions of the claimant can breach the chain of causation so that the defendant is not to be regarded as the operative cause of the loss of the claimant. This question sometimes overlapse with that of when the claimant can be regarded as having caused his own loss by accepting the risk of injury. This is called as the voluntary assumption of risk. This question also overlapse with the rules on contributary negligence under which the claimant will have his damages award reduced because he is partly to be blamed. Ex: the Mc Kew case of 1969: the claimant suffered a slight injury in his leg as a result of the defendant's negligence so that this leg had a tendancy to give way when he was walking. Shortly afterwards he went with his family to look at a flat. He descended a steep staircase with no handrail infront of his family and holding a child by the hand. His injured leg gave way, he fell fracturing his angle. The HL held that the plaintiff's unreasonable behaviour was a new intervening act. It was he and not the defendant who caused the injury by descending the staircase as he did knowing that his leg might give way at any moment. A claimant's act will only break the chain of causation when it's unreasonable. In a number of cases the question has arisen in English law whether a claimant committing suicide will break the chain of causation? The Court's approach has been to hold whether the defendant's negligence creates the risk of a psychiatric illness leading to suicide does not constitute a new intervening act. This was decided in Pigney v Pointer's case 1957: the claimant suffered severe

head injuries as a result of the defendant's negligence. Due to depression he eventually killed himself. It was the action of his widow that made him to commit suicide, although irrational, did not break the chain of causation. More recently a similar conclusion was reached by the HL in Reeves v Metropolitan Police Commissioner 2001. Here the deceased was in police custody taking advantage of police officer's inadvertance, he hanged himself. It had been noted by the police that he had made previous suicide attempts by a majority. The HL held that a suicide although a deliberate act could not be regarded as having broken the chain of causation given that the police were under specific legal duty to guard against the commission of that very act.

II. Remoteness of damage
This is the final element of proof in negligence. The question here is whether there is causation in law where the loss in question is of a kind that is unlikely or unforeseeable. Here eventhough a causal link can be proved factually according to the « but for test » the claimant may still be prevented from winning the case if the damage suffered is too remote to the consequence of the defendant's breach of duty. Before 1961 the important decision in this area was the decision of the CA Re Polemis 1921, where it was decided that the claimant could recover in respect of a loss that was a direct consequence of the defendant's act regardless of how foreseeable this loss was. Today, the law on this question is to be considered under the decision The Wagon Mound case 1961, the exact name being the Overseas Tankship Ltd: the plaintiffs were ship repairers. Oil from a ship in the harbour was washed by the tide so that it fouled the plaintiff's slip ways causing them to stop work. However being assured that there was no chance of the oil igniting the plaintiff resumed the welding operation. It was not very clear what happened, it was assumed that some cotton waste which was floating in the water was ignited by a fragment of molten metal from the welding operations which caused the oil to ignite. The plaintiff's wharf and equipement were extensively damaged in the blaze. It was decided that the occurrence of the fire was not reasonably foreseeable, and the privy council held that the defenadants were not liable. Their lordships held that the proper test for remoteness of damage was whether the defendant could have reasonably foreseen the kind of damage for which the claimant is seeking damages. The principal in this decision contains a number of elements: – the foreseeability of the kind of damage – the foreseeability of the way the damage is caused – the foreseeability of the extent of the damage: Concerning this a defendant can be liable even when the damage caused is greater in extent than what was reasonably foreseeable. When the damage is different in kind, usually the defendant will escape liability. Concerning this problem the law is quite uncertain, even decisions are quite hard to reconcile. There is sort of absence in this area of logical rules. In general the courts will decide what should be a fair and just outcome. To reach their decision usually the courts will select appropriate set of rules to justify their decision.

The law relating to factual causation will apply to all torts except torts actionable per se. The rules applicable to remoteness concern most torts. In conclusion, we can consider causation and remoteness, as in French system, a difficult area of law, and in most cases the courts will decide on whether it's fair and just for the claimant to be awarded damage or not. Usually the appropriate rules will be selected to come to a solution.

Section 4: The Defences to negligence
Even if a claimant satisfies the prima facie element, the cause of action in negligence, the defendant may still be relieved from liability by a number of defences. Today the scope of some of these defences has been reduced. We have: – – – – – voluntary assumption of risk contributory negligence exclusion of liability extorpy – illegality extinction of liability

I. The voluntary assumption of risk (Volenti non fit injuria)
It's now very rare for the defence to be successful in a negligence action in the absence of an express prior agreement. This defence used to be quite important in employment cases.

II. The contributory negligence
A claimant without checking to look for traffic steps on the road and is hit by the defendant's car, which is being driven too quickly. Should the defendant be held liable despite the claimant's action. If we look at it from the point of view of causation, the injury would not have been caused without the claimant and defendant's negligence. In 1945, the English law allowed the claimant's damages to be reduced but not eliminated as a result of his contributory negligence. The courts can reduce the damages to such extent as it thinks just and equitable, having regard to the claimant's share in the responsibility for the damage. It will be very rare to apply the defence of contributory negligence in cases where children are involved as victims.

III.

Exclusion of liability

A defendant may seek to exclude all potential liability to another person in advance to a risk of a possible claim. This is commonly done in the form of an agreement of contract between the parties, but may also be done by appropriately placed notice. The later is very frequent when the owner of a land wishes to exclude liability concerning his lands or activities carried out on his land.

In English law, not every notice attempting to limit or reduce the defendant's liability will be an exclusion of liability.

IV.

Extorpi

This means an action can not be founded on an illegal act. It's a complete defence and is essentially founded on policy. Claims can not arise out of a criminal activity or immoral conduct. But it's a matter of degree. The nature and quality of the illegality will be taken into account by the courts in determining whether he claim should be barred or not. Public policy and public conscience will also be taken into account here. The Famous case is Pitts v Hunt of 1999: the claimant and the defendant had been drinking together in a bar and then they set off home together on a motor bike. The plaintiff knew that Hunt was under age and drunk. He had no insurance and did not possess a licence to drive a motorbike. Nevertheless, the plaintiff encouraged hunt to drive recklessly and deliberately frighten other road users. There was an accident in which the defendant was killed and the plaintiff himself seriously injured. The CA refused/barred the claimant's claim against Hunt's representatives on the basis of illegality. The law is still confusing in this field. There is a law commission on this question.

V. Extinction of liability (limitation of actions by limitation act 1950)
– for personal injury claims that would be 3 years – for defamation one year – a waver clause by which the claimant may lose the right to bring in an action or an agreement between the two

Chapter 2: Tort of vicarious liability
It's a rule of responsability which makes a defendant liable for the torts committed to another. The commonnest example is that of an employer for his employees or for the liability of the firm for the torts of the partners. Vicarious liability is mainly a rule of convenience. It does not mean that the tortfeasor A is not personnally liable for his negligence but simply that the claimant has the choice to sue the tortfeasor B. Generally the claimant will sue the employer, tortfeasor B. The emplooyer may seek to recover damages from the employee who committed the tort, but in practice this does not happen because there is a gentlemen's agreement not to sue the employees as long as there is no willful conduct. Vicarious liability of an employee is limited in action, being confined to employees and to acts committed in the course of employement. To stablish this liability against an employer three conditions must be fulfilled: – the employee must have committed a tort

– there must be the existence of an employer employee relationship – the employee must have acted in the course of employment

Section 1: The employee committed a tort
The claimant must thus prove that the employee's conduct amounted to a tort and satisfies all the requirements of the tort in question.

Section 2: The existence of an employee/employer relationship
It's not sufficient to say that the tortfeasor was employed by the defendant. The Court draws distinction between a contract of service or employement and a contract for services which concern an independant contractor. The general rule is that an employer is not vicariously liable for the acts of independant contractors. This leads to examin factors identifying employees. Different factors are taken into account by the courts. – the terms of the contract – the control – the relationship as a whole

I. The terms of the contract
The courts will examin the substance of the contract and consider they are not linked by the wording of the contract.

II. The Control
An employer/employee relationship exist when an emmployer can tell an employee what work can take place and what should be done. This test continues to be used by the courts even if it looks somewhat outdated in relation to modern work practices where employees are expected to be able to exercise discretion and initiative in their performance.

III.

The relationship as a whole

This is the modern approach that takes into consideration the two earlier elements. Cases reveal a number of factors which the court will consider in deciding whether an employer/employee relationship exist. These are the following: – the paiment of wages and national insurance contributions on a regular basis – an indefinite term of employment – a fixed place and time of performance of a work – the provision of equipement or materials by the employer – the degree of financial risk and investement taken by the worker

– whether the work is integrated into the business or is only accessory to it – whether there are mutual obligations on both parties : concerning this a contract of indicated where there is an obligation on the employer to provide and pay for work and an obligation on the worker to be ready and willing for the work.

Section 3: the employee acted in the course of employment
It's a difficult point subject to quite a few interpretations by the court. It has been clearly established that the employer can not argue that the employee was not employed to commit torts and was thus acting outside the course of his employment. The employee is held to be acting in the course of employment if his/her conduct is authorised by the employer or is considered to be an unauthorised means of performing the job of which he is employed. The course of employement will depend on the facts of each particular case. The courts depending on the circumstances have approachs to these questions. Ex: Smith v Stages 1989: the problem was whether employees driving to and from work were acting within the scope of their employment. It was held that this will not be the case unless special circumstances exist. For example the employee is required under the contract of employment to use the employer's transport to work or if the employee's job requires travel then such travel would be deemed to be within the course of employment. But a deviation or interruption from a journey taken in the course of employment will unless incidental take the employee out of the course of employment. Difficult problems have arisen concerning prohibited and criminal conduct by the employees. Actually if the prohibited conduct can be found to benefit the employer in some way there is authority that the courts will be willing to find the employer vicariously liable. Ex: Limpus v London general omnibus 1862: the company's instruction not to race or obstruct other buses was disobeyed by one of his drivers which lead to a collision with the plaintiff's bus. The court found the company vicariously liable for the driver's negligent actions on the basis that the employee's actions were improper and unathorised mode of doing an act which he was authorised to do namely which was promoting the company's bus service. More difficult are other cases where employees of a company contrary to instructions gives unathorised lift off to passengers. Here the response of the courts is quite confusing. Concerning other criminal acts, even if vicarious liability seems surprising in these areas, crimes such as assault, robbery and fraud, employers have been found liable in such circumstances. Ex: Poland v John Parr and sons 1927: the employer was found vicariously

liable for his employee assaulting a boy whom he believed had stolen a bag of sugar from the employer's wagon. In this case, for the court the employee had implied authority to make reasonable efforts to protect the employer's property. But the HL had reviewed the application of vicarious liability in the context of serious criminal conduct amounting to an intentional tort. Ex: Lister v Hesley Hall Ltd 2002: the warden of a boarding house for boys with emotional and behavioral difficulties had been found guilty of systematic abuse of the boys under his care. In earlier cases, the court of appeal had refused to accept that similar misconduct could be deemed to be in the course of employment, but the HL took a broader approach to this question in considering that where the intentional tort was closely connected to the work the tortfeasor was employed to do it would be fair and just to find his employer vicariously liable. For the HL, the warden had been employed to provide a home for the boys and supervise them in circumstances where him and his wife were very often the only members of staff on the premisses. For the HL, such close contact was sufficient to establish a close connection between what he had been employed to do and the acts of abuse committed. In Lister, the HL decided that if the acts of abuse had been committed by groundman, there would have been no close connection between his job and the tort in question. To establish this connection, the English court will examin the nature and purpose of the job and the circumstances and context in which the acts took place. The HL maintain in Lister that this new approach would not affect existing authority that private acts of passion, resentment or spite were outside the scope of employment. Lister case has been followed by a number of cases, where this close connection test has been applied. And in the Mattis v Pollock 2003, the CA adopted a very generous approach to the question. A guest at a nightclub was rendered paraplegic when he was stabbed by a bouncer outside the club. Although the act was one of revenge for injuries and humiliation on the bouncer sometimes earlier in the club by the group of victim's friends. Since the employee had been encouraged to keep order by voilent behaviour, he would be vicariously liable for an assault linked to the incident in the club. Ultimately we can say that in each case it would be a question of policy for the courts to decide on the extent to which they consider victims should recieve the protection of vicarious liability.

Chapter 3: Tort of Nuisance
Tort of nuisance is one of the oldest actions known to the common law developed in the twelfth century. There are different forms of tort of nuisance. It seeks to protect the claimant's ability to use and enjoy his/her land freely without undue interference by others. Here tort plays a limited rôle. The main concern is to protect the claimant's right to his own land. This chapter will consider the different rules governing the types of nuisance recognised in law, then the special rule set in Ryland.

Section 1: nuisance

Rules

governing

different

types

of

There are three main types of nuisance: – private nuisance – public nuisance – statutory nuisance: this type operates by virtue of special statutes for example environmental protection act of 1990.

I. Private nuisance
There are three main forms of private nuisance: – physical injury to land for example because of flooding – substantial interference with the enjoyment of land for example noise – encroachment on a neighbour's land for example over hanging branches The main distinction drawn by the courts is between physical damage to property and interference with one's enjoyment of land or personal comfort. In case of physical damage to property the courts are very willing to find a case of nuisance. Concerning interference with the enjoyment of land, it's necessary to examine: – what amounts to it; – who can sue; and, – who can be sued.

A. What amounts to a private nuisance
Not every interference with the claimant's enjoyment of land will amount to a private nuisance. English courts consider that the tort of nuisance must balance the rights of the claimant against those of the defendant. The test is known as the test of the reasonable user. A balance between the interests of the defendant to use his land as it's legally allowed against the conflicting interests of the claimant to have a quiet enjoyment of his/her land. The English court approach is a result based. The following factors will be taken into account in determining whether the interference does constitute a private nuisance: – – – – – the nature of the locality the duration and frequency of the defendant's conduct the utility of the defendant's conduct abnormal sensitivity of the claimant malice on the part of the defendant

1. The nature of the locality This factor is not relevant where material and physical damage has been suffered by the claimant. But where the claimant has suffered personal discomfort and inconvenience, this factor is relevant. Actually, in considering whether for example noise from a local factory causes a nuisance to local residents, the courts will examine the nature of the locality. If it's an industrial area, it would be less likely to find an actionable nuisance. But the nature of the locality may change over time from industrial to residential or vice versa, and therefore, the courts must have regard to the locality as it's today. Ex: Watson decision of 2009. Sometimes change may happen naturally or maybe due to deliberate development of the locality. Here, the courts will see whether it's fair to find an actionable nuisance. 2. The duration and frequency of the defendant's conduct For the courts, it's a matter of common sense that the claimant will have to endure some inconvenience in his/her enjoyment of land. What is unreasonable is when it occurs frequently and for long periods of time. The courts will use the largely common sense approach to this factor. 3. The utility of the defendant's conduct this is not generally an important consideration because private nuisance is concerned with the results of the defendant's conduct on the claimant and not the community as a whole. Sometimes, it has been argued that this factor should influence the court in exercising its equitable jurisdiction whether to grant or not an injunction. 4. Abnormal sensitivity of the claimant The result of the defendant's conduct must be such that as to unreasonably affect the ordinary citizen. Discomfort resulting from personal sensitivity to noise or heat for example which would not affect the ordinary citizen. But it maybe sometimes difficult for the courts to determine what would be regarded as unduly sensitivity. 5. Malice on the part of the defendant In assessing whether the defendant's use of her/his land is reasonable, the court will have regard to his or her frame of mind (état d'esprit). There is authority that malice would encourage the courts to find such a user. Ex: Christy v Davis 97: the plaintiff was a music teacher giving lessons at his home. The defendant her neighbour found the noise irritating and chose to express his displeasure by the knocking on the party wall, beating trays, whistling and yelling. The plaintiff succeeded in her claim for an injunction. The court held that what was done by the defendant was done only for the purpose of annoyance and considered it was not a legitimate use of the defendant's house. This case was followed by a lot of other decision needing not to be

mentioned here.

B. Who can sue for private nuisance
It's necessary that the claimant has some land which has been unreasonably interfered with. The question is what claim the claimant should have with the land. Is that an interest in the land defined by the property law? Or simply some substantial link with the land? The leading case today is Hunter v Canary Wharf 1997: A number of local residents including home owners, their families and other licensees had complained about the Canary Wharf tower of nearly 250 meters high and some 50 m² with a metallic surface which was found interfered with television reception of neighbouring homes. The HL held that the interference did not amount to actionable nuisance and held that only claimants with an interest in land or exclusive possession could bring an action for nuisance. Rights in land means if you are a land owner, a tenant or a guarantee of an easement (servitude) or have a right to exclusive possession of land, you may sue any lesser right will not be enough. The claimant may sue for losses even if they began prior to acquisition of the premises. Ex: encroaching tree roots causing damage to a house recently acquired. Concerning the decision of Canary Wharf, it has been questioned whether the test in this case confining the right to sue to those with rights to land is compatible with the Human rights act 1998, mainly concerning article 8 of the HRC, which has been interpreted by the EHCR in a broad sense thereby permitting parties without rights in the home to sue.

C. Who can be sued?
The most obvious defendant is the person who created the nuisance even if he no longer occupies the land. However, if the creator can not be traced or if it's not financially viable to sue the creator, may be sued the occupier of the land or the landlord. 1. The occupier of the land This is possible in four circumstances: – the occupier of the land exercises control over the creator of the nuisance, ex: employees in the course of employment which we saw in vicarious liability – the occupier has adopted or continued a nuisance created by a trespasser, according to the case law adopting means the occupier is using the state of affairs for his purposes, he continues the nuisance with actual or presumed knowledge of the nuisance, and he fails to take steps to stop it. – The occupier has adopted or continued a nuisance created by an act of nature, but this will be judged in the light of the resources and ability of the occupier to act in the circumstances. – The creator is the occupier's predecessor in title and knew of the

existence of the nuisance 2. The landlord This is possible in 3 situations: – when he expressly or impliedly authorises the nuisance – he knew or ought to have known of the nuisance before letting – he agreed to repair or has a right to enter to repair

D. Defences
– – – – statutory authority to do something 20 years' prescription inevitable accident act of an stranger

Other defences have been rejected by the courts. Among them we have: – the claimant came to the nuisance, meaning the nuisance was in existence before the claimant arrived at the premises – the defendant's conduct has social utility – due to many, meaning the defendant was one of many others causing the nuisance

II. Public nuisance
It has a minor rôle in the law of torts. It's most common use is in relation to claims for unreasonable interference with the claimant's use of the highway. In this case, a claimant can claim damages or an injunction if he has suffered more than the public generally. Ex: it's generally acceptable that vehicles stop on the highway to deliver goods or to park in a layby, but a public nuisance would be created where this car is left for a considerable period of time without any valid justification. If we refer to case law in this situation, it's still unclear whether it's necessary to establish whether the obstruction is unreasonable. Generally the courts seem to impose a rule of strict liability in respect of artificial structures projecting on to the highway. Ex: heavy lamp attached to the front of the defendant's building which falls on a passer by. To bring an action in public nuisance: the claimant must show that he/she has suffered special or particular damage in excess of that suffered by the public at large. This is a measure to limit the number of claims. Such special damage must be direct and substantial, and includes personal injury, property damage, loss of business, delay and even inconvenience.

Section 2: The rule in ryland v Fletcher
Here we consider a particular course of action which protects an occupier

against interference due to an isolated escape from his or his neighbour's land. The important decision is Ryland v Fletcher 1865 which has set the rule. In this case, the lords considered « we think the true rule of law is that the person who for his own purposes brings on his lands and collects, and keeps there anything likely to do mischief, if it escapes, he must keep it at his peril, and if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of it's escape. » Facts: the defendants employed independent contractors to build a dam on land they occupied. Unknown to them, the dam was constructed over 5 disused mine shafts (puits inutilisé), which led into the underground workings of an old mine. There was a connection between these workings and the working of the plaintiff's mines. When the reservoir was filled, the water burst into the shafts and flowed into the plaintiff's mines, who sought then to recover damages. When considering this case, several points: – – – – – is it a tort in its own right or an extension of private nuisance? Establishing liability under the rule in Rylands. Who can sue? Who can be sued? Defences.

I. Is it a tort in its own right or an extension of private nuisance?
Liability under this rule is closely related to the tort of nuisance and the tort of trespass. In a decision of 2004, the Supreme court confirmed that the rule should be treated as a subdvision of private nuisance. The SC favoured a more restricted approach to the application of the rule in rylandes, and considered the rule should be confined to exceptional circumstances, which itself amounts to an important and unusual use of land. The SC in the decision transco PLC only those with right to land could sue in such a case.

II. Conditions to establish liability under the Rylands Case
Four requirements to be fulfilled for the claimant to be able to sue under the rule: – the defendant brings on his land for his own purposes something likely to do mischief: this requires a volontary act of bringing something on the land. What is likely to do mischief is interpreted in an extensive way. It can be water, like in Ryland's case, electricity, oil, vibrations, noxious fumes – if it escapes: this is one of the key factors of liability under the rule. The rule in Rylands deals with isolated escapes, meaning that proof of an actual escape is vital. An escape, according to the HL decision of 1997

Read v Lyons, such an escape would only occur when the object move from the defendant's premisses to a place which is outside his occupation or control. In general, an intentional release of an object is not capable of being regarded as an escape. – A non natural user: the judge in Rylands referred to the defendant bringing on the property something which was not naturally there and which the HL interpreted as a non natural use. This is now interpreted as a non ordinary use so as to limit the application of the rule. For example, storage of substantial quantities of chemicals on industrial premices. – Foreseeability of damage of the relevant time: the damage must be foreseeable, if not, the HL considered in Transco that the defendants will not be liable. Must the escape also be foreseeable? The best view is that the escape does not need to be foreseeable. Who can sue? As discussed in Transco case, only parties with rights in land may bring such an action. Who can be sued? The occupier of the land will be liable for the conditions. Licencees may also be sued (the case in Rylands). Defences Different defences may apply: – – – – defence of default of consent of the claimant where the escape is caused by the unforeseeable act of a stranger where the escape is caused by an act of God where there is statutory authority.

Under the rule in Rylands, damages will be available.

Section 3: Remedies available in tort of nuisance
The main remedy for private and also public nuisance is an injunction. An injunction is an equitable remedy, which means it's a discretionary remedy. In cases of nuisance, the courts are generally quite willing to grant an injunction unless there are exceptional circumstances making damages the more appropriate remedy. In Shelfer case of 1895, four conditions were set which will lead a court to grant damages in lieu of an injunction. – where the injury to the claimant's legal rights is small – where the injury is capable of being estimated in money – where the injury can be adequately compensated by a small money paiment – where it would be oppressive to the defendant to grant an injunction

confirmation of these conditions by a recent decision Denis v Ministry of Defence 2003 Abaitement: this is a form of self-help. The claimant intervenes himself to stop the nuisance. Public and private nuisance, and the rule in Rylands only become actionable on proof of damage. Concerning damage, the defendant is only liable for damages of a type that can be reasonably foreseen. Concerning personal injury, it's not possible to claim damages for personal injury in a private nuisance action or under the rule in Rylands. Note: Concerning public nuisance, it's also a crime.

Chapter 4: Tort of Trespass
There are three types of trespass: – trespass to the persons – trespass to goods – trespass to land We will only consider trespass to the persons, which is a deliberate harm to the persons. All three torts have the same characteristics and this tort and nuisance are one of the oldest torts in English law. Concerning the characteristics of the three torts, they must be committed intentionally and must cause direct and immediate harm. These torts are actionable per se; without proof of damage. Trespass is different from the torts of negligence and nuisance which deal with indirect harm. The aim of trespass is to vindicate the claimant's right to be free from interference either to his person, his property or his goods. Here damage is not the trigger or aim for the compensation. The tort of trespass has a close connection with other areas of law. Trespass to the person in dealing with interference with a person in terms of personal integrity and freedom of movement has a close relationship with criminal law. Trespass to land has a close relationship with the tort of private nuisance. And trespass to goods is closely connected to the tort of conversions (détournement). Trespass to the person, considered here, protects the claimant against intereferrence against his/her person which may be attempted by means of assault, battery and false imprisonment (séquestration). These torts normally face criminal charges.

Section 1: Forms of trespass: battery, assault and false imprisonment
Battery: different conditions must be satisfied: – it must be intentional: this means that the act or force is voluntary. Ex: Bob has not committed a battery if someone else (John) grabs his arm and pulls it to strike Peter. Intention relates only to the action of the defendant. It's not necessary that the defendant intends the consequences of his/her action. Thus the defendant will be liable for all the consequences flowing or resulting from the tort whether or not they are foreseeable. Equally, if I intend to hit a person A, instead I hit a person B, I will be considered as having committed against person B. this rule has been explained as the concept of transferred intent. The tort may be committed even if the original action was unintentional, if the defendant at some point intends to apply force. Ex: the Fagan v Metropolitan Police commissioner 1969: the defendant unintentionally stopped his car on a policeman's foot. At this stage there was no intention, no battery and no tort in battery. However, by deliberately failing to move the car until the policeman had shouted get off my foot several times, then he committed a battery. It seems that recklessness in the use of force may be sufficient to establish intention in battery. – it must be direct: the injury must be direct application of force or battery. If it's indirect, the claimant cannot act on the basis of battery. But this requirement has in case law been interpreted in a flexible manner. – it must result from immediate force: the tort of battery applies to any sort of bodily contact. This is a problem because it could cover all sorts of contact. English courts have had difficulties in finding a theoretical basis on which to draw a line between actionable batteries and ordinary social contact. In Wilson v Pringle 1987: the court of appeal held that battery must be committed with hostile intent. In the decision called ReF of 1990, their Lordships held that the law should exclude liability for conduct generally acceptable in the ordinary conduct of daily life. Assault: this tort protects the claimant in fear of battery where the defendant's actions cause the claimant reasonably to apprehend the direct and immediate infliction of force on him/her, the tort of assault is committed. Ex: if I point a gun at a person, I have only committed an assault, even if the gun is unloaded. Only if I shout is a battery committed, but if I miss, then it's still assault. The conditions for assault are: – there must be a reasonable apprehension of harm (battery): ex: if I creep up and strike a person from behind without his knowledge, I have committed battery. It's only assault if he is aware of my approach, even if I don't strike him and change my mind, it's assault. For the courts, the test of reasonable apprehension is an objective one. And for them it's irrelevant whether the claimant was actually in fear or could have defended himself successfully. – The assault must be intentional: this is a basic requirement which means that the defendant intented the claimant to apprehend that

reasonable force would be used. – The assult must be immediat and direct: this is part of the test of reasonable apprehension. Ex: If I threaten a person with voilence as I am passing in a train, it's not immediat, not direct, have I committed an assault? No, I have not committed an assault. The problem here is can words amount to assault? It depends on circumstances. The HL in R v Ireland 1998: three women had been harrassed by Ireland who repeatedly called them at night, during which he remained silent. The women suffered psychiatric illness, and the Lords recognised a form of assault. False imprisonment: this tort is concerned with the claimant's right to freedom of movement. A complete restriction of this freedom unless expressly or impliedly authorised by law will make the defendant liable. False imprisonment is a strict liability tort. It's not the conduct of a defendant which is the judge here, but the injury to the claimant. Equally imprisonment does not require the defendant to put the claimant in prison. But will extend to any action which deprives the claimant of his freedom of movement. Here it's not necessary to show that force has been used. The conditions to be satisfied are: – There must be a complete restriction of the claimant's freedom of movement: this includes any action which restricts the claimant's freedom of movement in any direction. This is a mere question of fact for the courts. If the claimant is given reasonable means of a escape, there is no liability. But for the courts, the means of the escape must be reasonable. Most cases involve an invasion of the civil liberties of those involved. Of course that will not be the case everytime. Ex: Herd case 1915, a claimant cannot expect to be able to stop an express train because he simply wishes to get of the train. He could not claim false imprisonment. As a traveler he consents to a restriction of his freedom of movement for the duration of the journey. It's not necessary to show that the claimant knew of the imprisonment: the tort of false imprisonment simply protect the claimant's freedom of movement. Proof of damage is not required. And not necessary that the claimant has suffered from the knowledge of his/her false imprisonment. English courts, in general, disapprove any unjustified and complete restriction on the claimant's freedom of movement because the courts consider that the law attaches supreme importance to the liberty of the individual. Any wrongful intereferrence with that liberty is actionable even without proof of any special damage. – It's done without legal authorization: the burden of proof lies on the defendant; upto him to justify that the arrest is lawful. This is a sort of defence for the defendant.

Section 2: The rule in Wilkinson v Dawton
The different torts of battery, assault and false imprisonment do not include intentional harm which has been indirectly caused. This gap is filled by the rule in Wilkinson v Dawton of 1897: Facts: the defendant falsely told the plaintiff that her husband had been

involved in an accident and has been seriously injured. The defendant claimed that it was just a joke, but the shock suffered by the plaintiff led her to suffer weeks of illness. She sued for damages. The actions of the defendant had been intentional, but the harm indirect. The courts decided that the defendant had wilfully undertaken an act calculated to cause physical harm, and that there was a cause of action. With the development of the tort of negligence and the harassement act of 1997, this tort has become obsolete, except where actual psychiatric injury has been caused. It was decided in a decision called Wainwright v Home office 2003, the HL considered that this rule may still apply today where actual physical psychiatric injury had been caused. In other cases, it will be easier for the claimant to obtain compensation on the basis of the other principles.

Section 3: The defences
some defences are of a particular importance for action for trespass to the person. Following defences are: – consent – necessity – self defence – provocation – contributary negligence – lawful authority

I. Consent
This is an obvious defence. For example, on this basis hospitals can insure that they will commit no torts against patients during operations by asking them to sign consent forms. The consent must be real and not induced by fraud, misrepresentation (dénaturation) or duress (contrainte). It's not necessary in English law for the claimant to be aware of all the relevant facts in giving his/her consent. The burden is on the claimant to prove absence of consent. There is a corresponding right to refuse to consent to actions leading to trespass to the person in medical field. For example this can concern the tort of battery. A Jehovah's witness is not prepared to authorise blood transfusion. The doctor will commit a battery if he administers blood against the will of Jehovah's witness. There are some limits to the defence of consent. For example; criminal law has refused to accept the defence of consent where the defendant has inflicted bodily harm on the claimant. The question is whether this extend to tort actions? It depends on the nature of the injury inflicted. No clear authority on this point: some cases admitting it and others refusing it.

II. Necessity

It allows the defendant to intervene to prevent greater harm whether to the public, a third party, the defendant, or other claimant. English courts keep this defence within strict bounds and generally consider that the defendant must act reasonably in all circumstances. This defence plays an important rôle for acts by emergency services. The problem is if a patient is brought in the emergency section of the hospital unconscious or is mentally ill and incapable of consenting. When can the medical practitioners involved be sure that their intervention is legal. This problem occured in the HL decision of ReF 1990: their lordship held that doctors may intervene in the best interest of the patient where: – it's necessary to act in circumstances where is not practicable to communicate with the patient and – the action taken is such as a reasonable person would take in all circumstances In this decision, the HL held that the treatment will be justified if it would be in the patient's interest and would be endorsed by a reasonable body of medical opinion. In a decision of 2001, it was decided that there was no violation of articles 2 (right to life) and 3 (right not to suffer degrading treatment) of the HCHR for discontinuance of treatment.

III.

Self defence

This is a valid defence by analogy with criminal law. Section 3 of the criminal act of 1967 states that a person has the right to use such force as is reasonable in this circumstances in the prevention of crime, whether the force used is reasonable and not out of proportion to force exerted will be a question of fact for the courts.

IV.

Provocation

It's not generally a valid defence. It may just reduce or extinguish the claimant's right to punitive or exemplary damages, but will not reduce ordinary compensatory damages.

V. Contributary negligence
if we refer to case law, it seems that the principals of contributary negligence apply to battery.

VI.

Lawful authority

This is generally applied in relation to false imprisonment where the defendant has specific statutory authority to deprive the claimant of his/her complete freedom of movement.

Different provisions apply, but the main important one is the provisions of Police and criminal evidence act 1984, amended by the act called Serious organised crime and Police act of 2005. Section 24 makes provisions both for police officers and private citizen to arrest an individual without a warrant if the individual is in the act of committing an arrestable offence, or if he/she has reasonable grounds for suspecting the individual to be in the act of committing such an offence. Arrestable offences are serious offences. For example, offences for which the sentence is fixed by law that could be a murder or offences carrying a penalty of at least five years. Individuals undertaking such an arrest must insure that they have not stepped outside the legal limits. Private individuals will not be protected from civil liability if no offence has in fact been committed. Under common law, arrest must be made using reasonable force, for example the case of 1994.

Section 4: Protection from harassment act of 1997
Until recently harassment was not a recognised tort. Litigants had to frame their claims in trespass or nuisance. But since 1997, section 3 of the Protection from harassment Act of 1997 creates a statutory tort of harassment, entitling victims to compensation. According to section 1 of this act, harassment is a course of conduct which amounts to harassment of another in which the defendant knows or ought to know amounts to harassment of another. Section 1 second paragraph provides that the defendant ought to know that his/her conduct amounts to harassment if
a reasonable person in possession of the same information would think that the course of conduct amounted to harassment of another. The test is objective, and section 2 of this act gives some indications to what constitutes harassment. It's defined as a conduct which includes alarming the person or causing the person distress. The course of conduct is stated to involve conduct on at least two occasions and may include speech. Claims for harassment are restricted in a number of ways: – – – a course of conduct may be proved conduct at least on two occasions a valid defence for the purpose of detecting crime.

Concerning remedies, the claimant may sue for damages and or injunction. Under the harassment act, damages may include a sum for anxiety and any financial loss resulting from the harassment. Usually today, the most important use of this act is in employment field, notably by employees, like moral harassment by employers (harcèlement).

Chapter 6: Tort of Defamation
Defamation was historically used to suppress political dissent, to prevent the king's subject from criticising the monarch. At that time, the fact that the statement was true was no defence. The current law also raises questions about the balance between freedom of information and the privacy of

individuals in the context of human rights act of 1998. Defamation is a very different type of tort from those examined earlier. This tort protects something that is more interesting which is the reputation of the claimant. It can be defined as unjustified criticism of the claimant to another. As a tort, defamation raises a number of difficult problems, for example, in relation to article 10 on european convention on human rights, freedom of expression, incorporated in English law by the HRA 1998. Freedom of expression as a right cannot go unchallenged. The law of defamation must attempt to balance the competing rights of freedom of expression and the protection of one's reputation. It's not an easy task for the judge and in general one may say that English law is quite complex and sometimes even confusing on this issue. Concerning defamation, four main questions must be asked: – – – – is the statement defamatory? Does it refer to the claimant? Has it been published? Are there defences applicable?

Before going to examine these conditions for defamation, it's necessary to analyse the division of defamation into two parts, which is libel and slander, which are examples of defamation. But for historical reasons are treated separately.

Section 1: Distinction between libel and slander
Libel takes a permanent form (an article or photograph published in journal). Slander is temporary (gestures made to a person). The fact that libel is permanent tends to make it more serious than slander. Thus in case of libel damages is presumed which is thus actionable without damage, whereas in case of slander, damages must be shown. Concerning proof for slander, it can be proved by evidence of any material, any loss capable of estimation in financial terms or it could be financial loss itself. But the damage must not be too remote. Note: the other distinction between the two is that libel contrary to slander is also a crime. In practice, it's not always easy to distinguish between libel and slander. So parliament has sometimes intervened thus the law has stated that performances of a play are to be treated as libel, this also applying to broadcasting on television and on radio, which are treated as libel and not slander. There must be proof of damage in case of slander, but in some cases, slander is actionable per se (without proof of damage), and there are 4 types of slander which are actionable per se. – imputation of criminal conduct: punishable by imprisonment amputation of criminal offence

– imputation of certain contagious diseases: accusation of HIV or vineral diseases – imputation of professional and fitness incompetence (this is based on defamation act of 1952. it has to relate directly to the person's professional competence or business reputation). – Imputation of a lack of chastity on women (very outdated, but slander of women act of 1891 is still in force in England)

Section 2: Conditions of defamation
An action for defamation, unlike one for negligence, will be heard by a judge and a jury, unless the court considers that the trial requires any further examination of documents, which cannot be made with a jury. Is the statement defamatory? When a person's reputation is considered to be harmed, the classic definition is to be found in Sim v Stretch of 1936: in this decision the statements were held to be defamatory when they tend to lower the plaintiff in the estimation of right thinking members of society generally. The statement is defamatory if it harms a person's reputation. Who are the right thinking people? In a decision called Shah v Akram of 1981, it was considered: the defendant attacked the claimant's standing as a Muslim. It was held that a reasonable person of any religion or non would think poorly of anyone who insulted the faith of others. It was decided by the court that the words were defamatory in the view of the community generally. In Berkoff v Burchill of 1996, the claimant an actor was described by the defendant as hideously ugly. The claimant alleged that this comment held him up to ridicule or meant that other people would shun or avoid him. The court of appeal held that the words were capable of being defamatory. This decision is a confirmation of Yousupoff 1994, where the house of lords considered that the classic definition in Sim was extended to circumstances where the claimant is shunned (rejeter) or avoided as a result of the statements. These elements are examined according to the standard of a reasonable person, who is according to the courts, fair minded, not unduly suspicious or naive, who is not avid for scandal, and a person who is not bound to select one defamatory meaning when non defamatory meanings are available. This will be determined partly by the judge, before it's put before a jury. It depends a lot on the court's attitude, and whether judges and jury reflect current trends in society when taking their decision. Concerning this first condition, it's of no excuse that the defendant did not intend the words to be defamatory. The test is an objective one. However, the courts may be prepared to disregard words spoken in the heat of the moment. Defamation is not confined to direct attacks on the claimant's reputation. This means that defamation also includes implied or vile attacks (in nuindo – words used are inoffensive on the face of it and it's only with particular knowledge of other facts that the reader may reach a conclusion that is defamatory of the

claimant). Ex: a person A publishes a statement saying that a person B works for the family business. By itself this is not defamatory, unless the business B's father is arrested for involvement with the mafia. It's of no assistance to the defendant that the words were true of another individual. Ex: when a person is mistaken for another. Once the claimant has shown that the words used were defamatory, he must show that the words in fact referred to him. Does the statement refer to the claimant? Of course there is no problem if the claimant is mentioned by the name, otherwise the question is would the reasonable person having knowledge of the special circumstances understand the words to refer to the claimant? The meaning of any statement must be judged at the time of the publication. Consequently, liability will not arise where an innocent statement is later rendered defamatory by subsequent events. As before, it's irrelevant whether the defendant intended the words to be defamatory or if he intended to refer to the claimant. Again it's of no defence to the defendant that the words were true of another individual. The question arises whether it's reasonable to expect newspapers to bear the risk of a person being mistaken for another individual in a photograph in a newspaper. This question arose in the Osia v Sunjin case: The Sunday mirror published an adult for an internet service featuring a glamour model who resembled the claimant M. Osia, who concluded that readers of the Sunday mirror might conclude that she had consented to appear on a highly pornographic photograph. The courts found that liability in that case would impose an impossible burden on the publisher and considered this could not be justified. As for group defamation, unless the group in question has legal identity such as a company, no action will stand unless the class or group is so small that the claimant can establish the statement. The claimant can show that the statement refers to him directly. In general, a statement aimed at a group won't be considered to refer to its individual member. Ex: Political party – if a statement says all politicians are liar, a single politician can't sue newspapers unless he can prove it was directly said to him.

Has the statement been published? This is important because unless the statement is published, no action can be brought. It's only when a statement is seen by a third party or published that the claimant’s reputation will be harmed. This means that at least one another person must hear or read the statement and understand it. Ex: a foreigner who cannot read English, can't bring any action in defamation because he can't read what the statement is about.

These cases may give rise to harassment or assault. Concerning publication of a statement, it requires that the words must be intelligible and reach the third party. Ex: If I made defamatory statements in a lecture while the microphone is not working, I have not published my statement as long as the students haven't heard the statements. Problems have also arisen when the defendant alleges that he did not intend to publish the words. In this case, the courts decide that if it's reasonably foreseeable that a third party would see the statement, then the defendant will be liable. Thiakar v Richardson 1962: the defendant was considered liable in defamation for sending a defamatory letter to a married woman which has been opened by her husband. The letter was sealed in an envelope which looked like an election circular. It's also of no defence that the defendant was merely repeating the defamatory statements of another. But in some circumstances, the original defamer rather than the repeater will remain liable, which is the case where the original defamer has authorised or requested publication or intended that the statement be repeated. The defamation act 1996 provides a defence in certain circumstances for « innocent publication ». Who can sue and who can be sued in a tort of defamation? Who can sue? Actually any living individual may take legal action. This includes even enfants, foreigners etc. As for the dead, it cannot sue or be sued for libel. If a claimant dies on the day before the trial, the actions will not stand. The trusties of the estate or the outrage relatives dont have any form of legal action. As for companies, they may sue for defamation, but only in respect of statements that damage its business reputation. In legal theory, a company has no feelings capable of injury. Individual officers or employees of the company identified for the criticism may have an action. As for local authorities, in 1993, Derbyshire County Council, the HL held that a local authority could not bring an action in defamation because it was a danger of such elected bodies using such a power to stifle/suppress legitimate public criticism of their action. For the HL, it was of the highest public importance that any governmental body should be open to public criticism. State corporations (nationalised industries and government ran corporations), if we refer to the decision of the HL, Derbyshire 1993, cannot sue for libel. As for political parties, further extension of the rule in Derbyshire Case, disentitles political parties to sue for libel.

As for trade unions (syndicat), and most unincorporated association cannot sue for libel, decided in a case of 1979, which held that the capacity of trade unions to sue had been removed by the Trade Union and Labour Relations Act of 1974, amended in 1992. As to groups, it depends on their size and the nature of the comment being made criticising the group. There is also the problem of identification, the test in every case is whether reasonable people would understand the words to point to the claimant personally. Who can be sued? As a general rule, everyone who can sue for libel, can also be sued for libel if found responsable for a defamatory publication. There seems to exist an exception in the case of Trade Unions, which we saw cannot sue for libel, but can nevertheless be made defendants as a result of their abolition of immunity in tort by section 15 of the employment act.

Section 3: Defences to defamation
The main defences are justification or truth, faire comment or privilege. These defences must today be considered in the light of the Human rights act 1998. A part from the above defences, there are also other defences: consent, unintentional defamation and innocent dissemination.

I. Justification or truth
There is no defamation if what is published is the truth. It's a valid defence and even a complete one to show that the defamatory statements were in fact true, they are presumed to be true. Justification or truth operates whenever the defendant can show that the allegation is balanced and substantially correct. The question of substance can be significant. It's not necessary to prove that every single fact stated in the criticism is accurate so long as it's defamatory impact is substantially true. Thus minor errors such as dates, times or places will not be held against the journalist, if the essential of the allegation is justified (defamation act 1952). the burden of proof is on the defendant, and it's irrelevant whether the statements were published out of malice. There are some exceptions to that. Ex: concerning the rehabilitation of offenders act 1974. If the defendant fails completely in the defence of justification or truth, it's likely that a jury will award the claimant a higher level of damages, because it aggravated the injury to the claimant by giving it extra publicity at trial. Although justification or truth is a defence, proving it in court may be impossible. Two reasons for that: – burden of proof on the defendant

– very important legal cost of preparing a full counter attack

II. Fair comment

Here the defendant has to show that he or show has exercised the right to criticise the claimant. However, the defendant's right to freedom of expression will be limited by the courts. The difficult issue for the court is where the law should draw the line between the right of expression and the protection of the reputation of one's person. The courts have imposed three main limitations on an extent to which the defence of the defendant may apply: – it must be in the public interest – it must be comment – it must be fair and honest 1. It must be in public interest The defence is acceptable, if the defendant comments in the public interest or in relation to a matter submitted to public criticism. Ex: a book Public interest is not what interests the public, but is interpreted by case law as what a judge considers it's in the public interest to know. It concerns matters affecting people generally in which they are legitimately concerned or interested. Ex: conduct of politicians 2. It must be comment The comment should be based on a true set of facts. Sometimes, it may be difficult to distinguish between comment and fact. Here a distinction is made by the courts between making statements of facts and comment based on ascertainable facts. Ex: if a person A states that person B has just been convicted of murder and that his conduct has been disgraceful, it would be a fair comment provided that B has really been convicted of murder. 3. It must be fair and honest the courts apply the following test: was the opinion or comment however exaggerated, obstinate or prejudice, was it honestly held by the person expressing it? The test is objective for the judge according to a hypothetical person. The jury will decide whether the defendnat acted honestly and not maliciously. The test here for the jury is subjective. In general, the defence of fair comment will be defeated by malice. This is contrary to the defence of justification. It's to the claimant to allege malice.

III. Defences of privilege Here we are concerned with the problem when the public interest and freedom of expression is such that it overrides any concerns as to the effect of this freedom on the claimant's reputation. There are two types of privilege in English law: – absolute privilege – qualified privilege 1. Absolute privilege It refers mostly to statements made in parliament. The Bill of rights of 1688 provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. It applies where the need to protect the freedom of speech is so important as to create an absolute defence to any action for defamation. This freedom of members of Parliament allows then freely to criticise individuals as they feel appropriate. Ex: the Hamilton v Guardian Newspaper of Times 1995: the judges stayed the proceedings on the grounds that the defendant would not be able to bring evidence because of parliamentary privilege. Similarly in another case Allison case of 1995: the defamation act of 1996, section 13 was passed to allow a member of parliament to waive the privilege passed in the light of the former conservative member of Parliament Hamilton's litigation. This section has been criticised as being too indulgent on the members of parliament, because this section 13 allow the member of parliament to waive the privilege, but it gives no corresponding right to the opponent to ask for parliamentary privilege to be removed. There is also this defence concerning statements in Courts. This concerns judicial proceedings. This means that the courts should hear all relevant and admissible evidence so witnesses cannot be sued for defamation in court proceedings. The privilege extends to statements made by judges, advocates, parties to the litigation and the witnesses. Are also concerned by absolute privilege reports of UK Court's proceedings. 2. Qualified privilege Some are provided by statutes and others result from common law. a. Qualified privilege under the law The defamation act 1996 provides for several occasions on which qualified

privilege arise. Are concerned here reports of parliamentary proceedings ordered by the House of Parliament, or reports of judicial proceedings which are fair and accurate, or extract or copy of registers open to public inspection. Under this act, this also extends to distributor's defence which is in link with the defence of innocent dissemination. b. Qualified privilege at common law This is a very important privilege. Are concerned in general qualified privilege which arises in situations where there is a reciprocal duty and interest between the defamer and the person to whom the statement is published. The defence has two requirements: – a person A has a duty or interest in communicating with a person B. This duty may be legal, moral or social. – The person B has a corresponding duty or interest whether legal, moral or social in receiving the information in question. The element of reciprocity is essential. Ex: a person A writes a letter to a person B which contains false defamatory statement about a person C. But A has a duty to inform B and the latter has an interest in receiving this information. In this instance, the person A has a good qualified privilege. This extends to situations where a person A published a statement to a person B who share a common interest with the person A (that could be in a business setting where they both work). The rational behind this privilege is that the law recognizes the importance of encouraging statements made from a social or moral duty. It accords them a privilege from action or defamation under the condition that they are made honestly. It's considered that it's necessary at times for people to be free to communicate without fear of litigation in order to protect their own interest or because they are under a duty to communicate. The law will respect this freedom provided that it's not abused. Ex: on applying for a job, your new employer requires a reference from the former employer, the latter is under no legal duty to do so, but he is so under a social duty. It's in the interest of the new employer to see the reference. This reference will be protected by qualified privilege. Allegations about criminal conduct made to the police. If not made out of malice, the allegation will be protected by QP. Other examples are concerned with communications made to further a common interest: a circular published to shareholders in a company or to members of a Trade Union. Such a communication is protected if it's made to a person who has a duty to receive and act upon it.

What is a legal, moral or social duty is left to the discretion of the judge. The defence of qualified privilege has been developed in accordance to social needs. And Parliament has sometimes intervened to give special protection to press reports of statements made on significant public occasions. But the most important recent development of a common law concerns the protection of media investigation of public scandals. Problem of duty interest test of the media The most famous case is the Reynolds vs Times case of 2001. Facts: Albert Reynolds, the Irish ex premier sued the Sunday Times (English version) for accusing him of lying to parliament and deceiving his coalition partner, but made no mention of the explanation he had given to the House of parliament for his conduct. The Irish edition of the Sunday Times carried a longer and balanced article making no such allegations. In this case the HL rejected the Newspaper's argument that because Mr. Reynolds was a powerful politician, the occasion of publication was necessarily privileged. But the judge held that the privilege could attach to any communication, whether or not about politics, so long as it related to a matter of serious public interest, was credible and had been published with reasonable care and fairness, in all circumstances. The Sunday times English version lost the action. In this case, the HL considered that the media did not possess its own head of qualified privilege when dealing with matters of political information. On this basis, the ordinary duty interest test would apply, but the Lords in Reynolds considered that the test was flexible enough to include the consideration of different factors. The HL gave reference to at least ten factors to be taken into account in deciding whether the circumstances of a publication would lead to the protection by qualified privilege as formulated by the HL. These factors are the following: – the seriousness of the allegation: this a sort of the precondition of the qualified privilege – the nature of the information and the extent to which the subject matter is a matter of public concern. The more serious the allegation, the more it will be a matter of legitimate public concern. – The source of the information: journalist will be expected to have checked out their sources and to satisfy the court that their information was not tainted by malice. – The status of the information: the allegation may have already been the subject of an investigation which commands respect. – The steps taken to verify the information: this factor assumes that some steps will be taken and journalist must demonstrate that these were reasonable enough in the circumstances. Thus the implication that editors who publish without making any effort to corroborate will lose the privilege. – The urgency of the matter: this dimension taken from the European court judgements calls for a recognition that information that can be









characterized as news should be put into circulation as soon as possible. But the English courts after Reynolds have tended to attenuate this factor. James Gilbert Ltd v MGM Ltd 2000. Whether comment was sought from the claimant: the claimant may have information which others did not possess or have not disclosed. This is a feature of fairness which is a precondition of asserting the privilege. But an approach to the claimant will not always be necessary. Whether the article contained the essential of the claimant's side of the story. This is a further factor determining fairness. The HL attach much importance to this factor in his decision in Reynolds. The tone of the article: a newspaper can call for an investigation in the matter. It needs not adopt allegations as statements of fact. This factor marks an important advance in the protection of investigative journalism. Ex: in Grobbelaar Case, the sun lost its public privilege for exposing the character of Grobbelaar. The circumstances of the publication including the timing.

Such a flexible approach leaves the courts free to weigh up the competing interests of freedom of expression and reputation on the facts of each case. In Jameel v Wall street Journal 2007, the HL criticised some of the post Reynolds decisions such as the Grobelaar case, because the HL in Jameel considered that was raising the standard of responsible journalism too high. For the courts, after Reynolds and Jameel case, responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputation of the individuals. In more recent cases, we can find the infleunce of article 10 of ECHR. The convention allows restrictions on the rights of free speech which are prescribed by law and which are necessary in a democratic society. Also, the courts must have to the HRA of 1998 which requires the courts in appropriate cases to take into account that this right of free speech and the provisions of human rights act may in many cases serve to redress the balance between the freedom of expression and protection of the reputation to some degree. In the US, unlike England, it's generally necessary for the claimant to prove fault on the part of the defendant. VI. Other forms of defences

1. offer of amends under the defamation act of 1996 this defence applies to unintentional defamation. Ie. The defendant did not intent to harm the claimant's reputation. This concerns a lot of mistaken identity situations. Section 24 of the DA 1996 provides for a defence if there is an offer of amends such as admitting that He/she was wrong, or offering to make suitable correction of the statement or offering sufficient appology. But an offer of amends according to the defamation act 1996 must be in writing and if there is a sort of compensation made to the aggrieved party.

2. Innocent dissemination This defence applies to parties involved in the distribution process who inadvertently got involved in the propagation of defamatory material. This can concern libraries and news agents. Under common law, they had to show that they did not know that the work contained libel of the claimant, that it was not by negligence that they did not know the libel and that they did not know or ought to have known that the works were of such a character that they were likely to contain defamatory material. Common law rules of this defence have been replace by Section 1 of defamtion act 1996 which protects the defendant if he is not the author, the editor or commercial publiser of the statement and he took reasonable care in relation to the publication, and he did not know that what he did caused or contributed to the publication of a defamatory statement. This is also of a concern as far as ISP is concerned. EU directive 2002 on new electronic commerce limit the potential liability of ISP if some conditions are met: – The ISP does not have actual knowledge of the unlawful activity or information. – It acts rapidly to remove such information on obtaining any such knowledge. 3. Limitation this is not a defence as such but the claimant has a limited time in law to bring a claim. Section 5 of DA 1996 reduces the time limit from 3 years to only 1 year. Cost and complexities: Must note that in these recent years defamation trial could easily cost each side around £700 000. and the loser will have to pay 75% of the winner's cost. This level of legal fees deters all but the rich claimants or those like police officers who are backed by Unions or associations. In a defamation claim legal aid will rarely be granted. This is because of the prohibition of state funding of libel cases as found in the access to justice act of 1999. this prohibition of legal aid is not absolute, because the Lord chancellor may authorise funding of particular cases or classes of cases. Usually, the main alternative to legal action in defamation for those who have no financial resource will be an approach to the press complaint commission, but a ruling from this press funded body can not be compared with a verdict after a trial by judge and jury. This complaint will not lead to an award of damages and there will be no compensation.

The lack of legal aid amounts to a serious failure in the protection of free speech, thus small magazines may be bankrupt as a result of libel claims. Living Marxism forced to close after a high libel award of more than £350 000 plus costs. Also the procedure is complex, are also in questions the control of damages and granting of injunctions. Concerning the procedure, the DA 1996 contemplated that some cases should be dealt with by a non jury procedure. The act came into force in 2000. concerning damages, in defamation claims, damages are assessed by the jury, but under the courts and legal services act 1990, the court of appeal can substitute its own figure of damages for that of the jury. And the court of appeal is allowed to recognise that the judge may exercise some degree of control over jury awards of damages. Many of the problems associated with defamation was highlighted in the Faulks in the 1990s which have led to the improvements in respect of defences and procedures contained in DA 1996. the costs associated with jury trials in defamation together with complicated rules and procedures involved in bringing a claim mean that criticism about the high level fees still continue. And all the legal or the legal assistance has never been available either to bring or defend a defamation action. Lawyers are increasingly willing to act under a conditional fee agreement (CFA), which is popularly known as no win no fee basis. Although it's possible to obtain insurance to protect against the risk of paying the opponent's legal costs, the way in which the insurance premiums are calculated and payable is very complicated. A further development in reducing the cost of litigation in defamation case is the introduction proposed by the law society of what is called a 'preaction protocol' for defamation, which implements procedures to enable the early resolution of claims. There is also the possibility of summary judgement in certain cases. Nevertheless, in spite of the recent developments, it's still generally the case that only the very rich can afford to sue in defamation. Defamation awards are mainly intended to serve an important function other than compensation. They are intended to vindicate the claimant's good reputation and also to act as a deterrent. The levels of awards in damages for defamation can thus be said effective as a deterrent. However, the inadequacy of the law of defamation to protect against invasion of privacy has led the courts to develop the law on privacy. The passing of the human rights act 1998 brought a new perspective on the question of protection of privacy. The values embodied in articles 8 and 10 of the EC for the protection of human rights and fundamental freedoms have been incorporated in the HRA 1998. Article 8 relates to the right to respect for private and family life and article 10 relates to freedom of expression. In relation with HRA 1998, the primary developments in this area since 2000 is the action based upon breach of confidence. This is a wrong arising from the breach of a duty to keep confidence arising from either a confidential situation,

a transaction or relationship. Originally this was an action actionable in equity and the only remedy in equity was an injunction. Today, the action for breach of confidence is not only an injunction but also a claim for damages. In a decision of 2005, the Douglas case, the court held that the breach of confidence is not really a tort but a restitution claim for unjust enrichment. The position is not very clear on this issue.

Chapter 6: Economic torts
According to case law, economic tort is considered to be a general class of torts of interfering with a trade or business of another person by doing unlawful acts that damage a person's economic interest. Origin of most of economic torts are in the field of industrial action (employment field), but now economic torts are regarded as concerned with contractual relations of any kind. There are 5 main forms of economic torts: – Tort of inducing breach of contract This was first developed in a decision Lumley v Gye 1853. Facts: Ms Wagner had a three month exclusive contract to sing at Lumley's theater which was a rival theater of that of Mr. Gye. The later persuaded Ms. Wagner to sing at his theater for a higher fee than she was being paid by Lumley. Gye was aware of Ms. Wagner's existing three month contract. So Lumley sued Mr Gye. The court set the legal principal and held that Gye had committed the tort of inducing the breach of contract. It used to be considered until decision of the HL of 2007, that there was two forms of this tort: the direct form of inducement and the indirect form of inducement. However, the HL recently unanimously rejected this appraoch in OBG ltd v Allan 2007. For the HL, the tort of inducement to commit a breach of contract is satisfied in the following scenario. That would be the case when a person A intentionally induces a person B to commit a breach of his contract with person C without legal justification, which results in loss to C. In such a case the person C will have a right to sue the person A in tort. In the 2007 case, the HL clarified the conditions to be satisfied. • • First the person A must know that he is inducing a breach of contract. His intentional actions will have this effect. Person C must show that person A intended to induce B to commit a breach of contract. If the breach of B's contract with C is neither an end in itself nor a means to an end but merely a foreseeable consequence of the actions of A, then A will not have intended to induce B to commit a breach of his contract with C.

The HL considered in this 2007 case that this tort imposes secondary or accessory liability on the A and requires proof of an actual breach of contract by B, and thus primary liability on B to C. Example: in a strike action, there will be IBC when a striker may only be called by a trade union to go on strike. The employee will be breaching his contract with his employer. The trade union is

inducing the employee to breach his contract of employment with his employer. In this case, employer will be able to sue the trade union. – Tort of interference with trade or business by unlawful means : Causing loss to a third party by unlawful means This tort was clarified in OBG Ltd case of 2007. The HL held that a person will cause loss to a claimant by unlawful means where: • that person engages in wrongful interference with the liberty of a third party in which the claimant has an economic interest in a way which is unlawful against that third party • that person has an intention thereby to cause loss to the claimant. Example: a trade union, an employee of an employer C. B is also a member of the trade union. Employer A and employer B are in contractual relations whereby employer A supply services and goods to employer B. Trade union wishes to cause economic loss to employer B. If trade union persuades the employee to breach his contract of employment with employer A, that would lead indirectly employer A to not be able to supply goods and services to B, which will result in breach of commercial contract with employer B. This breach may cause loss to employer B. Since it causes loss to employer B by unlawful means, employer B can sue trade union. – Tort of intimidation This concerns mainly industrial actions. This tort is committed when a person A threatens B that he would do something unlawful to B unless B acts to the detriment of a person C who is the intended victim. This was unknown until the decision of the HL Rookes v Barnard of 1964. Facts: Rooks was employed by BOIC (British airways) and had resigned from his trade union. The Trade union had a system of closed shop (illegal today) and so the trade union threatened BOIC with strike action if Rooks was not dismissed. Under this pressure by the trade union, the company dismissed Rooks. The HL held that the trade union had committed the tort of intimidation. – Tort of conspiracy This tort is committed where two or more persons combine with the predominant purpose of injuring a third party rather than serving their own legitimate interest. – Tort of economic duress (violence economique) The law of contract has always placed limits upon the exercise of economic power by contracting parties. This rule has traditionally been played by the doctrines of duress and undue influence. The common law has attempted to introduce the doctrine of inequality of bargaining power. The doctrine of economic duress has been developed lately in English law.

Economic duress arises where one party uses his superior economic power in an illegitimate way so as to coerce the other contracting party to agree to such terms or demands. The existence of this doctrine of economic duress was first recognised in England in a decision called Subeon Case of 1976 and has since been recognised in a number of cases. A very important case of the HL in the development of economic duress, Universal Tank ships of Monrovia v International transport workers' federation of 1982. If found to apply, the doctrine of economic duress allows a party to a transaction to claim later that the transaction is invalid, because he/she did not truly consent to it or precisely has been placed in a situation where he/she had no practical alternative but to agree to the demand made by the other party by pressure which the law does not regard as legitimate. In such a case, that party may recover any money paid to the other party or may be granted damages. The important point is to see what are the factors applied by the courts to establish economic duress. Much emphasis have been placed on the need to establish a coersion of the will. Most important factors have been developped in the 1982 case of tankship, and there are four main guidlines to be used by the courts: the court must insure • • • • whether him/her whether whether whether it? the party coerced had an alternative cause of action open to the party coerced protested? the coerced party had independent advice? after entering the contract the coerced party took steps to avoid

The first factors seems to be the most important one if we refer to decisions, which is whether there was an alternative cause of action to the party coerced. The other factors played a sort of evidential rôle. Most decision after the 1982 case tended to support this conclusion. In a more recent decision, 1989 Atlas express, the HL considered that the introduction of a more objective test might be of some help to the doctrine of economic duress. This objective test is the following: the party alleging that he/she had been coerced must prove that he acted in a reasonable way in taking the other party's threats seriously. In some other cases, for example Court of appeal 1991, it was suggested that modern courts will be quite willing to find the presence of consideration in the renegotiation of a contract but it's up to the tort of economic duress to regulate the fairness or not of the renegotiation of such a contract. It's quite a recent tort and fundamental issues still remain to be answered by case law.

Chapter 7: Remedies
The main remedies in claims of tort actions are damages and injunctions. Section 1: Damages

Damages are the remedies the most commonly sought in an action in tort known as financial awards. In English law there are different types of damages and for personal injury it's a specific type of action. I. Different forms of damages There are different kinds of damages, some divided in general damages and other in special damages. A. general damages This can be divided in four types of damages: 1. compensatory damages English law, as French law, seeks to fully compensate the victims. This is known in French as le principe de la réparation intégrale (restitutio integom in English). This principle is found in the decision Livingstone v Rawyards of 1880, where the HL considered that this principle is defined as a sum of money which has put the party who has suffered in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. The court seeks to give a financial sum which as far as possible will compensate the claimant. If financial losses before trial can be estimated with some exactitude, future financial loss due to the tort is less easy to estimate. The main problems arise in relation to personal injury claims and those consequent on the victim's death. In English law, there is generally a duty to mitigate loss in tort. The courts will thus not allow a claimant to recover losses which he or she could have reasonably avoided. Mitigation takes a more important rôle in contract law than in law of torts. The courts will award damages in one lumpsum. general damages may be awarded in different forms to achieve different purposes. 2. Contemptuous damages These are damages of a very small amount which is rarely awarded. When awarded, the successful claimant will not obtain a cost order in his favor. Important decision is Grobbelaar v News Group newspaper Ltd 2002. Facts: the Sun was sued for allegation that G had accepted bribes to letin goals from the opposition. Held: the HL , after legal proceedings, reinstated the jury's original verdict in favour of G but reduced damages from £85 000 to just £1. The Lordship ordered to G to pay 2/3 of the Sun legal cost which were about £1, 000, 000. 3. Nominal damages

They are a token ( symbolic) amount which recognises that the claimant's legal right has been infringed but no actual damage has been caused. They generally apply to torts actionable per se (without proof of damage such as trespass to the person or to libel). 4. Aggravated damages Aggravated damages form a further level of compensatory damages granted by the courts to compensate for additional mental distress inflicted on the claimant due to the malicious insulting or oppressive conduct of the defendant . The manner in which the tort is committed or the motives of the defendant may therefore justify such an award of aggravated damages. Ex: in defamation cases in libel, if the defendant had published a statement out of malice, or if the defendant has persisted at trial with an unsupportable plea of justification, → an additional sum may be awarded to the claimant. Such damages are not available for all torts. The Courts will only award aggravated damages for torts where the injury to the claimant's feeling and self-esteem are an integral part of the damage. Thus, on this basis, aggravated damages are not awarded for negligence or for nuisance. They will be awarded for intentional torts such as trespass or libel. The sum to be awarded is at the discretion of the court but it is usually a moderate sum. 5. Exemplary or punitive damages The Law Commission in 1997, recommended that the term punitive should be use in the future instead of the term exemplary. Leading case: Rookes / Barnard 1964 . In this case the Lords distinguished punitive damages from aggravated damage and set out the rules where punitive damages should be granted in English law. Aggravated damages seek to compensate the claimant for any additional injury due to the manner in which the tort was committed. In contrast punitive damages aim to punish the defendant for his or her conduct. The role of punitive damage is to attempt to deter the defendant and others from undertaking such conduct in future. In Rookes / Barnard, the HL restricted punitive damages to 3 kinds of cases, even though we have to mention that Lord Devlin doubted the legitimacy of such damages which in his view confused the civil and criminal functions of the law. However, his Lordship admitted that punitive damages were firmly established in English law and decided not to abolish this form of damages. • In case of an oppressive, arbitrary, or unconstitutional actions by government's servants. • In case of conduct calculated by the defendant to make a profit which may well exceed any compensation payable to the claimant. • In case of an express authorisation by statute.

i. Oppressive, arbitrary government's servant.

or

unconstitutional

actions

of

The defendant will be penalise for the abuse of power. ii. Conduct calculated by the defendant to make a profit which may exceed any compensation payable to the Clt The aim is to teach the defendant that tort does not pay and to deprive the defendant of the fruit of his or her tort. However, this is approached in a rough way by the courts. In fact, the Court will not require the Clt to set out the profit obtain by the defendant from the tort. The real question for the court is whether the conduct of the defendant was calculated. To prove this, the claimant must show something calculated and deliberate in the defendant's actions. The most frequent example of punitive damage will be found in libel cases. For ex in Cassell/ Broome 1922 – The HL held that the Court should investigate whether the defendant was aware of the fact that what he was planning to do was against the law and had nevertheless decided to carry on because the prospects of material advantage outweigh the prospects of material loss. iii.When expressly authorised by statute The one in Rookes / Barnard. But this is in fact very rare in English law. It has been argued that the Copyright designs and patterns Act authorised punitive damages by his reference to additional damages. Concerning punitive damages, the CA in a decision of 1993 imposed some further restriction on punitive damage. But the HL in Kuddus/ Chief Constable of Leicestershire (2002) overturned the decision of the CA of 1993. The HL considered that in future the courts would examine the facts of the case and would not be deflected ( détourné) by the claimant's cause of action. In Kuddus case, the HL expressed concern that council had not raise the fundamental question of the role of punitive damages in English tort law. It is still an on going question whether punitive damages should continue to be part of English law. The law commission did in 1997 feel that punitive damages still play a valuable role and that they should be available for all tort or equitable wrongs but not for breach of contract. → where the defendant in committing the tort by his or her subsequent conduct deliberately and outrageously disregarded the claimant's rights. The law commission recommended nevertheless should remain a last resort remedy and should not be awarded where other remedies adequately punish the defendant for his conduct. The government had stated at many times that it did not intend to implement the reforms recommended by the Law Commission. It is for the Courts to consider when punitive damages should be awarded. In other Commonwealth countries such as Australia, Canada, New Zealand have adopted a more restrictive view on punitive damages.

6. Restitutionary damages Under the doctrine of waver of tort , the claimant has the option to choose between compensatory and restitutionary damages. Restitutionary damages are those assessed not on the loss caused to the claimant but on the gain obtained by the defendant at the claimant expanses. Not all torts allows restitutionary damages. 7. Damages under the HRA 1998 S.8 of HRA sets out the judicial remedies which arise when a public authority has acted in a way which is incompatible with a convention right. In this cases, the Court may grant such remedies or make such order within its powers as it considers just and appropriate. Under the HRA there is thus no right to damages. It is up for the courts to decide. II. Damages for personal injury Concerning personal injury, the courts assess the claimant's loss on an individual basis. In case of personal injury a claimant is entitle to recover all losses whether pecuniary or none pecuniary that flow from the Dft's tort. A. Pecuniary loss If the claimant has suffered severe injuries, the largest part of the claim is likely to be for financial loss , including loss of earnings, cost of care, and expanses. As mentioned before, financial losses, before trial can be assessed with some degree of accuracy. But future losses are very difficult to calculate. In fact the court mus find a sum which if properly invested will cover the claimant for all future losses due to the tort. The best the courts can do is to make a guessed estimate of future losses. 1. Loss of earnings Loss of earnings before trial can be easily assessed by the courts with some accuracy. This is not the case for the loss of future earnings. In fact, the court use a method known as the multiplier * multiplicand method. Essentially a figure is reach by the court by multiplying the multiplier by the multiplicand. The multiplicand is the claimant net annual loss : it is gross annual salary less income tax and national insurance. The multiplier is the number of years for which this loss will continue. This is not a question of the difference between the claimant's age at the time of the injury and the age when he or she resumes work or retires. The courts will take account of the possibilities of unemployment or dismissals, redundancy ( = dismissal for economic reasons ) and other factors reducing salary. On this basis the multiplier will be discounted to take account of all these contingencies ( = imprévus).

Usually, the multiplier will be set at a rate far lower than the actual number of years during which the injury will be suffered. This formula is stated to give a lump sum sufficient if invested to produce an income equal to the loss of income suffered by the claimant. More recently, pressure has mounted for the court to adopt a more scientific approach: the Ogden Tables 1984. These are a set of actuarial tables prepared by a working party of lawyers and actuaries ( statisticiens travaillant dans le domaine des compagnies d'assurance pour évaluer des risques très importants) ... These tables are published by the Government actuaries department. S 10 of the Civil Evidence Act 1994 provides that these tables are admissible as evidence in court. i. The loss years Loss years is a claim for loss of earnings during the period the claimant would have been able to word but for the fact that his or her life has been shortened by the defendant's tort. In other words, a claimant was expected to live 80. Following the tort, the claimant will only live 50. hE claims the loss of earnings for the age of 50. In the past, a claimant could have claim damages for loss of expectation of life. But in decision called Oliver 1962, the CA held that no additional award for loss of earnings during the loss years will be allowed. The loss of expectation of life has been abolished by the Administration of justice Act in 1982. ii. Loss of earning capacity This is a claim for losses due to the fact that although the claimant can carry on working his or her ability to obtain employment. In assessing the claimant compensation, the courts seek to compensate the victim fully but is also careful to avoid overcompensation. This pb of overcompensation arises when it is shown that following the injury, the claimant has received sum of money which also compensate him or her for the loss suffered. 2. Cost of a carer A further expanse following injury may be the cost of a carer. The court will award compensation for the cost of a carer if such expanse is reasonably incurred. However, the carer in question may not be a professional carer, but a close relative or partner who wishes to care for her relative. Such relatives are unlikely to charge a fee but of course make considerable sacrifices in both financial and emotional terms. The CA in Donelly/Joyce 1974 recognised that such carers should be rewarded. Facts: the victim's mother had given up her part time job to nurse a 6 years old sum. Held: The CA awarded a sum for her nursing services but held that the loss was

suffered by the victim mainly the need to receive nursing services due to the tort. It was not the loss of the mother which was being compensated but in Donelly's case, the court also held that it was not necessary to show a contract between the victim of the tort and his mother to obtain the award. Hunt / Severs (1994) Facts: the victim has been injured when ridding as a pillion passenger on a motorbike driven by the defendant who later became her husband. In claiming damages, she requested a sum for her carer, that is for her husband. Held: The HL held that although the sum was awarded to the victim it would be held untrust for the carer. Following Hunt, if the carer is the tort feaser , in order to obtain full compensation, the victim is forced to contract for a carer or use a different relative. The Law Commission in 1999 recommended in their report that there should be a legitimate provision reversing the result in Hunt and that the carer should have a legal entitlement to the claimant's damages for past care although not for future care. Since this report, the National Service Act provides this possibility. B. Non pecuniary loss This concerns pain and suffering experienced by the claimant but also what is called loss of amenity. 1. Pain and suffering ( subjective test) The Law Commission in 1995, defined pain as the physical hurt or discomfort attributable to the injury itself or consequent on it. Suffering is defined as mental or emotional distress which the plaintiff may feel as a consequence of the injury (anxiety, worry, fear, torment, any embarrassment). It is a subjective test and in English law, no sum will be awarded if the claimant is unconscious or unable to experience pain or suffering due to his or her condition. The courts will concentrate on the actual conditions of the victim but also consider passed, present and future suffering. S1 of the Administration of justice act of 1982 also allows an award of damages to victims suffering or likely to suffer on the realisation that their expectation of life has been reduce as a result of the injuries. This will form part of the award for pain and suffering. As the award is subjective, the claimant must be aware of his or her condition. Thus, damages will be refused by the court if the victim is rended permanently unconscious either immediately or within a short time of the injury. Hicks 1992

Facts: medical evidence indicated that the plaintiff's daughters crushed in the Hills Borough disaster would have loss consciousness within a matter of second and would have died within five minutes, the court rejected a claim for the distress suffered by the girls in their last moments. Is this case justified? Damages measure the degree of pain actually felt by the claimant and reflect therefore his or her capacity for suffering. If we refer to this definition, we can say that the Hicks case is justified, because the torter could not actually by being unconscious feel any pain. 2. Loss of amenity ( objective test) Distinct from pain and suffering and is a claim for the loss of enjoyment of life experienced after the injury. Example: Due to an injury to a leg, a claimant cannot go to tennis or go to long country walks as she could prior to the accident. This is an objective test and the fact that the claimant is unable to appreciate this loss is irrelevant. This was clearly set by the case: H.West and Sons Ltd / Shepherd (1964): Facts: the plaintiff had been badly injured in a road traffic accident and had sustained severe head injuries which unfortunately resulted in cerebral atrophy and paralysis of arms and legs. Due to her injuries, her ability to appreciate her condition was severely limited. She was 41 at the time of the accident but had no prospect of improvement and she required full time hospital nursing for the rest of her life which was estimated of 5 years. Held: the majority of the HL in that decision held that she had suffered loss of amenity and approved the trial judges award of £17 500. The HL was not prepared to treat such a victim as dead and to reduce damages on this basis. This position of the HL was approved in Lim/ Camden Area Health Authority 1980: Facts: A 36 years-old psychiatric doctor had suffer extensive and irremediable brain damage, following a minor operation. As a result, doctor Lim was barely conscious and totally dependent on others. She was awarded £20 000 for pain and suffering and loss of amenity. Held: This was approved by the HL which held that decision West could only been reversed by an act of Parliament which deal with all aspects of damages of personal injury. The court was not prepared to overturn a decision which had form the basis for settlements and damages awards for almost 20 years. A review of the position was undertaken by the law commission in its report of 1999. But this report of the Law commission did not recommend changing the rules for damages for non pecuniary loss in respect of permanently unconscious or conscious but severely brain damage claimants. However, that same report in 1999 stated that damages for non pecuniary loss in cases of serious personal injury were generally too low and should be increased generally by a factor of at least 50% for awards over £3000. It was recommended by the Law commission that this should be achieved by

guidelines set down by the Court of appeal or the House of Lords. If this was not achieved within a reasonable period , then , legislation should follow. The court of appeal in March 2000, responded to the recommendation of the Law commission in decision Heil / Ranking 2000. The court of appeal in this decision proposed a more modest increase in awards than that suggested by the Law commission . The court considered that over £10 000 there should be a maximum of 1/3 increase for the most serious personal injuries and for other cases they considered that compensation should be fair, reasonable and just. This decision of 2000 have since given rise to a real increase in the level of awards. For serious personal injuries. Also, generally, for the non pecuniary loss, the courts refer to details of current awards which appear in a practitioners' work called Kemp and Kemp on damages. This work was set by the judicial study board which has produced a set of guidelines on this question. These guidelines are very useful today for the courts. However concerning cases related to non pecuniary loss , a large majority of awards for personal injury whether pecuniary or non pecuniary losses are under £10 000. Conclusion on damages as a remedy: Damages will usually be awarded in a lump sum and this does have a number of disadvantages: danger that the lump sum may run out due to poor investment , or if there is a higher expected life ; also a lump sum may leave the claimant with an unsufficiant sum to cover his need. This has led to calls for alternative forms of awards which more closely reflect the actual needs of the claimant. This has led Parliament to support what is called “periodic payments” and in certain cases to “structured settlements”. • Periodic payments: they could respond to changes in the claimant's condition and ensure that the claimant has sufficient founds for a long term. In a way, they provide a sort of guaranteed income. The Damages act 1996 has been amended by the Courts act 2003 which came into force in 2005. Section 2 of the Damages act as amended provides that a court when awarding damages for future pecuniary loss in respect of personal injury may order that damages are wholly or partly to take the form of periodical payments and the courts shall consider whether to make such an order. Part 2 of the Section 2 states that a court awarding damages in respect of personal injury may if the parties consent order that the damages take the form of such periodical payments. Section 2 also states that if the parties consent, periodical payments may be made in relation to other heads of damages, not only for personal injuries. Part 3 of section 2 provides that a court may not make such an order for periodical payments unless it is satisfied that the continuity of such payments is reasonably secured . Periodical payments will be considered as reasonably secured if: it is protected by a guarantee given under section 6 of the Act, it is protected by a scheme



under section 213 of the Financial services and markets Act 2000, and usually the source of payment is a health service body. But in general, the civil procedural rules consider that the courts must have regard to the form of awards that best meet the claimant's needs. Structured settlements: this consists of replacing the lump sum with what is called annuities (?) purchased by the tort feasure and managed by an insurance company. Financial acts 1999 states there will be no tax on revenues for such annuities . The variation of periodical order of 2005 allows the courts which had made a periodical payment order to modify it in specified circumstances.

In most cases, damages still today continue to be paid in the form of a lump sum, which is considered the form the most attractive by the claimant.

Section 2: Injunction (mesure de sauvegarde et de référé) Damages will be the best form of remedies when harm has occurred and can be calculated but in many cases, prevention can be better than cure. Also, in many cases it will be difficult to work out what loss has been sustained. It is to deal with these cases that the equitable remedy of the injunction was developed. The word injunction simply means order and in this context it is an order of a court addressed to a party to a litigation and requiring him to do or refrain from doing something that would be punished for what is called “ contempt of court”. Contempt of court will be punished either by a fine, or imprisonment, or sequestration of assets. There are different types of injunctions: the main subdivisions are between final and interim injunctions and between mandatory and negative injunctions. The first distinction is as to the stage in the proceedings: an interim injunctions take effect during the case usually to maintain the existing position until the rights and wrongs can be sorted out. A final injunction is normally permanent and represent thus what can be called the part of the final disposal of the case. A mandatory injunction positively requires the defendant to do something while a negative injunction requires him not to act in a certain way. Negative injunctions are the most common form and particularly at the interlocutory stage. I. Principles of injunctions The High court may grant an injunction in any case where it is just and convenient to do so. This is provided by the Supreme Court Act of 1991. In the High court such an injunction may be the only remedy sought by the claimant. Under s38 of the County courts act, in the County court, an injunction may only be granted as an ancillary (accessoire) remedy to some other relief. But purely

nominal claim for damages may suffice. Although law and equity remain separate, concerning injunction, they are administered together. And the rules of equity prevail when there is a conflict. This has been recognised in case of remedies since Earl of Oxford case of 1615. Equity operates on the conscience, so the judge must consider it to be the right and just thing to do before he will grant an injunction. Injunctions, as with all equitable remedies are discretionary . This discretion is in the hands of the judges, but there are clear guildlines as to when injunction is likely to be granted and on what terms. There are many areas not involving tort where injunctions will be sought. But in the area of tort, the most common application of injunctions will be in areas of a course of conduct than incidents. Usually most important areas of tort law where there will be injunction are cases of nuisance, trespass, harassment, and defamation. As mentioned before, the courts will only grant an injunction if the claimant has a good cause of action. They are usually awarded where damages are not an adequate remedy. The court has the option to award damages in addition or in substitution for an injunction. But a court will only award damages instead of an injunction in the following circumstances, which were set in Shelford Case of 1859: – – – – Where the injury to the claimant's legal rights is small. Where the injury is capable of being estimated in money. Where the injury can be adequately compensated by a money payment. where it would be oppressive, for the defendant to grant an injunction.

II. Final injunction A. Negative or prohibitory injunction A negative or a prohibitory injunction is an injunction ordering the defendant not to act in a certain way. As mentioned before, this is the most commonly injunction which is granted and deals with situations to ensure that the defendant does not continue in a tortuous manner. Most cases refer to defamation and trespass. B. Mandatory injunction A mandatory injunction is an injunction ordering the defendant to act on a certain way and is granted more rarely. The court in granting such prohibitory or mandatory injunction must be careful that it ensures that the defendant knows exactly what in fact he or she has to do or not to do. The conditions are set in Redlend Bricks Ltd / Morris 1970: • • Strong probability that substantial damage will be caused damages would be inadequate as remedy

the defendant's behaviour is relevant It must be possible to frame the mandatory injunction in such a way that the defendants are very clear as to what they need to do. These injunctions can be given provisionally prior to the final hearing or can be given at the final hearing. • • III. Interim injunction They are injunctions prior to the final hearing. This means that the rights of the parties have yet to be determine and the full facts of the case have yet to be set out. ( = les mesures provisoires de référe du droit français) . Granting of such an injunction obey to certain conditions set out in American Cyanamid Co / Ethicon 1975. Usually for such interim injunction, the court requires the claimant to give an undertaking to pay damages and costs to the defendant for any loss suffered while the injunction is enforced, should it proved to be wrongfully issued. Undertaking are important in relation to interim or interlocutory injunctions. Some claimants to avoid such undertakings try to apply for a final injunction without also applying for an interim or interlocutory one. The claimant will be allowed to act in this way ( decided in an important case of 1990 called Oxy Electric Ltd ). Conditions set by the American Cyanamid case in the granting of interim injunctions: 1 ) The claimant must show that the claim is not frivolous or vexatious and that there is a serious case to be tried. 2 ) The court must then consider the balance of convenience in deciding whether or not to make such an order. 3 ) The balance of convenience must show that damages won't be an adequate remedy . The courts are very reluctant to impose injunction in defamation cases. In general , the courts must consider if it is in the public interest that such an interim injunction is granted. S 12 of the HRA 1998 directs the court to have regard to the convention right to freedom of speech when considering the grant of any relief that might affect its exercise. Thus, s12 specifies that no interim relief is to be granted so as to restrain publication before trial unless the court is satisfied that the claimant ( or the applicant ) is likely to established that publication should not be allowed. The likely criteria was intended to set a minimum requirement for the grant of interim injunction in such cases of defamation. Green / Associated Newspapers Ltd 2005. Concerning interim injunction and defamation cases, the courts will not grant an interim injunction where the defendant alleges an intention to rely on the defence of truth, fair comment or justification. This form of injunction is very important mainly in defamation cases where the law has set clear rules on when to grant such injunctions.

IV. Quia timet Injunctions to prevent a legal wrong before it occurs . This is an extreme remedy in English law and the courts will ensure that the conduct of the defendant is such that substantial damage to the claimant is almost bound to occur and that damages will not be an adequate remedy. The main authority in this issue in Redlend Bricks Ltd / Morris 1970 :in this case it was decided that quia timet injunctions can be granted in 2 particular types of situations: 1) Where the defendant has as yet not harm the claimant but is threatening and intending to do so, and the defendant's acts will cause irreparable harm to the claimant or to his property. 2) Where the claimant has been compensated for past damage but alleges that the earlier actions of the defendant may lead to future causes In industrial action cases (ex: minor strikes in 1983) a judge granted such a quia timet injunction on a Sunday afternoon on telephone – it is not a last resort remedy. V. Consequences of breach of an injunction : final or interim. Legal csq are attached to such a breach of an injunction by the defendant. According to the law, a breach of an injunction constitutes a contempt of court ; in case of a contempt of court there may be fines awarded or even there may even be imprisonment. The fines which can be of an important amount are designed to force the defendant who is in contempt of court to purge that contempt and to accept the authority of the court. Sometimes, there may be even sequestration of assets of the defendant. 2 ex of it during the minor strike of 1983. Other ex: a strike action – the trade union was fined £250 000.

CONCLUSION ON TORTS: I- Limitation period. Limitation of period ( time to bring a claim) is provided by the Limitation Act 1980. For all claims in tort not involved in personal injury the limitation period is 6 years ; for personal injury that would be 3 years. For defamation cases it is 1 year – 12 months from the date of publication. Under the Limitation act the court has power to extend the limitation period where it is equitable to do so. This does however not concern trespass to the

person: baterry, assault and false imprisonment. II- Cost , legal aid and conditional fees. • Cost:

The excessive cost of litigation have been a regular target of critics of the English legal system. Ex: out of a compensation for personal injury 80 % is eaten up by cost. Report of Lord Woolf on Access to justice 1996 : the legal cost of both parties to a personal injury case which goes to trial often equal or exceed the damages recovered. In his report of 1996 , Lord Woolf concluded that the English present system provides higher benefits to lawyers than to their clients. The cost are beyond the reach of ordinary people. One other main factor contributing to such high level of cost is the duration of litigation. Half of all personal injury cases in High Court took at least 4 years to complete. In his report , Lord Woolf recommended some solutions : 4 main: – limited procedures – fixed time tables – limited trials – fixed cost The Woolf reforms were substantially implemented in the new civil procedure rules which came into effect in 1999. In 2009 there have been the Jackson's report on this question. • Legal aid and conditional fees: Legal aid: in recent years in UK a very large number of people have fallen out of the legal aid system as successive governments have limited the class of those benefiting from the scheme of legal aid. Different governments in power have attempted to shift the burden of provided the necessary finance from the public to the private sector, specially by the introduction and promotion of conditional fees arrangements. The access of Justice act of 1999 was introduced by a Labor government, and provided the ending of legal for most cases of personal injury other than clinical negligence. Conditional fees: they are agreements also known as “no-win-no-fee” agreements. They allow a lawyer to agree to take a case on the understanding that if the case is lost he will not charge the client for the work he has done. If however the case is won, the lawyer is entitle to charge what is called a success fee calculated as a percentage of his normal cost to recompense him for the risk he has run of not being paid. Clients have some time to pay

for expenses known as disbursements (medical or expert reports or court fees) that the lawyer has had to pay. Although in some cases the lawyer may agree to fund this cost as part of the conditional fee agreement. Conditional fees allow lawyers and clients to share the risk of litigation. And the success fee is set according to the risk the lawyer is taking. According to the Court and Legal service act 1990, the maximal amount of the success fee the lawyer is allow to ask is 50% (?) …. Publication of the Jackson report in 2009 highlights the major flows of the conditional fees agreements. The Jackson report considers that the conditional fees agreement (CFA) is one of the major factors of excessive cost in the English civil justice system. So he recommended in his report that loosing claimants will have no liability to pay successful defendants cost and that successful claimants will not have to pay their lawyers fees out of the damages they recover. There is currently much debates on this report. The proposals of this report are still under discussion. To illustrate the problem of CFA, an important case in Naomi Campbell / MGN 2005: Facts: NC sued the publishers of the Daily Mirror for breach of confidence and defamation and she alleged also that the published information was in violation of her right to privacy. At the trial, the J found the case proved, and awarded NC £3500 for damages; this low figure reflected the fact that NC conceded that her own conduct prevented from objecting to the Newspapers more serious allegation namely that she had been addicted to drugs. Her complain concerned details and photographs for the treatment she was receiving. But in Oct 2003, the Court of appeal, unanimously reversed the decision, dismissed the action and ordered NC to pay the cost of the trial and 80% of the cost of the appeal. In 2004, the HL reversed the decision of the CA and restaured the original decision. The HL ordered the respondents ( MGN) to pay NC cost in the appeal and for the appeal before the HL. Pursuant to the order of the HL, NC solicitors handed 3 bills of costs to MGN £377000 for the trial , £115 000 for the appeal to the CA, and £600000 to the appeal for the HL. Of course, MGN were mortified to find that although the amount of damages were £3500 they had been asked to pay legal costs in addition to their own cost in the sum of over £1, 000, 000. MGN complained that their freedom of expression had been infringed . They argued that the threat of liability to pay such a large sum by way of legal cost is just as likely to inhibit the freedom of expression. MGN Newspapers raised a point of principle about their liability on the cost of proceedings. At this stage of proceedings NC retained solicitors and councils pursuant to a conditional fee agreement. This conditional fee agreement provided that if the appeal succeeded, solicitors and councils should be entitle to success fee of £50 % and 100% respectively. It was a success fees of nearly £300 000 which brought the figure fir the appeal to the HL. A petition was presented to the HL in 2005 by MGN; MGN wanted the committee of the HL to judge that they should not be liable to pay any part of the success fee on the ground that in the circumstances of the case, such a liability was so disproportionate, so as to infringe their right to freedom of

expression and then to the art 10 of the ECHR. Held: the HL considered that the conditional fee agreement act ordered of 2000 allowed the CFA in all litigation except in criminal and some family or environmental proceedings. HL considered that MGN had to pay the fees, and the amount of legal cost of over £1, 0000000 was not a violation of art 10 of the ECHR. Tort, and especially negligence is founded on fault.

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