Assessing of the Law of Tort

A tort is primarily a civil wrong which is essentially concerned with compensation for damages as a result of the defendants acts or omissions. Unlike other legal concepts, tort aims to compensate the victim rather than punish them as in criminal law. ” [1] Many people divide tort law into three rough categories: negligent torts, intentional torts, and strict liability torts. Torts arising out negligence are civil wrongs caused by negligent behaviour or a failure to practice due diligence. For example, if you are playing soccer in the street and you accidentally kick the ball through someone’s living room window, this may be a negligence tort. Medical malpractice and other forms of professional negligence are also covered under the umbrella of negligence torts. Intentional torts are torts which involve a deliberate attempt to harm. Defamation is often viewed as an intentional tort, as is battery, fraud, false imprisonment, and interference with the economic operations of a company. Strict liability torts cover product liability; if a potato peeler takes your finger off when you operate it as directed, the manufacturer could be liable, for example. Tort law also covers issues like nuisances, such as noise pollution and loose livestock.” One main form of tort law is trespass. ” [2] Trespass takes three forms; trespass to the person, trespass to land and trespass to goods, all of which are actionable per se which means that a claimant does not have to prove damage to bring an action in trespass.” The general principal that has been established when dealing with trespass in tort law is that the acts have to be direct and intentional, but if the acts are indirect and unintentional then the action will remain in negligence. There are three fundamental elements when it comes to trespass of the person, these are; assault, battery and false imprisonment. Paul v Mick Assault first appears when Mick passed by on the other side of the street and shouted to Paul “You’re a waste of space. People like you should be shot!” Mick makes an unprovoked verbal attack towards Paul and then proceeds to threaten him. However, Mick does not say he wants to shoot Paul. At first glance this could seem like Mick is assaulting Paul. The definition of assault can be defined as ” [3] At Common Law, an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact. The act required for an assault must be overt. Although words alone are insufficient, they might create an assault when coupled with some action that indicates the ability to carry out the threat. A mere threat to harm is not an assault; however, a threat combined with a raised fist might be sufficient if it causes a reasonable apprehension of harm in the victim.” However, as contact was not made between Mick and Paul and as Paul was not in immediate danger due to being on the other side of the road from Mick results in it being evident at this point that assault has not occurred. This is similar to the case of Thomas v National Union of Mineworkers (1986) 2 All ER 1, where picketing miners made violent threats and gestures to working miners who were in buses surrounded by police barricades. There was no liability in assault because there was no immediate danger as the working miners were safe in the bus. A contrasting case would be Tuberville v Savage (1669) 1 Mod 3, the defendant placed his hand upon his sword and said “If it were not assize time, I would not take such language from you.” It was held that the defendants own words had ruled out the possibility of immediate danger and therefore no action could be brought against him. Both these cases prove that Mick had not assaulted Paul resulting in no liability. By pointing a realistic toy gun at Paul can be considered an assault even though he doesn’t physically hurt him. Mick has already threatened Paul stating “people like you should be shot” and returning with a gun confirms to Paul that Mick has come back to carry out his threat. ” [4] Note that an assault can be completed even if there is no actual contact with the plaintiff, and even if the defendant had no actual ability to carry out the apparent threat. For example, a defendant who points a realistic toy gun at the plaintiff may be liable for assault, even though the defendant was fifty feet away from the plaintiff and had no actual ability to inflict harm from that distance.” Paul obviously felt in immediate danger as Mick has caused ” [5] another person to apprehend the infliction of immediate, unlawful, force on his person.” This reflects the case of Logdon v DPP [1976] Crim LR 121. The defendant pointed a gun at the victim which caused her to apprehend immediate physical violence until she saw it was in fact a replica. The court held that this was assault. Therefore Mick could be liable for assault towards Paul. Mick v Paul Paul retaliated to Mick’s verbal threat by “shouting obscenities” although he was unable to cross the road to confront Mick due to the high volume of traffic. This could be classed as assault because had the cars not been in the way then Paul may have physically attacked Mick. This is reflected in the case of Stephens v Myers (1830) 4 C & P 349 where the plaintiff was the chairman of a parish meeting, where it was decided due to a large majority, to expel the defendant. The defendant then became increasingly violent and moved towards the plaintiff saying he would rather pull him out of the chair than be expelled. As the defendant tried to carry out the act a third party prevented him from doing so and the question to be decided was whether the defendant’s threat was sufficient to put the plaintiff in apprehension of an immediate battery. The outcome was that the defendant was liable in assault because if the third party was not there then it is almost certain the defendant would have fulfilled his intentional act. This shows that if the traffic was not there then we assume Paul would have crossed the road and caused physical harm upon Mick. Therefore Paul could be liable for assault towards Mick. Paul believed the toy gun that Mick was pointing at him was real and so he struck Mick on the head with the bottle of vodka. It seems obvious to us that Paul has battered Mick as we know the gun is a toy, however, Paul does not know this and reacts in self defence as he thinks Mick is going to shoot him. The definition of self defence in ” [6] Recent UK criminal law holds that self-defence can be established for criminal purposes if there is an honest belief by the accused in facts which would justify it (usually, that the defendant was about to attack), even if the belief is unreasonable.” This imitates what has happened in this particular case. Paul thought he was in immediate danger from getting shot by Mick, therefore he hit Mick over the head with his vodka bottle in order to protect himself, and this proves he acted out of self defence. ” [7] Self defence will be a justification to an action in battery if the force used is reasonable and is proportionate to the threat” which in this case it is, unlike the case of Cockcroft v Smith (1705) 2 Salk 642. During a scuffle Cockcroft attempted to poke Smith in the eye and in response Smith bit off Cockcroft’s finger. It was concluded that the force was unreasonable and Holt LT quoted ” [8] …hitting a man a little blow with a little stick on the shoulder, is not a reason for him to draw a sword and cut hew the other…” ” [9] Force may be used defensively under the Criminal Law Act 1967; s 3 provides that: a person may use such force as is reasonable in the circumstances in the prevention of crime.” This means Paul is not liable for battery upon Mick as he used reasonable force to prevent a crime. As Paul carried the unconscious Mick to a nearby shed and locked him in, ultimately lead to false imprisonment. This can be defined as ” [10] The illegal confinement of one individual against his or her will by another individual in such a manner as to violate the confined individual’s right to be free from restraint of movement.” Having assumed there was no other means of escape results in Mick being falsely imprisoned therefore Paul is liable for this action towards Mick. CASE!!!!!!! Right to movement. Stella v Mick As Mick arrived in hospital he became more aggressive. He attempted to hit Dr George but missed and struck Stella the nurse. This brings us back to trespass of the person, distinguishing between direct and indirect interferences. This is similar to the case of Scott v Shepherd (1773) 96 ER 525, where the defendant threw a lighted firework into the market stall. Eventually, after several other stallholders had instinctively thrown it from stall to stall, it injured the plaintiffs face. Although the injury was not a direct result of the defendant’s action the court decided to extend the definition of direct injury in order to give the plaintiff a remedy. Therefore even though Mick didn’t intend to hit Stella he did and Mick is now liable for battery towards her. Battery can be defined as ” [11] an intentional tort. The elements to establish the tort of battery is the same for criminal battery, excepting that criminal intent need not be present. For a tortious battery to occur, the requisite intent is merely to touch or make contact without consent. It need not be an intention to do wrong, and the wrongdoer need not intend to cause the particular harm that occurs.”CASE!! As battery is actionable per se, there is no need for Stella to prove what Mick did to her. It is clear that Mick has been stalking Stella on more than one occasion by continually calling her and often waiting outside the hospital in the hope of seeing her. Stalking can be defined as ” [12] a repetitive pattern of unwanted, harassing or threatening behaviour committed by one person against another. Acts include: telephone harassment, being followed, receiving unwanted gifts, and other similar forms of intrusive behaviour.” This would make Mick liable for harassment under the Protection from Harassment Act 1997. ” [13] The PHA makes it a criminal offence to pursue a course of conduct which amounts to harassment of a person. A court may issue a restraining order against someone found guilty of such an offence. In addition to the criminal offence, the PHA also creates a civil statutory tort of harassment, which enables a person to obtain a civil court injunction to stop harassment occurring and to claim damages where appropriate.” Mick could face a fine, an injunction and even imprisonment. The case of Pratt v DPP (2001) EWHC Admin 483 provides some guidance about a course of conduct amounting to harassment. The case concerned a husband and wife. The wife felt that her husband’s behaviour amounted to harassment. Firstly, he threw a cup of water over his wife during an argument and three months later he lost his temper and chased his wife through the house shouting and swearing. The magistrate’s court convicted him of harassment but he appealed on the basis that his actions did not amount to a course of conduct. The court of appeal upheld the conviction but admitted it was ‘close to the borderline’. Mick v Dr George As Dr George sedated Mick and sutured the cut on his head without consent would result in Dr George being liable for battery. ” [14] Medical treatment involving the direct application of force administered without the patient’s consent, or giving treatment different from that, for which consent has been given, constitutes a battery.” (human rights act) CASE!!

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