Erasmus 2011

Legal English

Civil law

Overview

This section provides an introduction to the nature of tort law and the important concepts involved in establishing civil liability primarily in the tort of negligence. The relevant court pleadings involved in bringing a claim for compensation are also dealt with.

Legal content

2.1 Introduction to the law of torts 2.2 Negligence 2.3 Nuisance 2.4 Defamation

2.1 Introduction to the Law of Torts

Legal Summary

A tort may be defined as a civil wrong for which the normal remedy is an action for damages in a civil court by the person wronged. As such the law of torts is primarily concerned with private disputes between individuals especially in providing compensation for personal injury and property damage caused by negligence. It also protects other interests, however, such as reputation, personal freedom, title to property and commercial interests. It must usually be shown that the wrong was done intentionally or negligently, but there are some torts of strict liability . Most torts are actionable only if they have caused damage, but torts whose main function is to protect rights rather than to compensate for damage are actionable without proof of damage.

Adapted from A Concise Dictionary of Law Oxford

Legal Exercise 2.1(1)

Vocabulary

As with most areas of the law coming to terms with tort law involves understanding the relevant vocabulary. In the following task match the correct term with the definitions that follow.

1. Trespass

2. Defamation

3. Vicarious liability

4. Nuisance

5. Negligence

6. Duty of Care

7. Strict Liability

8. Unliquidated damages

9. Res ipsa loquitur

10. Liquidated damages

11. Tortfeasor

12. Novas actus interveniens

a) If an accident has occurred of a kind that usually only happens if someone has been negligent, and the state of affairs that produced the accident was under the control of the defendant, it may be presumed in the absence of evidence that the accident was caused by the defendant’s negligence. b) Liability for a wrong that is imposed without the necessity of proving intention or negligence on the part of the defendant. c) The person who commits a tort, also called the defendant. d) An act or event that breaks the causal connection between a wrong or crime committed by the defendant and subsequent happenings and therefore relieves the defendant from responsibility for these happenings. e) The publication of a statement about a person that tends to lower his reputation in the opinion of right-thinking members of the community or to make them shun or avoid him. f) A wrongful direct interference with another person or with his possession of land or goods. g) Legal liability imposed on one person for torts or crimes committed by another (e.g. an employee), although the person made vicariously liable is not personally at fault. h) An activity or state of affairs that interferes with the use or enjoyment of land or rights over land. i) Carelessness: failure to do something that a reasonable man would do, or not do. The essence of this tort is the defendant’s failure to meet some legal duty of care. j) An amount of compensation that is determined by the court. k) The legal obligation to take reasonable care to avoid causing damage to other persons. l) A sum fixed in advance by the parties to a contract as the amount to be paid in the event of a breach.

Legal Exercise 2.1(2)

The Nature of a Tort

Complete the text using the correct word form the box below. Note that some terms may occur more than once.

larceny; negligence; nominal; causation; injury; unliquidated; libel; trespass; defamation; tortfeasor; general; conversion; special; exemplary; injunction; manslaughter; negligence; nuisance; liquidated;

A tort is a breach of a duty imposed by law for which the normal remedy is a common law action for 1)…………………. damages. This means damages assessed by the court in contrast to 2)……………. damages which may be assessed by the parties themselves. A tort consists in the breaching of a duty fixed by law and not one fixed by the parties themselves. The law of tort is mainly concerned with providing compensation for personal injury and property damage caused by 3)…………….. though it also protects other interests such as reputation ( 4)…………………), and enjoyment of property (5)…………….) among others. Most torts are actionable only if they have caused damage. While each individual tort has its own rules governing liability, in general a plaintiff must prove that the defendant has infringed the plaintiff’s right as recognised by law and that some damage has been caused to them by the tortuous act. This is known as 6)…………………. A defendant is only liable if the chain of 7)……………….. between him and the plaintiff is unbroken. In cases where there is harm without the infringement of a legal right, or damnum sine injuria , the sufferer has no remedy. In tort the intention and motive of the 8)……………….. is generally irrelevant. Neither are essential in deciding whether the action committed is tortuous or not where intention is an essential ingredient in proving guilt for a serious crime. Torts whose main function is to protect rights rather than to compensate for damage are actionable without proof of damage. In such cases all the plaintiff has to prove is that their legal right has been infringed ( e.g. 9)…………….. and 10 )……………….) and where there is an infringement of a legal right without harm, or injuria sine damno , the defendant will be found liable.

The same set of facts may disclose a crime and a tort. For example, a drunken driver who kills a pedestrian may be prosecuted for 11 )……………. or dangerous driving causing death and also sued for 12 )…………... Similarly, a thief may be prosecuted for 13 )………….. and sued for 14 )…………….. So when the same set of facts give rise to criminal and civil liability parallel proceedings may be instituted. The main remedy for a tort is an action for damages, but in some cases an 15 )……………. can be obtained to prevent repetition of the 16 )…………...

The measure of damages is the amount of money which will compensate the plaintiff for the damage caused to him or her. There are different types of damages: 17 )…………….. for specific amounts; 18 )……………… for pain and suffering; 19 )…………… a small amount where no actual loss has been caused; 20 )…………. to punish the defendant.

Legal Exercise 2.1(3)

Tort versus Crime

Student A

Working in pairs ask and answer questions to fill in the missing information about the differences between tort and crime. (Before you start, prepare what questions to ask e.g.: What is the standard of proof in a civil case? What is the law of torts concerned with?) When you have finished, compare your tables.

Crime Tort

Main aims/concerns Concerned with private disputes between individuals to obtain compensation for the injured parties.

Parties Enforcement is in the hands of public officials such as the Crown Prosecution Service or the Director of Public Prosecutions.

Standard of Proof The plaintiff must prove his case on the balance of probabilities only.

Limitation period A criminal case can always be brought regardless of the amount of time that has elapsed since the offence was committed.

Overlap Partial overlap. Some crimes are also torts e.g. larceny (crime) and conversion (tort). However some torts are not crimes e.g. a defamatory statement does not generally lead to criminal liability.

There are a few crimes of strict liability which are Strict liability usually created by statute law e.g. selling medicines without the correct prescription. 1

1 s. 58(2) Medicines Act 1969 . 8

Student B

Working in pairs ask and answer questions to fill in the missing information about the differences between tort and crime.

(Before you start, prepare what questions to ask e.g.: What is the standard of proof in a civil case? What is the law of torts concerned with?) When you have finished, compare your tables.

Crime Tort

Main aims/ concerns Regulation of conduct and maintenance of social order.

Parties Private individuals bring civil proceedings.

The prosecution must prove Standard of Proof their case beyond all reasonable doubt which is a very high standard.

Tort actions are subject to Limitation Period periods of limitation within which proceedings must be commenced.

Partial overlap as some torts are also crimes Overlap e.g.dangerous driving causing death (crime) and negligence (tort). Assault is both a crime and a tort. However while drunk driving is a criminal offence a drunk driver who does not cause an accident has not committed a tort.

Torts of strict liability are very much the exception Strict liability e.g. liability for dangerous animals who get on the road and dangerous things. 2

Legal Exercise 2.1(4)

Tort Cases

What kind of torts are the following cases examples of? Fill in the gaps with one of the words from the list below:

defamation; negligence; libel; trespass; nuisance;

1. Hill v Chief Constable of West Yorkshire 3

In spite of a massive police search, the “Yorkshire Ripper” remained free for several years and murdered a dozen young women. The mother of his last victim sued the police for ……………. in failing to catch him, alleging inefficiency and errors in their handling of the investigation. The House of Lords said she could not succeed: the police owed no duty of care towards Susan Hill to protect her from the Ripper. The mere investigation of a crime did not create an enforceable duty of care between the police and Sutcliffe, nor between the police and Miss Hill, who had been at no greater risk than most other members of the public.

2 The rule in Ryland v Fletcher see section 4.4(1) Part III: 3 [1988] 2 All ER 238. 10

2. Charleston v News Group Newspapers 4

The plaintiffs were actors appearing in the TV programme Neighbours . The defendants printed an article about computer pornography, illustrating what was possible by superimposing the plaintiff’s heads on the bodies of models engaged in sexual activities. The text of the article made clear what had been done, but the headline and picture taken in isolation made it appear that the plaintiffs were acting indecently, and the plaintiffs sued for …………… The trial judge held that the article taken as a whole did not amount to …………….. of the plaintiff’s reputation.

3. Kelson v Imperial Tobacco Co. 5

The plaintiff was a lessee 6 of a one-storey tobacconist’s ship and brought this action against the defendants requiring them to remove from the wall above the shop a large advertising sign showing the words ‘Players Please’. The sign projected into the air space above the plaintiff’s shop by a distance of some eight inches ( 250mm). The plaintiff’s claim that the defendants, by fixing the sign in that position, had committed ………………… on their air space.

4. Hanrahan v Merck Sharp and Dohme 7 In this case the defendant’s were farmers sued the defendants for ……………..claiming that emissions from the defendants’ factory interfered with their enjoyment of their land and caused to the health of the plaintiffs and to their farm stock.

5. Barrett v Ministry of Defence 8

A sailor became so drunk one night that he passed out and, having then been inadequately treated, choked to death on his own vomit. His widow sued the Navy for…………… On appeal the court reversed the trial judge’s finding that the defendants had a duty of care to prevent the sailor becoming so drunk, applying the test of whether it was just and reasonable to impose a duty of care. The Court of Appeal was of the view that a responsible adult had to assume responsibility for his own actions in consuming alcoholic drink

4 [1995] 2 All ER 313 5 [1957] 2 All ER 343 6 A person/tenant who receives a lease or contract for exclusive possession of a property from the landlord or lessee. 7 [1988] ILRM 629 8 [1995] 3 All ER 87 11

2.1(5)

General Defences in Tort

While certain torts raise there own specific defences, there are certain general defences which can be raised to answer most actions in tort.

Part I

Student A read the following texts which explain some general defences to an action for tort and then prepare to explain them in your own words to Student B.

Volenti Non Fit Injuria

The Latin maxim means that, ‘to one who is willing, no harm is done’, so a claimant who accepts the risk created by the defendant cannot complain if, while doing so, they are injured and maxim applies to most cases. It is important to distinguish two situations: firstly where the claimant consents to the infliction of harm deliberately (e.g. a patient consents to surgery); secondly the claimant consents to the risk that harm may be inflicted accidentally (e.g. example a footballer cannot sue for a broken leg received in a match because he consents to the risk of injury on the field). The principle ingredients of the defence are that the claimant must have made a voluntary choice amounting to an agreement to accept the legal risk of harm with full knowledge of the nature and extent of that risk. Knowledge of the risk is not sufficient; there must be full and free consent to accept the risk and in such circumstances a claimant cannot generally sue if damage or injury subsequently occurs.

A person who attempts a rescue in a dangerous situation must inevitably accept a risk of being injured himself, but on policy grounds the law does not commonly apply the doctrine of volenti in this situation.

Inevitable Accident

This is a defence where the consequences of an action are not foreseen and not intended and which could not have been avoided by any reasonable care exercised by the defendant. An Act of God is a special form of inevitable accident. It occurs where damage is caused by the operation of natural causes without human intervention with a reasonable man could not have foreseen or guarded against.

Necessity

This consists of the deliberate commission of a tortuous act in order to prevent some greater evil and there being no reasonable alternative. The defence is probably limited to action taken in an emergency to protect life or property.

Part II

Student B read the following texts which explain some general defences to an action for tort and then prepare to explain them in your own words to Student A.

Contributory Negligence

The contributory negligence of the plaintiff is only a partial defence, which is often alleged by the defendant in an effort to reduce his liability. The general rule in an action for tort is that, where the claimant is partly at fault, damages will be reduced in proportion to his fault. 9 An example of this would be a person’s carelessness for his own safety or interests, which contributes materially to the damage suffered by him as a result partly of his own fault and partly of the fault of another person. Common forms of contributory negligence that arise in road traffic cases are careless driving, knowingly travelling with a drunken driver, and failure to wear a seat belt.

Statutory authority

Where a statute has expressly authorised the action, or the action is a necessary consequence of what is authorised, this is a complete defence, provided the defendant can prove that any damage caused by the action did not arise as a result of negligence on the defendant’s behalf.

Limitation of actions

Limitation of time is a procedural rather than a substantive defence, but is none the less effective in particular cases. The Limitation Act 1980 provides periods of time within which actions for tort must be taken. For example an action claiming damages in respect of personal injuries to a person caused by negligence cannot be brought after the expiration of three years from the date on which the cause of action accrued, or the date of knowledge (if later) of the person injured. 10 If the action is not commenced within the appropriate period it becomes statute-barred. It is a good defence to plead that the action was commenced outside the time allowed.

Ex turpi causa non oritur actio

This means that a right of action does not arise out of an evil cause. As a matter of policy, the courts will not normally hear claims based on criminal activity. For example in the case of Aston v Turner an escaping burglar was injured through the negligence of his getaway driver, but his claim for damages was rejected by the court.

9 Law Reform (Contributory Negligence) Act 1945 s.1(1). 10 Limitation Act 1980 s.11. 13

Part III

Read the following cases and decide what defence was raised and whether it was successful or not:

1. Cope v Sharpe 11

A fire broke out on the plaintiff’s land. The defendant, a gamekeeper on adjoining land, set fire to heather on the plaintiff’s land in order to create a fire- break so as to prevent the fire spreading to his employer’s land. The plaintiffs sued the defendants for trespass.

2. Stanley v Powell 12

The defendant fired his gun at a pheasant, but the bullet ricocheted off a tree and injured the plaintiff who subsequently sued the defendant for negligence.

3. Bolt v William Moss & Sons Ltd (1966)

The plaintiff was injured when falling off a painter’s moveable scaffold which was moved while he remained on it. This was done despite his being expressly warned by his employer of the danger involved.

4. Smith v Wexford County Council (1953)

The defendants, who had a statutory duty to keep rivers clear, deposited large amounts of soil and vegetable matter on the plaintiff’s land. Subsequently some of the plaintiff’s cattle ate the roots, which were poisonous, and died.

5. Kelly v O’Leary (2001)

On 26 March 1998, the plaintiff sought damages in negligence in respect of physical and mental injuries arising from events alleged to have occurred between 1934 and 1947.

6. Clunis v Camden & Islington Health Authority (1998)13

The plaintiff was discharged from a psychiatric hospital into “community care”; he then killed a stranger for no evident reason and was sentenced to life imprisonment. The plaintiff later sought damages for the defendant’s negligence in not providing him with adequate treatment while in “community care”.

11 [1912] 1 KB 496. 12 [1891] 1 QB 86. 13 [1998] 3 All ER 180, CA. 14

2.2 Negligence

Legal Summary

Modern tort law is dominated by the tort of negligence. The principal requirements of the tort are that the defendant should owe the claimant duty of care, i.e. a legally recognised obligation requiring the defendant to conform to a certain standard of behaviour for the protection of others against unreasonable risk; a failure to conform to the required standard; actual loss or damage to the interests of the claimant and a sufficiently close causal connection between the conduct and resulting injury to the claimant. The breach of duty issue involves consideration of what a reasonable man in the same position as the defendant would have done.

Legal Exercise 2.2(1)

Part I

Donoghue v Stevenson 14

Read the text and answer the following questions:

1. What legal question did the House of Lords have to decide in this case?

2. Why was Mrs Donoghue unable to sue the café owners for breach of contract?

3. What principle did the decision in this case create?

4. Who in law is my neighbour?

14 [1932] AC 562 15

Donoghue v Stevenson is one of the most influential cases in the jurisprudence of the common law world. It is the case from which the modern law of negligence developed and changed the course of litigation. The facts were that in August 1928 an unsuspecting Mrs Donoghue visited a café in Paisley outside Glasgow and ordered a ginger beer with icecream which was bought for her by a friend. The bottle was made of dark opaque glass so the contents were not visible. It turned out that the bottle contained the decomposed remains of a snail which could not have been detected until most of the contents of the bottle had been consumed. As a result of drinking the mixture in the bottle Mrs Donoghue suffered shock and severe gastro-enteritis and sued the manufacturers for compensation for the damage she had suffered. The case eventually went to the House of Lords where the legal question to be heard and the significance of the case was set out by Lord Atkin:

“The question is whether the manufacturer of an article of drink, sold by him to a distributor is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health.”

As Mrs Donoghue had not bought the drink herself she did not have a contractual relationship with the café owner and so had no right to sue on the basis of breach of contract her only legal option was to take a case in negligence against Stevenson, the ginger beer manufacturer.

The House of Lords had to decide the following narrow question: should liability for injury lie with a manufacturer who sends out goods for consumption which are tainted owing to a lack of care on the manufacturer’s part, where no reasonable possibility of examining the product lay with either the retailer or the consumer. The decision which was in Mrs Donoghue’s favour was a famous legal victory for the consumer. The nub of the decision is that the manufacturer is ultimately responsible to the consumer for negligence. Before this case the concept of manufacturer’s liability did not exist in the common law world so the doctrine was effectively created overnight by this seminal case. The wider principles on which the decision was based are set out by Lord Atkin as follows:

“The rule that you are to love your neighbour becomes in law: Your must not injure your neighbour; and the lawyers’ question: Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you 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 as being so affected when I am directing my mind to the acts or omissions which are called in question.”

The case thus imposes a legal duty on manufacturers to take reasonable care to prevent injury to the life or property of their consumers. It also contains the wider ‘neighbour principle’ creating a general legal duty if there is a neighbour relationship in the sense that the plaintiff/claimant can be reasonably foreseen as likely to be affected by the defendant’s act or omission.

Part II

Negligence Case Law

The principle in Donoghue v Stevenson has been applied and developed in subsequent case law. The following task illustrates some of the important decisions taken by the courts that have applied and developed this principle.

STUDENT A

Read the following cases and fill the gaps in the text with the correct word from the box. After checking your answers prepare explain both the facts and the decision to STUDENT B. Note the some words are used more than once.

a duty of care; standard of care; foreseeable; balance the risk; sued;

foreseeability; a duty of care; reasonably foreseeable; proximate;

1. Tutton & others v. A.D. Walter Ltd 15

The plaintiffs kept bees near land farmed by the defendants who sprayed their land and crops with insecticide, killing the bees. The defendants knew the insecticide was dangerous to be bees but they failed to give the plaintiffs adequate warning of the spraying. The plaintiffs 1)…………. the defendants, basing their action on the principles laid down in Donoghue v Stevenson . In accordance with this it was held that spraying the insecticide was likely to injure the bees and that this outcome was 2)…………………… given the presence of bee keepers in the area. Finally the defendants ought to have considered the interests of the beekeepers. In the circumstances the defendants owed the plaintiffs 3)…………….. which they had failed to respect and were therefore liable.

15 [1986] QB 61. 17

2. Overseas Tankship v Morts Dock (The Wagon Mound (No 1)) 16

Oil was spilled from a ship, and a fire was caused when sparks from work being done on the wharf ignited the oil. The fires caused extensive damage to the wharf and dockside buildings, and the owners of the dockyard 4)………… the ship owners. The Privy Council were of the view that if some damage – even minor damage – of a particular kind was 5)……………, then the defendants would be liable for all such damage. Here, however, the evidence was that the risk of fire could not have been foreseen, but only a risk of pollution so the shipowners were not liable.

3. Caparo v Dickman 17

The plaintiffs had bought shares in a company with a view to taking it over based on the auditors’ report. The shares then fell in value, and the plaintiffs 6)………… the auditors for their negligence in preparing the report. The House of Lords said the auditors did not owe 7)………………. to investors thinking of buying shares. The damage suffered by Caparo was 8)……………., but it was not sufficiently 9)…………… to give rise to 10 )…………….. where (as here) the loss was purely economic. To determine liability in negligence there must be 11 )……………. and 12 )…………… between the defendant and the plaintiff. Finally it must be just and fair in all the circumstances of the case to impose liability.

4. Watt v Hertfordshire County Council 18

A fire brigade was notified of a serious road accident: a person was trapped and heavy lifting equipment was urgently required. The lorry which usually carried the equipment was unavailable, and the fire officer ordered the equipment to be loaded into the back of an ordinary lorry. On the way to the incident, the equipment slipped and a fireman was injured. He 13 )………. his employers, and failed. As the court decided one must 14 )………….. against the end to be achieved. The saving of life and limb justified the taking of considerable risks, and in cases of emergency the 15 )…………….. demanded should be adjusted accordingly.

16 [1961] 1 All ER 404. 17 [1990] 1 All ER 568. 18 [1954] 2 All ER 368. 18

Part III

STUDENT B

Read the following cases and fill the gaps in the text with the correct word from the box. After checking your answers prepare explain both the facts and the decision to STUDENT A. Note the some words are used more than once.

sued; negligent; negligent misstatement; reasonably; damages; negligence;

contributory negligence; breach of duty; reasonably; a duty of care;

1. Hedley, Byrne & Co. Ltd v Heller & Partners 19

The plaintiffs asked their bankers to inquire into the financial stability of a company with which they were having business dealings. Their bankers made inquiries of the company’s bankers, who carelessly gave favourable references about the company. The plaintiffs later suffered economic loss on the basis of this 1)…………. advise and 2)…………. the defendants for their careless statements. The plaintiff’s action failed because the defendants had expressly disclaimed any responsibility. The House of Lords in reviewing the law were of the opinion that to recover for 3)…………………. a plaintiff must establish that the statement was made within a relationship where the plaintiff could reasonably rely on the skill and care of the defendant in making the statement.

2. Nettleship v Weston 20

The defendant a learner driver went out for her first lesson, supervised by the plaintiff a friend. The defendant subsequently crashed the car into a lamppost, and her friend was injured. The plaintiff’s claim for 4)………….. was upheld by the Court of Appeal, subject to a deduction for 5)………………………. Even learner drivers, said the Court, are to be judged against the standard of the 6)…………….. competent driver. The fact that a particular driver was inexperienced and incompetent does not excuse his falling short of this standard.

19 [1964] AC 465. 20 [1971] 3 All ER 581. 19

3. Wooldridge v Sumner 21

A press photographer working in the arena at a horse show was severely injured when he tripped while trying to get out of the way of the defendant’s horse as it tried to take a corner too fast. He 7)……….. for 8)……………, but the Court of Appeal said competitors in top-class sports events were expected to concentrate on maximising their performance. A mere error of judgement was not in itself enough to show a 9)…………..

4. Home Office v Dorset Yacht 22

Seven borstal boys ran away from a training camp in Poole Harbour while all the officers supervising them were asleep. They stole a boat and caused damage to other boats in the harbour. The boats’ owners sued the Borstal authorities. The House of Lords said the Borstal authorities owed 10 )…………….. to the owners of property near the camp, and had failed in that duty; they were accordingly liable for the damage caused.

Legal Exercise 2.2(2)

Negligence Question

Read the following problem and after answering the questions that follow prepare to give the appropriate advise to your client.

1. What legal question is involved in this problem?

2. What was the test for liability laid down in the Hedley Byrne case?

How was the test for liability refined in Caparo Industries v Dickman ?

3. What danger was the House of Lords anxious to avoid in Hedley Byrne ?

21 [1962] 2 All ER 978. 22 [1970] 2 All ER 294. 20

Problem

Conleth an accountancy student has been left a large sum by his late grandfather and now wants to invest the money. He asks a stockbroker, Breffini, for advice on the matter who tells him that an up and coming company known as Phantom Properties has recently been enjoying doing well and as its shares are under priced the company sounds like offering solid investment prospects. Breffini advises him to buy the shares now as their value may increase if he leaves it until later. Conleth decides to get a second opinion and over a drink in the pub asks Frank a friend who has recently started work as a banker if this would be a prudent investment. Frank tells him that although he does not have a lot of experience as a financial adviser he recently read an article about Phantom Properties in the Splash, a respected financial newspaper, and recalls that the review painted a very positive picture of this company and that the value of its shares was likely to rise. Frank is of the opinion that Conleth should go ahead with his investment.

Subsequently Conleth invests most of his inheritance in Phantom Properties which goes into liquidation six months later with substantial loses. Having now lost all his money Conleth comes to you asking whether he can seek legal redress against Breffini, Frank and The Splash.

Legal Issues

This question is concerned with the rules governing economic loss caused by negligent statements. The leading authority on this is Hedley Byrne & Co v Heller & Partners 23 where the House of Lords stated that a ‘special relationship’ must exist between the parties. This type of relationship will arise where someone possessed of a special skill agrees to apply that skill for the assistance of another person. This test for liability was further refined in Caparo Industries v Dickman 24 in the following terms. Firstly, there must be foreseeability. Secondly, there must be proximity between the plaintiff and defendant; and finally, it must be just, fair and reasonable in all the circumstances of the case to impose a duty of care. What this means in practical terms is that any court is going to look at the skill of the advisor and this will be the most influential factor when imposing s a duty of care.

Brefini is a professional stockbroker and must be aware that clients are likely to rely on his advice. Thus a ‘special relationship’ can be taken to exist between Brefini and Conleth. Acting as a financial advisor it is reasonable to expect Brefini to have due regard to the interests of those who receive his advice and information. A court may also hold that a fiduciary relationship exists between Brefini and Conleth and in those circumstances there is no requirement on the plaintiff to prove foreseeable reliance. Where there is a fiduciary relationship between the parties it is sufficient that the defendant was aware that the plaintiff’s financial welfare was dependent on the defendant’s professional advice and in such circumstances a ‘special relationship’ can be taken to exist between the parties.

23 op cit above fn.7. 24 [1990] 2 AC 605. 21

The same cannot be said for the conversation between Conleth and Frank which was given in an informal context between friends. Frank has just started his career as a banker and he indicates to Conleth that he is not an experienced financial advisor. In such circumstances a court is unlikely to impose a duty of care on Frank for offering negligent advice.

It is also unlikely that a duty of care will be imposed on The Splash. In Hedley Byrne the House of Lords were careful to avoid the danger of imposing rules whereby a maker of a careless statement might end up being liable to a wide class of plaintiffs i.e. in the case of publication in a newspaper. As established in the Caparo case there must be sufficient ‘proximity’ between the plaintiff and the defendant. The statement in the newspaper that the value in the shares was likely to rise did not amount to a definitive recommendation that readers should rush out to purchase them.

Legal Exercise 2.2(3)

Read the following problem and after answering the questions that follow prepare to give the appropriate advise to your client.

1. What principles in tort are raised by this set of facts?

2. What must the claimant demonstrate to bring a successful claim in negligence against the defendant?

3. When may a defendant raise the defence of contributory negligence?

4. How are damages apportioned if the claimant has been guilty of contributory negligence?

Problem

Barra goes to his local newsagent to buy the paper in order to check the National Lottery results. He steps into the road completely absorbed in checking the numbers and is knocked down by a car driven at excess speed by Declan an inexperienced driver aged 18. Barra is seriously injured.

Antoinette, aged 16, a passenger in the car driven by Declan is crushed against the windscreen and seriously injured. Antoinette was no wearing a seat belt at the time of the accident.

Advise Declan concerning is potential tortuous liability.

Legal Issues

This question raises the issues of duty of care owed to other road users, and contributory negligence.

Declan as a road user owes a duty of care to anyone who also uses the road. This includes pedestrians such as Barra. In order to succeed in a potential claim against Declan, Barra will have to demonstrate that Declan was in breach of that duty. The test to be applied is to ask what a reasonable man would do not do in the circumstances. The standard to apply is that of the average, reasonable driver 25 . The fact that Declan is young and inexperience will make no difference. Clearly Barra has suffered harm that was foreseeable. Declan is in breach of his duty of care to other road users.

However an issue of contributory negligence arises as Barra walked out into the road without warning and failed to check if any vehicle was coming at the time. In accordance with the provision of the Law Reform (Contributory Negligence) Act 1945 , a defendant may raise a partial defence of contributory negligence where the plaintiff has failed to take reasonable care for his own safety and has thereby contributed to the damage suffered, but there is no need for the plaintiff to owe the defendant a duty of care. Contributory negligence requires fault on the part of both the plaintiff and the defendant. Is it foreseeable that Barra’s actions might increase the risk of injury? In answering this question we need to consider what the reasonable man would have done in the circumstances. It is evident that walking out into the middle of the road without taking due care and attention increases the risk of injury.

There is also a causation question to consider. Would Barra have been injured if he hadn’t been reading the paper when he crossed out into the road. Clearly the reasonable man would not have been so careless.

The final issue to consider in relation to contributory negligence is apportionment of damages. This is based on issues of causation and blameworthiness. The former will normally result in a 50/50 split, but if the blameworthiness of Barra is small, as seems to be the case here bearing in mind why he was so distracted then a court would be likely to make a much lower reduction for contributory negligence of around 10 per cent. 26

Since Antoinette is a passenger in the car, she is owed a duty of care in the same way as any other road user. However she has materially increased her risk of injury by not wearing a seatbelt so any damages will be reduced for contributory negligence.

This would amount to a 25 per cent reduction if no injury would have been suffered had the seatbelt been worn; a 15 per cent reduction if the injury would have been less severe had a seatbelt been worn; and no reduction at all if the same injury would have been suffered whether or not a seatbelt was worn.

25 Nettleship v Weston op.cit., above fn 10. 26 See Reform (Contributory Negligence) Act 1945 , s.1(1). 23

Legal Exercise 2.2(4) Problem Questions

As a lawyer you are asked to advice on the following legal problems. You must identify the area(s) of law involved and any relevant case law then apply the law to the facts of the problem.

1. Felix a small boy aged twelve is on a shopping expedition with his mother where he is getting increasingly bored. When his mother’s attention is distracted he runs off to the escalator where he notices the “emergency stop” and presses it to see what will happen. Gertrude, an elderly lady is at the other end of the escalator and when the stairs suddenly stop she is thrown forward and sustains a broken arm. Is Felix legally responsible for causing the injury to Gertrude?

2. Garnet is assembling his new book case from IKEA when he accidentally hammers a rusty nail through his finger. When he goes to the casualty department of his local hospital all the doctors are busy so he is seen by Veda, a trainee nurse on her first day in casualty. While Veda is treating Garnet, several seriously injured casualties are brought in from a major road accident, and she leaves him to deal with those cases. Garnet is left in pain for several hours. Discuss the legal liability if any of Veda.

3. Quinton is the teacher in charge of an unruly group of final year students who are on a residential field trip. The college rules say that students are not to drink alcohol; some students have been reprimanded for breaking this rule but Quinton has taken no firmer action. In the course of the trip Bryan celebrates his eighteenth birthday by getting completely drunk: his friends help him back (secretly) to the residential centre. Before retiring the remaining students cause extensive damage to the residential centre cafeteria. Next morning Bryan is found to have died from alcohol poisoning.

4. There has been some friction between Mike and Ian two professional cricketers playing in a Test Match. On the second day of the match Mike bowls to Ian, who hits the ball as hard as he can straight at Mike. The ball hits Mike in the face, breaking his jaw. An ambulance comes to take Mike to hospital, but it crashes on the way there and he sustains further fatal injuries. Discuss the legal position of Ian.

5. Digby lets off some of his home-made fireworks to celebrate Bonfire Night, which have a tendancy to explode quite unpredictably. One breaks the glass of Oisin’s greenhouse; it is a cold night, and Oisin’s collection of valuable tropical plants is destroyed by the frost. In another neighbouring house Marjorie’s nervous Siamese cats falls victim to a fatal heart attach on hearing a firework explode in the garden. Discuss any legal liability Digby owes to his neighbours.

6. Your client Mrs. Parker has inherited 50,000 € from the estate of the late Horace Porter. On the basis of advise received from her bank manager, Mr. Trustworthy, Mrs. Parker bought 25,000 € worth of shares in a company called Fly by Night Ltd. She also invested the remaining 25,000 € in a construction company called Safe Foundations Ltd. after reading an article about the company in a national newspaper. Both companies were not in a good financial state at the time when Mrs Parker invested in them and have subsequently ceased trading and gone into liquidation. Advise Mrs Parker on the likelihood of bringing a successful claim against her bank

Legal Exercise 2.2(5)

Personal Injury/Negligence Litigation

Modern tort law is dominated by the tort of negligence the purpose of which is to provide compensation for harm suffered as a result of another person’s fault. In this section we are going to look in more detail at the procedure involved in bringing a claim for compensation arising from a road traffic accident.

Part I

Litigation/Vocabulary

Legal exercise 1

Match the following terms with the correct definition:

1. Pleadings

2. Discovery

3. Summons

4. Motion

5. Contempt of court

6. Service

7. Summary judgment

8. sub judice rule

9. res judicata

10. Deposition

11. Interrogatory

12. Counterclaim

a) A statement made on oath before a magistrate or court official by a witness and usually recorded in writing. b) A formal written question submitted by one party to civil litigation to another party and required to be answered on oath. c) Disclosure by a party to civil litigation of the documents in his possession, custody, or power relating to matters in question in the action and their subsequent inspection by the opposing parties. d) A cross-claim brought by a defendant in civil proceedings that asserts an independent cause of action but is not also a defence to the claim made in the action by the plaintiff. e) The principle that when a matter has been finally adjudicated upon by a court of competent jurisdiction it may not be reopened or challenged by the original parties or their successors in interest. f) A rule limiting comment and disclosure relating to judicial proceedings, in order not to prejudge the issue or influence the jury. g) Disobedience to a court judgment or process, e.g. breach of an injunction or improper use of discovered documents. h) The delivery of a writ, summons, or other document relating to court proceedings. i) A formal written statement in a civil action served by each party on the other, containing allegations of fact that the party proposes to prove at trial and stating the remedy that the party claims in the action. j) A procedure enabling a plaintiff in an action for debt or damages in the High Court to obtain judgment without the defendant being permitted to defend the action. k) An application made orally and in open court to a judge for an order, e.g. an interlocutory injuction. l) A court order to an individual to appear in court at a specified place and time.

Part II

Civil Procedure

Read the following text and select the correct word to fill the spaces from the box below.

County Court; civil case; settlement; civil justice system; liability; a personal injury; transferred; solicitors; civil; a pre- action ‘protocol’; arbitration;

In most 1)……… matters people regard taking a case to court as the last resort and normally will try to resolve the problem by negotiation. If this fails to resolve the matter then both sides may instruct 2)………….. to act on their behalf and their legal representatives will usually enter into a further period of bargaining where a series of letters are exchanged between the parties. In the event that the matter remains unresolved taking proceedings to court may be the next step though there are alternative means of settling disputes e.g by submitting the proceedings to negotiation, mediation, conciliation or 3)…………….. Taking court action can be costly though even when proceedings have been commenced it is still possible for the parties to a 4)……………. to reach a 5)……………. before the matter goes to court and thereby save on costs. The 6)……………………. was reformed in 1999 following the Woolf Report and the parties are now encouraged to give information to each other, in an attempt to prevent the need for so many court cases being started. Before an action is started the parties should follow 7)………………. which is a list of things to be done and if the parties do not follow the procedure and give the required information, they may be penalised on costs if they proceed to make a claim in court. This information is usually in a letter explaining brief details of how the claim arises; why it is claimed the other party is at fault; details of injury or other damage; and any other relevant matters. The defendant then has three months to reply to this and must state if 8)……………. is admitted or denied. This should lead to many claims being settled, but there will still be some which need to go to court.

Where a decision is made to go to court the first problem is in which court to start proceedings. The two possible venues are the County Court and the High Court. For cases where the claim is for £15,000 or less, the case must be started in the 9)……………... For larger claims you can usually choose to start a case in either the County Court or the High Court. If the case is 10 )……………………matter for less than £ 50,000 it must be started in the 11 )………………. So for most cases over £15,000, a claimant will be able to choose the most convenient court for starting the case. The main points to consider in making the decision are the amount that is being claimed and whether the case is likely to raise a complex issue of law. Cases commenced in one court may be 12 )………………. to another court later on when the matter comes up for hearing.

Part III

Negligence Case/ Consultation

Student A

As a solicitor you have been consulted by a new client named David Moore who was injured in a road traffic accident. You have talked with Mr. Moore over the phone and have in principle agreed to represent him in his claim for compensation. This will involve issuing legal proceedings and instructing counsel so you have arranged a first consultation with your client to discuss outstanding matters with a view to bringing proceedings for compensation.

The areas that you need to investigate can be divided into pre-accident, accident and post accident. On the basis of this list prepare and write down the questions you are going to ask starting with relevant personal details – name, address, marital status, occupation etc.

At the consultation the solicitor is likely to give a client a realistic appraisal of their chances of success when the matter comes on for hearing including reminding them that the standard of proof is on the balance of probabilities which is less than that required for a criminal trial. The chances of success in this case are high as the defendant’s appear to have ignored a stop sign in the road. You also need to explain the steps that will be involved in getting this case to court. This case should be brought in the County Court as the claim is unlikely to exceed £50,000.

Pre-accident

Purpose of journey; relationship with the driver; driver’s experience; penalty points on licence; previous accidents; insurance, road tax etc.

Accident

Clarify when the accidents occurred to enable you to build up a chronology of events.

Details of accident; sketch place where accident occurred; location of any cars, traffic lights and signals; road and weather conditions; amount of traffic on the road; speed/speed limit; road worthiness of the vehicle; seat belts; other drives and witness details; witnesses to the accident;

Post-accident

Police report, breathalysed drivers; insurance company notified; details of physical injuries, whiplash, hospital, medical reports; etc.

Student B

You play the part of the client, David Moore,

Personal Details

Date of birth: 05.01.61

Address: 42 Sackville Court, Blessington Street.

Occupation: Brick Layer

Marital status: Single

Telephone No: 086 8199360

Pre-accident

David Moore states that before the traffic accident he was in the passenger seat of his a Citroen XM, Registration No.90WX 3944, which was being driven by his car mechanic along Blanchardstown Road. The car was fully insured and road worthy. The car was in fact being given a test ride by the mechanic at the time of the accident.

Accident

At the junction with Ballycolin Road a Ford Transit Van, No. 94D 19871 owned by Walter Mee Carpets Ltd driven by Micheal Murphy failed to stop at the stop sign at the junction of Ballycolin Road and Blanchardstown Road and crashed into the passenger side of David Moore’s car. The car spun around following the impact and finished in the reverse position. Mr. Moore fell over towards the driver. The accident occurred about 3.00 pm on the 21st of December 2006, road conditions were good at the time. In David Moore’s opinion the van was travelling fast, 90 k.p.h., and following the collision he “thought his back was broken”. He was wearing his seatbelt and had the headrest on at the time of the accident. There was one witness to the accident the driver of the car immediately behind that of David Moore.

Post-accident

David Moore’s complained of immediate pain in his back following the accident. After the accident he was taken by ambulance to the Accident and Emergency Department of Our Lady of Hopeless Cases Hospital and following x-rays he had a soft surgical collar fitted. He continues to suffer from constant pain in his lower back and has problems standing for long periods. He is currently following a physiotherapy course.

STOP sign

Defendant’ Car

STOP sign

Claimant’s Car

BEFORE ACCIDENT

Claimant’s Car

Defendant’s Car

AFTER THE ACCIDENT

Part III Legal proceedings have now been issued on behalf of David Moore. Read the following Particulars of Claim and answer the questions that follow:

1. Name the defendants.

2. Was your client driving his car before the accident?

3. When and where did the accident occur?

4. Were there any witnesses?

5. Was the claimant wearing a seat belt?

6. What is the claimant’s occupation?

7. How much income has the claimant lost as a result of the accident?

8. What is the total value of your client’s claim for special damages?

9. Why is it contended in the particular of claim that the first defendant’s employer is vicariously liable for the accident?

10. Describe the accident how the accident occurred?

11. What injuries is your client suffering from?

COUNTY COURT

BETWEEN

DAVID MOORE

CLAIMANT And

MICHEAL MURPHY FIRST DEFENDANT

WALTER MEE CARPETS LTD

SECOND DEFENDANT

PARTICULARS OF CLAIM

1. The claimant is a bricklayer and resides at 42 Sackville Court Blessington Street.

2. The first defendant is a gentleman and resides at 76 East Priory Navan Road and was at all material times the driver of a Ford Transit van, registration number 94 D 19871.

3. The second defendant is a private limited company with a registered place of business at 159 Upper Rathmines Road and was the owner of the Ford Transit van, registration number 94 D 19871 driven by the first defendant.

4. On are about the 21 st day of December 2006, the claimant was travelling as a front seat passenger in his own motor vehicle a Citreon X M registration number 90 WX 3994, which on the occasion was being driven by the claimants’ motor mechanic along the public highway of Blanchardstown Road when a motor vehicle, registration number 94D 1987, driven by the defendant failed to stop at the stop sign at the junction of Ballycolin Road and Blanchardstown Road and drove into the path of the motor vehicle in which the claimant was travelling and collided with the passenger side of the said vehicle.

5. The collision was caused by the negligence of the first defendant, acting in the course of his employment

6. As a result of the said collision The claimant sustained severe personal injury, loss, damage, inconvenience and expense as a result of the negligence, breach of duty including breach of statutory duty on the part of the defendant his servants or agents in and about the driving, maintenance, care and control of his motor vehicle, registration number 94 D 19871.

PARTICULARS OF NEGLIGENCE

The defendant was negligent in that he:

a) Drove too fast in the circumstances; b) Failed to keep any or any proper look out; c) Failed to have any or any sufficient regard for the safety of other road users and in particular the claimant; d) Emerged on to the Blanchardstown Road without first ascertaining or ensuring that it was safe to do so; e) Failed to give any or any adequate warning or signal of his approach;

f) Failed to stop, to slow down, to steer, manage or control his van in such a way as to avoid a collision; g) Drove in a manner which having regard to all the circumstances was dangerous; h) Failed to sufficiently apply the brakes of the said vehicle in time or at all. The second defendant is negligent by virtue of vicarious liability, being the employer of the first defendant and owner of the aforesaid Ford Transit Van registration number 94D 19871.

PARTICULARS OF INJURY

The claimant, who was born on the 5 th of January 1961 suffered pain and shock as a result of the aforementioned collision. Following the said accident the plaintiff attended the accident and emergency department of the Our Lady of Hopeless Cases Hospital complaining of pain and tenderness in both sides of his neck . The claimant was retained in hospital for four days. Following medical examination a whiplash injury was diagnosed. Following the accident the claimant was unable to return to work as a brick layer for six weeks due to continuing symptoms of neck pain, radiating to the right shoulder. The claimant continues to suffer pain and discomfort following the said accident. He has developed sever headaches and lower back pain that has necessitated physiotherapy treatment. Full particulars of which are set out in the medical report of Mr Leo Vella, consultant orthopaedic surgeon, dated 24 th of January 2007.

By reason of the aforementioned injuries, the claimant’s enjoyment of life, his ability to go about and pursue his normal activities has and continues to be severely impaired. The plaintiff is still under medical care and reserves the right to furnish further particulars of personal injury.

PARTICULARS OF SPECIAL DAMAGE

7. (1) Value of the Citron XM motor car damaged beyond repair; £ 12,000 (2) Loss of earnings: 6 weeks at £1,000 per week; £ 6,000 (3) Doctor’s fees; £ 2,450 (4) Physiotherapy (12 sessions at £50 per session); £ 600 (5) Medication £ 500 (6) Travelling Expenses £ 200 ______£ 21,750

AND THE PLAINTIFF CLAIMS:

1. Damages not exceeding £ 50,000- 2. Interest pursuant to section 69 of the County Courts Act 1984.

STATEMENT OF TRUTH

The Claimant believes that the facts stated in these Particulars of Claim are true.

______

Dated this 21 st day of March 2007.

Grovel & Covet Solicitors for the Claimant. 34

Part IV Letter Writing

Following your consultation with your client it appears that this is a straightforward case where the defendant will have to accept liability as the evidence indicates that the defendant failed to stop at the stop sign. Read the following letter requesting the defendant’s solicitor to admit liability and fill in the missing words from the box below.

settlement terms; liability; negligence; client; settlement; first defendant; negotiating; defendants; The County Court; independent;

Grovel & Covet 99 Debtor’s Lane

Tel 44 020 7586 3493

Overbody & Cringe 29 Rumpole Street

Dear Sir or Madam,

Re: Our client: David Moore Matter: Road Traffic Accident 1)……………….

We note that you act on behalf of the 2)……………… in this matter. It appears evident from the facts of this case that the 3)……………… caused the car accident that is the subject of these proceedings. Furthermore we would like to put you on notice that a statement from one 4)………………… has been obtained by us which clearly indicates that your client was at fault in failing to stop at the junction between Blanchardstown and Ballycolin Road. In the circumstances if this case were to proceed to court we are confident that your 5)…………. will be found liable in 6)……………. Accordingly to resolve this case and to avoid further unnecessary costs we call upon you to admit full 7)……………… and we look forward to receiving your 8)………………… with a view to 9)……………. a full and final 10 )……………… of this matter.

Your sincerely

Signature

Discussion

Describe the process of a civil claim in your legal system as if to a client from a different system who wants to initiate a claim. Use an example if possible.

2.3 Nuisance

Legal Summary

Nuisance in tort law consists essentially of the unreasonable interference with another person in the exercise of his rights. This interference can be with the use or enjoyment of land or rights over land ( private nuisance ) or with the health, safety, comfort, or property of the public at large ( public nuisance ). Private nuisance is a tort , protecting the occupier of land from damage to his land, buildings, or vegetation or unreasonable interference with his comfort or convenience by excessive noise, dust, fumes, etc. Public nuisance is a crime. The essence of the crime is injury to the reasonable comfort and convenience of the public at large or a section of it.

Legal Exercise 2.3 (1)

Student A

Read the following text and after answering the questions prepare to explain the nature of private nuisance to Student B and C. public nuisance and the rule in Rylands v Fletcher .

Part I

1. What is private nuisance?

2. To bring an action for private nuisance what legal interest must the claimant have in the property/land?

3. What are the remedies for private nuisance?

4. What is abatement?

5. What defences can be raised in a case of private nuisance?

Private Nuisance

The tort of private nuisance is concerned with the protection of interests in land, and the restrictions imposed on an occupier in order that an occupier of adjacent land is not unreasonably disturbed. This civil wrong is perhaps best described as a substantial and unreasonable interference with the claimant’s land or with his enjoyment of it.

Private nuisance covers physical damage to the land or anything on it, and interference with the claimant’s reasonable enjoyment of his property. Examples include allowing a tree to overhang or undermine a neighbour’s property, causing excessive noise, causing dust or bad smells, and negligently allowing undesirable objects to enter a neighbour’s property.

The claimant in an action for private nuisance must normally be a person with a legal or equitable interest in the land affected by the nuisance: a mere relative or visitor, however damaged or inconvenienced, had no cause of action.

A person disturbed by a private nuisance has four main remedies open to him: damages ; an injunction ; he may remove the nuisance himself (this is known as abatement of the nuisance); or make a complaint to the local council.

Damages may be awarded where the nuisance is minor or short-lived and the value of the damage done is quantifiable. An injunction is usually the preferred remedy for the claimant, since it requires the defendant to bring the nuisance to an end. It also has the advantage of flexibility, as it can be tailored to meet the exact circumstances of the case and produce a compromise solution. Private nuisance is based on the principle of give and take and the role of the courts is to try to reach a balance between the competing interests of neighbours.

Abatement is a form of self-help: here the plaintiff is entitled to take steps himself to alleviate the nuisance, as for example by cutting off the roots or branches of the defendant’s tree which encroach onto his property. The claimant is entitled (after giving due notice, except in an emergency) to enter onto the defendant’s land to abate the nuisance, as long as he does no more damage there than is strictly necessary for the purpose.

A local authority has power to investigate any complaints of statutory nuisance 27 and may issue a remedial notices requiring an occupier to take appropriate action to modify or remove a nuisance e.g. to trim a “high hedge” which unreasonable interferes with a neighbour’s enjoyment of his residential property. 28

Defences to private nuisance include - statutory authority - in accordance with which a person or body is obliged to perform certain functions and only commits nuisance if those functions are carried out negligently. It is also a good defence to show that the claimant is extraordinarily sensitive to the activity in question.

It is no defence for the defendant to say that the claimant came to the nuisance for instance where a person buys a property which he is aware is being subject to a nuisance from the neighbouring land.

27 Environmental Protection Act 1990 s.79. 28 Anti-Social Behaviour Act 2003 Part 8. 38

Part II

Student B

Read the following text and after answering the questions prepare to explain the nature of public nuisance to Student A and C. rule in Rylands v Fletcher .

1. What in law is a public nuisance?

2. What are the most common types of public nuisance?

3. Who can take a case in public nuisance?

4. What are the main differences between public and private nuisance?

Public Nuisance

A public nuisance is an act or omission, not warranted by law, which materially affects the reasonable comfort and convenience of the public or a section of the public. The size of the class is undefined, but a good practical rule is to ask whether the interference is of such a nature that it would be unreasonable to expect an individual to be responsible for taking legal action. In general it is true to say that as regards public nuisance the interference complained of must have wide ranging effect.

The types of public nuisance are infinitely various. They include such diverse wrongs as exposing in the public streets a person suffering from an infectious disease and holding a pop festival which generates an excessive degree of noise and traffic congestion. Public nuisances on the highway have probably given rise to most litigation and are not confined to obstruction of the highway but include any action which makes the highway unsafe or dangerous for those using it.

Public nuisance is a crime as well as a tort, though a criminal prosecution is not normally brought unless the interference with public life is “substantial” as well as unreasonable. Action is normally taken by the Attorney-General or by a local authority to prosecute or to obtain an injunction against the nuisance, but an individual may bring an action in tort if he can show that he has suffered (or is likely to suffer) particular or special damage over and above the inconvenience suffered by members of the class generally.

As with private nuisance, the defendant may be held liable for a public nuisance caused by other people under his control, or even by natural events, but is not liable for a nuisance of which he was not (and could not reasonably be) aware.

There are a number of fundamental differences between public and private nuisance; firstly an act committed once only give rise to a public nuisance but to constitute a private nuisance some continuity or repetition of the acts is essential; secondly, damages for personal injuries are recoverable for public nuisance whereas in private nuisance they are not. Damages are given to compensate for the interference with the enjoyment or use of the land or premises affected; thirdly, there can be no public nuisance unless a section of the public is prejudiced by the particular nuisance whereas one annoyed occupier can sue in private nuisance.

Part III

1. What happened in the case of Rylands v Fletcher ?

2. What principle did Rylands v Fletcher establish?

3. What does non-natural use mean?

4. Are there any defences to the rule?

The Rule in Rylands v Fletcher

The rule in Rylands v Fletcher is a principle of strict liability for dangerous things accumulated on land that escape there from and cause damage; it states that if “a person for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, he must keep it in at his peril, and if he does not do so, he is prima facie answerable for all the damage which is the natural consequences of its escape" 29 . This principle was first stated in the famous English court case Rylands v Fletcher (1868) which involved parties who occupied adjoining properties, the defendant having a mill on his land while the plaintiff worked a coal mine beneath his land. The defendant, wishing to obtain water power for the mill, constructed a reservoir and filled it with water, Unknown to him there was a disused mine shaft under the reservoir which resulted in the plaintiff’s coal mine being flooded causing considerable damage. It is central to the operation of the rule that there should be an “escape” of a dangerous substance from the defendant’s property.

A wide range of non-natural uses have fallen under the principle of strict liability established in the rule. These include: a flagpole 30 ; and CS gas canisters discharged by the police 31 . The rule established in the case means that if a defendant permits the non natural use of his land he will be found strictly liable for the consequences. In modern law the term ‘non natural use’ amounts to a special use that creates an abnormal risk of damage.

Although liability under the rule in Rylands v Fletcher is strict, it is not absolute, and some defences are available as follows: if the thing is a natural phenomenon on the land the defendant cannot be liable because he did not bring it there. Likewise if the damage was caused by the action of the plaintiff, or by an Act of God , no liability rests on the defendant. The defendant will not be liable if the escape was due to the deliberate act of a stranger which could not reasonably have been anticipated by the defendant. Likewise if statutory powers are being exercised the rule is excluded unless the defendant is proved to be negligent

29 Fletcher v Rylands , L.R.1 Ex. 285 (1868) 30 Shiffman v Order of St. John of Jerusalem [1936] 1 All ER 557. 31 Rugby v.Chief Constable of Northamptonshire [1985] 2 All ER 985. 40

Legal Exercise 2.3 (2)

Cases on Nuisance

Read the following cases and then discuss what decision the court reached using the principles associated with the tort of nuisance.

1. Rigby v Chief Constable of Northamptonshire 32

The police fired CS gas canisters into the plaintiff’s shop, hoping to flush out a dangerous criminal who had taken refuge there. The shop caught fire and the plaintiff sued ( inter alia ) for trespass. What decision did the court reach?

2. Khorasandjian v Bush 33

The plaintiff was a young woman living with her parents, who was being pestered by unwanted telephone calls and other harassment from a former boyfriend. The plaintiff applied to court for an interlocutory injunction against the defendant. Was the court willing to grant an injuction?

3. Cunliffe v Banks 34

A diseased tree belonging to the defendant fell across the road; the plaintiff motorcyclist collided with the tree and was killed. Before the accident one of the defendant’s employees had checked the state of the trees quite regularly. Was the defendant liable in nuisance?

4. Miller v Jackson 35

The plaintiff bought a house overlooking the village cricket ground then complained that cricket balls were frequently hit into her garden and sought an injunction to stop the nuisance. What did the court decide?

5. Southwark LBC v Mills, Baxter v Camden LBC 36

The tenants of a council flat complained that they could hear all the sounds made by their neighbours in the adjacent flat, from televisions and crying babies to ordinary conversations and the sounds of sexual activity, not because the neighbours were particularly noisy but because the flats had little or no sound insulation. They brought an action in nuisance against the council as landlords.

32 [1985] 2 All E.R. 985. 33 [1993] 3 All E.R. 669. 34 [1945] 1 All E.R. 459. 35 [1977] 3 All E.R. 338. 36 [1999] 4 All E.R. 449. 41

6. Halsey v Esso Petoleum 37

The plaintiff lived in Fulham, London, across the road from the defendant’s oil depot. Tankers belonging to the defendant made a great deal of noise and acid smut from the defendant’s chimneys damaged the plaintiff’s car and his clothes on the washing line. The plaintiff sued for public nuisance, private nuisance and under the Rule in Rylands v Fletcher.

37 [1961] 2 All ER 145. 42

2.4 Defamation

Legal Summary

Defamation is the wrongful publication of a false statement about a person which tends to lower that person’s reputation in the opinion of right-thinking members of the community or tends to hold that person up to hatred, ridicule or contempt, or causes that person to be shunned or avoided by right-thinking members of society. Defamation is usually in words, but pictures, gestures and other acts can be defamatory. In English law, a distinction is made between defamation in permanent form ( libel ) and defamation not in permanent form ( slander ). The remedies in tort for defamation are damages and injunction .

Adapted from A concise dictionary of law . 2 nd Edition, Oxford.

Legal Exercise 2.4(1) Defamation

Complete the text using the correct word from the box below; note that some terms are used more than once:

esteem; defamatory content; cause of action; legal proceedings; plaintiff; third party; defamatory statement; libel; slander; innuendo; ordinary person; reputation; defamatory;

The law recognises the right of every person to his good name. Defamation is the publication in any form of any statement which injures the claimant’s reputation by exposing him to hatred, ridicule or contempt, or which tends to lower him in the opinion of right-thinking members of society. There are two kinds of defamation, namely, 1)…………… and 2)………...

3)………… consists of the communication of defamatory matter in a permanent and visible form, such as writing, painting or film; it is actionable per se , without proof of actual damage suffered.

4)………… is the speaking of defamatory words and is only actionable on proof of special damage. 38

There are three essential ingredients in any allegation of defamation: that the statement was 5)…………….; that it refers (or is taken to refer) to the claimant ; and this it is published by some 6)…………..

Unfortunately there is no statutory definition of defamation and the generally accepted definition that a 7)………………. tends to lower the claimant in the 8)…………… of right-thinking people is by not means as simple or straightforward as it seems. For instance there is considerable room for disagreement as to what right-thinking people would think in a particular situation. Whether words are 9)………….. may depend on the claimant’s circumstances. It is probably not 10 )…………….. to say of a lawyer that he is ignorant of the difference between the radius and the femur, but the same statement made of an orthopaedic surgeon would be highly 11 )……………….. This brings up the issue of 12 )…………, in which an apparently innocent statement takes on a 13 )…………… meaning because of the surrounding circumstances. The claimant may succeed in an action for defamation in such circumstances but they must be able to prove an 14 )……………….. i.e. by giving the words a certain meaning they are 15 )……………. An 16 )…………, therefore, is a statement by the claimants of the meaning that they attribute to the words.

The second requirement is whether the statement refers to the claimant. Often this is obvious and undisputed, but where it is not a court has to ask itself the question whether an 17 )………….. reading or hearing the statement might reasonably think that it does.

Thirdly no defamatory statement can affect the claimant’s 18 )……………. until it is published to and understood by some person other that the claimant himself. Publication need not be widespread, but there is no defamation if the statement is made only to the defendant’s spouse, nor in relation to statements made in the course of 19 )……………... The claimant has the burden of proving publication. All those involved in the publication of a defamatory statement, such as printers, publishers, and broadcasting companies, are liable and every repetition of a defamatory statement is a fresh publication, giving rise to a new 20 )………………. A mere distributor of a book, newspaper, etc., is not liable if he did not know and had no reason to know of its defamatory content.

38 There are four important exceptions to this namely: where the slander involves an allegation of unchastity in a woman or girl; where the claimant has committed an imprisonable offence; that the claimant has a contagious or infectious disease; or when the alleged slander is calculated to disparage the claimant in his office, profession, trade or other lawful activity. 44

Legal Exercise 2.4 (2)

Defences to Defamation

Complete the text using the correct word from the box below; note that some terms are used more than once:

offer of amends; absolute privilege; correction and apology; effective defence; sued; onus; exemplary damages; truth of a statement; fair comment; consent; public interest; malice; qualified privilege; maliciously; unintentionally; justification;

There are a number of defences a defendant might use in a defamation action.

A person may 1)………… to the publication of defamatory words about his reputation. But this must be to the actual publication in order to be an 2)……………..

If a defendant who is being 3)……………. for defamation can prove the 4)…………… then there can be no defamation, because the claimant cannot claim the courts’ protection for a reputation that he does not deserve. This is known as the defence of 5)…………………. In practice this defence of justification is rarely used, because the 6)………. of establishing it rests on the defendant. If this defence is unsuccessful, the court may award 7)…………….. to the claimant because the defendant has repeated, and continued to repeat during the trial, the defamatory statement.

One of the most common defences used particularly by journalists is known as 8)…………….. Where a statement of opinion is a 9)……………… made in good faith on a matter of public interest, it is not actionable. To succeed it must be proved that any statement of fact on which the comment is based is true or substantially true, that the comment was made on a matter of 10 )………….., and that the comment was made honestly. If the comment was motivated by 11 )…………… the defence will fail.

On some occasions statements are given 12 )……………… from actions in defamation. Statements made in Parliament or in court proceedings are give this protection. This includes statements made in connection with a trial, such as communications between clients and solicitors.

Some statements are give what is called 13 )……………., which means that action can only be taken if it can be shown that the statement was made 14 )……………. Such a situation of 15 )…………… occurs when a person makes a communication under some duty or with an interest to a person who is under a corresponding duty or interest to receive it. For example an employer who is asked to give a reference to another employer is protected from defamation actions unless it can be shown that he 16 )………….. made the statement about his employee.

If a newspaper 17 )……………….. publishes a defamatory article, e.g. it gets an important fact wrong about an individual it can make an 18 )………………. to the injured party. This offer must be made formally and in writing: it must offer to publish in whatever form that is reasonable in the circumstances a suitable 19 )………….. to the injured party, and pay such compensation as may be agreed or determined. If the 20 )…………… is accepted, the innocent party cannot bring or continue legal proceedings in respect of that statement against the party making the offer, but can take legal action to enforce performance.

Legal Exercise 2.4(3) Problems in Defamation

Based on the two previous exercises on the tort of defamation, study the following problems and discuss whether there is a case for suing. You will need to identify the legal issues and the grounds for any possible action and mention any possible defences.

1. David, an accountant with Scrap Metal Products, applies for a post as chief executive with a firm of TV rentals. In the reference which Scrap Metal Products writes to the TV rental firm David is described as a self seeking, day dreamer. David subsequently sees the reference and threatens to bring a case against his former employers.

2. Eanna is a reporter with the Smut News. He has always had a grudge against his neighbour,Cillian McMorrow, and following a conviction for theft against a certain Cillian Patrick McMorrow maliciously reports that it was Cillian McMorrow and the article is subsequently printed in the Smut News. When his neighbour complains to the editor, the editor offers amends of € 500 and a printed apology.

3. Paddy Byrne works for a firm manufacturing cigarettes. He and six friends have organized a system whereby they are stealing from the company to the tune of about € 90 per week. The management decide to tighten up security and it becomes impossible to do this any longer. The friends think Paddy has informed management, which is in fact not the case. One friends pins a notice to the staff noticeboard which contains the lines: ‘ He who gave the game away let him byrne in hell and rue the day.’

4. Byron Wade reads in his local newspaper that a Byron William Wade of 22 Arran Quay, has been convicted in the Crown Court of rape. He is surprised and annoyed because this is his address. The convicted person was in fact a Byron Augustus Wade of 11 Arran Quay. Michael rings the Slanderous Gazette and the editor offers him € 450 and prints an apology which reads: ‘We wish to point out that Byron William Wade of 22 Arran Quay, was not the person convicted of rape on 14 March 2006 and we apologize for any inconvenience or embarrassment caused by our error.’ Byron subsequently refuses the € 450 compensation and sues the Slanderous Gazette.

5. Time Ltd produces a range of watches. Despite the good security system in place in the company it appears that a member of the workforce is stealing a particular type of expensive ladies watch. Following an investigation by the management the suspicion falls on, Ms Deborah Wheeler. The personnel manager decides to take immediate action and pins a notice to the staff noticeboard which reads:

We have reason to believe that Ms Deborah Wheeler has abused her position of trust with the company and is responsible for the recent spate of thefts. I should be grateful if Ms Wheeler should report to my office immediately.

Horace Porter Personnel Manager Time Ltd

Ms Wheeler, who is in fact quite innocent, is very upset and angry about the damage to her good name and decides to take the company to court as she believes this is a serious defamation of her character.

2.5 Revision Tasks

Revision Questions

1. Give an example of two torts that are actionable without proof of damage?

2. What are damages for specific amounts called?

3. What is the difference between ‘strict’ and ‘vicarious liability’?

4. List some of the differences between crimes and torts?

5. A case for personal injury must be brought within what time period?

6. Give some examples of defences to an action in tort.

7. If a claimant failed to wear a seat belt they are guilty of what?

8. What legal duty did the case of Donoghue v Stevenson create?

9. What must a claimant prove to bring a successful action in negligence?

10. A claim that is worth more than £ 50,000 must be brought in what court?

11. What are the three types of trespass?

12. What is the difference between ‘assault’ and ‘battery’?

13. What is ‘conversion’?

14. What are the differences between public and private nuisance?

15. What is the rule in Rylands v Fletcher ?

16. What are some of the defences to the rule in Rylands v Fletcher ?

17. What is the difference between libel and slander?

18. What are some of the defences to an action for libel?

19. Malice will destroy which defence?

20. If the Prime Minister makes a defamatory remark about the leader of the opposition in the course of a parliamentary debate can the latter sue for libel?

TORT/LITIGATION LAW VOCABULARY BINGO STUDENT 1

1. 2. Strict 3. 4. Trespass 5. liability

6. Nuisance 7. 8. Defamation 9. 10. Tortfeasor

11. 12. Ex turpi 13. 14. Duty of 15. causa non Care oritur actio

16. 17. 18. 19. 20.

Res ipsa Vicarious Novus actus loquitur liability interveniens

21 22. 23. 24. 25. Exemplary damages Statute of Limitations

26. 27. 28. 29. 30.

On the balance Slander Libel of probabilities

31. 32. 33. 34. 35.

Volenti non fit Necessity injuria

TORT/LITIGATION LAW VOCABULARY BINGO STUDENT 2

1. Contributory 2. 3. Conversion 4. 5. Standard of negligence care

6. 7. Personal 8. 9. Statement 10. injury of Claim

11. a 12. 13. Special 14. 15. Pleadings consultation damages

16. 17. Discovery 18. 19. Summons 20.

21. Service 22 23. Res 24. 25. Sub judice judicata

26. 27. Counter 28. 29. Motion 30. claim

31. Affidavit 32. 33. Burden of 34. 35. Summary Proof judgment

The law of Torts

Solutions

2.1 (1)

1. f) 2. e) 3. g) 4. h) 5. i) 6. k) 7. b) 8. j) 9. a) 10. l) 11. c)

12. d)

2.1(2)

1) unliquidated; 2) liquidated; 3) negligence; 4) defamation; 5) nuisance;

6) causation; 7) causation; 8) tortfeasor; 9) trespass/libel; 10)libel/trespass;

11) manslaughter; 12) negligence; 13) larceny 14) conversion; 15) injunction;

16) injury; 17) special; 18) general; 19) nominal; 20) exemplary;

2.1(3)

1. negligence; 2. libel; defamation; 3. trespass; 4. nuisance;

5. negligence;

2.1(4)

Part III

7. The court decided that necessity was a good defence, since there was a real threat of a fire, and the defendant acted reasonably. (Necessity)

8. Held that since the act could not have been avoided by reasonable precautions, the defendant was held to be completely blameless and not liable in negligence. (Inevitable accident)

9. Held that volenti non fit injuria was a good defence, because the task was undertaken entirely with full knowledge of the risk involved.

10. The defendants could not reasonably have foreseen the poisonous nature of the roots. Statutory authority was, therefore, a good defence.

11. Held that the inordinate time that had elapsed between the alleged wrongful acts and the commencement of proceedings gave rise to a real and serious risk of an unfair trial.

12. The defendant in this case raised the defence of ex turpi as a bar to the plaintiff’s action. On appeal this was accepted by the Court of Appeal who stated that the court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff’s own criminal act.

2.2(1)

Part I

1. Was the manufacturer under a legal duty of care to the consumer?

2. Because she had not bought the drink herself and so did not have a contract with the café owner.

3. That the manufacturer is ultimately responsible to the consumer for negligence/ you must avoid acts or omissions that could reasonably injure your neighbour.

4. Your neighbour is anyone who could reasonably be affected by your actions.

Part II

1) sued; 2) reasonably foreseeable; 3) a duty of care; 4) sued; 5) foreseeable;

6) sued; 7) a duty of care; 8)foreseeable; 9) proximate; 10) a duty of care;

11) foreseeability; 12) proximity; 13) sued; 14) balance the risk; 15) standard of care;

Part III

1) negligent; 2) sued; 3) negligent misstatement; 4) damages;

5) contributory negligence; 6) reasonably; 7) sued; 8) negligence;

9) breach of duty; 10) a duty of care;

2.2(2)

1. The legal question here concerns liability for economic loss caused by negligent misstatement.

2. That liability can arise for economic loss on the basis of negligent advise when there is a special relationship between the parties. This arises when one party has a special skill which is being relied on by the other, e.g. a financial advisor giving advice to a client.

3. Firstly, there must be foreseeability. Secondly, there must be proximity between the plaintiff and defendant; and finally, it must be just, fair and reasonable in all the circumstances of the case to impose a duty of care. What this means in practical terms is that any court is going to look at the skill of the advisor and this will be the most influential factor when imposing s a duty of care.

4. In Hedley Byrne the House of Lords were careful to avoid the danger of imposing rules whereby a maker of a careless statement might end up being liable to a wide class of plaintiffs i.e. in the case of publication in a newspaper.

2.2(3)

1. The principles involved in establishing ‘duty of care’ and ‘contributory negligence’.

2. That the defendants owed the claimant a ‘duty of care’ and that the defendant was in breach of that duty.

3. In accordance with the provision of the Law Reform (Contributory Negligence) Act 1945 , a defendant may raise a partial defence of contributory negligence where the claimant has failed to take reasonable care for his own safety and has thereby contributed to the damage suffered, but there is no need for the claimant to owe the defendant a duty of care.

4. Contributory negligence is based on the issues of causation and blameworthiness. Causation will normally result in a 50/50 split, but if the blameworthiness of the claimant is minor a court would be likely to make a much lower reduction for contributory negligence of around 10 per cent.

2.2(4)

1. Gertrude is a “neighbour” in the Donoghue v Stevenson sense to whom Felix owes a duty of care. This is because Gertrude is so closely and directly affected by Felixs’ actions that he ought to have her in mind when he pressed the escalator button. Although Gertrude was at the other end of the escalator – perhaps 10 or 20 meters away – she was close enough to be directly affected and physically injured by James’s actions. Therefore there is sufficient proximity between both parties. Although Felix is only 12, he can reasonably be expected to take some care not to injure other people by his actions though perhaps not as much as an adult. So Felix is in breach of his duty of care as a reasonable and well-behaved 12 year old would not interfere with machinery without thinking of the consequences. Legally Felix has fallen short of the standard expected of him and his beach of duty has clearly caused Gertrude’s injury.

2. The nurse-patient relationship is one in which there is clearly a duty of care and Veda is expected to meet the standard of a reasonable nurse as that is the job she is doing regardless of her level of experience. The authority for this is Nettleship v Weston where the Court of Appeal said no allowance was to be made for a learner driver’s inexperience. Although Veda owes Garnet a duty of care that also extends to other patients. A reasonable nurse would probably leave a patient with only minor problems if there was another patient needing urgent treatment for life-threatening injuries. In the case of Watt v Hertfordshire County Council the court was of the opinion that the saving of life and limb often justifies taking considerable risk. Veda owes Garnet a duty of care and has caused him additional pain and suffering by leaving him, but she is not in breach of her duty as she has done what any reasonable nurse would have also done in the circumstances. It follows that neither Veda nor the hospital are liable in negligence.

3. Quinton owes a duty of care to the hostel in respect of damage caused by students to hostel property. The situation is similar to the facts of Home Office v Dorset Yacht where the prison authorities had a duty to take reasonable care to ensure that the young offenders in their care did not damage the neighbours’ boats. As a teacher, Quinton, is in a “control” relationship towards Bryan and has a duty to exercise some control over his actions. He may also owe a duty of care to Bryan, in respect of the harm that Bryan may cause to himself by drinking alcohol.

It has long been accepted that teachers owe a duty of care to their students – even final year students - but in this case Bryan has just turned 18 and is technically an adult. In Barrett v Ministry of Defence the Court of Appeal said it would not be fair just and reasonable to impose a duty of care on the Navy in respect of a sailor who drank himself to death. The sailor in that case was thirty years of age and able to make his own decisions. As Bryan is only just an adult the court could take a different view.

Quinton’s duty, where it exists, is to take “reasonable care” in the circumstances – that is, to do what a reasonable teacher would have done. In other words Quinton’s duty is to take the same care for him as a reasonable parent would have done for a boy of 18, bearing in mind that he has other students to look after. A teacher cannot be expected to supervise students of that age for 24 hours a day, and his disciplinary powers are limited: Quinton did reprimand some of the students for drinking and many teachers, if not most would probably have done what Quinton did. So on this view of the facts Quinton is probably not in breach of his duty as he acted as most other reasonable teachers would have done.

4. Ian does owe Mike a duty of care. It is foreseeable that his actions may affect Mike, there is also sufficient proximity between the parties as they are playing in the same match, and there is nothing making it unfair, unjust or unreasonable to impose such a duty of care. However there is no breach of duty because Ian was concentrating on winning the match. In the case of Wooldridge v Sumner a photographer was injured at an international show jumping event, and the Court of Appeal said the standard of care required in such cases is that of a reasonable international sportsman, and a reasonable international sportsman would probably give all his attention to the game in hand. Large number of spectators come to see test matches and they do not want to see test cricketers hit the ball gently to avoid the risk of hurting anyone. So if Ian injured Mike accidentally he is not legally liable. It is arguable that Ian is not liable for the fatal injuries because the road accident was novus actus interveniens breaking the chain of causation. The outcome will depend on whether a road accident is seen as unforeseeable.

5. Digby owes a duty of care in terms of a reasonable firework manufacturer and it is unlikely that a court would make any concessions to his lack of skill or adequate training. As Digby owes his neighbours a duty of care it is reasonable to conclude that he is liable for the foreseeable damage that home made fireworks could potentially cause i.e. to property and in this case a green house. The Wagon Mound case established the rule that a plaintiff is liable for damage of a foreseeable type. While Digby is likely to be held liable for the foreseeable damage caused to the green house it is debatable if the damage caused by frost could have been foreseen. It is clear that Digby has been negligent and is liable for the damaged greenhouse but his liability for the plants and the Siamese cat may be too remote for him to be held liable.

6. Mrs Parker has lost money as a result of following the advice of her bank manager and the article in the newspaper. The relevant area of law is therefore economic loss as a result of negligent words. Donoghue vStevenson established the existence of a duty of care to my neighbour i.e. the person who could foreseeably be affected by negligent acts. The situation is different in the case of negligent words as it is not always possible to foresee at the time which people will be affected by them. So it is not possible to foresee how many people will lose money as a result of following particular advice. The courts have always been anxious to avoid creating liability to an indeterminate number of people. So in Hedley Byrne a ‘special relationship’ must exist between the parties before liability would be imposed.

Turning to the facts of the present question it is clear that a special relationship exists between Mrs Parker and Mr Trustworthy and that the advice was given in a formal situation where Mr Trustworthy should accept responsibility both for the accuracy of the advice and that Mrs Parker would rely on it. The loss resulting from reading the article in the newspaper raises the problem of liability to an indeterminate number of people. There is no special relationship between Mrs Parker and the newspaper as there is no undertaking of responsibility to all its readers and it would not be reasonable for Mrs Parker to rely on the information in the article to invest her money without taking further advice on Safe Foundation’s financial position.

The conclusion must be that while Mrs Parker would have a reasonable chance of recovering the 25,000€ she has lost as a result of relying on Mr Trustworthy’s advice, she is unlikely to succeed in an action against the newspaper.

2.2(5)

Part I

1 (i) 2 (c) 3 (l) 4 (k) 5 (g) 6 (h) 7 (j) 8 (f) 9 (e) 10 (a) 11 (b) 12 (d)

Part II

1)civil; 2) solicitors; 3) arbitration; 4) civil case; 5) settlement;

6) civil justice system; 7) a pre-action ‘protocol’; 8) liability; 9) County Court;

10) a personal injury; 11) County Court; 12) transferred;

Part III

1. Micheal Murphy and Walter Mee Carpets Ltd.

2. No. He was in the passenger seat. The car was being driven by his mechanic.

3. Around 3pm on the 21 st of December 2006 at the junction of Ballycolin Road and Blanchardstown Road.

4. Yes. One witness in car behind the claimant.

5. Yes

6. A bricklayer.

7. £6,000.

8. £12,750.

9. Because the first defendant was acting in the course of his employment when the accident occurred.

10. At the junction with Ballycolin Road a Ford Transit Van, No. 94D 19871 owned by Walter Mee Carpets Ltd driven by Micheal Murphy failed to stop at the stop sign at the junction of Ballycolin Road and Blanchardstown Road and crashed into the passenger side of David Moore’s car. The car spun around following the impact and finished in the reverse position.

11. Typical whiplash injuries, i.e. neck, back pain and headaches.

Part IV

1)The County Court; 2) defendants; 3) first defendant;

4) independent witness; 5) client; 6) negligence; 7) liability;

8) settlement; 9) negotiating; 10) settlement of this matter;

2.3(1)

Part I

1. The tort of private nuisance is concerned with the protection of interests in land, and the restrictions imposed on an occupier in order that an occupier of adjacent land is not unreasonably disturbed.

2. The claimant must normally be a person with a legal or equitable interest in the land affected by the nuisance.

3. There are four main remedies available: damages; an injunction; abatement; or by making a complaint to the local council.

4. The termination, removal, or destruction of a nuisance.

5. Defences include -statutory authority - in accordance with which a person or body is obliged to perform certain functions and only commits nuisance if those functions are carried out negligently. It is also a good defence to show that the plaintiff is extraordinarily sensitive to the activity in question.

Part II

1. A public nuisance is an act or omission, not warranted by law, which materially affects the reasonable comfort and convenience of the public or a section of the public.

2. The most common public nuisances arise in connection with roads for example obstruction of the highway, actions that make the highway unsafe or dangerous for those using it.

3. Action is normally taken by a local authority to prosecute or to obtain an injunction against the nuisance, an action for public nuisance may be brought by an individual who can establish that he has suffered (or is likely to suffer) particular or special damage over and above the inconvenience suffered by members of the public generally.

4. A one off act can give rise to a public nuisance but to constitute a private nuisance some continuity or repetition of the acts is essential; damages for personal injuries are recoverable for public nuisance whereas in private nuisance they are not; there can be no public nuisance unless a section of the public is prejudiced by the particular nuisance whereas one annoyed occupier can sue in private nuisance.

Part III

1. The two parties occupied adjoining properties, the defendant had a mill on his land while the plaintiff worked a coal mine beneath his land. The defendant, wishing to obtain water power for the mill, constructed a reservoir and filled it with water, Unknown to him there was a disused mine shaft under the reservoir which resulted in the plaintiff’s coal mine being flooded causing considerable damage.

2. The rule states a principle of strict liability for dangerous things accumulated on land that escape from the land and cause damage.

3. A ‘non natural use’ is a special use that creates an abnormal risk of damage.

4. Defences include: if the thing is a natural phenomenon on the land the defendant cannot be liable because he did not bring it there; if the damage was caused by the action of the plaintiff, or by an Act of God, the defendant will not be liable; likewise no liability will arise if the escape was due to the deliberate act of a stranger which could not reasonably have been anticipated by the defendant; finally if the defendant was carrying out an obligation imposed by the law the rule is excluded unless the defendant is proved to have been negligent.

2.3 (2)

1. The court decided that throwing an article such as a canister onto another person’s land from outside, without justification or lawful excuse, constituted trespass. However, the police in this case had acted through necessity and the plaintiff’s action failed.

2. The injunction was granted against the defendant forbidding him from harassing, pestering or communicating with the plaintiff by telephone or otherwise. Such harassment by unwanted telephone calls amounted to interference with the ordinary and reasonable enjoyment of property which the plaintiff had a right to occupy (as a licensee of her parents) was actionable as a private nuisance notwithstanding that she had no legal or equitable interest in the land affected.

3. A person is liable for a nuisance, if he causes it, or if by the neglect of some duty he allowed it to arise, or if when it has arisen he fails to do anything about it within a reasonable time after he should have been aware of it. In the instant case the defendant was not laible either in negligence or in nuisance.

4. The court found that the defendant’s were liable in nuisance but refused to grant an injunction because the defendant’s activities were socially beneficial and because the plaintiff was aware of the nuisance when she bought the house. She was awarded nominal damages for inconvenience.

5. The plaintiff’s claim failed as the normal use of a residential flat could not possible be a nuisance, so the landlords were not responsible for allowing a nuisance to occur.

6. The plaintiff was successful on all grounds: in private nuisance for the smell and noise, in public nuisance for damage to his car caused by acid smuts from the chimneys and under Rylands v Fletcher for the damage to his car and clothes caused by the escaping smuts.

2.4(1)

1) libel/slander; 2) libel/slander; 3) libel; 4) slander; 5) defamatory; 6) third party;

7) defamatory statement; 8) esteem; 9) defamatory; 10) defamatory;

11) defamatory; 12) innuendo; 13) defamatory; 14) innuendo;

15) defamatory; 16) innuendo; 17) ordinary person; 18) reputation;

19) legal proceedings; 20) cause of action;

2.4(2)

1) consent; 2) effective defence; 3)sued; 4) truth of a statement; 5) justification.

6) onus; 7) exemplary damages; 8) fair comment; 9) fair comment;

10) public interest; 11) malice; 12) absolute privilege; 13) qualified privilege;

14) maliciously; 15) qualified privilege; 16) maliciously; 17) unintentionally;

18) offer of amends; 19) correction and apology; 20) offer of amends;

2.4(3) 6. If David sues his former employers he is likely to be met with the defence of qualified privilege. This is available to a person who makes a communication under some duty to a person who is under a corresponding duty to receive it. It is relevant to the situation where a former employer is asked to give a reference about an employee. Provided the comments in the reference where not motivated by malice, Scrap Metal Products, will have a good defence to any potential action.

7. In this case Cillian should be advised to refuse the offer of amends. If the newspaper raises the defence of innocent publication they will have to show that the statement was made unintentionally. However, it appears that the report was published out of malice and was intentional thus destroying the defence. The claimant should not accept the offer of amends as this will mean he cannot take defamation proceedings concerning the original statement. The claimant must of course prove that the statement referred to him; that it was communicated to a third party i.e. published; and that the statement was capable of lowering the claimant’s reputation in the eyes of right-thinking members of society. Prima facie Cillian has a good case against the newspaper.

8. In order to establish a case in defamation the claimant will have to prove that the offending statement referred to him. In this case the statement named Paddy by inference which is sufficient. The offending note has been communicated to a third party as it was published on the notice board. The final hurdle is whether the statement is capable of lowering the claimant’s reputation in the eyes of right-thinking members of society. Clearly this is not the case here as Paddy’s informing on the crime that was being committed is likely to be praised rather than condemned by right thinking people. The better view would be therefore that Paddy has little chance of bringing a successful defamation action.

9. Byron’s potential action is likely to be met with the defence of innocent publication. An innocent publication means that the publisher did not intend to publish the statement concerning the plaintiff and that he did not know of any circumstances in which it would be understood to refer to him. To back this up the newspaper will argue correctly that they did make the required offer of amends and that this was published in the newspaper along with an apology and compensation. As Byron appears to have accepted the original offer of amends he cannot now bring proceedings in respect of the original statement. If it were the case that Byron had rejected the offer of amends in the first place the case could go to trial the newspaper could still raise the defence that the offer of amends was made and that the publication was innocent.

10. To succeed in an action for defamation against her employers, Deborah is going to have to prove that the statement referred to her by name or innuendo. In this case she was clearly named so the issue of innuendo does not arise. The statement was also communicated to a third party as the workforce had the opportunity to see it. The final question to ask is whether the words in the statement are capable of lowering a person’s reputation in the eyes of right-thinking members of society. In other words was it likely that a person about whom the statement was made might be regarded with ridicule, contempt or even hatred. It would seem that dishonesty of the sort alleged against Deborah is something which causes her reputation to be lowered and that she has a sustainable case in defamation.

2.5

1. Trespass/libel.

2. Special damages.

3. Strict liability involves liability for a wrong that is imposed without the necessity of proving intention or negligence on the part of the defendant. Vicarious liability is legal liability imposed on one person for torts or committed by another.

4. Tort cases are usually disputes between private individuals; the standard of proof is less demanding in a civil case, i.e. on the balance of probabilities as opposed to beyond reasonable doubt; criminal cases are not subject to the statute of limitations unlike civil cases;

5. Three years.

6. Contributory negligence; Volenti Non Fit Injuria; inevitable accident; necessity; ex turpi causa non oritur action; the statute of limitations.

7. Contributory negligence.

8. The case imposes a legal duty on manufacturers to take reasonable care to prevent injury to the life or property of their consumers.

9. The principal requirements of the tort are that the defendant should owe the claimant a duty of care, and a failure on the part of the defendant to conform to the required standard; and actual loss or damage to the interests of the claimant and a sufficiently close causal connection between the conduct and resulting injury to the claimant.

10. The High Court.

11. Trespass to land, goods and the person.

12. Assault is an intentional or reckless act that causes someone to expect to be subjected to immediate physical harm; battery is the intentional or reckless application of physical force to someone without his consent.

13. The tort of wrongfully dealing with a person’s goods so as to deny the owner the right to them. Conversion is in effect the civil law term for stealing.

14. An act only has to be committed once to cause a public nuisance but to constitute a private nuisance some continuity or repetition of the acts is essential; damages for personal injuries are recoverable for public nuisance whereas in private nuisance they are not;, there can be no public nuisance unless a section of the public is prejudiced by the particular nuisance whereas one annoyed occupier can sue in private nuisance.

15. The rule imposes strict liability for dangerous things accumulated on land that escape therefrom and cause damage;

16. If the thing is a natural phenomenon on the land the defendant cannot be liable; Act of God; exercise of a statutory power or if the damage was caused by the act of a stranger that could not have been foreseen by the defendant.

17. A libel is a defamatory statement made in permanent form, such as writing, pictures or film. Slander is a defamatory statement made in non permanent form for instance by spoken words.

18. Justification; fair comment; privilege; consent.

19. Fair comment

20. Defamatory remarks made in parliament are privileged and cannot normally form the basis of a libel action.